Zoran Lukic v Toll Holdings Limited

[2023] VCC 2352

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE

COMMON LAW DIVISION

Revised Not Restricted

Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-17-03762

Zoran Lukic	Plaintiff
v
Toll Holdings Limited	Defendant

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JUDGE:	S. Davis
WHEREHELD:	Melbourne
DATEOFHEARING:	15 November 2023
DATEOFJUDGMENT:	19 December 2023
CASEMAYBECITED AS:	Lukic v Toll Holdings Ltd
MEDIUMNEUTRALCITATION:	[2023] VCC 2352

REASONS FOR JUDGMENT

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Subject:  WORKPLACE ACCIDENT COMPENSATION

Catchwords:              Serious injury application – sub-paragraph (a) of the definition of serious injury – work related left elbow injury in 2010 – episode of left elbow pain at work in 2016 – aggravation – causation

Legislation Cited:   Accident Compensation Act 1985

Cases Cited:Altona Bus Lines v Lococo [2002] VSCA 159, Rowe v TAC [2017] VSCA 377, AG Staff v Filipowicz (2012) 34 VR 309

Decision:  Application dismissed

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APPEARANCES:	Counsel	Solicitors
ForthePlaintiff	Ms J Taylor (appearing pro bono)
FortheDefendant	Mr A Saunders	Minter Ellison

COUNTY COURT OF VICTORIA

250 William Street, Melbourne

HER HONOUR:

1Mr Lukic applies under s 134AB of the Accident Compensation Act 1985 for leave to issue common law proceedings for damages for pain and suffering and economic loss in respect of an injury to the left elbow sustained on or about 21 October 2010 in the course of his employment with Toll Holdings Limited.

2I note that the Originating Motion, the Draft Statement of Claim and each of the plaintiff’s affidavits referred to the claimed injury (to the left elbow) as occurring on or around 21 October 2010. The first affidavit of the plaintiff sworn on 22 February 2017 made no mention of any further incidents or exacerbations. However, the second affidavit of the plaintiff sworn on 27 May 2021 referred to the claimed left elbow injury in October 2010 and to another injury sustained at work in January 2016. While tightening straps around a load on the truck, Mr Lukic felt sharp and severe pain in his left elbow. The plaintiff’s third affidavit, sworn on 17 October 2023, referred to the injury as having occurred in October 2010 and made no mention of the subsequent incident of left elbow pain in January 2016. That affidavit also refers to pain and dysfunction in the left knee, back and neck, and to depression because of his “injuries”.

The hearing

3At the hearing before me, Mr Lukic had the benefit of pro bono legal representation. Much of the documentation filed with the Court prior to the hearing concerning his application concerned injuries to the left elbow, left knee, and psychiatric injury (anxiety and depression).

4At the commencement of the hearing, Mr Lukic’s counsel abandoned the claim in respect of the left knee and/or back, leaving only a claim in respect of the left elbow under sub-paragraph (a) of the definition of serious injury. In relation to the left elbow, Mr Lukic’s counsel also sought to rely on an aggravation of the left elbow injury in January 2016.

5In addition, Mr Lukic’s counsel sought to leave open the possibility of relying on sub-paragraph (c) of the definition of serious injury in respect of his psychiatric injury.

6The parties exchanged and filed written submissions after the conclusion of the hearing. In her submissions, counsel for the plaintiff did not pursue an application under sub-paragraph (c) of the definition of serious injury and focused on the left elbow injury. Although the defendant came to the hearing to meet a case alleging left elbow injury on 21 October 2010, counsel for the plaintiff sought leave to amend the plaintiff’s application to include an alleged aggravation of the left elbow injury on an occasion in January 2016.

7Counsel for the defendant consented to the plaintiff’s application to amend his application to include reliance on the injury allegedly sustained in January 2016, and to make consequential amendments to the Originating Motion. However, counsel for the defendant submitted that there was little or no evidence to support a connection between the two injuries, let alone identify the nature and extent of and additional effects that might be said to result.

8Mr Lukic gave evidence and was cross-examined. No further witnesses were called. The parties tendered documents from a joint court book, and made oral and written submissions. I have considered all of the material tendered and the submissions made by counsel.

The plaintiff

9Mr Lukic is a 40 year old man who is right handed. He is divorced and has no children. He was born in the former Yugoslavia, and migrated with his family to Australia when he was 13 years of age. Upon arriving in Australia, Mr Lukic studied English for 9 months before joining High School in Year 8. His family moved to a different suburb when he was in Year 10 and struggling at school. He was advised to pursue vocational training, and left school prior to starting Year 11.

10Mr Lukic began a carpentry apprenticeship, but did not enjoy it. He then worked as a bus driver. At around 21 years of age, he completed his heavy vehicle driver’s course and became a truck driver. He purchased his own truck and became an owner driver, setting up his own business and operating under his own ABN.

11Mr Lukic commenced employment with the defendant as a support truck driver in 2009. He initially worked two to three days a week, then quickly progressed to working full time as a truck driver.

12On or around 21 October 2010, Mr Lukic was unloading his truck at the Altona Toll Depot. He was unloading a two-metre long carton which was placed on top of some pallets. Unloading this required Mr Lukic to reach above head height. He tried to pull the carton down from the top of the pallets, but in the process he took a step back, lost his balance and fell from the truck to the ground. He put his left arm out behind him to break his fall, and suffered a fracture to the radial head of his left elbow. His left arm was put in plaster.

13On 4 November 2010, Mr Lukic made a WorkCover claim for compensation in relation to the injury to the left elbow, left knee and secondary psychological condition. He received weekly payments for a period of about seven months while his left elbow fracture healed and he completed a rehabilitation program. He returned to work in June 2011 on unrestricted, full-time pre-injury duties.

14In his first affidavit, Mr Lukic stated that after returning to work in June 2011 he “found it increasingly difficult to cope with work over time”1 and stopped driving his truck in January 2016, after he suffered severe pain and a click in the left elbow while using a pole to tighten load-binders on the side of the truck in order to secure the load.

15He was on light duties until May 2016, when he had an arthroscopy to remove a bone spur from the left elbow. He had a cortisone injection to the left elbow in

1 Joint Court Book (‘JCB’) 13.

September 2016. He has been unable to return to work truck driving since that time, and has no transferrable skills which would enable him to obtain alternative employment.

16On 17 January 2017, the defendant accepted liability for the left elbow, left knee and secondary psychological injury flowing from the 2010 workplace incident.

17As at 22 February 2017, Mr Lukic deposed, in relation to the left elbow,2 that he had constant pain in the left elbow “which travels around my elbow and feels as though it is deep inside my elbow. My arm clicks a lot and it feels as though my bones are crunching and rubbing on each other”.3 He stated that his whole left arm often ached; that his left elbow pain was worse with movement; that he could not straighten it; and that he often wore a brace when walking or driving. He stated that he had “lost a lot of strength and muscles”4 in his left arm. He found it too painful to steer his truck and difficult to drive far in his automatic car. His sleep was frequently interrupted by left elbow pain, and he had difficulty with domestic tasks and personal care. He was relying much more on his right arm. He was taking Panadeine Forte multiple times per day to manage his left arm (and left knee) pain. He was participating in a second pain management program.

18In his second affidavit sworn 27 May 2021, Mr Lukic updated the medical and surgical treatment he had undergone to the left arm and left knee, but there were no further interventions in relation to the left elbow. He was managing his left elbow and left knee pain with Targin tablets “multiple times per day”.5 He again stated that he injured his left elbow in January 2016 “by tightening truck load binders”,6 found it increasingly difficult to cope at work, and stopped driving his truck at that time. He performed light duties until May 2016, when he had left elbow surgery (as noted above). The remainder of the affidavit insofar as it related to the left elbow

2 Each of his affidavits addressed the injuries to the left elbow and left knee as well as psychological injury.

3 JCB 14.

4 Ibid.

5 Ibid 21.

6 Ibid.

was in identical terms to the first affidavit. His third affidavit, sworn 17 October 2023, insofar as it related to the left elbow, was in almost identical terms to the first and second affidavits, although it referred to his taking Targin tablets multiple times for day for his pain (left knee and left elbow), Imovane (for sleep), Endep (for anxiety and depression) and Baclofe (muscle relaxant).

19At the hearing, Mr Lukic said that when he returned to work in mid-2011, he had been cleared for normal duties and performed a full range of duties both at work and outside work. He said that his left elbow was not perfect but was “95%”7. Between 2011 and 2016, he had no trouble with his left elbow at work that bothered him and only once had a twinge when turning the steering wheel. He was able to do all his work duties and his activities outside work. He did not dispute the history recorded by Dr Lim of left elbow pain starting in around mid-2015 when Mr Lukic started gym work. He said that he undertook a few pain management sessions of physiotherapy and hydrotherapy in 2010-2011. He said that he hates the gym and may have tried it but did not continue. He insisted that prior to the 2016 episode of severe pain, he was only experiencing intermittent minor pain in the left elbow. Currently, he said that his ongoing left elbow pain is brought on by activity, and that it feels like “the two bones are touching each other and every time they touch its like someone’s touching me with a needle inside.”8

Medical evidence

20Mr John Owen, orthopaedic surgeon,9 reported on 29 March 2011 in relation to the left elbow that the 2010 injury was in the nature of a fracture to the radial head with some bone oedema in the area of the fracture. He noted that because of the multi-focal tenderness around the elbow, Mr Lukic may have developed a chronic pain state. Mr Owen stated that usually with this kind of fracture the injury would heal within 6 weeks and one would expect a graduated return to work a few weeks

7 Transcript of Proceedings, Lukic v Toll Holdings Ltd (County Court of Victoria, CI-17-03762, Judge Davis, 15 November 2023) 16.

8 Ibid 23.

9 JCB 116.

later. Mr Owen stated that he was unable to explain why Mr Lukic was so disabled and considered that his main disability was a psychosocial one. He stated that Mr Lukic did not have a major risk in developing osteoarthritis in the elbow as a result of his left elbow injury.

21On 21 January 2016, Mr Lukic attended Dr Chin at Sonic Health. Dr Chin’s clinical notes recorded a history that he returned to work after his 2010 left elbow fracture “but left elbow never felt the same/feels different and lose function/feels that my elbow is going to break anytime”.10

22On 19 February 2016, Mr Michael Shannon, orthopaedic surgeon,11 noted a history from Mr Lukic of ongoing pain in the left elbow after the 2010 work-related fracture healed, particularly when twisting his left arm while driving, and an inability to fully straighten it. Mr Lukic told Mr Shannon that he resumed normal duties after six months. Mr Shannon then noted that Mr Lukic was “extremely vague about the subsequent events”12 and told him that he was put on light duties in January 2016 because his left knee was getting worse getting in and out of the truck and he had sharp pains. He told Mr Shannon that he had never been able to straighten the left elbow since the 2010 fracture and said he felt pain at the back of the elbow, pointing to the tip of the olecranon. He stated that his elbow got sore when he twisted with activities such as steering his truck and changing gears.

23Mr Shannon concluded that:

The fracture was minimally displaced and had substantially united, but with very slight irregularity of the articular surface.

He has ongoing minimal restriction of extension in the elbow and he is also describing pain at the back of the elbow and laterally, but not specifically related to the radial head.

There are some minor degenerative changes in the elbow which are a sequel of an intra-articular fracture and may gradually progress with time.13

10 Ibid 479

11 Ibid 667.

12 Ibid 668.

13 Ibid 671–672.

24Mr Shannon noted that the left elbow symptoms could relate to work related aggravation of the 2010 condition, but noted that the fracture was soundly united. He considered that the tiny loose fragments identified by the radiologist but not visible to Mr Shannon, would be unlikely to be the cause of his symptoms or to warrant surgical intervention, although the left elbow symptoms would limit Mr Lukic in the performance of heavy physical work.

25On 5 May 2016, Mr Owen performed arthroscopy on the left elbow and found “damage in the joint with a chondral flap damage to the head of the radius”.14 He performed a minor debridement.

26On 3 June 2016,15 Mr Lukic attended Dr Lamba at the Boulevard Family Practice in relation to having had surgery on his left elbow after an earlier fracture, and complaining of pain despite taking Panadeine Forte.

27Mr Richard Pease,16 orthopaedic surgeon, reported on 1 August 2016 taking a history from Mr Lukic that his left elbow symptoms never resolved after the fracture, but that they were “ten times worse”17 after arthroscopy in 2016. He was living with his parents, not doing anything apart from watching television, and was sleeping a lot. Mr Pease noted on examination that the tenderness complained of was not restricted to the radial head and was generalised, although he did not complain of pain when significant pressure was placed on the elbow. This suggested to Mr Pease that Mr Lukic might have a regional pain syndrome, although there was limited evidence of this in the light of normal arm circulation, normal sensation, an absence of weakness and an absence of skin atrophy. He recommended pain management “for his unusual elbow complaints”.18 He concluded that Mr Lukic would be unable to return to heavy physical work or his pre-injury duties but might

14 Ibid 128.

15 Ibid 472.

16 Ibid 677.

17 Ibid 679.

18 Ibid 684.

be fit for alternative duties. He recommended an active exercise program for the left elbow.

28On 10 October 2016,19 Dr Terence Lim, pain specialist, reported his finding that Mr Lukic had central sensitisation (which he described as an organic condition), which was amplifying and perpetuating his elbow pain, and resulting in psychological symptoms which required treatment.

29On 27 October 2016,20 Dr Dush Shan, psychiatrist, reported a diagnosis of Adjustment Disorder with mixed depression and anxiety in response to the injury to the left elbow (and left knee), which was causing him ongoing pain and broken sleep (as well as some falls). She considered that Mr Lukic was psychiatrically fit for any employment which accommodated his physical restrictions but that the suggested alternative employment options may be unrealistic given his lack of experience. Dr Shan reported that Mr Lukic gave a history of the 2010 incident and of a flare up in the left elbow condition in 2016 but “did not describe any specific incident in relation to that”.21

30On 28 March 2017,22 Mr Ian Dickinson, orthopaedic surgeon, reported that three MRI’s taken in 2016 showed that the left elbow fracture had healed with “chondral thinning of the lateral joint surface”.23 Mr Dickinson considered that neither the left elbow nor left knee injuries were preventing a return to work. He noted that the pain flowing from a fixed flexion deformity of the left elbow could be treated with analgesia and would not preclude a return to work. Rather, he considered that any incapacity for work was due to his emotional responses to his physical injuries. He noted that Mr Lukic was taking very large doses of Panadeine Forte, which was both inappropriate and mood changing, and that he required psychiatric evaluation and treatment.

31On 28 April 2017,24 Mr Dickinson reported that Mr Lukic did have a restriction in relation to his left elbow, which was arthritic. For this reason, Mr Dickinson felt that light work was appropriate. On 21 June 2017,25 Mr Dickinson reported that Mr Lukic was frustrated with his orthopaedic injuries and not interested in the alternative, office-based employment options suggested to him, for which he would require retraining.

32On 17 October 2017,26 Dr Nicholas Nassios reported to the defendant that he saw Mr Lukic in late September 2016 with a report of a fractured left elbow, that he “went back to work as a truck driver but his pain had continued to deteriorate and in January 2016 his left elbow became so bad that he was unable to tolerate it any further”.27 He reported constant left elbow pain which affected all aspects of his life. He presented as anxious and depressed. On examination, he was unable to fully extend or flex his left elbow. Dr Nassios noted MRIs of the left elbow on 17 March and 18 August 2016. He noted that Mr Lukic had undergone left elbow arthroscopy in May 2016 as well as a pain rehabilitation program but was still taking Targin, Imrest, Tramal, Panadeine Forte and Valdoxan for his pain and depressive symptoms. He had also had a PRP injection to the left elbow which did not relieve his symptoms. Dr Nassios felt that due to the ongoing degenerative changes in his left elbow and left knee, as well as the development of a chronic pain syndrome in the left elbow and his anxiety and depression, Mr Lukic had a poor prognosis in terms of return to work.

33On 28 December 2017, Mr Owen reported that Mr Lukic’s 2010 elbow fracture involved minimal displacement but “has gone on to cause him ongoing issues”.28 After the minor debridement performed on arthroscopy in May 2016, Mr Lukic continued to suffer chronic left elbow pain and arthritis in that elbow. Mr Owen noted that the MRI of 10 August 2016 confirmed the healed fracture but “ongoing

24 Ibid 213.

25 Ibid 217.

26 Ibid 101.

27 Ibid.

probable damage to the surface of the joint”.29 Mr Owen found it difficult to understand how a relatively minor fracture could have such a poor outcome. He noted that “the degree of disability that he displays from the elbow injury is also hard to understand”.30 He considered that Mr Lukic had suffered major psychological issues after his injury and that the disability flowing from his chronic pain was the main problem, requiring pain management treatment from a specialist. He noted that the development of arthritis in the left elbow was unusual, but did not usually cause much pain, and that many manual workers with this condition were able to keep working, even if they had a loss of range of movement. He last saw Mr Lukic on 20 July 2017, when Mr Lukic complained of ongoing left elbow and demonstrated a range of movement limited to 0-80 degrees with a complaint that the left elbow “clicked all the time”31. Mr Owen noted that he had concerns about Mr Lukic’s poor psychological state when he saw him.

34On 16 January 2018,32 the Medical Panel issued a Certificate of Opinion and Reasons in respect of the claimed injuries to the left elbow, left knee and psychiatric injuries. In its Reasons, the Panel noted, in relation to the left elbow, that Mr Lukic demonstrated “moderate reduction in extension but otherwise intact range of flexion, supination and pronation”; and that he demonstrated “a far greater range of movement of the left elbow on distraction than on formal examination”; that while he reported tenderness on light palpation “of the medial and lateral epicondyles and all adjacent areas with pain avoidance”, and on passive movement of the left wrist and shoulder he indicated worsening of left arm pain, he was at “other times able to demonstrate extensive unrestricted movement of the left wrist and shoulder without apparent discomfort”.33

35The Panel had a history, among other things, of ongoing minor restrictions in the function of his left elbow until about January 2016, when after loading his truck he

29 Ibid 129.

was aware of something “tweaking” in his left elbow. By May 2016 his left elbow symptoms were severe enough to make him return to see Mr Owen, who advised him to undergo arthroscopic surgery.

36The Medical Panel’s conclusion, was as follows:

…In the Panel’s opinion the worker is suffering from persistent left elbow pain symptoms and dysfunction following fracture of the left elbow treated surgically and persistent left knee dysfunction following an unresolved soft tissue injury of the left knee treated surgically as well as a Chronic Pain Disorder secondary to a general medical condition (persistent left elbow pain symptoms and dysfunction following fracture of the left elbow treated surgically and persistent left knee dysfunction following an unresolved soft tissue injury of the left knee treated surgically, and a mild to moderately severe Adjustment Disorder with depressed and anxious mood, in partial remission with treatment.34

37Dr Terence Lim, rehabilitation and pain management specialist, treated Mr Lukic for his chronic pain from February 2011. He supervised his outpatient pain rehabilitation program, but did not see him between March 2011 and October 2016, after his left elbow arthroscopy. On 14 August 2018,35 he reported taking a history from Mr Lukic that in mid-2015:

he decided to return to the gym to ‘pump iron’ but over time, started experiencing pain exacerbation. However, he did persist and in the ensuing weeks, suffered further pain exacerbations which became more constant.36

38On examination, Dr Lim found that Mr Lukic:

…did have evidence of multiple, significant tender muscular trigger points affecting the muscles around his left elbow consistent with having become significantly pain sensitised (central sensitisation).

He had full active elbow flexion and with some coaxing was able to actively extend to almost (not quite) full extension in a relatively comfortable ark.37

39Dr Lim noted that after his left knee arthroscopy, Mr Lukic undertook some pain management but at the time of last review in May 2018 was unable to return to

work due to his left knee problems. His prognosis would depend on his ability to self-manage his chronic pain.

40On 20 November 2018,38 Mr John O’Brien reported a history from Mr Lukic of a left elbow fracture in 2010, a return to normal work duties after about 7 months, but the persistence of left elbow pain, with a further episode of severe left elbow pain at work in January 2016 when using a ratchet to tie down a load in his truck. He had arthroscopy which did not improve his pain, as well as PRP and cortisone injections. Thereafter, those who treated his left elbow recommended conservative management.

41Mr Lukic complained to Mr O’Brien of ongoing constant left elbow pain “like a toothache”, with a severity of 8/10 on the Visual Analogue Scale. He also reported left knee pain, which was worse since arthroscopy. Each day, he was taking about six Panadeine Forte tablets, two tablets of Targin, as well as Valdoxan. He was taking Imovan at night. He was seeing a psychologist. He divorced in 2013, was living with his parents, and was depressed. He struggled with activities of daily living and domestic tasks due to his left knee and left elbow pain. His sleep was adversely affected. He had not worked since January 2016. At the consultation, Mr Lukic wore elasticised braces on his left knee and left elbow. He limped and using a walking stick.

42On examination of the left elbow, Mr O’Brien noted that although there was no obvious deformity, on active movement there was a 10 degree fixed flexion deformity, with 140 degrees of flexion. Mr Lukic reported “marked tenderness mainly associated with the lateral aspect of the left elbow”.39

43Mr O’Brien referred to the radiological investigations of the left elbow and concluded:

He now presents a fixed flexion deformity of the elbow, accompanied by extreme tenderness which could be regarded as allodynia. This would

indicate the presence of chronic elbow pain which I would consider emanates from the degree of post-traumatic arthritis in the humeroradial articulation. However there are also signs which would indicate that the current level of chronic elbow pain is influenced by non-organic factors.40

44Mr O’Brien recommended ongoing conservative management (of the left knee and left elbow) with analgesia and psychological support. He considered that due to Mr Lukic’s presentation with “significant disability which certainly is contributed to by what is now obvious illness behaviour”,41 he was physically permanently incapacitated for any employment.

45On 20 March 2019,42 Dr Shan reported that Mr Lukic complained of ongoing left elbow and left knee pain. She did not believe that this pain required him to take Targin at least three times per day as well as Gabapentin. He was taking Valdoxan and Endep for his psychiatric symptoms but still reported broken sleep. He stated that he had taken cannabis for his physical symptoms shortly before ceasing work and felt that the duties he was offered by Toll were not suitable for him. Dr Shan confirmed her previous diagnosis, and concluded that his condition had stabilised and that his prognosis depended on the progress, if any, in relation to his physical complaints. She repeated her conclusion that while he was psychologically fit for any alternative employment which accommodated his physical restrictions, such employment may be unrealistic for him. She recommended ongoing psychiatric treatment.

46Dr Dominic Yong, occupational physician, provided four reports to the defendant’s solicitors in relation to Mr Lukic’s left knee and left elbow injuries, as well as anxiety and depression. In his first report dated 23 April 2019,43 Dr Yong noted that Mr Lukic gave a history of a work related left elbow injury in 2010, and of “noticing his left arm was hurting more” in 2016 while turning the steering wheel to “do up a ratchet to tighten his load on the truck”. Mr Lukic told Dr Yong that he was right-

40 Ibid 188.

41 Ibid.

handed but also ambidextrous.44 Dr Yong considered that Mr Lukic should participate in an activity based exercise program for his left elbow condition, but imposed a number of restrictions which resulted in a finding that Mr Lukic could not return to his pre-injury duties, but could undertake retraining so as to perform sedentary roles provided they accommodated his restrictions.

47In his second report dated 8 February 2021,45 Dr Yong noted that Mr Lukic reported not using his left arm much but his left elbow and left knee pain persisted, as did his psychological symptoms. Dr Yong found mild wasting of the left forearm, reduced range of movement, but overall adopted the conclusions expressed in his first report. Dr Yong noted that Mr Lukic had been diagnosed with a psychological comorbidity and recommended psychiatric assessment. Similar to the first report, I acknowledge that Dr Yong again concluded that Mr Lukic’s left elbow injury did not prevent him from undertaking sedentary employment following retraining.

48In his third report dated 8 February 2022,46 Dr Yong noted complaint of ongoing left elbow pain worsened by movement, as well as ongoing left knee pain. He was taking Targin daily, wearing a left elbow bandage and left knee brace, and using a walking stick. He had ceased doing exercises at the pool in around 2020. He was able to play pool left handed. On examination, Dr Yong noted pain avoidance behaviour. He again concluded that an activity based physical therapy would assist Mr Lukic with his left elbow and left knee condition, and that he should cease using a walking stick. He reaffirmed his earlier conclusions with respect to work restrictions and suitability for sedentary employment after retraining.

49On 23 March 2022, Mr Dickinson noted that various radiological investigations of the left elbow revealed the 2010 fracture was “virtually undisplaced”,47 well healed in good position, with very little deformity of the radial head. He noted that Mr Lukic reported ongoing pain in the left elbow with restriction of movement; that he had

44 Ibid 259.

45 Ibid 270.

had hydrotherapy and physiotherapy and been on antidepressants. He had been managing by not using his left elbow or left knee. He had been taking Targin for the past two years. He reported his pain as “ten times worse” 48 than before. Mr Dickinson considered that unrealistic expectations contributed to the illness role. Mr Dickinson noted that Mr Lukic was investigating the possibility of having a left elbow replacement.

50On examination, he noted wasting of the left arm and forearm, with left elbow flexion reduced at 50 degrees to 90 degrees (where normal is 0 degrees to 130 degrees). He also noted that the left knee showed wasting of the quadricep and an effusion.

51He considered that the left knee condition was unrelated to the 2010 incident but that in any event the left elbow and left knee conditions did not prevent Mr Lukic from undertaking sedentary employment of the kind proposed by Dr Dominic Yong. He noted that left elbow stiffness “can have a very functional outcome as much activity is performed within the range of motion which Mr Lukic has”.49 He considered that any fibrosis could be resolved by surgery but that total left elbow replacement was not appropriate for Mr Lukic. He concluded:

Mr Lukic has taken on the illness role. This is a very considerable factor in relation to his presentation. Neither the injury to the left elbow, and its consequences, nor the condition of the left knee and its consequences provide the sort of restrictions that are seen in Mr Lukic.50

52On 24 March 2022,51 Dr Gavin Weekes, a pain specialist, reported that he had reviewed Mr Lukic’s left elbow over a number of sessions in 2019 and 2022. Dr Weekes stated that he believed Mr Lukic’s elbow injury was aggravated to a severe level after the 2016 accident, forcing him to give up his work place activities. Dr

48 Ibid 224.

49 Ibid 235.

50 Ibid.

Weekes opined that Mr Lukic was completely incapacitated to return to work in any form.52

53In his fourth report dated 28 March 2022, Dr Yong confined his attention to the left elbow and considered the alternative roles proposed in the vocational assessment by CoWork dated 10 March 2022. He concluded that the positions of driver and warehouse clerk were not suitable as they did not accommodate his restrictions, but that with retraining Mr Lukic could perform the duties of rental salesperson, fleet controller and control room operation.

54On 12 December 2022, the Medical Panel considered whether the request by Mr Lukic for left elbow “radial head replacement as well as an anconeus interposition arthroplasty”53 was an appropriate treatment for Mr Lukic. He gave a history of return to full duties between 2011 and 2016 with only transient and occasional left elbow pain, with an aggravation in the form of the onset of severe pain in 2016 after he felt a click in the elbow. He reported very limited use of his left arm, wearing an elbow brace, taking Targin, Lyrica, Panadeine Forte (as well as Cymbalta and Valdoxan) daily with no relief. On examination he demonstrated difficulty with any movement of the left elbow, was tender to light palpation over the lateral edge of the olecrananon, lateral to the lateral epicondyle (rather than over the lateral epicondyle), but demonstrated no wasting of thenar, hypothenar muscles or the interossei. Although Mr Lukic was aware that the operation had a very low chance of success perhaps 20%, he was willing to undergo “any operation regardless of how low the chance of success is, including amputation, as he feels that his current situation is so dire”.54

55The Panel considered that the proposed procedure was not appropriate for Mr Lukic for a number of reasons. Firstly, the total loss of use of the left arm suggested an underlying pain syndrome. Secondly, there was no mechanical cause of his left

52 Ibid 146.

53 Ibid 72.

54 Ibid 76.

elbow pain and the left radial head fracture had healed. Thirdly, surgery was not appropriate given his age, minimal left elbow structural pathology, the context of advanced secondary disuse, disproportionate pain and physical findings, and the slim chance of success from surgical intervention.55

56On 31 July 2023,56 GP Dr Nicholas Nassios reported that Mr Lukic’s ongoing left elbow pain was contributing to his anxiety and depression and that he was permanently incapacitated for all employment.

Submissions

57Counsel for Mr Lukic submitted that he suffered a fracture to the left elbow on 21 October 2010, returned to work in 2011 with some ongoing pain and movement restrictions in the left elbow, and described himself as “almost back to normal”57 when, in January 2016, he suffered immediate severe left elbow pain while working. He then stopped driving his truck, performed light duties on reduced hours, and had left elbow surgery in May 2016. The surgery did not relieve his symptoms, and he has never returned to work. It was submitted that impairment to the left upper limb is an organic in nature. It comprises constant pain, loss of strength and reduced range of motion and has resulted in a permanent loss of any work capacity as well as extensive pain and suffering consequences.

58It was submitted that the 2010 incident created the initial organic injury, and that the 2016 incident was an aggravation injury which either would not have happened at all, or would not have had such severe consequences had the 2010 incident not occurred. Finally, it was submitted that the 2016 aggravation was itself serious.

59The defendant submitted that the plaintiff’s case was opened as one of aggravation, without any suggestion that there was a causal connection between

55 Ibid.

56 Ibid 109.

57 Zoran Lukic, ‘Applicant’s Submissions in Closing on Serious Injury Application’, Submission in Lukic v Toll Holdings Ltd, CI-17-03762, 16 November 2023, 2 [8].

the 2010 injury and the 2016 injury. For this reason, it was submitted that the Court should not entertain the latter submission.

60Secondly, the defendant submitted that, on the authorities,58 the consequences flowing from the 2016 aggravation can only be aggregated with the 2010 injury if the plaintiff can establish either that:

·     the 2016 injury would not have occurred but for the 2010 injury – in which case the whole of the effects of the 2016 injury may be taken into account; or

·     the effects of the 2016 injury were more severe because of the 2010 injury – in which case the additional effects of the 2016 injury may be taken into account.

61However, the defendant submitted that there was no medical evidence directly addressing the question of a causal connection between the two injuries. In addition, the defendant submitted that the plaintiff’s evidence tends to the conclusion that there was no real connection between the injuries. In this regard, the defendant relied on the plaintiff’s evidence that he made a full recovery from the 2010 injury, returned to full-time pre-injury duties and a full range of activities outside work, before suffering the further injury in a specific incident six years later – the onset of severe left elbow pain when tying down his load. Given the absence of medical evidence, it was submitted that it would be speculative to conclude that the 2010 injury played any role in the occurrence of the 2016 injury, or that it rendered the effects of that injury more severe – and, if so, to what extent.

Findings and reasons

62From the summaries of the various medical reports at paragraphs 20 to 56 above, it is clear that Mr Lukic gave different histories to different specialists about what,

58 Altona Bus Lines v Lococo [2002] VSCA 159; Rowe v TAC [2017] VSCA 377; AG Staff v Filipowicz (2012) 34 VR 309.

if anything, happened to his left elbow in early 2016, whether at work or elsewhere (e.g. whether the episode of severe pain at work was caused by his persistent gym work, or by an incident at work). Without repeating the summaries, I note that in February 2016, very shortly after the alleged work-related aggravation of his left elbow condition, Mr Lukic did not mention any event involving the left elbow to Mr Shannon or to Dr Ooi. Similarly, Dr Lamba and Mr Pease in June and August 2016 noted the worsening of the left elbow symptoms after arthroscopy but obtained no history of any event or incident of worsening left elbow pain in early 2016. Dr Lim did not refer to any history being given of any episode at work of worsening left elbow pain in 2016 but took a history of Mr Lukic pumping iron from mid-2015 with his left elbow pain becoming more constant by early 2016.

63In 2017, Dr Nassios, Mr Owen and Mr Dickinson received no history of any incident in early 2016 at work, although Dr Nassios noted that in January 2016 his left elbow pain became so bad that he could not continue his normal duties. By 2017 and 2018, apart from Dr Lim diagnosing central sensitisation as the organic basis of his ongoing left elbow pain, Mr Lukic’s ongoing symptoms were considered by the surgical and occupational experts (Dr Yong, Mr Dickinson and Mr Owen) to be largely the product of an emotional or psychological reaction. It was also noted by some surgeons (Mr Dickinson and Mr Owen) that the small reduction in elbow flexion demonstrated by Mr Lukic would not preclude a return to pre-injury duties. Mr Owen also opined that arthritis in the elbow was unusual but rarely caused much pain and did not prevent manual workers from performing their duties.

64I found Mr Lukic’s evidence concerning the 2016 alleged injury unsatisfactory. In any event, apart from some experts taking a history of a worsening of pain in early 2016, there was no expert opinion as to what injury, if any, was suffered at work in early 2016. By then his left elbow fracture had healed, and, on his evidence at the hearing, he had been working, unrestricted, full time in his pre-injury duties for five years and was able to undertake all of his usual out of work activities.

65I accept that Dr Shan, Dr Lamba, Mr O’Brien and the Medical Panel in 2018 acknowledged an aggravation episode in 2016, based on the histories obtained by them from Mr Lukic. However, the nature of the aggravation is unspecified. There was no expert opinion as to the precise source or cause of the episode of severe left elbow pain suffered in 2016.

66There was no expert opinion before me which directly addressed the causal connection between the 2010 and 2016 injuries. There was no expert opinion linking the need for arthroscopy and debridement of the chondral flap in 2016 with the 2010 fracture of the left elbow. Whilst I accept that Mr Lukic ceased work in 2016 in the context of severe left elbow pain, the weight of the most recent expert opinion (from Mr Dickinson and the Medical Panel in 2022) is that there are no structural pathologies flowing from the 2010 fracture to explain his fixed flexion deformity nor his complaints of pain, which have been found to be disproportionate to the radiological and clinical findings. The Medical Panel in December 2022 commented on the absence of pathological structural problems in the left elbow, along with the absence of wasting, the presence of hesitant movements and tenderness to light palpation, along with “disproportionate pain”.59

67The weight of the most recent evidence, therefore, is that there is no substantial organic basis for his current left elbow complaints.

68Since there is no expert opinion before me identifying precisely the nature of the 2016 injury and establishing a causal connection between the 2016 and 2010 injuries, I am unable to determine that the 2010 injury to the left elbow played any role in the occurrence of the 2016 injury to the left elbow, or that the effects of the 2016 injury were made more severe (and if so, to what extent) by the 2010 injury.

59 JCB 76.

Conclusion

69For the reasons outlined above, the application is dismissed. I reserve the question of costs.