McKenzie v Peak Engineering Pty Ltd & Anor [2012] VCC 1661

3 Mr R McGarvie SC appeared with Mr M Pilipasidis of Counsel for the plaintiff and Mr B McKenzie of Counsel appeared for the defendants.

4 The body function which the plaintiff says has been lost or impaired is the left upper limb.

5 The following evidence was adduced during the hearing:

• The plaintiff gave evidence and was cross-examined;

▪ his Court Book ("PCB"), pages 19 - 60: Exhibit A;

▪ the Defendants' Court Book ("DCB"), pages 1-3 and 31-37: Exhibit B;

▪ a Medical Assessment dated 29 April 2003: Exhibit 2;

6 The application is brought under the definition of "serious injury" contained ss(37)(a) of the Act which requires the plaintiff to prove that he has suffered a "permanent serious impairment or loss of a body function".**

7 The relevant considerations which apply to such an application are as follows:

(a) The plaintiff must prove that he has a suffered a compensable injury; that is, an injury which he suffered arising out of or in the course of his employment on or after 20 October 1999.

(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is likely to last for the foreseeable future.

(c) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than "significant" or "marked" and as being as least "very considerable".

(d) Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of "serious injury" and not otherwise.

(e) In conformity with Barwon Spinners Pty Ltd & Ors v Podolak,[1] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the "very considerable" test contained in ss(38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.

8 I am required by s134AE of the Act to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.

**9 The plaintiff was born in 1969. He is now forty-three years of age. The plaintiff has four children from a previous relationship. None of his children from that relationship live with him. He is in another relationship at present. His partner has three children by her previous relationship. Those children live with the plaintiff and his present partner.

10 The plaintiff attended a high school, completing Year 10 when he was about sixteen years of age. It would appear that he has not pursued any further education or training of significance since leaving school. The plaintiff engaged in general labouring and factory work before commencing employment with the first defendant.**

**11 On 21 February 2004, the plaintiff and another worker were operating a press machine. The plaintiff had his left hand in the press when his co-worker operated the press, with the result that the plaintiff's left hand became trapped in the press.

12 The plaintiff suffered an injury to his left hand which required operative treatment. It would appear that he made a claim which the defendants accepted. I was informed that the defendants conceded that the plaintiff had suffered a compensable injury.**

**13 Following the occurrence of the incident, the plaintiff was taken to the Maroondah Hospital. An x-ray was taken which showed no fracture to his left hand. He was treated with a plaster backslide, analgesic, and his left arm was put in a sling. He was given a letter of referral to his general practitioner.[2]

14 The plaintiff next saw Dr Morales, general practitioner, who referred the plaintiff to Mr Slattery, hand surgeon. The plaintiff first saw Mr Slattery on 28 May 2004. Mr Slattery examined the plaintiff and found that he had diminished grip strength on the left side, that his left hand was swollen and that the provocative tests for carpal tunnel compression were positive. He referred the plaintiff to have a nerve conduction study which confirmed moderately severe left carpal tunnel syndrome.

15 On 22 January 2005, Mr Slattery performed an endoscopic release on the left carpal tunnel. However, on review, the plaintiff told Mr Slattery that he continued to have pain and numbness in his left hand. The numbness was mainly on the plaintiff's left ring and middle fingers. Mr Slattery was of the opinion that the plaintiff was suffering from ulnar nerve compression at the left elbow. On 17 October 2005, Mr Slattery performed a left ulnar neurolysis of the left elbow. At surgery he found the nerve to be compressed.

16 On 20 January 2006, the last occasion that Mr Slattery reviewed the plaintiff, the plaintiff reported that the numbness in his left hand was very much improved. Mr Slattery formed the opinion that the plaintiff was making a satisfactory recovery and would be able to return to work as a welder. He did not believe that the plaintiff's future earning capacity had been significantly affected by his injury.[3]

17 The plaintiff left the care of Dr Morales, preferring to see Dr Kourdoulos, general practitioner. He first saw Dr Kourdoulos on 30 September 2005. It would appear that the plaintiff continues to see Dr Kourdoulos. He provided a number of reports. The most relevant is the report dated 1 August 2012, in which he summarises the treatment he has provided the plaintiff relevant to the injury to his left hand.

18 Dr Kourdoulos last saw the plaintiff on 30 July 2012. He obtained the following history:**

"I most recently reviewed his condition on 30/7/2012. He complained of chronic pain in his left hand into the left forearm and left elbow. He also complained of parasthesia of the left hand at rest and itchiness of the palm at times. He told me that he 'had learnt to live with it'. Functionally he complained of dropping things but was okay at doing his present job as a security guard."

19 Dr Kourdoulos then examined the plaintiff and made the following findings:

"Examination revealed mild oedoma [sic] of the left hand with mild weakness. There was weakness of opposition of the thumb with the little finger, as well as weakness of the little and ring fingers and of wrist flexion. Sensation of the whole hand and the forearm was reduced but mainly of the medial hand. There was tenderness of the left lateral epicondyle. Tone and reflexes were normal."[4]

20 Dr Kourdoulos was of the opinion that the plaintiff was not fit for his pre-injury work as a storeman, but could perform some of the duties of a storeman part-time, perhaps four hours per day.[5]

**21 The plaintiff was examined by Mr Westh, orthopaedic surgeon, on 9 February 2010[6] and 29 June 2012;[7] Mr Shannon, orthopaedic surgeon, on 13 July 2010,[8] 19 July 2011[9] and 25 September 2012,[10] and by Ms Kelly, hand therapist, on 26 October 2009[11] and 27 August 2012.[12]

22 Before specifically turning to the medical evidence, it is relevant to note that the only issue which arises for my consideration is whether the consequences contended for by the plaintiff meet the statutory test. The defendants conceded that the plaintiff had suffered a compensable injury, that the injury impaired the function of his left upper limb, and that the injury impaired the function of his left hand, but not to the gravity nor the extent contended for by the plaintiff. Mr Westh was of the opinion that, although the precise cause of the plaintiff's ongoing symptoms of pain and swelling in his left hand and discomfort in his left elbow was not clear, the plaintiff presented with features of a Chronic Pain Syndrome post soft-tissue crush injury to his left hand. He opined that the plaintiff was not fit for his pre-injury work, and because of his limited manual dexterity in his left hand, was restricted in strenuous and repetitive use of his left hand.[13] Mr Shannon was of the opinion that the plaintiff had suffered a crush injury, resulting in mild loss of movement of his left wrist, fingers and thumb; that the carpal tunnel syndrome had substantially resolved, and that he had some symptoms in his fourth and fifth fingers consistent with mild ulnar neuritis. He was of the opinion that the plaintiff would be able to work full time as a gaming attendant, but that this would depend on the nature of the specific tasks the plaintiff was required to undertake.[14]

23 There is clearly some difference in the opinions of Mr Westh and Mr Shannon, but otherwise they seem to be in agreement that the plaintiff suffered a crush injury and presently has deficits in the function of his left upper limb. Mr Westh and Mr Shannon were both unable to determine the extent to which these deficits interfered with the plaintiff's capacity to use his left upper limb.

24 The opinion of Ms Kelly is very particular and precise in the examinations which she conducted of the plaintiff's left upper limb, going far beyond the examinations conducted by Mr Westh and Mr Shannon. In her second report dated 29 September 2012, she undertook a very specific examination of the plaintiff's forearm and wrist; elbow; individual fingers, and power grip and pinch grip.

25 In relation to the plaintiff's forearm and wrist, Ms Kelly found a reduction in wrist flexion, ulnar deviation and radial deviation, indicating restriction of movement.[15]

26 In relation to the fingers, Ms Kelly found reduction in movement in the index finger; the middle finger; the ring finger; the little finger, and the left thumb sufficient to conclude that there was restriction of movement in the joints of the fingers of the left hand.[16]

27 In relation to grip strength, Ms Kelly found a significant reduction in power grip, with the left hand at 18 kilograms, with the left compared with the right at 38 kilograms; three point grip at 5.5 kilograms, with the left compared with the right at 10 kilograms, and key pinch grip at 9 kilograms, with the left compared with the right 12 kilograms. She also noted a reduction in bilateral power grip strength between testing conducted in 2009 when compared with testing in 2012. Importantly, she noted, and operating on the assumption that the plaintiff was ambidextrous, that the power grip strength would be similar in both hands.[17]

28 Ms Kelly was of the opinion that the plaintiff was unfit for his pre-injury work and would be unfit for heavy work based upon the results of her examination of his left upper limb.[18]

29 I accept the evidence of Ms Kelly, that the plaintiff has suffered a reduction in movement and strength in his left wrist and hand to the degree demonstrated by the testing she undertook. My reasons for accepting her evidence are that, firstly, there was no serious contest that the plaintiff suffers from some consequences of the compensable injury. Secondly, the plaintiff gave evidence, which I accept, of pain, loss of movement and strength in his left wrist and hand consistent with Ms Kelly's test results and the results of the examinations of Mr Westh and Mr Shannon. Thirdly, Mr Shannon found similar loss of movement in the plaintiff's fingers, weakness of grip and loss of dexterity. Mr Westh found loss of grip strength, but none of the other features commented upon by Mr Shannon. Lastly, Ms Kelly's testing was very particular and precise.**

**30 The plaintiff swore two affidavits: on 2 October 2009[19] and 24 September 2012.[20] I accept the evidence of the plaintiff deposed to in those affidavits, and also his oral evidence relevant to the pain and suffering consequences which he has suffered, and continues to suffer, as a result of the compensable injury to his left upper limb.

31 I should say, firstly, that I thought that the plaintiff gave his evidence with great candour and in a simple, direct and entirely believable fashion. I have compared his evidence with the history he gave to a number of examining doctors and have concluded that there is nothing inconsistent in his evidence when compared with those histories.

32 The consequences contended for by the plaintiff which he says are consistent with pain and suffering consequences which meet the statutory test, can be summarised as follows:

• He is a relatively young man of forty-three years who is no longer capable of undertaking work which requires the full, free and unrestricted use of his left upper limb. He is now restricted to light work which does not stress or strain his left wrist and hand.

• He has persistent pain, some swelling, loss of grip strength and dexterity. He gave examples of there being occasions when he has not been able to hold coffee cups or a stubby of beer. He has lost control of these objects on these occasions and has dropped them.[21]

• He engaged in relatively modest levels of recreational and sporting activities. He used to engage in social interaction, playing basketball,[22] cricket and football. He does not do so any longer because of the difficulty catching a football and holding a cricket bat.[23] His major recreational pursuits appears to have been going to the pub and playing pool on a weekly basis. Steadying the pool cue with his left hand caused pain.[24]

• He found that changing gears in a manual car with his left hand caused pain in his left upper limb.[25]

• He has problems with grip strength and holding onto objects, for example, when performing maintenance at his home, on his car or on children's bicycles.[26]

• When his left hand goes numb, it wakes him when he is asleep.[27]

• His capacity to work as a gaming attendant at present is made difficult when he undertakes tasks such as gripping coffee cups when serving coffee to customers or manually handling cups or buckets of coins at the gaming venue where he presently works.[28]

33 Mr McKenzie submitted that, even if I were to accept the evidence of the plaintiff contained in his affidavits and in his oral evidence, I can be informed of how serious the plaintiff's pain and suffering consequences are by what he has retained.[29]

34 In particular, Mr McKenzie referred to the fact that the plaintiff is probably able to work fulltime as a gaming attendant. He does not need any medical treatment and, indeed, has not seen a medical practitioner for treatment for his left upper limb for many years. He is not reliant on medication and takes Panadeine infrequently. The real pain and suffering consequences presently experienced by the plaintiff were produced by an injury to the plaintiff's left knee. I do not accept that I am required to look at the pain and suffering consequences produced by the plaintiff's left knee. The pain and suffering consequences produced by the plaintiff's left upper limb and his left knee are very different. There are very few consequences contended for by the plaintiff which are contributed to by both the injury to the left upper limb and the left knee, save, for example, the interference with the plaintiff's sleep.**

**35 I find that the plaintiff suffered an injury to his left upper limb which has impaired the function of his left upper limb and has produced pain and suffering consequences which meet the statutory test.

36 I have had regard to a number of decisions of the Court of Appeal which, in a sense, set something of a benchmark which is the guidance for judges at trial.[30] I agree with the observation made by Mr McGarvie as he concluded his submissions. He essentially submitted that, while the plaintiff's application is not clear-cut, it bears out the sorts of characteristics referred to in a number of Court of Appeal decisions that are consonant with the methodology applied by judges in this Court in determining whether an application should succeed or fail.

37 It seems to me that, on this footing, I can accept the plaintiff's evidence in whole, in that he is a young man who has suffered a permanent impairment of the function of his left upper limb. The duration of the consequences that the plaintiff will have to put up with is significant and much more serious than the consequences for someone of more advanced years.[31]

38 I think the fact that the plaintiff has suffered each of the consequences which I have summarised in paragraph 32 speaks of loss of earning capacity consequences which meet the statutory test. I do not accept that, when those losses are balanced against what the plaintiff has retained, the balance swings against the plaintiff.**

**39 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s134AB(16)(b) of the Act to recover damages for injuries for pain and suffering arising out of his employment with the first defendant.

40 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.

[29] Dwyer v Calco Timbers Pty Ltd [2008] VSCA 260

[30] Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Sutton v Laminex Group Pty Limited [2011] VSCA 52 and Halpin v Wilson Transformer Company [2012] VSCA 235

[31] Stijepic v One Force Group Aust Pty Ltd & Victorian WorkCover Authority [2009] VSCA 181