A simple outcome for complex pain

    A simple outcome for complex pain
    26 October 2017

    A simple outcome for complex pain: Arifoski v Mutual Cleaning & Maintenance Pty Ltd [2017] VCC

    By Marin Karlos

     

    Background

    The Plaintiff is a 61 year old Macedonian man who had completed up to grade four of primary school in Macedonia before coming to Australia in 1971. The Plaintiff’s education and employment history was that of a typical non-skilled migrant; the Plaintiff worked as a machine operator for approximately five years in a textile factory then as a greaser at another factory for another six years before securing employment as a cleaner in 1982.

    This came to be the Plaintiff’s chosen profession and he continued to work as a cleaner up until the date of injury, being 3 April 2013. By this date, the Plaintiff held the position of supervisor however in reality his duties were more ‘hands on’ than supervisory in nature.

    The incident, the injury and the treatment 

    On 3 April 2013, the Plaintiff sustained a hyperextension injury to his left hand when part of a lid of an industrial recycling bin fell upon it causing an avulsion fracture of the middle phalanx of the left ring finger. It was revealed that the fracture involved the volar aspect of the base of the intermediate phalanx of the left ring finger with moderate separation of approximately 3 millimetres of bone fragment. Upon examination it was further revealed a complete ligament rupture of the proximal interphalangeal joint. The Plaintiff soon after underwent surgery where the bone fragments were removed and the volar plate was reattached using fixation.

    The Plaintiff underwent hand therapy before further surgery was required and indeed performed. Post-surgery, it was discovered that as a consequence of scarring, the finger was destined to suffer poor joint mobility. Hand therapy recommenced but it was unfortunately interrupted due to infection. Yet again, the Plaintiff underwent further surgery.

    Throughout this time and in-between surgeries and undergoing hand therapy, the Plaintiff attempted to return to work but continued to suffer from persistent pain and discomfort to his finger and hand generally. The Plaintiff began noticing colour, moisture and temperature changes in his left hand. The Plaintiff was eventually diagnosed with Reflex Sympathetic Dystrophy (“RSD”) or as it is more commonly known, Complex Regional Pain Syndrome.

    The Plaintiff underwent treatment by way of medications, hand therapy and two stellate ganglion blocks. Much to the Plaintiff’s disappointment, this treatment provided little relief. The Plaintiff’s pain, discomfort and restriction of movement extended to the third and fourth fingers of his left hand. These symptoms were in keeping with the diagnosis of Complex Regional Pain Syndrome Type 1.

    The dispute

    The Plaintiff sought leave to recover damages in respect to both loss of earning capacity and pain and suffering pursuant to the Accident Compensation Act 1985 (Vic). A Serious Injury Application was lodged upon the Victorian WorkCover Authority (“VWA”) to this effect. This application was denied.

    The Plaintiff was forced to issue an originating motion in the County Court of Victoria to have this decision overturned.

    The weight of medical evidence was clear; the court held that the Plaintiff sustained a complicated fracture of his left ring finger which required three surgical procedures, including synovectomy of the tendons. It was found that he was left with impaired function of the left ring finger as a result of the development of Complex Regional Pain Syndrome Type 1. The Court was satisfied that the Plaintiff suffered permanent impairment and loss of function of the left hand. It was held that improvement was unlikely.

    The issue

    In so far as Pain and Suffering was concerned the Plaintiff’s application to recover damages for Pain and Suffering consequences was bound to succeed.

    As it came to be, the focus of the proceedings was whether or not the Plaintiff satisfies the requirements of sub-s38(e) and (f) of s134AB of the Accident Compensation Act 1985 (Vic). Put simply, it was the Defendant’s case that the Plaintiff did not satisfy the requirements of the Act and was precluded from recovering damages with respect to pecuniary loss.

    The test

    In order to be successful, the Plaintiff must show that the loss of earning consequences are at the very least considerable but must also show that he has sustained a permanent loss of earning capacity of 40 per cent or more.

    Factors considered 

    To adequately consider whether the Plaintiff satisfies the test, the court was required to survey a variety of relevant factors. The first of which is the Plaintiff’s capacity for employment and the medical evidence available. More notably is the Plaintiff’s residual capacity for employment and whether or not this residual capacity precludes him from satisfying the test. As noted above, the medical evidence was clear. His Honour Wischusen held that the injury ‘…realistically… restricts him to right-handed work.’ His Honour then went on and noted the factors which ought to be considered:

    • The nature of the Plaintiff’s incapacity;
    • The Plaintiff’s pre-injury employment;
    • The Plaintiff’s age;
    • The Plaintiff’s education and employment history;
    • The Plaintiff’s transferrable skills;
    • The Plaintiff’s English language skills ; and
    • Participation in Occupational and/or Rehabilitation services.

    It is critical to note that the Plaintiff was not offered any rehabilitation or occupational services or return to work plans whilst on WorkCover payments or throughout the course of his employment. The Plaintiff was also never provided computer training. The Plaintiff however underwent brief English and Computer courses through Centrelink, which proved to be inadequate. The Plaintiff could not read efficiently on the screen.

    The defendant's case

    The crux of the Defendant’s case was that the following alleged suitable employment options were theoretically available to the Plaintiff:

    • Packing Work;
    • Product Quality Examination; and
    • Meter reader.

    The above jobs were somewhat supported by an Occupational Physician whom recommended that the Plaintiff could perform the above roles with the following restrictions:

    • No lifting of more than two kilograms with the left hand;
    • No forceful gripping; and
    • No fine manipulation.

    Although it was said that the employment options were supported by the Occupational Physician it was noted that there were reservations with respect to the Product Quality Examination and Meter reading jobs due to the Plaintiff’s lack of English and Computer skills. It was further noted that the Plaintiff’s capacity to perform packing work ought to have been restricted to light objects only.

    Judgement of His Honour Judge Wischusen

    After examining the suitable employment options identified and the role requirements, His Honour was not satisfied that any of the employment options constituted suitable employment.

    His Honour disregarded Packing Work as an option due to the nature of the Plaintiff’s injuries and the role requirement of constant bilateral arm use.

    His Honour also considered the role of Product Quality Examiner and disregarded this job as a suitable employment option. His Honour noted that the Plaintiff required a number of English and computer based skills to adequately and competently perform this role. Further, upon considering the position description it was noted that the work exceeded 4.5kgs. This type of role was not suitable in all circumstances.

    His Honour then moved on to consider Meter Reading, this was quickly disregarded by the requirement of the carrying, use and operation of a handheld computer. Reference was made to photographs in which it was shown that this device would be held in the left hand whilst data (which were noted to be more complicated than mere numbers) were entered into the device.

    His Honour then considered the Plaintiff’s actual earnings, noting that the Plaintiff had not in fact worked since October 2013. His Honour held that it was important to consider the Plaintiff’s earning capacity had the injury not occurred. For this to be done, His Honour placed significant emphasis on using a figure that most fairly reflects the Plaintiff’s pre-injury earning capacity.

    There was a point of contention in this matter as to what figure ought to be used to determine what the applicable threshold ought to be. The Defendant sought to include the Plaintiff’s gross earnings for the financial in which the injury occurred. It was the Plaintiff’s position that the Plaintiff’s pre-injury earnings ought to be considered by reference to an annual figure that avoided any periods not worked by reason of injury– essentially a figure that is not tainted by injury.

    The issue became more of a moot point rather than a critical issue as it was determined that even when assuming that the Plaintiff had a capacity for work, was able to return to work on a consistent and reliable basis as a meter reader and was able to perform 22.5 hours a week of work (as it was put by the Occupational Physician commissioned by the Defendant) the Plaintiff would still on an annual basis, make less than 60 per cent of the without-injury figure contended by the Defendant.

    This case sheds significant insight on the importance of exercising common-sense in litigation. The Plaintiff had a clear injury which resulted in mechanical problems with his finger and an accepted condition that causes the impairment of function of the left hand. The injury caused significant impact on all facets of life including personal, domestic, recreational and religious activities.

    This matter reaffirms the importance of considering work capacity holistically. Factors that ought to be considered are many and they include but are not limited to:

    • Age;
    • Transferrable skills;
    • Proficiency in the English language;
    • The nature of the medical condition and ongoing treatment requirements including the nature, type and frequency of medications required; and
    • Education and Employment history.

    It is important to consider the above factors in the spirit of the legislation.

    This matter is a friendly reminder that realism, consistency and reliability are the ultimate notions that ought to be at the forefront of practitioner’s minds when considering entitlements to pecuniary loss.

     

    Prepared by: Marin Karlos

    mkarlos@zaparaslaw.com.au