Facey v Bruce Morgan Plumbing Pty Ltd [2017] VCC 1113 (16 August 2017)

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IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised

Not Restricted

Suitable for Publication

JOHN CHESTERS FACEY	Plaintiff

v

BRUCE MORGAN PLUMBING PTY LTD	Defendant

JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	3 and 4 August 2017
DATE OF JUDGMENT:	16 August 2017
CASE MAY BE CITED AS:	Facey v Bruce Morgan Plumbing Pty Ltd
MEDIUM NEUTRAL CITATION:	[2017] VCC 1113

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms M Pilipasidis	Maurice Blackburn

For the Defendant	Mr P D Elliott QC with Ms F C Spencer	Hall & Wilcox

1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of his employment with the defendant on 21 February 2013 (“the said date”).

2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.

3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:

4 The relevant body function is the left upper limb, with the impairment involving the fingers, wrist and arm.

5 By s134AB(38)I of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, “as being at least very considerable and more than significant or marked”.

6 Subsection 38(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.

7 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak [1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.

8 The plaintiff relied upon two affidavits and gave viva voce evidence. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.

10 After completing Form 4, the plaintiff did an apprenticeship as a plumber and gas fitter, which took about four and a half years. He was then self-employed for about seventeen years.

11 In late 1988, the plaintiff started work with the defendant as a plumber and gas fitter on a full-time basis, doing both commercial and domestic plumbing work and maintenance. The job was very physical.

12 The plaintiff was injured on the said date while drilling a hole through some particle board. The drill jammed and spun out of control, wrenching his left hand and arm and striking his left hand. He immediately felt sharp pain in his left index finger (“the incident”).

13 The plaintiff then attended a general practitioner in Pakenham, who advised him to go to hospital and get an x-ray. He then attended Emergency at Frankston Hospital, where he was advised his left finger was fractured. He was unable to see the surgeon that day.

14 The plaintiff completed a WorkCover Claim Form on 27 February 2013 which was later accepted.

15 The plaintiff saw Mr Damon Thomas, surgeon, in early March 2013, and on 7 March 2013, underwent surgery to his left index finger (“the finger surgery”). Thereafter, his left hand remained swollen and sore.

16 On 18 June 2013, the plaintiff had a further MRI scan of his left wrist, and on 16 July 2013, underwent nerve conduction studies, following which he was told he had Carpal Tunnel Syndrome.

17 On 27 September 2013, the plaintiff underwent left carpal tunnel decompression surgery (“the second surgery”). Thereafter, he noticed a lot of tingling and numbness in the fingers of his left hand. The soreness in his wrist and hand that had been present prior to the surgery continued.

18 On 14 March 2014, the plaintiff had surgery to the left ulnar nerve (“the third surgery”) which helped with the tingling and numbness in his fingers. However, he was left with ongoing pain in the left arm and a strange sensation in his fingers. Thereafter, he underwent regular hand therapy.

19 The defendant was not able to offer the plaintiff any light duties and he was not capable of going back to plumbing work, therefore, he never returned to that job with the defendant. He continued to receive weekly payments.

20 In 2014, Nabenet put the plaintiff through a forklift driving course and he obtained his licence.

21 On 22 December 2014, the plaintiff completed a Claim for Impairment Benefits for injury to his left hand and arm. The claim was accepted.

22 At the time of his first affidavit, sworn in late October 2015, the plaintiff was seeing Mr Thomas every six months, but hand therapy had stopped when funding was ceased.

23 The plaintiff had then stopped taking painkillers as he did not like taking them on a long-term basis and preferred to try and cope without them.

24 The plaintiff had a constant dull ache in his left elbow and forearm. Placing weight on his arm, like resting it on an armrest, or pushing himself up from a chair, worsened the pain.

25 The plaintiff’s fingers felt tight and were difficult to move, and he had a strange sensation in his fingertips, as if he felt they were being squeezed all the time. That sensation had been present since the third surgery.

26 The plaintiff’s left hand grip felt weak and he had trouble lifting heavy items such as full shopping bags, and he noticed his left hand tired very quickly. He had trouble holding the steering wheel with his left hand as it tired very quickly, and he needed to rest it regularly.

27 Prior to his injury, the plaintiff enjoyed surfing, particularly in the summer. As of October 2015, he had not surfed since the incident, and knew that pushing himself up on the board would cause too much wrist and hand pain.

28 The plaintiff has tried surfing since that time but it was a bit awkward. He has not tried, since having an injection in January 2017. He has recently been on a standup paddleboard.[3]

29 The plaintiff had not been shooting much at all in the past, just the odd night out spotlighting. It was something he did occasionally, and was not a major hobby before the incident.[4]

30 The plaintiff also used to enjoy bike riding. He had tried it since the incident for health reasons; however, his left arm and hand quickly became sore and tired when gripping the handlebars. He had bought some special gel gloves and handlebars which made it a bit easier for him; however, he still had the pain, and bike riding was not as enjoyable.

31 In late 2015, the plaintiff began doing some work as a chauffeur on a casual basis, and had been given a few hours or so driving an automatic car, which meant he did not have to change gears. He was not sure how he would cope with this work but needed to try. His weekly payments had been recently terminated.

32 The plaintiff then knew he could not return to plumbing work as it was a job that required repetitive and heavy use of his left hand. It also often involved crawling on hands and knees, which he could no longer do. He had also had a lot of trouble holding onto ladders or a drill with this left hand, for any length of time.

33 Being unable to return to plumbing was very upsetting for the plaintiff as he loved that role and considered himself good at it, and he had done it for over forty years. It had been very difficult for him to adjust to the realisation he would never be able to return to this type of work.

34 In his recent affidavit sworn on 2 August 2017, the plaintiff described his situation remained essentially unchanged, with the same restrictions on day-to-day activities, recreational, social, and domestic activities as previously described.

35 The plaintiff did not know if the employer was still in business. It was a one-man show. The plaintiff did go back and ask if there was any work for him post-injury, and was told there were no light duties. It came as a big surprise when he was told by the insurer that his employment had been terminated.[5] The plaintiff was very upset when he received this advice.[6]

36 As the plaintiff was becoming frustrated at home, he started working for himself.

37 In September 2015, the plaintiff commenced a business, J & L Facey Installation, working as a subcontractor for his son, installing commercial windows in a four-storey residential block in Box Hill. The work involved putting aluminium frames in the walls into which the windows were installed. The plaintiff had to lift the frames into place, then screw them in, using a cordless drill. The windows ranged from a metre to two metres square. They were carried on a trolley by the plaintiff and his son. The trolley was too big for one person to move.[7]

38 Whilst inserting the windows, the plaintiff operated a drill in his right hand and held the frame in place with his left hand. He worked between six and seven hours a day on a part-time basis.

39 The plaintiff stopped working in that job after a few months because he had problems lifting the heavy glass.[8] He then worked for Greg Ferman installing windows.[9]

40 In the second role, the windows were smaller. The job also involved adjusting doors. It was okay if the plaintiff had to hold something with his left hand, but his hand played up if he had to twist it. He could brace himself to steady things.[10] This job was on and off for about two months at a mansion in Portsea.

41 The plaintiff continues to work through the business of J & L Facey Installation. He is currently doing pipeline installation, working as a contractor.[11]

42 In about December 2015, the plaintiff started work as a contractor for HDS Pty Ltd, doing this pipe installation work. Initially this job was ad hoc for about sixteen weeks. It was regular full-time work. The hours then reduced, and for about a year, the plaintiff worked, on average, twenty hours a week. More recently, his hours have increased, and he is essentially working full time.

43 The job is not heavy. The plaintiff is required to put brackets on walls, and install pipes. He uses a drill and other equipment in his right hand, as he is right handed, but generally uses the left hand to hold up brackets and pipes, and other items.

44 In cross-examination, the plaintiff explained in some detail what the pipe installation process involves. The defendant tendered a photograph which showed aluminium pipes secured to the roof. Sometimes these pipes are delivered to the premises, and at other times the plaintiff picks them up.[12]

45 The plaintiff agreed he was required to lift and manoeuvre the six-metre lengths of pipe.[13] The pipework usually goes up on the ceiling. The plaintiff puts it up there working from a scissor-lift.[14] He stands on the scissor-lift and screws in the little brackets and attaches them with a clip.[15] He can use both hands in this task.[16]

46 The plaintiff explained that as an installer he did not work with water, as was the case working as a plumber, a job for which he required a licence.[17]

47 The plaintiff described his current role as being “along plumbing lines”. The job involves running pipelines from a silo to machinery. The aluminium pipes involved probably weigh about 5 kilograms, and the stainless steel probably about 10 kilograms.[18]

48 The plaintiff is predominantly right handed, but does a lot of things with his left hand, such as surfing, shooting and digging. In his previous role as a plumber, he used his right hand, then used his left hand to tighten something under a sink. It depended just on his position what hand he used for various tasks.[19]

49 The plaintiff can still use his left hand at work, but if he does use it too much, it gets sore.[20] He normally works from 7.00am until 3.30pm.[21]

50 The plaintiff thought his registration as a plumber had now run out. He did not have a licence while working for the employer, as he did not need it. In that fifteen years, effectively Morgan was the boss and he had to have the licence.[22]

51 The plaintiff explained there were different types of plumbers. There is plumber and gas fitter. He could do gas fitting now, and has the registration. There is also a separate licence for a roof plumber. The plaintiff could work in that role now, but he would have to be careful with his hand. He thought it would be okay getting up on the roof on a ladder. He just could not put any weight on his left elbow or forearm.[23]

52 The plaintiff would probably be able to lift 20 kilograms in the left hand, but would not be able to hold an item for too long, as his arm got just too tired. He would not be able to do it all day.[24]

53 The plaintiff knew himself, if he was an employer, he would not employ a sixty-threeyear-old plumber who had just come back off five years of not working, and not being able to do full work without restriction.[25] When it was suggested to the plaintiff that he could go and register as a plumber and get work for someone, the plaintiff said he would like to meet the plumber that would employ him. If he wanted to run his own business and get a licence he would have to be able to do a very wide variety of different jobs. It was very involved.[26]

54 The plaintiff has had times when his current job is hard, but he has to do something, so this is an easy alternative to plumbing. There is no real heavy lifting involved and the pipes are quite light. It is all factory work and he has scissor-lifts and aids around him. He does not have to climb ladders. It is just so much easier than general plumbing.[27]

55 The plaintiff believed he could do plumbing work in a foreman type job, not actually on the tools. He had not tried for that sort of role because he has had other jobs, and he has not worried. He could not work unrestricted as a plumber.[28]

56 The plaintiff has continued to work as a subcontractor installing machinery on a full-time basis. He is able to do that work as long as he avoids bumping his elbow or putting pressure on it. He tries to avoid repetitive use of his left arm so as to avoid aggravating his symptoms in his left elbow and finger.

57 While the plaintiff is able to work, he would be unable to work as a plumber, as that job involves crawling around, at times, on his elbows, or leaning on his elbows, and he could not do that now.

58 The plaintiff agreed he volunteered to Mr Ireland, hand surgeon, that he would be able to return to his pre-injury work and indeed return to his prior occupation as a qualified plumber if such opportunities were made available to him. He agreed if he had the opportunity to go back to work as a plumber which did not involve crawling, he would go back to it if he had the opportunity, but that had not come up. It would have to be the right job for him to be able to do it, and of course he could not knock it back. He wanted to work, and was “not here to bludge off anybody”.[29]

59 Further, with all little fine jobs, like getting underneath sinks to repair leaks and hand basins, it was not viable to do it.[30] The plaintiff has not applied for any plumbing jobs since the incident.

60 The plaintiff agreed that he told Professor Bittar that he had got back to working 50 hours a week in June 2016, and that he told Dr Clayton Thomas that he was working 45 hours a week and could be working 50 hours a week depending on the job. If the work is there, to a certain degree, he does it.[31]

61 In reexamination, the plaintiff explained that working 50 hours a week in June 2016, he had little bits of pain and tiredness, like a dead arm that he could not be bothered lifting up.[32] He did not think he saw his doctor and complained about that problem at that stage.[33] The plaintiff then said he did actually go to his general practitioner last year when working more and told his doctor it was getting worse. He went to the hand therapist. He also had an injection in October.[34]

62 The plaintiff worked full time last year, but it was more likely to be part time for 20 hours. It was not too bad with his hand and arm doing that.[35] He has been working now full time for about two weeks, which depends on the availability of work, not the amount of work he says he can do.[36]

63 In mid to late 2016, the plaintiff found his work was exacerbating his hand and finger symptoms, so he attended his general practitioner, Dr Ineson, who referred him for hand therapy. The plaintiff attended Peninsula Hand Therapy on two occasions and a cortisone injection was recommended.

64 The injection given by Dr Ineson worked for a few days, but after the cortisone wore off, the symptoms returned, and there was an increase in the plaintiff’s symptoms.

65 The plaintiff was then referred back to his surgeon, Mr Thomas, whom he consulted in September 2016. Mr Thomas arranged an MRI scan. He told the plaintiff it was likely his trigger finger was causing the symptoms and that he required an injection to his left finger and knuckle under anaesthetic. This was carried out by Mr Thomas on 15 October 2016.

66 Thereafter, the plaintiff was unable to work for a fortnight. He had a good response from the injection. The symptoms settled, but did not resolve. He continued to be reviewed by Mr Thomas and had x-rays which he was told showed degenerative changes in his finger.

67 The plaintiff agreed that following the finger surgery, it was heaps better than what it was, and he could recall telling Mr Thomas that the symptoms in the left hand had largely resolved, and that he was 80 per cent better following the injection. It had made a hell of a difference.[37]

68 To date, the plaintiff continues to experience ongoing pain in his elbow, radiating into his right forearm and left hand. It is a dull aching pain made worse with repetitive activity. He also has pain in his left index finger around the fracture site.

69 While there has been some improvement since the last injection, the plaintiff’s pain is aggravated by repetitive use of his finger when doing things with his left hand. He is fortunate he is right handed and able to favour his left hand more easily, but if he tries to do anything too repetitive, or use fine motor skills, such as tightening or untightening a screw, the pain increases.

70 The plaintiff has problems associated with the left wrist because of Carpal Tunnel Syndrome, but does not have any ongoing symptoms following the second surgery.

71 The plaintiff continues to experience a dull aching pain in his left elbow and forearm. Placing weight on it worsens the pain.

72 The plaintiff’s fingers in his left hand continue to feel tight, in particular, his left index finger feels very stiff. Movement of that finger is still restricted, although the symptoms he was experiencing prior to the injection have settled down. The finger does not feel 100 per cent, and he is very cautious of not bumping it or aggravating the pain. The plaintiff experiences numbness in the tips of his fingers, and when he touches things, it does not feel right. The sensation is similar to having clay under your fingernails.

73 The plaintiff’s left hand grip feels weaker than prior to the injury, and he continues to experience difficulties lifting anything too heavy with his left hand. He also feels that hand is very fatigued after work.

74 The plaintiff does not consult doctors unless he really has to, and he does not take any medication for his pain as it does not help.

75 The plaintiff agreed he had seen an orthopaedic surgeon, Mr Brad Crick, for a problem with his left knee in 2015. He agreed he told Mr Crick he was having increasing difficulty getting up off the ground because of his knee, and that working would be difficult anyway. The plaintiff’s knee is now pretty good. It is not still affecting him. He only had a bit of massage and physiotherapy.[38]

76 The plaintiff agreed that he had back problems working as a plumber, and was referred for xrays and saw a physiotherapist.[39] He agreed he may possibly have had some difficulty working for the employer, even if he had not had the finger injury.[40]

77 There were 67 hours of surveillance over which there was total footage of an hour and nearly 45 minutes.[41]

78 The plaintiff was shown unpacking a box in which a fridge was located on the back of his ute in his driveway. He took a long time tying the ratchet straps around the fridge on the back of the use because he was just trying to get the strap through.[42]

79 Mr Stapleton had changed his opinion about the plaintiff’s level of left-hand activity having seen that film, commenting that he did not seem to favour one hand over the other and when he had a choice, chose to use the left hand to move a box.

80 The plaintiff was then shown film of him doing some gardening at home in March 2016. The plaintiff explained he was scratching out a bit of dirt to put a bit of an edge around the garden. He was also moving mulch from the back of his vehicle in a bucket which he then put into a wheelbarrow and put onto the garden.[43]

81 The plaintiff was shown wearing a brace on his elbow while doing the gardening in 2016. He has not worn it for a while (4 February 2016).[44]

82 The plaintiff explained he was putting his weight on his right arm in the film whilst gardening, as he did not like to put his weight on his left. The mulch he was carrying would have weighed about a kilogram.[45]

83 The plaintiff explained that when he was using the wheelbarrow, he had his left arm tucked in to brace himself.

84 Dr Christopher Ineson from Warren Medical Clinic last reported in August 2017.

85 In December 2014, Dr Ineson thought the plaintiff’s injuries had stabilised and were likely to result in chronic pain and difficulties using his left forearm and hand.

86 Dr Ineson thought the plaintiff’s injuries were consistent with the stated cause. The finger injury was related to the incident. The nerve injuries could be related to the incident or possibly to the treatment that was needed for finger surgery.

87 At that stage, the plaintiff was receiving hand therapy, and Dr Ineson thought he would also benefit from counselling for depression.

88 Dr Ineson then thought the plaintiff should avoid lifting more than 10 kilograms and avoid repetitive left forearm and hand movements. He thought the plaintiff was able to perform light duties, including lifting to 10 kilograms, and considered the roles identified by Nabenet as suitable.

89 In August 2016, Dr Ineson reported that since November the previous year, the plaintiff had been able to work, but developed pain in the hand after he had been at work for a while. Since starting full-time work in April 2016, the pain in the left index finger had been gradually getting worse and was related to repetitive movements like fine motor tasks.

90 Hand therapy had been restarted and a cortisone injection had been injected into the second metacarpophalangeal joint. That had not improved the plaintiff’s pain and stiffness into the finger and he had been referred back to his surgeon.

91 Dr Ineson then noted the plaintiff currently had a capacity for work and was working full time. Dr Ineson thought this may not be sustainable, as the plaintiff was getting increasing problems with his left index finger. In the long term, Dr Ineson thought the plaintiff may need to reduce the number of days he works, for example only working Monday, Wednesday and Friday to allow the hand pain to improve. If he did three days a week, he could work eight hours.

93 In his most recent report dated 1 August 2017, Dr Ineson noted, on 30 August 2016, the plaintiff was seen by a hand therapist due to pain in the left index finger on resuming work and was advised to see his specialist. An injection took place thereafter.

94 Dr Ineson considered other treatment in the future may include further hand therapy or cortisone injections.

95 Dr Ineson thought the injury had had a significant effect on the plaintiff’s ability to do his pre-injury work. He was unable to do work as a general plumber due to the physical nature of the job – unable to do crawling under houses and heavy lifting due to his finger and left wrist arm injury.

96 Dr Ineson thought the plaintiff, however, was able to work in plumbing doing specialised roles such as that he was doing, specialised pipe installation work, which did not involve as much crawling under houses. However, even doing that work caused aching and pain in the left wrist and arm and index finger towards the end of the day.

97 Dr Ineson thought it would be very difficult for the plaintiff to find alternative employment. He may be able to work as a truck driver, forklift driver or do handyman sales work, or delivery driver work, although he would need to avoid heavy lifting. The same could be said about factory work.

98 Dr Ineson noted the plaintiff would like to work full time and had done that from time to time in his current role when there was enough work available. As for the plaintiff working full time on a constant, sustained and reliable basis, that was difficult to comment on with certainty. It was possible the finger, wrist and arm would become painful if he worked full time all the time, which may necessitate him having some time off for further treatment.

99 Dr Ineson thought it likely the plaintiff will have ongoing problems with pain and reduced ability to use his left finger, wrist and arm in future, and that may then affect his ability to work full time due to the physical nature of his work.

100 Mr Damon Thomas first saw the plaintiff in March 2013 after sustaining a proximal phalanx fracture.

101 On 7 March 2013, Mr Thomas performed a left index finger open reduction and internal fixation to that fracture. On 27 September 2013, he undertook left carpal tunnel decompression and on 14 March 2014, left ulnar nerve decompression with some muscular transposition.

102 Mr Thomas noted that having suffered the fracture, the plaintiff then had gone on to develop secondary complications involving a left-sided Carpal Tunnel Syndrome and left ulnar compression at the cubital tunnel level.

103 Nerve conduction studies on 16 July 2013 were consistent with a left ulnar neuropathy at the elbow and median nerve neuropathy at the wrist. X-rays and an MRI scan of the left wrist in June 2013 were consistent with severe degenerative changes at the metacarpophalangeal joint of the thumb and moderate degenerative changes in between the second metacarpal and trapezium.

104 As of November 2014, Mr Thomas thought the plaintiff was able to undertake work activities which involved light duties in the left arm. He did not plan any further medical treatment with regards to surgery, but thought the plaintiff would need ongoing review.

105 On 15 October 2016, Mr Thomas undertook a targeted steroid injection to the left index finger flexor sheath and left index finger metacarpophalangeal joint. The plaintiff sustained a good response, which seemed to have persisted.

106 When last seen on 24 January 2017, the plaintiff was doing well, and Mr Thomas was planning to see him in six months.

107 Mr Thomas thought the plaintiff had reduced strength and dexterity in the left hand and was, therefore, unable to undertake manual or heavy duties on a permanent basis. He has the capacity to work full time, which would not involve manual overuse of the left hand.

109 Mr Thomas thought the plaintiff had a mild impairment of the left index finger, hand and arm due to the injury. This affected him with regards to intermittent pain, reduced strength and movement of the index finger and hand, and a reduction in function. Mr Thomas described that a modest rather than severe impairment.

111 An x-ray of the left hand on 20 December 2016 showed the presence of two previous screws in the proximal phalanx, with degenerative changes in the second metacarpophalangeal joint and the first carpometacarpal joint. The diagnosis was a fracture with post-traumatic degenerative change of the second metacarpophalangeal joint.

112 The plaintiff was seen by Dr Clayton Thomas, consultant in rehabilitation and pain medicine, on 14 June 2016.

113 On examination, the dominant problem related to pain at the metacarpophalangeal joint of the index finger, which was the most painful and sensitive joint. Any sideways pressure on the finger would aggravate pain at the joint.

114 The plaintiff also had pain and discomfort in the middle finger metacarpophalangeal joint, but not to the extent of the index finger. He had some paraesthesia of the tip of the index and middle fingers, but the symptoms did not disturb him. There was some stiffness to the base of the thumb that was not painful for him.

115 On examination, there was tenderness over the metacarpophalangeal joint of the index finger. Any stressing of the collateral ligaments of the finger aggravated the pain. There was some restriction on flexion.

116 Medication then included Celebrex and anti-inflammatories, in addition to Panadol Osteo.

117 Dr Thomas noted, from a vocational perspective, the plaintiff was working with a new employer for the last few months, and expected the work to continue for the next two to three months. He was working as a plumber doing pipe work, helping set up machinery, and set up a factory which was in the process of moving from one site to another.

118 The plaintiff found activities with his left hand difficult. He described himself as being ambidextrous; being able to use both hands to tighten bolts and use equipment, but as a result of his left hand pain, he tended to use his right more for those activities.

119 Given that the plaintiff was working full time and had been doing so for the last couple of months, he felt the aching and discomfort in the finger had worsened.

121 Dr Thomas considered the primary issue was the plaintiff’s difficulty with gripping and using the left upper limb in an unrestricted manner. He thought the plaintiff needed to attempt to use the left upper limb more as a stabiliser, with more activity being done with the right. Though he noted that the plaintiff can use the left wrist in a functional manner, certain activities can lead to sharp pain. He thought the plaintiff can lift up to 10 kilograms at a frequent level.

122 In Dr Thomas’ view, the plaintiff has a capacity for full-time work. He noted the plaintiff was working currently forty to forty-five hours a week in a sustained, reliable manner, and had been doing so for the last eight weeks, and expected work would continue for the next eight weeks, until the current job was completed.

123 Dr Thomas thought the plaintiff cannot do the work expected of a plumber in an unrestricted manner. He would not be able to do sub-floor work, nor work in confined spaces, where he needed to be on his hands and knees. He would have difficulty performing work which was not within the level between ground and above, and overhead height, such as climbing up and down ladders, or working underneath floors. He would have difficulty accessing these positions in view of his problems with his left upper limb, climbing ladders and placing strain on his left upper limb. Despite that, performing maintenance type plumbing activities and his current plumbing activities, which involve pipework, is within his physical capacity.

124 Dr Thomas thought it likely the plaintiff’s condition would progressively worsen with time, as the degenerative changes of the finger worsened with time over the medium, not short, term.

125 Dr Thomas was sent the surveillance reports and DVDs. He advised there was nothing he had seen in that evidence that made him wish to alter his report. He confirmed the plaintiff has a problem that is organic in nature from which there is a degree of impairment disability.

127 The plaintiff then complained of left elbow pain and pain over the dorsal aspect of his proximal left index finger. He described the pain radiating from his elbow through the ulnar aspect of his left hand. It reached a severity of two to three out of ten, worse on direct pressure over the area, and was constant. The finger pain was presumably the site of the fracture. There was no associated discolouration or swelling of the plaintiff’s hands. There was mild weakness and decreased sensation in the ulnar distribution in the left hand.

128 Professor Bittar thought the plaintiff’s employment had been the significant contributing factor to the fracture and the ulnar neuropathy, but not the Carpal Tunnel Syndrome.

129 Professor Bittar considered the plaintiff was permanently incapacitated for pre-injury duties as a plumber and a gasfitter, but he had capacity to work as a machine installer, and currently was working as a subcontractor in that role on a full-time basis. He thought the plaintiff does have permanent restrictions, which include avoidance of placing pressure on the left elbow, the avoidance of repetitive left elbow flexion, pronation or supination, and the avoidance of forceful pushing or pulling, or heavy lifting with his left arm.

130 On re-examination in July 2017, the plaintiff described similar complaints and essentially, Professor Bittar’s view was unchanged.

131 Mr Damon Thomas, plastic and reconstructive surgeon, reported in late November 2016 that the plaintiff most recently had a targeted steroid injection to the left index finger flexor sheath and metacarpophalangeal joint. He was happy with the result and his symptoms have essentially resolved.

132 Mr Thomas noted the plaintiff still has problems with his wrist and elbow from his previous injury and surgeries, but this is manageable. He planned to see the plaintiff in four months’ time, at which point the steroid would, presumably, have worn off.

133 The plaintiff was examined by Mr Murray Stapleton, plastic and hand surgeon, in June 2013.

134 The plaintiff told Mr Stapleton about the twisting injury to his left hand on the said date, involving a fracture of the left index finger and, in Mr Stapleton’s view, an injury of the left hand as far as the soft tissues were concerned.

135 At that stage, the plaintiff’s left hand was painful when he attempted to make a grip, and he was still having hand therapy. The plaintiff had not returned to work, as his employer would not accept him back because no light duties were available. The plaintiff was distressed by that situation.

136 At that stage, all the plaintiff’s left fingers were swollen, particularly in the morning, and his fist was incomplete. The index finger had the greatest lack of flexion capacity. The plaintiff avoided bumping his left hand. He was extremely frustrated by his lack of apparent improvement.

137 Mr Stapleton thought the MRI scan possibly will show the need to remove the hardware from the index finger. In his view, that is not the only problem. It is the twisting injury involving all of the fingers of the left hand which is preventing a return to work.

138 Mr Stapleton thought the plaintiff, then, did not need analgesics, and his hand therapy should continue for at least three months. He thought that treatment should be slightly more aggressive.

139 In a subsequent report, Mr Stapleton noted, when he last saw the plaintiff, there was no question about him suffering from pins and needles or digital numbness. He, in fact, had been referred to Mr Thomas because of confirmed left hand Carpal Tunnel Syndrome.

140 Given, as Mr Stapleton expected, there is no nerve compression on the right hand, then a reasonable proposition would be a twisting injury did cause the injury to the median nerve and it should be accepted as a work-related problem. He thought the proposed surgery was the appropriate way to deal with the plaintiff’s condition.

142 At that stage, Mr Stapleton described the twisting injury as involving the left index finger and it was clear it also involved the wrist and forearm, as one might expect from a twisting injury while using a high powered drill.

143 Mr Stapleton noted the plaintiff is now getting compression symptoms involving the ulnar nerve, involving the ring and little fingers of the left hand. He noted that in January 2014, Mr Thomas had suggested an ulnar nerve decompression of the elbow which Mr Stapleton thought was required sooner rather than later.

144 The plaintiff was then not working as he could not perform unrestricted duties.

145 Mr Stapleton’s diagnosis was now compression of the ulnar nerve at the level of the left elbow joint. He thought the plaintiff needed surgery before a return to work as a plumber was appropriate. He considered the plaintiff’s incapacity was materially contributed to by the incident.

146 The plaintiff was re-examined in July 2014, after the decompression of the ulnar nerve on 14 March 2014.

147 Mr Stapleton thought the result of that procedure had been very good, in that the pins and needles and numbness running down the inner aspects of the left forearm down into the farm and fingers had disappeared.

148 On examination, the plaintiff now had discomfort in the left elbow, to the extent he could not put any weight on it, and the need to work in confined spaces as a plumber and gasfitter would prevent him from returning in an unrestricted way because of that left elbow discomfort. The plaintiff advised he could do light duties, but felt his working future was more considered in terms of being a plumbing fitting salesman, such as at Bunnings. Mr Stapleton believed arrangements could now be made, if such a position is found for him.

149 Mr Stapleton noted the plaintiff’s condition was still improving. He believed he was genuine when he told him that putting weight on the left elbow would be a problem for him as a plumber.

150 On examination, the plaintiff’s left elbow remained tender, but there was no sensory loss or motor deficit through the distribution of the ulnar nerve at the elbow joint, nor had the plaintiff lost any range of elbow joint movement.

151 Mr Stapleton thought the plaintiff needed no further treatment, and time was required to assess the settling of discomfort in the elbow joint region.

152 Insofar as work was concerned, Mr Stapleton then thought the plaintiff would not be able to do repetitive activities with his left hand. Pushing and pulling and lifting in excess of 3 kilograms would be beyond his capacity and he should be prevented from leaning on his left elbow, which remained quite tender. Mr Stapleton thought the plaintiff could self-manage his discomfort.

153 Having made those comments about the plaintiff’s work capacity, Mr Stapleton noted that the plaintiff was shown on a DVD unloading cardboard boxes from a ute, and there was no preference made for his right or his left hand. Indeed, although the box was not in excess of 3 kilograms, the fact the plaintiff chose to lift any item with an extended forearm, which he did more than once, suggested his presentation was inconsistent to Mr Stapleton.

154 Mr Stapleton noted there was one part of the footage where the plaintiff lifted a large cardboard box with his left hand, when his right would have been an option, or would have if the pain had been severe, come back to lift that item with his right hand, which is his dominant hand.

155 While unloading the fridge that was being carried to the tip in his black ute, again, Mr Stapleton saw no evidence of an impairment of any description involving the left elbow.

156 Having seen the film, in Mr Stapleton’s view, the plaintiff’s condition would appear to have resolved – the ulnar nerve compression at the left elbow and an injury which involved his left index finger.

157 Mr Stapleton thought it would not be reasonable for him to state, on the basis of what he had seen, that the plaintiff could go back to unrestricted duties and hours as a plumber. He is not sure whether the plaintiff is capable of putting weight on his left elbow, which plumbers would be required to do when crawling in a confined space, but he had seen enough of the DVD to suggest the plaintiff could go back to most duties involving a plumber, because he is naturally right handed and does have a work capacity.

158 Given that Mr Stapleton believed the plaintiff’s presentation to him was inconsistent, it could well be, on one hand, that he has completely recovered and could go back to unrestricted duties as a plumber, but if there is any doubt, which one must extend to him, the plaintiff should not be required to perform activities which generally discomfort him, and in looking at the DVD, Mr Stapleton could see no avoidance of his left hand.

159 Mr Stapleton thought the plaintiff could certainly drive a truck, be a courier driver, a light assembler or hire controller. Indeed, he could do many more jobs than those suggested by the occupation rehabilitation. He could work as a seller of plumbing material at an organisation such as Bunnings, and he had a capacity to perform rehabilitation activities such as retraining and participation in an NES Program.

161 The plaintiff advised pins and needles had gone since the decompression of the ulnar nerve. He had pain when he put weight on the proximal part of his right palm, and he had not lost any range of flexion or extension of the fingers of the left wrist.

162 Mr Stapleton thought the plaintiff would be able to return to plumbing work, even in a light capacity. He has a current work capacity and is employable, without restriction, driving a forklift, or as a warehouser, and could be involved in trades sales or truck driving. He had no trouble with the jobs submitted in the occupational report.

163 Mr Stapleton believed there were many jobs the plaintiff could satisfactorily perform as his left index finger and left hand, which is non dominant, are not showing any signs of severe disability. He could work full time without restriction.

164 Mr Stapleton did not believe the plaintiff needed any further hand therapy and the only change in his treatment he would suggest was the possibility of removing the hardware, because the plaintiff reported the site was tender.

166 The plaintiff then complained of pain on the posteromedial aspect of the proximal forearm, which was constant, and aggravated by direct pressure or continuous gripping of the left hand. He also complained of a constant, dull low-grade ache in the palm. He reported pain in the index finger around the metacarpophalangeal joint and stiffness caused by flexion.

167 The plaintiff advised, on direct questioning, he no longer had pins and needles or numbness, or nocturnal sleep disturbance due to hand symptoms, and he was not aware of any sensory loss or loss of grip strength.

168 The plaintiff told Mr Ireland he attended to all normal activities of daily living and household chores, including gardening, and he drove an automatic without difficulty.

169 The plaintiff told Mr Ireland he was no longer able to go surfing due to left elbow and forearm pain, having done so regularly before the injury. He could not use a paddle board which he had recently purchased.

170 The plaintiff advised he could not work as a plumber because he could not crawl under houses or on construction sites due to pain and tenderness on the posteromedial aspect of his forearm. He told Mr Ireland he was currently working as an aluminium fitter three days a week and would be happy to work longer hours if more of that work was offered to him.

171 On examination, there was a full range of elbow movement, which was pain free. There was no tenderness in the area of the scarring. There was no evidence of wasting in the palm of the hand. Testing for Carpal Tunnel Syndrome was negative. There was some restricted motion of the index finger. There was less grip strength on the left.

172 Mr Ireland diagnosed minor restriction of motion of the left index finger following fracture of proximal phalanx and minor ulnar nerve sensory symptoms following ulnar entrapment neuropathy, although treated surgically.

173 Mr Ireland thought it apparent the plaintiff developed Carpal Tunnel Syndrome and ulnar nerve entrapment neuropathy at the elbow and a post-operative course following injury.

174 Mr Ireland thought the plaintiff was unable to perform unrestricted plumbing duties for the reasons the plaintiff stated. He would be capable of undertaking many of the normal plumbing duties, being right handed, with restrictions as to crawling under buildings, through sewers, or doing roof work.

175 Mr Ireland thought the prognosis was good and the plaintiff did not require any further treatment. He considered the stiffness of the left index finger metacarpophalangeal joint was permanent, but believed the ulnar nerve symptoms in the forearm would settle with the passage of time.

177 Since the earlier examination, the plaintiff had a corticosteroid injection in the finger, and also the metacarpophalangeal joint, as well as into the flexor tendon sheath in October 2016. He noted this had resulted in substantial resolution of residual symptoms.

178 The plaintiff was then working casual part time, about twenty hours a week, installing plastic moulding machines into factories, a job he described as light and easy.

179 The plaintiff stated the symptoms in his left hand had all but resolved. He complained of numbness in the pulps of the index, middle and ring fingers, but conceded the carpal tunnel release surgery alleviated these symptoms considerably. He described intermittent pain over the basal thumb joint, which had worried him for six months, and occurred when he was driving or lifting heavy weights. He had similar pain on the right side and claimed this was due to basal thumb joint osteoarthritis.

180 In direct questioning, apart from stiffness of the metacarpophalangeal joint, the plaintiff had a full range of motion of all joints and no nocturnal sleep disturbance symptoms affecting his hand.

181 On examination, there was no swelling or deformity of the left hand, and no wasting of the muscles. There was still restricted motion at the metacarpophalangeal joint.

182 Mr Ireland concluded there was residual numbness in the median innervated digits following carpal tunnel surgery. The symptoms in the left hand had largely resolved and the plaintiff stated he was 80 per cent better following the recent cortisone injection to the left finger.

183 The plaintiff described his current work as easy and said that he would do more work if it was offered him. He had not lost any time because of his hand symptoms.

184 Mr Ireland thought the plaintiff was capable of doing the trade sales assistant full-time job assisted by Nabenet, and also work full time as a truck driver, and work as a courier forthwith. He is also able to undertake the job description of light assembler and hire controller, rental officer forthwith.

185 Mr Ireland noted the plaintiff, indeed, volunteered he would be able to return to his pre-injury work, and his prior occupation as a qualified plumber, if such opportunities were made available to him.

186 On 24 January 2017, Mr Thomas wrote to Dr Ineson. He then advised the plaintiff’s finger continues to do well following the targeted steroid injection and “we will continue to observe things and see him in six months’ time”.

187 Mr Thomas noted the diagnosis was previous left index finger proximal fracture and secondary carpal tunnel trigger finger and Cubital Tunnel Syndrome.

188 Mr Thomas organised an MRI scan of the plaintiff’s left wrist in June 2013.

189 It was reported there were severe degenerative OA changes of the carpometacarpal joint of the thumb and moderate degenerative OA changes between the second metacarpal and trapezium. There was degenerative TXC.

190 An EMG study in July 2013 was abnormal. There was evidence of moderate ulnar nerve lesion at around the elbow on the left arm, also evidence of mild compression of sensory fibres of the median nerve in the carpal tunnel on the left side.

191 Following an MRI scan of the left hand of 21 May 2014, it was reported there were signs of ulnar sided capsular sprain and dorsal collateral ligament sprain with capsular oedema. There were low-grade degenerative changes in the second MCP joint and no soft tissue mass legion.

192 There was an x-ray of the left hand of 4 July 2016. The previous internal fixation was noted, as was good alignment. There were changes of degenerative osteoarthritis in the left second metacarpal phalangeal joint. There was moderate loss of joint space. There was severe degenerative disease in the first carpometacarpal joint.

193 A left second metacarpophalangeal joint injection was carried out on 21 July 2016.

194 There was a left hand x-ray on 20 September 2016, following which it was reported the two screws appeared in satisfactory position. There was prominent degenerative change affecting the second MCA joint. There was similar moderate to advanced degeneration of the first carpometacarpal joint.

195 There is no dispute the plaintiff suffered a fractured left index finger and injured his left arm, involving the ulnar nerve and carpal tunnel in the incident. His claim for weekly payments was accepted as was liability for all the surgery undertaken on his left upper limb.[46]

200 There is very little evidence suggesting the plaintiff’s pain in his left index finger and arm is currently of any real severity.

201 The plaintiff agreed there had been a significant improvement in his left index finger pain since the October 2016 injection, with that condition being 80 per cent resolved. Otherwise, his main complaint is pain in his left elbow when he puts pressure on it. His left grip strength is somewhat reduced and his left hand is tired after a day’s work.

202 Medical practitioners who have examined the plaintiff in recent times do not record a history of significant pain and restriction complained of by the plaintiff.

203 In June 2016, the plaintiff told Professor Bittar he rated left elbow pain, 2 to 3 out of 10, worse on direct pressure, describing the pain otherwise as a dull ache. The left index finger pain was intermittent and only occurred with the use of the left hand, with its average severity at 1 to 2 out of 10.[51]

204 When Dr Clayton Thomas examined the plaintiff in January 2017, he noted the primary issue was the plaintiff’s difficulty with gripping and using the left upper limb in an unrestricted manner.

205 When Mr Thomas last saw the plaintiff in January 2017, he thought the plaintiff’s finger continued to do well and then did not note any significant complaints by him.

206 Mr Ireland reported that when he saw the plaintiff in May 2017, the plaintiff told him the symptoms in his left hand had all but resolved, save for some numbness in his fingers, which the carpal tunnel release surgery had alleviated considerably. There was some stiffness of the index finger but a full range of motion, and no sleep disturbance.

207 In his August 2017 report, Dr Ineson did not really comment on attendances with the plaintiff after August 2016. Although he mentioned the most recent injection, he did not note any improvement thereafter as the plaintiff has reported. Further, in that report, Dr Ineson made no mention of the plaintiff reporting to him significant ongoing complaints of pain in his left upper limb.

208 The plaintiff has undergone all treatment that has been recommended for him, and the consensus of medical opinion is that no further treatment is required.

209 The most recent finger injection in October 2016 substantially resolved the plaintiff’s left finger problems, and it appears that the carpal tunnel release and ulnar nerve surgery were also quite successful in relieving the plaintiff’s symptoms.

210 The plaintiff does not require ongoing painkilling medication, simply using topical creams “just when he gets a bit sore in the hand”.[52]

211 I accept, however, that the plaintiff does have problems with repetitive or heavy use of his left hand. Whilst he can lift up to 20 kilograms with his left hand, he cannot do so on a repetitive basis. He is able otherwise to freely use his left hand, trying to use it as much as he can,[53] as was indicated in the surveillance film.

212 Whilst I am satisfied the plaintiff cannot do unrestricted work as a plumber, crawling along the ground or placing significant weight on his left arm, as is the consensus of medical opinion, I am not satisfied any employment consequences in relation to his left upper limb impairment injury meet the high statutory test of “serious”.

213 I do not accept that as a result of his injury, the plaintiff has lost his employment of forty years as a plumber, as his counsel submitted, and that in these circumstances, he has a serious injury.[54]

214 The plaintiff, having had an initial period off work, returned to work as a window installer. Whilst he had some difficulties in the heavier aspects of that role, he has now, for over two years, run his own business on a subcontracting basis.

215 The plaintiff has not sought any other work in the plumbing field since he started contracting work, as he has been too busy running his own business.[55]

216 In my view, the plaintiff made a decision to undertake work on a subcontracting basis where he does work in a similar fashion to that which he previously did as a plumber – work he himself described as “along plumbing lines”,[56] although submitted by his counsel this was not plumbing work.[57]

217 Whilst the plaintiff continues to experience a small restriction in movement of his left index finger, and pain in his left elbow with excessive use or placing weight on it, he is able to continue full-time work that is available to him as a subcontractor.

218 No medical practitioner is of the view that the plaintiff is unfit for his present work duties.

219 Whilst counsel for the plaintiff submitted the plaintiff’s left arm condition may prevent him from working full time,[58] the only medical support for that view was from Dr Ineson before the successful October 2016 injection. To date, the plaintiff has done the work that is available to him, whether 20 or 40 hours per week, without the assistance of painkilling medication.

220 Although the plaintiff had some problems doing full-time work last year, as he freely admitted, there had been a considerable resolution of his left finger pain following the October 2016 injection and an improvement in his left arm condition in general.

221 The plaintiff is able to work full time in what is sometimes awkward work and at a height such as from a scissor lift. His work requires manual dexterity and he is able to use tools and carry out the necessary manual tasks installing pipes as he described in some detail and was shown in the worksite photograph tendered by the defendant.[59]

222 The plaintiff also agreed he is fit for a range of plumbing work such as in a foreman role, gas fitting and roof plumbing, but has not sought work in those areas.

223 I am not satisfied that any interference with the plaintiff’s work capacity could be described as “serious”, alone or in conjunction with his relatively moderate complaints of pain and restriction and his ability to perform a range of other activities.

224 Further, there does not seem to be any domestic or recreational activity which has been significantly impaired by the plaintiff’s left upper limb condition. In fact, he was shown on film gardening relatively freely for some hours in February 2016. His only response to the film was that when using the wheelbarrow, he tucked in his elbow for support.

225 The plaintiff had difficulty surfing after the incident but was able to try. He has not attempted further since the October 2016 injection and he is presently able to enjoy paddle boarding.

226 Whilst the plaintiff continues to have some pain and limited restriction and interference with his activities of daily living, I am not satisfied any impairment is “serious”.

County Court of Victoria

Facey v Bruce Morgan Plumbing Pty Ltd [2017] VCC 1113 (16 August 2017)