IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISION	Revised
Not Restricted
Suitable for Publication	
Serious Injury List
Case No. CI-23-07016

YERLY CAROLINA GALVIS SANDOVAL	Plaintiff	
		
v		
		
VICTORIAN WORKCOVER AUTHORITY	Defendant	

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JUDGE:	HIS HONOUR JUDGE PILLAY	
WHERE HELD:	Melbourne	
DATE OF HEARING:	31 July 2024	
DATE OFJUDGMENT:	31 July 2024 (ex tempore)	
CASE MAY BE CITED AS:	Sandoval v Victorian WorkCover Authority 	
MEDIUM NEUTRAL CITATION:	[2024] VCC 1203		

JUDGMENT
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Subject:	ACCIDENT COMPENSATION
Catchwords: 	Serious injury application – workplace injury – right lower leg injury – whether serious injury consequences present – scarring to right lower leg - whether permanent serious disfigurement present
Legislation Cited:	Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:	Transport Accident Commission v Garcia [2015] VSCA 225
Judgment:	Application granted

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Ms C O’Sullivan	Slater and Gordon Ltd	
			
For the Defendant	Mr N Dunstan 

	Lander & Rogers	

HIS HONOUR:

1	The plaintiff, Carolina Sandoval, was born in September 1988.  She came to Australia in 2018.  On 28 May 2021, she was injured at work when her right lower leg was crushed by a pallet jack.  She seeks determinations in her favour in accordance with paragraph (a) and paragraph (b) of the definition of serious injury contained in s325 of the Workplace Injury, Rehabilitation and Compensation Act 2013 (“the Act”).
2	The parties agree that the injury occurred at work.  They agree that the body function impaired is the right lower leg.  They agree that there are no credibility issues.  The central issue is whether, in respect of the paragraph (a) case, Ms Sandoval can demonstrate that the impairment consequences of the right lower leg injury are “more than significant or marked”.
3	As to the paragraph (b) case, the issue is whether the scarring occasioned by reason of the surgical procedures she has had constitute permanent serious disfigurement.  Two issues are in play on this topic.  Are the scars themselves in a permanent state, given that a revision surgery may be conducted?  If the scars are in a permanent state, then do they satisfy the requirement to be considered a serious disfigurement?
4	The parties agree that the principles enunciated by the Victorian Supreme Court of Appeal in Transport Accident Commission v Garcia (“Garcia”) are to be applied.  For the reasons which follow, I will deny Ms Sandoval’s paragraph (a) case.  I will grant Ms Sandoval’s paragraph (b) case.  Turning now to a brief relevant chronology.  As I have indicated, Ms Sandoval was born in Colombia in 1988.  She finished a Bachelor's Degree in Engineering.  She then completed a Diploma in Management Skills.  She came to Australia on a student visa in 2018 and began working thereafter in hospitality.
5	In May 2021, she joined an employment agency called 3rd Party People and was placed at NewCold in Agar Drive, Truganina, picking and packing.  Shortly thereafter, she sustained the injury to the right lower leg.  Referring to the CT scan taken that day at the Sunshine Hospital, it disclosed a nondisplaced and minimally comminuted transverse fracture of the distal tibia and fibula diathesis.  No intraarticular fracture was noted. 
6	She had surgery the next day at the Sunshine Hospital to insert an intramedullary nail and four locking screws.  She was discharged the following day in a CAM boot.  Unfortunately, she developed a deep vein thrombosis.  She had treatment for that and was discharged shortly thereafter.  She had a long period engaged in physiotherapy and returned to work in September 2021, working two days per week, four hours per day.  Her treating doctor described her recovery as being prolonged and extensive. 
7	In February 2022, she returned to work on full duties.  However, she continued to complain of pain in her right lower leg and she was referred to the Western General Hospital.  She had surgery on 14 September 2022 to remove the nail and the screws.  Shortly thereafter, she ceased physiotherapy.  Relevantly, she continued to work full time throughout 2022 and 2023.  Those were mainly in picking-and-packing roles.  
8	In December 2023, she and her partner moved to Western Australia.  She obtained work in a fresh-food coolroom, working forty hours per week doing essentially manual work and some supervising work.  She continued in that role until about two weeks ago, when she changed jobs to a clothes warehouse role, where she did picking-and-packing work. 
9	Now, to return to the individual matters of this case.  Dealing with Ms Sandoval’s paragraph (a) case.  What are the impairment consequences that Ms Sandoval relies on?  Starting with the injury.  Ms Sandoval suffered from a nondisplaced and minimally-comminuted transverse fracture of the distal tibia and fibula.  No intraarticular fracture was noted.  She had surgery, which I have referred to.  The metalware, rather, was removed on 14 September 2022.  
10	The Medical Panel ultimately diagnosed her condition as a mild dysfunction of the right ankle.  This is consistent with Dr Paul  Khoo's examination where a restriction in the range of motion of the right ankle was found.  Plaintiff's book 90, see also Mr Russ, defendant's book 22, where he found that the restriction was not notable.  I accept that finding.  
11	I also find that, as to the right ankle, there is no evidence of unilateral muscle atrophy, which would be found if there was a favouring of one leg.  There is no limb length discrepancy, there is no ligamentous instability and there is no loss of power.  As to the knee, it is normal in function.  
12	As to Mr Matthias Russ's opinion, it must be treated with some caution, as it was done by telehealth and his history taking was not accurate when he opines that Ms Sandoval has returned to dancing unrestricted, for example.  I prefer the opinions of the other practitioners in this case and the Medical Panel.
13	I have set out the matters of the medical diagnoses on examinations as I find that, anatomically, the evidence is almost universal.  As pointed out by the Victorian WorkCover Authority’s (“VWA”) counsel, Mr Dunstan, Ms Sandoval has had a good result from the surgical procedures.  The fracture has united solidly.  There is good ligament function and no atrophy.  The only residual impairment, I find, is a mild ankle dysfunction. 
14	The real battleground between the parties was as to what were the impairment consequences this has resulted in for Ms Sandoval.  As there was no issue of credit or real issues of reliability of Ms Sandoval’s evidence, counsel for Ms Sandoval submitted that Ms Sandoval’s impairment should be accepted as, broadly, an inability to return to her pursuits of dancing, soccer and roller-skating, in particular; to the impact on her sleep; and her pain, particularly given she works in manual positions and is on her feet all day. 
15	There is a real difficulty in analysing Ms Sandoval’s claims.  This arises primarily because of the lack of specificity in her affidavit material as to each of the alleged impairments.  As an example, to take the first matter, the impact on dancing, soccer and roller-skating.  As to dancing, she says: 
“… I enjoyed latin dancing and it was also a very good way of meeting and seeing new friends here in Melbourne. I can no longer participate in this activity to the same degree I could before. … .” 
16	This affidavit was sworn in August 2023.  It clearly indicates that she was able to do some dancing.  
17	In her second affidavit, she said, “I have not been able to resume my hobbies referred to in my earlier affidavit”.  This affidavit was sworn in July 2024 and indicates, it seems, a complete inability to dance now.  Why the situation changed is unexplained.  However, and more importantly, neither affidavit descends into detail how often, prior to the injury, she did perform such dancing.
18	It makes it very difficult to try to establish the loss Ms Sandoval is experiencing, because, while it might be said dancing was an activity she enjoyed and did for an extended period when she did it, I am unclear of the depth of that loss.  Was it a pastime she did every few days, weekly, or monthly?  However, overall, I accept her evidence that it was a keen loss for her.  
19	Turning to consider Ms Sandoval’s inability to play soccer.  She deposed, “I enjoyed playing in Colombia and looked forward to being able to continue to practice this sport in Australia”.  Given she was in Australia for three years before the injury, it is unclear whether she did play soccer in Australia at all.  If so, how often and in what circumstance?  Was it competitive or social, and how often did it occur?  
20	Her second affidavit simply deposes that she was scared to try and play.  That much can be accepted, but engaging the impairment consequences, as I am required to do, it is necessary to seek to determine what has actually been lost.  Was it a regular competitive pastime or an occasional social event?
21	The same can be said of references of having lost the ability to roller-skate and cycle.  These matters make it impossible for me to complete the task required of me in coming to a proper determination of the impairment consequences visited upon Ms Sandoval by the injury in respect of her dancing, soccer and roller-skating pastimes. 
22	Turning then to the issue of pain.  The evidence is that Ms Sandoval has not had specialist treatment of the right lower leg since the metalware was removed nearly two years ago.  She has not seen a general practitioner for well over a year in relation to the right leg.  She ceased physiotherapy in 2022 and is content to do some home exercises. 
23	As for medication, she takes only occasional Panadol.  Ms Sandoval stated she gets aching after being on her feet.  This is relevant because, since moving to Perth, she has been working in a warehouse, packing on her feet all day, full duties work, 40 hours per week.  She recently changed jobs and is in a similar situation, where she is on her feet for the majority of her work.  She gave evidence that, when she comes home, she likes to apply a balm and put her feet up.  I accept that evidence. 
24	However, the fact is she only occasionally takes medication.  This suggests any pain is minor, or modest at most.  While this is not to deny the pain or aching, there is no real evidence from Ms Sandoval of the severity of the pain, and I am unable to make precise findings in this regard.  Doing the best I can, I find that the pain is minor.  On occasion, it increases, which may be on or around the fourth workday, to a maximum of 8/10, where 10/10 is the worst, though I do note that this is a recording from Mr Russ and Ms Sandoval gave no direct evidence about it.  
25	As to the effect on sleep after the right leg injury, the evidence was unclear.  In her first affidavit, she deposed, “[m]y sleep can be affected by the discomfort and pain in my leg”.  She confirmed this in her second affidavit.  The use of the word “can”, as opposed to “does”, or any specificity in detailing how often sleep was affected and to what extent, makes it impossible for me to assess the depth of this alleged impairment consequence.  
26	In her evidence under cross-examination, she made clear that her sleep was worse in winter, when it was cold.  She said, in that circumstance, her sleep was always affected.  How and in what way was not clear.  It was accepted that, now she had moved to Perth, the climate made this less of a problem.  As I am assessing the case as at the date of hearing, I consider this the relevant state to assess.  Given the uncertainty in the evidence, I am not able to find with what frequency and what effect any pain from the right leg has on Ms Sandoval’s sleep.
27	Turning to the issue of swelling, the evidence seems to be that there is some level of swelling in the right leg – particularly after working for a few days.  I accept, as set out above, that Ms Sandoval treats this by raising her leg and putting a balm on it.  I am, however, unclear in what other way this swelling impairs Ms Sandoval.  
28	It is also relevant to consider what Ms Sandoval has retained in this assessment.  She has worked in full-time, full-duties work since 2022.  After that time, she has worked in physical jobs in warehouses.  In those jobs, she has worked in cool rooms and been required to lift weights up to 20 kilograms on occasion; and more regularly, in her current position, weights more around 15 kilograms.  She can walk normally.  She can run for very short periods of time – of five to ten minutes – and perform nearly all activities of daily living normally.
29	As set out above, she has had no treatment, and takes only occasional over-the-counter medication.  Coming to balance these matters, then, I find that Ms Sandoval has sustained a traumatic injury to the right leg.  However, when assessed across the range of cases to be considered, the impairment consequences do not, in my findings, reach the level necessary.  That is, they could not be assessed as being “more than significant or marked”.  
30	This is to accept that Ms Sandoval has lost her main hobby and passion of dancing.  However, without real detail as to what this loss entails, it is difficult to assess the depth or extent of that consequence.  I will deny the claim, under paragraph (a).
31	Turning, then, to the paragraph (b) case.  The first issue: is the scarring permanent?  The VWA submits that Dr Chris Allen recommends revision surgery which could improve the scarring.  I reject the submission that the scarring could be considered not permanent on the basis of Dr Allen's opinion.  This is because Dr Allen simply raised the possibility of a surgical procedure in the context of providing a medico-legal report.  It was not surgery that he offered or specifically discussed with Ms Sandoval in depth.
32	In cross-examination, Ms Sandoval accepted that she would consider such surgery, but she expressed trepidation because the details of it were not known to her and she did not know what it involved.  Further, the scarring has been in its current state for nearly two years and they are in a position which I consider to be stable.  There is no treatment being applied to it, for example.  
33	I find, overall, that the scarring is permanent.  That scarring comprises seven scars.  Overall, they are of a length of about 12 centimetres and, broadly speaking, 2.5 centimetres in width, although there were some lesser measurements contained in the Medical Panel's Opinion and Reasons.  Overall, however, given Dr Allen's speciality, I accept his assessment.  
34	I had a chance to view the scars.  The scars were described by Dr Allen as being “pink”, “flat” and also “stretched”.  It was accepted that there is also a childhood scar running vertically at the front of the leg mid-tibia, and it measured 7 centimetres in length and .5 centimetres in width.  The workplace scars are to be assessed in accordance with the Act and the principles in Garcia, noting, relevantly, that it was a case involving the transport accident legislation.  
35	Reasons as to the impression as to what constitutes serious disfigurement are difficult to promulgate, and the decision I make is largely dependent on my impression of the scars when I viewed them.  I take no account of the tenderness associated with the scarring or pain produced on touching, and I focus on the disfigurement alone.  Having conducted that assessment, I find that the scars do constitute a serious disfigurement.
36	I make that finding for the following reasons.  The scars are to a 31 year old; now 35 years old.  She is a young person and has to bear the scars for a great many years.  They are at the front of the leg and can easily be seen.  This is particularly so in respect of the scar at the very front of the knee.  It is prominent, discoloured, and ugly.  The scars are present whichever way the leg is turned.  The sheer volume of the scarring – some seven scars spread across the lower leg in its entirety, pockmarking it – is also a significant factor I considered.  
37	The fact of their being prominent is also relevant, in that Ms Sandoval now lives in a warmer climate, where she is much more likely to display her legs or feet by reason of choosing climate-appropriate clothing.  For all these reasons, I will grant Ms Sandoval application in respect of paragraph (b).
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