IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISION	Revised
Not Restricted
Suitable for Publication	
Serious Injury List
Case No. CI-19-04065

NGHIA TRUNG DANG	Plaintiff	
		
v		
		
VICTORIAN WORKCOVER AUTHORITY	Defendant	

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JUDGE:	HIS HONOUR JUDGE CARMODY 	
WHERE HELD:	Melbourne	
DATE OF HEARING:	11 March 2020	
DATE OF JUDGMENT:	9 April 2020	
CASE MAY BE CITED AS:	Dang v Victorian WorkCover Authority	
MEDIUM NEUTRAL CITATION:	[2020] VCC 412		

REASONS FOR JUDGMENT
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Subject:	ACCIDENT COMPENSATION
Catchwords: 	Serious injury to the plaintiff’s right ring finger – pain and suffering damages only – right hand is dominant hand for the plaintiff – whether consequences of injury to his right ring finger are serious
Legislation Cited:	Workplace Injury Rehabilitation and Compensation Act 2013, s335 and 325
Judgment:	Application for serious injury certificate for pain and suffering damages in respect of the injury to the plaintiff’s right ring finger is dismissed.

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr R Morrow	Slater and Gordon Ltd Lawyers	
			
For the Defendant	Mr M Clarke	Hall & Wilcox	

HIS HONOUR:

1	The plaintiff brings this application by way of Originating Motion dated 29 August 2019.  The plaintiff seeks leave pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to bring proceedings to recover damages for pain and suffering arising out of an injury to him in the course of his employment with Supreme Caravans Pty Ltd (“the employer”) on 3 February 2015.
2	In order to succeed in his application for leave pursuant to s335(2)(d) of the Act, the plaintiff needs to establish that the right ring finger condition of which he complained constituted a serious injury that arose out of or in the course of his employment with the employer.  The plaintiff relied on paragraph (a) of the definition of “serious injury” in s325(1) of the Act and consequently, he had to establish that he had suffered a permanent serious impairment or loss of body function.  The plaintiff contended that he had suffered a permanent serious impairment of his right ring finger.  The plaintiff was right handed. 
3	In order to establish that the impairment suffered by him was permanent, the plaintiff had to establish that it was likely to last for the foreseeable future.
4	In determining whether the impairment to the plaintiff’s right ring finger was “serious”, a court has to consider the pain and suffering consequences separately from loss of earning capacity.  In respect of the pain and suffering consequences, a court has to be satisfied that the impairment, when judged by a comparison with other cases in a range of possible impairments, could fairly be described as being “more than significant or marked” and being “at least very considerable”.
5	In making a determination as to serious injury, the Court has to disregard any psychological or psychiatric consequences of that injury to the plaintiff.  That is because psychological or psychiatric consequences are dealt with separately under paragraph (c) of the definition in s325(1) of the Act.  The plaintiff relied on the following evidence in support of his application for serious injury:
(a)	the plaintiff gave evidence and was cross-examined; and
(b)	Exhibit “A” was the Plaintiff’s Court Book (“PCB”) pages 8 to 23c inclusive, pages 24 to 58 inclusive and pages 77 to 81 inclusive.
6	The defendant tendered the documentation contained in the Defendant’s Court Book (“DCB”), pages 4 to 27 inclusive, which was exhibit 1. 
7	At the commencement of the proceeding, Mr Clarke, on behalf of the defendant, identified that the only issue in dispute in this application was that the consequences complained of by the plaintiff as a result of the injury to his right ring finger did not reach the statutory test for serious injury.  In effect, Mr Clarke said this was a range case.
The Plaintiff’s background
8	The plaintiff was born in Vietnam in 1964.  He is fifty-five years of age.
9	The plaintiff was educated to Year 7 level in Vietnam.  He then worked in his own small business for a time until he was approximately twenty-two years of age.  After spending some years in refugee camps, the plaintiff finally arrived in Australia in 1989.
10	The plaintiff has two adult children, aged thirty and twenty-four years old.  His children live independently of him.
11	The plaintiff has recently remarried in 2019.  He lives with his wife and her children.
12	Upon arrival in Australia, the plaintiff originally worked as a self-employed sewing machinist and then, subsequently, obtained employment in a printing factory.  He then commenced working in a coffee shop for his brother.
13	The plaintiff commenced employment with the employer on 15 January 2010.  The plaintiff worked there in the capacity of a carpenter.  His duties involved the fitting out of caravans with the internal furniture to the caravans. 
Injury with the employer
14	The plaintiff, in his affidavit dated 2 April 2019, set out the circumstances of the injury to his right ring finger.  The plaintiff stated:
“I was employed by the Respondent as a carpenter. On the 3rd of February 2015 I was operating a bench saw. Some time prior to my accident the guard on the saw had fallen off and had not been replaced or fixed. On the occasion I was injured, my right hand was jammed between the rail and the piece of timber I was cutting. My right ring finger went in to a small gap which would otherwise have been protected had the guard been in place. I pulled my finger out and was immediately aware of pain in my finger.”
15	The plaintiff continued working on the day of his injury, 3 February 2015.  He continued to return to work and complete his duties for 4, 5 and 6 February 2015.  
Medical treatment
16	On 7 February 2015, the plaintiff attended his general practitioner, Dr Nguyen.  Dr Nguyen arranged for an x-ray of the plaintiff’s right finger.  
17	The plaintiff underwent an x-ray of his right ring finger at Radiology Imaging Solutions in St Albans.  The conclusion of the x-ray report is as follows:
“Comminuted fracture is seen involving the right 4th distal phalanx, with intra-articular extension.
 There is separation of the articular fragments by 2.3mm.
 The fracture is also impacted with mild dorsal angulation. I have not identified any further displaced fracture.”
18	The plaintiff was then returned to the Sunshine Hospital for attendance on 9 February 2015.  The plaintiff was unable to be seen on that occasion and, subsequently, booked in for day surgery at the Sunshine Hospital on 16 February 2015.  The Discharge Summary of the Sunshine Hospital notes the principal diagnosis as follows: “right ring finger GAMP + Kwire x2.”
19	On 15 April 2015, the plaintiff attended the Williamstown Hospital campus of Western Health.  On that occasion, the consulting radiologist, Dr Vahid Master, noted the following findings:
“There is complete bony consolidation of the previously visualised fractured base of the right ring finger distal phalanx. There is residual minor deformity with dorsal angulation of the distal fracture fragment. Mild degenerative changes noted at the DIP joint.”
20	In May 2015, the plaintiff travelled to Vietnam to care for a sick friend of his.  He remained in Vietnam for a period of approximately three weeks.
21	On or about 15 June 2015, the plaintiff returned to work on light duties.  The plaintiff received some hand therapy treatment on a couple of occasions prior to resuming full-time previous duties at the employer’s premises.  
22	The plaintiff’s ongoing treatment is limited to occasional ingestion of over-the-counter pain-relief medication, either Panadeine or Panadeine Osteo.  In his evidence, the plaintiff stated that he was not currently receiving any treatment.  The plaintiff stated that he would have the occasional Panadol, detailing that it may be twice a week, every time two tablets.
23	The plaintiff’s current work situation is that he works full time in his role as a carpenter, fitting out the benchtops within the caravans.
Medical opinions
The Plaintiff’s doctors
Dr Ngoo-Chi Nguyen
24	Dr Nguyen is the plaintiff’s general practitioner and has been so since 24 January 2002.  In his report dated 22 August 2015, Dr Nguyen stated as follows:
“… On 07/02/2015, he presented with R ring finger pain after injury at work on 03/02/15.  The finger could not flex, I sent for XR which showed comminuted fracture.  I sent him to the Emergency department at Sunshine Hospital where he was man[a]ged accordingly.
 Now, he is sufferring from R finger pain especially when working.  The finger can not flex.”  
 (sic)
25	This report is the only report from the plaintiff’s general practitioner.  It is now more than four-and-a-half years out of date.  
26	I note from the plaintiff’s affidavit dated 3 March 2020, that he attended upon Dr Nguyen after an accident on 13 January 2015, which involved the fingers on the plaintiff’s right hand being jammed in a door of his car.  On that occasion, Dr Nguyen recommended that the plaintiff have an x-ray of his fingers.  That radiological procedure did not occur.  I note by way of completeness that the defendant did not take issue that the plaintiff was not injured at work, as he has stated.
27	The general practitioner’s report is so out of date that it is of little assistance to the Court in an assessment of the plaintiff’s current medical condition.
Mr John Aloysius Henderson, orthopaedic and general surgeon
28	Mr Henderson prepared a report dated 18 February 2019.  Mr Henderson was primarily preparing an impairment report in respect of the AMA Guides.  In the course of that report, I note that Mr Henderson referred to the plaintiff’s left ring finger.  Mr Henderson also noted a report of Associate Professor Felix Behan, hand surgeon, dated 30 March 2015.  Professor Behan’s report was not tendered with any of the materials in this case.
29	Mr Henderson also had a copy of the Operation Report from the Sunshine Hospital, which was performed on 16 February 2015.  The Operation Report was quoted fully by Mr Henderson:
“Name of Operation: ‘GAMP + x 2 K wire fixation FDP (flexor digitorum profundus) avulsion#+ bony mallet# base of distal phalanx right ring finger.’
 Post Op.: ‘Wound check 1152. Change to thermoplastic to immobilise DIPJ - 5152.then mobilise. K wire removal in 6/52.’”
30	Mr Henderson performed a physical examination on the plaintiff and concluded that he had suffered a 76.19 percentage strength loss in his right hand.
31	In the body of his report, Mr Henderson made the following statement:
“At the conclusion of my examination, Nghia had no problem, at all, moving a very heavy examination couch, in my room, which was (?) mounted on a heavy steel track, with his 1½ hands!”
32	Mr Henderson stated that, in relation to the plaintiff’s work capacity:
“Obviously, Nghia does still have a significant capacity for useful employment with his original (just over 9 years, now) employer; but in my opinion, it is possible that Nghia might have some difficulty seeking carpenter/manual duties employment on the open market; because of the limitations to what he can do, exactly, with his now substantially maimed dominant side (previously) right hand.”
33	Mr Henderson went on to make the calculations under the AMA Guides for an impairment assessment which is not directly relevant to the findings I have to make in this case.
34	Mr Henderson’s findings on the plaintiff’s loss of strength in the plaintiff’s right hand is at the extreme level when compared with the other medical examiners for the plaintiff.  I note, also, that Mr Henderson went on to find impairments to the plaintiff’s wrist and neck as a result of this work injury.  The plaintiff makes no complaint about an injury to his wrist or neck. 
Mr Louis Luu
35	Mr Luu prepared a report dated 31 August 2015 for the Accident Compensation Conciliation Service.  Mr Luu diagnosed the complainant as suffering from a comminuted intraarticular fracture of the right finger distal phalanx with flexor tender avulsion.  Mr Luu stated that the injury was a result of the plaintiff’s employment with the employer.  
36	Mr Luu’s opinion was that the plaintiff had a current capacity for pre-injury work.  He noted that the plaintiff was taking Panadol Osteo and Tramadol when required for analgesic relief.
37	Mr Luu’s report was directed at the dispute over weekly payments in August 2015.  It is a report which is outdated at the time of the considerations for the Serious Injury Application by the plaintiff.
Dr Malcolm Brown 
38	Dr Malcolm Brown is an occupational physician.  He prepared two reports, both dated 31 July 2015.  Dr Brown’s reports were prepared for the purposes of the dispute over the plaintiff’s weekly payment entitlements.
39	Dr Brown gave his conclusions as to the plaintiff’s condition as follows:
“Mr Dang suffered a fractured right fourth finger and this has been treated surgically.  However he still complains of pain and stiffness, and there is no movement in the distal joint. This causes continuing functional incapacity.”
40	Dr Brown noted that the plaintiff had returned to work on normal hours doing his pre-injury duties.
41	I note that, again, Dr Brown’s report is more than four-and-a-half years out of date and is of limited assistance in the determination of the serious injury application at this time.
The Defendant’s doctors
Mr John Buntine, plastic and hand surgeon
42	Mr John Buntine prepared a report on behalf of the defendant’s insurers  dated 2 September 2016.  The purpose of Mr Buntine’s assessment of the plaintiff was to determine the impairment under the AMA Guides.  In his report, Mr Buntine made the following statements:
“The Hospital's operation report of 16.02.2015 described GAMP (general anaesthesia and manipulation) and fixation with two crossed Kirschner wires of a FDP (flexor digitorum profundus), avulsion fracture and of a bony mallet fracture of the base of the distal phalanx of the right ring finger after which he was to leave hospital the same day.”
43	Mr Buntine took a history from the plaintiff that he was troubled by his right ring finger while he was at work, but he copes with his work.  Mr Dang stated that he was slower working than before the injury.  Mr Dang gave an example that he had difficulty undoing a clamp which had been holding timber.  Mr Buntine then went on to do some measurements in respect to the plaintiff’s handgrip.  Mr Buntine’s findings were as follows:
“However, the maximum measured grip demonstrated with the right hand was 10 kg compared with 30 kg with the left hand and yet, at 18 cm proximal to the flexor creases of the wrists, the circumference of both forearms was the same - 26 cm.”
44	Mr Buntine noted that the plaintiff was at that time taking Panadeine Forte once or twice a week because of his pain to the right ring finger, but takes no milder analgesia.
45	Mr Buntine’s opinion was as follows:
“… Diagnoses 
 Ankylosis in mild flexion following a comminuted fracture at the base of the distal phalanx of the right ring finger and subluxation of the distal interphalangeal joint. Mild persisting stiffness of the more proximal joints of the finger.
 … Prognosis
 The prognosis is for minimal change to occur apart from very slow lessening of discomforts affecting the right ring finger over several years.”
46	Mr Buntine then went on to say:
“The presentation was typical of the workplace incident described and I identified no barrier which influenced the injury although Mr Dang did not demonstrate the full strength of his right hand grip at the time of my physical examination.”
47	It is clear from the report of Mr Buntine that he formed the opinion that the plaintiff was not fully attempting to display an accurate assessment of his right-hand grip strength.
The Medical Panel
48	The defendant tendered a Certificate of Opinion from the Medical Panel which handed down an Opinion on 22 February 2018.  The Medical Panel was comprised of Mr Damian Ireland, orthopaedic surgeon, and Associate Professor Peter Gibbons, a musculoskeletal physician.  In the Medical Panel Reasons for Opinion, it was noted:
“The worker told the Panel that prior to an incident of injury on 3 February 2015 he had not sustained any prior injuries to his right ring finger and had not sought medical attention, at any time, for any pre-existing problem with his right ring finger.”
49	I note that the plaintiff had attended general practitioner, Dr Nguyen, for an injury to his right hand and fingers which occurred in January 2015, some three weeks prior to the work accident.  The Medical Panel made the following observations after an examination of the plaintiff:
“… Any residual scarring does not interfere with his activities of daily living with the worker telling the Panel that he can manage all of his activities of daily living although he modifies the way in which he undertakes some tasks.
 … There was minor swelling over the dorsum of the distal interphalangeal joint of the ring finger with mild radial deviation at the DIP joint but measuring less than 10°. There was no rotational deformity … Assessment of the active ranges of motion demonstrated ankylosis at the DIP joint and restricted active range of motion at the proximal interphalangeal joint of the right ring finger … Assessment of sensation identified normal two point discrimination in the right ring finger … The Panel undertook an assessment of grip strength using a Jamar dynamometer and noted there to be a slight reduction in grip strength that did not corelate (sic) with greater right forearm bulk on formal measurement.
 … The Panel noted … x-rays dated 1 November 2016 showed advanced post traumatic osteoarthritic change in the distal interphalangeal joint.
 …
 The Panel concluded that the worker is suffering from residual dysfunction of the right ring finger following a comminuted fracture of the terminal phalanx of the right ring finger treated operatively but complicated by post traumatic degenerative change, relevant to the accepted right ring finger injury.”
50	The Panel’s final position in respect to the plaintiff’s injury to his right ring finger is as follows:
“Notwithstanding the worker’s complaints of reduced functioning of the right ring finger, and the Panel’s findings of ankylosis at the DIP joint, reduced motion at the PIP joint and mild radial digit deviation, the Panel is of the opinion that there is useful function of the right hand, ring finger of the right hand, and of all joints of the ring finger of the right hand. The Panel considers useful function to include evidence of regular use, no atrophy or loss of bulk, adequate function of the right ring finger and preserved digit length, to assist in fine movements, strength and grip functioning of the right ring finger and of the right hand, for the worker to adequately perform the activities of self-care.”
51	It is clear from the Medical Panel’s assessment that, in the opinion of the Panel, the consequential loss to the plaintiff as a result of the injury to his right ring finger is not very significant.
Consequences relied upon by the Plaintiff in his serious injury application
52	The Plaintiff relied upon three affidavits sworn by him on 2 April 2019, 3 March 2020 and 11 March 2020.  The plaintiff also relied upon an affidavit of his sister, Ms Dung Thi Dang, sworn 10 May 2019.  In his affidavits, the plaintiff set out the consequences of the right-ring-finger injury in respect of his living circumstances.
Sleep
53	In his first affidavit, the plaintiff stated that the pain wakes him most nights.  In his second affidavit, the plaintiff stated that, at night, “the pain in my finger continues to wake me”.  In his evidence, the plaintiff did not elaborate on the impact of the right-ring-finger injury on his sleep.  In his affidavit material, the plaintiff links the sleep interruption to his experience of pain from the right ring finger.  
Pain
54	The plaintiff, in his affidavits, states that he experienced pain in his right ringer finger in the following circumstances:
•	washing his hair
•	pain wakes him at night
•	pins and needles in the whole finger
•	reduced cooking ability
•	pain when drumming.
55	In his second affidavit, the plaintiff sets out when he experiences pain from his right ring finger as follows:
•	avoids chopping meat and vegetables
•	last played drums in mid-2009
•	whilst washing hair or tying laces
•	eats with a spoon because unable to eat with chopsticks due to pain
•	cannot open jars of tomatoes because of lack of grip strength
•	wakes at night and takes Panadol
•	slow in dressing
•	no gardening duties
•	difficulty with intimate relations with his new wife
•	handshake causes pain.
56	I have noted all of the complaints of pain made by the plaintiff and the circumstances in which he experiences the pain.  In assessing the effective pain experienced by the plaintiff on him, I have to take into account the whole of the circumstances surrounding his stated experience of pain.  I note, in particular, that in terms of pain medication, the plaintiff now only takes Panadol approximately twice a week, and two tablets at a time.  I note that the plaintiff continues to work on a full-time capacity and is engaged in the installation of furniture and, in particular, benchtops to the internal parts of caravans.  The plaintiff has continued in that employment since the middle of 2015.  The medical assessments which I have previously referred to state that the plaintiff can perform all of the tasks that he says causes him pain.
57	I conclude that in the range of pain experienced by people with other impairments, that the pain levels for the plaintiff does not reach the level of “at least very considerable”.
Medications
58	I have previously referred to the medication regime for the plaintiff in respect of his pain treatment.  The plaintiff has given a wide range of histories to doctors about his pain-relief medication.  In his history to Mr Buntine, he stated he was taking Panadeine Forte twice a week.  In his history to Dr Brown, he said the plaintiff stated he was taking Panadeine intermittently.  In his history to Mr Henderson, the plaintiff stated he was taking Panadeine Osteo, 665 milligrams, three times daily, and Panadeine, three times a day.  In his history to the Medical Panel, he stated he was taking Panadol.
59	In his evidence, the plaintiff stated he was taking Panadol twice a week, two tablets at a time.
60	I do not accept that the ingestion of Panadol tablets twice a week, two tablets at a time, amounts to a “very considerable” consequence in the range of possible consequences for medication to ameliorate pain.
61	The plaintiff stated in his evidence that he was having no ongoing treatment.  
Lack of mobility
62	The plaintiff, in the course of his evidence, showed his capacity to make a fist and/or bend his ring finger on the right hand.  It is clear that the plaintiff has a fixed joint at the tip of his right ring finger; however, the plaintiff was unable to close his fist with some level of protuberance of the right ring finger.  It is clear from the medical assessors that the plaintiff does use his hand in a reasonably forced sense, and the lack of mobility in the last joint on his right ring finger is not a considerable consequence.  I find that the plaintiff’s loss of grip strength is far less than he has demonstrated to Mr Henderson or the other medical examiners.
The activities of daily living
63	The plaintiff stated to the Medical Panel, when it examined him in February 2018, that he could manage all the activities of daily living, although he modified the way in which he undertakes some tasks.  In particular, an example is that the plaintiff was unable to use chopsticks in order to eat.  The plaintiff, instead, used a spoon.  Mr Morrow, on behalf of the plaintiff, submitted that this loss of ability to use chopsticks was a major cultural problem for the plaintiff in circumstances where he was eating with fellow Vietnamese people.  I do not accept that the plaintiff’s inability to manage chopsticks with his right hand amounts to a very considerable consequence in circumstances where he can feed himself by using a spoon.
64	The plaintiff also complained about not being able to perform his musical playing of the drums.  He stated that the drumming action caused him pain in his right hand.  In his evidence, the plaintiff stated that he did not play the drums for a year.  He also agreed in his evidence that he had played the drums in the middle of 2019 and that was the last occasion he played the drums.  It is unclear from the plaintiff’s evidence when he completely ceased to play the drums.  I do not accept that the plaintiff’s inability to play the drums amounts to a “very considerable” consequence in the context of his life.  The evidence was that, at best, he was playing on four to six occasions at family functions or celebrations with friends.  He did not give evidence that he no longer attended those functions while the remainder of the band played, and hence I do not accept his statement that he is missing out on playing the drums to the extent he gave evidence about.
Tying a tie
65	The plaintiff stated he had great difficulty tying a tie.  It became clear during the course of his evidence that the plaintiff wore a tie four to five times to six times per year.  The plaintiff had given evidence via his affidavit that a friend tied the tie for him.  I do not accept that the inability to tie a tie amounts to a very considerable consequence.  
Conclusion
66	The medical evidence tendered on behalf of the plaintiff in support of his application for serious injury is very outdated.  There is a conformity of opinions that the plaintiff suffers from a fixed interphalangeal joint on the right ring finger as a result of the injury at work.  The plaintiff has been able to continue with his employment on a full-time basis with the employer, performing the pre-injury duties for over four-and-a-half years since his return to work.  There was no evidence to indicate that the plaintiff had any sick days or inability to continue at his work during that time.
67	In relation to the consequences set out in the plaintiff’s affidavit and then in his evidence to the Court in this application, I find that none of those consequences, either individually or collectively, amount to very considerable consequences as required by the Act.  I accept that such limitations as described by the plaintiff would be inconvenient, and on occasion annoying to him.
68	I dismiss the application for serious injury for pain and suffering arising from the injury to the plaintiff’s right ring finger in the course of his employment on 3 February 2015. 
Cost Order 
69	I order that the plaintiff pay the defendant’s costs of this application.  The costs are to be assessed by the Costs Court in default of agreement.
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