Ahee v Victorian WorkCover Authority
[2020] VCC 1107
•29 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-06184
| ARVIND SINGH AHEE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 July 2020 (via Zoom hearing) | |
DATE OF JUDGMENT: | 29 July 2020 | |
CASE MAY BE CITED AS: | Ahee v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1107 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the left upper limb – leave sought for pain and suffering
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325
Cases Cited:Johns v Oaktech Pty Ltd [2020] VSCA 10; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Meadows v Lichmore Pty Ltd [2013] VSCA 201
Judgment: Leave granted to the plaintiff to bring common law proceedings for “pain and suffering” for an injury to the left upper limb suffered by plaintiff in the course of his employment on or about May 2016.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie QC with Ms S C Bailey | Arnold Thomas & Becker |
| For the Defendant | Mr C S O’Sullivan | Wisewould Mahony |
HIS HONOUR:
1 The plaintiff, Arvind Ahee, was born in India in 1988 but has lived in Australia since 2007. He has qualifications in hospitality and commercial cooking, as well as a Certificate II in Business. He has had various employments since living in Australia. His English language skills are good. He is right hand dominant.
2 In September 2014, the plaintiff commenced employment with Aldi Foods Pty Ltd (“Aldi”), and worked for Aldi in various supermarkets. In the course of his work with Aldi, and in particular, as a consequence of moving pallets, from approximately May 2016, he developed symptoms in his left thumb, hand and upper limb.
3 In August 2016, the plaintiff attended a general practitioner in Point Cook, and a diagnosis of de Quervain’s tenosynovitis was made.[1] He was then referred for physiotherapy and on to the hand surgeon, Mr James Thomas.[2] The diagnosis was confirmed and surgery recommended. On 12 May 2017, the plaintiff underwent a left de Quervain’s release and tenosynovectomy, which was performed as day surgery by Mr Thomas.
[1]Plaintiff’s Court Book (“PCB”) 12
[2]PCB 18
4 Subsequent to the surgery, the plaintiff continued to have symptoms in his left upper limb. By July 2017, Mr Mathew Foreman, physiotherapist, found clinical signs of swelling, discolouration and hyperalgesia post the wrist surgery and that the plaintiff was positive for the diagnosis of Complex Regional Pain Syndrome.[3] Mr Foreman recommended Mr Ahee be referred to pain physician, Dr Malcolm Ong.
[3]PCB 23
5 The plaintiff was referred to Dr Ong and has had considerable treatment with him, including referral to a multidisciplinary pain management program, which the plaintiff undertook between July and September 2018.[4]
[4]PCB 54
6 Despite the surgery, conservative treatment and a pain management program, the plaintiff reports ongoing symptoms in his left upper limb.
7 The plaintiff was unable to return to his pre-injury employment at Aldi, and that employment was eventually terminated in March 2018. He has been able to obtain alternate employment and is currently employed full time in an administrative role with Host-Plus Pty Limited.
8 The plaintiff claims that his ongoing pain and restriction for day-to-day activity are such so as to produce a very considerable pain and suffering consequence to him.
The application
9 This is a “serious injury” application in respect to a workplace injury. The principles in respect to such an application are well known and were not in dispute in the running of this application. The plaintiff alleges that he has suffered a “permanent serious impairment or loss of a body function”, namely injury to the left upper limb. He relies on the organic injury, and seeks leave to commence a common law proceeding for pain and suffering damages.
10 The main issues to be decided in this application are:
· The nature and extent of the claimed injury suffered by the plaintiff
· Whether the impairment consequences are permanent
· Whether the impairment consequences are such so as to meet the test of “very considerable”.[5]
[5]Section 325, Workplace Injury Rehabilitation and Compensation Act 2013
Credit of the Plaintiff
11 The plaintiff was a credible witness. The defendant did not submit otherwise.
12 As has been said many times before, in cases of the present kind, the credit of the applicant will often be critically important.[6]
[6]Johns v Oaktech Pty Ltd [2020] VSCA 10 at paragraph [76]
13 Based on my observations of him while giving his evidence, the plaintiff impressed me as a thoroughly decent, honest and straightforward man. This is an important issue in the determination of this application, because the weight to be attached to the plaintiff’s account of his symptoms and pain experience will, of course, depend upon an assessment of his credit, in combination with the views expressed by the doctors.[7] Indeed, it is even more so in a gateway application where the parties do not call the doctors to give evidence.
[7]Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at paragraph [12]
What is the Plaintiff’s evidence of injury?
14 The plaintiff swore two affidavits. In the first affidavit sworn 1 August 2019, he gave evidence as to the onset of symptoms and the treatment he has had. He described ongoing symptoms affecting the left upper limb, including shooting pains up the forearm,[8] the frequency and intensity of which were usually dependent on physical activity or cold conditions. He gave evidence of constant pain in the left wrist area, worse sometimes than others, and again generally dependent on physical activity.[9] He described leading a full and happy lifestyle before the injury and that the injury had a huge impact on his lifestyle.[10]
[8]PCB 4, paragraph 9
[9]ibid
[10]PCB 5, paragraph 12
15 In the more recent affidavit sworn 10 July 2020, the plaintiff said that the symptoms in the left hand remain largely unchanged[11] and that he continued to suffer from constant pain in the left wrist as described.[12] He described the ongoing need for both prescription and over-the-counter medication.[13] In his oral evidence, he confirmed ongoing pain, described as 5 out of 10 at rest and 7 to 8 out of 10 with activity. He made an appropriate concession that 2018 was a bad year for him,[14] with his pain at its worst and he being out of work. He agreed that the pain management program had been beneficial to him and helped him with an understanding of his pain and to wean off some of the opioid medication. He gave evidence about his ongoing use of medication and Panadeine Forte medication one to two times per week when his pain is bad.[15]
[11]PCB 8, paragraph 4
[12]PCB 9, paragraphs 5-9
[13]PCB 10, paragraph 21
[14]Transcript (“T”) 8
[15]T11, Line (“L”) 24
16 As previously mentioned, I was impressed by the manner in which the plaintiff gave his evidence and I accept his evidence without hesitation.
17 Broadly speaking, the medical material confirms the initial onset of symptoms and diagnosis of de Quervain’s tenosynovitis, with the subsequent development of a Complex Regional Pain Syndrome. Those conditions are organically based.
18 Pausing, the defendant advanced a submission that the plaintiff had failed to disentangle the consequences of the organic injury from the non-organic consequences and so the application should fail because of the “disentangling” point. The plaintiff has had a perhaps understandable psychological response to his injury, surgery and failure to recover; however, the medical evidence reveals that there is a substantial organic basis to his injury and ongoing symptoms, including pain. Therefore, there is no need for any “disentangling” of the organic (physical) contributions to his symptoms from the non-organic (psychological) contributions.[16] Therefore, based on the evidence, I reject the defendant’s submission that the plaintiff has failed to disentangle the consequences of the organic injury from the non-organic (psychological) consequences.
[16]Meadows v Lichmore Pty Ltd [2013] VSCA 201 at paragraph [21]
19 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff at the request of the defendant and provided a report dated 21 November 2019. He found the plaintiff to be a “sensible and genuine historian”.[17] He opined that the plaintiff –
“… during the course of his work … sustained a soft tissue injury to his left wrist, … I accept that it is most likely that he developed … de Quervain’s tendovaginitis. … .”[18]
[17]Defendant’s Court Book (“DCB”) 95
[18]DCB 94
20 Further, Mr Dooley opined that:
“… Based on the available information, it is most likely that post surgery he developed CRPS. … .”[19]
[19]DCB 94
21 Mr Dooley noted that most patients with the plaintiff’s condition would note some intermittent wrist pain but would be able to lead a normal life.[20]
[20]DCB 95
22 Mr Damian Ireland, hand surgeon, examined the plaintiff at the request of the defendant and provided a report of 23 June 2020.[21] He diagnosed resolving Complex Regional Pain Syndrome following successful surgical treatment of left de Quervain’s tenosynovitis.[22] He considered the plaintiff to be “mildly symptomatic” and that there was “very little remaining objective physical evidence” of the diagnosis.
[21]DCB 97
[22]DCB 100
23 Mr Ireland opined that the plaintiff could not engage in work that required him to lift above shoulder level or lift weights with the left hand exceeding 10 kilograms. He opined that the plaintiff is not able to engage in any work that requires repetitious movements of the left non-dominant wrist; however, he further opined that he was of the belief that the “minor residual symptoms” would settle spontaneously within the next twelve months,[23] although he does not fully explain why he considered that would occur.
[23]DCB 101
24 The plaintiff relies on and provided a number of reports from the Dr Ong. The exact nature of Dr Ong’s medical qualifications are unclear from his reports, but he has treated the plaintiff in the capacity of a pain specialist. His reports are prolix and contain many findings that could not relate to the claimed left upper limb injury. Having said that, Dr Ong has had the benefit of numerous consultations with the plaintiff and referred him for the pain management program. He has made clinical observations of objective signs of Complex Regional Pain Syndrome. Dr Ong last examined the plaintiff in January 2020. In a report of 12 February 2020,[24] following that last examination, he opined that the plaintiff “suffers from chronic pain syndrome of left wrist and hand from de Quervain's tenosynovitis with inflammatory and myofascial conditions”.[25] He further described “CRPS left arm with neuropathic components”. Ultimately, he states that the plaintiff’s injuries are permanent and that “he needs to learn to live with his pain to some degree and manage his conditions”.[26] I note in passing that it does appear that the plaintiff has in fact to some degree learnt to live with his pain and manage his conditions.
[24]PCB 53
[25]PCB 58
[26]PCB 63
25 Mr Russell Miller, orthopaedic surgeon, examined the plaintiff at the request of his solicitors and has provided opinions regarding the plaintiff. In a report dated 9 June 2020,[27] Mr Miller confirms the diagnosis of de Quervain’s tenosynovitis and probable development of a Chronic Regional Pain Syndrome.[28] In that report, Mr Miller opined that the plaintiff would have difficulty with work that involves repetitive left arm actions and lifting of weights of more than 5 kilograms and difficulty with work that involves power and dexterous work. He states those restrictions are likely to be permanent.[29]
[27]PCB 88
[28]PCB 93
[29]PCB 94
26 In a further report of 17 July 2020, Mr Miller was asked to clarify his diagnosis and prognosis. He states that there are “organic and non-organic components to this injury” and that it was “difficult and not possible to fully disentangle those two components”. However, any “disentangling” that might arrive from those comments is dealt with by Mr Miller’s ultimate opinion that –
“To the extent that I am able to I have based the report on the organic component of the client’s injury.”[30]
[30]PCB 100
27 Dr Amanda Sillcock, occupational physician, has also provided a report. In her report of 5 June 2020,[31] Dr Sillcock confirms the diagnosis.[32] She confirms that –
“He has some restrictions on activities of daily living and social and recreational activities. … In particular, he can no longer do weights at the gym, he has trouble hanging out heavy washing and he cannot drive for long periods due to pain from holding the steering wheel.”[33]
[31]PCB 77
[32]PCB 81
[33]PCB 82
28 Dr Sillcock further opined that –
“CRPS is a poorly understood condition … I expect that his symptoms will continue for the foreseeable future.”[34]
[34]PCB 82
29 In determining this application, I am, of course, ultimately required to make a value judgment. Broadly speaking, the difference in the medical opinions may be summarised as a difference of emphasis as to the ongoing physical restrictions for lifting weights, repetitive movements and the like and whether the plaintiff’s condition is permanent. The defendant relies on the opinions from Dr Timothy Wood, sport and exercise medicine physician,[35] and Mr Ireland, to argue that the plaintiff’s condition is not “permanent”, because it has either already resolved, or will resolve within the next twelve months. On the other hand, Dr Ong, Dr Sillcock and Mr Miller opine that the plaintiff’s injury is continuing and will permanently be productive of ongoing symptoms and restrictions.
[35]DCB 61
Conclusion
30 I repeat that the plaintiff was an impressive and credible witness.
31 The medical evidence confirms that as a consequence of the repetitive nature of his work at Aldi, he developed de Quervain’s tenosynovitis, requiring surgery, with subsequent complication by way of Complex Regional Pain Syndrome.
32 I accept the affidavit and oral evidence of the plaintiff to conclude that he has had ongoing pain, symptoms and restriction since suffering the injury, notwithstanding the fact that he had some benefit from surgery. This is an important conclusion to the determination of this application given the divergence of tendered medical opinion regarding the plaintiff’s injury and the probable course of it. Having accepted the evidence of the plaintiff, I conclude that the injury is, in fact, permanent, in that his symptoms and restrictions are likely to last for the foreseeable future.
33 Bearing in mind that, despite undergoing surgery, the plaintiff has had ongoing pain and restrictions from injury for nearly four years, I prefer the medical opinions from Dr Ong, Dr Sillcock and Mr Miller, as those opinions are consistent with the plaintiff’s own account. In doing so, I am informed and persuaded by the plaintiff’s own evidence of his significant ongoing fluctuating pain and need for strong painkilling medication.
34 Mr Ireland accepted that the plaintiff, at present, has a restriction for lifting and repetitive movements. In the absence of a fulsome explanation as to why he believes such symptoms will spontaneously settle within the next twelve months, I do not accept his opinion, or the defendant’s submission based on it, that the condition is not permanent.
35 I am fortified in my ultimate conclusions by not only the medical opinions relied on by the plaintiff but also the opinion of Mr Dooley. As Mr Dooley states, most people, following surgery for de Quervain’s, would note some intermittent left wrist pain, which works against Mr Ireland’s opinion that there should be further spontaneous improvement and no symptoms. Of course, in the present case, the plaintiff has the added complication of the development of Complex Regional Pain Syndrome following such surgery.
36 I reject the defendant’s submission that the Complex Regional Pain Syndrome has “burnt out” or resolved. Professor Geoffrey Littlejohn, rheumatologist, in a report to the defendant dated 8 February 2018,[36] found ongoing clinical features of Complex Regional Pain Syndrome. The treating physiotherapist, Mr Mathew Foreman, in a report dated 20 April 2020,[37] having last treated the plaintiff in May 2019, noted that the objective signs of Complex Regional Pain Syndrome had improved and become less prominent and had not been seen by him during the last few consultations. Mr Foreman also noted (and seems to accept) the plaintiff’s own reporting of continuing symptoms of Complex Regional Pain Syndrome, including pain and discolouration,[38] and of course in his affidavit material, the plaintiff describes ongoing symptoms consistent with a Complex Regional Pain Syndrome such as swelling, colour change and the like.[39] This ongoing Complex Regional Pain Syndrome is an organic condition and a complication of the initial de Quervain’s tenosynovitis and surgery. The fact that it persists to this day takes the plaintiff out of the usual category of patients that Mr Dooley refers to, so that in addition to the expected ongoing symptoms from the de Quervain’s tenosynovitis, the plaintiff has the added complication of symptoms related to the Complex Regional Pain Syndrome.
[36]DCB 34
[37]PCB 65
[38]PCB 74
[39]PCB 9, paragraph 7
37 In summary, I conclude that the plaintiff developed de Quervain’s tenosynovitis in the course of his employment with Aldi, requiring surgery, and complication by way of ongoing Complex Regional Pain Syndrome. Those conditions are organically based. I further conclude that the plaintiff continues to suffer pain and symptoms associated with the injury and ongoing Complex Regional Pain Syndrome. Those symptoms and restrictions are as set out in his affidavit material but include significant ongoing pain, need for painkilling medication, interference with repetitive or physical activity involving the left upper limb and interference with a range of day-to-day activity such as typing, driving, sleep, physical work and the like. When all of those matters are taken into account, I conclude that the plaintiff has suffered “very considerable” pain and suffering consequences.
38 I grant leave to the plaintiff to commence a proceeding for pain and suffering damages in respect to injury to the left upper limb arising out of or in the course of his employment with Aldi.
39 I shall make consequential cost orders after hearing from the parties.
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