Akbari v Adecco Industrial Pty Ltd
[2014] VCC 1601
•26 September 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-03911
| ASSEM AKBARI | Plaintiff |
| v | |
| ADECCO INDUSTRIAL PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 August 2014 | |
DATE OF JUDGMENT: | 26 September 2014 | |
CASE MAY BE CITED AS: | Akbari v Adecco Industrial Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1601 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the right wrist and hand – pain and suffering only – whether consequences are “serious”
Legislation Cited: Accident Compensation Act 1985, s134AB(37)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242
Judgment: Leave granted to the plaintiff to bring proceedings for damages for pain and suffering in respect to injury to the right wrist and hand suffered during the course of his employment with the defendant on or about 1 December 2010.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | P A Johnstone | Shine Lawyers Pty Ltd |
| For the Defendant | C O’Sullivan | Lander & Rogers |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”) for injury suffered by him on or about 1 December 2010, when employed by the defendant, when his right wrist and forearm was crushed in the roller of a printing machine.
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.
4 There, “serious” is defined as meaning:
“(a)permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is the plaintiff’s right wrist and hand.
6 The plaintiff relied upon six affidavits, three sworn by him on 12 March 2013, 24 February and 5 August 2014, one sworn by his wife, Sughra Akbari, on 22 July 2014, and two sworn by work colleagues, Ben Kortlang and Danny Mai, on 23 July 2014. The plaintiff was cross-examined. I have not summarised the affidavits and evidence of the plaintiff and the evidence of the other witnesses. However, I will refer to the relevant evidence of the plaintiff and the other witnesses in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant Legal Principles
7 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[1]
[1]Section 134AB(19)(a) of the Act
8 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a) “the injury” suffered by him arose out of, or in the course of, or due to the nature of, his employment with the defendant;[2]
[2]Section 134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
(b) “the injury”, with its resulting impairment, must be permanent, in the sense that it is likely to continue into the foreseeable future;[3]
(c) “the consequences” to the plaintiff of his impairment to the right wrist and hand in relation to “pain and suffering” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked and as being at least very considerable”.[4]
[3]Barwon Spinners (supra) at paragraph [33]
[4]Section 134AB(38)(b) and (c)
9 Consequently, the Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
10 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[5]
“The emphasis in s134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. …”[6]
[5][2009] VSCA 181
[6](supra) at paragraph [42]
11 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent, by what has been retained.”[7]
[7]Stijepic v One Force Group Aust Pty Ltd (supra) at paragraph [44]
12 The test for “serious”, as set out in paragraphs (b) and (c) of s134AB(38) of the Act, is sometimes referred to as the “narrative test”.
13 In determining the application, the Court:
(a) must not take into account psychological or psychiatric consequences for the purposes of paragraph (a) of the definition of “serious injury” ― these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[8]
(b)must make the assessment of “serious injury” at the time the application is heard;[9]
(c)notes that it has been observed that the question of whether an injury satisfies the narrative test is largely a question of impression and value judgment.[10]
[8]Section 134AB(38)(h)
[9]Section 134AB(38)(j) of the Act
[10]See Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
The issue
14 Counsel for the defendant informed the Court that there were two issues. Firstly, whether there is an identifiable ongoing injury to the right wrist or arm. If yes, secondly, whether the physical consequences of such injury are more than significant or marked and are at least very considerable when judged by comparison with other cases in the range or possible impairments or losses of body function.
Investigations
15 On 1 December 2010, an x-ray of the right wrist showed no carpal, metacarpal or phalangeal fractures identified in the right hand. There was marked soft tissue swelling over the dorsum of the metacarpals. The wrist joint was normal.
16 On 31 July 2014, an MRI scan of the right wrist showed:
“No significant pathology seen.”
The Plaintiff’s medical evidence
Mr Stephen Tham
17 On 20 October 2011, Mr Tham, hand surgeon, confirmed that he examined the plaintiff in December 2010 following a crush injury to his right hand, which occurred on 30 November 2010 when the plaintiff’s right hand was entrapped in a roller for approximately 10 seconds. Mr Tham reported that the plaintiff’s right hand was quite swollen, extending from the level of his wrist to his fingers. There was a restricted range of wrist extension to approximately 30 degrees and flexion to 60 degrees. There was almost full active extension and flexion of his fingers. Intrinsic stress failed to elicit any symptoms of pain which may suggest compartment syndrome. His intrinsic compartments were mildly tight. His sensibility was normal. There was mild discomfort over the third metacarpal phalangeal joints.
18 Mr Tham said the plaintiff suffered with a significant soft tissue injury of his right hand from the entrapment, without evidence of compartment syndrome or underlying bony damage. He treated the injury conservatively and referred the plaintiff to a hand therapist for oedema control and range of motion exercises. He reviewed the plaintiff on several occasions; improvement in the plaintiff’s finger range of motion continued. The plaintiff was discharged on 8 April 2011. Mr Tham delayed the plaintiff’s return to work, as the plaintiff stated there were no light duties available. The plaintiff returned on 27 September 2011, complaining of pain over the dorsum of his right wrist following his return to work.
19 Mr Tham said that despite a period of intensive hand therapy, the plaintiff’s progress had been slow with ongoing pain, which was soft tissue in nature.
Ms Diane Hedin
20 In May 2012, Ms Hedin, occupational and hand therapist, reported that she treated the plaintiff following an injury at work where his right dominant hand was crushed between rollers. When seen in March 2011, the following measurements were recorded:
·wrist flexion ― right, 45; left, 90;
·wrist extension ― right, 50; left, 60;
·gross grip ― right, 24 kilograms; left, 46 kilograms.
21 Ms Hedin said the pain in the plaintiff’s wrist affected his ability to carry out resisted work such as carrying weights or handling tools requiring force or a strong grasp.
Dr Peter Pereira
22 Dr Pereira, general practitioner, confirmed that he treated the plaintiff between 22 March and 14 October 2011 for his work-related injury. It was his view the plaintiff suffered a crush injury to the right hand/wrist with subsequent changes of reflex sympathetic dystrophy. Dr Pereira said, on examination, there was a slight decrease in flexion of the right wrist and some changes of reflex sympathetic dystrophy. The plaintiff was advised to commence and try light duties.
The Sandringham Hospital
23 In December 2010, Dr Abel, emergency resident at the Sandringham Hospital, confirmed the plaintiff attended Emergency on 1 December 2010 with a crush injury to his right hand and forearm. He was advised to see his general practitioner in one to two days for review.
Mr Murray Stapleton
24 Mr Stapleton, plastic and hand surgeon, examined the plaintiff at the request of the plaintiff’s solicitors in July 2012 and April 2014. In July 2012, Mr Stapleton said the plaintiff suffered a soft tissue injury and ligamentous damage consequent upon a crushing injury at work. The condition was consistent with the stated cause. Employment was the significant contributing factor to his injury, and the plaintiff was suffering an incapacity for work by reason of his injury. He said the plaintiff had a capacity for work, but he should avoid repetitive activities with severe gripping. He said the plaintiff should not pursue work as a labourer. Mr Stapleton noted that the plaintiff was keen to be an electronics apprentice. He said the plaintiff could not return to previous employment and that his injury had a profound effect on the activities of daily living. He confirmed the plaintiff required no further treatment.
25 In April 2014, upon examination, Mr Stapleton recorded right wrist movements as follows:
2014 2012 Flexion 30 degrees 30 degrees Extension 70 degrees 70 degrees Radial deviation 15 degrees 15 degrees Ulnar deviation 10 degrees 15 degrees
26 Mr Stapleton said that he suspected the plaintiff had a serious injury within the right wrist, which could only be assessed by an MRI scan or a wrist arthroscopy. He said the plaintiff was suffering from an incapacity for work as a result of his injury and that he was incapacitated for pre-injury employment. He imposed a restriction that the plaintiff should not be required to perform anything repetitive with his right hand. Pushing, pulling and lifting would be difficult. He doubted whether he could safely, without discomfort, lift weights in excess of 1 kilogram.
Dr Peter Blombery
27 Dr Blombery, vascular disease surgeon, examined the plaintiff at the request of the plaintiff’s solicitors in September 2012 and May 2014. Dr Blombery said the plaintiff suffered a non-specific Pain Syndrome where there is sensitisation of pain nerve pathways, both in the periphery as well as in the brain and spinal cord, such that non-painful stimuli become interpreted by the cerebral cortex as being painful. He said this is an organic disorder of pain nerve pathways. He noted the plaintiff had an area of numbness over the dorsum of the hand and wrist in the distribution of the superficial branch of the radial nerve. He said the nature of the plaintiff’s injury was a Pain Syndrome and injury to the superficial branch of the radial nerve. The injury was caused by his employment, which was a significant contributing factor to the injury. He said the plaintiff cannot use his dominant right hand in doing heavy, repetitive tasks. He said the plaintiff could no longer perform manual type jobs which required heavy use of the right hand, which is work he had done in the past. He said the plaintiff could not return to his previous employment. He said the plaintiff could perform light duties which do not involve heavy or repetitive use of the right arm. He said the plaintiff required retraining and appeared to be well motivated.
28 In 2012, Dr Blombery recorded the plaintiff’s grip strength on the right at 15 kilograms and on the left at 36 kilograms. In 2014, he recorded the plaintiff’s grip strength on the right at 18 kilograms and on the left at 44 kilograms.
29 In May 2014, Dr Blombery said the plaintiff had made some degree of recovery from his injury, but still had ongoing pain which he defined as a Pain Syndrome. He thought the plaintiff’s prognosis was poor and that the plaintiff would be left with a significant disability affecting his dominant right arm. He could not perform his previous heavy duties.
30 In August 2014, Dr Blombery reported on the MRI scan of the right wrist performed in July 2014. He said the results do not change his previous opinion. The plaintiff’s problems relate to the crush injury which resulted in a Pain Syndrome. It is not possible for an MRI scan to demonstrate sensitised pain nerve pathways or, indeed, to demonstrate pain nerves at all. He further said that the MRI scan excluded there being significant reversal pathology in the wrist which could be making a contribution to his ongoing pain. In the absence of such pathology, all of the plaintiff’s pain is caused by sensitised pain nerves which makes it more difficult to reverse the process.
Dr Helen Sutcliffe
31 In July 2014, Dr Sutcliffe, occupational physician, examined the plaintiff at the request of the plaintiff’s solicitors. On examination, she reported, of the right wrist, there was 30 degrees of dorsiflexion, 60 degrees of palmar flexion and 15 degrees of both radial deviation and ulnar deviation. Using a Jamar dynamometer, the hand grip was 22 kilograms on the right and 40 kilograms on the left. The circumference of the forearms was 26 centimetres on the right and 27 centimetres in an equivalent position on the left.
32 Dr Sutcliffe said the plaintiff had a good response to hand therapy treatment with increased range of movement. As at July 2014, the plaintiff continues with persisting pain, an area of numbness, weakness in the right hand and limitation of capacity for use of the right hand in all activities of daily living and in employment. She expected that the plaintiff will suffer pain into the foreseeable future and he will continue with incapacity, despite further treatment.
33 Dr Sutcliffe diagnosed persisting pain related to a crush injury with nociceptive pain as a result of continuing musculoligamentous injury, together with some element of neuropathic pain. She said the plaintiff had sustained an area of numbness consistent with injury to a branch of the radial nerve. His injuries have been materially contributed to by his employment.
34 Dr Sutcliffe said the plaintiff had no capacity to perform pre-injury duties, which is permanent. She said the plaintiff was restricted in the following activities:
·undertaking prolonged driving;
·lifting in excess of 5 kilograms on a repetitive basis;
·repetitive gripping and/or actions requiring the extremes of flexion and extension;
·repetitive tasks involving the right hand;
·washing of dishes as required in an occupation; and
·prolonged typing at a keyboard using the right hand.
35 Dr Sutcliffe said the restrictions would continue into the foreseeable future. Further, she said he had no capacity to undertake rapid movements of the right hand and had limited capacity for movement of the right wrist.
36 Dr Sutcliffe said the plaintiff would be fit for selected duties as a Division 2 Nurse where his tasks are confined to provision of medication, undertaking reports and supervision of staff. He could not undertake work as a Division 2 Nurse in clinical bedside nursing in a major hospital or as required in clinical practices. He could undertake Division 2 Nurse work in education, in selected occupations such as some aspects of community nursing, medication nursing and niche Division 2 Nurse work, such as Research Nurse, Vaccination Nurse and Education Nurse.
37 On 15 August 2014, Dr Sutcliffe reported that she reviewed the MRI of wrist report dated 1 July 2014 and the report of Dr Blombery dated 13 August 2014. She confirmed no change to the opinions expressed in her earlier report of July 2014.
Mr Peter Battlay
38 In February 2012, Mr Battlay, orthopaedic surgeon, examined the plaintiff for the purposes of an impairment assessment at the request of the defendant’s insurer. On examination, Mr Battlay found that wrist movements were restricted according to the impairment assessment chart. When assessed with a dynamometer, he had an accurately reproducible 44-kilogram force with the left hand and an accurately reproducible 22-kilogram force with the right hand. He concluded the plaintiff sustained a compression injury to his forearm and wrist. There was stabilised permanent impairment resulting from the work injury. He concluded the plaintiff suffered a 25 per cent upper extremity impairment, which is equivalent to a 15 per cent impairment of the whole person.
Mr Peter Scott
39 In July 2014, Mr Scott, surgeon, examined the plaintiff at the request of the defendant’s insurer in relation to a right shoulder rotator cuff lesion. It was his opinion that the plaintiff’s right shoulder problem had resolved without any evidence of any ongoing work-related symptomatology.
Dr Gary Davison
40 In July 2014, Dr Davison, occupational physician, examined the plaintiff at the request of the defendant’s solicitors in respect to the right shoulder and right hand. Dr Davison said the right shoulder condition had fully resolved.
41 In respect to the right wrist, Dr Davison reported the range of active movement of the right wrist measured with a goniometer was flexion, 60 degrees, and extension, 35 degrees. This compared with the left wrist flexion, 100 degrees, and extension, 60 degrees. Radial and ulnar deviation was equal right and left. Grip strength on the right was 26 kilograms, and on the left, it was 40 kilograms, measured using a dynamometer. He said there were persisting symptoms and that maximum medical improvement had occurred. He said the plaintiff had a capacity for suitable employment subject to the following physical restrictions:
·avoid forceful and/or repetitive gripping, pulling or pushing with the right upper limb;
·avoid manual handling greater than 10 kilograms in force or weight using both hands.
The Defendant’s medical evidence
Dr Andrew Miller
42 In April 2011, Dr Miller, occupational health consultant, examined the plaintiff at the request of the defendant’s insurer. Dr Miller said the underlying pathology appears to be extensive contusions and possible cutaneous nerve damage to the right wrist. His employment materially contributed to the injury and his ongoing disability. He expected further improvement with stabilisation of the injury and little, if any, residual disability from the injury. He imposed restrictions on the plaintiff’s work in April 2011 of:
·avoid lifting in excess of 5 kilograms;
·avoid highly repetitive, dextrous or forceful use of the right hand;
·avoid prolonged firm gripping with the right hand; and
·avoid movements of the right wrist beyond a comfortable range.
Dr David Barton
43 In September 2012, Dr Barton, consultant occupational physician, examined the plaintiff at the request of the defendant’s insurer in respect to a subsequent injury to his right shoulder in May 2012 when he was employed by Fusion Workforce Pty Ltd. The plaintiff reported improvement, but was concerned with symptoms that tended to occur with exercise, namely, pain around the top and within the right shoulder blade, and mild pain present all the time. The pain tends to get worse with exercises, in particular push-ups. He reported a minor limitation of right shoulder movement. Dr Barton said the plaintiff had some mild muscular discomfort in the early stages, but it was difficult to identify a cause for his ongoing problems. He accepted the initial symptoms were work-related. He could not see any reason why the plaintiff could not graduate back through lighter duties to normal work. He believed that physically, the work-related component had resolved.
Dr Gary Davison
44 In August 2014, Dr Davison reported to the defendant’s solicitors in respect to the MRI scan performed on 31 July 2014. It was his view that the MRI scan was essentially normal and did not offer any further explanation in respect of possible structural cause to the plaintiff’s symptoms. He said there was indirect evidence (forearm girth measurements) to suggest that the plaintiff has been undertaking regular use of the affected limb. He said the diagnosis of a Pain Syndrome relies on the truthfulness of the plaintiff, as there are no clinical signs of an organic lesion.
Mr Murray Stapleton
45 In August 2014, Mr Stapleton reported to the plaintiff’s solicitor concerning the MRI scan performed in July 2014. As the MRI scan showed no injury or abnormality of the right wrist, he was at a loss to explain the plaintiff’s difficulty. Mr Stapleton said he required information to determine what the plaintiff can lift, push and pull and what his genuine capacities for work might be.
46 In a further letter dated 12 August 2014, Mr Stapleton said the plaintiff did not have a Complex Regional Pain Syndrome and he was unable to say whether the plaintiff was genuine or not. He did not know what Dr Davison meant when he diagnosed “a persisting regional pain syndrome”.
The Plaintiff’s credit
47 The plaintiff answered questions directly. He made concessions in cross-examination. He impressed me as being keen to work, having a good work ethic, and anxious to provide for his family. At times he was difficult to understand, but I accept that was due to English being his second language.
48 Counsel for the defendant conceded that the plaintiff’s credit was largely intact, but submitted there were certain parts of his evidence which I should have difficulty accepting. For example, the plaintiff did not refer to his shoulder injury in his affidavits and did not report it to the doctors he saw. The plaintiff’s explanation for not disclosing the shoulder injury to his solicitors was he thought the solicitors would think he was a ‘sook’ having two injuries. Further, the shoulder injury was temporary and the pain went away after a couple of weeks. He was concerned that if employers knew about his shoulder injury he would never get work. I accept the plaintiff’s explanation. It has a ring of truth about it.
Analysis of the evidence
49 It was accepted by all medical witnesses that the plaintiff suffered an injury at work. It was variously described as:
·a significant soft tissue injury of his right hand from the entrapment without evidence of compartment syndrome or underlying bony damage,[11]
·soft tissue and ligamentous damage consequent upon a crushing injury, [12]
·a crush injury to his right hand and forearm.[13]
[11]Mr Tham and Mr Miller
[12]Mr Stapleton
[13]Dr Sutcliffe
50 A number of the medical witnesses said the plaintiff has been left with ongoing pain in the nature of a non-specific Pain Syndrome where there is sensitisation of pain nerve pathways, both in the periphery as well as in the brain and spinal cord (Pain Syndrome and injury to the superficial branch of the radial nerve),[14] which is an organic disorder.[15] Dr Blombery said the injury was an organic disorder of pain and nerve pathways. Mr Battlay said the plaintiff sustained a post-traumatic weakness of the flexor muscles and post-traumatic capsular contracture of the wrist. Mr Battlay formed the view that the plaintiff had a 15 per cent whole-person impairment.
[14]Dr Blombery, Dr Sutcliffe, Dr Davison
[15]Dr Blombery
51 Counsel for the defendant submitted that what was in issue was the identification of an organic ongoing injury.
52 Counsel for the defendant referred to the MRI scan of the right wrist performed in July 2014 which concluded there was no significant pathology seen. This was consistent with x‑rays of the right wrist performed in December 2010.
53 I must make the assessment at the time of hearing the application. Accordingly, I place greater weight on the most up-to-date medical evidence of Mr Stapleton, Dr Davison, Dr Sutcliffe and Dr Blombery.
54 The only medical witnesses to review the MRI scan of July 2014 were Mr Stapleton, Dr Davison, Dr Sutcliffe and Dr Blombery.
55 Mr Stapleton and Dr Davison accepted that the MRI report was essentially normal. Mr Stapleton said, as the MRI showed no injury or abnormality of the right wrist, he was at a loss to explain the plaintiff’s difficulty. He said the plaintiff complained of pain, he was uncertain whether the plaintiff was genuine or not. Dr Davison said the MRI was essentially normal and did not offer any further explanation in respect of a possible structural cause to the plaintiff’s symptoms.
56 Despite the MRI report, Dr Blombery, Dr Sutcliffe and Dr Davison all diagnosed the plaintiff as suffering from a Pain Syndrome. They each attached further commentary to their respective diagnoses of a Pain Syndrome. I will examine each in turn.
57 In August 2014, after viewing the MRI report, Dr Stapleton raised the possibility that the plaintiff was not genuine. However, earlier in May 2014, Mr Stapleton had accepted that the plaintiff was genuine. Further, Mr Stapleton indicated that it was for others to comment on the plaintiff’s genuineness. Also, he indicated in his report on 4 August 2014 that further information was required regarding the plaintiff’s grip strength and push/pull capacity.
58 Dr Davison said the diagnosis of a Regional Pain Syndrome relied on the truthfulness of the plaintiff. However, Dr Davison was unable to determine whether or not the plaintiff gave a good account of himself. Dr Davison commented on the indirect evidence of the plaintiff’s forearm girth measurements to suggest the plaintiff is using the affected limb. I place greater weight on the measurements of flexion, extension and grip strength when viewed in the context of the recent medical reports, and my findings as to the plaintiff’s credit.
59 Overall, none of the medical witnesses were prepared to confirm that the plaintiff was not genuine. Accordingly, in reviewing the comments of both Mr Stapleton and Dr Davison regarding the genuineness of the plaintiff, I turn to the other evidence.
60 Dr Blombery gave the diagnosis of a Pain Syndrome. He said it is not possible for an MRI scan to demonstrate sensitised pain nerve pathways or to demonstrate pain nerves at all. No doctor suggested the possibility that the plaintiff was not genuine until after the results of the latest MRI scan. However, I accept Dr Blombery’s comments about the usefulness of the MRI scan with respect to this particular plaintiff. Dr Blombery was supported by Dr Sutcliffe. In May 2014, Dr Blombery said the plaintiff made some degree of recovery but has ongoing pain. He said the plaintiff’s prognosis was poor and that the plaintiff would be left with a significant disability affecting his dominant right wrist and hand.
61 Further, those medical witnesses who measured the plaintiff’s grip strength of the right wrist recorded consistently lower grip to that of the left wrist – almost 50 per cent lower. Given the plaintiff is right-hand dominant, that is significant.
62 In addition, medical witnesses measured flexion and extension since the injury, with the result that the plaintiff has an ongoing physical restriction in the movement in the right wrist. The measurements of the flexion and extension suggest there has been improvement which was consistent with the plaintiff’s evidence; however, the measurements do not suggest resolution. I accept the objective clinical findings indicate that the plaintiff has an ongoing physical restriction in the right wrist.
63 Given the evidence of Dr Blombery, Dr Sutcliffe and Dr Davison, I accept the injury is a non-specific Pain Syndrome where there is sensitisation of pain nerve pathways, which Dr Blombery said is an organic injury.
64 It was not suggested by any medical witness that the plaintiff was suffering a non-organic injury, or that there was a mixture of an organic or non-organic injury.
65 Notably, there was no surveillance of the plaintiff in respect to the right wrist. I was informed that the defendant conducted surveillance in respect to the shoulder injury.
66 I accept that the plaintiff was genuine in respect to his complaints about the pain he suffered.
67 The issue is whether the consequences satisfy the statutory test.
Pain
68 The plaintiff’s evidence is that he suffers constant ongoing pain that varies with activity and work. He reported to Dr Sutcliffe the pain was present at an intensity of four to nine on a visual analogue scale of zero to ten and he described tight pain at the wrist. He reported to Dr Blombery that there had been slight improvement in his right arm. He still had pain in the hand but this was less severe than it had been previously. The pain was present with the use of the hand and was present in the wrist and base of the palm but there was little pain present at rest.
69 The plaintiff reported to Dr Sutcliffe that the pain did not wake him at night but he had some waking pain. The pain increases with activity and he noticed increased swelling in the forearm with waking. He reported increased pain with childcare of his two-and-a-half-year-old daughter.
70 The plaintiff’s evidence to the Court was he suffers a pinching feeling near the wrist which is present all the time. It is low level and he is able to put up with it. If he applies force through his right hand wrist or if he bends his wrist back or down near the extremes of movement, he experiences a very sharp pain within his hand below the little finger. The pain comes on if he is forced to make a fist, if his hand is squeezed when shaking hands or doing something like turning a door knob or any pushing and pulling action which applies force through his wrist.
71 Dr Blombery, Dr Sutcliffe and Dr Davison said the pain will continue into the foreseeable future. Dr Blombery said the prognosis for recovery is poor; the plaintiff is going to be left with a significant disability affecting his dominant right arm in the future.
72 I accept that pain is a consequence which I can take into account.
73 The plaintiff reported to Dr Blombery that he took Panadol for pain at a dose of two to six daily. He reported taking medication of Panadol to Dr Sutcliffe, and paracetamol to Dr Davison as necessary, up to twice per day. Dr Blombery said the plaintiff will require the ongoing use of analgesic medication into the future.
74 The plaintiff’s evidence was that he tries to avoid taking medication as he has never been one for taking tablets.
75 I accept that the level of medication the plaintiff takes is at the low end of the scale; however, I take into account the fact that the plaintiff has been reluctant to take medication in the past.
76 The evidence is that the plaintiff was treated in the Emergency Department of the Sandringham Hospital and was under the care of Mr Stephan Tham. He was treated conservatively and referred to a hand therapist, Ms Diane Hedin. He attended Dr Peter Pereira, general practitioner, whom he last saw in October 2011. I accept that the level of treatment was at the low end of the scale; however, I note that no medical witness suggested that any further medical treatment was necessary or appropriate.
Work
77 The plaintiff’s evidence was that the work he has performed since arriving in Australia has largely been manual work and that the work he performed at the time of the injury was physical work. After the injury, he returned to work on light duties; however, there were no light duties, and within two weeks he was back to normal duties, which he found difficult. His workmates performed the heavy work for him. This was confirmed by an employee, Ben Kortlang.[16] He had little choice but to continue to work to support his wife and child. In September 2011, his work was terminated by his employer.
[16]PCB 27, paragraph 4
78 The plaintiff’s evidence was that in December 2011, he undertook a six-month course, an Advanced Diploma in Electronics at Chisholm TAFE. The course was paid for through Centrelink. He has applied for between ten to fifteen positions in electronics without success. The plaintiff’s evidence was that during the electronics course he was required to perform tasks such as tightening screws with a screwdriver and using pliers. He found this very difficult using his right hand. He was not sure how he would cope with such work.
79 The plaintiff found employment for two weeks with a company that made pumps for swimming pools. He was employed as an injection moulder. He was unsure how he would have coped if the job went for any longer. Part of the job was light work, but he had difficulty lifting 25-kilogram bags. He would use his left hand to scoop the pellets into the machine.
80 The plaintiff was employed at a bakery for about three days. This involved lifting heavy trays of hot cross buns which he struggled to do.
81 He then obtained employment with the same pool company for approximately one-and-a-half months as a casual labourer.
82 He obtained a labouring job for approximately two weeks, lifting heavy metal panels at JELD-WEN. He had difficulty managing because of his right hand problems. He lifted small pieces of glass weighing approximately 5 kilograms, alternating with his left and right hand. He injured his right shoulder when he was asked to lift a long metal panel, a tool to clean the furnace, approximately 5 or 6 metres in length. He lifted it with his left hand and placed his right forearm underneath. He had time off work for the right shoulder, and his work was subsequently terminated.
83 The plaintiff’s evidence was that he obtained a Certificate III in Aged Care in October 2013. He did a placement for six months at an aged care facility but has not been able to obtain employment in the area. The plaintiff’s evidence was he found aspects of the work difficult. For example, assisting the elderly with getting up off a chair or bed, he would apply force through his right wrist. He observed a Division 2 Nurse working at the aged care facility and formed the belief that he might be able to obtain a qualification and work as a Division 2 Nurse. He has applied to Chisholm TAFE at Berwick to undertake training as a Division 2 Nurse. He is awaiting approval.
84 The medical evidence was that the plaintiff was unfit for pre-injury work, but could perform suitable work.
85 Dr Blombery said the plaintiff was incapacitated now and in the foreseeable future for his pre-injury employment. He imposed restrictions of avoiding prolonged driving, lifting in excess of 5 kilograms or 10 kilograms on a repetitive basis, repetitive gripping and/or actions requiring extremes of flexion and extension and performance of repetitive tasks with his right hand.
86 Dr Sutcliffe said the plaintiff was permanently incapacitated for his pre-injury duties. She said the plaintiff had no capacity to undertake prolonged driving. She imposed restrictions of not lifting in excess of 5 kilograms and 10 kilograms on a repetitive basis; avoiding repetitive gripping and/or actions requiring the extremes of flexion and extension; avoiding repetitive tasks with his right hand without onset of further pain, which results in a disabling loss of function. She said he has no capacity to undertake rapid movements of the right hand and has limited capacity for movement of the right wrist. He cannot perform any occupation where he is required to support his weight using the right hand or to reach overhead to perform activity with his right hand. She said the restrictions are permanent.
87 She considered the plaintiff’s desire to commence a Division 2 nursing course at Berwick. She believed he was fit for selective duties as a Division 2 Nurse where tasks are confined to provision of medication, undertaking reports and supervision of staff. She said he would not be able to undertake work in clinical bedside nursing in a major hospital. He could not undertake general Division 2 Nurse work as required in clinical practices. He could perform Division 2 Nurse work in education, in selected occupations such as some aspects of community nursing, medication nursing in some areas, and some niche Division 2 Nurse work such as Research Nurse, Vaccination Nurse and Education Nurse, particularly in the community using his language skills.
88 Dr Davison said the plaintiff had a capacity for suitable work subject to the following restrictions:
·avoid forceful and/or repetitive griping, pulling or pushing with the right upper limb; and
·avoid manual handling greater than 10 kilograms in force or weight using both hands.
89 Mr Stapleton said the plaintiff had a capacity for work but imposed restrictions of no repetitive activities with severe gripping. He said he could not return to his previous employment. In April 2014, he said pushing, pulling and lifting would be difficult for the plaintiff, and he doubted whether he could safely, without discomfort, lift weights in excess of 1 kilogram.
90 I accept the medical evidence is that the plaintiff cannot return to pre-injury work which was physical work. The plaintiff can perform suitable work with the abovementioned restrictions. This is a significant consequence which I can take into account, particularly given the plaintiff is thirty years of age. I accept the plaintiff has attempted to retrain, but to date has not obtained suitable work.
91 The plaintiff’s evidence is that he has done a business management course through ASAP Direct. He has entered into a non-binding arrangement with a friend to purchase a business involving making and selling pizzas and kebabs. The plaintiff’s evidence is that he has no business experience in making pizzas or kebabs. His friend already possesses the required share of the money for the business. The plaintiff is trying to raise money by selling his car and accessing his superannuation. Whether the plaintiff is able to raise the funds to purchase the business and is able to do the physical work involved in a pizza shop is unknown.
92 I accept that it is to the plaintiff’s credit that he is attempting to obtain some form of employment.
Sporting activities
93 The plaintiff’s evidence was he was a very fit and active individual. He was passionate about playing cricket and would often play cricket at the local park on weekends with friends. He was a good bowler. As a result of his injury, he is unable to bowl and this is something he misses.
94 The plaintiff’s evidence was that he worked out at the gym. He had a membership at Genesis in Dandenong and would regularly attend up to four days per week. He has not been able to resume his gym work. He can only manage very light weights now and has put on weight in the vicinity of 7 to 8 kilograms. He can no longer perform push-ups and lift heavy weights. He had a mini gym at home which he also used. He has had to sell the gym equipment as it is no longer of any use to him.
95 In cross-examination, the plaintiff told the Court that he did not like walking on the treadmill; he found that boring.
96 I accept that as a consequence of his injury the plaintiff has been restricted in his sporting activities. I accept that is a significant consequence which I can take into account.
Domestic duties
97 The plaintiff’s evidence was that he is restricted in what he can do to assist his wife and their daughter. His wife has a medical condition. He tried to help with the vacuuming but finds he has to constantly change to his left hand because using the vacuum with the right hand becomes too painful. He has difficulty cooking; even simple tasks such as cutting through a watermelon can be difficult because of the right-hand pain. He reported difficulty mowing the lawns to one of the doctors he saw.
98 The plaintiff’s evidence was supported by the evidence of his wife. Her evidence was that she usually wheels out the rubbish bins and the plaintiff will wheel them back when they have been emptied. Her husband assists her with grocery shopping, but she is required to lift the heavier items and place them on the conveyor belt. He now only does small things to help her, whereas prior to the injury, he was very involved in domestic tasks around the house.
99 The plaintiff’s evidence was that he became frustrated by the fact that he is not able to hold onto his child in his right hand for any prolonged period. He wonders how he will cope as his daughter gets older and heavier. His wife’s evidence was the plaintiff found it difficult to lift his daughter because of the pain in his right wrist and hand. He is still unable to lift his daughter without experiencing pain.
100 The plaintiff’s evidence was in October 2012, his father died and he, his wife and daughter returned to Pakistan. He had difficulty lifting and carrying luggage. He also had difficulty carrying his daughter. When he had to lift the luggage onto the scanner, his wife would have to assist him. He found this very embarrassing. I accept that these are consequences which I can take into account.
101 The reality is none of the medical witnesses suggested that the plaintiff is exaggerating his symptoms. The plaintiff presented in Court as genuine.
102 I am entitled to consider the significance of what has been lost by the plaintiff due to his injury, as well as what has been retained.[17] All of the medical witnesses agree the plaintiff cannot return to his pre-injury employment. I accept the evidence shows the plaintiff was keen to return to work, and made repeated efforts to do so. I accept the plaintiff has retained an enthusiasm for work, which does not translate into a capacity.
[17]Stijepic v One Force Group Aust Pty Ltd (supra) per Ashley JA and Beach AJA at paragraph [44]
103 Taking all the evidence into account, I am satisfied it is fair to describe the pain and suffering consequences of the plaintiff’s right wrist and hand as being “more than significant or marked and properly regarded as very considerable” when judged by comparison with other cases in the range. In reaching that conclusion, I have made a comparison with other cases in the range of possible impairments. No element of the mental component is taken into account in this assessment. Indeed, the mental element is required to be excluded by s134AB(38)(h) of the Act. I am satisfied that the right wrist injury is permanent, given the evidence from all medical witnesses. The plaintiff therefore satisfies the narrative test for pain and suffering.
104 In such circumstances, the plaintiff’s application seeking leave to bring proceedings for damages for pain and suffering in respect to the right wrist and hand is successful.
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