Anderson v Victoria University
[2012] VCC 1749
•21 November 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY
Case No. CI-11-03988
| MARGARET ANDERSON | Plaintiff |
| v | |
| VICTORIA UNIVERSITY (ABN 1234444J) | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 November 2012 | |
DATE OF JUDGMENT: | 21 November 2012 | |
CASE MAY BE CITED AS: | Anderson v Victoria University | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1749 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – nerve injury to right wrist – whether consequences “very considerable”
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69
Judgment: Leave to the plaintiff to bring proceedings at common law for pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B G Anderson | Shine Lawyers |
| For the Defendant | Ms J M Forbes | Minter Ellison |
HIS HONOUR:
Preliminary
1 The plaintiff suffered injury to her right hand and wrist over the period 2007 to 2008 when working as a data entry operator for the defendant. She had surgery on two occasions for a condition diagnosed as de Quervain’s tendonitis to the right wrist. As a result of surgery, she developed a nerve problem to the wrist and hand area. She claims that as a result, she suffers regular pain to the area, particularly upon movement or physical contact, and a range of domestic and recreational activities are significantly affected.
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of the plaintiff’s employment over the period 2007 and 2008. The body function said to be lost or impaired is the right upper limb, in particular, the right hand and wrist.
3 The application is thus brought under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act and leave is sought in respect of pain and suffering only.
4 The plaintiff was the only witness called to give evidence and be cross-examined. In addition, affidavits of the plaintiff and her husband, and medical reports were tendered into evidence. I have read all the tendered material.
5 I shall not refer to all of this material in the course of this judgment but rather to those reports and opinions which appear to me to be of most relevance in determining the issues in dispute. I shall not refer to all of the evidence of the plaintiff but rather those parts of her evidence which I have relied upon in coming to the conclusions referred to later in this judgment.
6 The statutory scheme set forth in the Act which prescribes and regulates applications of this nature is well known, and it is unnecessary for me to revisit the various relevant sections.
Relevant Background
7 The plaintiff was born in September 1953 and is now fifty-nine years of age. She is married with two adult children. She was educated to the equivalent of Year 11 and left school at age seventeen. Aside from a period between 1976 and 1984 when she looked after her two children, she has worked consistently in various areas of employment, including in a typing pool, manager of a cinema centre, and in various other clerical and administrative jobs. She commenced work for the defendant in 1998. She filled various roles, and in 2004, worked in the Student Systems and Reporting Department. Her role was to enter data into a computer, and she described the work as repetitive and demanding.
8 In July 2006, she was promoted to Senior Student Service Centre Officer and her role again included data input and some customer service. Approximately 80 per cent of her work was data entry.
9 In August 2006, she was diagnosed with breast cancer and was under active treatment until May 2007. She had considerable time away from work in the course of this treatment.
The Injury and its Consequences
10 She commenced to experience pain in her right wrist and hand in late 2007. She found it difficult to cope with the demands of the data entry. The pain commenced in her wrist and spread up her arm to her elbow and neck. She ascribed the pain to poor posture of her working conditions due to inadequate seating and desks. She reported the matter to her supervisor in March 2008 and went to see her general practitioner, Dr Kapadia, who certified her as unfit for work. In the meantime, from January 2008, she received physiotherapy treatment from Mr David Horvath. This physiotherapy treatment has continued through to the present time. Dr Kapadia prescribed anti-inflammatory medication.
11 In 2008 and 2009, the plaintiff was treated by Dr David Middleton, occupational health consultant, who assisted in the plaintiff’s return to work program.[1] He also arranged an ultrasound of the plaintiff’s right elbow which indicated tendonitis.
[1]Defendant’s Court Book (“DCB”) 8 and following
12 Dr Kapadia referred the plaintiff to Mr Anthony Berger, hand surgeon, in July 2008. He diagnosed right-sided de Quervain’s tendonitis in the wrist. On 4 September 2008, he performed surgery to release the tendons of the first dorsal compartment. He said the superficial branch of the radial nerve was identified and protected. He said that the plaintiff’s recovery was complicated by pain and numbness with paresthesia along the branch of the radial nerve. As a result, a further surgical exploration was performed on 24 October 2008. He said no cause for the ongoing nerve pain could be seen. He examined the plaintiff on 4 December 2008 when she was still complaining of numbness and pain over the thumb area. He said there was a positive “Tinel’s sign” which indicated an ongoing nerve problem. He referred the plaintiff for further hand therapy. He last saw the plaintiff in January 2009 and noted she was on medication for the hyperaesthesia which he said was improving her discomfort. He noted numbness in the radial aspect of her hand but the hand was mobilising well. He told the plaintiff that the symptoms would gradually settle as the nerves recovered. He concluded:
“This surgery was complicated by a neuropraxia to the superficial branch of the radial nerve which is slowly resolving. Mrs Anderson is left with a temporary impairment due to the pain and hyperaesthesia caused by the nerve irritation, however, I suspect that this will gradually resolve over a 6 to 12 month period. I do not believe Mrs Anderson will be left with any permanent impairment at this stage”.[2]
[2]Plaintiff’s Court Book (“PCB”) 26
13 In January 2009, the plaintiff returned to work four hours per day, three days per week. She resumed work on her data entry duties. In March 2009, she took a voluntary redundancy package from the defendant as she feared the university campus was about to close. From that time through to the present, she has worked in full-time employment with a range of employers as a customer services officer, administration data entry operator and as an operations clerk.
14 In March 2011, she commenced work with Austrac as a data entry officer. She was able to undertake that work but required regular breaks, each of 25 minutes or so. In March 2012, her employment duties changed. She became a Contact Centre Officer and dealt with client enquiries over the telephone. This put much less pressure on her right wrist. She has maintained full-time employment in that role through to the present.
15 She has not returned to see Mr Berger, or any other hand surgeon for treatment since January 2009. She no longer sees her general practitioner for treatment but she still attends Mr Horvath, the physiotherapist, about once every three weeks. From his report, he describes that he treats her not only for right wrist manipulation but also for musculoligamentous problems with her neck and back. In July 2012, Dr Kapadia prescribed Lyrica medication but this has not yet been approved by the insurer. She takes Advil, an over-the-counter medication for pain, most days of the week, although there are days when she does not take any medication.
16 According to her affidavit sworn 9 October 2012,[3] at present, she suffers ongoing pain in her right wrist and arm. If the arm is stationary, she does not experience any pain. She said that the use of her hand that requires strength or movement brings about immediate pain. The pain commences on the area of her scar on the inner side of her right wrist and goes to the thumb and index finger. The pain gets worse with increased activity. She said that if she knocked the wrist then the pain was severe. She also gets pins and needles in the area. She described the pain as excruciating.
[3]PCB 11-14
17 In addition, she said that she gets pins and needles in the wrist during the night, which causes her to wake. She suffers a loss of strength in the right hand which makes gripping things difficult. She cannot lift anything heavy. It hurts to hold a pen. She cannot write for any length of time. Her domestic activities around the house have been reduced and it is difficult for her to do the heavier duties such as vacuuming, sweeping or mopping. She still cooks, but with restrictions. Her husband has helped her with these various domestic activities since her episode of breast cancer in 2006 and 2007. Putting on clothes and any use of the right hand which requires force is difficult.
18 She has been a long suffering and passionate member of the Melbourne Football Club. She has assisted in the preparation of the weekly banner through which the players run at the start of each game. She goes to all of the Melbourne Football Club matches, both in Melbourne and interstate. On Wednesdays, she and others prepare the banner. She used to be able to use scissors to cut paper to be used in the banner but is now restricted to less demanding activities, such as tracing, using a template. On match days she assists in holding the banner with other supporters and largely uses her left hand. On occasions when it is windy, she also uses her right hand.
19 She has also developed pain and restriction in her left wrist. The symptoms in that area are now as bad or worse as they were in the right wrist around the time of surgery.
20 The claims of the plaintiff as to pain and restriction are supported by an affidavit of her husband.[4]
[4]PCB 16-18
Expert Medical Evidence
21 The plaintiff was examined by Mr Damian Ireland, specialist hand surgeon, in 2011 and 2012. In the most recent report, the plaintiff complained of episodic pain in the right wrist with normal activities, such as doing up a bra and after ten minutes’ work with a computer mouse. The pain was in the area of the surgical scars. The plaintiff told Mr Ireland that the pain settled when her wrist was relieved from the provoking action. She also complained of extreme tenderness over the scar if it was knocked, causing an electric-like shock, with pain radiating into her thumb, index and middle fingers.
22 Mr Ireland noted the plaintiff as an intelligent person with no tendency to exaggerate. Testing revealed an indication of a neurological rather than a tendon problem. He diagnosed the plaintiff as suffering a neuroma or scarring of the dorsal radial sensory nerve. He said that the de Quervain’s tenosynovitis had largely resolved. He thought the plaintiff would benefit from further treatment in the nature of further surgical exploration with a view to neurolysis of the affected nerve. He concluded as follows:
“Mrs Anderson is a stoic individual who experiences pain in her right wrist on a daily basis with the normal activities of daily living. She copes with this as the pain is transient and remits immediately on relieving the wrist and thumb from the provoking position. Mrs Anderson was not able to recall any specific function she has lost since the onset of symptoms in 2008 but notes difficulty with most activities”.[5]
[5]PCB 44
23 The plaintiff was examined at the request of her solicitors by Dr Peter Blombery, vascular physician, in March 2011. He noted her complaints of pain along the distribution of the superficial branch of the radial nerve of the right wrist. She complained of sensitivity to touch over the scarring, with very little pain at rest. The plaintiff said she had pain in gripping objects and her domestic activities, including using a pen and shopping, were restricted. She further said she could not vacuum, mop or put out the washing. She had difficulty cleaning. Upon examination, he noted marked brush allodynia in the distribution of the superficial branch of the radial nerve. Notwithstanding the surgery, he said the plaintiff had been left with ongoing pain and dysaesthesia over the affected area. He described this as ongoing neuropathic pain along the superficial branch of the radial nerve which had been irritated in the course of surgery. Given it had been two years since the injury, he did not think that the plaintiff’s condition would change in the foreseeable future.
24 The plaintiff was examined by Mr Owen Deacon, orthopaedic surgeon, in August 2012. On examination of the plaintiff’s right wrist, he noted tenderness upon the scar. He also found there was some irritation of the branches of the radial nerve in the course of earlier surgery which had left the plaintiff with ongoing pain and dysaesthesia around the affected area. He concluded that the plaintiff’s strength in the right wrist had decreased and that she was unable to perform a range of activities, both domestic and work-related, with her dominant right hand. He suggested lifting the restriction of two kilograms and that the plaintiff ought not undertake any repetitive work with the right hand.
25 A vocational assessment report from Evidex was provided.[6] I did not find this report of any significant assistance as it was directed mainly to the plaintiff’s economic loss.
[6]PCB49
26 On behalf of the defendant, the plaintiff was examined by Mr David Elder, consultant in occupational medicine, in July 2010. His report is of little assistance as it is an assessment under the relevant provisions of the AMA Guides.
Conclusions
27 I had the opportunity to assess the plaintiff in the course of examination and cross-examination. I found her a disarmingly frank and honest witness. She made free concessions about matters which were not in her interest. She was described by medical practitioners as an intelligent person, not showing any signs of exaggeration. I accept without reservation her complaints of pain and restriction in the course of her evidence, and as referred to in her affidavits.
28 There is little difference between the parties as to the nature and diagnosis of the plaintiff’s right wrist and hand condition. She suffered de Quervain’s tendonitis as a result of the repetitive activities in the course of her employment. That condition was the subject of two operative procedures in 2008. As a result of those procedures, there was some irritation to, or affect upon, the superficial branch of the radial nerve passing through the right wrist area. As a result, the plaintiff has suffered, and continues to suffer, what Mr Ireland described as a neuroma or scarring of the dorsal radial sensory nerve of the right wrist. There is no issue between the parties that the injury is work-related. The original presenting injury, de Quervain’s tendonitis, has largely resolved.
29 The real issue to be considered is the nature and extent of the consequences which flow from the current condition and whether those consequences meet the “very considerable” test as the legislation requires.
30 On behalf of the defendant, Ms Forbes submitted that it was important to focus not only upon the effect upon the plaintiff’s domestic, recreational and work-related activities, but also upon those same activities which the plaintiff has been able to retain. She emphasised that the plaintiff had been in full-time employment through to the present time and until March of this year, in data entry work. She submitted that the plaintiff’s condition required little in the way of treatment or medication. She no longer sees any specialist surgeon, has very limited treatment from her general practitioner. The physiotherapy treatment addressed not only her right wrist but other musculoligamentous problems. The plaintiff’s medication was modest and included only over-the-counter pain-relieving medication.
31 Ms Forbes described the plaintiff’s pain as intermittent and that it did not occur when the hand was stationary. Even when in pain, it ceased once the provocative activity was withdrawn.
32 She noted the report of the treating surgeon, Mr Berger, who described the plaintiff’s condition as one of “discomfort” which, when he saw her in January 2009, was still improving. He predicted that the condition would resile gradually over six to twelve months.
33 Ms Forbes said it was significant that the plaintiff had been able to maintain her interest in the Melbourne Football Club. Although there was some restriction in her activities, she still participated in the preparation of banners on Wednesdays, and attended each football match, including holding the banner with guy ropes, which require some force and strength, particularly on windy days.
34 In relation to the plaintiff’s domestic activities, they had been shared with her husband since her episode of breast cancer and it was not a situation where there was a very substantial change in those activities by reason of her injury.
35 Ms Forbes noted there was no medical evidence to indicate that the more recent problems with her left wrist arose as a result of her right wrist injury, or any increased activities in the right wrist. As such, the left wrist injury was of no relevance.
36 Taking all of the matters into consideration, Ms Forbes submitted that the consequences to the plaintiff did not reach the “very considerable” level.
37 I assessed the plaintiff as a particularly stoical person, and, as has been said in the authorities, such a person should not be regarded less favourably than another who, with less strength of character, resigned themselves to injury.[7]
[7]Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260 at paragraph 3 – see further Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph 47
38 The most significant consequence to the plaintiff is that she suffers daily ongoing pain in the area of the right wrist, extending into the thumb and forefinger. While generally the pain is not present when the wrist and hand are at rest, she suffers pain every day, particularly where there is any forceful movement of the hand required. On occasions, she described that when the area of the scar was knocked, the pain was exquisite. In addition, she suffers pins and needles in the area, in particular at night. Although the plaintiff receives little in the way of treatment for the condition, save with some physiotherapy and occasional medication, in my view, that is more a reflection of her stoicism rather than any lack of symptoms. She said further in the course of her evidence that any form of medical treatment required the payment of some funds, and she and her husband were limited in what they could spend.
39 Many of the points made by Ms Forbes are correct. The plaintiff has retained many of the activities she enjoyed before injury, including in relation to her employment and involvement in the Melbourne Football Club. However, pain on an ongoing daily basis such as was described by the plaintiff is debilitating. Almost every activity of daily living requires the use of the hands. I accept her evidence that the pain is regular, and often exquisite, although some relief is provided when she withdraws from any provoking activity.
40 In addition, there are some activities in which she cannot participate, she has lost grip strength in the right hand and many of the domestic activities she would normally undertake have been taken from her or restricted. Despite the early predictions of Mr Berger that the nerve problem would resolve, that has not been the case. I accept the opinion of Dr Blombery that, given the time that has now passed, there is no realistic prospect of improvement in the foreseeable future.
41 In all these circumstances, I am satisfied that the consequences to the plaintiff of her injury do reach the “very considerable” level.
42 I shall make consequent orders.
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