Argent v Tac
[2017] VCC 1881
•15 December 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-05593
| REBEKAH ARGENT | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 October 2017 | |
DATE OF JUDGMENT: | 15 December 2017 | |
CASE MAY BE CITED AS: | Argent v TAC | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1881 | |
REASONS FOR JUDGMENT
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Subject: Serious Injury Application
Catchwords: Application for leave to recover common law damages – injury to the left wrist – disentangling consequences of pre-existing and post-accident back condition/s – pain and suffering and pecuniary disadvantage consequence – reliability of the plaintiff’s evidence
Legislation Cited: Transport Accident Act 1986
Cases Cited:HumphriesvPoljak [1992] 2 VR 129; Richards v Wylie (2000) 1 VR 79; Transport Accident Commission v Kamel [2011] VSCA 110; Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67; Carbone v Toyota Motor Corporation Australia Ltd [2017] VSCA 249; Mazevskav Transport Accident Commission [2014] VSCA 178; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment: Plaintiff’s application for leave dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R. McGarvie QC with Ms S. Lean | Slater & Gordon |
| For the Defendant | Mr G. Lewis QC with Ms J. Clark | Transport Accident Commission |
HER HONOUR:
Introduction
1 The plaintiff, Rebekah Argent is a 33 year old single mother. During 2017, she relocated with her 10-year-old daughter to Queensland, where the plaintiff completed a course in traffic control. In July 2017, the plaintiff commenced permanent, part-time employment working 20 hours per week as a Level 1, Traffic Controller.
2 The plaintiff completed her formal education to year 12 level, albeit after an interval of some years between leaving school at 17 years of age, completing a Beauty Therapy Course and working in cosmetics at Myer.
3 The plaintiff was 22 years of age when her daughter was born. Following the birth of her daughter the plaintiff worked at Myer on a casual basis, until completion of a Certificate IV in Youth Work in about 2006. There followed some five years of employment with McKillop Family Services before, the plaintiff said, she obtained employment with Vista. This was full-time employment in Residential Care working as an Out of Home Care Team Leader. The starting package was $63,000 per annum.
4 On 23 March 2011, one month after commencing employment with Vista, the plaintiff suffered injury, when a vehicle driven by her collided with another vehicle that attempted to execute a right turn in front of the plaintiff’s vehicle (the transport accident).
5 As my discussion of the medical evidence shows in due course, injury sustained by the plaintiff in the transport accident likely involved injury to the left wrist, and likely also involved injury to at least the cervical spine, and possibly the lower back.
6 The plaintiff sought leave to commence common law proceedings under section 93(4)(d) of the Transport Accident Act 1986 (the Act) to recover damages for injury to the left wrist arising out of the transport accident.
7 Mr McGarvie QC and Ms Lean, both of counsel, appeared on behalf of the plaintiff. Mr Lewis QC and Ms Clark, both of counsel, appeared on behalf of the defendant, the Transport Accident Commission (TAC).
8 The plaintiff gave evidence. She was cross-examined. Affidavits sworn by the plaintiff on 19 August 2013 and 19 June 2017 respectively, were tendered subject to clarification of the evidence contained in paragraph 9 of the first affidavit, and to minor correction of the content of paragraph 20 of the first affidavit.
9 The plaintiff tendered extracts from the Plaintiff’s Court Book, comprising copies of: Ambulance Victoria Patient Care report; a report of Barwon Health; a report of MRI imaging of the left wrist, dated 17 June 2011; treating surgeon, Mr James Thomas’ report, operation report and clinical notes; clinical notes kept by the Endeavour Hills Medical Centre; and medical reports prepared by treating health professionals and medico-legal specialists.[1]
[1] Exhibit P1, Plaintiff’s Court Book (PCB).
10 The TAC tendered extracts from the Defendant’s Court Book comprising copies of: clinical records kept by the Beeliar Family Practice in Western Australia and by the Geelong City Medical Clinic; extracts from clinical records kept by treating general practitioner, Dr Lucy Ham; a further report from treating surgeon, Mr Thomas; reports prepared by medico-legal specialists; miscellaneous social media and internet material; and an Assessment of Fitness to Drive document.[2] The TAC also tendered a report from hand and orthopaedic specialist, Mr Chris Haw, contained in the Plaintiff’s Court Book.[3]
[2] Exhibit D1, Defendant's Court Book (DCB).
[3] Exhibit D2.
The application
11 Leave was sought under paragraph (a) of the definition of ‘serious injury’. Section 93(17)(a) of the Act defines ‘serious injury’ as: ‘serious long-term impairment or loss of a body function’. Serious injury is determined by considering the consequences of an injury-related impairment or loss of body function.
12 Under paragraph (a) the pain and suffering and pecuniary disadvantage consequence of impairment of the left wrist must be both long-term and serious to the plaintiff. The test is whether the consequences, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’ [4].
[4] HumphriesvPoljak [1992] 2 VR 129, 140.
13 The plaintiff was required to satisfy the Court that injury to her left wrist caused by the transport accident was serious as at the date of determination of her application for leave.
14 The plaintiff deposed she is right-handed in single tasks but left hand dominant in a number of tasks, including boxing, playing cricket, pool and golf.
15 The plaintiff alleged that impairment of her left wrist has:
· led to ongoing pain, discomfort, restriction of movement and of her ability to bear weight, and numbness, in the left wrist; and
· reduced the plaintiff’s capacity to perform a range of heavier domestic tasks, and to engage in various recreational and social activities; and
· caused pecuniary disadvantage because the plaintiff can no longer engage in her pre-accident employment, or full-time alternative employment, such as in a nursing career.
16 As to the pecuniary disadvantage component of the claim, in the first of two affidavits, the plaintiff deposed that, following the transport accident she remained off work until June 2012. The plaintiff then returned to work in beauty therapy. She was employed by the beauty salon, “Flash” (the salon), until this business closed at Easter 2013. This was said to be casual employment, for an average of 15 hours per week, with earnings of, “at best”, $300 per week.
17 In August 2013, the plaintiff’s sworn evidence was that she had not worked since the closure of the salon. The plaintiff further deposed: firstly, that, she was still capable of performing beauty therapy work but only on a part-time basis, as the plaintiff found that after four hours her wrist and neck became too painful; and, secondly, that her preference was to work full-time in her preferred occupation as a Youth Worker. The plaintiff was, nonetheless, hopeful of finding other part-time work as a beauty therapist.
18 At hearing, in further evidence-in-chief, the plaintiff corrected her August 2013 affidavit by stating that she had subsequently performed some work (“a little bit then”[5]) in beauty therapy from her home using her own ABN. However she could not recall whether this work had been performed before the swearing of her first affidavit in August 2013. The plaintiff’s evidence on this issue was unclear.
[5] Transcript (TN) 19.
19 Cross-examination of the plaintiff and documentary material produced by the TAC, nonetheless, satisfied me: firstly, that in addition to registering the business name “Impact Lash Tan & Wax” from April 2013[6], the plaintiff had likely continued to service clients of the by then closed salon, from either her or her boss’ home; and, secondly, that, when in August 2013 the plaintiff swore the first affidavit, whilst any plan to go into business with her former boss had not materialised, the plaintiff was still then attempting to establish her own beauty therapy business from home under her own ABN. I will say more about the plaintiff’s evidence regarding post-injury employment activity in due course.
[6] DCB 81.
20 As my discussion of the medical evidence reveals in due course, doctors have agreed that, as found by treating surgeon, Mr Thomas, the transport accident likely caused a small perforation of the scapholunate ligament. Most doctors have also accepted that the formation of a ganglion cyst, excised in July 2011, was likely secondary to traumatic injury sustained in the transport accident.
21 On 29 June 2017, the plaintiff’s medico-legal specialist, Consultant Physician, Dr Blomberry, diagnosed Complex Regional Pain Syndrome, Type 1 (CRPS Type 1) as a complication to injury to the scapholunate ligament and the ganglion cyst.[7] Among other things, Dr Blomberry opined that the plaintiff would require ongoing treatment for pain, including the use of anti-inflammatory medication and analgesics as required; and that impairment of the wrist precluded a return to her pre-accident employment, and significantly limited the type of employment the plaintiff would be able to undertake in the future.
[7] PCB 64-68.
22 The TAC’s medico-legal specialist, consultant orthopaedic surgeon, Mr Powell, opined in October 2017, that the plaintiff’s symptoms did not meet the accepted criteria for CRPS Type 1.[8] In his opinion the injury to the wrist was resolved.
[8] DCB 27-31.
23 Whilst the plaintiff did not also rely on psychiatric injury under section 93(17)(c) of the Act, she, nonetheless, sought to rely on dicta of the Court of Appeal in Richards v Wylie,[9] to the effect that evidence of a psychological sequelae in response to injury-related physical impairment, may be taken into account in assessing the seriousness of an impairment of a body function. As the Court of Appeal explained in Transport Accident Commission v Kamel,[10] the mental response to physical injury provides a guide to the overall seriousness and longevity of the impairment of, in this case, the plaintiff’s left wrist.
[9] [2000] 1 VR 79, [17].
[10] [2011] VSCA 110, [61]-[66] and [81].
24 In September 2016, the plaintiff’s medico-legal specialist, consultant psychiatrist, Dr Nathar, took a history of accident-related impairment of the neck and left wrist, and the development of significant depressive symptoms in the context of the plaintiff’s physical problems. As at the date of his examination, Dr Nathar opined that, whilst the plaintiff had recovered from a Major Depressive reaction, she was then suffering from a transport accident-related, mild post-traumatic anxiety state and car travel anxiety.[11]
[11] PCB 32-44.
25 Mr McGarvie submitted that the Major Depressive reaction had led to, among other things, the breakdown of the plaintiff’s relationship with her partner of six years in 2013 (“as her partner claimed that she had change (sic) into a different person”[12]).[13]
[12] Dr Nathar, PCB 35.
[13] TN 13 and 95-96.
26 In circumstances where the Major Depressive condition was resolved, without more, I could not be satisfied that this condition provided a basis for assessing the seriousness and longevity of any ongoing impairment of the left wrist by reference to Richards v Wylie, as at the date of hearing. This is not to deny that, consistent with the report made to the psychiatrist, the plaintiff’s psychological response to wrist and neck injuries was a cause of the breakdown of the plaintiff’s relationship with her partner of six years in 2013.
27 The TAC contested the application. Firstly, the TAC submitted that any residual symptoms of injury to the left wrist were not significant and, as Mr Lewis explained at the commencement of the hearing, the TAC viewed this as a “range case”.[14]
[14] TN 15-17.
28 Secondly, the TAC submitted that where, as in this case, impairment from different injuries (competing impairments) are concurrently producing pain and suffering consequences for the plaintiff, it was necessary to disentangle the consequences of each injury so as to determine whether any established consequences of the wrist injury met the test for serious injury.[15] The burden of disentangling the consequences of any unrelated injury or condition, which rested on the plaintiff,[16] had not, so the submission went, been discharged.
[15] See Peak Engineering Pty Ltd v McKenzie [2014] VSCA 67, [24] and [60].
[16] See Carbone v Toyota Motor Corporation Australia Limited [2017] VSCA 249.
29 In summary, in the application made under paragraph (a), the plaintiff was required to prove serious long-term impairment or loss of a body sustained in the transport accident. She was required to establish that, when considered globally, the consequences of injury to the left wrist caused by the transport accident could be fairly described at least as very considerable.
The wrist injury diagnosed and assessment and treatment to mid-2012
30 Following the transport accident, the plaintiff was conveyed by ambulance to the Geelong Hospital, where she remained overnight. The plaintiff was discharged into Outpatient Care the next day.
31 The report from Barwon Health dated 3 February 2016 tells us that on arrival at hospital the plaintiff complained of pain in the neck “against a background of known scoliosis and a previous history of chronic neck pain”, and of pain in the left wrist and hand.[17]
[17] PCB 22.
32 Radiological investigations obtained in March 2011, comprising CT and MRI scans of the cervical spine, and MRI scans of the left wrist did not reveal injury-related pathology in either the cervical spine or the wrist. On review in Outpatients on 28 March 2011, it was recommended that the plaintiff undergo ultrasound of the left thumb to investigate ongoing symptoms and the possibility of tendon damage in that digit. There is no record of the plaintiff undergoing this further investigation.
33 The plaintiff first attended her general practitioner, Dr Ham, at the Myers Family Medical Practice in Geelong, in the treatment of transport-accident related injury, on 4 April 2011. Dr Ham’s report was dated 15 August 2012.[18]
[18] PCB 16.
34 At hearing, under cross-examination, the plaintiff acknowledged pre-existing neck and back problems, as recorded in clinical notes kept by Dr Ham prior to the transport accident. Among other things, the plaintiff was recorded in February 2010 as having reported long-standing generalised back pain, hip and rib pain in the treatment of which the plaintiff attended an osteopath, and was prescribed the anti-inflammatory medication, Celebrex.[19]
[19] DCB 79-80.
35 Essentially, whilst the plaintiff also alleged transport accident related injury to the spine, the evidence of the various domestic, recreational, social and employment activities, in which she had engaged before the transport accident, helped to satisfy me that, irrespective of its cause, any earlier episode of back pain, such as that documented by the general practitioner in 2010, was likely temporary in its effect. I will revisit the evidence of transport accident related injury to the spine and the evidence as it relates to the extent to which, if any, impairment of the plaintiff’s spine impacts the plaintiff’s activities, in due course.
36 As was apparent from Dr Ham’s report in August 2012, when first seen in April 2011, the plaintiff’s main complaint had been of wrist pain in the treatment of which the plaintiff was referred to Jane Skeen, an Occupational Therapist specialising in hand and upper limb therapy.
37 The plaintiff underwent hand therapy in the period between 6 April 2011 and 8 October 2011 inclusive.[20] Despite some early improvement in her symptoms, by mid-May 2011 the therapist considered the pain and symptoms reported, were consistent with the presence of a dorsal wrist ganglion. She recommended input from a hand surgeon.
[20] PCB 72-78.
38 The plaintiff was next referred to specialist in hand surgery, Mr Thomas, who on 7 June 2011 thought it likely that the plaintiff had suffered a partial scapholunate ligament injury with a possible post-traumatic ganglion. Further MRI investigation on 17 June 2011 confirmed the presence of a dorsal ganglion cyst and a small perforation of the scapholunate ligament.
39 The ganglion was excised on 25 July 2011. By letter dated 19 September 2011, Mr Thomas advised Dr Ham that, save for some residual discomfort from tethering of the index finger extensor tendons over the area of the scar, his patient had made excellent progress with regard to the range of movement and strength.[21]
[21] DCB 31A.
40 An injection of cortisone and local anaesthetic by Mr Thomas on 19 September 2011, appeared to aid recovery. Ms Skeen relevantly reported: firstly, that examination on the plaintiff’s final visit on 8 October 2011 had revealed only a 10% reduction in grip strength between the injured left hand and plaintiff’s dominant right hand; and, secondly, that the plaintiff then reported performing the majority of her functional activities, albeit with some difficulty with lifting.[22] On further review by Mr Thomas on 5 December 2011, he reported that the plaintiff’s pain appeared to be settling.[23]
[22] PCB 76.
[23] PCB 62.
41 In November 2011, the TAC appointed occupational physician, Dr Davison reported two transport-accident related injuries.[24] Consistent with the progress reported by treating health professionals in this period, Dr Davison found that, whilst the plaintiff had been left with residual symptoms in the left wrist, the most symptomatic injury was a neck injury, he characterised as a joint strain at the C5-6 level of the spine, with myofascial pain syndrome. Dr Davison believed the latter accounted for the complaint of recurrent headaches.
[24] PCB 44(f).
42 Whilst both injuries were said to be preventing a return to the plaintiff’s pre-injury duties, Dr Davison anticipated resolution of symptoms of the whiplash-type injury, and a gradual lessening of the left wrist symptoms within a 6 to 12 month period; such that he predicted the plaintiff would be fit for her full-time, pre-accident duties.[25]
[25] PCB 44(g).
43 Further review by Mr Thomas in February 2012, led to a provisional diagnosis of carpal tunnel syndrome, based on complaint of increasing symptoms of paraesthesia, and clinical evidence of positive provocative signs of this condition. Whilst nerve conduction tests performed on 23 February 2012 failed to confirm the provisional diagnosis, Mr Thomas, nonetheless, proceeded to inject cortisone local anaesthetic into the carpal tunnel. This injection was said to have delivered some short-term relief. After symptoms recurred, in July 2012, Mr Thomas unsuccessfully sought approval from TAC for funding of a left endoscopic carpal tunnel release.
44 The plaintiff ceased work with Vista by mid-2012. She never returned to her pre-accident, full-time employment as a Residential Care Worker. The plaintiff deposed in August 2013 that impairment of her wrist prevented her from protecting herself in a workplace in which she was exposed to volatile youths; and from meeting the employer’s requirement that the plaintiff undertake evasive self-defence courses twice each year.
Employment, assessment and treatment – mid-2012 to swearing of the first affidavit
45 As mentioned, the plaintiff deposed in August 2013 that she had not worked since working casually at the salon as a beauty therapist between June 2012 and Easter 2013. In further evidence-in-chief the plaintiff confirmed that, after closure of the salon, she continued to service clients of the business with a view to either establishing another business with her former boss or working from home on her own account.
46 Neurologist, Associate Professor Richard Stark examined the plaintiff at the request of the TAC on 15 October 2012.[26] He recommended against any further surgical intervention.
[26] PCB 16(a) to (d).
47 Professor Stark concluded that the intermittent tingling of which the plaintiff complained was not typical of carpal tunnel syndrome. He considered the tingling described to be more suggestive of intermittent ulnar nerve irritation (not arising directly from the transport accident), without there being evidence of ulnar nerve sensory loss in the ulnar nerve distribution. Notably, Professor Stark did not then consider, in his words: “a little intermittent ulnar nerve irritation” to be restrictive of the plaintiff’s capacity for employment.[27]
[27] PCB 16(e).
48 In August 2013, among other things, the plaintiff further deposed as follows:[28]
[28] PCB 6-7.
12. I find I have a loss of strength in my left hand. I cannot bear weight on my wrist without severe pain. The top of my wrist is numb over the scar site. I have a loss of range of motion of my wrist.
13. I take Celebrex, Nurofen and Panadeine for pain as required. I see Dr. Ham for ongoing management of my wrist problems. I also see Dr. Ali Hassan at Geelong Medical Clinic.
14. I do the day-to-day household chores but get a cleaner who comes once a week to do the heavier work.
…
18. I find my wrist symptoms have plateaued and are permanent. I understand I am at risk of arthritic change in the future. I recently had an x-ray which apparently shows the development of an osteophyte in my wrist.
19. I was very active pre injury. I did boxing three to four times per week at Top Trainer Thai in West Fyans Street. I still go and do the fitness side of things but avoid punching, physical contact, push ups or other aspects of it which put pressure on the wrist. I now go once per fortnight. I intended pre accident to go into organised professional fights.
20. I used to play softball and represented (as amended “ACT”). I had stopped playing due to work commitments as I worked week ends. I intended to return to that sport when work permitted but I could not swing a bat or catch with my left hand.
21. I am right hand dominant in single handed tasks but left hand dominant in a number of tasks including boxing, playing cricket, pool and golf etcetera.
49 Unsurprisingly, social media provides a rich source of material for cross examination. In this case, cross-examination was directed to various photos posted to Facebook. The earliest of these comprised photos posted in April, June and July 2013.[29] Cross-examination with regard to these photos, tested in the main the plaintiff’s allegation of a loss of grip strength in the left hand, and her further allegation that she could not weight bear on the left wrist without severe pain.
[29] DCB 44-46.
50 The first photo obtained in April 2013 captures the plaintiff (and others) involved in a game of Twister. The plaintiff’s legs are splayed; her knees are bent with her right arm resting against her right thigh; and the plaintiff is bent over and reaching forward with her left arm. Notably, the plaintiff appears to be leaning and carrying body weight on her left arm and left hand. The thumb of the left hand is splayed and resting on the floor, and the fingers are clasped with the knuckles resting on the floor. In the circumstances described, I found the plaintiff’s denial that she was putting weight on the left arm implausible.[30]
[30] TN 46.
51 Photos posted in June and July 2013 capture the plaintiff socialising, and holding with her left hand a champagne flute (filled) in one, and a pot of beer (filled) in the other.
52 Under cross-examination the plaintiff indicated she had no difficulty holding “small glasses”[31] with her left hand, rather her main problem was with heavier items such as pots and pans.
[31] TN 46.
53 Cross-examination was also directed to photos posted in mid-January 2014 in which the plaintiff is captured water skiing at Echuca. Notably, the plaintiff is shown initially lying in the water holding the tow rope with her left hand, and then, in a number of shots, the plaintiff is captured up out of the water, on double skis, with the tow rope held in both hands.
54 The plaintiff told the Court she had not tried water skiing before or since this occasion at Echuca. The plaintiff sought to minimise the impact of this series of photos posted on Facebook by suggesting that she had only been up on the skis for a very short time, and could not have known what the impact on her wrist would be until she tried this activity (“Could I just say after this, I was probably a minute down the road, not even, and I’ve never tried it again since but after the accident if I’ve never tried an activity I don’t know what it’s going to be like, impact on my wrist. I never tried it again since”[32]). Again, I found the plaintiff’s evidence in this regard implausible.
[32] TN 47-48.
55 The content of the photos posted on Facebook, not to mention the evidence given under cross-examination helped satisfy me that there was an absence of the sort of guarding against pain you might have expected to see from a person, who initially deposed to suffering severe pain when performing weight-bearing activities and, who, in the months preceding the hearing in 2017, deposed, among other things, that any activity involving pushing, pulling, gripping, lifting or carrying increased the level of her left wrist symptoms.[33]
[33] PCB 9.
56 On 3 July 2013, some six weeks before the plaintiff swore the last mentioned affidavit, hand specialist, Mr Ireland undertook an impairment assessment at the request of the plaintiff’s solicitors.[34] Mr Ireland had previously assessed the wrist injury on 8 August 2012.
[34] PCB 17-21.
57 Cross-examination was directed to Mr Ireland’s report.[35] On this occasion I was left with the strong impression that the plaintiff had not been forthright in revealing her work as a beauty therapist following the closure of the salon when she saw Mr Ireland and when she swore her affidavit. Further, at hearing, I formed the view that the plaintiff prevaricated, particularly when called upon to respond to questions about the accuracy of Mr Ireland’s record of the progress of her wrist condition.
[35] TN 36-37.
58 Various matters contained in Mr Ireland’s report are summarised in point form, along with my commentary, as follows:
· When examined in August 2012 the plaintiff had made a good response to conservative treatment, which included corticosteroid injection; and she had not required further treatment for carpal tunnel syndrome.
· Allowing for the similarity between the record made by Mr Ireland (“She has not worked since”[36]), and the plaintiff’s affidavit sworn a month or so later, I could not be satisfied that Mr Ireland had been informed by the plaintiff of any ongoing work or plans to operate a beauty therapy business, whether in conjunction with, or on the plaintiff’s own account, at the time.
[36] PCB 85.
· The plaintiff reported her symptoms had improved over the previous 12 months, although she continued to complain of pain in the left wrist, located at the site of the previous surgery; and of experiencing episodic pain with activities that forced the wrist into either flexion or extension. The plaintiff reported that three hours of beauty work caused aching in the dorsal aspect of the wrist which persisted for approximately 30 minutes after resting the wrist. She also reported dorsal wrist pain as a result of direct pressure on the palmar aspect of the wrist, which ceased when pressure was removed.
· The plaintiff believed her symptoms were approximately 70% improved since undergoing wrist surgery in mid-2011. Whilst it cannot be assumed that Mr Ireland had correctly understood and recorded information received during this medical examination, I concluded that the reference in the report to the percentage of improvement was likely based on the plaintiff’s response to direct questioning by the doctor. This was an occasion on which I perceived some unwillingness to deal with the substance of the question asked during cross-examination (“I wouldn’t say 70 percent” and “I don’t remember saying it”[37]).
[37] TN 37.
· Mr Ireland concluded that the plaintiff no longer suffered from carpal tunnel syndrome symptoms. As recorded, Mr Ireland evidently understood that, following the cortisone treatment 15 months earlier, symptoms of paraesthesias and numbness and nocturnal sleep disturbance due to hand symptoms had resolved. This was another occasion on which I concluded that the plaintiff prevaricated when, during cross-examination, she was asked whether she might have advised Mr Ireland as recorded (“the cortisone shot did help with some of the symptoms, yes”, and, having had the meaning of paraesthesias explained to her: “At that time I might not have had pins and needles, no”[38]).
[38] TN 37
· The plaintiff reported transport accident related neck pain, in the treatment of which she consulted an osteopath once every two weeks.
· The plaintiff was not undergoing any specific treatment for her wrist symptoms, although she took Celebrex “on a self-administered basis 1 to 4 per day”.[39] For the reasons summarised below, I did not find the plaintiff’s affidavit or oral evidence concerning medication in the treatment of the wrist condition, plausible –
[39] PCB 86.
i. the material produced at hearing did not support a finding that in August 2013 the plaintiff was taking Celebrex, Nurofen or Panadeine for pain as required, or that she was consulting either Dr Ham for ongoing management of wrist problems, or Dr Hassan of the Geelong City Medical Clinic.
ii. Clinical notes obtained from the Geelong City Medical Clinic for the two-year period between June 2011 and June 2013 do not record complaint of, or treatment for, left wrist pain or symptoms in 14 out of the 15 consultations recorded for attendances on Dr Hassan and other doctors.[40]
[40] DCB 65-70.
iii. A notation for an attendance at the Geelong City Medical Clinic on 2 September 2011 in the treatment of unrelated conditions, recording as it did, that the plaintiff “was on endone for Lt wrist operation”,[41] likely referenced the operation performed by Mr Thomas in 2011.
[41] DCB 66.
iv. The only record of reported use of the non-prescription medication, Nurofen was in relation to an attendance on 21 June 2012 for the treatment of unrelated injury to the right middle finger and right big toe (“nurofen plus not helping”[42]).
[42] DCB 68.
v. The first and only reference to Celebrex was contained in a lengthy entry made on the last of the consultations on 13 June 2013. This attendance was for treatment of spinal pain and symptoms. The general practitioner recorded complaint of chronic neck and thoracic back pain, and stiffness in the treatment of which the plaintiff apparently said she was seeing an osteopath on a regular basis.
vi. It was recorded that during this final consultation, in addition to arranging radiological investigation of the plaintiff’s spine, the general practitioner had supplied a sample of Celebrex. Without more, I could not be satisfied that the clinical notation on 13 June 2013, that the “pains and numbness down to both arms and ulnar side of fingers worse at night”,[43] referenced injury sustained to the left wrist in the transport accident.
[43] DCB 69.
vii. Under cross-examination, the plaintiff insisted that she had then, and still does, treat wrist symptoms with non-prescription medications, Nurofen and Voltaren gel. Why Mr Ireland (and it seems a number of other specialists since then) understood that the plaintiff was using Celebrex in the treatment of wrist symptoms, and not, as claimed, the non-prescription medications mentioned by the plaintiff either at hearing, or in the first affidavit, was never adequately explained.
viii. As my discussion of clinical notes made in 2016 shows in due course, whilst there was some evidence of prescription of Celebrex, I could not be satisfied that this medication was prescribed in the treatment of left wrist symptoms, at any stage prior to hearing. As the TAC submitted, in this case the evidence as it related to the use of and the type of medication used to relieve pain and symptoms indicated against the wrist injury being a serious injury as defined by the Act.
· The plaintiff was then in a relationship with a partner who worked full-time as a self-employed carpenter. The plaintiff reported attending to all the normal activities of daily living and household chores including gardening, although she had recently employed a cleaner for two hours each fortnight due to low back pain. As the TAC submitted, the last mentioned matter, if correct, cannot be treated as a consequence of the wrist injury.
· The plaintiff drove her motor vehicle without apparent difficulty. I will comment on this aspect of the plaintiff’s claim in due course.
· The plaintiff reported she could no longer play softball or do boxing.
· Among other things, examination had not revealed evidence of excessive sudomotor (sweaty) or vasomotor (temperature asymmetry) activity. There were no dystrophic skin changes, wasting of the intrinsic muscles or trophic changes at the finger pulps, and there was full opposition of thumb to all finger pulps. These clinical findings are also relevant because they indicated an absence of features of autonomic disturbance and, in the context of the current dispute between specialists about the efficacy of a diagnosis of CRPS Type 1, the results of Mr Ireland’s examination, counters one of the assumptions by Dr Blombery in June 2017 that other specialists had not previously considered whether there was evidence of autonomic disturbance.
· The plaintiff complained of tenderness over the scapholunate ligament dorsally; and, whilst the result of this test had been negative, Mr Ireland said a provocative scapholunate instability test ordered by him had provoked mild dorsal discomfort; and he had noted clinical evidence of reduction in wrist motion.
· Radiographic investigation of the wrist had not revealed evidence of ligamentous instability.
· Mr Ireland diagnosed limited wrist motion following surgical treatment for partial scapholunate tear and traumatic ganglion cyst formation which had stabilised. Mr Ireland did not then expect any improvement, nor did he indicate the need for further treatment. He assessed a whole person impairment of 5%.
59 Mr Ireland’s impairment assessment and report made in July 2013 did not directly address the question of the impact of impairment of the left wrist on the plaintiff’s work capacity. That said, the findings made by this doctor in July 2013, not to mention the tenor of his report did not suggest that the plaintiff was then incapacitated for full-time alternative employment by reason of impairment of the left wrist.
Employment, assessment and treatment, September 2013 to June 2017
60 In June 2017 the plaintiff swore a further affidavit in which her earlier affidavit evidence was updated. The plaintiff relevantly deposed to the following matters:[44]
[44] PCB 9-11.
2. … I have continued to be plagued by constant pain affecting my left wrist.
3. … I have found that whenever I use my left wrist in any activity involving pushing, pulling, gripping, lifting or carrying then I am liable to suffer an increase in my level of symptoms. On each occasion when I attempted employment, I have found that the result has been a significant increase in my level of symptoms and on those occasions I required a variety of over the counter medications including anti-inflammatories, Neurofen (sic) and Panadeine to try and reduce the pain. The most recent instance of increased pain through employment was when I was working as a waitress at Beletti restaurant in Dandenong in the period September 2016 to January 2017 and at the end of each shift I was aware of very significant increase in the level of pain and a considerable level of disability in my left wrist joint as a consequence.
4. I moved up to … Cairns in early 2017 and I haven’t been working since that time and the result has been that the level of pain in my left wrist has diminished to some extent. However, I continue to use medication on a regular basis for temporary relief of my symptoms.
5. Over time I learnt that the only way that I can avoid pain is to limit the use of my left wrist. Even if I do limit the use of my left wrist, I find nonetheless that it clicks constantly. There is a distinct loss of strength and range of movement.
6. My activities outside employment have been very significantly impaired. When I was younger I played State level softball but I would no longer be able to engage in that activity because of my loss of left wrist strength and function. I used to enjoy martial arts but had to give away those activities. For a period of time I substituted Yoga for those activities but then found that I was having to improvise because I was unable to weight bear using my left wrist. I used to enjoy gardening when I was in Victoria but found increasingly that I was restricted because of the loss of strength in my left wrist. I am limited in my ability to perform some of the heavier household tasks and am assisted by on my daughter who is now 10 years of age to help me with those tasks (sic).
7. Presently, I am on NewStart and am undertaking a course in traffic control. I am hopeful of obtaining work in this area because it would be a job in which I was not required to constantly apply strain to my left wrist joint. I believe that I would be able to hold the road signs in my right hand for the main part and therefore rest the left wrist. I had previously been studying for a Bachelor of Health Science with a view to pursuing a career in nursing but financial pressures meant deferral of those studies and in any event having regard to my experiences when working in the restaurant I doubt that I would have had the strength in my left wrist to work as a nurse without thereby aggravating the condition.
8. … As I earlier stated, the only way I can limit pain is to limit the activities in which I engage and hence my quality of life both in terms of my capacity for work and my capacity to engage in social and recreational and domestic activities has been significantly restricted.
61 Cross-examination revealed that the plaintiff had been engaged in the online sale of home wares during 2014, in a business she said was commenced with her partner in July 2014. The business was registered as: “Bek and Co Concepts”, on 27 August 2014.[45] The plaintiff said the business, which had taken about two months to set up, had not made money in the six months or so period over which it operated.[46]
[45] DCB 81.
[46] TN 52.
62 The plaintiff was unable to recall whether she or her partner had written the Instagram post that sought orders for a pot described online as: “My cute little planter I made for my dwarf lemon tree…”.[47] That said, the plaintiff denied making the pots advertised online, which she said were made by her partner, who was a plasterer.
[47] DCB 52.
63 In re-examination the plaintiff revised her estimate of the period over which the business had operated to three months. She informed the Court that from the conclusion of that period she continued to use the same business name to operate her own beauty business, adding that this had been the case for much of the time (but not in the period she was working as a waitress, which according to the plaintiff’s second affidavit was between September 2016 and January 2017) until the plaintiff moved to Queensland.
64 If nothing else, the above-mentioned evidence indicated that the plaintiff likely operated her own beauty therapy business in the years between 2014 and September 2016 when she said she commenced employment as a waitress.
65 The plaintiff was assessed on 21 October 2014 by another specialist in hand surgery, Mr Buntine, at the request of the TAC. The plaintiff could not recall seeing Mr Buntine.
66 Various matters outlined in the first of Mr Buntine’s two reports[48] are summarised in point form, along with my commentary, as follows:
[48] DCB 1-9.
· the plaintiff reported no change in the condition of the left hand.
· The plaintiff reported taking Celebrex and paying privately to attend an osteopath: “who realigns her neck” at least twice yearly.[49] Notably, Mr Buntine’s report also failed to record pain relief through the use of non-prescription medication, such as Nurofen or Voltaren gel. Moreover, no record of, or report from a doctor prescribing Celebrex was produced at hearing to corroborate the report that, the plaintiff was taking Celebrex in the treatment of the wrist condition, as recorded by Mr Buntine in October 2014.
[49] DCB 1.
· The plaintiff reported injury-related symptoms involving: ongoing left wrist (and neck) pain; forceful use of the left hand caused wrist pain; tenderness of the scar over the dorsum of the left wrist (but no further problems with her left thumb); weakness of grip with the fingers of the left hand, intermittent swelling and stiffness of the fingers; and, other than on the mornings when the plaintiff’s hand is swollen, there was normal sensation in the left hand, which the plaintiff said seemed different.
· The plaintiff reported difficulty performing fine work involving the use of tweezers in the application, fixing and adjusting of eyelash extensions for clients seen by the plaintiff at home in her work as a beauty therapist. The plaintiff said that the use of tweezers caused the left hand to ache.
· The plaintiff reported discomfort when picking up heavy objects with the left hand, and had problems participating in yoga exercises involving weight bearing on her palms, such that the plaintiff improvised by weight-bearing on her elbows.
· On examination, Mr Buntine found no evidence of abnormality of sensation. Based on a comparison of palms, Mr Buntine thought there was (perhaps) evidence of a greater difference in use of the hands than was normal due to right handedness alone. He found a 1 cm difference between the circumference of the right hand (24 cm) compared with the left side (23 cm). Unlike the measurement obtained on the right side, the grip strength on the left side was variable and, according to Mr Buntine, at no time did reach a level that was consistent with objective observation of the hand and wrist. In short, Mr Buntine found an inconsistency between the variability in grip measurement for the left hand and objective observation of the hand and wrist.
· In Mr Buntine’s opinion, the plaintiff’s description of her present complaints, the minimal abnormalities found (presumably on examination), and the symptoms of which complaint was no longer made were “suggestive of amplification of symptoms of physical cause by non-organic influences”.[50]
[50] DCB 5.
· Mr Buntine, nonetheless, advised that the complaints relating to intermittent swelling of the left hand, weakness of grip with the hand and discomfort affecting the wrist, represented the residual effects of a soft tissue injury to the region of the left wrist and of the surgery performed. Notably, Mr Buntine’s uncertainty about the relationship between the onset of the wrist ganglion excised in 2011, and the injury sustained in the transport accident was not shared by other specialists.
· Mr Buntine predicted that the plaintiff would be less troubled by symptoms with the passage of time. He recommended against any further surgical intervention.
· As to employment, Mr Buntine accepted that injury to the left thumb and wrist may have prevented the plaintiff from working for several weeks only, although he also appeared to accept that the plaintiff may experience some discomfort and minor difficulties while attending to eyelash extensions.
· As to other activities, Mr Buntine appeared to accept that there may be some interference with some physical activities, especially yoga where the activity involved weight bearing on to the left palm. The photo posted on Facebook in which the plaintiff was shown playing Twister in April 2013, nonetheless, suggests that the plaintiff likely has a retained capacity for some degree of weight bearing involving the use of the left wrist when performing floor exercises.
67 Mr Buntine, re-examined the plaintiff on 27 January 2016.[51] Among other things, he reported the plaintiff as having indicated no change in her wrist condition since the previous examination in 2014.
[51] DCB 10-16.
68 In Mr Buntine’s opinion the injury to the left wrist had substantially resolved leaving the plaintiff with only mild residual symptoms.
69 At hearing, after some toing and froing, the plaintiff conceded she had had back pain since the transport accident.[52]
[52] TN 25-26.
70 Notably, in January 2016, Mr Buntine also recorded the plaintiff as having reported that, her back had recently troubled her much more than her wrist. At hearing, however, despite not being able to recall whether this information had been conveyed as recorded, the plaintiff resisted the proposition that this had been the case:[53]
[53] TN 26-27.
Mr Lewis: And I suggest to you that when you saw a doctor called Dr Buntine in January last year that you told him that the back pain was more troubling than your wrist. Do you think you might have told him that, perhaps if you might have a look at the defendant's court book at p.13, I think it was here. Yes, and you'll see there the doctor, I don't know whether you remember seeing Dr Buntine do you? – – – No, I don't.
No, right the record is that shows that you saw him in January 16 for the second time. You'd seen him before in October 2014 and that was in Camberwell, in Cornell Street? – – – H'mm?
Cornell Street, Camberwell? – – – Okay, I don't remember but yeah.
All right, very good, just giving you a chance to recall it. If you look at paragraph 4 at p.13, you'll see that the doctor seems to recall you as telling him that your back has recently troubled you much more than your left wrist?
…
Mr Lewis: "However her back has recently troubled her much more than the left wrist"? – – – I don't remember saying that.
No, but I suggest that that's what you did say and that it was, in fact, the case? – – –My back might have been worse at the time than it was normally but as opposed to it being worse than my hand I couldn't say that would be the case.
But you don't dispute that you said that to the doctor as he's recorded it, do you? – – – I don't recall saying it.
…
But you, having seen the record, you don't dispute that you told the doctor, that his evidence is that that's what you told him? – – – I know at the time my back was sore around that time so whether I was saying that it was worse than it has been before, might have been the case.
71 On this occasion, I preferred Mr Buntine’s contemporaneous record. It was reflected in similar accounts recorded by other doctors during 2016, such that I could not be satisfied that during at least 2016, the back problems, howsoever caused, were resolved or minimal in their impact on the plaintiff’s capacity to work and to perform the activities of daily living.
72 Further salient features of Mr Buntine’s report dated 28 January 2016 are summarised in point form as follows:
· The plaintiff reported being off work as a self-employed beauty therapist for six weeks, three weeks of which had been spent in bed, about three months earlier, due to hip and back problems.
· The plaintiff reported she had finished working as a beauty therapist at the end of 2015, largely due to left wrist symptoms, and was about to move to Western Australia with her daughter.
· The plaintiff complained of various wrist symptoms and limitations:
i. Pain on picking up heavy items with her left hand and discomfort when moving the wrist whilst the forearm was in mid-pronation/supination.
ii. Occasional spontaneous aching on the radial side of the wrist, which was worse under cold conditions. She wore gloves when it was cold.
iii. Occasional pins and needles affecting the fingers of the left hand after lying down.
iv. Mild clicking of the wrist with some movements.
v. Swelling of the hand, which she noticed occasionally on waking.
vi. Difficulty and discomfort in the left wrist when performing tasks involving precise manipulation, such as applying eyelash extensions or when pulling off wax.
vii. Problems after driving for more than 30 minutes, such that she had been “in agony” and had had to sell her car with manual transmission. As earlier indicated, I propose to discuss this complaint in the context of later reports in due course.
viii. Weakness of the left wrist was “a nuisance” at home, although the plaintiff was able to attend to simple cooking and light house work and was assisted by her daughter with the washing.
· The plaintiff reported that the only treatment since the previous examination in October 2014, had been self-treatment by massage with Voltaren Gel and the wearing of gloves when it was cold.
· The plaintiff had also reported receiving advice from her Osteopath that suggested the wrist might be affected by fibromyalgia. Mr Buntine, however, found no evidence of this condition.
· Essentially, examination had not revealed any abnormality in the wrist. Importantly, the doctor found no limitation in movement of the wrist. Based on his observations of the plaintiff’s function during examination, Mr Buntine concluded that the variation obtained between hands in the grip strength test was not organic in origin (“Miss Argent had earlier risen from her chair and walked about in the consultation to relieve her back pain” and “.. I noted no limitation of movement of the wrist and the demonstrated weakness of the left hand grip was not consistent with objective observations” and “I believe that influences of non-organic nature play a major role with respect to all of Miss Argent’s present complaints”[54]).
[54] DCB 12-13.
73 Accordingly, having examined the plaintiff twice in a 2 ½ year period, Mr Buntine had noted an inconsistency between the results of testing and the plaintiff’s observed capacity.
74 An impairment assessment was undertaken by another hand specialist, Mr Stapleton, on 23 February 2016, at the request of the plaintiff’s solicitors.[55] Given its brevity and limited focus, I afforded less overall weight to this report. Notable features of Mr Stapleton’s report, nonetheless, included the following matters:
[55] PCB 23-25.
· The wrist remained painful such that lifting a saucepan required the use of both hands. The wrist was painful in cold weather.
· Whilst there had been a suggestion of carpal tunnel syndrome, there was no evidence of the condition now.
· The injury appeared to have stabilised.
· The plaintiff takes Celebrex and Valium. Notably, there was no record of the use of Celebrex in the treatment of wrist pain and symptoms, or record of the use of non-prescription medications for relief of pain or symptoms. This is not to deny that in this period these medications were prescribed or taken in the treatment of the reported neck/back symptoms, or another unrelated condition.
· The plaintiff was then living with her daughter in Western Australia. Whilst there was no mention of any current employment activity, Mr Stapleton had recorded that the plaintiff’s hobby was gardening.
· The scar was “quite numb”[56], but did not interfere with the activities of daily living.
[56] PCB 24.
· Examination revealed quite restricted wrist movements. This finding stands in stark contrast to Mr Buntine’s finding on examination some weeks earlier
· Mr Stapleton diagnosed ligamentous injuries with an intra-articular ganglion, the latter later excised.
· The prognosis depended on whether the plaintiff had developed arthritis, and should there also be a problem with ligamentous damage in the wrist joint. Notably, x-ray of the wrist obtained on 14 December 2016 by treating general practitioner since December 2016, Dr Peiris, reported evidence of “very mild OA noted at the STT joint”.[57] Whilst this finding was relevant to my analysis of the seriousness of any impairment of the left wrist, I could not be satisfied that the finding of itself accounted for the level of pain, or the degree of restriction of movement reported in February 2016 or at the date of hearing.
[57] PCB 60.
75 It appears that, the plaintiff relocated and spent some months living in Western Australia in 2016. The clinical records of the Beeliar Family Practice in Western Australia tendered at hearing, recorded attendances for treatment of unrelated conditions in the period between 8 March 2016 to 16 June 2016 inclusive.[58]
[58] DCB 56-64.
76 Other than an entry mentioning headaches, which the plaintiff agreed she had attributed her neck problem,[59] the record did not reference any wrist condition or, for that matter, any injury attributable to the transport accident.
[59] DCB 58.
77 The TAC submitted, among other things, that in a case where the plaintiff alleges she suffers daily pain and impairment that interferes with employment and a range of other activities, the absence of any record of complaint to doctors of wrist symptoms over this period (and, no doubt, the absence of any record of the taking of prescription or other non-prescription medication for relief of left wrist pain and symptoms) were matters that should weigh against any ongoing impairment of the wrist being fairly described as at least very considerable. I agree.
78 The Beeliar Family Practice records are consistent with a doctor having initiated some enquiry about drugs and medications (“Adverse drug reactions queried – Nil known”) when the plaintiff first consulted a doctor at this clinic for treatment of reported dizzy spells.[60]
[60] DCB 59.
79 During cross-examination the plaintiff indicated that she had not mentioned her wrist to doctors: “because I was treating it as I’ve told you, the Voltaren and Nurofen which I didn’t need a prescription for at the time, or don’t, so – and still to this day you will note that I’m not going to the doctor to get a prescription for the Nurofen or Voltaren”. [61] The plaintiff added that she had not needed to see a doctor because of the relief she “was getting” from these medications. I did not find plausible the suggestion that, if pain relief medications, Nurofen and Voltaren Gel, were used on a regular basis in the treatment of a chronic wrist condition, the plaintiff had not mentioned either this condition, or the use of medication for relief of symptoms over the period she attended the clinic in Western Australia.
[61] TN 41-42.
80 The plaintiff attended specialist assessments in Melbourne during the period she was living in Western Australia. At hearing, the plaintiff said that after some six months she returned to Melbourne, where she underwent gall bladder surgery.
81 Hand and orthopaedic surgeon, Mr Haw, assessed the plaintiff’s injuries at the request of her solicitors on 13 May 2016. His report of the same date tendered by the TAC, was addressed to both the TAC and the plaintiff’s solicitors.[62]
[62] Exhibit D2, PCB 26-31.
82 It appears that the day before Mr Haw’s examination of the plaintiff in Melbourne, she attended the Beeliar Family Practice. On 12 May 2016 the plaintiff sought assessment of her fitness to drive, as it later turned out, to facilitate an application for a commercial driver’s licence to drive for Uber. At the time of the initial attendance the plaintiff was recorded as stating that she had no chronic medical problems. Later entries in the medical records on 26 and 27 May 2016 confirmed the request for an assessment, and further that a declaration had been completed by the general practitioner.
83 The assessment of the plaintiff’s fitness to drive form was signed by the plaintiff and a doctor and dated 12 May 2016.[63]
[63] DCB 83-84.
84 At hearing, the plaintiff indicated that she had contemplated applying for an Uber license because she needed money. The plaintiff had not, she said, proceeded with the application due to the onset of the illness that led to the removal of her gall bladder.
85 However, under cross-examination, the plaintiff agreed that she had completed the questionnaire contained in the form, and had certified that to the best of her knowledge the information supplied by her was true and correct. Despite making this declaration, the plaintiff agreed that she had responded in the negative to a question that asked whether she had, or had been told by a health professional, that she had, neck, back or limb disorders.
86 When pressed to explain why she had responded in the negative in her declaration, the plaintiff replied: “I have a chronic condition, it’s not a disorder”.[64] I found this explanation disingenuous. It helped reinforce the impression, otherwise gained from reading the material tendered, and hearing evidence, that the plaintiff had not been straightforward in the giving of her evidence, or in the information conveyed to doctors from time to time.
[64] TN 44.
87 The TAC submitted that Mr Haw’s evidence was particularly relevant on the issue of disentanglement because the report clearly implicated impairment of the spine, due to transport accident related injury to the neck and back, as a cause of disability. I agree. The tenor of the report was that, as at May 2016, and based on both the account received and the results of the clinical examination, Mr Haw believed that impairment of the plaintiff’s spine was the primary, if not the cause, of incapacity across a range of activities.
88 Mr Haw’s conclusion in this regard finds support in the history of problems recorded by the TAC’s hand specialist, Mr Buntine, in January 2016; not to mention Mr Buntine’s opinion that the wrist injury had resolved leaving the plaintiff with only mild residual symptoms.
89 As to the wrist injury, examination of the wrist had, Mr Haw reported, revealed a reduction in grip strength. Mr Haw relevantly diagnosed transport accident related injury, involving ligamentous disruption of the wrist with secondary development of a ganglion, which Mr Haw said had left the plaintiff with some wrist stiffness and loss of power grip. In Mr Haw’s opinion, the injury to the left thumb was fully recovered, and, having achieved “a maximal recovery of motion” in the left wrist, there remained “some permanent impairment” of the wrist, which interfered with the plaintiff’s grip strength and range of motion.[65] Notably, there was no recommendation for further treatment, or mention of the need for pain relief, either at the time of the examination, or in the future.
[65] Exhibit D2, PCB 28.
90 As mentioned, Mr Haw also diagnosed transport accident related damage to the cervical and lumbosacral spine, with evidence of an unrelated mild idiopathic scoliosis, the latter having reportedly caused pain at the thoracolumbar joint in the past.
91 As to injury to the spine, Mr Haw relevantly recorded the following matters:
· the plaintiff reported that she had never fully recovered from pain and stiffness experienced at the occipitocervical junction following the transport accident.
· Certain head postures when at work precipitated a recurrence of pain and stiffness with referral into both shoulders, especially the left shoulder.
· On average since the transport accident the plaintiff was “quite” disabled by the neck pain and stiffness for two or three days once every month. The worse attack had been at Christmas in 2015. During this episode, apart from visiting her osteopath for treatment of pain and stiffness as well as dizziness and light headedness, the plaintiff was confined to bed and needed to be taken by friends for treatment because her symptoms prevented her from driving.
· The plaintiff continued to report low back pain, the onset of which was said to have occurred two months after the transport accident, and the pain was localised to the lumbosacral region of the spine. This pain had gradually increased in severity and appeared to be worse when the plaintiff’s neck was “bad”.
· The neck and back problems had interfered with the plaintiff’s capacity to drive to such an extent that she had sold her motor vehicle. Under cross-examination, the plaintiff accepted the accuracy of this record. That said, the plaintiff’s evidence at hearing, and the reports recorded by doctors of the reason for selling the motor vehicle were contradictory:
i. In further evidence-in-chief the plaintiff informed the Court that impairment of her left wrist had caused her to decline promotion to a Level 2 Traffic Controller because she could not operate the manual Ute a Level 2 Traffic Controller was required to drive. There followed evidence through which the plaintiff appeared to indicate that, at some stage after the transport accident, she had purchased a manual vehicle, which she had replaced due to problems with driving.[66] I, nonetheless, understood from this evidence and Mr Buntine’s report in January 2016 that the plaintiff sought to attribute both the inability to seek promotion in her current position, and the sale of the manual vehicle to the wrist injury(the plaintiff had been in agony after driving the manual vehicle for 30 minutes).
[66] TN 22-23.
ii. Having regard to the content of Mr Haw’s report driving a motor vehicle was itself problematic due to neck and back problems, and this had led to the sale of the plaintiff’s motor vehicle.
· When pain was bad the plaintiff required assistance from her then nine-year-old daughter to lift a full bag of groceries. At hearing, the plaintiff contested the accuracy of this record. She said that her back would be worse if she lifted groceries, and that, to this day, the reason her daughter assisted with carrying groceries was because of the wrist condition. Again, I preferred Mr Haw’s record. Firstly, in its context this problem was clearly reported as an example of a problem related to neck and back pain. Secondly, if, as some doctors have accepted, there are restrictions on carrying heavy weights with the left upper limb, the plaintiff’s right upper limb is not so impaired. Accordingly, if as was intimated at hearing, the plaintiff could no longer lift full bags of groceries, logically this was not the result of the left wrist condition.
· The plaintiff, who had by then moved to Western Australia, reported that despite her general practitioner wanting to organise MRI scans for both the neck and lower back, she had not been able to afford these because she was no longer working due to the symptoms she was experiencing.
· Based on both the plaintiff’s account, and the results of his clinical examination, Mr Haw concluded that the plaintiff had disrupted discs at the C1/C2 level (with the possibility of there being instability at this level), and that she may have damaged the L5/S1 disc.
· The only further treatment required was intermittent treatment to relieve muscle spasm in the cervical or lumbar region, although Mr Haw thought the plaintiff should seek further evaluation of both the neck and lumbar spine.
92 As to prognosis, in Mr Haw’s opinion, the plaintiff will continue to experience symptoms from the neck and back condition, as well as from the left wrist condition because of persisting stiffness.
93 At hearing, the plaintiff acknowledged that her neck condition had caused problems in performing work as a beauty therapist, problems she attributed to her posture when sitting or standing to apply eyelashes or to wax, or to bending when applying a spray tan. However, under re-examination, the plaintiff gave evidence, the effect of which was that her wrist condition had caused the greatest problems when working, particularly when applying eyelashes or doing waxing. In my view, this evidence likely overstated the extent to which impairment of the wrist interfered with work, if, as recorded by Mr Haw in May 2016, the plaintiff reported being “quite disabled” by neck pain and stiffness on average for two or three days once every month.
94 On the assumption that I am correct in my interpretation of Mr Haw’s report, he opined that the problems (that is to say, those relating to both the wrist and spine) have prevented the plaintiff from both resuming work and playing with her child in any sporting activities. I was, nonetheless, satisfied that, given the overall focus of the report on the spine, Mr Haw viewed impairment of the plaintiff’s spine as the primary cause of incapacity for employment.
95 The clinical notes of the Endeavour Hills Medical Centre in Melbourne, and the report of general practitioner, Dr Peiris, tendered on behalf of the plaintiff, establish consultations with this doctor and other doctors commencing from 15 November 2016. The first attendance for the “tac case” was recorded on 12 December 2016.[67]
[67] PCB 55(a)-60(e).
96 The complaints arising from the transport accident, and recorded in the clinical notes (also mentioned in the doctor’s report) for the consultation on 12 December 2016, included complaint of left wrist pain, tingling and numbness down the left arm as well as neck pain and stiffness. The plaintiff apparently reported that tingling and numbness only occurred when she started working. I have assumed that the latter referenced the waitressing work that in June 2017 the plaintiff deposed was performed at Belettis between September 2016 and January 2017.
97 Whilst, as earlier mentioned, x-rays of the plaintiff’s left wrist on 14 December 2016 revealed evidence of mild osteoarthritis at the STT (scaphotrapezotrapezoidal) joint, the results of a later nerve conduction study on 22 February 2017 again returned a normal result.[68] MRI investigation of the cervical spine identified degenerative changes, but not evidence of impingement.[69]
[68] DCB 29.
[69] DCB 29.
98 Both Dr Peiris’ rather brief report dated 12 April 2017 and the clinical note, made on 8 March 2017 record that, whilst wrist pain was “less”, it was provoked by activity. MRI investigation of the wrist was recommended but had not been obtained on 12 April 2017 when the doctor said he had spoken to the plaintiff, whom he reported was holidaying in Cairns.
99 This general practitioner’s evidence was of limited assistance to the plaintiff’s case, because I could not be satisfied that he had acquired a good understanding of the history of the progress of the left wrist condition since the excision of the ganglion, and, further, because, as was apparent from the report submitted, Dr Peiris said he was not able to provide a diagnosis or prognosis, until he identified the cause of the pain reported. The doctor did, however, caution against the plaintiff working as a waitress, in circumstances where the plaintiff reported that this work had caused pain, and she had “dropped objects”.[70]
[70] PCB 57.
100 I have already explained the significance of the results of Dr Nathar’s psychiatric assessment on 15 September 2016.[71] As mentioned, Dr Nathar, concluded that a Major Depressive reaction was resolved, although the plaintiff was still experiencing psychiatric problems in the form of a mild post-traumatic anxiety state and car travel anxiety.
[71] PCB 32-44.
101 Notably, the history recorded by Dr Nathan indicated, among other things, that the plaintiff had not been capable of returning to her pre-accident employment as a consequence of both the neck and wrist injuries.[72] As recorded, the plaintiff reported she would not have been able to return to her youth worker job because of her inability: to sit for long periods at a computer, to travel and visit clients; and, more importantly, because of the vulnerability the plaintiff said she felt in a workplace where she believed she would not be able to defend herself in case of any violent confrontations.
[72] PCB 40.
102 At hearing, cross-examination was also directed to various matters recorded by Dr Nathar about the plaintiff’s current symptoms and level of activity. For instance, under cross-examination the plaintiff:
· agreed that, as recorded by Dr Nathar, if she put pressure on the left elbow, her whole arm became numb until the arm was lifted up. This had been a problem for two years.[73]
· Resisted the proposition that by September 2016 she was able to do two hours of gardening at a stretch. In this regard, Dr Nathar recorded that osteopathy had improved the plaintiff’s neck problem, although the condition flared with activity. The example given, and recorded by Dr Nathar, was that after two hours gardening the plaintiff would experience neck pain. Whilst the plaintiff agreed she could garden, she effectively denied that she ever gardened for up to two hours (“I never timed it, but I don’t think I was ever in the garden for two hours”[74] and “Define gardening though? I was sitting in the backyard weeding, or planting a plant, or – not consistently for two hours, I might have been in the garden for two hours, but gardening - - - and “I don’t think I ever did two hours of gardening consistently, but after activities yes, it did hurt”[75]). Irrespective of whether the plaintiff caused Dr Nathar to believe that she could sustain activity in the garden for up to two hours at a time, it appears from the account recorded that, as at September 2016, the limitations the plaintiff placed on her gardening activity were attributed solely to problems with her neck.
[73] TN 33.
[74] TN 37.
[75] TN 38.
103 Dr Nathar also appears to have been informed that the plaintiff took some Celebrex if pain was bad. In the context of the report made, I understood that this referenced neck pain. If, however, I am wrong in my interpretation of the report, it remains the case that there was no evidence of prescription of this medication in 2016 in the treatment of wrist pain.
104 I have already mentioned in passing the TAC’s orthopaedic specialist, Mr Powell. He examined the plaintiff once on 16 September 2016. His report and supplementary report are dated 17 October 2016 and 3 October 2017 respectively. Without revisiting the first report in full, I note the following relevant matters:
· The plaintiff had not had formal treatment for her neck injury or left hand/wrist injury since 2012.
· As to the left hand, plaintiff reported decreased strength in the left hand when she lifted pots off the stove; an inability to hold her body weight with her left hand when doing yoga; an occasional aching over the dorsum of the left wrist, in the treatment of which when required, Voltaren Gel was efficacious; and occasional numbness in the left hand, should the plaintiff lie on her left elbow, which resolved with a change of posture.
· As to the neck condition, the plaintiff reported that this had resolved, although she continued to suffer from thoracic back pain, which had been severe at times. The plaintiff has a history of scoliosis. The plaintiff apparently reported that she was not taking medication for back pain.
· In Mr Powell’s opinion, the plaintiff’s current symptoms were mostly related to the thoracic spine.
· The plaintiff reported that she did not have neck pain, rather she suffered recurrent bouts of stiffness of the neck (with associated headaches) that built up over a few weeks and required osteopathic treatment. Whilst, in December 2015 a bad episode of stiffness of the neck persisted for more than a month and required therapy over a course of five weeks, in September 2016 the plaintiff was consulting her osteopath every few months for treatment.
· Clinical examination of the cervical spine appears to have been unremarkable. The range of motion in the cervical spine was found to be unrestricted and without pain.
· Clinical examination of the left hand was similarly unremarkable. Notably no tenderness of the wrist was reported; the wrist was stable to examination; and the range of motion in the left wrist was found to be normal. Mr Powell, however, noted some degree of variation in palmar flexion, although other movements were said to be symmetrical and so on.
· Mr Powell diagnosed transport accident related soft tissue injury to the neck in the setting of constitutional scoliosis, with injury to the left wrist consisting of a small tear in the dorsal scapholunate ligament, and secondary development of a ganglion cyst.
· Post-operative issues in recovery of the wrist symptoms, including stiffness and symptoms of left carpal tunnel syndrome, had resolved.
· Mr Powell considered that soft tissue injury to the plaintiff’s neck had resolved, and that symptoms of recurrent stiffness could be related to the constitutional scoliosis.
· The plaintiff reported she had been advised that there was radiological evidence of arthritis in her wrist. Mr Powell reported that he had not found clinical evidence of any significant degenerative joint disease in the wrist.
· Mr Powell considered the plaintiff’s prognosis to be excellent. That said, he appeared to have accepted the complaint of some persistent weakness in the left wrist, which interfered with domestic activities, such as lifting heavy pans on the stove; and interfered “a little” with yoga but did not interfere in a significant way with the plaintiff’s performance of activities of daily living, domestic duties or recreational activities.
· Mr Powell reported no incapacity for work.
105 On 19 January 2017, Specialist Occupational Physician, Dr Slesenger examined the plaintiff at the request of her solicitors.[76] The salient features of his report are summarised as follows:
[76] PCB 45-55.
· The plaintiff reported ongoing, intermittent pain in the left wrist, which was worsened by activity, particularly gripping, pushing, pulling and turning. Her symptoms were worse toward the end of the working day. There was clicking in the wrist and some swelling. She relied more on her right dominant side.
· Apart from some mild tenderness reported over the radial border of the wrist, clinical evaluation of the wrist had revealed minimal restriction to the range of movements. For instance, other than a 10% variation in extension, the range of movements recorded by Dr Slesenger on examination were identical. Under cross-examination, the plaintiff, nonetheless, rejected the proposition that, in January 2017, the range of movement found in both wrists was much the same. Notably, Dr Slesenger’s examination and testing had not revealed other clinical indicators of impairment, such as trophic changes, wasting of the hypothenar or thenar eminence or reduction in grip strength.
· The plaintiff reported neck pain as a consequence of the transport accident. Pain was aggravated by work activities or long drives. The pain was described as “ongoing intermittent mild to moderate pain”.[77] It was a dull pain in the centre of the neck radiating to the left and right side of the plaintiff’s lower neck and to the occiput. Whilst there was no report of arm pain, Dr Slesenger found restrictions on the range of rotatory movements.
[77] PCB 47.
· The plaintiff reported the onset of lower back pain about two months after the transport accident. She complained of residual intermittent low back pain that was aggravated by prolonged activity, such as driving for up to 6 hours or a long shift at work for up to 12 hours (“she advised that she has associated left leg, hip and buttock pain. She has no sensory loss in the left leg”[78]). Irrespective of whether there was, as some doctors have found, a causal relationship between the onset of lower back symptoms and the transport accident, under cross-examination, the plaintiff agreed that she had informed Dr Slesenger informed that her back was a problem for her at work.
[78] PCB 48.
· As to diagnoses, Dr Slesenger opined that the plaintiff was suffering from transport accident related mechanical injury to the cervical spine; a chronic pain disorder; and, not having had the benefit of imaging of the wrist or reports from the treating surgeon, Dr Slesenger offered a provisional diagnosis for the transport accident related wrist injury - soft tissue injury and possible tendon strain as well as the development of a ganglion.
· As to treatment, among other things, the plaintiff reported that she remained under the care of her general practitioner for certification and medication purposes. She had ceased all medication. Dr Slesenger recommended regular review by the general practitioner and self-managed exercises for the back condition. However, in the absence of further documentation, Dr Slesenger said he was not prepared to comment on treatment options for the wrist impairment.
· Dr Slesenger offered a guarded prognosis, given the plaintiff’s poor response to treatment to date, and the chronicity of the plaintiff’s spine and left wrist symptoms.
· The plaintiff drove an automatic Ford Territory but had previously been driving a manual vehicle. This evidence helps confirm that the plaintiff has likely retained the capacity to drive.
· Dr Slesenger recorded a work history that involved a return to part-time work as a beauty therapist in a salon working up to 15 hours per week some 18 months after the transport accident. That Dr Slesenger, an occupational specialist, also failed to record any history of employment between the time the salon closed and the plaintiff’s commencement of employment as a waitress in the Italian restaurant in 2016, suggested to me that, as had been the case with some other doctors, Dr Slesenger had not been informed about the plaintiff’s employment activity in the meantime.
· As to the waitressing work, the plaintiff reported working part-time, mainly on weekends and evenings, on shifts of up to 12 hours. She said her employer, was considerate of her needs, and rotated her through lighter tasks. Under cross-examination, the plaintiff disputed the report that she work shifts of up to 12 hours. The plaintiff said she never worked “consecutive 12 hours” because there were always two-hour breaks between, say, lunch and dinner shifts.[79]
[79] TN 55.
· The plaintiff reported that the waitressing tasks required of her, included constant standing, repetitive bending and twisting; forward reaching; lifting of weights of up to 5 kg; carrying plates; manoeuvring furniture and cleaning tables and the restaurant area. Under cross-examination, whilst the plaintiff agreed that the job had required her to handle trays of food and drinks and clear tables, she said that, after the first couple of weeks she had been relocated to bar work because she could not lift the trays. According to the plaintiff bar work was also problematic because she was required to unload the dishwasher.[80]
[80] TN 55.
· The plaintiff reported that she had recently recommenced retraining. She was attending Endeavour College to complete a fulltime Bachelor of Health Science, her aim being to commence work as a Naturopath. It was an internet based course. She had completed the first semester. There were block units of contact hours, usually 3 weeks per semester. The plaintiff advised that she spent up to 30 hours per week on assignments and course work from home. In the circumstances described, I could not be satisfied that, as deposed in the second affidavit, firstly, the course of study undertaken in 2016 was to pursue a career in nursing; or, secondly, if as claimed in June 2017, the plaintiff had given up the course due to financial pressures, that impairment of the wrist was a reason for not completing this qualifying degree.
· Dr Slesenger considered that the accident (that is to say impairment of the cervical spine and the wrist as a result of the transport accident) was likely the cause of the plaintiff’s occupational incapacity in the first 18 months after injury, and was likely to cause some restrictions in the plaintiff’s ability to return to work in a role that required significant manual handling or prolonged static postures.
106 As the occupational physician’s findings and report demonstrates, the clinical evidence of residual symptoms due to impairment of the left wrist, and the restrictions on the plaintiff’s ability to return to work, presumably full-time, were minimal.
107 As earlier mentioned, the plaintiff deposed in 2017 that after relocating to Queensland in early 2017 she completed a course in traffic control because this represented work which would not require the plaintiff to constantly apply strain to the left wrist joint and allowed her to hold road signs in her right hand for the main part.[81]
[81] PCB 11.
108 In further evidence-in-chief, the plaintiff said that she had been working since about July 2017 as a Level 1 Traffic Controller, and was able to manage this work because she was not required to use the bat in her left hand, and she could stand and “stretch out the day”.[82] I understood the last mentioned comment to mean that the role was not particularly demanding.
[82] TN 22.
109 However, as earlier mentioned, the plaintiff further indicated that she had since declined the opportunity to complete a course to qualify as a Level 2 Traffic Controller. This was because the Utility that a traffic controller working at Level 2 is required to drive was a manual vehicle, and one that was very hard to drive.
110 Allowing for the findings reported in specialists’ reports summarised thus far, any organic basis for the plaintiff limiting employment to a part-time role, and one which essentially allows the plaintiff to avoid any meaningful use of the left upper limb on a day-to-day basis, was not made out.
111 Dr Blombery’s first and only examination of the plaintiff was on 29 June 2017. His report dated 27 July 2017 does not disclose the materials, if any, or the extent of the instruction provided to him at the time.[83] That said, Dr Blombery appears to have been aware of the circumstances of the transport accident; of the results of early investigation of injury to the cervical spine and to the left wrist; and of the results of the investigation, diagnosis and treatment of injury to the scapholunate ligament and the ganglion.
[83] PCB 64-68.
112 Various aspects of Dr Blombery’s report are summarised in point form below:
· The plaintiff reported that, after commencing employment as a waitress in July 2016, she experienced recurrent numbness in the left hand with aching. She differentiated this numbness from that previously experienced with the carpal tunnel type symptoms. When at rest in bed with her left elbow bent, the plaintiff said that after five minutes, she noticed numbness in the fourth and fifth fingers of the left hand.
· The plaintiff complained of ongoing pain in the left wrist (“like an ache and worse in the cold”[84]). The pain was exacerbated by excessive use of the plaintiff’s hand. She reported various problems, such as noticing a reduction in strength in her hand with activity and coldness of the hand. The hand often went purple, and this had been the case since the accident. I note that, if this had been the case, there was no evidence of any complaint that the left hand went purple in the six years preceding Dr Blombery’s examination.
[84] PCB 65.
· The plaintiff reported taking Nurofen, Celebrex and Voltaren intermittently but not pain killing medication.
· The plaintiff, who was not working when seen, was about to commence employment in traffic control.
· The plaintiff reported not being able to pick up pots with her left hand or carry shopping, other than with her right hand, or enjoy the recreational and other activities previously enjoyed, such as going to the gym, playing soft ball and boxing. The plaintiff also reported difficulty in maintaining fitness because of ongoing pain. She was, however, able to drive.
· Testing and examination revealed features of autonomic disturbance, which when combined with complaint of ongoing pain that was disproportionate to any inciting event, were said by Dr Blombery to be diagnostic of CRPS Type1. The features of autonomic disturbance recorded by Dr Blombery, which he said fulfilled three of the four symptoms categories under the Budapest criteria for this condition, as established by the International Association for the Study of Pain, were:
i. Vasamotor abnormality - temperature asymmetry between the hands, the fingers of each hand, and the forearms (the left side was cooler).
ii. Hyperesthesia abnormality – the plaintiff reported local tenderness over the dorsum of the left wrist and near the surgical scar.
iii. Motor abnormality – Whilst there had been a full range of movement, the grip strength was reduced on the left side.
· Dr Blombery was clearly of the view that in accordance with a further requirement of the Budapest criteria, there was no other diagnosis that better explained the plaintiff’s signs and symptoms.
· As to treatment, Dr Blombery:
i. did not consider the level of pain reported severe enough to warrant a pain management course, or the use of the drug Ketamine.
ii. Believed that the plaintiff needed ongoing treatment for pain.
iii. Recommended medication consisting of a combination of anti-inflammatory medications and analgesics as required.
iv. Thought the plaintiff might benefit from a trial of a potent anti-inflammatory such as Prednisolone in the short term. Having reviewed her further evidence-in-chief, I was not satisfied that, as submitted by Mr McGarvie, the last mentioned medication had been prescribed for, or taken by the plaintiff at any time since the consultation with Dr Blombery. Firstly, the Geelong City Medical Centre records printed on 30 August 2013 list Prednisolone as a current medication, although the entries do not disclose the condition for which this had been prescribed.[85] There was no independent evidence of prescription of this drug by either Dr Blombery, who was not a treating specialist, or by the general practitioner, in the months preceding the hearing. Secondly, when asked in further evidence-in-chief to up-date the medications taken, the plaintiff confirmed that she continued to take Nurofen. Thirdly, the plaintiff’s responses to direct questioning appeared to be contradictory. The plaintiff at first indicated that new prescription medication, Prednisolone, had been prescribed by Dr Blombery, and that she had tried but had not continued the medication. However, the plaintiff’s explanation for not taking this medication suggested to me that she had not taken Prednisolone, due to a concern about this drug’s side effects, and was intending to go back to Dr Blombery to discuss an alternative treatment.[86] Lastly, the plaintiff was not, as at the date of hearing, taking any pain killing medication, and by her own account had not taken any steps since seeing Dr Blombery in late June 2017 to obtain medical advice on alternative treatment for pain management. If I am wrong in my understanding of the evidence, the point to be made at this juncture is that the plaintiff’s delay in seeking alternative medication is inconsistent with the complaint made in the second affidavit that she “continued to be plagued by constant pain affecting her left wrist”.[87]
[85] DCB 65-70.
[86] TN 20-21.
[87] The plaintiff’s second affidavit, PCB 9.
v. Viewed further degenerative changes in the wrist, and surgical intervention possibilities in the future, with the latter complicated by the possibility that surgery could aggravate the plaintiff’s CRPS.
· Considered the prognosis for recovery poor, and any significant change in the level of disability unlikely in the foreseeable future.
· As to the plaintiff’s employment capacity, Dr Blombery advised that the plaintiff was unfit to perform her pre-accident employment, and further that the plaintiff was significantly limited in terms of the employment she could undertake because she would not be able to perform a job requiring heavy or repetitive use of the left wrist.
113 Mr Powell was asked to provide a supplementary report. This was dated 3 October 2017.[88] As recorded, Mr Powell received and read additional materials comprising: reports prepared by Dr Peiris, Mr Haw, Mr Stapleton, Professor Stark, Mr Buntine, the treating surgeon and Mr Blombery; and records of the Beeliar Clinic as at 13 June 2017, as well as a bundle of internet pages. I proceeded on the basis that the latter pages probably included some if not all of the pages the Facebook postings on which the plaintiff had been cross-examined.
[88] DCB 27-31.
114 Having analysed these materials Mr Powell relevantly reported as follows:
· as to the lower back condition, the test of causation in respect to this condition had not been met. Mr Powell disputed Mr Haw’s diagnosis of accident-related injury to the L5/S1 disc. In this regard, Mr Powell noted the absence of any reference to lower back injury in the earliest reports made to Mr Thomas and Professor Stark and Mr Haw’s report to the effect that the onset of lower back pain had occurred some two months after the transport accident.
· As to the cervical spine condition, Mr Powell contested Mr Haw’s opinion that the plaintiff had suffered injury to the C1/2 disc (“I would point out that the C1/2 articulation (atlanto-axial articulation) does not have a disc…”[89]).
[89] DCB 31.
· As reported, the MRI scan of the cervical spine performed on 14 December 2016 had revealed minimal degenerative changes and no evidence of impingement.
· As to the left wrist condition, in Mr Powell’s opinion there was no basis for the general practitioner’s request for further nerve conduction studies or MRI imaging of the wrist, given that earlier radiological and nerve conduction studies, not to mention specialist examinations, had failed to identify other pathology or evidence of carpal tunnel syndrome.
· Mr Powell pointed to the discrepancy in the range of motion of the left wrist found during specialist examinations. For instance, the reports disclose no limitation of movement in the wrist (Mr Buntine on 28 January 2016); a measured loss of 10% of dorsal extension (Mr Powell in September 2016); and a significant loss of range of motion (Mr Stapleton and Mr Haw in February 2016 and May 2016 respectively). Notably, more recently, Mr Blombery found no loss of movement in June 2017.
· Plain x-rays of the left wrist in December 2016 had not revealed evidence of arthritis in the wrist joint itself. Rather, as previously mentioned, these showed very mild degenerative changes in the STT, that is to say changes at the base of the thumb. According to Mr Powell basal arthritis of the thumb is the most commonly recorded radiographic arthritis in the human body and, whilst Mr Powell did not exclude the possibility that the transport accident had made some contribution to the development of mild osteoarthritis in the STT joint, in Mr Powell’s opinion this would not account for restriction of range of motion in the wrist joint proper.
· There was no organic basis for the complaint of intermittent symptoms of parathesia in the left hand.
· Mr Blombery’s diagnosis of CRPS, Type1 was not sustainable. In Mr Powell’s opinion, on a strict reading of the Budapest criteria, the plaintiff did not meet the criteria for this diagnosis. This is not to deny that Mr Powell accepted that, on testing, Mr Blombery had found evidence of temperature asymmetry, and reduction in grip strength. However, against these findings, Mr Powell noted, firstly, that previous medical reports had not found evidence of sensory distribution for the symptoms that fell within a particular peripheral nerve; and secondly, that as a smoker, the plaintiff was predisposed to some of the signs of CRPS, and in these circumstances, the last criterion under the Budapest criteria (there is no other diagnosis that better explains the plaintiff’s signs or symptoms), may not apply to this case.
· Mr Powell rejected the general practitioner’s view that it would be dangerous for the plaintiff to work as a waitress. In Mr Powell’s opinion no physical injury prevented the plaintiff from working as a waitress and no occupational therapy assessment was required.
115 In a report dated 17 October 2017, Dr Blombery vigorously defended the diagnosis of CRPS Type 1.[90]
[90] PCB 69-71.
116 The point to be made at this juncture is that, I could not be satisfied that doctors, or for that matter, the Court had received a reliable account of the nature and degree of the plaintiff’s symptoms, or of the treatment received for either the left wrist condition or the back condition/s in the six years since the transport accident.
117 It goes without saying that the reliability of a doctor’s opinion in part depends on them being well and accurately informed.
118 In this case, I was left with significant reservations about the efficacy of Dr Blombery’s diagnosis following a single examination in June 2017. For instance, irrespective of the cause or causes of the reportedly impaired functioning of the plaintiff’s spine, based on the content of his reports, I could not be satisfied that Dr Blombery had been made aware of ongoing complaints to doctors about pain and restrictions attributed to conditions affecting the plaintiff’s spine; or the likely impact of unrelated conditions on the plaintiff’s capacity to resume her pre-accident employment; or to pursue alternative employment.
119 Rather, as his report demonstrates, Dr Blombery appeared to proceed on the assumption that the plaintiff was using prescription and non-prescription anti-inflammatory medications, Nurofen, Celebrex and Voltaren intermittently in the treatment of her left wrist symptoms. This was in circumstances where, particularly the documentary evidence, did not substantiate the contention that in 2017 the plaintiff had been or was using any anti-inflammatory medication at all in the treatment of left wrist symptoms.
120 The weight of medical opinion on both sides supports a finding that:
· the plaintiff sustained injury to the scapholunate ligament in the transport accident, and that trauma associated with the injury to the left hand led to the development of a ganglion, which was excised in mid-2011;
· notwithstanding Mr Powell’s concern to distinguish the location of the degenerative changes found more recently on radiological examination, the very mild changes are likely causally linked to trauma suffered to the wrist and hand in the transport accident; and
· as at the date of hearing, residual symptoms of injury to the left hand were minimal, and not such as to incapacitate the plaintiff for full-time alternative employment.
121 In this application for leave, the plaintiff was obliged to establish the consequences of the wrist injury, and that these met the test of serious injury.
The pain and suffering consequence
122 I now turn to consider the pain and suffering and loss of enjoyment of life consequence.
123 The evaluation of the pain and suffering consequence of physical injury to the left wrist encompasses both the plaintiff’s experience of pain and the disabling effect of pain on her capabilities and enjoyment of life.
124 Evaluation of the disabling effect of pain calls for consideration of the extent to which pain caused by the left wrist injury continues to limit the plaintiff’s activities and to interfere with her enjoyment of life. In this regard the significance of what is lost may be informed to some extent by what the plaintiff has retained.
125 In this case, the issues concerning disentanglement of the consequences of concurrent problems affecting the plaintiff’s spine complicated the evaluation of the pain and suffering and loss of enjoyment of life consequences. This evaluation was not assisted by the fact that, if, and when they expressed their opinion on the consequences of transport accident related injury, many of the specialists did distinguish between the conditions.
126 As to any pre-existing condition or injury-related condition affecting the spine, I was satisfied that symptoms affecting the cervical and/or other areas of the spine were likely:
· the basis of ongoing complaints of pain and impairment;
· conditions for which regular treatment was still required from an osteopath, and were conditions for which any anti-inflammatory medication, such as Celebrex (if used) was or continued to be prescribed;
· causative of problems with, for example, prolonged static postures, bending, and lifting/carrying weights;
· causative of a Major Depressive reaction (now resolved) in response to injury-related physical impairment following the transport accident, and it follows a cause of the breakdown in a relationship in 2013;
· causative of the plaintiff’s inability to resume her pre-accident work in residential care before this employment was terminated in mid-2012;
· causative of problems in performing various tasks as a beauty therapist;
· causative of the decision not to complete study to obtain a Bachelor of Health Sciences, if as deposed, the plaintiff had intended to work as a nurse when she commenced this course;
· causative of problems in performing various tasks while working as a waitress;
· causative of interference with and restrictions on the plaintiff’s participation in a number of the sporting activities nominated by the plaintiff in both affidavits. For instance, without more, I could not exclude the possibility that the restrictions on bending, not to mention the consequences of degenerative changes affecting the cervical spine also limited the plaintiff’s capacity to engage in pre-accident activities such as boxing or playing pool, to name just a couple of these activities;
· causative of restrictions on activities such as: gardening; the performance of some heavier household tasks with which the plaintiff said her daughter now assisted her; and, as earlier mentioned, the plaintiff’s inability to carry heavy shopping at all; and
· causative of the plaintiff having engaged a cleaner to assist with household chores, at some stage prior to seeing Mr Ireland in 2013.
127 I make the following findings as to the consequences of the left wrist injury.
The experience of pain and impairment
128 Based on the evidence as a whole, I formed a strong impression that the plaintiff’s complaints of pain and disability were disproportionate to the residual symptoms of wrist injury found on medical examinations. In forming this view, I also made allowance for the radiological evidence of the development of degenerative changes at the base of the thumb.
129 In this case, I could not be satisfied as to the extent of, or the severity of, the experience of pain in the left wrist. This is not to deny that some doctors have accepted that the plaintiff probably experiences a level of pain or discomfort in the context of performing various movements of the wrist or activities; such as using the left hand alone to carry heavy items; or using the left hand to perform tasks involving significant manual handling; or using the left hand to weight bear when exercising.
Employment
130 I have already summarised evidence relating to the plaintiff’s post-injury employment, including evidence of the plaintiff’s attempts to establish businesses and to engage in alternative employment; and to undertake further study.
131 The decision of the Court of Appeal in Mazevskav Transport Accident Commission,[91] has confirmed, among other things, that when evaluating the consequences of injury suffered as a result of a transport accident, where this is raised, the Court must also consider whether a plaintiff has established pecuniary disadvantage consequences of compensable injury, which amount to serious injury. In this regard, Mr McGarvie submitted that, by reason of injury-related impairment of the left wrist, the plaintiff was effectively restricted to employment that could be performed predominantly, if not exclusively, with the use of her right hand. Furthermore, that the fact that the left wrist condition was a likely cause of the plaintiff not being able to return to her preferred career of itself amounted to a serious injury.
[91] [2014] VSCA 178 [21].
132 I could not be satisfied that the plaintiff had made good either proposition.
133 In this case, it appears that a combination of problems affecting various levels of the spine, and impairment of the left wrist likely incapacitated the plaintiff for her pre-accident employment prior to termination of that employment in 2012. The plaintiff’s evidence that by reason of the wrist injury, she could not return to this residential care work because of her inability to defend herself, was not directly challenged, although the medical evidence at or around that time, not to mention various reports made to doctors also implicated the neck/back as a cause.
134 The evidence of specialists such as Dr Davison, Professor Stark, Mr Ireland, Mr Buntine, Mr Haw, Mr Powell and Dr Slesenger, suggests that residual symptoms of wrist injury have been minimal for some time now, and that restrictions due to impairment of the left wrist do not incapacitate the plaintiff for full-time alternative employment in a range of occupations; or for further study, including completion of her studies for a Bachelor of Health Sciences (a degree which does not limit a graduate to a career in nursing); or from obtaining an Uber licence.
135 Accordingly, regardless of whether one or both injuries prevent a return to the plaintiff’s chosen career, at 33 years of age, the plaintiff has a retained capacity for full-time alternative employment, which might include working as a naturopath, the latter if the plaintiff elects to return to complete her degree studies.
136 This is not to deny that some of the symptoms reported may restrict the plaintiff’s capacity to perform work with certain characteristics, such as in occupations that require significant manual handling. For instance, an occupation that requires the plaintiff to drive a manually operated Ute may be problematic.
137 In the circumstances described, I assessed the pecuniary disadvantage consequence of the injury for this plaintiff not to amount to serious injury.
Domestic activities
138 So far as the wrist is concerned, the plaintiff clearly has a retained capacity to perform domestic activities other than those that might require using the left hand to lift weights and so on. However, the extent to which impairment of the left wrist impairs the plaintiff’s capacity to performing heavier tasks and the nature of the tasks so impaired remains unclear.
Social/recreational activities
139 I was satisfied by the available evidence that the plaintiff was a person who, notwithstanding a pre-existing back condition had previously enjoyed an active lifestyle.
140 The plaintiff’s evidence that prior to the transport accident she had enjoyed sporting activities such as boxing, and had been looking forward to taking part in organised professional fights and to returning to play softball in the future, were not challenged by cross examination. It stands to reason that the sporting interests described by the plaintiff were circumscribed following the left wrist injury, because sports such as boxing, softball or cricket would at times involve the forceful use of the left wrist, which could aggravate even minimal residual wrist symptoms.
141 Accordingly, I find that by reason of the left wrist injury the plaintiff’s capacity to fully participate in these activities has likely been circumscribed and, that this circumstance is another factor properly taken into account in determining the extent to which the injury has diminished the plaintiff’s overall enjoyment of life.
Conclusions
142 In conclusion, I find that as a result of the transport accident the plaintiff has suffered likely long-term impairment of the left hand. The impairment consequence of the injury to the left wrist has been broadly summarised above.
143 In assessing whether the pain and suffering consequence of the injury met the ‘very considerable’ test, I was required to consider globally all of the pain and suffering experienced by the plaintiff, to which this injury materially contributed.
144 To this end, and doing the best I could to isolate and identify the likely consequences of the wrist condition alone, I have summarised the evidence regarding the impact of impairment of the plaintiff’s left wrist on her day-to-day activities and enjoyment of life including the evidence of pecuniary disadvantage.
145 As mentioned, the test is whether the plaintiff has established that the pain and suffering consequence of injury to her left wrist, when judged by comparison with other cases in the range of possible impairments or losses of body function, may be fairly described as being more than significant or marked and at least very considerable.
146 In Peak’s case the Court of Appeal contrasted the evidence given in that case by the complainant, with the evidence given in the case of Haden Engineering Pty Ltd v McKinnon.[92] In Haden’s case the pain and suffering consequence included evidence that: the worker experienced constant pain; pain was present when he woke in the morning and progressively worsened during the day; pain interfered with work, and obliged the worker to rest for up to 5 to 10 minutes, four to five times per day; and that pain interfered with sleep, such that it often woke the worker 3 to 5 times during the night. In Peak’s case the Court of Appeal concluded that the pain and suffering consequence of the injury suffered could not reasonably be viewed as ‘at least very considerable’ or as ‘certainly more than significant or marked’.[93] The same comparison can be made with the same outcome in the present case.
[92] (2010) 31 VR 1.
[93]Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67, [65].
147 In summary, based on the evidence available, I was not affirmatively satisfied that injury to the plaintiff’s left wrist caused by the transport accident was a serious injury in accordance with the definition of serious injury contained in the Act.
148 I propose to dismiss the plaintiff’s application for leave.
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