Avery v VWA
[2017] VCC 739
•14 June 2017
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-05787
| KERRY ANNE AVERY | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 31 May, 1 June 2017 | |
DATE OF JUDGMENT: | 14 June 2017 | |
CASE MAY BE CITED AS: | Avery v VWA | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 739 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Accident Compensation Act 1985; s134AB application for leave to bring damages claim; definition of serious injury s134AB(37)(a); claim for pain and suffering damages; reliance on (a) only of definition of serious injury in s134AB(37); Leave granted.
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292
Judgment: Leave to bring damages claim granted. Costs reserved.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I R Fehring with Mr G Pierorazio | Slater & Gordon |
| For the Defendant | Mr W R Middleton QC with Ms D Manova | Thomson Geer |
HIS HONOUR:
Background
1 Ms Avery, the plaintiff in this proceeding, was born in 1959. She has, for many years, worked in an administrative capacity in the Pathology Department of the Warrnambool Hospital. She worked in that role for some 15 years, then moved to Queensland for some 10 months, where she also worked for a pathology service. She returned to Warrnambool the following year and has worked in what is, in effect, the Pathology Department of the Warrnambool Hospital since. The pathology service at the hospital has been operated by a number of different commercial organisations over the years. The plaintiff continues to work there with the current operator being Dorevitch. In 2014, the laboratory was being operated by Clinical Laboratories Pty Ltd trading as Healthscope.
2 Until 2014, the plaintiff said that she had been in good health and had suffered no injury to her right arm or wrist. Over the years, she had undergone an appendectomy and a hysterectomy. From both operations she made a full recovery.
3 The plaintiff described her position as “histology typist” which entailed her typing reports and letters and undertaking administrative duties “such as booking appointments, handling phone enquiries and packaging slides from the pathology department”. (Plaintiff’s Court Book (“PCB”) 8, paragraph 8)
4 On 15 July 2014, whilst the plaintiff was moving through the histology department with a view to returning to her office, she “slipped and fell on the floor and landed heavily on [her] outstretched right arm”. (Ibid, paragraph 9)
5 During the plaintiff’s viva voce evidence, she explained that she was right handed and that she fell backwards. (Transcript (“T”) 22, Line (“L”) 16-17; T33, L15-18) According to her affidavit sworn 14 September 2016, she said a co-worker obtained an ice pack for her, but she remained in significant pain and discomfort “my right wrist was throbbing with pain. I also had bruising over my left thigh and buttocks as a result of my fall”. (PCB 8, paragraphs 9-10) In giving evidence at the hearing of her application, the plaintiff said the reference should have been to her right thigh. (T22, L26 – T23, L1)
6 According to a history given the following day, the plaintiff’s treating practitioner, Dr Vivienne Ramsbottom, “Fall to rhs [viz right hand side]. STrined righ twirst [scil Strained right wrist] and bruising to left buttock and thigh”. (Clinical record, DCB 24) It may be that the outstretched right hand broke the fall on the right side of her body but thrust her to the left, which took the impact.
7 As a result of her attendance on Dr Ramsbottom, the plaintiff began taking over-the-counter analgesic Panadol Osteo. She obtained a wrist brace, which she began to wear “every day”. Her symptoms persisted and Dr Ramsbottom referred her for an x-ray for her right forearm on 22 July 2014. She said “I understand that that did not reveal any fractures”.
8 The plaintiff was referred to a hand therapist at the hospital, Ms Michelle McIntosh, who “fabricated a custom made thermoplastic splint” which the plaintiff began wearing on her right wrist. She then began attending Dr Atchuthan Vigneswaran, who referred her for an x-ray and ultrasound scan of the right wrist, which was carried out on 11 September 2014. Again, these investigations disclosed nothing of significance. When symptoms persisted, Dr Vigneswaran prescribed Mobic and Panadol Osteo for pain relief, recommended that the plaintiff reduce the amount of typing she did, and referred her to hand surgeon, Mr Robert Toma. (PCB 9, paragraph 13)
9 Upon assessment by Dr Toma, the plaintiff was told that she had likely injured her scapholunate ligament. He recommended conservative treatment. Following a holiday in which the plaintiff found her pain was aggravated by attempting to lift a suitcase, she saw the doctor again, who referred her for an MRI of the right wrist, which was performed on 29 November 2014. The plaintiff said she understood “that this scan was reported to show an injury to my triangular fibrocartilage”.
10 The plaintiff was then referred to another hand specialist, this time in practice in Melbourne, Mr David McCombe, who recommended that she have a cortisone injection in the wrist, which was administered on 3 March 2015 with the injection being ultrasound guided. She obtained little relief from this procedure and attended Mr McCombe again on 17 April 2015, and it was recommended she undergo surgery. (PCB 10, paragraph 17)
11 Surgery entailed an arthroscopy to her right wrist and debridement of her triangular fibrocartilage tear, together with an ulna carpal synovectomy. The plaintiff said that at a post-operative review, Mr McCombe told her that “he had observed a tear in one of the ligaments of [her] right wrist, which he repaired during surgery”. He recommended hand therapy and the plaintiff saw Catie Boag in Melbourne. (PCB 11, paragraph 19)
12 By August 2015 the plaintiff had progressively returned to full duties and hours, whilst obtaining hand therapy from Ms Catherine Reid in Warrnambool. Nevertheless, she continued to be “troubled by ongoing problems in [her] right wrist”. The pain “[having] improved a little after the operation”, she still found repetitive use of [the right] hand caused an increase in her symptoms. In April 2016 she suffered an aggravation whilst attempting to garden at home. She consulted Dr Vigneswaran and “began using [her] wrist brace more regularly for support”. (Ibid, paragraphs 20-21)
13 The plaintiff continues her work as a histology typist full-time. She said she is able to manage but suffers “an increase in pain after type long reports or using the mouse at work for extended periods”. She said her wrist continues to be “a constant source of frustration for me”, and further:
“The pain tends to come and go throughout the day, depending on [her] level of activity. Any repetitive or strenuous use of [her] right hand is associated with an increase in pain. The pain tends to be worse at the end of the working day or after [she has] attempted any cleaning or gardening activities.” (PCB 12, paragraph 23)
14 The plaintiff complains of continuing weakness and lack of grip strength. She said she struggles:
“with simple things such as undoing jars or bottle tops. Wringing out wet clothes or towels also causes sharp pain … Even opening doors and turning the steering wheel on [her] car to the right tends to aggravate [her] pain.” (Ibid, paragraph 24)
15 As at September 2016 the plaintiff said she also suffered “an aching pain in my right elbow” which is not present all the time “but tends to flare up with repetitive use of [her] right arm.” The elbow pain is not as bad as the wrist pain. According to the plaintiff’s affidavit, wrist pain “occasionally” interferes with her sleep. Her viva voce evidence was that this happens quite frequently. (T69, L19-26) She said that as a result of all this, she struggles “to perform [her] pre-injury domestic activities”. She said she struggles with vacuuming and mopping the floors, using a toilet brush and cleaning the showers. She said if she does too much cleaning she generally “pays for it afterwards with an increase in wrist pain”. Her gardening activities are now restricted. She has difficulty using her hedge trimmer and needs to resort to the wrist brace, “Even then, [her] wrist generally throbs afterwards”. (PCB 13)
16 The plaintiff says she has difficulty lifting pots and pans from the stove to the sink area and needs assistance from her husband or son, who are the other members of her household, when undertaking these tasks. She said she derives “much less enjoyment from cooking and baking” because they aggravate her right wrist problems. Personal grooming, in particular, arranging her hair, is difficult. She struggles getting dressed and doing up buttons on shirts or blouses is uncomfortable because of the wrist pain.
17 The plaintiff said that she did weight training using her own home gymnasium before her fall, but since her injury she lacked the strength to return to that activity. As a result, she is no longer fit and this has an impact on her self-esteem which has tended to depress her mood, leaving her anxious and frustrated. She is generally more irritable and on edge following her fall.
18 The plaintiff’s hobbies of knitting and piano playing are now drastically restricted. She said she “can only play the piano for very short periods before an increase in wrist pain … I can now only knit for a short period before my wrist begins to throb and ache.” (PCB 14)
19 The plaintiff says she takes Panadol Osteo “on an as-needs basis. I take up to four tablets on average a couple of times each week”. She uses a wrist brace. In her viva voce evidence she said that she now has three of them. (T68, L14-15) The wrist injury, she said “has curtailed my domestic and recreational activities. It has interfered with my work capacity and it has left me enduring ongoing pain and discomfort on a daily basis”. (PCB 15)
20 In a more recent affidavit sworn on 9 May of this year, the plaintiff said she no longer attends her general practitioner, Dr Vigneswaran as often as before because “he has told me there is little he can do besides prescribe medication”. (PCB 16)
21 As well as Panadol Osteo, she said she uses Mobic:
“occasionally for two or three days in a row. However, I tend to find the effect of the Mobic is not much greater than the Panadol Osteo and the pains remains all the time.”
22 She uses a wrist splint “every day”. The wrist pain is associated with increased activity. The pain can come on immediately or only after the end of the activity. Where there is a heavy typing load of work, she suffers a feeling of pain and exhaustion:
“On a bad day when the pain in my wrist was significant I avoid my husband and son and go straight to bed when I get home. There have been many nights where I haven’t been able to cook dinner for them when I got home, something I have always enjoyed doing.”
23 At work, her duties now include assisting with bone marrow biopsies. She said this entails opening a number of small vials for the specimens and bottles of anaesthetic. The anaesthetic bottles are troubling as they require a pinching pressure to be used while twisting the top off the bottle. This causes her pain. (PCB 17)
24 The plaintiff said that since her first affidavit she has ceased knitting altogether. Her piano playing is also restricted in that her coverage of the keyboard is limited. Before the accident, she could play difficult pieces, “Now when I play I am limited playing more basic pieces of music”. She continues with gardening but on a restricted basis:
“As a result my rose bushes are looking horrible as I haven’t been able to trim and prune them. I cannot use my right hand to fill my car’s petrol tank with petrol as the gripping motion is too painful.”
25 She said she is also restricted from returning to gym activity and walks to keep her fitness up “but even this results in some pain in my wrist. I shake my wrist repeatedly when I go for my walk”. She says she cannot lift items of more than 2 kilograms in weight and cannot carry her laundry basket out to the line. (PCB 18)
26 Mr Avery, the plaintiff’s husband, swore an affidavit in the proceeding on 27 April 2017 supportive of his wife’s case. He said that before the accident his wife had always been fit and healthy and was able to, and did, attend to:
“most if not all of the household duties. She would come home from work and cook dinner for our son and I. She would make the beds each day, do the ironing and the vacuuming and other similar chores.” (PCB 20)
27 He said she would regularly attend a gymnasium but her ability to do the chores and attend the gymnasium and other leisure activities since the accident “have been reduced or stopped altogether”. He said at times she has returned from work “upset with the pain in her wrist” and therefore unable to cook dinner. He said, “Some nights she will come home and just go to bed because she is very upset and frustrated with her pain and inability to cook dinner for the family”. She cannot now engage in the recreations of knitting or piano playing. Her gardening is drastically reduced. (PCB 21)
28 When Mr Avery and their son assist in household work, their efforts are “rarely up to her standard and [this] is a cause of tension between us. She can get angry with us, is not nearly as patient with us as she was previously and is continually frustrated with her limitations.” (PCB 22)
This proceeding
29 Solicitors acting for the plaintiff have issued an Originating Motion seeking leave pursuant to s134AB of the Accident Compensation Act 1985 for her to bring a damages claim. The solicitors have filed Particulars of Injury referring to “impairment of the function of the right upper limb including impairment to the right wrist and right elbow”. (PCB 4) The application has not been pursued relative to the elbow.
Statutory provisions
30 As “a worker” within the meaning of the Accident Compensation Act 1985, the plaintiff is not entitled to recover damages against her employer except in accordance with s134AB of that Act. She seeks to recover damages for pain and suffering. Pain and suffering damages are defined in sub-s(37) as follows:
“pain and suffering damages means damages for pain and suffering, loss of amenities of life or loss of enjoyment of life;”
“Serious injury” is defined in s134AB as follows:
“serious injury means—
(a) permanent serious impairment or loss of a body function; or
(b) permanent serious disfigurement; or
(c) permanent severe mental or permanent severe behavioural disturbance or disorder; or
(d) loss of a foetus.”
31 The court may not grant leave unless it finds that the relevant incident has led to a “serious injury” for the worker (sub-s(2)). In the present instance, the plaintiff relies only upon sub-paragraph (a) of the definition, which provides as follows:
“permanent serious impairment or loss of a body function;”
32 The application of this definition is affected by sub-s38(b) and (c) which state as follows:
“(b) the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to—
(i) pain and suffering; or
(ii) loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively;
(c) an impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of subsection (16) unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable;”
Expert opinions
33 The plaintiff’s treating general practitioner, Dr Vigneswaran , provided a report by way of letter dated 21 December 2015 to her solicitors. He mentioned her referral to Mr Toma and Mr McCombe, and the cortisone injection which provided only limited relief and the arthroscopy conducted in May 2015. He said:
“She has since then [viz the date of the arthroscopy] gradually had her hours and duties increased. She is currently working her pre-injury duties and hours as of 30/08/15. According to Mr McCombe 25/09/15 further surgery or intervention was not indicated. I last saw Kerry on 02/09/15 where she advised me her hand was a lot better, she was not needing any hand therapy and was not needing any analgesia. Given the above information I feel her work-related injury has now resolved.”
34 The doctor referred to the plaintiff suffering a moderate degree of distress and anxiety. He continued, “Some other distress she may have experienced may have been related to her employer changing from Healthscope to Dorevitch”. (PCB 39)
35 Dr Vigneswaran provided a further report dated 28 April this year. He reported an attendance on 12 April 2016 “where she described weakness and excruciating pain. This pain improved with wearing her wrist brace. She has not consulted me about her wrist pain since. Hence based on this I feel her injury has resolved. She may get flare-up of pain with overuse and she is likely to develop arthritis in her right wrist earlier compared to if she did not sustain an injury.” (PCB 39A)
36 It would seem the attendance on 12 April 2016 related to the incident following gardening which the plaintiff described in her affidavit.
37 Mr Toma reported on his consultation with the plaintiff by letter to Dr Vigneswaran dated 1 October 2014. He said he supported Dr Vigneswaran ‘s approach of “removing the splint, and starting [Ms Avery] on an anti-inflammatory. She has noticed a significant improvement in her symptoms since this has occurred.”
38 Mr Toma said that on clinical examination he “could not identify any significant abnormality in the x-ray and ultrasound that had been performed are also normal”. He said he believed that the plaintiff:
“most likely injured the scapholunate ligament given the mechanism of the injury. However at this stage I don’t believe she warrants a MRI as she is improving and there is no clinical instability.”
39 He said that he thought the plaintiff might be “developing some early carpal tunnel syndrome”. (PCB 40)
40 Occupational therapist, Ms Michelle McIntosh, provided a report to the early treating general practitioner, Dr Vivienne Ramsbottom, in a letter dated 1 September 2014. She stated:
“Kerry presented to us in hand therapy on the 21st August this year with a history of right wrist pain. Kerry reported that she had had this pain for the last 10 weeks and that it was also exacerbated by a fall which occurred at work 6 weeks ago.”
41 She noted x-rays not disclosing any abnormality. Nevertheless, Ms McIntosh noted the plaintiff’s:
“wrist continues to be swollen on the volar aspect, and she reports that her pain is now more localised to the radial/volar aspect of the wrist. She reports that typing particularly seems to exacerbate her pain, and that the pain increases during the day.”
42 Ms McIntosh suggested further investigations. (PCB 41)
43 Ms McIntosh provided a further report to Dr Vigneswaran dated 5 December 2014. Ms McIntosh suggested the plaintiff consider seeing a hand surgeon in Melbourne, and if she proceeded with conservative management:
“then she would need to wear a thermoplastic splint full time for 4-6 weeks and that would include at work, as the wrist movement with typing would not be helping her symptoms.” (PCB 42)
44 Ms McIntosh wrote a letter of referral to Ms Catherine Reid of Western District Hand Therapy. In that letter dated 9 December 2015, she said:
“Kerry had an MRI of her wrist on the 28/11/14 and this indicated a central perforation of her right TFCC. Kerry is due to see Mr David McCombe in Melbourne on the 30th of this month for an opinion … She is currently working at 30% capacity of her typing activities (on light duties at work).” (PCB 43)
45 Ms Reid provided a report to the plaintiff’s solicitors by way of letter dated 15 December 2015. By way of diagnosis, she said that the MRI:
“showed changes consistent with ulna carpal abutment. Arthroscopy showed changes consistent with the ulna carpal abutment and a central perforation of the TFCC, chondromalacia and loss of articular cartilage on the ulnar side of the lunate. Consistent with this diagnosis she also had extensor carpi ulnaris tendinopathy.”
46 According to Ms Reid, the tendinopathy had resolved and the plaintiff “has only intermittent minimal wrist pain. Kerry has managed to return to work with no pain, so her prognosis for complete recovery is very good”. She said the condition appeared to have stabilised though there remained the possibility of recurrence of pain because of some degeneration of the cartilage. There might also be post-traumatic arthritis. (PCB 44)
47 Ms Reid noted the plaintiff’s return to work on full duties. She carried out grip strength tests which showed left and rights wrists having substantially the same grip strength. She said:
“Kerry was doing weights at the gym and reporting no pain with this. She has resumed work as a typist in a pathology clinic reporting minimal pain and has no pain with activities of daily living.” (PCB 45)
48 In a letter to Dr Vigneswaran dated 30 January 2015, Mr McCombe noted:
“The provocative tests for ulno carpal abutment and TFCC injury were negative today but it is difficult to interpret Kerry’s symptoms given how diffuse they are.”
49 The MRI scan “has shown a central perforation and some changes within the ulna aspect of the lunate consistent with ulno carpal abutment”. He said he felt the perforation of the TFCC was:
“A degenerative one relating in part to some ulno carpal abutment and it may be that this the basis of her ongoing symptoms though at the moment it is too difficult to localise her symptoms to this.”
50 He suggested that things be allowed to settle down “by allowing her to come out of her splint and begin mobilising” and also to give her a cortisone injection. (PCB 47)
51 In a further letter to Dr Vigneswaran dated 17 April 2015, Mr McCombe said that the cortisone injection had “not really helped her with her Ulna sided wrist pain”. He suggested that it would be appropriate to consider an arthroscopy to evaluate possible ulna carpal abutment. (PCB 49)
52 Mr McCombe wrote a further letter to Dr Vigneswaran dated 2 June 2015 following the arthroscopy. He said that the wound had healed but her wrist was not [scil too] swollen considering the early post-operative stage. He suggested a gradual return to work and the referral to Ms Catherine Reid “to work on mobilisation and strengthening as tolerated”.
53 His next report to Dr Vigneswaran was dated 7 August 2015. He said:
“the arthroscopy showed changes consistent with ulnocarpal abutment with a degenerative central perforation of the TFCC and chondromalacia and loss of articular cartilage on the ulnar side of the lunate consistent with this diagnosis.”
54 He said that if “the ulnar sided pain persists then consideration for ulna shortening osteotomy can be made but I don’t think Kerry is at this point”.
55 Mr McCombe wrote a letter to the plaintiff’s solicitors and “To Whom This May Concern”, dated 16 December 2015. He referred to the surgery which he had carried out and subsequent reviews, remarking:
“When reviewed at 10 weeks post arthroscopy Ms Avery was advised to rest the wrist and elbow in a bid to settle down her symptoms and on subsequent review on the 25th of September 2015, Ms Avery reported that her symptoms had settled down and she had been able to return to work on normal duties and was comfortable with minimal tenderness and documented symmetrical grip strength of 22 kg on each side.” (PCB 53)
56 Mr McCombe said the prognosis for Ms Avery was that:
“provided she is able to modify her activities such as to avoid repetitive forceful gripping with the wrist in the pronated and ulnar deviated position that her symptoms may be well controlled.”
57 He said, “the likelihood of progressive deterioration is low though [scil possibly] dependent upon her pattern of activity”. She should “avoid repetitive forceful manual handling particularly with the wrist in the ulnar deviated and pronated position”. (PCB 54)
58 The plaintiff attended the rooms of plastic and reconstructive surgeon, Mr John Anstee, for medico-legal assessment on 28 February this year. Mr Anstee said he doubted that, as at the date of report, the plaintiff’s condition had stabilised. He remarked:
“There are significant problems at the ulnolunate joint with loss of articular cartilage on the lunate. Both the fall and general work will aggravate the symptoms of that condition. I believe, therefore, that Mrs Avery’s problems will persist and her condition will slowly worsen.” (PCB 57)
59 As to restrictions, he said the plaintiff would be restricted as to pushing, pulling, lifting and repetitive pushing, pulling and lifting. She would be restricted as to repetitive or prolonged use of the right wrist, though not particularly restricted as to overhead activities or the use of steps or ladders and fine and manipulative uses of her right wrist and manual dexterity would suffer little adverse effect. (PCB 58)
60 He remarked, “I have no reason to doubt her statement that 1 kg is all she can comfortably lift and her work should reflect that maximum lift”. (Ibid) He said, “I have little doubt but that Mrs Avery has pain, suffering, distress and anxiety. The accurate assessment of that lies without my purlieu (sic).” (PCB 59) He said her prognosis was “poor”. He noted that the plaintiff “does not like taking analgesics. If the symptoms of the ulnar positive variance persists or worsens then an ulnar shortening osteotomy might be appropriate.” (PCB 59) He diagnosed the plaintiff as having an aggravation of “the problems associated with an ulnar positive variance in her right forearm”. (PCB 57)
61 He concluded, “Essentially the picture is one of triangular fibrocartilage complex and lunate damage probably from a positive ulnar variance”. He said, “Positive ulnar variance is a condition which arises independently of injury and of employment. The symptoms of this condition, however, may well be worsened by a fall or by repetitive work.” (PCB 60)
62 In a letter to Dr Vigneswaran dated 25 September 2015, Mr McCombe reported that at his review of the plaintiff on that day he found :
“Her wrist has settled down over the last few weeks and she is now quite comfortable, has been able to return to work and complete normal duties.
She has only very minimal tenderness over the distal ulna and at this stage I don’t think any further intervention or follow-up is required but of course would be happy to see her again at any time should that be needed.” (PCB 66)
63 The plaintiff’s solicitors also had the plaintiff attend for medical assessment upon Mr John Aloysius Henderson, orthopaedic and general surgeon, on 8 March 2017. His report was not made available until Saturday, 20 May 2017, that is, only a few days before the commencement of the hearing of this application.
64 Counsel for the defendant objected to it being received and considered. I determined to admit it into evidence nevertheless for reasons which I gave at the time.
65 Mr Henderson concluded that the tear in the “TFCC” was caused by the accident rather than being the result of degeneration, as Mr Anstee (PCB 56-60) believed. (PCB 78)
66 Mr Henderson said there was also “a very serious ulnocarpal impingement injury (ulnocarpal abutment syndrome): as a result of the distal end of the ulna bone being rammed hard up against the lunate bone in the proximal row of carpal bones in the carpus, which is the proximal part of the hand.” He said that some of her wrist pain “was actually relieved by the `synovectomy and debridement’ procedure” carried in May 2015, but that she still had “constant troublesome pain whenever she uses her right hand to actually do anything”. He said she had a troublesome right side grip strength weakness. (Ibid)
67 He said, “In my opinion, Kerry’s dominant side right hand is now permanently maimed, quite substantially, as a result of the multiple injuries she sustained in this [2014 fall] accident”. (PCB 80) He said those injuries have now “completely stabilised”. (PCB 81)
68 He provided an assessment in accordance with the 4th edition of the AMA Guide, working out to 22 per cent impairment of the whole person. (PCB 84)
69 The defendant had the plaintiff examined on 5 April 2016 by Dr Roy Karna, rheumatologist, who provided a report to the WorkCover insurer by letter dated 6 April 2016. Dr Karna said, “From a diagnostic perspective she has effectively therefore residual symptoms and mild dysfunction of the right wrist after a soft tissue injury treated surgically”. He assessed her for the purposes of the AMA Guides as having 8 per cent impairment of the upper extremity converting to a 5 per cent whole person impairment. He said that he believed her condition had stabilised. (DCB 4)
70 The defendant also had the plaintiff assessed by Mr John Buntine, hand and reconstructive surgeon, on 29 March this year for medico-legal purposes. According to the history taken by Mr Buntine throughout the period since the 2014 accident “Mrs Avery…has been troubled by persistent pain affecting the ulnar side of her right wrist”. He said, “I noted slight tenderness over the dorsal aspect of the right TFCC and that extension of the right wrist was slightly limited, apparently by discomfort at the site of the triangular fibrocartilage, but I noted that right lateral epicondylitis had subsided completely.”
71 He said:
“Mrs Avery is troubled by right ulnocarpal impingement which is essentially a developmental condition – the ulna is unduly long in comparison with the radius (positive ulnar variance). Claims concerning aggravation of ulnocarpal impingement by a person’s work commonly relate to the ongoing nature of the work undertaken and the activities described by Mrs Avery at work over a considerable period of time would be consistent with some aggravation of the condition by her work. Aggravation by a specific injury such as a fall is less commonly considered but presumably can occur at times. It seems that right lateral epicondylitis may have resulted from her hand therapist’s attempts to strength her right arm but, in any case, this condition has completely subsided and the work she performs would not seem likely to cause a recurrence of the condition.” (Defendant’s Court Book (“DCB”) 10)
72 He continued:
“Ulnocarpal impaction is essentially a degenerative condition which progresses slowly and more rapidly if the condition is aggravated by a person’s employment but, with respect to this condition, activities such as vigorous repetitive gripping and manipulation of moderately heavy objects is more likely to cause further damage than the type of relatively light manipulative activities Mrs Avery undertakes at work and she has described no non-work related activities likely to significantly aggravate the condition.”
73 He said he believed that her work activities over a long period of time and her fall had “mildly aggravated right ulnocarpal impaction”. He said that arthroscopy and debridement “can improve ulnocarpal impaction for a short period of time only” and the impaction seen by him would be treated “ordinarily [by] shortening of the shaft of the ulna”. He said such treatment was “best avoided unless the condition is moderately severe”. He said the plaintiff “may be able to continue her present light duties until what could be considered a normal age of retirement [and with] continued cautious use of a non-steroidal anti-inflammatory agent and a mild analgesic is appropriate.” (DCB 11)
74 The plaintiff also placed into evidence the WorkCover insurer’s determination by way of letter dated 20 April 2016 by which liability was accepted for an injury to the right wrist occurring on 15 July 2014, resulting in a whole person impairment of 5 per cent. (PCB 27-28)
Conclusions
75 Mr Fehring, who appeared with Mr Pierorazio for the plaintiff, in his closing address said he remained unclear whether the defendant was denying that his client had suffered an injury at all. Some of the cross-examination based upon the apparently constitutional issues with the plaintiff’s right wrist might have implied a denial that she suffered an injury at all. Mr Fehring conceded that the treating practitioners, at least initially, were unable to reach a confident diagnosis. He referred to Mr McCombe’s report to the plaintiff’s general practitioner of 30 June 2015 where he said:
“It is difficult to interpret Kerry’s symptoms given how diffuse they are.” (PCB 47)
76 Ultimately, however, following further investigations and the conduct of arthroscopic surgery, according to Mr Fehring, Mr McCombe settled upon a diagnosis and concluded that his client had suffered an injury. Mr Fehring referred to Mr McCombe’s statement that the plaintiff “had sustained an injury to her right wrist when she fell in July 2014”. (PCB 52) There was in addition, said Mr Fehring, the acceptance of liability by the defendant under ss91, 98C, 98E and 104B of the Accident Compensation Act by Mr McCombe in his report dated 20 April 2016. (PCB 27–29)
77 I accept Mr Fehring’s submissions on this point. Mr Middleton in his closing address did not distinctly admit that the plaintiff had suffered an injury, but he did say that this was a “range” case. (T73, L17)
78 Mr Fehring submitted that there were two conditions bearing upon his client’s injury. One was right ulnocarpal abutment with ulnocarpal joint synovitis, and the other was triangular fibrocartilage complex perforation. He conceded, as the medical opinions necessarily required, that the first of those conditions, which is also described in some of the reports as positive ulnar variant is not caused traumatically.
79 The clinical notes from the plaintiff’s general practitioner’s clinic, which commence from 9 April 2013, record a past medical history as at 10 June 2005 as “Wrist Pain – WorkCover – Right”. Again, as at the same date, there is an entry relative to “wrist pain”. The precise source of the history, given that it deals with events almost a decade before the plaintiff came under the care of this clinic, was not elucidated.
80 The plaintiff denied that she had made a WorkCover claim for her right wrist. Her case was that prior to the event in July 2014 her right wrist had not been problematic at all. Granted that the burden of proof in a serious injury application lies upon the plaintiff, in denying this matter she has done all that she can to prove the negative: namely, that she did not, in June 2005, make a WorkCover claim relative to her right wrist. Moreover, the existence of a claim or otherwise should be, if not peculiarly within the knowledge of the defendant Authority, at least well within its knowledge. No claim records were produced. Accordingly, I put aside any suggestion that the impairment of the plaintiff’s right wrist dates from 2005.
81 A further embarrassment to the plaintiff’s case that she suffered no right wrist injury or disability before July 2014, derives from the report of Ms McIntosh, the hand therapist, at PCB 41, where she recorded that the plaintiff came to her for hand therapy to the right wrist on 21 August 2014, reporting that she had had pain for the last 10 weeks that was “exacerbated by a fall which occurred at work 6 weeks ago”. Again, the plaintiff denied that she had suffered pain to the right wrist before the fall. She was unable to offer an explanation as to how, in those circumstances, Ms McIntosh came to record this history. In the face of the plaintiff’s denial, however, I should reject the notion that the impairment or disability of the wrist dates from a period of six weeks before the fall which is the subject of this proceeding.
82 Once one makes that finding, it must follow that the constitutional abnormality in the plaintiff’s right wrist constituted by the slightly excessive length of the ulnar bone was asymptomatic prior to the fall in July 2014. This is consistent with the Authority’s acceptance of liability for an injury as at that date and the opinion of rheumatologist Dr Roy Karna in his report to the WorkCover insurer of 6 April 2016 that “From a diagnostic perspective [Mrs Avery] has effectively therefore residual symptoms and mild dysfunction of the right wrist after a soft tissue injury treated surgically.” (DCB 4)
83 General surgeon Mr Henderson opined that the tear to the triangular-shaped fibrocartilaginous disc occurred in the course of the fall. (PCB 78) Mr McCombe was of the view that the tear was the result of degeneration, as stated in his report to Dr Vigneswaran of 7 August 2015. (PCB 51) Given that Mr McCombe is a specialist in hand surgery, which is, it seems, a very specialised field of surgery according to advice given by Mr Toma to Dr Libin Wang at the general practice clinic on 4 December 2014 (Clinical notes, DCB 20), I should prefer the opinion of Mr McCombe, who is both a specialist in this field and the treating surgeon who, in the course of the surgery, had the advantage of viewing the pathology directly himself, rather than mediated through some process such as an MRI.
84 Mr Fehring submitted, however, that once it appeared that it was the accident which rendered the tear symptomatic, a sufficient causation had been established for the purposes of his client’s application. Mr Middleton, in his address in reply, observed that Mr McCombe did not make a distinct finding that it was the fall which rendered the tear symptomatic. (T120, L9–24) Nevertheless, the temporal connection between the fall and the onset of the symptoms renders the conclusion inescapable, whether it was a finding made explicitly by Mr McCombe or not. The defendant’s expert, Mr Buntine, did not exclude the possibility of an aggravation to ulnocarpal abutment.
85 Based on this finding of the occurrence of injury, I now turn to the “range” issue: that is, whether the injury so found to have been suffered merits the description “serious” within the definition of s134AB.
86 Mr Fehring relied on the judgment of Tate JA in Sutton v Laminex Group Pty Ltd [2011] VSCA 52, concurred in by Ashley JA and Hargrave AJA, where her Honour said at paragraphs [46]–[50]:
“46. The pain and suffering consequences of a compensable injury extend beyond the physical experience of pain to include the debilitating effect on a person’s life. Drawing on the accepted interpretation of ‘pain and suffering’, Maxwell P in Haden Engineering Pty Ltd v McKinnon said:
[T]he ‘pain and suffering consequence’ of an injury encompasses both the plaintiff’s experience of pain as such and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life. …
The experience of pain
As to the experience of pain as such, the Court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale ‘mild/moderate/severe’. Unless the pain is constant, the Court will need also to assess the frequency and duration of the pain episodes.
The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
(b) what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c) what the doctors say about the extent and intensity of the plaintiff’s pain; and
(d) what the objective evidence shows about the disabling effect of the pain.
47. Relevantly to the issues on this appeal, Maxwell P pointed out that the first evidentiary basis will turn on an assessment of a plaintiff’s credit. He said:
As to (a), the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility. The Court will make its own assessment of the plaintiff’s credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.
48. An assessment of the fourth evidentiary basis must be tempered by an understanding of the effect of stoicism. Approving what was said in Dwyer v Calco Timbers Pty Ltd (No 2) by Nettle JA, Maxwell P observed:
As to (d), the cases recognise that some plaintiffs may be more ‘stoical’ than others. This means that such a plaintiff is, to an unusual degree, prepared to endure pain in order to maintain a desired level of function. The injury suffered by the ‘stoical’ plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain. In such a case, the ‘objective’ evidence of the disabling effect may be of less significance than usual.
49. To identify the disabling effect of pain requires an understanding both of a plaintiff’s pre-injury and post-injury employment and activities, although this does not amount to a simple comparison. As Maxwell P explained:
The disabling effect of pain
As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this Court (per Ashley JA) said in Dwyer (No 2): ‘ … [I]mpairment is concerned with what has been lost. But the significance of what has been lost … may be informed, to an extent, by what is retained.’
As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account. What matters in this regard is to the extent to which ‘an area of work which [the plaintiff] enjoyed has been closed off to [him or her].’
50. Assessing loss of enjoyment of life, in a broad sense, requires an understanding of the effect of the impairment upon numerous aspects of a plaintiff’s daily life and activities. In this respect, Maxwell P said:
Capacity for work aside, assessing the extent to which the pain interferes with the ordinary activities of life will typically involve consideration of its effect on the plaintiff’s:
· sleep;
· mobility;
· cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);
· capacity for self-care and self-management;
· performance of household and family duties;
· recreational activities;
· social activities;
· sexual life; and
· enjoyment of life.
Whether and to what extent the matters listed are relevant to the court’s task in a particular case will, naturally, depend on the circumstances of the case.”
87 Mr Fehring submitted that the continuing pain reported by the plaintiff, with all that flowed from it by way of consequences, should be found to meet the statutory test in light of those principles.
88 I turn, therefore, to the application of the principles which we find in Sutton’s case. As to the experience of pain, the plaintiff’s evidence was clear and definite. She suffers pain on a continuing basis. This affects her ability to do her work, she says, and this is corroborated by her husband’s evidence that there are occasions when pain prevents her altogether from carrying out household duties. She has given similar histories to doctors. The later reports from Dr Vigneswaran, her treating general practitioner, have given an impression of her injury much more favourable than the plaintiff’s evidence. The doctor said on at least two occasions that he believed her pain or injury had resolved. On the other hand, in the second of the reports in which he made this statement, he recorded an attendance by Ms Avery in which she complained to him of “excruciating” pain and Ms Avery gave a plausible explanation as to the relative lack of attendances for wrist pain at the doctor’s clinic, saying that there was little which the doctor could offer apart from analgesia which she was already taking.
89 Ms Avery has had relatively little treatment in recent times. Again, her explanation as to there being little which her general practitioner can offer to her seems plausible. Mr Middleton noted Mr McCombe’s expression of a willingness to assess her further with a view perhaps to carrying out surgery in the event of a further deterioration in her condition. Certainly, the tone of his reports was favourable to dealing with the injury conservatively rather than by further surgery. It is, therefore, unsurprising that Ms Avery has not sought a further specialist referral to him.
90 None of the practitioners has suggested, as I read their reports, that there has been any embellishment on Ms Avery’s part and the reports of her pain.
91 Pain is by its very nature a subjective experience. The existence of pathology discovered on MRI scan and subjected to surgical adjustment provides an objective basis for Ms Avery’s complaint.
92 The consequences of the continuing pain have not been overwhelmingly severe. Neither of her affidavits complains as to disturbance of sleep.
93 She makes frequent though not daily use of analgesia to manage her pain.
94 Ms Avery described difficulties in grooming and dressing; difficulties in performance of her household and family duties; a restriction on her recreational activities and her enjoyment of life. It falls far short of the worst cases which come before the Court. Nevertheless, in my view, it is just sufficient to qualify to be “fairly described as being more than significant or marked, and as being at least very considerable”.
95 Axiomatically, in judging what has been lost and, therefore, the seriousness of the consequences of an allegedly serious injury, one must consider not only the losses but also those things which have been retained. Mr Middleton submitted that whilst there was no rule which meant that return to full time employment duties negatived the existence of a serious injury for the purposes of her pain and suffering, this was a very strong negative consideration. He referred to the decision of the Court of Appeal in Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292. In Sumbul’s case, Chernov JA said:
“If one accepts, as her Honour [the trial Judge] did, that the appellant is physically able to return to alternative employment, then, unless there was some other evidence that showed that he experienced significant pain or that he otherwise significantly suffered physically from the injury, it would ordinarily be difficult to conclude that the pain and suffering consequences of it are ‘at least very considerable.’ In my view, there was no such evidence before her Honour.” [2006] VSCA 292, 24
96 In the present case in contrast to Sumbul’s, there has been evidence that Ms Avery experienced significant pain, which evidence I have just referred summarised. It is set out in greater detail above. Sumbul’s case is not about to success for Ms Avery.
97 As previously noted, this is far from the clearest case in which leave should be granted, but in my view there is just sufficient to justify the grant of leave and I so order.
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