Aydin v Containerliners Australasia Pty Ltd

[2009] VCC 794

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE

CIVIL DIVISION

Case No. CI-08-04127

ILHARMI AYDIN	Plaintiff
v
CONTAINERLINERS AUSTRALASIA PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE BOWMAN
WHERE HELD:	Melbourne
DATE OF HEARING:	10 and 11 June 2009
DATE OF JUDGMENT:	10 July 2009
CASE MAY BE CITED AS:	Aydin v Containerliners Australasia Pty Ltd
MEDIUM NEUTRAL CITATION:	[2009] VCC 0794

REASONS FOR JUDGMENT

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Catchwords: Accident Compensation Act 1985 – s.134AB – application for leave in respect of pain and suffering damages – injuries relied upon being bilateral carpal tunnel syndrome, but essentially right upper limb – whether surgery unsuccessful – subsequent nerve conduction studies essentially normal – reservations concerning credibility of plaintiff – “range” case – whether burden of proof discharged.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Nightingale	Opie & Co.
For the Defendant	Mr D Myers with	Herbert Geer
Ms C Holland
HIS HONOUR:

Background

1 This matter comes before me by way of an application pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”.

2          The plaintiff seeks leave to bring proceedings in respect of pain and suffering damages only, and, in so doing, relies solely upon limb (a) of the definition of “serious injury” contained in s.134AB(37) of the Act. It was made clear at the opening of the application that, whatever may have been the situation previously, reliance upon limb (c) was not maintained, and that leave in respect of pecuniary loss damages would not be pursued.

3          I will not set out here the numerous authoritative decisions of the Court of Appeal which are relevant. I have referred to them in many previous cases.

4          It was made clear at the outset that the injury upon which the plaintiff is relying is that to the right upper limb. Mr Nightingale, on behalf of the plaintiff, stated that the plaintiff was not seeking to aggregate any impairment of the upper limbs, and also effectively conceded that, if the consequences of injury and impairment of the right arm did not satisfy the statutory test, those relating to the left arm would also fail. It should be said that the injury upon which reliance was placed is, in essence, carpal tunnel syndrome and its sequelae as a result of forceful and repetitive work. The injury first became manifest in approximately April 2002. There was no argument but that the plaintiff bears the burden of proof in this matter.

5          As stated, Mr M Nightingale of counsel appeared on behalf of the plaintiff. Mr D Myers with Ms C Holland, both of counsel, appeared on behalf of the defendant. The plaintiff gave evidence and was cross examined. The balance of the evidence was documentary in nature and was tendered by consent, which was a most sensible and cost-effective manner in which to run an application such as this. Counsel for each party also made thorough and helpful submissions.

Factual background

6          The following findings of fact are made for the purposes of this application and are not intended to be findings which are in any way determinative in relation to issues of negligence, the quantum of damages, entitlement to statutory benefits and the like.

(i) The plaintiff

7          The plaintiff struck me as a somewhat different individual whose evidence was not always reliable. As Mr Nightingale put the situation in his opening, and “quite bluntly” to use his words, the plaintiff’s original affidavit reveals that he is “…one of those people or one of those families (sic) who have sort of developed into a welfare family type over the years”. Indeed, it would appear that, prior to commencing employment with the defendant on 4 April 2002, he had worked approximately one year or less in the preceding 10 years. He then worked for the defendant for a little over four weeks before ceasing because of the injuries the subject of the present application. Of course that does not mean that the injuries under discussion are any less real or significant, but these matters were put squarely by Mr Nightingale in his opening, in part explaining why the plaintiff would have faced difficulties in relation to a claim based on loss of earnings.

8          In evidence the plaintiff was quite frank about some of these matters. He stated that welfare had been paying more than what he could have obtained in a job. He also agreed that he owned an investment property which he had bought in 1987. He admitted that, in at least one tax return that was put to him during cross-examination, there was no reference to any income from this investment property. I should add that, as any application based on economic loss was abandoned at the commencement of the case, I cautioned Mr Myers as to how far cross examination along these lines could go, but allowed a certain amount of questioning on the basis of credit and the argument that, if the plaintiff was not being honest in his dealings with the Taxation Office, he might also not be honest in his dealings with the court. However, I made it clear that there were limits to this line of cross-examination.

9          In any event, the plaintiff also gave evidence that he had told lies concerning receiving cash in hand working in a market garden in order to obtain employment with the defendant, and denied that he had ever done such work for cash. I refer to some of these matters to underline the fact that the plaintiff impressed me as a somewhat unusual individual whose evidence was at times disarmingly frank, but which evidence also caused me to have some reservations concerning its reliability. Whilst pecuniary loss may not have been an issue, I was also not particularly impressed with the plaintiff’s evidence concerning his attempts at light duties and his changing doctors essentially because of problems with his certification for work. Indeed, whilst it may not have been a central issue in an application based upon pain and suffering, I was unimpressed generally with the plaintiff’s attitude towards return to work plans and cooperation with attempts at rehabilitation.

10        In summary, whilst the plaintiff was quite frank about some issues, his evidence was of a more dubious quality in relation to others. Overall, I do not regard him as a witness upon whose word complete or substantial reliance could be placed.

(ii) The plaintiff’s background, training, employment and health prior to the injury

11        As the application became one solely for leave in relation to pain and suffering damages, the discussion under this heading is more limited than might otherwise be the case.

12        The plaintiff is aged 43 years, having been born on 10 November 1965. He came to Australia in 1973, and was educated only to Form 1 level. He is a married man with four children, their ages ranging from approximately 10 to 20 years. His employment background is that he worked as a labourer at a rope factory for approximately two years in 1980 and 1981 before returning to his native Turkey for approximately one year. Upon coming back to Australia, he worked as a labourer at General Motors Holden for approximately 12 months, before returning again to Turkey where he did some casual work and army service. He came back to Australia again in 1986 and obtained re- employment in the rope factory which had previously engaged him, working there for some six and a half years until 1992, when he claimed he was unjustly sacked. He then did not work for approximately three years before obtaining employment in a meat works as a slicer. He was then made redundant before obtaining employment with a company called Britex as a machine operator, remaining there for six months. He was then again unemployed before commencing employment with the defendant on 4 April 2002. There is nothing to suggest that he had previously sustained injury to the hands and wrists, or suffered from any complaint in this regard.

(iii) The injuries

13        The plaintiff commenced work with the defendant on 4 April 2002. His work was repetitive in nature, involving the cutting of holes in plastic liners for containers. He did this for approximately a fortnight, before transferring to other duties which were also repetitive and which involved the placing of the holes onto aluminium rims. This was the work that he performed all day, and with some overtime. He commenced to suffer pain and numbness and swelling in both hands, but particularly the right hand.

14        On 26 April 2002 the plaintiff attended his original general practitioner, Dr Uluca. The plaintiff was complaining of left and right hand numbness. He again attended Dr Uluca on 8 May 2002 when right forearm tenosynvitis and right carpal tunnel syndrome were diagnosed. Medication was prescribed. He was certified as being unfit for work on that day and fit for modified duties thereafter. The plaintiff returned to Dr Uluca on 9 and 10 May 2002 and was given certificates for those days. He saw his general practitioner again on 17 May 2002 and was given a certificate that he was unfit for work for two days and thereafter fit for modified duties.

15        Dr Uluca reviewed the plaintiff on 24 May 2002 upon which occasion the plaintiff was exhibiting symptoms and signs of bilateral carpal tunnel syndrome. He revisited Dr Uluca on 6 June 2002 and 11 June 2002, obtaining certificates for a couple of days off work but basically being certified as fit for alternative duties. He last saw Dr Uluca on 13 June 2002 complaining that his employer was not giving him modified work. Dr Uluca encouraged him to do modified work and a discussion took place between Dr Uluca and the plaintiff’s manager. As a result, it was decided the plaintiff could work with a staple gun weighing less than three kilograms, but that he was not to use scissors. The plaintiff returned later on the same day saying that he could not do any work at all and asking for a certificate stating that he was unfit for work. Dr Uluca refused to provide same and, to quote from his report, the plaintiff “left angrily and has not been seen since”.

16        The plaintiff then attended upon Dr Rowais, of whom he had been a regular patient since 1992, but first consulted that doctor in relation to the relevant injuries on 14 June 2002, the day after leaving Dr Uluca’s surgery. Dr Rowais diagnosed bilateral severe carpal tunnel syndrome and referred the plaintiff to Mr Damien Jensen. Apparently Mr Jensen carried out nerve conduction studies which confirmed the existence of bilateral carpal tunnel syndrome, more advanced on the right, and sought approval of the defendant’s insurer to carry out decompression surgery. A delay in gaining such approval then occurred, causing both Dr Rowais and Dr Jensen to complain about the handling of the matter. It would seem that the insurer was still concentrating on return to work plans.

17        What followed thereafter is not entirely clear. A return to work plan involving modified duties was prepared and apparently, on 20 December 2002, met with the approval of Mr Jensen. Dr Rowais approved it in January 2003. The plaintiff would not accept it or agree to its implementation. I gather this may have had some bearing upon a refusal by the defendant to accept the plaintiff’s claim or some features thereof. What ensued was described by Mr Nightingale in his opening as “…a fair bit of argy-bargy…between the plaintiff and the doctors and the WorkCover authority so that there was never any approval granted for the suggested decompression bilaterally made by Mr Jensen”.

18        Ultimately on 21 May 2006 the plaintiff was reviewed by Mr B Kavar, neurosurgeon, at the Western Hospital. He diagnosed bilateral carpal tunnel syndrome with some early thenar wasting more on the left, where there was also greater abduction weakness. There was a positive Tinel sign bilaterally. Nerve conduction studies were to be performed. Apparently these were carried out, and on 27 April 2006 the plaintiff underwent a left carpal tunnel decompression apparently performed by or under the supervision of Mr Nick Maartens, consultant neurosurgeon. At surgery the median nerve was found to be quite tightly compressed but otherwise normal and the operation proceeded uneventfully. When reviewed at the Western Hospital on 14 June 2006 the plaintiff no longer had numbness down his left hand, whilst still some pain on and off at the operation site. Examination revealed that the wound had healed very well and that there was no muscle wasting noted in the left hand. Arrangements for carrying out the right carpal tunnel release were contemplated.

19        When seen again by Mr Maartens on 9 August 2006 the symptoms in the left hand had resolved except for a mild discomfort in the first interspace, the wound pain had decreased significantly and was improving, and the plaintiff wanted the operation on the right side to be performed.

20        The right carpal tunnel decompression was in fact carried out on 26 October 2006. When reviewed by Mr Kavar on 20 February 2007, the plaintiff was described as doing extremely well. He had no symptoms in his left hand. The carpal tunnel syndrome symptoms had resolved in his right hand, but he had noticed some discomfort either in his thenar area or part of his palm region, and this was worse with certain activity. Mr Kavar expressed the opinion that he suspected that this represented some element of weakness rather than any problems relating to the decompression. He noted that the wounds had certainly healed well and that there was no thumb abduction weakness. The plaintiff was discharged from the clinic and encouraged to continue with regular exercise.

21        The plaintiff claims in his affidavit of 8 May 2008 that the surgery to the right wrist did not make a difference, and that his left wrist again caused symptoms of swelling and pain particularly when he was employed for approximately four and a half months in approximately July 2007 doing some landscape gardening work with the Sunshine Council, this being pursuant to a Centrelink initiative. His work involved some watering, sweeping, the lifting of rocks and digging. However, there is no record of the plaintiff attending again at the Western Hospital.

22        At the request of his solicitors, the plaintiff was reviewed by Mr Peter Mangos, general surgeon, on 28 April 2009. Mr Mangos took a history from the plaintiff that, following the surgery, the plaintiff felt no apparent improvement in symptoms of either hand, and that the numbness and tingling were still present. The plaintiff felt that he had not recovered sufficiently to return to any form of regular hard work. The plaintiff requested that further EMGs be performed. Mr Mangos examined the plaintiff and found no wasting or deformity or neurological deficit in the upper limbs and that wrist movements were satisfactory. He thought that sensation to pinprick and touch were present but slightly dulled particularly in the fingertips, but that there was no wasting of the thenar muscles nor swelling of the joints. Mr Mangos stated that it appeared that the plaintiff had made a very unsatisfactory recovery from the surgery (this opinion seemingly based largely upon the plaintiff’s account). He also expressed the view that the plaintiff needed EMGs in order to ascertain what his present state was.

23        Further nerve conduction studies were in fact carried out by Dr David Freilich, neurologist, the plaintiff having been referred by Dr Rowais. These studies were carried out on 5 May 2009. The conclusions are as follows:

“1.	On the left side median nerve conduction at the wrist is mildly abnormal and similar to the test on 27.9.02.
2.	On the right side nerve conduction is normal.”

24        Perhaps surprisingly, when Mr Mangos reviewed these results, he specifically did not alter his opinion regarding the plaintiff’s diagnosis and “workability”. Dr Rowais, in a report of 19 May 2009, referred to the right carpal tunnel syndrome release operation as being successful in relieving the plaintiff from pains, pins and needles, muscle weakness and the like, but also referred to the recent nerve conduction study as demonstrating nerve entrapment on the left side. This report concentrates to a very considerable extent on capacity for employment and restrictions thereon. However, it is also to be borne in mind that the plaintiff is essentially bringing this present application on the basis of injury to the right upper limb. The recent nerve conduction studies have shown mild abnormality on the left side and no abnormality on the right.

25        In 2002 the defendant organised for the plaintiff to be seen by Dr Elizabeth Lenaghan who also seems to have been involved in the return to work plan, and by Dr Chris Baker. He was also involved in assessing a rehabilitation program. With the passage of time and the intervening surgery and nerve conduction studies, the reports of these doctors have become largely irrelevant. That is particularly so as there is no real dispute as to injury or causation, and the application has been abandoned insofar as it relates to pecuniary loss.

26        The defendant has also had the plaintiff examined by Dr Roy Karna, rheumatologist, on 15 July 2008 and 12 May 2009. At the time of his earlier examination, Dr Karna found positive results to carpal tunnel provocation testing and diagnosed bilateral carpal tunnel syndrome, although expressing the view that it was not work related. He also took a history that the surgery did not alleviate symptoms. He suggested verification by means of follow-up nerve conduction tests. By the time of his second examination, the testing conducted by Dr Freilich had been performed and reported upon, and Dr Karna had access to such report. On this occasion examination in relation to muscle bulk, grip strength and the like was good and the carpal tunnel provocation testing was equivocal bilaterally. Dr Karna’s conclusion, and having viewed the report of Dr Freilich, was that the plaintiff had mild residual symptoms post carpal tunnel decompressive surgery with no ongoing evidence of continuing median nerve compression/carpal tunnel syndrome.

27        In relation to the injuries sustained, the end result is this. I am satisfied that the plaintiff did develop bilateral carpal tunnel syndrome and that this was brought about by reason of the repetitive work which he performed. I do not accept that the work was productive of only a brief aggravation of a constitutional condition (Dr Karna’s opinion is at least partly to this effect). I accept that the effects of the repetitive work, brief as it was, produced the bilateral carpal tunnel syndrome, and that this persisted until the decompression surgery in 2006.

28        I am of the opinion that the plaintiff no longer suffers from bilateral carpal tunnel syndrome, surgery having been effective. There may still be mild symptomatology of such a syndrome on the left side, but the recent nerve conduction test supports the proposition that the plaintiff no longer has right- sided carpal tunnel syndrome. That does not automatically mean that he does not suffer from some symptoms in the right hand and wrist, but it seems to me that the clear bulk of matters found on examination, when linked with the normal nerve conduction study, point to the fact that the surgical release on the right side has been successfully performed. I also tend to agree with the submissions of Mr Myers that the absence of muscle wasting can be a useful guide as to the performance and activity of the right hand.

29        Reliance being placed on limb (a) of the definition, consequences of a psychological or psychiatric nature are not to be taken into account pursuant to s.134AB(38)(h). It would seem that the plaintiff became distressed when there was considerable delay prior to the performance of the surgery. I note that he attended Mr George Tsironis, psychologist and hypnotherapist, between 4 October 2005 and 16 January 2006. Mr Tsironis has not seen him since and concluded his report by saying that the plaintiff’s prognosis remained guarded as he was extremely fearful of having an operation. Of course, the operations have since come to pass. I do not regard psychological or psychiatric factors as playing a significant role in this application, whatever may have been the situation in late 2005 and early 2006. In any event, in accordance with s.134AB(38)(h) they shall not be taken into account.

(iv) The plaintiff’s rehabilitation and progress since the injuries and the surgery

30        There being no application in respect of pecuniary loss, not a great deal need be said in this regard. I have already discussed some aspects of the plaintiff’s rehabilitation. I have referred to the fact that apparently he engaged in some work with the Sunshine Council as part of a Centrelink initiative. He has continued to attend Dr Rowais although the frequency of such attendance is not entirely clear. The only other development of note has been the recent nerve conduction studies.

Ruling

31

I agree with counsel that this is essentially a “range” case in that issues such as causation, pre-existing or underlying conditions, wage rates and the like do not take centre stage. Rather, it is a case where the basic question to be determined is whether, when the appropriate comparisons are made, the plaintiff satisfies the statutory “very considerable” test. Various decisions of the Court of Appeal are to be borne in mind in this regard.

32

Having reviewed the evidence and considered the submissions, I am of the view that the plaintiff has failed to discharged the burden of proof in relation to the injury to the right upper limb. As Mr Nightingale pointed out at the commencement of the hearing, if the plaintiff failed in relation to his right-sided injury, it was essentially conceded that he could not succeed in satisfying the test in relation to his left upper limb. Whatever be the situation, I am of the view that he also fails in relation to his left-sided injury. I shall deal principally with the injury to the right upper limb, it being the one upon which reliance was placed. My reasons for arriving at the conclusion that the plaintiff has not discharged the burden of proof are as follows, and they are not listed in order of importance:

(a)	Nerve conduction studies carried out by Dr Freilich indicate no abnormality on the right side. The nerve conduction is described as normal. The recent examination carried out by Dr Karna revealed good thenar muscle bulk preservation bilaterally and a normal keratinisation pattern. The plaintiff’s pincer grip strength and general grip were good. There were no features of autonomic dysfunction. Grip strength was normal. Carpal tunnel provocation testing was equivocal bilaterally, but Dr Karna came to the conclusion that the plaintiff does not continue to suffer from bilateral carpal tunnel syndrome in the context of having continuing medium nerve compression and has only some mild residual symptoms of pain in the wrists with intermittent tingling. When examined by Mr Mangos on 29 April 2009, the plaintiff’s upper limbs revealed no wasting or deformity and no neurological deficit. Moderate tenderness was noted underneath the small scars at the site of the operations. Wrist movements were satisfactory. Sensation to pinprick and touch were present and only slightly dulled. There was no wasting of the thenar muscles nor swelling of the joints. In other words, the signs and symptoms to be found on recent examination by both specialists could be described as modest indeed. Combining these with the largely normal results found upon nerve conduction studies leads me to the view that any organic injury is indeed in the range of modest to minor.
(b)	Many might consider it somewhat strange that Mr Mangos stated that the plaintiff needed to have further EMGs in order to ascertain what the present state of affairs was and yet, when these were performed and produced essentially normal results (and completely normal on the right side), he in no way altered his opinion. Admittedly he was concentrating more upon the plaintiff’s work capacity, but he had also accepted that the plaintiff made a very unsatisfactory recovery from surgery and that surgery was performed without obvious improvement. Indeed, the statement that the plaintiff needed further EMGs follows immediately upon, and in the same sentence, as the observation that the surgery did not result in obvious improvement. One wonders why the need for further testing should be highlighted if an essentially normal result was going to have no effect upon a previous expressed opinion of very considerable and permanent incapacity. I prefer the approach of Dr Karna who was prepared to accept the presence of bilateral carpal tunnel syndrome whilst also suggesting further nerve conduction tests, and was then prepared to modify his views in light of the results. Save for his observations concerning temporary aggravation of a constitutional condition, I generally prefer the views expressed by Dr Karna.
(c)	In stating that the surgery was unsuccessful and that the plaintiff made a very unsatisfactory recovery, Mr Mangos does not seem to have had regard to the various reports from the Western Hospital. Indeed, it is not even clear that he had them before him. Those reports, which include accounts of both the surgery and of subsequent reviews, paint a picture of successful surgery. For example, the review of the left decompression carried out on 14 June 2006, some six weeks after the surgery, includes reference to the plaintiff saying that he has no more numbness down his left hand and has pain on and off at the operation site. Inspection revealed that the wound had healed well and there was no muscle wasting. By 9 August 2006 the symptoms in the left hand had resolved except for a mild discomfort in the first interspace, the wound pain had decreased significantly, and the plaintiff wanted the right side done. The review on 20 February 2007, almost four months after the surgery to the right wrist, included a reference to the fact that the plaintiff was doing extremely well following his bilateral carpal tunnel decompressions. He had no symptoms in his left hand. The carpal tunnel symptoms had resolved in his right hand, although he had some discomfort either in the thenar area of part of the palm region that was worse with certain activity. This was thought to represent some element of weakness rather than any problem with regards to decompression. His wounds had healed well and he had no thumb abduction weakness. The impression gained is certainly not one of surgery performed without obvious improvement.
(d)	The report of the final review at the Western Hospital was forwarded to Dr Rowais. It concluded with the observation that, if there were any concerns, that doctor should contact the neurosurgeon. As previously stated, that review is dated 26 February 2007. It is apparent from the report of the Western Hospital of 25 April 2009 that the plaintiff did not attend again. There is also no reference to any further contact by Dr Rowais.
(e)	It may be that there can be some ongoing symptoms despite successful surgery. Two visits to Dr Rowais in 2007 would seem to indicate some complaints. Arguably this may be so even if nothing conclusive is found upon physical examination, although the absence of muscle wasting may point to the comparatively normal use of the hands. Despite the histories and observations recorded in the reports of the Western Hospital, the plaintiff has subsequently maintained that the operations were not a success and has listed a number of symptoms and restrictions experienced by him. In the absence of a convincing organic base for these complaints, the credibility of the plaintiff becomes an issue. I do not find him to be a particularly credible witness. Whilst being frank about some issues, he seemed to me to be of doubtful credibility in relation to others. For example, I did not find his denials of his remarks made to Mr Kavar in February 2007 convincing. Whilst pecuniary loss was no longer a central issue, I was not persuaded by his answers in relation to the return to work plan and his reasons for not participating in same. I am not persuaded by his explanation concerning deterioration at that time despite rest. He did not agree with the remarks of Dr Rowais that the surgery of 26 October 2006 was successful in relieving pain, pins and needles, muscle weakness and the like on the right side. In short, his evidence in relation to the conflict between what was recorded by those treating him and his more recent version of events cast doubts upon his credit.
(f)	The evidence of the plaintiff concerning his daily activities was also far from convincing. Under some pressure, he admitted that he uses tools such as a spanner, a screwdriver and a hammer. He conceded that he goes fishing, not as frequently as previously, and sometimes stays overnight on fishing trips even if this be only once a year. He agreed that he told Mr Mangos that he usually spends his day resting, expanding on that by stating that he usually sits at home. On 22 May this year he reported to the occupational and rehabilitation assessors, CoWork Pty Ltd, that, apart from driving children to school, he does no housework or preparation of his own food and remains at home most of the day sitting and watching television. He claimed in cross- examination that he had no interest in sport and did not watch it, but, when pressed, admitted to an interest in horseracing and to attending the TAB at Sunshine or Footscray. Video materials shown revealed the plaintiff attending a TAB at a Sunshine hotel and he also conceded that, when there, he sometimes plays the poker machines. The video material shown to the Court was taken on 19 May this year. It could not be said that it showed the plaintiff engaging in any particularly demanding physical activity, but the plaintiff did appear to be acting in a totally normal fashion and displaying absolutely no signs of discomfort. The plaintiff also agreed that he did such things as mow the lawns perhaps twice a year, do a little bit of gardening, sweep around the house and the like. In summary, aspects of the plaintiff’s range of activities, as revealed during cross-examination do not seem to me to sit well with the description of his symptoms and restrictions given elsewhere. The absence of any ongoing and proven organic basis must also be borne in mind. I do not find him to be a credible witness in this regard. Further, the range of activities in which he can engage appears to be quite reasonable.
(g)	Despite the opinions of Dr Rowais and Mr Mangos, I am far from satisfied that any consequences of substance are permanent within the meaning of the Act. I am of the view that the surgery was successful. I am of the view that there is no organic basis of any substance for ongoing symptoms. It may be that there are some long-term restrictions upon the type of employment in which the plaintiff should engage. I again refer to the opinion of Dr Karna that the plaintiff does not continue to suffer from bilateral carpal tunnel syndrome and that what remains are some mild residual symptoms of pain in the wrists and intermittent tingling. I reject the proposition that the plaintiff has permanent consequences of sufficient magnitude to satisfy the statutory requirements.

I might add that, even leaving to one side the issue of permanence, I am not satisfied that any pain and suffering of the plaintiff prior to surgery is of itself sufficient to satisfy the statutory test. Whilst he became distressed at what was occurring and consulted a psychiatrist is apparent, otherwise not a great deal is known concerning his activities in the period between late 2002 and late 2005. In any event, I am not of the view that the statutory test is somehow satisfied by adopting that approach.

(h) From whatever angle it may be viewed, the injuries sustained by the plaintiff and the consequences of the injuries suffered are simply not enough to satisfy the statutory definition, and that is particularly so in relation to the right upper limb. Given a threshold test of the type contained in the Act, there will be some injuries which are related to employment but fall short of the mark. The bar has been set at a certain level, and the consequences of injury to some plaintiff’s will fall short of it. For all the reasons set out above, and bearing in mind the flimsy organic basis which exists, together with the dubious credibility of the plaintiff, this application fails to clear that bar.

33        In summary, the plaintiff has failed to discharge the burden of proof and the application is dismissed. I shall hear counsel as to any ancillary orders that are required.