Benbow v Road Safety Equipment Australia Pty Ltd (Rsea)
[2019] VCC 2139
•19 December 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-00770
| NARELLE PETA BENBOW | Plaintiff |
| v | |
| ROAD SAFETY EQUIPMENT AUSTRALIA PTY LTD (RSEA) | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 December 2019 | |
DATE OF JUDGMENT: | 19 December 2019 | |
CASE MAY BE CITED AS: | Benbow v Road Safety Equipment Australia Pty Ltd (RSEA) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2139 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment of the left wrist/hand – pain and suffering only – organic basis
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Humphries & Anor v Poljak [1992] 2 VR 129; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326
Judgment: Leave granted to the plaintiff to bring proceedings for damages for pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A D B Ingram QC with Mr C Hangay | Melbourne Injury Lawyers Pty Ltd |
| For the Defendant | Mr N J Dunstan | Minter Ellison |
HER HONOUR:
Preliminary
1 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the defendant on 6 November 2008 (“the said date”).
2 This application, although originally brought under both heads, proceeded in relation to pain and suffering only.[1]
[1]Transcript (“T”) 1
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function said to be impaired is the left wrist/hand.
5 The impairment of the body function must be permanent.
6 Subsection 38(h) of the Act provides that consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities.
8 By subsection (38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which:
“… when judged by comparison with other cases in the range of possible impairments, or losses of a body function or disfigurement, as the case may be, fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable.”
9 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
10 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[2] and Meadows v Lichmore[3] in reaching my conclusions.
[2](2005) 14 VR 622
[3](2013) VSCA 201
11 The plaintiff swore two affidavits. She was not cross-examined. She also relied on an affidavit sworn by her partner, Matthew Cola, on 25 September 2019. Also in evidence were medical reports and other material. I have read all the tendered material.
12 Submissions were made on behalf of both parties. The main issue in dispute was whether the plaintiff’s left wrist/hand impairment is organically based. If that was accepted, it was submitted on the defendant’s behalf, the consequences of any related impairment are not “serious”.[4]
[4]T34
Background
13 The plaintiff is presently aged thirty-two, having been born in April 1987. She is right-hand dominant. She lives in a de facto relationship with Matthew, her partner of twelve years. She has an eight-year-old and eighteen-month-old.
14 The plaintiff completed Year 12 and then commenced a retail traineeship, initially with Coles, but later with Spotlight. She eventually completed and obtained a Certificate III in Retail Services and also a Certificate II in Hospitality in 2008.
15 In 2007, the plaintiff finished with Coles and in April the following year, commenced employment with the defendant, another company in the Spotlight Group. She was employed as a retail sales assistant, although she did some management work at its Epsom premises (”the store”), where she effectively performed the role of assistant manager.
The incident
16 On the said date, the plaintiff was walking down the main walkway at the back of the store to collect an order in the holding bay. As she was walking, she turned around and hit her left wrist forcefully on a moveable rack, a cage display, which was in the middle of the walkway (“the incident”). The pain thereafter was so intense she felt dizzy and her vision went funny before she fainted.
17 The plaintiff attended Bendigo Base Hospital where she had an x-ray of her left hand, which she believed showed no fracture or dislocation. She was told she suffered some nerve damage. She thought her hand was fractured, because she could hardly move it, and she had a sensation of numbness and pins and needles.
18 The plaintiff’s left hand and wrist remained weak, painful, bruised, numb and tingling, and some weeks later, she developed a lump where she was bruised. She also felt she was losing feeling in her fingers. She was told by her general practitioner that she had some nerve damage and bruising.
19 The plaintiff had a further x-ray of her left wrist in February 2009 but, again, no fractures or dislocations were shown.
20 On 9 June 2009, the ganglion on the plaintiff’s left wrist was drained, but subsequently recurred about a week later.
21 The plaintiff then saw Dr Puneet Grover, general practitioner, who sent her for an ultrasound of her left wrist, which was performed on 3 August 2009.
22 About this time, the plaintiff was also referred for a nerve conduction test which she was advised was normal and showed no clear evidence of left carpal tunnel syndrome.
23 The plaintiff was referred to a general surgeon, Mr Graeme Campbell, who diagnosed a volar ganglion in the left wrist and recommended an excision, which was carried out under general anaesthetic on 8 October 2009 (“the first surgery”).
24 The plaintiff was certified fit to return to normal duties on 12 November 2009, but did not return, as the duties were too heavy for her. Because of the weakness in her left hand and wrist, it gave way. She obtained a backdated certificate from her surgeon, but she knew there was no way she could do her pre-incident job. She last worked just before the first surgery.
25 Because of her wrist limitations, the plaintiff tried a return to alternative employment in photography. She had done a night course some years before and thought she would try and start her own business; however, she had problems holding the camera, and on one occasion she dropped and damaged it. Her first professional job at a friend’s wedding caused her so much pain in her left wrist, she never returned to that type of work.
26 The plaintiff also found she was having difficulty with typing or writing, and that the longer she did these activities, the more pain she had. That was the situation with virtually any activity requiring her to put strain on her left wrist and hand.
27 On 4 August 2011, the plaintiff’s general practitioner, Dr Diaz, referred her for an ultrasound of her left wrist. In June 2012, he arranged a further ultrasound. On 20 August 2012, the plaintiff had a further nerve conduction study, as she had persisting complaints of chronic left wrist pain. Dr Diaz referred her for an MRI scan of her left wrist, which was carried out in December 2012.
28 In early 2013, the plaintiff was referred to plastic surgeon, Mr Terry Wu. He thought that surgery would likely result in nerve damage, so he referred her to a hand surgeon, Mr Stephen Tham, whom she saw on 7 March 2013.
29 The plaintiff told Mr Tham of persisting tenderness and pain in the palmar and radial aspects of the left wrist. He eventually operated in November 2013 (“the second surgery”). The plaintiff could recall him telling her that the wrist was a mess and he would fix the tendon as best he could. He also told her that there was a lot of scar tissue in the wrist.
30 On 19 November 2013, because of increased strain placed upon her right upper limb, Dr Diaz referred the plaintiff for an ultrasound of her right wrist.
31 Despite the second surgery and post-operative rehabilitation, the plaintiff continued to experience persistent pain, numbness and weakness in her left wrist and hand. She had difficulties with everyday tasks, such as using a computer. A trial of Lyrica in 2014 failed to provide any lasting relief and, in fact, caused a serious allergic reaction.
32 In 2015, the plaintiff was referred to plastic surgeon, Mr Broughton Snell, who arranged an MRI scan of her left hand and wrist, which was carried out in April 2015. When the plaintiff returned to him, he advised her she was suffering chronic wrist disease and that this was contributing to the carpal tunnel syndrome. He recommended she undergo surgery for that condition, but liability was rejected.
33 Mr Snell carried out a left open carpal tunnel release and synovectomy on 1 June 2015.[5]
[5]Operation record - Bendigo Day Surgery
34 The plaintiff was referred for a nerve conduction study on 26 October 2015, the results of which were thought to be normal and no carpal tunnel syndrome was identified.
35 An EMG study was undertaken on 21 September 2016 at Mr Snell’s request. No pathology was identified, and Mr Snell, not being able to find a reason for the plaintiff’s persisting left wrist and hand pain, discharged her from his care.
36 As at July 2018,[6] the plaintiff continued to experience ongoing and variable levels of pain, weakness and numbness in her left wrist and hand. Weakness and grip strength had been a big problem for her. She had difficulty handling her baby. She found it difficult to lift and carry her, change nappies and attend to her as fully as she would have wished.
[6]Plaintiff’s first affidavit sworn 13 July 2018
37 The bigger the plaintiff’s two children got, the more pain the plaintiff had. That was because of consistent strain placed on her left wrist and, on occasion, she had almost dropped the children when holding them.
38 The plaintiff had difficulty opening jars and bottles because of left wrist symptoms and found that typing or writing also caused worsening symptoms. Gardening also caused symptoms to play up.
39 Pre incident, the plaintiff enjoyed photography and was able to hold a camera for a long time in order to take photographs but thereafter, she had to use a tripod because of difficulties with her left wrist. Even then, she still had problems.
40 The plaintiff previously enjoyed drawing with her left hand and had done some graphic design work, but was no longer able to do it.
41 The plaintiff found her symptoms and pain were worse during the winter months. She tried to avoid taking medication because of the side effects, but the colder weather caused the pain to ramp up. A cortisone injection had provided no pain relief. The reality was that no real treatment had provided any lasting or significant relief of her pain.
42 The plaintiff had difficulty sleeping at night and the lack of sleep meant that she became snappy with family, which could be upsetting to them.
43 The plaintiff had also changed her diet in the hope that it would reduce her pain. She had favoured her left wrist, which meant she also developed right wrist problems. She found it difficult to undertake household chores including cooking, washing and cleaning, because of wrist pain.
44 The plaintiff’s loss of work capacity had been an enormous strain for the family. Matthew was diagnosed with skin cancer, which meant he could not do roofing work any longer, and was then working as an apprentice electrician. All of the financial strains had been on him and she had not been able to assist because of her pain and disability with getting work.
45 In addition to her short-lived attempt working as a photographer, the plaintiff had even attempted to do some of the basis bookkeeping for Matthew’s business, but the typing and computer work flared up her pain, and in the end he had to employ a bookkeeper in order to do this work.
46 The plaintiff swore a further affidavit on 28 September 2019.
47 The plaintiff has continued to be troubled by persisting pain and dysfunction of her left wrist and hand.
48 Numerous radiological examinations over the years have shown inconsistent results: an ultrasound on 7 June 2012, an MRI scan in April 2015 and ultrasounds in February and 20 June 2019.
49 The plaintiff is at a loss to know what should be done in terms of her treatment. Her weakness and grip strength in her left wrist remain very poor. She has difficulty handling her youngest daughter, Shayla, and a number of times has dropped her. The plaintiff finds her ability to manually care for Shayla is significantly restricted. Indeed, the plaintiff’s ability to lift and manually handle objects has been gradually restricted over a long period of time.
50 The plaintiff is right-hand dominant and has relied on that hand to take the additional strain, but has found that with the passage of time, she is also having problems with it. She recalled having an ultrasound on her right wrist, noting the results thereof. Other diagnoses which have been floated have included degenerative osteoarthritis and overuse syndrome.
51 The plaintiff was reviewed by Mr Tham in October 2018 and was then referred to neurologist, Professor Collins. She has also been seen by Dr Blombery and, more recently, by another surgeon, Mr Maloney.
52 From the plaintiff’s own perspective, and in addition to the difficulties referred to above, she has problems playing with her children and engaging in activities fully. Around the house, she continues to have difficulty opening jars and bottles and other like manual manipulative tasks. Her wrist problems typing, particularly with the left, continue. She still needs to use a tripod when doing photography. She has largely had to give away drawing, which was an activity she previously enjoyed.
53 The plaintiff continues to find her pain is worse during winter. Her sleep patterns remain disturbed by pain and she tosses and turns throughout the course of the night. This often leaves her feeling tired, lethargic and irritable during the day, which impacts on her relationships with her family. She continues to take natural remedies, although is beginning to query the extent they are helping her in the longer term.
54 The plaintiff’s inability to work has been a significant loss. Fortunately, Matthew’s medical problems seem to have resolved and he is working in a managerial position for a solar power business, which means he now provides a reliable income. He is also studying an apprenticeship as an electrician. It would have been helpful had she been able to engage in income-earning activity, which would have helped to start lowering their mortgage, giving them more equity in their home.
Lay evidence
The plaintiff’s partner, Matthew Cola, swore an affidavit on 25 September 2019. Therein, he confirmed the plaintiff’s complaints of pain, her treatment regime, domestic and social restrictions, problems working in his business and her difficulties sleeping.
Treaters
55 On 8 October 2009, Mr Graeme Campbell, general surgeon, excised a ganglion on the volar aspect of the plaintiff’s left wrist. At operation, it appeared to be relating to the flexor carpi radialis tendon sheath. There were subsequent post-operative reviews on 15 October and 2 February the following year.
56 The plaintiff then reported she had ongoing pain in the area of the wrist after the surgery and that, on one occasion, heavy bruising had occurred. She also described some mild numbness in the median nerve territory.
57 In summary, Mr Campbell noted the plaintiff developed a volar ganglion of the left wrist which was successfully removed. In 2010, she had ongoing symptoms of pain in the area. She then did not mention any anxiety, depression, sexual or digestive problems.
58 The plaintiff saw hand surgeon, Mr Tham, on referral from Mr Wu, plastic surgeon. She was first seen on 7 March 2013.
59 In his report of September 2013, Mr Tham noted the plaintiff’s concern on presentation was of ongoing tenderness and pain in the region of the palmar and radial aspect of her left wrist – symptoms said to be present both at rest and with activity.
60 Clinically, there was no evidence of Complex Regional Pain Syndrome (“CRPS”). There was a prominence in the region of the left scaphotrapezial joint which was tender at both the radial and ulnar aspects of the joint. There was some tenderness in the region of the flexor carpi radialis tendon with a positive stress test suggestive of flexor carpi radialis tendinitis. The scaphotrapezial joint was not irritable.
61 Mr Tham noted an MRI scan showed evidence of a small ganglion cyst measuring approximately 2 millimetres in diameter, palmar to the trapezium, which appeared to correspond to the area of maximum tenderness.[7]
[7]The smaller of the two ganglions shown on the 2019 MRI
62 Mr Tham thought, clinically, it appeared the plaintiff’s symptoms related to a ganglion cyst on the palmar aspect of the trapezium and possible flexor carpi radialis tendinitis. He considered, as the symptoms had been present for several years, it was unlikely to diminish spontaneously.
63 Mr Tham thought it possible the stated direct contact injury to the wrist precipitated all the plaintiff’s symptoms. He thought those symptoms had stabilised, that they had been present for several years.
64 On a scale of mild, moderate and severe, Mr Tham would consider the plaintiff’s injuries had affected her capacity to work to a mild to moderate degree. On a scale of mild, moderate and significant, he anticipated her symptoms had affected her activities of daily living to a mild and moderate extent. He believed her level of impairment was permanent.
65 Mr Tham commented that it appeared that the plaintiff’s daily activities on occasion could precipitate her symptoms; however, she could not volunteer any significant activities which reliably precipitated her symptoms. For this reason, he thought her activity limitations should be assessed by an occupational therapist.
66 An operation note of Thursday, 7 November 2013 set out Mr Tham performed an FCR release and tenolysis, FCR tenosynovectomy and exploration of trapezial trapezoid joint at St Vincent’s Private Hospital.
67 Dr Blombery noted that when Mr Tham reviewed the plaintiff in October 2018, he felt it likely the intermittent lack of control of the left wrist was neurological in origin.[8]
[8]There is no 2018 report from Mr Tham
68 Dr Diaz, general practitioner, reported on 23 February 2017.
69 At that time, Dr Diaz noted that the plaintiff’s activities of daily living had been limited due to the pain she had been experiencing. She was not able to enjoy some of the activities she needed to do with her daughter – for example drawing, playing the piano with her, et cetera. She also said she used to love wake boarding, gardening, riding motorbikes, and was unable to enjoy those recreational activities due to ongoing wrist issues.
70 Having seen the plaintiff only in the last few years, Dr Diaz thought most of the limitations were from fine motor movements. Although in some instances when she had severe pain, she said she could not even open a door by the doorknob, take off a bottle lid, hang clothes, use a computer or type, and pain even affected her driving due to pain.
71 Dr Diaz referred the plaintiff to Ms Saver, psychologist, in Bendigo for cognitive behavioural therapy on 17 July 2019. He also completed a GP Mental Health Treatment Plan that month.
Investigations and procedures
·X-ray left wrist 6 November 2008 and 12 February 2009 (no fracture or dislocation)
·left wrist ultrasound:
§ 3 August 2009 (lesion consistent with a ganglion)
§ 4 August 2011 (no recurrent ganglion, small swelling corresponding to mild thickening of subcutaneous tissues)
§ 7 June 2012 (no ganglion, lump corresponding to the joint between scaphoid and trapezium)
§ 25 February 2019 (appearances suggest carpal tunnel syndrome); and
§ 20 June 2019 (normal)
·nerve conduction study:
§ 11 September 2009 (intermittent median nerve compression in the carpal tunnel)
§ 10 August 2012 (normal)
§ 26 October 2015 (normal)
§ 21 September 2016 (normal); and
§ 26 August 2019 (normal)
·excision volar ganglion, 8 October 2009 - Mr Campbell
·MRI left wrist:
§ 17 December 2012 (small ganglion lateral volar wrist)
§ 28 April 2015 (linear high signal within TFCC suggest an intrasubstance tear); and
§ 13 November 2019
·MRI left hand 13 November 2019
·MRI right wrist and forearm 13 November 2019
·MRI left forearm 18 November 2019
·operation note 7 November 2013 - FCR release and tenolysis - Mr Tham
·operation record, 1 June 2015 - left open carpal tunnel release and synovectomy - Mr Snell.
The Plaintiff’s medico-legal evidence
72 Mr Peter Scott, orthopaedic surgeon, saw the plaintiff on behalf of the insurer in August 2009.
73 The plaintiff then had left hand swelling on the palmar aspect of the wrist, which was tender and aggravated with any repetitive or forceful activity. The left thumb, index, middle and the radial half of the ring finger had pins and needles and numbness, particularly with any repetitive or forceful work such as when sweeping the floor at home, vacuuming at home, hanging clothes on the line, or performing any repetitive work in the workplace.
74 At that stage, in the absence of any history to the contrary, Mr Scott would accept the incident allowed for the development of trauma to the region of the wrist with the development of a ganglion and carpal tunnel syndrome. He was not able to detect any evidence of any non-work related factors allowing for the development of the ganglion and/or carpal tunnel syndrome. He thought there was no suggestion of any non-organic cause, but the plaintiff did show some evidence of anxiety with a lack of response to various forms of treatment conducted to date.
75 Mr Scott thought the present condition represented the persistence of a problem which became apparent at the said date. He accepted the plaintiff’s employment was a significant contributing factor in the development of these problems and that the condition was work related.
76 At that stage, Mr Scott thought the plaintiff was fit for light work only, which was non-repetitive in nature, on a full-time basis. He diagnosed a work-related left wrist ganglion and carpal tunnel syndrome.
77 In September 2013, just prior to the second ganglion surgery, the plaintiff was first seen by Mr Murray Stapleton, plastic surgeon.
78 The plaintiff then complained of pain in the left wrist, even at rest, and made worse with wrist joint movement. Gripping was painful and it was flexing and moving the wrist to the ulnar side and movement of the thumb which aggravated the pain most significantly.
79 Mr Stapleton thought the injury here was a recurrent ganglion following a traumatic event that was reported in the incident. He noted there was a high incidence of recurrence following surgery to excise a ganglion from the wrist. The cause of the condition was a direct blow and employment was the cause of the problem. Surgery was the only way to treat the condition and was essential.
80 On re-examination in July 2015, the plaintiff told Mr Stapleton of constant pain in her left hand and that it was always cold. There appeared to be no other sign of CRPS in that hand and it was not swollen, it was not sweating and there was no numbness. There was no sign of blotching. He noted, however, unrelated to the left hand problem, that the plaintiff had carpal tunnel symptoms, which woke her, on the right hand.
81 Mr Stapleton noted that Mr Snell was operating on the basis the plaintiff’s left hand was constantly throbbing. He noted the plaintiff did not have much by way of carpal tunnel compression symptoms, apart from some pins and needles occasionally in her left thumb and middle finger, but her wrist joint movements were so restricted that he believed the problems were not related primarily and significantly to her carpal tunnel. In that regard, before any surgery was performed, he strongly recommended a nerve conduction study.
82 Mr Stapleton noted the plaintiff had recently had an MRI scan of the left wrist which showed some evidence of an intrasubstance tear in the triangular fibrocartilaginous ligament, but there was no tenderness over that ligament and the compression test for tears in that ligament was negative.
83 Given that he believed the plaintiff was genuine, Mr Stapleton noted she had had severe and constant pain in her wrist, and it had been so since the incident. He was at a loss to draw a conclusion as to why the left wrist was so much of a problem. It would appear from the symptoms alone it may be a tear of the scapholunate ligament and that would explain the measure of her symptoms, and in that regard, she may eventually warrant an arthroscopic examination of her wrist joint. He thought the cause of her condition, whatever it has been, relates specifically to the incident. Therefore, employment remains the cause and a significant contributing factor to her current situation.
84 Having been provided with the results of the nerve conduction study, which were normal, Mr Stapleton did not support funding for carpal tunnel surgery.
85 Mr Stapleton provided a supplementary report in February 2019. He confirmed that he had last seen the plaintiff in 2015 and it was not possible therefore to comment upon her current situation or to determine whether she was capable of any work at all.
86 Dr Peter Blombery, consultant physician in vascular disease, first examined the plaintiff in April 2012. The plaintiff then complained of intermittent aching in the left wrist, as well as numbness in the different fingers of that hand. She found it painful to do some activities with her fingers. She advised the left hand was always colder than the right and often went pale or blue in appearance, but there was no excessive sweating. There was also a little swelling in the hand, and her rings could become quite tight. The pain radiated into her left elbow.
87 The plaintiff told Dr Blombery of difficulty with a range of domestic duties and interference with her hobbies of photography and drawing as a result of her left wrist problem.
88 On examination, the plaintiff moved her left hand reasonably freely. It was paler than the right, but there was no difference in temperature. She was tender on pressure over the dorsum of the wrist and up the forearm extensors to the elbow. There was mild tenderness over the ventral aspect of the forearm and also of the wrist, particularly in the area of the radial artery. There was full movement of the left arm, except for radial deviation, which was limited to 10 degrees. Power of handgrip on the left was 12 kilograms versus 32 kilograms on the right. There was a reduction in sensation in the medium nerve innovative fingers of the left, compared to right hand.
89 Dr Blombery thought the plaintiff sustained a direct trauma to the left wrist in the incident, developing a ganglion in the area which was surgically excised in 2009. She had been left, however, with some ongoing pain in the area. As well as pain, there had been some changes in temperature and colour of the hand. This combination of features of ongoing pain, together with autonomic disturbance, was diagnostic of CRPS Type 1, previously known as Reflex Sympathetic Dystrophy. The plaintiff’s features of CRPS Type 1 were mild to moderate and were not severe.
90 Dr Blombery considered there may be some sensory disturbance in the median nerve innervated fingers of the left hand and it may be worthwhile the plaintiff having a repeat nerve conduction study; however, he noted she did not have very much in the way of other features of carpal tunnel compression of the median nerve.
91 Dr Blombery diagnosed CRPS Type 1, complicating removal of a ganglion, and probable left carpal tunnel compression of the median nerve. He then thought the prognosis for recovery was moderately poor and it was likely the plaintiff was going to be left in the long term with her current degree of disability in the left hand.
92 At that stage, Dr Blombery thought the plaintiff would not be able to do any job where she had to do any heavy repetitive work with her left arm and she would be able to do light duties using her dominant arm on limited hours. He also noted she was limited in terms of what her left arm could do and she should avoid using it as much as possible.
93 Dr Blombery re-examined the plaintiff in July 2019.
94 The plaintiff then complained of pain in the left wrist and left thumb, as well as left forearm, particularly in the cold weather. The area throbbed and she found it difficult to flex the wrist, and there was marked tenderness in the palm of her hand.
95 Intermittently, the plaintiff described the left hand as “giving way”, with episodes of weakness which could occur on a daily basis or less frequently. There was only mild swelling in the area and no obvious difference in temperature or colour between the two hands.
96 The plaintiff also complained of pain in the right hand which she attributed to overuse to compensate for the left hand.
97 There was no excessive sweating in the hands. The hand pain kept the plaintiff awake at night and she rated the pain in the left as 8 out of 10 on average. There was mild numbness in the left hand which was less severe than it had been prior to the second surgery, and she had also recovered sensation in her fourth and fifth fingers after that surgery.
98 Dr Blombery noted the plaintiff’s difficulties with domestic duties: stirring pots when cooking, opening jars and bottles, dressing and holding her children, and interference with her hobbies such as photography and gardening.
99 On examination, the plaintiff had mildly exaggerated pain behaviour. She moved her left hand reasonably freely. It was redder than the right and was 1.8 degrees cooler than the right. She was tender on pressure over the dorsum of the wrist and up the forearm extensors to the elbow. There was mild tenderness over the ventral aspect of the forearm and also over the wrist, particularly in the area of the radial artery. There was a slightly reduced range of movement of the other joints of the left arm. There was no difference in circumference of the two arms. There was also some tenderness up the extensor muscles of the forearm.
100 Dr Blombery noted the plaintiff, post incident, had been left with ongoing changes in temperature and colour of the left hand which was intermittent. The combination of features of ongoing pain, together with autonomic disturbance, was suggestive of a diagnosis of CRPS Type 1.
101 Dr Blombery noted, when he examined the plaintiff in 2012, there was no difference in temperature but some difference in colour between the two hands, and she therefore fulfilled only the basic criteria of the International Association for the Study of Pain for the diagnosis of CRPS Type 1. On re-examination in 2019, she also fulfilled the basic and Budapest criteria for this International Association Study.
102 Dr Blombery had no doubt CPRS was playing a significant role in the plaintiff’s presentation and was a complication of the initial injury and the surgery that had been performed in an attempt to remedy it.
103 Dr Blombery thought the episodic weakness of the left hand was almost certainly functional in nature. It may also be viewed as possibly being part of the movement disorders of CRPS Type 1. He thought, essentially, it was a central nervous response to the pain from the affected area, causing inhibition of muscle activity which was a subconscious reflex response.
104 Dr Blombery diagnosed removal of a ganglion from the left wrist and surgery for flexor carpi radialis tenosynovitis complicated by CRPS Type 1. He thought the prognosis at this stage for recovery was poor, given the long duration of symptoms, and noted the plaintiff had right hand pain that was likely to be derived from overuse, secondary to the limitation of her left hand.
105 In Dr Blombery’s opinion, the plaintiff’s capacity for work had been affected to a significant degree and she would not be able to a job which involved heavy or repetitive use of her dominant right hand where she was already developing discomfort.
106 Dr Blombery provided a supplementary report, having be sent the results of a number of MRI scans carried out in November this year.
107 Dr Blombery described the MRI of bilateral hands and wrists as reassuring, with a cause for the plaintiff’s symptoms not identified. Further, from the right wrist MRI, he could not identify a cause for the plaintiff’s chronic wrist pain. He also described the MRI of the forearm as reassuring.
108 In terms of the MRI of the left wrist, Dr Blombery noted there were two dorsal wrist ganglia, the largest measuring 7 millimetres at the dorsal aspect of the capitate, with the second measuring 2 millimetres at the dorsal aspect of the scapholunate ligament. They were likely to be longstanding and indicative of previous low-grade ligamentous injury, with significant tear demonstrated.
109 Dr Blombery also commented that the results of the MRI scans show little if any pathology present in the wrists apart from two small ganglia in the left wrist. The plaintiff had previously been demonstrated to have a ganglion in the wrist which was supposedly removed at surgery. Ganglions, however, can recur.
110 Dr Blombery thought that the intrasubstance tear of the triangular fibrocartilage noted in 2015 had resolved or was not detected in the November 2019 left wrist MRI scan.
111 Dr Blombery considered these findings were entirely consistent with ongoing pain caused by CRPS where the underlying pathology is only minimal. There was presumably initially more pathology present which has now resolved but the plaintiff has been left with ongoing pain pathways sensitisation resulting in her ongoing pain. The results of these investigations did not alter his diagnosis.
112 The plaintiff was examined on the defendant’s behalf by occupational physician, Dr Yong, in September 2019. His focus was on the plaintiff’s vocational capacity. He did not describe the presence of any non-organic factors on presentation or in his diagnosis.
113 The plaintiff told Dr Yong of pain in her left wrist and at the base of her left thumb at the front and at the back. She said she had a collapsing type feeling where the left wrist gives way and then she cannot move her hand. She said this occurs on a daily basis, to a few times per month, and the symptom would last for less than ten minutes. She said her fingertips are cold and they sometimes change colour to blue.
114 On examination, the plaintiff had reduced spontaneous movement of her left hand. Inspection of the left wrist revealed a surgical scar. There was tenderness to palpation on the radial side to the base of the thumb. There was mild reduction in dorsiflexion and plantar flexion, with a mild reduction in the thumb. There was reduction in power for pincer grip interossei strength and wrist movements. Both hands were the same colour and were warm and had normal pulses. The upper limb reflexes were normal. Neurological examination of the hand revealed reduction in light touch over the left hand fingertips and left forearm.
115 Dr Yong considered the prognosis was guarded for the full resolution of the plaintiff’s condition and symptoms.
116 Dr Yong thought the plaintiff could do tasks within the following restrictions:
· avoid lifting more than 2 kilograms with the left hand
· avoid repeated firm gripping and squeezing tasks with the left hand
·
avoid repeated firm pushing and pulling tasks with the left hand;
and
· reduction in working hours.
117 Dr Yong considered the plaintiff would be unable to return to her pre-injury role which involved handling bulk stock.
118 Dr Hayman, psychiatrist, examined the plaintiff in August 2019.
119 The plaintiff told Dr Hayman she continues to have constant left wrist pain, both anteriorly and posteriorly. Mentally, her main issue relates to anxiety about her wrist collapsing, and dropping her baby.
120 The plaintiff advised her sleep is interrupted by pain. She lamented she could not do various activities with her children because of wrist pain. Her ability to draw and paint was affected by pain.
121 Having carried out a mental state examination, Dr Hayman concluded that the plaintiff appeared to be a relatively robust woman psychologically. She had not developed any clear discernible psychiatric disorder to date. There was some understandable anxiety about her left wrist giving way and her daughter falling. As such, the plaintiff tended to overprotect and carry her daughter only on her right. He thought the plaintiff had a favourable prognosis, having concluded she had no clear psychiatric disorder.
The Defendant’s medico-legal evidence
122 In its Reasons of 7 November 2017, the Medical Panel, who found the plaintiff was not suffering from CRPS Type 1, concluded she was suffering from mild persisting symptoms in the left wrist as a consequence of a surgically treated ganglion.
123 On examination, there was a normal range of left wrist movement. Examination of the left hand revealed a normal colour and temperature, with normal sweating. Nail growth was normal, and proof of pulses were present. There was no wasting of the thenar or hypothenar eminences in the left hand. The power of the small muscles of the left hand was normal. Finkelstein’s test was equivocal. There was no tenderness of the joints in the fingers of the left hand and no evidence of synovitis or tenosynovitis.
124 Neurological examination of both upper limbs revealed normal reflexes, collapsing weakness on the assessment of power and non-anatomical sensory changes in the left hand, with no clinical evidence of any nerve disorder or neurological complications. Phalen’s and Tinel’s signs were negative bilaterally. Grip strength was assessed using a Jamar dynamometer but the results were considered to be inconsistent and unreliable.
125 On 3 October 2018, the Panel determined that the plaintiff’s degree of impairment resulting from the accepted left wrist hand ganglion injury was eleven per cent.
126 On examination, the range of movement of the left wrist showed restriction in the ulnar and radial deviation. All fingers of the left hand had a full range of pain-free motion but there was a restriction of movement of the left thumb. The left thumb had normal MCP and IP joints with normal movements. The carpometacarpal joint of the left thumb was unstable, indicative of moderate instability. There was reduction in radial abduction, adduction and opposition. Sensation to pinprick was present. Tinel and Phalen’s signs were negative. There was no wasting of the muscles of the left hand. Circumferential measurements of the arms were symmetrical, indicating normal use. Grip strength results were inconsistent on repeat testing and indicated the worker failed to exert full effort due to reported pain. The Panel considered the results were unreliable, and considered that grip strength could therefore not be used as a reliable measurement of impairment. There was no other abnormality found on examination of the left wrist or left upper extremity.
127 The Panel concluded the plaintiff was suffering from a left wrist soft tissue injury involving the carpometacarpal joint of the left thumb and associated tendons, treated surgically, resulting in restriction of movement of the left wrist and left thumb, and ongoing instability of the carpometacarpal joint of the left thumb and persisting intermittent pain symptoms relevant to the accepted left wrist hand ganglion injury.
128 Mr John Buntine, hand, plastic and reconstructive surgeon, examined the plaintiff in August 2019.
129 The plaintiff then told Mr Buntine that, periodically, when she tried to use her left hand, the whole hand collapsed suddenly to such a degree that she can neither lift it or use it, which collapse was very painful. She said the hand is simply weak and painful at other times. He noted the plaintiff struggled with her housework and with looking after the children and she could only now do a little light gardening.
130 On physical examination when Mr Buntine gently supinated the plaintiff’s left forearm while examining the palm, she suddenly became quite agitated and said she could not lift the hand and forearm from the table or move any digit or the wrist. She explained “It’s just collapsed; this is what happens periodically – I want to know why”.
131 Mr Buntine thought this occurrence was clearly predominantly of non-physical causation, although it may have been triggered by some increased pain of physical cause.
132 Mr Buntine noted that prior to the left hand “collapsing”, Phalen’s test was reported as causing numbness of the whole of the left hand and wrist and Tinel’s test was reported as causing “pins and needles” of the same distribution.
133 Following physical examination, Mr Buntine was unable to diagnose a significant present condition of physical cause affecting the left hand and wrist, although, clearly, a number of minor physical conditions related to mild synovitis and scarring following surgery were present. He believed the present major problems are of a psychological/psychiatric nature.
134 Mr Buntine commented that a psychiatrist may be better able to describe the prognosis than himself but, in general terms, it seems likely that the level of complaints concerning the left hand and the new complaints concerning the right hand may remain much the same for a long period of time although perhaps, the severity of the complaints may change with changes in the plaintiff’s mental condition.
135 In Mr Buntine’s view, it would seem likely that the plaintiff suffered a work-related condition of some type but, in this regard, influences upon her psychological condition may be more important than those directly affecting her physical condition.
136 Mr Buntine was not aware of any specific incapacity due to a diagnosable physical condition affecting the left hand, noting the second Medical Panel opinion that the plaintiff was not suffering from CRPS Type 1.
137 Mr Buntine doubted it would be possible to encourage the plaintiff to undertake her pre-injury duties and he believed that, whether or not she could undertake modified duties, especially after any further rehabilitation or training, would depend much more on her psychological condition than on her physical condition and so should be commented upon by a psychiatrist.
138 Mr Buntine provided a supplementary report in October 2019, having been provided with Dr Blombery’s reports, recent ultrasounds and a nerve conduction study.
139 Noting Dr Blombery’s findings of CRPS on 30 July 2019, Mr Buntine commented he did not observe any difference in temperature or any difference in colour, but observed an episode of inability to make any movement of the hand which could only be of non-organic hysterical cause. Further, whether or not the Budapest criteria for CRPS had been met can be a rather theoretical consideration. In diagnosing this condition, Mr Buntine was far more impressed by definite physical observations such as muscle wasting, as the sensory Budapest criteria can be influenced by non-organic causes. Thus, whether or not one accepts that criteria for the syndrome has been satisfied, he had no doubt the plaintiff’s behaviour at the time of his examination was very strongly influenced by non-organic factors rather than by the syndrome. He confirmed, as would have been expected, no abnormality of a physical nature was found, and the documents with which he had then been provided did not significantly change his opinion.
140 Mr Buntine provided a further report of 4 December 2019, having been provided with recent MRI reports of the left wrist, hand and forearm, and the right wrist and forearm. He was also provided with all of Mr Stapleton’s reports, Dr Blombery’s reports and reports from Mr Campbell, Mr Scott, Dr Diaz and Dr Littlejohn.
141 Mr Buntine noted Dr Blombery’s report dated 30 November 2019 in which he commented on a range of November 2019 MRI scans.
142 Mr Buntine concluded the comments made by the specialists in their fields of expertise indicated that a cause for the plaintiff’s symptoms was not identified in each instance commented upon. He was less impressed by a non specialist in the field believing that evidence of changes consistent with the syndrome could be interpreted to be present in the radiologist’s reports of negative findings in each instance or in the suggestion that the syndrome could have been present in the past. Dr Blombery agreed that the full-blown syndrome was not present.
143 Mr Buntine noted his previous reports also commented upon the uncertainties of identifying definite trauma with respect to changes seen in the triangular fibrocartilage complex.
144 The numerous documents forwarded to Mr Buntine did not change his opinion. The mainstay of his opinion was that he observed unusual behaviour which could not possibly have been the result of any abnormality of a physical nature and which therefore provided clear evidence of the overwhelming influence of non-organic factors.
145 Mr Buntine’s belief was that the residual symptoms of a physical injury or injuries have been greatly magnified by non-organic influences and that the Panel’s Opinion of November 2017, which must be accepted by the Court, still applied. He did not believe that significant CRPS was still present. He thought there was present little physically wrong with the plaintiff, whose psychological or psychiatric condition should be assessed by a psychiatrist.
Submissions on behalf of the Plaintiff
146 Counsel for the plaintiff submitted the plaintiff’s left wrist/hand complaints have persisted despite surgery and there was no basis to find that what began as an organic injury, and has been treated throughout as an organic injury, has now “morphed “ into a non-organic injury of the type described by Mr Buntine.[9]
[9]T3
147 The following medical evidence was relied on in support of the submission that the plaintiff’s left wrist/hand impairment is organically based.
148 Following the most recent left MRI scan in November 2019, it was reported that two dorsal wrist ganglia were still present despite two operations.[10]
[10]T3
149 The plaintiff’s initial treating surgeon, Mr Campbell, confirmed the plaintiff’s left wrist/hand problem – a ganglion on the volar aspect of her left wrist – was not only work related, it was an organic work injury. He excised the ganglion and volar aspect of the left wrist on 8 August 2009.[11] In 2010, he noted the plaintiff had ongoing symptoms of pain in that area despite the surgery he had undertaken.[12]
[11]T9
[12]T10
150 It was submitted Mr Scott’s August 2009 examination findings supported the organic nature of the plaintiff’s condition from the outset.[13] The plaintiff also described to him difficulties with a range of household activities due to wrist pain and restrictions.[14]
[13]T11
[14]See paragraph 74 of my Judgment
151 Further, in the absence of any history to the contrary, and there is none, Mr Scott accepted that the incident that occurred on the said date allowed for the development of trauma to the wrist and the development of a ganglion and a carpal tunnel syndrome. He was unable to detect any non-work related factors. There was no suggestion of any non-organic cause. Whilst he did say there was some evidence of anxiety, it was submitted “it does not gainsay the overwhelming evidence of organic injury.”[15]
[15]T13
152 Further, Mr Scott thought the condition was still present and that employment was a significant contributing factor and the condition was work related. He diagnosed a work-related left wrist ganglion and carpal tunnel syndrome.[16]
[16]T13
153 Mr Tham, who operated in 2013, noted the plaintiff’s ongoing concerns when she presented to him.[17] Following his examination, he carried out the second ganglion surgery.[18]
[17]See paragraph 60 of my Judgment
[18]T11
154 In his 2013 report, Mr Stapleton diagnosed a recurrent ganglion following a traumatic event. He noted there was a high incidence of recurrence following surgery to excise the ganglion. It was submitted it was relevant to the current MRI scan findings of two ganglia still present.[19]
[19]T14
155 As Mr Stapleton noted, the cause of injury was a direct blow, and employment was the cause. There was no evidence of any prior problem in the left wrist or hand.
156 Mr Stapleton reported again in 2015, when carpal tunnel surgery was being contemplated. He noted Mr Snell was operating on the basis the plaintiff’s left hand was constantly throbbing. Left wrist joint movements were so restricted that he believed her left wrist problems were not primarily and significantly related to carpal tunnel and would therefore recommend that before any surgery, there was a nerve conduction test.[20]
[20]T15
157 It was submitted the constant throbbing reported was consistent with a persisting organic injury rather than an intervening non-organic one.[21]
[21]T15
158 Counsel for the plaintiff relied on Mr Stapleton’s view that the MRI showed some evidence of intrasubstance tear of the triangular fibrocartilaginous ligament. It was submitted that was further evidence of organic injury as opposed to non-organic.[22]
[22]T15
159 Further, very importantly, Mr Stapleton believed the plaintiff was genuine, and accepted she had severe and constant pain in the left wrist, and it had been so since the injury. He was at a loss to draw a conclusion as to why the left wrist was so much of a problem. In his view, it would appear from the symptoms alone it may be a tear of the scapholunate ligament and that would explain the measure of the plaintiff’s symptoms. In that regard, Mr Stapleton thought the plaintiff may warrant, eventually, an arthroscopic examination of the left wrist joint because her condition, “whatever it is, relates specifically to the incident”.[23]
[23]T16
160 On that basis, it was submitted the plaintiff was a genuine person who had had constant and severe pain in the left wrist stemming back to the compensable injury, even in the view of the defendant’s medico-legal examiner, Mr Stapleton.
161 Further, in his February 2017 report, Dr Diaz described the limitation in the plaintiff’s activities of daily living due to her pain, and also her inability to enjoy a range of hobbies and activities. He also noted that the plaintiff had had severe pain since the incident and could not even cope with doorknobs, bottle lids, hanging clothes, using a computer and typing.
162 Counsel also relied on the plaintiff’s complaints as recorded by Dr Blombery on his first examination in 2012. He then thought there was a direct trauma to the left wrist, development of a ganglion, with the plaintiff, however, being left with ongoing pain in that area. As well as pain, there was a change in temperature and colour.
163 Dr Blombery’s further examination findings in July 2019 were relied upon. It was submitted, again, the diagnosis was one of organic pain. Whether or not that diagnosis is accepted, it is on the basis of organic pain complaints that are now years after the initial injury.[24]
[24]T16
164 On that re-examination in July 2019, Dr Blombery noted the plaintiff continued to have problems with her left hand and intermittent lack of control, noting Mr Tham had reviewed, and the likely intermittent lack of control was neurological.[25]
[25]T17- no report from that examiner
165 Although Dr Blombery noted Professor Collins could not find a definite organic abnormality in the central nervous system, he raised the possibility of carpal tunnel.
166 Counsel also relied on Dr Blombery’s report of the plaintiff’s current status and complaints of pain, and the restrictions noted.[26] Further, Dr Blombery still thought that CRPS was playing a significant role in the plaintiff’s presentation.[27]
[26]See paragraph 99 of my Judgment
[27]T19
167 Dr Yong’s opinion was really directed to vocational issues and was not diagnostic.[28] However, his report of the plaintiff’s current symptoms and restrictions[29] and his examination findings were relied upon.[30]
[28]T20
[29]See paragraph 108 of my Judgment
[30]See paragraph 109 of my Judgment
168 Parts of the Medical Panel Reasons were relied upon.[31] The first Panel concluded the plaintiff worker was suffering from mild persisting symptoms in the left wrist as a consequence of surgically treated ganglion, but rejected the CRPS.
[31]See Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35
169 The second Panel, which accepted the plaintiff’s s98 claim, was told by her of her level of pain and restriction, difficulties with activities and her medication at that time. It was submitted that this was a further history consistent with the plaintiff’s evidence.[32]
[32]T23
170 The principal complaint in relation to Mr Buntine’s opinion was that despite all the other practitioners in this case taking a history of, and accepting a history of, persisting organic symptoms, he proceeded in precisely the opposite direction.[33] He was not able to diagnose a significant present condition of a physical cause affecting the left hand and wrist, although he thought, clearly, a number of minor physical conditions related to minor synovitis and scarring following the surgery were present.
[33]T24
171 It was submitted Mr Buntine was wrong in saying the plaintiff’s physical condition had resolved when there are two subsisting ganglia on recent MRI scanning still present today.
172 Whilst Mr Buntine thought the plaintiff’s present major problems were psychological or psychiatric, that was beyond his expertise, and the only qualified person who has commented in that regard is Dr Hayman.[34]
[34]T25
173 It was submitted that not only was Mr Buntine’s opinion against the overwhelming tide of evidence to the contrary, but it was based on an opinion he is not qualified to give, and to the extent he deferred to someone who can give the opinion, the opinion is completely contrary to what he would be expecting the psychiatrist to say.[35]
[35]T25
174 It was submitted the psychiatric evidence from Dr Hayman was not supportive of Mr Buntine’s belief that residual symptoms of a physical injury or injuries have been greatly magnified by non-organic influences.[36]
[36]T25
175 The summary of the case was that the plaintiff is a relatively young lady who is now thirty-two, which means she would have been injured when she was about twenty-one, so she has endured those years of ongoing symptoms to date.[37]
[37]See Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; T26
176 In terms of “seriousness”, counsel for the plaintiff relied on the consequences deposed to by the plaintiff in her two affidavits.[38] The affidavit deposed by the plaintiff’s partner, Matthew Cola, was also relied upon.[39]
[38]T5-8
[39]T9
177 It was submitted that it is now eleven years since the date of injury and there is no improved progress from very early days in what is still a very young plaintiff.[40]
[40]T7. See Stijepic v One Force Group Aust Pty Ltd (ibid)
178 The plaintiff’s impaired work capacity as a result of her left wrist/hand condition can be taken into account as a pain and suffering consequence.[41]
[41]T6. See Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326 at paragraph 35
179 It was submitted the plaintiff has an organic basis for her symptoms. There is no justifiable reason for transforming those organic symptoms now in the absence of evidence of a psychiatric condition into a non-organic condition.
180 It was submitted the interference in the plaintiff’s lifestyle, particularly as she is raising two young children, reaches the serious level, as envisaged in Humphries & Anor v Poljak,[42] and she should therefore succeed.[43]
[42] [1992] 2 VR 129
[43]T26
Submissions on behalf of the Defendant
181 It was submitted the defendant’s case does not rely on the opinion of Mr Buntine alone.
182 Professor Collins, neurologist, ruled out carpal tunnel syndrome, so that condition was not an organic cause of her problems.[44] Mr Stapleton also thought the plaintiff was not suffering from carpal tunnel syndrome in the face of a normal nerve conduction study.[45]
[44]T27
[45]T28
183 Counsel for the defendant also relied on the Medical Panel’s physical examination in 2017 when it found no tenderness, no evidence of synovitis or tenosynovitis, normal neurological examination and collapsing weakness in some areas. The Panel thought the plaintiff’s grip strength test results were inconsistent and unreliable. Further, the Panel described mild persisting symptoms in the left wrist and ruled out CRPS, specifically rejecting Dr Blombery’s view.
184 The Panel’s findings on physical examination in 2018 were also relied upon. The Panel then found no wasting and, again, inconsistent findings on grip testing.[46] It concluded there were Intermittent pain symptoms relevant to the accepted left wrist hand ganglion and injury.[47]
[46]T29
[47]T30
185 On examination in 2019, Mr Buntine found a collapsing left wrist, and was unable to diagnose a significant present condition or a physical cause. He ruled out CPRS Type 1. He therefore believed the plaintiff’s major problems were psychological.[48]
[48]T30
186 Counsel for the defendant submitted Dr Hayman’s view does not explain what is the organic injury the plaintiff still suffers from eleven years after knocking her hand against a trolley.[49]
[49]T30
187 Ultimately, the defendant’s case was based on Mr Buntine’s view that there is no substantial organic basis for the plaintiff’s complaints. It was submitted the plaintiff is not able to strip away psychological factors and show a serious injury.[50]
[50]T31
188 Further, even Dr Blombery thought there was a slight hysterical nature to the plaintiff’s presentation. When he saw the plaintiff in July this year, he noted that she had mildly exaggerated pain behaviour. He thought the episodic weakness of the left hand was almost certainly functional in nature. Even on a proper reading of his report, it was submitted it was inexplicable that this collapsing left wrist was related to a recurrent ganglia, and it does not really explain the extent of the symptoms complains of by the plaintiff.[51]
[51]T32
189 The defendant accepted the plaintiff had knocked her wrist in the incident, that she had ganglia, and they seemed to be recurring in the most recent MRI scan and only in the left wrist. She also complained of pain and symptoms in the right, but the MRI scan showed nothing abnormal at all, although she was complaining of bilateral wrist pain. Whilst the plaintiff complained of increased right pain through overuse, it was submitted there was nothing in the pathology supporting that complaint.[52]
[52]T33
190 Further, in terms of “range”, Mr Tham, on a scale of mild to moderate-severe, considered the injuries affected the plaintiff’s capacity to work and her activities of daily living to a mild to moderate extent. He also noted that she could not volunteer any significant activities which reliably precipitated her symptoms.[53]
[53]T34
191 It was submitted that if you strip away what was unconscious psychological embellishment, the plaintiff’s impairment was only mild to moderate and that was clear, from the treating surgeons, not significant and not severe.[54] As Mr Buntine concluded, residual symptoms had been greatly magnified by non-organic influences. He believed there was presently little physically wrong with the plaintiff and what was there was psychological.[55]
[54]T34
[55]T35
192 In reply, counsel for the plaintiff submitted there was no psychological embellishment that was supported by a person qualified to give evidence in that regard and, secondly, the plaintiff’s credit as to her complaints was not in dispute. Thirdly, it was submitted the constant pain complained of over many years brings directly into play Dodds-Streeton J’s comments in Kelso v Tatiara Meat Company Pty Ltd[56] about ongoing permanent daily pain requiring frequent medication.[57]
[56](2007) 17 VR 592 at paragraph [199]
[57]T35
Overview
193 There is no dispute the plaintiff suffered an injury to her left wrist/hand in the incident. Statutory benefits were paid, and a claim for permanent impairment under s98 of the Act was accepted.[58] Further, liability was accepted for the two surgical procedures.
[58]T21- see Medical Panel Reasons
194 The preliminary issue therefore is whether the plaintiff’s current condition is organically based and, if so, whether the consequences thereof are serious and permanent.
195 In Meadows v Lichmore Pty Ltd,[59] Maxwell P set out the two-step manner in which I ought to approach the task in this case:
“… The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative — and, of course, if the pain and suffering consequences satisfy the statutory criterion — then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.
If, however, that first question is not — or cannot be — answered affirmatively, then the applicant will need to take the next step and ‘disentangle’. That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.”
[59][2013] VSCA 201 at paragraphs [21]-[22]
196 Although there have been a number of diagnoses of the plaintiff ‘s condition and numerous investigations over the years in relation thereto, the preponderance of medical evidence is that her condition is organically based.
197 While Mr Scott mentioned understandable anxiety in 2009 with a lack of response to treatment to date, in his view, there was no suggestion of a non-organic cause for the plaintiff’s pain.
198 Early on, treaters Mr Campbell, in 2009, and Mr Tham, in 2013, diagnosed flexor carpi radialis tendinitis.
199 In July 2015, Mr Stapleton, having commented that he thought the plaintiff was genuine, found significant wrist restriction, and noted the recent MRI scan showed some evidence of an intrasubstance tear in the triangular fibrocartiligous ligament which may ultimately warrant arthroscopic surgery. Significantly, he concluded whatever the condition was, it related specifically to the incident.
200 Although Dr Blombery recently found mildly exaggerated pain behaviour and collapsing weakness, both in 2012 and this year, he diagnosed CRPS. Following the most recent examination, he commented that the plaintiff had been left with ongoing pain pathways sensitisation resulting in her ongoing pain.
201 The Medical Panel, in 2018, found the plaintiff was suffering a left wrist soft tissue injury and allowed an eleven per cent impairment resulting from the accepted left wrist/ganglion injury.
202 I reject Mr Buntine’s opinion, which stands alone, that the plaintiff’s major problems are psychological and that there is presently little physically wrong with her. Although of this view, he accepted the collapsing weakness which he thought was predominantly of non-physical causation, may have been triggered by some increased pain of physical cause. Further, he found there were clearly a number of minor physical conditions related to mild synovitis and scarring following surgery.
203 As counsel for the plaintiff submitted, not only was Mr Buntine’s opinion against the overwhelming tide of evidence to the contrary, he was not qualified to give that opinion, and he would defer to a psychiatrist, in this case, Dr Hayman, whose opinion was completely contrary to what he would be expecting the psychiatrist to say.[60]
[60]T25
204 Importantly, the only psychiatrist who has reported in this matter, Dr Hayman, found no psychiatric disorder. He described the plaintiff’s understandable anxiety about dropping her child. He did not identify influences upon her psychological condition which may be more important than those directly affecting her physical condition, as Mr Buntine expected. He gave no support for Mr Buntine’s view of the overwhelming influence of non-organic factors.
205 Further, while Mr Buntine was not aware of any specific incapacity due to a diagnosable physical condition, occupational physician, Dr Yong, thought there was, and placed restrictions on the plaintiff’s work duties.
206 Significantly, the plaintiff’s affidavit evidence as to her pain and restrictions, corroborated by her partner, was unchallenged. Counsel for the defendant described the plaintiff’s evidence as “unconscious embellishment”. There was no suggestion that it was deliberate.
Consequences
207 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:
“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);
… .”[61]
[61](2010) 31 VR 1 at paragraph [11]
208 The plaintiff continues to be troubled by persisting pain and dysfunction of her left wrist/ hand. Fine motor movements have been restricted. These complaints have been confirmed by many examiners since the incident date.
209 The plaintiff has experienced problems with weakness and grip strength, although results on testing have been variable.
210 Right hand problems have developed as a result of the plaintiff favouring her injured left hand. Investigations of her right hand have also been undertaken from 2013.
211 When the plaintiff was injured in the incident, she was twenty-one. She is now only thirty-two.
212 In Stijepic v One Force Group Aust Pty Ltd,[62] Ashley JA and Beach AJA discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.
[62](supra) at paragraph [43]
213 The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, it is relevant to look at the likely period for which those consequences would be experienced. It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.
214 The plaintiff has undergone surgical procedures in 2009 and 2013 with little improvement in her condition. She has been prescribed various medications but now prefers natural remedies. Lyrica did not help her pain and in fact caused an allergic reaction. A cortisone injection gave her no pain relief.
215 Obviously there was no attack on the plaintiff’s credit in this matter as she was not cross-examined, nor was her partner, Matthew Cola, whose affidavit corroborated her range of complaints.
216 I accept the plaintiff suffers the consequences deposed to in both her affidavits – pain, difficulties with housework, interference with sleep, particular difficulty looking after her young children, problems with fine motor hand movements like opening a jar, as Dr Diaz described, and interference with her enjoyment of photography and drawing, having used her left hand in graphic design work.
217 While not mentioned in her affidavits, the plaintiff told Dr Diaz of problems riding motorbikes, and wake boarding due to her left hand injury. She also told Dr Hayman that after the incident, she sold her speed boat which she used to wakeboard behind.
218 As counsel for the plaintiff submitted, the plaintiff’s employment capacity has been affected by her wrist injury. She was unable to return to her pre-incident work after the first surgery as it was too heavy and onerous for her.
219 Post incident, the plaintiff’s attempt at photography as a career failed because of her left wrist/hand pain. She was unable to continue doing the typing and office work in Matthew’s business and they had to employ a bookkeeper to do these tasks.
220 The plaintiff’s qualifications and work experience are in retail and hospitality. I accept that she is no longer able to do a full range of duties in these fields because of her incident injury.
221 I also accept that the plaintiff is unable to do unrestricted physical work involving both wrists. Dr Yong, the only occupational physician who has opined in this case, suggested various restrictions and reduced hours due to the plaintiff’s ongoing left wrist problems. Dr Blombery thought the plaintiff’s right hand condition would cause difficulties for her in the workplace.
222 Taking into account all the evidence, having been able to strip away any psychological factors, I am satisfied that the consequences in terms of pain and restriction, weakness, problems with fine motor movements, interference with daily domestic and family activities and also the interference with hobbies and work are “serious”.
223 Given it is now eleven years since the incident and there has been no improvement in the plaintiff’s condition, I am satisfied the impairment is permanent.
224 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering.
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