Black v Victorian WorkCover Authority
[2022] VCC 1908
•11 November 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-21-03414
| JERROL BLACK | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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| JUDGE: | HER HONOUR JUDGE TSIKARIS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 22 March 2022 |
| DATE OF JUDGMENT: | 11 November 2022 |
| CASE MAY BE CITED AS: | Black v Victorian WorkCover Authority |
| MEDIUM NEUTRAL CITATION: | [2022] VCC 1908 |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment to the wrist/right hand – pain and suffering only – range – compensable injury - causation
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s335(2)(d)
CasesCited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Stijepic v Once Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Application dismissed
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| APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr A Dimsey | Zaparas Lawyers |
For the Defendant | Mr M Clarke | Minter Ellison |
COUNTY COURT OF VICTORIA
250 William Street, Melbourne
HER HONOUR:
Introduction
1This is an application for leave to bring common law proceedings pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injuries suffered by the plaintiff at work on or about 1 June 2016 and/or due to the work processes during the course of her employment.
2She seeks leave to commence proceedings for pain and suffering damages only.
3The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s325(1) of the Act. There, “serious injury” is defined relevantly as meaning:
“permanent serious impairment or loss of a body function;”
4The body function relied on in this case is the right wrist/hand.
5The relevant legal principles are well known and are not in dispute.
6The impairment of the body function must be permanent.
7The plaintiff bears an overall burden of proof upon the balance of probabilities.
8By s325(1)(c) of the Act, the plaintiff’s right wrist/hand impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant or marked”.
9Section 325(2)(h) requires all psychological consequences to be ignored in determining the plaintiff’s application in relation to the physical impairment.
10I 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.
11In reaching my conclusions, I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak 1 and Haden Engineering Pty Ltd v McKinnon2.
12The plaintiff relied on two affidavits, sworn on 24 March 2021 and 8 March 2022. She was cross-examined. The plaintiff’s husband, Mr Alan Black, also swore an affidavit on 16 March 2022. In addition, both parties relied on medical reports and other material which was tendered in evidence.
13The plaintiff’s credit was not attacked by the defendant and no credit issues arise. She answered questions truthfully and readily made concessions when giving her evidence.
14I have read all the tendered material and I will refer to the relevant evidence to the extent necessary in these reasons.
The issues
15The issues for determination are:
(a)whether the plaintiff sustained a temporary aggravation at work of an underlying degenerative condition and whether the plaintiff continues to suffer from a compensable condition; and
(b)whether the plaintiff’s pain and suffering consequences meet the “very considerable” threshold required by the legislation.
(2005) 14 VR 622
(2010) 31 VR 1
Background
16The plaintiff is sixty-two years old, is married, and has two adult sons. She completed Year 11 and then attended secretarial college.
17In 1976, she commenced work in secretarial jobs, including at the University of Western Australia until 1983.
18The plaintiff resided in South Africa between 1983 and 1997, where she met her husband, and worked as a personal assistant with several companies. She returned to Western Australia in 1997 and moved to Victoria in 1998. She has continued to work in secretarial/administrative roles since her return to Australia.
19The plaintiff commenced work with the Royal Melbourne Institute of Technology (“RMIT”) in 2009, working in reception and office administration at an RMIT chiropractic clinic. She also assisted in answering student queries.
20She worked part time, twenty hours per week, in a largely computer-based role. Her work after 2015 involved a lot of computer work and use of the mouse. In about June 2016, the plaintiff noticed pain in her right wrist, which grew worse over a period of time, and she suffered injury to her right wrist/hand.
21The plaintiff attended her general practitioner in early August 2016, who placed her wrist in a splint. She was referred to an occupational therapist for hand therapy. The plaintiff was examined by Mr Stephen Tham, hand surgeon, who recommended conservative treatment, including anti-inflammatory medication and the use of a splint.
22At the time of her injury, the plaintiff was working part time, twenty hours per week. She returned to light duties and usual hours after her injury. She continued in those duties until she was retrenched in September 2020.
23In September 2016, the plaintiff lodged a WorkCover claim, dated 4 September 2016, which was accepted. On 18 June 2019, the plaintiff was assessed as having
a 5 per cent whole person impairment by the Medical Panel and received an impairment benefit lump sum payment.
24In April 2021, the plaintiff obtained casual employment with Box Hill Hospital as a ward clerk, working twelve to twenty hours per week, depending on the availability of work. She does not believe she could manage to work any more hours than this, as her right wrist begins to ache by the end of a shift, particularly when she has computer-based tasks to perform.
The Plaintiff’s evidence
25The plaintiff deposed, in her second affidavit, that she experienced “a dull ache in the right wrist a lot of the time”,3 which worsens if she uses her right hand or wrist forcefully, or if she spends an extended period of time operating a keyboard, or mouse, or writing. She is concerned the pain will worsen over time.4
26Her injury has been treated conservatively with rest, analgesics, anti-inflammatory medication, the use of a splint, compression bandage, hand therapy and at-home exercises.
27She takes Panadol and Nurofen as required, and will rub Difflam gel in her wrist. In cross-examination, the plaintiff initially said she takes Nurofen three to four times per week, either first thing in the morning or after work. She would have five to eight Nurofen tablets in a week.
28In cross-examination, the plaintiff conceded that she was able to return to pre- injury duties and hours after her injury, and that there was little difference between her duties when she was on light duties, as compared to her pre-injury duties. 5
Plaintiff’s Amended Court Book (“PACB”) 8
PACB 12
Transcript (“T”)7, Lines (“L”) 21-24
She also said that there is less use of the mouse in her current role at Box Hill Hospital. 6
29She used to enjoy attending regular yoga classes, but found that any postures or exercises which involved weight bearing using the right wrist were painful. As a result, she ceased attending yoga classes.7
30She commenced reformer Pilates, which allows her to largely avoid postures or exercises which place pressure on her wrist and hand. Where an exercise requires her to use her wrist, she usually modifies it, or does not do that exercise. In cross- examination, the plaintiff said that Pilates is now her main form of exercise.8
31She said, in her first affidavit, she is able to shower and dress herself, but she finds it difficult to dry her hair when holding the hair dryer in her right hand. In her second affidavit, she said she attends a hairdresser every few weeks, rather than struggling to dry her hair herself.
32In her first affidavit, she said she is able to drive, but her right wrist becomes sore if she needs to turn the steering wheel to perform a hard turn, and in her second affidavit, she said turning the wheel sharply, such as at a sharp corner or parking, often creates sharp wrist pain.
33In respect of domestic tasks, she said, in her first affidavit, that tasks which require forceful use of the right hand or wrist are painful. She has difficulty with cutting and chopping food, opening jars and containers, and lifting heavy pots and pans. The plaintiff said that she managed to vacuum the house and perform other household tasks, but over a short period of time, her wrist becomes sore. She swore, in her second affidavit, that she continued to have such difficulties with domestic tasks.
T11, L15
T14, L3-7
T13, L5
Lay evidence
34The affidavit of Alan Black, the plaintiff’s husband, sworn 16 March 2022, was tendered into evidence. He has known the plaintiff since 1989. He recalled the plaintiff complaining to him that she had developed pain in her right wrist in or about middle 2016. Her complaints became more regular over time, and she attributed the wrist pain to the use of the mouse at work. She has told him that the wrist pain has not gone away.
35Mr Black said that the plaintiff finds some domestic tasks difficult and will begrudgingly ask him for help. She struggles to cut and chop certain food and finds it difficult to perform these tasks. He has regularly witnessed her grimace as she performs these tasks. He said that the plaintiff does the majority of the cleaning around the house, although she will ask him to help with the vacuuming, as her wrist will get sore. She has told him that she has had difficulty in the past with going to the toilet and using a hair dryer. He said that she is able to drive a car, although he will usually drive when they are together. He has witnessed her grimace when she has tried to turn the steering wheel. He said that the plaintiff has told him she does not like to use strong pain medication and will use Panadol and Nurofen. She used a cream, which she will often ask him to massage on her wrist. He has also seen her perform hand exercises. He described the plaintiff as stoic and not one to let her wrist pain get her down, or one to make a fuss.
The medical evidence
36The evidence from treating medical practitioners was limited and somewhat dated.
37The plaintiff was treated by Dr Meindert Van Der Veer, general practitioner; Ms Sally Jessop, occupational therapist and Ms Emmeline Fooks, occupational therapist, both from Melbourne Hand Therapy, and Mr Tham, hand surgeon.
Dr Meindert Van Der Veer, general practitioner
38Dr Van Der Veer, in a report dated 18 July 2017, noted the plaintiff presented on 2 August 2016 with a painful right wrist after using a knife the night before and having subsequently reported developing symptoms after increased computer use at work.
39On examination, the plaintiff had tenderness over the ulnar aspect of the wrist, and she was referred to a hand therapist. Dr Van Der Veer was of the opinion that the plaintiff’s history and clinical examination, together with the opinions of the hand therapist and specialist, were consistent with an inflammatory process in the wrist, contributed to by a repetitive strain injury. He accepted that the plaintiff’s injury was work related.9
Mr Stephen Tham, hand surgeon
40The plaintiff was referred to Mr Tham in September 2016 and the plaintiff reported to him that she had pain on the ulnar border of her right wrist since July 2016. He noted that she reported her symptoms worsened with activity, such as use of a mouse and keyboard.10
41He arranged for the plaintiff to undergo an MRI scan, which showed peripheral attenuation of the triangular fibrocartilage, with synovitis and cysts at the triquetrum, suggestive of an inflammatory cause. He prescribed anti-inflammatory medication and recommended intermittent use of a resting splint.11
42Mr Tham reviewed the plaintiff in May 2017, following a bone scan. The bone scan showed an increase tracer uptake in the region of the trapezium, which Mr Tham did not consider was related to the plaintiff’s ulnar-sided wrist pain, given her
PACB 33
PACB 16
PACB 16
symptoms were on the ulnar border of the right wrist and away from the site of pain.12
43In his report, dated 22 October 2017, Mr Tham noted the following:13
(a)The plaintiff had returned to him in January 2017, having not taken the anti- inflammatory medication, and he prescribed a different anti-inflammatory medication;
(b)On 6 April 2017, the plaintiff reported to him that her symptoms had improved, although there was still a degree of persisting discomfort. The use of a limited distal radioulnar joint splint helped her symptoms.
(c)When last seen on 24 May 2017, the plaintiff reported that her symptoms remained unchanged;
(d)Clinically, the plaintiff had an excellent range of motion in her right wrist.
44Mr Tham’s diagnosis was of a painful ulnar border of the right wrist, associated with synovitis, which had been adequately treated with anti-inflammatory medication.14 While he noted there was no traumatic cause of her symptoms and was unsure of the relationship between the synovitis of the wrist and the stated work activities, he nevertheless accepted that her injury developed gradually and was precipitated by her work using a keyboard and mouse.15
45He was of the opinion that the plaintiff could return to work using a keyboard and mouse, although it would be prudent for her to rest every two or three hours. As at October 2017, he did not believe the plaintiff required further treatment, but if her symptoms persisted, it may be reasonable to obtain a rheumatological opinion.
PACB 17
PACB 18-19
I note that Mr Tham has recorded lef twrist, this is clearly an error as his report pertains to the right wrist.
PACB 19
Ms Sally Jessop, occupational therapist
46In August 2016, the plaintiff was referred to Ms Jessop.16
47On examination, Ms Jessop reported that the plaintiff had a full range of movement with no pain on palpation and a tight ulnar nerve. Ms Jessop recorded a history that the plaintiff was not waking at night with any sensory disturbances, nor did she have any numbness.
48Ms Jessop commenced the plaintiff on gentle nerve glides and encouraged her to wear a wrist brace at work to minimise the impact on soft tissues. Ms Jessop thought that an ultrasound of the plaintiff’s wrist/hand would be of benefit to further diagnose the hand pain.17
Ms Emmeline Fooks, occupational therapist
49Ms Fooks provided two reports, dated 14 July 2017 and 11 September 2018.18
50In her report dated 14 July 2017, Ms Fooks reported that the plaintiff’s right wrist and left wrist had a similar range of movement, grip strength and thumb strength, with minimal differences. She noted a significant difference in weight bearing capacity, namely 21 kilograms on the right side, compared with 25 kilograms on the left.19
51Ms Fooks recorded the plaintiff as having 4/10 pain in her wrist at rest, 5/10 pain with movement, and 7/10 pain with resistance.20 The plaintiff described to her a dull ache in her wrist while at rest, which changed to a sharp pain with resistance. 21
52The plaintiff told Ms Fooks that using a new keyboard and modified mouse at work had greatly helped her pain symptoms.22 She reported working her pre-injury
PACB 32
PACB 32
PACB 21-31
PACB 23
PACB 22
PACB 22
PACB 24
duties, but fatiguing quickly, and having pain in her wrist by the end of her day. Ms Fooks thought that the plaintiff had capacity to continue her current duties as long as she continued to take rest breaks and use her modified keyboard/mouse. Over time, and with more hand therapy, the plaintiff’s capacity and endurance would continue to improve, so that she would not need to take as many rest breaks.23
53Ms Fooks considered that the plaintiff experienced many functional difficulties as a result of right wrist and arm injury. She had the capacity to improve weight bearing, endurance, pain and function with ongoing hand therapy.24
54On re-assessment on 1 August 2018, Ms Fooks reported that the plaintiff had reduced strength and weight bearing capacity, pain and reduced functional performance. The plaintiff’s weight-bearing capacity was 25 kilograms in the left hand and 24 kilograms in the right hand.25
55The plaintiff told Ms Fooks that her pain was 2/10 at rest, 4/10 with movement, 7/10 with resistance and 5/10 with weight bearing. Her range of movement in her right wrist was similar to that of the left wrist.26
56Ms Fooks considered that the plaintiff had a capacity to continue her pre-injury duties with rest breaks and the use of a modified keyboard, and her physical limitations with strength and pain reduced her ability to perform many activities, particularly those of a heavy or repetitive nature.
57Ms Fooks thought that the plaintiff had made gains with respect to strength and pain, but remained functionally impaired. In her view, the plaintiff has a capacity to make improvements with regard to strength and functional performance with ongoing hand therapy.27
PACB 24
PACB 25
PACB 28
PACB 29
PACB 31
The Plaintiff’s medico-legal evidence
Mr Ash Chehata, orthopaedic surgeon
58In a report dated 28 October 2021, Mr Chehata provided a current assessment of the plaintiff’s condition.
59He took a history consistent with the plaintiff’s evidence of experiencing right wrist pain during work, consulting her general practitioner and being referred for hand therapy. He noted that the plaintiff continued taking Panadol and Nurofen, following which she was referred to Mr Tham, who recommended conservative treatment.28
60Mr Chehata reviewed the plaintiff’s MRI scan of 22 October 2017, which revealed mid-carpal cyst formation and synovitis along the ulnar side of the triangular fibrocartilage (“TFCC”). He also reviewed the bone scan of 10 April 2017, which he reported confirmed STT joint arthritis.29
61His examination of the plaintiff’s hand was unremarkable, with a full range of movement of both hands bilaterally observed.30
62Mr Chehata diagnosed the plaintiff with an exacerbation or aggravation of the mid- carpus and TFCC which he said, is “very possible to be related to the multi ulnar and radial deviation utilising a mouse, which would certainly potentially cause an aggravation of synovitis”.31
63Mr Chehata accepted that the repetitive tasks of the plaintiff’s work would, at the very least, be a significant contributing factor to the development of her symptoms, noting that the plaintiff had no previous symptoms.32
64Mr Chehata thought that the plaintiff had functional restrictions including an inability to lift, carry, push, reach, raise and drive. The plaintiff is able to use a keyboard and has been able to work on a casual basis. In his view, the plaintiff’s functional limitations are more to do with yoga classes. She is unable to open bottle tops and finds turning a steering wheel difficult.33
The Defendant’s medico-legal evidence
Mr Murray Stapleton, plastic and hand surgeon
65Mr Stapleton examined the plaintiff on 6 March 2017 and provided two reports, dated 6 March and 26 April 2017.34
66His history from the plaintiff was consistent with her evidence and with the history provided to the other medical witnesses.
67Mr Stapleton reported that the plaintiff had a splint on her wrist, but it was not one that immobilised the wrist joint.
68In his view, the plaintiff had not lost any range of movement in her wrist joint. There was slight tenderness over the ulnar side of the right wrist, which suggested that the principal problem may be coming from a tear or degenerate triangular fibrocartilaginous ligament.35 He thought that the plaintiff required a bone scan to determine whether she has a work-related injury.
69He agreed that the plaintiff’s conservative treatment was appropriate and that the use of analgesics should be continued. He considered that the wrist splint the plaintiff was using was of no value.36
70Having seen the bone scan, in his supplementary report dated 26 April 2017, Mr Stapleton opined that the plaintiff’s problem is at the vicinity of the basal joint of
both her left and right wrists, which he considered to be a degenerative condition. He concluded that her condition was not work related and recommended that the bone scan be sent to Mr Tham.37
Mr John Buntine, hand, plastic and reconstructive surgeon
71Mr Buntine saw the plaintiff on 19 November 2018. On examination, he noted greater than usual ranges of movement of the right wrist, full range of pronation and supination of the right wrist, and grip with both hands measured 21 kilograms.
72In his report dated 19 November 2021, he opined that there is no definite evidence that the symptoms on the right side constitute a work-related injury, including an injury of slow onset, but, rather, that the plaintiff’s symptoms are due to a temporary aggravation due to repetitive use of a mouse with her right hand. Mr Buntine said that he was unable to find evidence of a significant work-related pathologic al condition.38
Submissions
Causation
73Counsel for the defendant submitted that the medical evidence supported the proposition that the plaintiff no longer suffers a compensable injury and relied upon the opinions from the treating specialist, Mr Tham, and the hand surgeons, Mr Buntine and Mr Stapleton, to support his submission that the work duties only temporarily aggravated an underlying degenerative condition.
74Counsel for the defendant submitted that Mr Tham, in his report dated 22 October 2017, reported that the plaintiff had an underlying condition of synovitis and he was unclear whether that had any relationship to the work the plaintiff performed. Mr Tham also stated there has been no injury, as such, caused by the work.
75It was further submitted that Mr Chehata was not definitive in his opinion with respect to the relationship between the work and the aggravation, given Mr Chehata’s opinion that the use of the mouse could “potentially [cause] an aggravation”39 of synovitis. He described Mr Chehata’s conclusion as “lukewarm”.
76Counsel for the defendant relied on Sednaoui v Amac Corrosion Protection Pty Ltd40 which followed the Court of Appeal decision in Ansett Australia Ltd v Taylor,41 as to the relevance of the acceptance of liability in respect of the impairment benefit claim, and that it was a piece of evidence that I could take into account.
Range
77If it was accepted that the plaintiff suffered from a compensable injury, counsel for the defendant submitted that the consequences relied upon fell well short of the relevant threshold and this was not a case where it was a finely-balanced exercise. Rather, there was a clear gap between the consequences relied upon and in reaching the very considerable threshold required for the granting of a serious injury certificate for pain and suffering.
78It was noteworthy that the plaintiff was able to work, performing normal duties, throughout her time with RMIT, and that she continued to work for four years at RMIT following the onset of symptoms in approximately 2016, until she took redundancy in September 2020.42
79While there was a review with a specialist hand surgeon in the initial stage of treatment, who recommended conservative measures only, no further treatment was required. The plaintiff’s hand therapy ceased in November 2018, with no recommendation for any further treatment.43
T23, L3
(2017) 52 VR 247
[2006] VSCA 171
T23, L27-31; T24, L1-13
80At the time of hearing the application, there was no active management of the hand/wrist condition by any doctors or specialists, and the plaintiff was essentially self-managing with over-the-counter pain mediation at very low levels, and had no ongoing treatment for years. Counsel for the defendant noted the plaintiff self- funded one attendance to a hand therapist in 2021, where there was no recommendation for any ongoing hand therapy.44
81There were some restrictions in duties around the home, and some experience of pain on aggravation, but there was an ability to work for an extended period of time and there was an ability to self-manage.
82The plaintiff has been able to live with the restrictions, such that she was able to continue to work and continue to exercise. There was no evidence that the inability to do yoga was some great loss to her.
83This was not a case where there was some clear overwhelming consequenc e relied upon by the plaintiff, and it was relevant to note that there was no mention of any impact on social or recreational activities aside from the yoga.45
84The consequences pointed to a mild impairment and, individually and collectively, they did not satisfy the threshold.
The Plaintiff’s submissions Causation
85Counsel for the plaintiff submitted that the there was a change in the plaintiff’s work
practices from 2015 and symptoms emerged in 2016. The symptoms persisted, with some improvement through the use of anti-inflammatory medication, but there had been a continuity of symptoms from that time, notwithstanding the hand therapy and other modes of treatment the plaintiff had had. There had been a total continuity of symptoms coming up to six years, and no suggestion of any
T25, L4-12
T26, L7-14
improvement in the years ahead. If anything, the plaintiff noted that, in recent times, there had been a deterioration, not dramatic, but her symptoms had progressed. This was telling, and the aggravation has continued unabated.46
86Counsel for the plaintiff submitted that it was also of relevance that the plaintiff had lodged a claim for compensation, which was accepted, as had the impairment benefit claim. Counsel for the plaintiff submitted this was telling, not only of initial injury, but of a permanent impairment flowing from the initial injury to the current time.
87It was submitted Mr Tham made it clear, in his report, that the symptoms were precipitated by the work activities and his comment that there had been no injury was in the context of there being no traumatic injury, but a gradual development precipitated by the work using the keyboard and computer mouse.47
88Counsel for the plaintiff also relied on Mr Chehata’s observation that the plaintiff’s presentation is certainly consistent with her undertaking repetitive tasks and would “at the very least, be a significant contributing factor to the development of her symptoms”48 in the hand, particularly considering she had no previous symptoms in the hand, and they were not bilateral.49
Range
89Counsel for the plaintiff conceded that it was a legitimate range case, which needed to be considered in the context of a woman who is right-hand dominant and had suffered an impairment which was notable.
90The plaintiff’s credit was unimpeached and, therefore, her evidence and affidavit could be relied on entirely in terms of the consequences that she detailed.50
T26, L22–31; T27 L1–8
T28, L4-10
PACB 43
T31, L19-22
T28, L16–31
91The plaintiff described pain on a fairly consistent basis which “spiked” with usage and with work, although she managed to work in the context of “the lightest sort of work one might anticipate”,51 and she managed the pain with painkilling medication, taking five to eight tablets per week.52
92It was submitted that it was a significant consequence, because it impacted her ability to work, and although it did not cause her to cease work, she perceived pain and felt that she could not work more than she currently works. Further, she was impacted at home, namely in cooking, the heavy use of a knife, lifting heavy pots and the like, and shopping activities, as well as dressing her hair.
93She also experienced consequences that trespassed her recreational pursuits, of which yoga was the principal one. He submitted it was to her credit she managed to find another way of exercising, namely reformer Pilates, and she was impacted from time to time by restrictions of the use of her right hand.53
Injury
94The acceptance of a claim, consistent with the defendant’s acceptance of the plaintiff’s claim, is ordinarily regarded as very significant and therefore relevant in this case. The defendant did not point to other evidence upon which the defendant could have relied upon to reach a different conclusion, other than accepting the plaintiff’s claim. I accept the plaintiff’s evidence that she was engaged in the work described, which brought about the onset of symptoms, and that she suffered injury to her right wrist/hand as a consequence. I accept that there is medical evidence that her injury is causally linked to the work she undertook leading up to June 2016.
95
I accept that the plaintiff sustained an injury to her right wrist/hand throughout the course of her employment. I rely on the opinion of the plaintiff’s treating general
T29, L8
T29, L3–11
T29, L26-31
practitioner, and Mr Tham, who opined that the plaintiff’s symptoms developed gradually and were precipitated by her work using a keyboard and computer mouse. Both Dr Van Der Veer and Mr Tham had the advantage of examining and treating the plaintiff at a time proximate to the onset of symptoms.
96I do not accept the defendant’s submission that the plaintiff no longer suffers from a compensable condition. Mr Tham’s comment that there was no injury must be read in the context of his earlier observation that there was no traumatic injury, and that the work duties precipitated the symptoms. Moreover, the symptoms have not abated.
97Mr Stapleton, in his initial report, noted that a bone scan would assist him in reaching a diagnosis as to whether the plaintiff suffered a degenerative problem, or whether the problem was caused, or aggravated, by her activities at the workplace. After being provided with the bone scan, he stated, in his supplementary report, that the bone scan indicated the problem was in the vicinity of the basal joint of both her left and right wrists, which is a condition that usually affects middle-aged women for unknown reasons, and is not related to the plaintiff’s occupation. I do not regard Mr Stapleton’s opinion to be helpful, as he did not address the question as to whether the work duties were capable of aggravating the degenerative changes.
98While Mr Buntine stated he did not believe there had been an injury, I understand that opinion to be in the context of the plaintiff having sustained a traumatic incident, given his observations that the plaintiff’s condition developed gradually and was precipitated by her work using a keyboard or computer mouse.
99I also note that any degenerative condition was not symptomatic prior to the work- related activities. I also rely on the opinion of Mr Chehata, who opined that the plaintiff’s repetitive tasks at work would, at the very least, be a significant
contributing factor to the development of her symptoms, considering the plaintiff had no previous symptoms in her hand and the condition is not bilateral.
Consequences
Pain and medication
100I accept that the plaintiff has pain in her right wrist, which can worsen with activity, and that she takes over-the-counter medication such as Nurofen, as needed, of up to five to eight tablets in a week, and that she also uses Difflam gel, and a compression bandage, to manage her pain.
101The plaintiff’s recourse to medication is minimaI and this provides some insight into whether the pain is particularly disabling. It cannot be said that she is suffering from a continuous substantial level of pain.
Exercise
102I am not satisfied that the plaintiff’s inability to do yoga was a great loss to her. She did not depose as to the frequency with which she enjoyed the past time. In cross-examination, she said she did yoga with a private instructor and that her main form of exercise now is reformer Pilates, which she attends at a studio one to two times a week. 54
103I accept that the plaintiff is unable to participate in yoga, however, she is now able to enjoy reformer Pilates classes. I do not consider that the inability to participate in yoga is a serious consequence to the plaintiff.
Personal care
104The plaintiff’s evidence is that she finds it difficult to dry her hair when holding the hair dryer in her right hand. She deposed that she attends a hairdresser every few weeks, rather than struggling to dry her hair herself. The plaintiff’s husband
T13, L3-4
deposed that the plaintiff has difficulty with drying her hair. However, these difficulties were not mentioned by any examiner.
105The plaintiff’s husband deposed that the plaintiff has had difficulty going to the toilet in the past due to her wrist pain. The plaintiff did not depose that she currently has any such difficulty.
I accept the plaintiff has some difficulty with personal care, such as drying her hair, but I do not consider this to be a serious consequence.
Driving
106I accept that the plaintiff can experience pain or soreness in her wrist while driving, that performing hard turns aggravates the pain, and that when she is accompanied by her husband, he usually drives. Her husband deposed that he has observed the plaintiff grimace when she has tried to turn the steering wheel. However, she is not restricted in her ability to drive, and while she experiences pain on occasion while performing certain manoeuvres, I do not consider this to be a serious consequence. There was no evidence that she requires breaks when driving, nor whether her driving time is restricted.
Gardening
107Ms Fooks recorded, in 2018, that the plaintiff is able to participate in some gardening tasks, although she experiences fatigue, and is limited with what she can do with her right hand. The plaintiff, however, has not deposed that she has any difficulty with gardening.
Domestic duties
108I accept that the plaintiff has difficulty with domestic duties and increased pain in her right wrist, but she continues to do the majority of the household duties. Her husband deposed that the plaintiff did the majority of the cleaning around the
house, although he regularly saw her grimace, although I accept that she asks him for assistance with vacuuming when her wrist hurts.
109I do not consider the impact on her ability to perform domestic duties to be a serious consequence, given her evidence that she is able to undertake the majority of the household tasks, and this is corroborated by her husband.
Can the consequences described as “at least very considerable”?
110My assessment of the plaintiff’s claim involves a comparison between her claimed consequences and the other cases in the range of possible impairments. The plaintiff has the onus of satisfying me that, on balance, the consequences to her from her right-hand impairment can be fairly described as “at least very considerable”.
111In Sumbul v Melbourne All Toya Wreckers Pty Ltd,55 Chernov JA observed that it would ordinarily be difficult to conclude that pain and suffering consequences could be considered to be “at least very considerable” where it was demonstrated that the injured person was physically able to return to work; however, in subsequent decisions of the Court of Appeal, it was considered that Sumbul is not authority for the proposition that a return to work is somehow determinative against an injured person on the issue of pain and suffering consequences.
112In Stijepic v One Force Group Aust Pty Ltd & Anor,56 Ashley JA and Beach AJA considered the most that could be said, and what can be taken from what Chernov JA said, is that, if an injured person successfully returns to work, it will tend, in the absence of other relevant evidence, against a conclusion that the pain and suffering consequences of the compensable injury are “serious”. They added that it is the whole of the evidence that must be considered.
[2006] VSCA 292
[2009] VSCA 181
113In Haden Engineering, Maxwell P said:
“In its accepted interpretation, the ‘pain and suffering consequence’ of an injury encompassed both the plaintiff’s experience of pain as such and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life. [I will refer to the second element as ‘the disabling effect’ of the pain.]
As to the experience of pain as such, the court must assess the intensity of the pain which the plaintiff experienced. For this purpose, pain intensity was often classified on the scale ‘mild/moderate/severe’. Unless the pain was constant, the court needed also to assess the frequency and duration of the pain episodes.
The evidentiary basis of the pain assessment ordinarily compromised the following:
(a)What the plaintiff says about the pain (both in court and to doctors);
(b)What the plaintiff did about the pain (eg medication, rest, seeking medical treatment);
(c)What the doctors say about the extent and intensity of the plaintiff’s pain; and
(d)What the objective evidence showed about the disabling effect of the pain.
As to (a), the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility. The court will make its own assessment of the plaintiff’s credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.” 57
(Footnotes omitted.)
114In considering the principles distilled by Maxwell P in Haden Engineering, I note that the plaintiff does not claim her right-hand pain is constant, and is only sufficiently intense for her to take over-the-counter painkillers, at most, five to eight times a week.
115I note the plaintiff does not claim that her sleep is interfered with.
116It is of particular significance that the plaintiff has been able to continue in similar employment working similar hours. I do not consider that there has been any significant and permanent loss to the plaintiff’s ability to work.
(ibid), at paragraphs [9]-[12]
117Having considered all the evidence and the submissions, while the limitations and the restriction on the plaintiff’s participation in yoga and her day-to-day activities can be said not to be trivial, I am not satisfied that the pain and suffering consequences of the injury can be fairly described as being “more that significant or marked” and being “at least very considerable”.
118I am satisfied that, taking all the evidence into account, the plaintiff has difficulty using her dominant hand, which can cause her pain. Although she says that her pain is exacerbated with computer-based work, domestic duties, yoga and driving, she has retained capacity in all of these activities. The plaintiff is working in a role similar to her pre-injury role, and is working similar hours. She is able to exercise in the form of reformer Pilates, she is able to drive, and does the majority of the domestic household tasks. The pain that the plaintiff experiences does not prevent her from undertaking these activities. The plaintiff takes limited medication to manage her pain and does not have any ongoing treatment.
119In assessing the plaintiff’s claim, I have drawn a comparison between what she has lost and what she has retained.58 As was noted by Ashley J in Dwyer:59
“… the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.” 60
120When these consequences are balanced with what the plaintiff has retained, I am not persuaded, on the balance of probabilities and in the light of the evidence as a whole, that the consequences to the plaintiff satisfy the test. I accept she has suffered a physical injury to her right wrist of her dominant hand and that this injury has had consequences to her, but I am not satisfied that, when judged by a comparison with other cases in the range of possible impairments, the injury can
Dwyer v Calco Timber (No 2) [2008] VSCA 260
Ibid
(ibid) at paragraph [27]
fairly be described as being “more than significant or marked”, and as being “at least very considerable”.
121Accordingly, I dismiss the plaintiff’s application.
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