Bozinovska v Ad Mance Australia Pty Ltd

[2009] VCC 287

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION

SERIOUS INJURY

Case No. CI-08-01870

TRENA BOZINOVSKA	Plaintiff
v
AD MANCE AUSTRALIA PTY LTD	Defendant

---

JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	24 March 2009
DATE OF JUDGMENT:	3 April 2009
CASE MAY BE CITED AS:	Bozinovska v AD Mance Australia Pty Ltd
MEDIUM NEUTRAL CITATION:	[2009] VCC 0287

REASONS FOR JUDGMENT

---

Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – carpal

tunnel – pain and suffering only – whether consequences to the plaintiff are serious

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Sala	Herbert Geer Lawyers
For the Defendant	Ms J Forbes	Tasiopoulos Lambros & Co.
HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(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 particularly from 2001 (“the period of employment”).

2          The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.

3 The plaintiff brings this application pursuant to clause (a) of the definition of serious injury to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:

“(a) permanent serious impairment or loss of a body function.”

4          The impairment of body function relied upon in this case is principally the right wrist and in the alternative the left wrist or bilateral wrist function. A claim in relation to the cervical spine was effectively abandoned during the hearing.

5          The plaintiff relied upon one affidavit and she was cross-examined. In addition, both parties relied on medical reports and other medical material which was tendered in evidence. I have read all the tendered material.

The Plaintiff’s Evidence

6          The plaintiff is now aged sixty one, having been born on 7 November 1947 in Macedonia. She attended school until the age of thirteen. Her education was very limited and she is unable to read or write English.

7          The plaintiff worked on her family farm until she came to Australia in 1967 aged about twenty.

8          Between 1967 and 1968, the plaintiff worked in a biscuit factory. In 1973, she obtained employment as a process worker manufacturing electrical switches at Ring Grip Company. Between 1975 and 1986, the plaintiff worked as a process worker manufacturing rope at the Melbourne Rope Factory. She was employed between 1992 and 1996 by Footrest as a process worker.

9          The plaintiff commenced work with the defendant as a process worker making shoes on 25 November 1996.

10        Before she started this job, the plaintiff had not experienced any problems with her neck, shoulders or wrists.

11        Initially the plaintiff worked in the gluing area and she was then transferred to the trimming area. She was involved in making boots which were often difficult and heavy to handle. She was also required to do polishing work situated at a round table. The work was extremely repetitive and fast. The plaintiff and her fellow workers had to work quickly to keep up because the table was always moving. Often the workers did one thousand to two thousand items a day, depending on how busy the factory was.

12        During the early stages of this job with the defendant the plaintiff began to suffer pain in her neck and down her shoulders and hands. She also experienced back pain working at the table.

13        On 21 February 1997, the plaintiff attended her family doctor, Dr Ristevski 1997 complaining of left shoulder pain which she had not been able to treat successfully with simple ordinary medication.

14        In the last year or so of her employment with the defendant the plaintiff was transferred to the Preston factory where she worked on men’s shoes. She was required to clean and polish shoes using a sponge. This work also had to be done extremely quickly. The plaintiff had very few rest breaks. Her neck pain and the pain from her shoulders into her hands initially developed slowly and became more constant and severe as time went on.

15        The plaintiff never complained to the defendant that she was experiencing pain because she thought she would get the sack and she was very frightened. However, because of the severity of her hand pain in particular, she attended Dr Ristevski. The plaintiff continued to work in pain, taking non prescription medication such as Aspro.

16        In early July/August 2001, the plaintiff attended Dr Ristevski as her neck and shoulder pain had become relatively constant and she was getting increased pain in her arms, particularly the forearms and the hands.

17        In August 2001, Dr Ristevski referred the plaintiff to Dr Symington, a neurologist. Dr Symington did not suggest any medical treatment. At that stage the plaintiff’s neck and shoulder pain was far more severe.

18        In January 2002, the plaintiff’s arms and in particular her wrists had become very painful and they were swollen each day after work. The plaintiff was also experiencing difficulties at home. She was having quite severe pain in both forearms and hands and having difficulty lifting and carrying heavy items. At night she had extreme difficulty when her arms and wrists were so painful that even medication did not seem to help.

19        In early February 2002, the plaintiff ceased work with the defendant. The plaintiff denied that she was retrenched. She explained that she stopped work because she was experiencing a lot of pain and difficulty with her hands and she was given medical advice to stop work.

20        The plaintiff denied any knowledge of an unsigned handwritten resignation dated 4 February 2002 which was shown to her in cross examination. She agreed that she did not work beyond 4 February 2002, the date of Dr Ristevski’s first medical certificate.

21        When the plaintiff saw Dr Ebringer for the first time- which she did not disagree was on 21 February 2002 - he confirmed the advice Dr Ristevski had give her that she should stop working to save her hands. He suggested she use Vioxx to help her reduce the pain in her wrists, shoulders and neck. He organised x-rays of her neck and shoulders.

22        The plaintiff has remained on WorkCover payments since ceasing work despite two applications having been made to terminate her payments.

23        The plaintiff submitted a claim form on 9 May 2002 describing injury to her neck, shoulders, hands and back as a result of her usual repetitive work. She made a claim because she wanted her medication paid and consequently when she was unable to work she made a further claim.

24        Since ceasing work, the plaintiff’s neck pain has subsided considerably. Although she still occasionally gets aches and pains, her pain is not constant or severe. There has been an improvement but there are times when her neck becomes very stiff and sore. At the start of 2009 the plaintiff had a CT scan of her neck. Since then, her neck has improved a little bit. In re examination she described her present situation as “most of the time it is less pain in the neck.”

25        Further, the pain in the plaintiff’s shoulders has also lessened and only occasionally she suffers pain, depending on activity. There has been an improvement but sometimes her shoulders are painful.

26        The plaintiff’s hands are “very bad and very painful.” The pain in her arms and her wrists has been unremitting. It varies in intensity. At night her hands are worse because of the tingling and the numbness. The pain wakes her up and she has to find a different position so she can be comfortable and sleep a little bit. Her right hand is worse than the left. She is right handed. She would not be able to work with the problem she has in either hand. The condition of her hands is about the same as when she left work. Her left thumb has improved but it still curls up sometimes. The level of pain in her hands is still very severe.

27        The plaintiff has difficulty lifting or carrying pots or buckets at home and often she loses feelings in both hands “as if they are like pieces of stone.” The plaintiff no longer has any power in her hands and she has to be careful when attempting to lift. Sometimes her hands go numb and she does not feel the objects she is lifting and occasionally drops items.

28        Since she ceased work, the plaintiff has had assistance from her children with many household tasks. In 2006, the plaintiff’s husband retired and he helps her considerably. The children have now left home, thus the plaintiff relies on her husband greatly for many of the chores, such as vacuuming, mopping and other activities.

29        The plaintiff does her housework bit by bit - she does what she can in terms of cooking and washing the clothes and no one rushes her. She cannot do heavy things. There is not much ironing to be done as it is just the plaintiff and her husband. Her husband mainly does the vacuuming. The plaintiff does sweeping “little by little.” Sometimes she goes shopping by herself but most of the time she goes with her husband. She can carry shopping bags depending on their weight. She can drive around the local area. The plaintiff and her husband have a social life “on occasion”- only if there is a wedding or a close family function.

30        The plaintiff continues to see Dr Ristevski monthly, usually for a WorkCover certificate but also for medication. He prescribes Mobic, having previously prescribed Vioxx. The plaintiff takes one Mobic tablet per day and she also uses Voltaren gel on both hands.

31        The plaintiff was involved in a transport accident in October 2000 after which she attended the Northern Hospital. In cross examination she said that it was possible that she complained of pain and loss of sensation in her left arm and pain in her left shoulder at that time.

32        The plaintiff lodged a claim for impairment benefits on 31 August 2007 claiming bilateral carpal tunnel syndrome, left wrist ganglion, right trigger thumb, neck, shoulder, arms, hands, stress and back.

The Plaintiff’s Medical Evidence

33        Dr Ristevski provided a number of ordinary medical certificates at the time the plaintiff ceased work. The plaintiff was certified unfit for work from 5 February to 8 February 2002 for painful upper limbs and also for this condition between 18 and 22 February 2002 and 25 February and 1 March 2002.

34        Dr Ristevski noted that the plaintiff first attended his clinic on 17 March 1993. She complained of left shoulder pain on 21 February 1997, right thumb pain on 17 July 2000, and neck and shoulder pain going into her arms on 19 July 2001 and again on 9 August 2001.

35        The plaintiff told Dr Ristevski that she developed gradual onset of neck and shoulder girdle pain extending down both arms and that she experienced tingling sensations and numbness in her hands. Her pain increased during 2001 and she had difficulty tolerating her work but made no complaint as she was scared of losing her job. Dr Ristevski noted the defendant restructured its operations on 1 March 2002 leading to loss of the plaintiff’s employment.

36        The plaintiff was referred to Mr Graham Symington, consultant neurologist, on 9 August 2001 in relation to right hand symptoms, which Dr Ristevski felt were clinically suggestive of possible carpal tunnel. She was also noted to have clinical features of a left wrist ganglion. Dr Symington reported back to Dr Ristevski that there was no electrophysiological evidence of carpal tunnel syndrome, but there were features of early left ulnar neuritis at elbow level and there might have been similar signs on the right.

37        The plaintiff continued to complain to Dr Ristevski about her neck and shoulder girdle pain going down both arms and she was referred to Dr Ebringer, rheumatologist, on 29 January 2002. He recommended Vioxx and arranged further investigations to exclude any underlying autoimmune disorder which might have been contributing to the plaintiff’s condition.

38        When Dr Ristevski saw the plaintiff on 3 December 2004 she continued to complain of ongoing pain in her left forearm and hands despite taking Vioxx. Her medication was changed to Mobic and Dr Ebringer recommended follow up and ongoing conservative management.

39        The plaintiff was treated by Dr Ristevski at the Barry Road Medical Clinic until late 2007 when the Clinic relocated to Epping. Since that time the plaintiff has continued to complain of discomfort in her hands, neck and shoulders and she has failed to substantially improve. She has continued to require conservative treatment, including Mobic and Voltaren.

40        Dr Ristevski arranged for the plaintiff to undergo a CT scan of her cervical spine on 28 January 2009. When last seen by Dr Ristevski on 17 February 2009, the plaintiff continued to complain of ongoing pain in her neck, shoulders and hands.

41        In Dr Ristevski’s view the repetitive nature of the plaintiff’s work contributed to the onset of the presenting conditions of chronic neck, shoulder, arm, forearm and hand pain and the diagnosis of bilateral carpal tunnel, a left wrist ganglion and a right trigger thumb.

42        Dr Ristevski noted investigations had demonstrated degenerative changes in the plaintiff’s cervical spine and hands and also early ulnar neuritis at both elbows.

43        Dr Ristevski considered the plaintiff unfit for her pre-injury work and thought that she was likely to remain so permanently. He considered, in relation to other work, the plaintiff was unlikely to make a sustained return to the workforce owing to her chronic pain and limited skills.

44        Dr Ristevski considered the plaintiff currently unfit for repetitive type process work on a permanent basis. In realistic terms, he considered the plaintiff totally and permanently disabled for all her work and thought her status had not changed since 1 March 2002.

45        Dr Ristevski noted as the plaintiff is right-hand dominant, her right wrist injury was likely to substantially impact on her ability to work, especially in repetitive process work. He thought it unlikely she would be fully prevented from working by her left wrist injury alone although she would be prevented from bimanual tasks.

46        Dr Ristevski thought the plaintiff’s neck condition was likely to substantially restrict her from engaging in her pre-injury work and work in general and in his view it was difficult to fully conclude on the impact of that condition as she had multiple conditions impacting as a whole.

47        Mr Hugh Hadley, orthopaedic surgeon, examined the plaintiff on 12 January 2005 for medico-legal purposes.

48        Mr Hadley thought, as a result of her work, the plaintiff had suffered a neck injury, right wrist injury with carpal tunnel syndrome, right thumb injury causing trigger thumb, left wrist injury with carpal tunnel syndrome and development of a dorsal ganglion, left thumb injury causing a trigger thumb and mild depression.

49        At that time Mr Hadley thought the plaintiff was unfit for her pre-injury work and given her limited education, work experience, her neck and hand injuries and her age of fifty-seven she had become unemployable.

50        The plaintiff was examined by Mr Peter Mangos, general surgeon, on 16 February 2009. He carried out an AMA assessment. The only investigation available to him was the 2009 CT scan of the cervical spine.

51        The plaintiff complained to Mr Mangos of a stiff and painful right wrist which was weak. She complained of similar symptoms in the left wrist. She had chronic pain and stiffness in her neck, and both shoulders were stiff and moved poorly. She continued to have numbness and tingling in the thumb, index and middle fingers of both hands. Clinically he thought the plaintiff had bilateral carpal tunnel syndromes.

52        On examination, Mr Mangos found some stiffness and tenderness of the cervical spine. The plaintiff’s shoulders were thin and symmetrical. There was tenderness but there was no wasting. The plaintiff was reluctant to move her shoulders but moved through a reasonable range of movement. There was no wasting of the upper limbs. Movements of the elbows were satisfactory on both sides. There was slight limitation of movement in both wrists and on the left hand side there was a small dorsal ganglion which apparently fluctuated in size from day to day.

53        Mr Mangos noted there was definite sensory interference in both the plaintiff’s hands at the thumb, index and middle fingers of the adjacent part of the palm indicating bilateral carpal tunnel syndromes.

54        Mr Mangos concluded, as a result of repetitive work sitting for ten hours a day in a bent position, the plaintiff had suffered an overuse syndrome involving her neck, shoulders and upper limbs. More specifically she had suffered an aggravated cervical spondylosis, bilateral shoulder tendonitis, bilateral wrist capsulitis with left wrist ganglion and bilateral carpal tunnel syndromes.

55        Mr Mangos thought the plaintiff’s prognosis with regard to returning to any form of regular work was extremely poor and he considered that her injuries to her right and left wrists were certainly related to employment with the defendant which was a significant contributing factor to all her conditions. He considered the plaintiff had no capacity to undertake her pre-injury employment and thought she would not be able to perform any regular and especially rapid work in the future and that she was totally and permanently incapacitated. He thought either the loss of function of the right wrist on its own or the left wrist on its own would prevent the plaintiff from working.

56        On 4 June 2003, the Medical Panel concluded the plaintiff was not capable of performing her pre injury duties and that her incapacity for her pre-injury duties was still materially contributed to by the claimed injury to her hands.

57        On 4 April 2005, the Medical Panel concluded the plaintiff suffered from mild carpal tunnel syndrome affecting both wrists, a soft ganglion of the left wrist and a resolved right trigger thumb relevant to the claimed bilateral carpal tunnel syndrome with left wrist ganglion and right trigger thumb injuries. In the Panel’s opinion, the plaintiff had no current work capacity, a situation likely to continue indefinitely.

Investigations

58        A nerve conduction study was arranged by Dr Symington in August 2001. Carpal tunnel compression of the median nerve was excluded by the electro physiological studies but Dr Symington was under the impression that the plaintiff had left ulnar neuritis and also early right ulnar neuritis.

59        A number of investigations were carried out on 1 March 2002. An ultrasound of the plaintiff’s right shoulder showed minimal cortical irregularity involving the insertion of the supraspinatus tendon into the greater tuberosity of the humerus but of doubtful significance. There was no tendon tear or impingement noticed. Minimal degenerative changes were present throughout the fingers of both hands on x-ray.

60        X-rays of both shoulders were taken. There was a tiny fleck of ossification measuring 1 to 2 millimetres in size located adjacent to the greater tuberosity of the humerus in each shoulder. There was no rotator cuff calcification or arthritic change noted.

61        An x-ray of the cervical spine showed normal alignment. There was moderately advanced C4-5 and C5-6 disc derangement with moderate disc spacing and spondylitic lipping noted. There was moderate osteophytic encroachment into the C4-5 and C5-6 intervertebral foramina bilaterally as a result of neurocentral joint arthritis.

62        A CT scan of the cervical spine taken on 28 January 2009 showed multi-level bony exit neuroforaminal narrowing and mild C2-3 disc bulge. It was noted if further imaging was sought MRI would be recommended.

Defendant’s Medical Evidence

63        Correspondence between Dr Ebringer and Dr Ristevski, from 28 February 2002, and 29 April 2003 was tendered.

64        When first examined by Dr Ebringer on 21 February 2002, the plaintiff complained of neck pain and pain in both shoulders going down into the arms coming on for about six or seven years. Dr Ebringer thought the plaintiff was developing early osteoarthritis of the neck and some symptoms of bilateral carpal tunnel with possible subacromial bursitis at the shoulders. There was also a suggestion of a right thumb tendonitis and the ganglion over the dorsum of the left wrist. On balance he thought the plaintiff’s work may have been a partial contributory factor. He prescribed Vioxx and thought the plaintiff may require further investigation or treatment with anti arthritis agents.

65        Dr Ebringer noted the plaintiff had some additional findings from serology indicative of an underlying auto immune disorder which may be contributing to her condition and he arranged further investigations.

66        On re examination on 13 June 2002, Dr Ebringer noted that clinically there was evidence of bilateral carpal tunnel symptoms. When reviewed on 3 December 2002 Dr Ebringer noted the plaintiff’s neck and shoulder pain remained much the same and that her hands had improved slightly.

67        On the last examination on 29 April 2003, Dr Ebringer noted continuing improvement in the plaintiff’s neck and shoulder pain. The plaintiff was still getting minimal carpal tunnel symptoms but not as bad as before. The plaintiff’s hands showed no significant abnormalities and she still had a small left ganglion.

68        Dr Ebringer’s impression was the plaintiff was continuing to improve. She was taking just over 25 milligrams of Vioxx a day. At that stage he had not arranged to review her. He thought the plaintiff would need to continue with Vioxx but that was all that was necessary. He stressed the importance of walking and neck exercises and offered to reassess the plaintiff if there was any flare-up.

69        The plaintiff was examined on a number of occasions by Dr Kevin Fraser, rheumatologist. On 18 September 2003, he noted the plaintiff told him she resigned from work in March 2002 because of increasing neck and shoulder pain, as well as pain in her forearms and hands.

70        On examination, there was a full range of movement of both shoulders and elbows without pain and there was no tenderness at the epicondyles. There was some equivocal swelling at the dorsum of the left wrist, although he could not be certain as to the presence of a ganglion. There was a full range of movement of both wrists, although with slight pain at the extreme of palmar flexion on the left. The finger joints, including the first carpometacarpal joints were normal and the plaintiff could form full fists with good strength. There was no evidence of triggering of the right thumb. Phalen’s and Tinel’s tests were negative. Sensation to light touch was said to be diffusely diminished in the thumb through middle fingers of both hands.

71        Dr Fraser noted that nerve conduction tests carried out by Dr Symington in August 2001 excluded carpal tunnel syndromes but suggested bilateral ulnar neuritis, more so on the left.

72        Dr Fraser noted that the plaintiff gave a straightforward honest history and there was no significant overreaction on physical examination. He thought her neck and shoulder condition was consistent with cervical spondylosis, an age- related degenerative condition not caused by her work although it may have caused temporary symptomatic aggravation from time to time.

73        In his view, the plaintiff’s history suggested the possibility of bilateral carpal tunnel syndromes and the normal nerve conduction tests some time back did not completely exclude those.

74        Given the nature of the plaintiff’s work, Dr Fraser suggested it was a significant contributing factor to the various conditions affecting her hands. Although the triggering of the right thumb had resolved completely, in his view there was probably some mild ongoing incapacity in relation to a putative ganglion at the dorsum of the left wrist and to mild bilateral carpal tunnel syndromes. At that stage he thought the plaintiff was certainly unfit for her pre-injury duties or any work requiring rapidly, repetitive and/or forceful use of either hand. Within the bounds of those restrictions, he considered the plaintiff had a capacity for alternative employment.

75        On re-examination on 31 January 2008, the plaintiff reported there had been no significant change in her condition with continuing hand symptoms of paresthesia and numbness and night pain and swelling.

76        Dr Fraser’s findings on examination were similar to the previous occasion and his conclusions were basically unchanged. He confirmed the nerve conduction test did not completely exclude the possibility of mild bilateral carpal tunnel syndromes and the plaintiff’s history was consistent with that, although it was a subjective finding. Dr Fraser confirmed these views on the most recent examination on 27 August 2008.

77        Mr Peter Battlay examined the plaintiff on 15 November 2002. On examination, the plaintiff complained of continuous pain in her neck and upper back, spreading into her shoulders and affecting her arms and wrists.

78        Mr Battlay thought the plaintiff had symptoms of degenerative disease of the neck and hands, and wrist movements were slightly restricted, consistent with a seronegative arthropathy – a diagnosis he noted Dr Fraser disagreed with. Mr Battlay did not consider there was an employment relationship with the plaintiff’s numerous symptoms with him linking them to degenerative changes.

79        Mr Battlay reviewed the plaintiff on 15 December 2003, at which time there was no serological confirmation of an active arthropathy although the diminished range of left wrist movement suggested the diagnosis to him. He thought the plaintiff had a possible carpal tunnel syndrome but did not consider that would not prevent her from returning to work. The plaintiff had clinical findings of cervical spondylosis which in his view were no longer work- related.

80        Mr Battlay concluded the plaintiff’s employment contributed to her carpal tunnel syndrome and her previous trigger thumb, as well as the ganglion, but none of these conditions were incapacitating. He considered the plaintiff fit for her pre-injury duties.

81        Having been sent the IRS functional assessment dated 16 December 2003, Mr Battlay agreed that the plaintiff had no current work capacity but confirmed her problem in his view was not work-related.

82        Occupational physician, Dr Gary Davison, examined the plaintiff on 23 March 2004, at which time she reported the presence of chronic neck pain and stiffness radiating down both shoulders. The plaintiff also reported persistence of pins and needles as well as numbness affecting the first, second and third fingers of both hands and a swelling over the left wrist.

83        Dr Davison’s examination related mainly to the plaintiff’s cervical spine. He noted on neurological assessment of the upper limbs there was a generalised weakness without myotomal distribution while there was no evidence of a sensory disturbance. Deep tendon reflexes were present and brisk bilaterally. He found no sign of arthropathy on inspection of the plaintiff’s hands and noted the presence of the non-tender ganglion over her left wrist.

84        Dr Davison diagnosed cervical spondylosis, mild bilateral carpal tunnel syndrome symptoms and dorsal left wrist ganglion. There was no evidence in his view that the plaintiff’s employment had materially contributed to her neck condition, which he thought appeared to be degenerative. He had no doubt the plaintiff’s neck condition may have been symptomatically but only very temporarily worsened by her employment. He thought it would be reasonable to accept the plaintiff’s employment had contributed to the ganglion and to some degree to the mild carpal tunnel syndrome symptoms.

85        Dr Davison thought the plaintiff had a capacity to undertake suitable duties avoiding prolonged neck postures, repetitive use of the hands and manual handling in excess of 5 kilograms. Having seen the Donnelly Ayre’s vocational report, Dr Davison thought the plaintiff had a capacity to perform work as a product examiner and product tester, subject to the physical restrictions outlined in that report.

86        Mr Brendan Dooley, orthopaedic surgeon, examined the plaintiff on 10 December 2007 and provided an AMA assessment.

87        Mr Dooley diagnosed mild bilateral carpal tunnel syndrome affecting wrists and hands, a resolved trigger right thumb and a largely resolved ganglion dorsum of the left wrist.

88        On examination, Mr Dooley found the plaintiff’s cervical spine and both shoulders were normal. There was a slight thickening of the fibrous tendon sheath and flexor tendon at the base of the right thumb but the plaintiff had a full range of movement, including the carpometacarpal joint and the metacarpophalangeal joint. Mr Dooley noted the diffuse dorsal ganglion in the left wrist and full range of movement in both wrists.

89        A number of reports relating to examinations by Dr Jager, forensic psychiatrist, between 2003 and 2008 were tendered but not referred to as no claim was made under sub-paragraph (c).

Vocational Evidence

90        In its report dated 2 September 2003, Industrial Rehabilitation Services (“IRS”) could not offer the plaintiff any suitable return to work options. In December 2003, IRS concluded that the plaintiff did not present with a work capacity.

91        In July 2004, Donnelly Ayres suggested the plaintiff was fit for light production type activities not involving forceful and repetitive use of the hands or heavy lifting. Suitable jobs included hand packer, assembler, product tester and examiner.

Findings

92        Whilst the question of whether there was a compensable injury during the employment period was raised initially, and there was cross-examination of the plaintiff in this regard, it was conceded by counsel for the defendant that there is a consensus of medical opinion that the plaintiff probably suffers from a mild persisting carpal tunnel condition (“the condition”).

93        There was no argument that the condition is not organically based.

94        The issue is therefore one of range - namely, whether the consequences to the plaintiff of the impairment to her right wrist and or left wrist/ wrists when judged by comparison with other cases in the range of possible impairments or losses of body function may be fairly described as being more than “significant” or “marked” and at least as being “very considerable” – s.134AB(38)(c).

95        The term “serious” requires the impairment and its consequences to be viewed objectively and also judged on an external comparative basis against other possible impairments not necessarily in the same category: see Humphries v Poljak (1992) 2 VR 129, at 170, accepted by the Court of Appeal in Barlow v Hollis (2000) VSCA: see in particular Chernov JA at para 29.

96        The impairment must be permanent, in the sense that it is likely to last into the foreseeable future.

97        Counsel for the defendant submitted the plaintiff’s present carpal tunnel condition was not serious on essentially three grounds – lack of medical treatment, the circumstances in which the plaintiff ceased work and a general argument that the plaintiff’s activities had not been affected in such a way as to satisfy the statutory test.

98        Counsel for the defendant relied upon nerve conduction studies carried out by Dr Symington in 2001 which did not confirm the presence of carpal tunnel syndrome and the fact that there have been no repeat tests. I note, however, in the absence of positive findings on testing, a number of medical practitioners have accepted the plaintiff continues to suffer from the condition.

99        Further, it was submitted the plaintiff has not been seen by a specialist since April 2003 when last seen by Dr Ebringer, whom it was submitted focussed principally on the plaintiff’s neck and shoulder problems. The plaintiff, however, continues under the care of her general practitioner who prescribes Mobic and provides the plaintiff with WorkCover certificates.

100       In this case the defendant accepted liability initially for the payment of medical expenses and later for weekly payments. The plaintiff continues to receive weekly payments of compensation having not worked since February 2002.

101       Whilst I raised this matter during submissions by counsel for the defendant, it is not relevant to this application beyond the question of whether it should be accepted that there is a compensable injury – a matter admitted by the defendant on whose behalf counsel ultimately argued the case was one of range.

102       However, it was submitted by counsel for the defendant that as the plaintiff was doing her normal duties in February 2002 without the need for prescribed medication when she was retrenched, and the fact Dr Ristevski provided ordinary medical certificates when the plaintiff first ceased work, shed doubt on the plaintiff’s claimed incapacity for employment.

103       I find it difficult to reconcile this submission with circumstances where a compensable injury has been admitted, it is agreed the issue is one of range and the plaintiff continues to be in receipt of weekly payments.

104       In any event, I note there is no evidence that the plaintiff was in fact retrenched, save for a comment to this effect by Dr Ristevski in his report. The plaintiff denied this was the case and she also denied any knowledge of a handwritten letter of resignation. She maintains she ceased work because of her problems with her hands.

105       Whilst I am not permitted to speculate as to why the plaintiff, in circumstances where she is not working, is not pursuing a claim for loss of earning capacity, I am entitled to take into account her ability to participate in work activities and any restrictions resulting from her injury when considering the pain and suffering consequences of the impairment to her wrists.

106       It was submitted by counsel for the defendant that the plaintiff has elected not to work and perceives she is unable to do so – a perception that lacks medical support, with some doctors suggesting the plaintiff has some work capacity. Further, it was submitted in any event any restriction in relation to the plaintiff’s other activities could not be described as serious.

107       The plaintiff is now aged sixty one. She is an uneducated woman with a lack of English who has a long history of manual unskilled work since coming to Australia over forty years ago. It is now more than seven years since she last worked.

108       Whilst it might very well be the plaintiff’s perception that she cannot work, as was submitted, I accept that the plaintiff’s view is a reasonable and it is supported by a number of doctors in this case.

109       Since 2002, Dr Ristevski has considered the plaintiff permanently unfit for repetitive type process work and also that she was unlikely to make a sustained return to workforce owing to chronic pain and limited skills.

110       In 2009, Mr Mangos considered the plaintiff had no capacity to undertake her pre-injury employment. In his view, the plaintiff was permanently disabled from all forms of work. He thought she would not be able to perform any regular and especially rapid work in the future. In his view, the loss of function of either wrist on its own would prevent the plaintiff from working.

111       In 2003, the Medical Panel found the plaintiff was unable to do her pre injury work because of her hand condition. In 2005, the Panel found the plaintiff had no current work capacity which was likely to continue indefinitely due to her carpal tunnel and related hand conditions.

112       In 2003, IRS did not consider the plaintiff had any capacity for work. Donnelly Ayres in 2004 concluded the plaintiff had a restricted capacity for light production type activities not involving forceful and repetitive use of the hands or heavy lifting.

113       In 2004, Dr Davison thought the plaintiff was fit for work with restrictions on prolonged neck posture, forceful and or repetitive use of the hands and manual handling in excess of five kilograms.

114       On his most recent examination in 2009, Dr Fraser considered the plaintiff unfit for her pre injury work or any work requiring rapidly repetitive or forceful use of either hand. Within those restrictions he thought the plaintiff had a capacity for alternative employment.

115       Taking into account the plaintiff’s evidence and the preponderance of medical opinion, I accept that the plaintiff is permanently unable to engage in repetitive manual work because of her hand condition. I am also satisfied that she would have real difficulty obtaining any work within the restrictions that have been suggested by Dr Davison and Dr Fraser.

116       I find that the pain and suffering consequences of the plaintiff’s impairment to her right wrist are serious in relation to her work activities.

117       Further, since early 2002, the plaintiff has complained of constant pain of varying intensity in her hands and numbness and tingling at night, waking her and significantly interfering with her sleep. She has problems with her power and grip and sometimes drops things. Her right dominant hand gives her most trouble. She still requires medication daily.

118       The plaintiff’s evidence as to her level of pain and disability was not really challenged. There was no video surveillance. No doctors have mentioned that the plaintiff was embellishing or exaggerating her complaints or that she did not co operate on examination.

119       I accept that whilst the plaintiff still performs most household tasks, she does so at her own pace, particularly because of the problems with her right hand. Heavy housework would cause her the same problems she would experience with repetitive work.

120       Taking into account the plaintiff’s inability to perform her work activities, the fact that that there has been no real improvement in her condition, which I accept is now permanent, the limited manner in which she can perform household duties, her ongoing pain and restriction and her continuing need for medication, I find that the impairment to her right wrist is serious.

121       Having made this finding, I am not required to consider whether there is a serious injury to the plaintiff’s left wrist or in relation to bilateral wrist function as was also claimed.

122       I accept that the consequences to this plaintiff of her right wrist injury, when judged by comparison with other cases in the range of possible impairments or losses of body function, may be fairly described as being more than significant or marked and at least being very considerable.

123       Accordingly, I grant the plaintiff’s application to bring proceedings for damages for pain and suffering.

- - -