Braunack v Wodonga City Council (No 2)

[2011] VCC 958

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT WODONGA
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST

SERIOUS INJURY DIVISION

Case No. CI-10-05964

GABRIELLE BRAUNACK	Plaintiff
v
WODONGA CITY COUNCIL	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Wodonga
DATE OF HEARING:	2 and 3 May 2011
DATE OF JUDGMENT:	16 May 2011
CASE MAY BE CITED AS:	Braunack v Wodonga City Council (No 2)
MEDIUM NEUTRAL CITATION:	[2011] VCC 958

REASONS FOR JUDGMENT

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Catchwords: Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the left wrist – carpal tunnel syndrome - pain and suffering only – whether consequences to the plaintiff are serious.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G Pierorazio	Nevin Lenne & Gross
For the Defendant	Mr W R Middleton SC with	Wisewoulds
Ms J Forbes
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 between 2005 and 2008 (“the said period”).

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 body function relied upon in this case is the left wrist.

5          Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.

6          The impairment of the body function must be permanent.

7 Subsection 38(h) of the Act provides that consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.

8          The plaintiff bears an overall burden of proof upon the balance of probabilities.

9          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, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.

10        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.

11        I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica (2006) 14 VR 602.

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

The Plaintiff’s Evidence

13        The plaintiff is presently aged thirty six, having been born on 7 August 1974. She is a single mother with two children aged four and five.

14        The plaintiff deposed that having finished Year 10, she worked as a car detailer and then a meat worker for several years. She commenced work with the defendant in 2001, working thirty to thirty eight hours per week. She also worked two hours per week as a home carer with Australian Homecare.

15        The plaintiff deposed that she first developed symptoms in her left arm in about 2005. She was working doing personal care cleaning work for about thirty eight hours a week, with constant lifting and transferring clients, manoeuvring and lifting heavy wheelchairs. Doing such work, she developed symptoms and pain in her left arm and tingling in her left hand.

16        Eventually the plaintiff was referred for surgery for symptoms of left carpal tunnel syndrome (“the syndrome”), but following surgery, her symptoms did not improve much and she was referred for further EMG testing, which confirmed the syndrome continued.

17        The plaintiff deposed in May 2010, that she had pain in her wrist and hand and at night the pain was much worse, with tingling and numbness in her thumb and finger.

18        The plaintiff was limited in her domestic activities such as scrubbing and cleaning and opening jars, gardening and growing flowers. While she was attempting to continue work, the plaintiff suffered pain and tingling which increased as the day progressed, and she did as much as she could with her right hand.

19        The plaintiff deposed that whereas before the injury she was working thirty to thirty eight hours a week, she was then limited to working ten to twenty hours per week because of her injury. As a result, her income had been greatly reduced.

20        In March 2011, the plaintiff deposed that she continues to suffer from ongoing symptoms with tingling in her thumb and two fingers of her left hand and left wrist associated with pain.

21        The plaintiff’s pain is constant and gets worse as the day progresses. Although she is right handed, the plaintiff uses her left hand significantly to do work duties, particularly cleaning. She suffers from reduced strength in her left hand due to her injuries.

22        The plaintiff deposed she is now working about twelve hours a week but sometimes she works as little as eight hours. Prior to her injury, she was working permanent part time between thirty and thirty eight hours per week and she was therefore losing income.

23        The plaintiff deposed she is limited in her employment because of the syndrome and she uses her left hand much more regularly at work.

24        She deposed that in terms of treatment, she used to take Panadeine Forte regularly but she now takes over the counter medication, Panamax, in the morning and at night and during the day when working.

Viva Voce Evidence

25        Much of the cross-examination in this hearing related to the plaintiff’s knee injury, the subject of case number CI-10-05960, particularly in terms of the hours the plaintiff worked following knee surgery (“the knee surgery”) in March 2005.

26        Whilst the plaintiff deposed in her affidavit that she was working thirty to thirty eight hours per week before the left wrist injury, in fact her hours had been reduced following the knee surgery, initially to about twenty seven hours a week on her return to work in June 2005, with a reduction in cleaning duties in January 2006. There was a significant reduction in the hours the plaintiff was working after the birth of her first child to four and a half hours per week, which continued until recently, when her hours were increased to nine to eleven hours per week.

27        The plaintiff agreed she first saw a doctor about her left hand condition in July 2008 at the Federation Clinic. Her hand symptoms started in 2005 but she knew nothing about the syndrome and the pain just got worse so she put up with it. When asked how she knew it was 2005 when her wrist problems commenced when she was so unsure of many other things, the plaintiff said she just started getting a bit of pain in her wrist, and over the years it just got worse and then she started to get tingling in her fingers a little bit.

28        The plaintiff could not recall going to Wodonga Hospital, having fallen on her left wrist in 2006. She could not recall having complained of numbness and tingling at that time. The plaintiff did not attribute any of her current left hand pain symptoms to that fall.

29        The plaintiff could not recall telling Dr Ring in July 2008 that she had had left sided symptoms for the past six months. She had had those problems for more than the year before she saw Mr McCarten in August 2008, despite what he recorded. She put up with the pain until July 2008 because she was not sure what it was.

30        When it was put to the plaintiff that she was not doing cleaning duties in the first half of 2005 because of her knee condition, she could not recall. When it was suggested to her she did not do much cleaning in that time, she could not remember, but then said in the first half of 2005 she was not doing cleaning work because of her knee.

31        The plaintiff agreed that from the beginning of 2006 she was either off work because of maternity leave or was working somewhere between four and a half and seven hours a week on average. She agreed, when she deposed that she was working ten to twenty hours a week in 2006-2007, that was not correct. She certainly was not doing twenty hours a week with the defendant cleaning.

32        The plaintiff could not recall telling doctors different dates as to the onset of her condition. She could not recall the discussion with Dr Fraser about the dates of her pregnancy and then changing the date of the onset to 2003 after initially telling Dr Fraser it was 2005 or 2006.

33        The plaintiff could not recall whether the tingling in her hand was any worse during her first or second pregnancy. It just got worse over time. “It just kept going the same way.”

34        The plaintiff agreed she had never received weekly payments for any time off work because of the left wrist and her claim was rejected at conciliation. Following that, there was an agreement to pay for surgery.

35        The plaintiff’s doctor has asked for permission to do further surgery but the plaintiff has not gone ahead with it because she is a single mother and she has got two children to look after. If WorkCover agreed to pay for the surgery, the plaintiff did not know whether she would have it. The best she could say was that she would have to think about it.

36        In cross examination, the plaintiff agreed she had had another surgical procedure in the last twelve months, the nature of which was unclear. She received a childcare benefit at that stage through Centrelink to look after her children. The plaintiff has made enquiries about available childcare in relation to the proposed second surgery, but she has been knocked back. She would not be able to obtain assistance with childcare from family members. The plaintiff denied she was not going ahead with the surgery because her condition was not that bad.

37        The plaintiff is not having any other treatment for her wrist. She was given a splint after the operation which she wore for a short time.

38        The plaintiff agreed she is able to manage all work duties with her current symptoms. She is able to look after her children and “that is her job so she has to.” She does her the housework with great difficulty. She does her own shopping and driving. She takes out the wheelie bin “because who else was going to do it ?”

39        The plaintiff has problems vacuuming. She gets pain in left wrist when putting pressure on handle. When she dresses her girls, she gets pain in the wrist and there is nothing she can do to avoid it, and she gets no help.

40        When the plaintiff drives for long distances or for a long time hanging onto the steering wheel, she gets a bad shooting pain in her wrist and then she gets tingling in her fingers. The plaintiff has no one to help with driving her children and gets no assistance in generally caring for and feeding her children.

41        The plaintiff could not say anything else she could not do at all because of her wrist but she did things with great difficulty.

42        In re-examination, the plaintiff confirmed she had wrist pain and still had tingling in her three fingers. This was similar to her condition before the surgery. There was never a day since the surgery when she had not had pain in her wrist or tingling in her fingers. Her condition is worse now because she has got weaker in her left hand.

43        The plaintiff receives a single parent’s pension and a little bit of money from work which enables her to survive. She is presently paid twenty dollars an hour.

44        The plaintiff confirmed that when her wrist pain first started it was not too bad, but over the years it did get a little bit worse and worse and then she ended up not being able to put up with the pain, with it keeping her awake at night. She then went to the doctor. She did not know about carpal tunnel until that time.

45        The plaintiff submitted a compensation claim in 2008. Leading up to that time, her pain affected her ability to work.

46        Whilst she writes right handed, the plaintiff does every thing else with her left hand. She has had to start using her right hand more. This was the case with cleaning showers, baths, dusting, and just general cleaning. She puts up with the pain but just does dusting and that sort of thing, more with the right hand.

47        The plaintiff confirmed the type of work she was doing between 2002 and 2005. She could do her duties without any difficulty before the wheelchair episode.

48        The plaintiff said she would like to be able to work extra hours but cannot because of her knee and wrist pain, which limit her work. Her knee would probably have to be her worst problem.

Treating Doctors

49        Dr Steele at the Federation Clinic (“the Clinic”) wrote to Dr Ring on 4 July 2008 thanking him for seeing the plaintiff for a nerve conduction study. He advised that the plaintiff had been having left sided carpal tunnel syndrome symptoms for the past six months which he thought were probably related to her work as a house cleaner.

50        Dr Williams at the Clinic, wrote to Mr McCarten on 1 August 2008 thanking him for seeing the plaintiff, aged thirty three, “for management of her documented and (?) Vic WorkCover left carpal tunnel syndrome”.

51        Dr Williams reported on 19 October 2008 that the plaintiff’s diagnosis was left median nerve neuropathy; i.e., the syndrome. It was his impression that the syndrome had resulted from the plaintiff’s work doing a cleaning job requiring repeated wrist movements. He thought the plaintiff should be able to perform normal light cleaning duties but should avoid prolonged scrubbing type activities involving her left upper limb.

52        Dr Steele reported on 27 March 2009 that the plaintiff had been a patient of the Clinic since 2004 and he had seen her on a number of occasions for management of a variety of conditions.

53        Dr Steele advised that the plaintiff presented on 15 July 2008 with symptoms and signs of the syndrome. He considered the cause of it to be the repetitive wrist and hand use related to her occupation as a cleaner. He noted there had been no acute injury and there was no other apparent cause of the syndrome, noting the plaintiff had not had the symptoms before commencing that job.

54        The plaintiff was referred to Dr Ring, who organised nerve conduction studies which confirmed a median nerve neuropathy at the left wrist. The plaintiff was then referred to Mr McCarten, who recommended surgery in September 2008.

55        Dr Steele noted since that time, the plaintiff had ongoing symptoms of pain and paresthesia in the left hand that had interfered with her work and activities of daily living. The paresthesia was mainly at night and woke her. The pain was mainly in the day and increased as the day went on with increasing activity. The plaintiff reported that the pain caused her to have a slow down when working and she had to work late to complete her tasks.

56        To his knowledge, the plaintiff continued to work despite her symptoms. He thought she had no capacity for increasing her work as the symptoms were likely to deteriorate. In his view, alternative work that did not require repetitive manual duties would be more suitable for a person with the syndrome.

57        Dr Steele thought carpal tunnel release surgery should be performed in order to relieve the plaintiff’s symptoms, prevent further damage to the median nerve and enable her to continue work. He noted other management modalities were also being explored and the plaintiff was currently engaged in a weight loss program. He thought physiotherapy would be another treatment option that may give the plaintiff some relief.

58        Mr McCarten, orthopaedic surgeon, wrote to Dr Williams in Wodonga on 9 September 2008 thanking him for referring the plaintiff. Mr McCarten noted the plaintiff had been bothered for over a year with tingling pain and pins and needles and numbness in her hands, and waking at night. He noted nerve conduction studies rated the degree of compression on the left side as moderate and all provocative testing on the left side was positive; the right was negative. He had no doubt that the plaintiff needed a carpal tunnel release a procedure he would do endoscopically.

59        Michelle Campbell, physiotherapist, wrote to GIO Insurance on 7 August 2009 requesting approval for the supply of a wrist brace.

60        Michael Bowler, physiotherapist from Health Focus, reported to the plaintiff’s solicitors on 8 October 2009. He advised the plaintiff was suffering pain following the surgery. The symptoms from which she was suffering were swelling to the hand and subsequent pain due to the neural irritation, with any use of the left hand being very painful.

61        Mr Bowler found it difficult to estimate the plaintiff’s recovery time but hoped to see improvement in the next six weeks; otherwise he thought alternate treatment options may have to be considered.

Investigations

62        A nerve conduction study conducted by Dr Ring on 28 July 2008 showed there was electrophysiologic evidence of a moderate median neuropathy at the left wrist.

63        A nerve conduction study of 5 November 2009 organised by Dr Ring again showed electrophysiologic evidence of moderate median neuropathy at the left wrist, but it was noted however, compared with the study of 28 July 2008, left median nerve conduction had improved to some degree.

Medico-legal

64        Mr Scott, general surgeon, examined the plaintiff on behalf of GIO Insurance on 24 September 2008.

65        The plaintiff told him of working thirty to thirty eight hours a week doing cleaning work. She had had six months off work for the birth of her second child in April 2007.

66        The plaintiff stated that she developed tingling and “pins and needles” in her left thumb, index and middle finger in about 2007 after her first pregnancy was completed and she stated, during the second pregnancy, there was no worsening of this problem.

67        On her return to work six months after the birth of her second child, there was a gradual increase in the discomfort in the plaintiff’s left hand, particularly at night, and she was finding difficulty because of pain and pins and needles in the digits. Investigations were carried out and surgery was recommended. The plaintiff was then working four and a half hours a week for the defendant and two hours a week for Australian Home Care.

68        On examination, there was a full range of movement to all upper limbs. There was a positive left Tinel’s sign and a positive left Phalen’s sign, with increasing discomfort being experienced in the left thumb, index and middle fingers. There was no evidence of any motor deficit over the peripheral distribution of the left median nerve, but the plaintiff did have some superficial sensory changes over the peripheral distribution of the palmar aspect of the median nerve in the hand over the thumb, index and middle fingers.

69        Mr Scott believed that the defendant should accept liability for the problems relating to the syndrome which he believed resulted from repetitive work, while working thirty to thirty eight hours a week with the defendant. He commented there was no evidence the plaintiff’s pregnancy aggravated her problem and the last pregnancy was completed on 24 April 2007, but that since that time symptoms had deteriorated.

70        Mr Scott thought the plaintiff was fit for her normal duties which were only four and a half hours a week, but he noted she was having difficulty with vacuuming and repetitive work. He diagnosed the syndrome and considered the plaintiff’s prognosis would be excellent with appropriate surgery. He expected the plaintiff would be able to return to the workforce, performing light duties, within three to four weeks after that procedure and hopefully she would be able to return to her normal duties without restriction within some six to eight weeks. He did not expect any permanent work related organic disability.

71        Having been provided with an investigations report, Mr Scott’s view was unchanged. He noted that between her pregnancies, the plaintiff indicated the development of the syndrome and that there was no worsening after the birth of her second child.

72        Mr Scott suspected if pregnancy was a factor in the development of the plaintiff’s carpal tunnel in the first place in about 2007, one would have expected the further pregnancy would have aggravated the problem, but the plaintiff denied that.

73        Having been provided with even further information, Mr Scott continued to believe that one would have to accept the problem of the syndrome occurring as a result of the repetitive nature of the work performed by the plaintiff after the birth of her first child. He noted it could be argued the deterioration of this problem might have occurred partly as a result of the nature of the plaintiff’s work and partly as a result of caring for her children; however, he accepted the work was more likely to have been the initiating factor with the development of the plaintiff’s problem, which had slowly deteriorated with the passage of time and required correction with a simple operation and release of the median nerve in the left carpal tunnel.

74        The plaintiff was examined by Dr Hjorth, neurologist, on 14 September 2010.

75        The plaintiff told Dr Hjorth she developed tingling and numbness in the second and third fingers of her left hand in 2004. She told him she was right handed but did everything with the left hand. Surgery in 2009 did not help much at all and she was left with numbness and tingling.

76        The plaintiff’s present problems were tingling in the first three fingers of the left hand made worse by doing heavy work. She had little pain and woke two or three times every night.

77        The plaintiff told Dr Hjorth she had dislocated her left knee some years ago.

78        On examination, the plaintiff struck Dr Hjorth as being relatively unsophisticated. He thought she was genuine and doing her best to give a good history and that her approach to matters was straightforward and a bit uncertain.

79        On testing, pin prick sensation was reduced in the territory of the left median nerve.

80        Dr Hjorth thought the plaintiff developed the syndrome whilst doing moderately heavy manual work. In his opinion, such work was a major cause of the syndrome.

81        Dr Hjorth considered the syndrome was due to the median nerve being compressed as it went through the wrist. He thought this could be due to increased fluid in the area or thickening of the tendons, or of the joints. He noted it was common with people that used their hands for manual or hard manual work. Dr Hjorth noted not everyone agreed that manual work could cause the syndrome, but those doctors who had this view were in the minority and he thought that his was the majority view.

82        Dr Hjorth noted that surgery had not been successful in clearing the syndrome, noting the pre-operative EMG showed distal median latency at 5.4 m sec. and after the operation it was 4.3.

83        Dr Hjorth noted that the results of surgery are very good and over ninety per cent of patients obtained complete relief and returned to normal when there was an open procedure done. He noted endoscopic carpal tunnel decompression gave results that were less uniformly satisfactory. It was not uncommon for people like the plaintiff to be left with some compression. He noted at some stage the plaintiff would have to think about whether she wanted to have a formal open decompression.

84        Dr Hjorth noted that the syndrome restricted the plaintiff. Whilst she was back at work, she was working slower than before and tried hard to keep up but it took her longer.

85        Dr Andrews, occupational physician, saw the plaintiff for medico-legal purposes in March 2010.

86        In terms of past history, the plaintiff told him she had had an injury to her left knee with two arthroscopies several years ago. He noted this had essentially returned to a normal functioning knee now. The plaintiff still got some aching at times which did not impact on her ability to use that knee.

87        The plaintiff told Dr Andrews about the gradual onset of pain with associated pins and needles of the left thumb, index finger and palm of the left hand. In particular, the plaintiff advised that cleaning work, which was ninety per cent of her duties, seemed to aggravate those symptoms more than anything else.

88        The plaintiff told Dr Andrews that initially the symptoms would tend to resolve overnight, but around two years ago, she found she was starting to get nocturnal symptoms of pain and pins and needles in the hand that would wake her. The plaintiff told him that she was working a fair amount of overtime but she did not note any change in her duties that explained the change in her symptoms.

89        Following surgery, the plaintiff noted only minimal improvement despite physiotherapy and other conservative measures.

90        On examination, the plaintiff advised she had ongoing tingling of the left thumb and index finger as well as the inner area of the left palm. She was then seeing Mr McCarten on a monthly basis for medical certificates and he was proposing further surgery.

91        From a work point of view, the plaintiff was certified fit for light duties, essentially doing planned activity for one day a week, five hours a week. She also did respite care for three hours every one to two weeks.

92        On examination, there was a normal range of movement of the left wrist compared to the right. There was a positive Tinel’s and Phalen’s sign in the left wrist compared to the right. Decreased sensation was noted in the first, second and third digits on the left wrist compared to the right.

93        Dr Andrews thought treatment was indicated for the syndrome as proposed by Mr McCarten. He noted the plaintiff was tolerating her symptoms; however, they did impact on her ability to work and to a certain extent on her activities of daily living. He supported surgery, noting the nerve conduction studies confirmed only minimal improvement after the initial surgery.

94        Dr Andrews agreed that the syndrome was thought to be a constitutional problem; however, it would appear that in the plaintiff’s situation, her condition had been aggravated by the nature of her repetitive duties involving her left hand. He did note that the absence of right hand symptoms certainly raised a question of work relatedness; however, one would have to observe the plaintiff’s work practices in order to fully determine her work relatedness.

95        He considered the expected result of further surgery would be that the plaintiff would be able to have an absence of symptoms and return to her full normal pre-injury role after the course of treatment.

Claim Documentation

96        The plaintiff’s claim form signed on 9 September 2008, in relation to carpal tunnel set out that she was working four and a half hours a week and first noticed the condition on 19 May 2008. The employer’s part of the form noted the plaintiff reported the injury on 13 August 2008.

The Defendant’s Medical Evidence

97        The plaintiff was examined by Dr Kostos, rheumatologist, on 5 December 2008.

98        The plaintiff told him that she was right handed and started work for the defendant in 2000 or 2001 as a home carer. She originally worked thirty to thirty eight hours a week. However, in more recent times her hours had been reduced to four and a half hours a day.

99        In 2005, the plaintiff claimed to have developed a burning sensation and tingling in her left hand which she thought was due to arthritis and she did not do anything about it at the time.

100       The plaintiff told Dr Kostos her symptoms deteriorated when she became pregnant with her first child, who was born in March 2006. She was then off work for about twelve weeks and returned to work on a part time basis four and a half hours a day. Following delivery, there was some improvement in her symptoms but she then felt they deteriorated again when she went back to work.

101       The plaintiff only worked for six to nine months before she became pregnant again with her second child, who was born in May 2007. The plaintiff told Dr Kostos that during her second pregnancy her symptoms also deteriorated and on this occasion they did not improve following delivery. The plaintiff was off work for six months before returning again in part time duties late 2008.

102       As the plaintiff’s symptoms persisted, she was sent for nerve conduction studies and she was then referred to Mr McCarten.

103       On examination, the plaintiff complained of paresthesia and numbness and a burning sensation in her left hand which was worse at night and woke her at least once every night.

104       In terms of past history, Dr Kostos noted the plaintiff was currently on a weight reduction diet following weight gain during her pregnancy. Her general health had otherwise been good.

105       On examination, wrist movement showed a full range of pain free movement. Phalen’s and Tinel’s tests were negative on the right. Phalen’s tests could not be performed on the left because the plaintiff’s hand was already tingling; however, the Tinel’s test appeared positive.

106       Neurologically the plaintiff’s power and reflexes were normal. However, sensation to pin prick was reduced in her left thumb and index finger.

107       Dr Kostos noted from the nerve conduction study of 28 July 2008, it would be reasonable to assume that the plaintiff did have the syndrome.

108       Dr Kostos noted the current concept regarding the aetiology of that syndrome was that it was a common condition in middle aged women and strongly associated with obesity. He thought there was also a well recognised association with pregnancy. He noted the best longitudinal studies that were available had not established a connection between work practices and the syndrome. Therefore, in considering all that information, he would have to suggest there was a local factor in her left wrist that had led to the early development of the syndrome which was subsequently aggravated by the plaintiff’s pregnancy. In his view, if the plaintiff’s work was a significant contributing factor or any of her activities for that matter, it obviously affected her dominant hand. Therefore, Dr Kostos did not believe the plaintiff’s employment caused her symptoms to begin in the first place.

109       Dr Kostos noted after the first pregnancy the plaintiff claimed her symptoms improved and that there was some deterioration when she went back to work, and he thought it possible that a symptomatic aggravation did occur then. However, when her symptoms deteriorated during the second pregnancy, they did not improve after delivery and had simply persisted. Therefore, Dr Kostos did not believe there was any ongoing work related aggravation to her symptoms.

110       Dr Kostos noted surgical treatment had been recommended and that it was unsuccessful for the syndrome. However, in milder cases, he considered conservative treatment should be considered. Dr Kostos concluded generally treatment from the syndrome resulted in full resolution without permanent impairment but the results were never as good in a compensation setting. He thought, however, with successful treatment, the plaintiff should be able to resume all of her normal duties, including her work, and her prognosis should therefore be good.

111       Mr Stapleton, plastic and hand surgeon, saw the plaintiff on 4 November 2010.

112       The plaintiff told Mr Stapleton that some time in 2004 pins and needles began in her left thumb, index and middle fingers. He noted the plaintiff had had two pregnancies and carpal tunnel compression, as so often is the case, was noted as a complication of the fluid retention of pregnancy and after the birth of the second child her pins and needles remained. He noted they indeed became more severe, as one would expect, as the syndrome was a condition of gradual progression.

113       Mr Stapleton noted that rheumatologists, Dr Kostos and Dr Fraser, both thought the plaintiff’s condition had nothing to do with her occupation, and he agreed certainly that was the case.

114       The plaintiff told Mr Stapleton the pins and needles in the thumb, index and middle fingers of her left hand remained and her sleep was disturbed and, if anything, those nerve compression symptoms were getting worse with time. He thought the plaintiff required an open decompression of her left carpal tunnel.

115       In terms of the plaintiff’s medical history as far as the carpal tunnel was concerned, Mr Stapleton commented it was important to note that the syndrome was a complication of both the plaintiff’s pregnancies, that the plaintiff was quite overweight and that obesity was a well known complication of carpal tunnel compression for obvious reasons.

116       On examination, there was no sensory loss noted in any of the digits of either hand and the Phalen’s test for the syndrome was positive on the left.

117       Mr Stapleton thought the plaintiff’s presenting condition in medical terms was recurrence and progression of the syndrome.

118       Mr Stapleton considered whether or not that was permanent depended, firstly, on whether the plaintiff underwent surgery for the second time and, of course, whether that surgery solved the problem, as he thought it well might.

119       Mr Stapleton noted that activities during the plaintiff’s work which required flexing of the wrists were no different from her activities at home and the suffering of symptoms by doing so did not indicate her work had caused or had made the problem worse.

120       He noted flexing of the wrist, which is after all the basis of the Phalen’s test, does no more than indicate that the underlying median nerve is compressed for reasons unknown. He noted the syndrome is now known to be a genetically predetermined problem. He thought it was not an injury nor had the plaintiff’s activities at the workplace made the problem worse. In his view, therefore, the plaintiff’s occupation was irrelevant.

121       The factors that aggravated her condition were her two pregnancies and her body weight.

122       Mr Stapleton saw no evidence of a functional component or psychological reaction to the plaintiff’s condition. He thought she was genuine and that she was suffering from a recurrence of carpal tunnel syndrome and as such, needed further investigation and probably further surgery.

123       Dr Fraser, rheumatologist, examined the plaintiff on 9 June 2010.

124       The plaintiff told Dr Fraser of working thirty to thirty five hours a week as a home carer. He noted she was extremely vague regarding the circumstances surrounding the onset of numbness in the left hand some time in 2005 and 2006. When the dates of her pregnancies were pointed out to her she suggested that the left hand symptoms commenced about two years before, i.e. 2003.

125       In any event, the plaintiff’s symptoms gradually worsened and the plaintiff also said they became worse during her pregnancy and thereafter.

126       The plaintiff told Dr Fraser that her left hand symptoms persisted without change with the pregnancy in 2006. The plaintiff told him she eventually saw Dr Steele on 15 July 2008 and was referred to Dr Ring and ultimately she saw Mr McCarten, who performed surgery on 23 July 2009.

127       The plaintiff told Dr Fraser there was only a little bit of improvement after the surgery but the numbness and tingling in the thumb, index and middle fingers eventually recurred and were only three per cent improved, feeling it most late in the day and still waking her at night.

128       Dr Fraser noted that Mr McCarten arranged further nerve conduction tests which the plaintiff said were still abnormal but he advised against further surgery.

129       The plaintiff told Dr Fraser that she took three or four Panamax a day, “not that it does anything”.

130       The plaintiff mentioned her knee condition, which she told him still troubled her despite two arthroscopies. The plaintiff told him that Mr McCarten had certified her fit for normal duties, although she had only been offered light duties four or five hours a day, one day in the week, in the office using only her right hand.

131       Dr Fraser had a confusing history of the plaintiff working for a community service agency as a carer for ten and a half hours a fortnight.

132       On examination, the plaintiff’s limb reflexes were brisk and equal. She claimed that Phalen’s and Tinel’s tests caused tingling of the volar aspect of the left wrist. But Dr Fraser noted that was of doubtful clinical significance and did not constitute a positive result, in that there was no paresthesia or numbness or distribution of the median nerve. He noted as well there appeared to be some overreaction on physical examination. He noted the nerve conduction tests in March 2009 confirmed a median neuropathy of the left wrist.

133       Dr Fraser did not consider there was any work related injury in this case. He noted the plaintiff was extremely hazy, to say the least, regarding the onset of symptoms and any relationship to her work. He noted there did not appear to be any confirmation of the onset of symptoms in 2003. The plaintiff first saw her general practitioner in 2008 and Dr Kostos reported the plaintiff’s problems started in 2005. The plaintiff gave an earlier date of onset to Dr Fraser after he reminded her of the dates of her pregnancies.

134       Dr Fraser noted pregnancy is a well recognised precipitating factor for the syndrome and on all the evidence, he thought there must be a strong suspicion that that was so in the plaintiff’s case. He also noted there was, of course, the additional risk factor of obesity which may have been contributory in any event.

135       Dr Fraser commented that an association with occupational factors involving repetitive use of the hands was no longer widely accepted, as Dr Kostos noted. The involvement of the non-dominant left hand made no sense if work was involved. He accepted the plaintiff probably had the syndrome but suspected it had resolved post operatively. He thought her ongoing symptoms and signs were not convincing and suspected they were due to non organic factors. He did not consider there was any incapacity as a result of the syndrome or that was any barrier to the plaintiff’s return to her pre-injury duties, noting she was in fact already doing this type of work for another employer.

Lay Evidence

136       Ms Hamilton, the defendant’s Human Resources Officer, swore an affidavit on 19 November 2010 in relation to the plaintiff’s carpal tunnel claim.

137       Ms Hamilton deposed that the plaintiff’s affidavit was misleading where she deposed she was working thirty to thirty eight hours a week because prior to the date of injury, the plaintiff had reduced her hours voluntarily to four and a half following the birth of her first child and had maintained that reduction in hours through the birth of her second child to the present date.

138       The plaintiff’s claim form dated 9 September 2008 confirmed that her normal hours as at the time of injury were four and a half per week at $19.11 per hour.

139       In the twelve months prior to reporting the carpal tunnel injury, i.e. 21 September 2007 to 5 September 2008, the plaintiff’s work hours included overtime totalling 138 hours 22 minutes averaging to be two hours per week.

140       The plaintiff deposed she first developed left arm symptoms in 2005. The defendant had no record of the plaintiff suffering any symptoms until it was reported on 9 August 2008 to the former Human Resources Officer, Rebecca Johnston. At that time, Ms Hamilton understood that then the plaintiff did not discuss the cause of her injury.

141       In the WorkCover claim form signed by her on 9 September 2008, the plaintiff set out that she first noticed the injury or condition on 19 May 2008.

142       The plaintiff has lost minimal time as a result of the carpal tunnel injury and has remained working. She has not received any weekly payments of compensation in relation to that injury.

Pay Records

143       The defendant tendered pay records from Erin Health/PRN from between February 2007 and 1 July 2009. They set out that the plaintiff on a fortnightly basis was working as little as one hour and as much as eighteen hours and frequently working six hours per fortnight.

144       The plaintiff’s wage records from Australian Home Care Services set out details of hours worked between 27 April 2002 and 1 July 2009.

145       In the financial year 2002-2003, the plaintiff worked 241 hours; in 2003-2004, 366 hours; in 2004-2005, 359 hours; and in 2005-2006, she worked 125 hours.

146       The plaintiff worked 57 hours in hours in 2006-2007, 50 hours in 2007-2008, 182 hours in 2008-2009 and in the following year, she worked 119 hours.

147       The plaintiff wrote to Australian Home Care advising that she intended to resign from employment as of Monday, 26 July 2010 due to securing full time employment in Wodonga.

Findings

148       In this case, all medical practitioners agree the plaintiff suffered the syndrome and required surgery in relation thereto in 2008.

149       Dr Fraser is alone in the view that the syndrome resolved post operatively and that the plaintiff’s ongoing symptoms and signs are not convincing and due to no organic factors.

150       The debate in relation to the syndrome is whether it is work related.

151       Mr Scott, on a number of occasions, having been provided with more and more material by the insurer, maintained his position that the syndrome was related to the plaintiff’s work duties with the defendant – a view shared by the plaintiff’s treating doctors and medico-legal examiners, Dr Hjorth, Mr Reid and Dr Andrews.

152       I am not attracted to the view that a carpal tunnel syndrome is a constitutional condition affected by middle age, pregnancy and obesity as Dr Kostos, Mr Stapleton and Dr Fraser believed.

153       The plaintiff’s duties with the defendant required the use of both hands, particularly in cleaning activities. Whilst the plaintiff uses her right hand to write, she predominantly uses her left hand for other activities.

154       The defendant, having initially rejected the plaintiff’s claim for weekly payments, subsequently agreed, following conciliation, to pay for the decompression surgery and household expenses. The request for the second surgery has been denied.

155       In this case, I am satisfied the plaintiff has suffered a compensable injury being injury to her left carpal tunnel as a result of her employment duties with the defendant in the period leading up to her first seeking medical attention in 2008.

156       I accept the plaintiff was a genuine witness although a terrible historian. At times her answers were totally inconsistent with her frequently having difficulty understanding relatively simple questions and giving totally contrary answers to the same question on different occasions.

157       Whilst the plaintiff has given different accounts of the date of onset of her left hand problems, I accept that for a period leading up to that first attendance on a doctor in July 2008, she had experienced numbness and pins and needles. The plaintiff is not required for the purposes of this application to identify a precise date of injury.

158       I accept the plaintiff’s evidence as to her ongoing pain and restriction which was not significantly challenged by counsel for the defendant. Further, there was no surveillance film or other evidence relied upon by the defendant in this regard.

159       The plaintiff has undergone closed decompression surgery to her left median nerve with little improvement. There has been little change shown in the level of compression on nerve conduction testing carried out after the surgery.

160       I accept that the plaintiff’s condition is such that it warrants that further surgery – a course supported by all medical practitioners except for Dr Fraser.

161       I accept the plaintiff continues to suffer ongoing numbness and tingling and has difficulty sleeping because of pain in her left wrist. Her complaints are supported by findings on both clinical examination and the recent nerve conduction studies. The plaintiff requires over the counter medication for her left hand symptoms.

162       The plaintiff has difficulty with tasks encountered on a frequent basis in daily life and at work involving the use of her left hand. Her left wrist has become increasingly weaker than her right. Opening jars and similar activities using her left hand are difficult. Bathing and dressing her young children causes the plaintiff problems. She has to carry on with these activities without receiving any assistance from others.

163       Because of this pain and weakness, the plaintiff has difficulty when doing household duties such as vacuuming and work cleaning tasks. She does not work less hours because of these problems but she experiences pain when undertaking her duties. Driving for extended periods with her left arm outstretched is painful.

164       The fact that the plaintiff is not prepared to undergo further surgery does not mean her condition is not permanent. There is no guarantee that the suggested procedure will be successful, particularly give the lack of improvement following the first surgery.

165       I accept that at the present time the plaintiff’s reluctance to undergo further surgery results from her concern as to childcare and financial issues and does not result form a view on her part that her condition is not bad enough to undergo a further procedure.

166       In the absence of successful surgery, the plaintiff’s symptoms will continue as Mr Reid described. I accept that the plaintiff’s condition is likely to continue into the foreseeable future.

167       The plaintiff is still a relatively young woman.

168       In Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181, Ashley JA and Beach AJA, at paragraph 43, 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.

169       The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, it was 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 person would have to put up with for forty years might well be judged more serious than the same consequences which a person may have to put up with for a much shorter period of time.

170       Taking into account all the evidence, I am satisfied that the plaintiff has a serious injury in relation to her left wrist and leave is granted to bring proceedings for damages for pain and suffering in relation thereto.

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