Butrakoski v Dentsu Aegis Network (ANZ) Management Services Pty Ltd
[2015] VCC 1787
•16 December 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-05396
| STEVE BUTRAKOSKI | Plaintiff | |
| v | ||
| DENTSU AEGIS NETWORK (ANZ) MANAGEMENT SERVICES PTY LTD | First Defendant | |
| and | ||
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant | |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 and 21 August 2015 | |
DATE OF JUDGMENT: | 16 December 2015 | |
CASE MAY BE CITED AS: | Butrakoski v Dentsu Aegis Network (ANZ) Management Services Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1787 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the right, alternatively, the left wrist, or the right or left upper limb – leave sought to bring proceedings for pain and suffering damages and pecuniary loss damages
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak [2005] 14 VR at 622; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: Leave granted to the plaintiff to issue proceedings at common law for pain and suffering and loss of earning capacity damages as a result of injury suffered in the course of his employment with the first defendant from between approximately mid-2010 until early-2012.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R H Stanley | Nowicki Carbone |
| For the Defendants | Mr P Scanlon QC with Mr S C Bailey | Russell Kennedy |
HIS HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injuries suffered by the plaintiff in the course of his employment with the first defendant from between approximately mid-2010 until early-2012.
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests as mandated by s134AB(37) and (38) of the Act.
3 The plaintiff brings the application pursuant to clause (a) of the definition of “serious injury”, to be found in s134AB(37) of the Act.
4 There “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is the right, alternatively, the left, wrist or the right or left upper limb.
6 The plaintiff relies upon two affidavits sworn 26 June 2014 and 13 August 2015[1] and he gave viva voce evidence. He was cross-examined. In addition, both parties relied on medical reports and other material which were tendered in evidence. I have read all the tendered material.
[1]Exhibit B
Outline of Section 134AB
7 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
8 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
9 By ss38(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described at the date of hearing as being “more than significant or marked” and as being “at least very considerable”.
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.
11 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more both at the date of hearing and permanently thereafter. Sub-sections 38(e) and (f) recite the formula by which loss of earning capacity is to be measured. Sub‑section 38(g) requires questions of rehabilitation and re-training be considered in determining whether the 40 per cent loss has been established. Sub‑section 38(h) provides consequences which are psychologically-based are to be wholly disregarded in paragraph (a) cases.
12 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[2] in reaching my conclusions.
[2][2005] 14 VR at 622
13 The defendants in this case do not seriously challenge that the injury, as claimed, arose out of or in the course of employment, despite tendering a report from Mr Damian Ireland, hand surgeon.
14 The plaintiff has been in receipt of weekly payments of compensation according to statute and has also been in receipt of “top-up” payments of weekly benefits pursuant to s93D of the Act, while he was in part-time employment, up until he was retrenched in September 2012. However, the defendants contest that the injury meets the requirements of sub‑paragraph (a) of the definition of “serious injury” referred to above.
Compensable physical injury
15 The plaintiff has been treated by his general practitioner, Dr Chris Gorgioski, who reported on 14 February 2013.[3] He states he has known the plaintiff since August 1984 and he has no significant past medical history. He presented on 25 January 2011 complaining of pain in both wrists and arms, which had developed progressively and was worsening. The plaintiff attributed these symptoms to the constant use of a computer keyboard and the position of his wrists in the course of his employment with the first defendant.
[3]Exhibit D
16 On examination, the plaintiff had swelling of extensor tendons at both wrists and a provisional diagnosis of de Quervain’s tenosynovitis was made.
17 Dr Gorgioski referred the plaintiff to Mr John Owen, orthopaedic surgeon, who confirmed the diagnosis and injected the painful tendons.
18 Later, when the condition did not improve, Dr Gorgioski referred the plaintiff to Mr Berger, a specialist hand surgeon, who also provided local treatments and suggested surgical treatment in the future.
19 The plaintiff continued to work on light duties until he was retrenched. He later found another job in online sales. As at the date of this report, the plaintiff had been presenting with painful wrists, and an ultrasound had confirmed the presence of moderate to severe tenosynovitis. Dr Gorgioski considered him unfit for his pre-injury employment and he was fit for only very light and non-repetitive work of two to three hours. The prognosis was uncertain at that stage.[4]
[4]Plaintiff’s Court Book (“PCB”) 114
20 In a report dated 13 January 2011,[5] Mr John Owen, orthopaedic surgeon, stated he consulted with the plaintiff on 12 January 2011 “… because of his bilateral De Quervain’s tenosynovitis”.[6] He had previously injected the de Quervain’s twice on the right and once on the left. Mr Owen noted:
“His symptoms were resolving until he returned to his work which requires repetitive movement of his wrists.”[7]
[5]Exhibit E
[6]PCB 18
[7]PCB 118
21 The advice, at that time, was to have surgery. Mr Owen also considered that if the employer could find a way to avoid the provocative activities, then that would be the best outcome.[8]
[8]PCB 118
22 Mr Anthony Berger, specialist hand surgeon, reported on 12 February 2013.[9] Mr Berger stated he first saw the patient on 18 October 2011 –
“… for assessment and management of his bilateral wrist problems.”[10]
[9]Exhibit F
[10]PCB 123
23 On examination, the plaintiff –
“…demonstrated tenderness in the 1st dorsal compartment in both wrists and a positive Finkelstein’s test confirming the diagnosis of de Quervain’s tendonitis.”[11]
[11]PCB 123
24 At that stage, the plaintiff was a little hesitant about surgery.
25 The plaintiff returned to Mr Berger on 20 September 2012, as he was still troubled by pain in both wrists. Repeat examination at this time confirmed, again, the presence of tenderness in the right and left first dorsal compartment tendons and a positive Finkelstein’s test.[12] Although surgery was offered at this time, the plaintiff decided to continue along conservative lines.
[12]PCB 123
26 Mr Berger saw the plaintiff again on 26 February 2013. A recent ultrasound had again confirmed possible de Quervain’s tendonitis. Mr Berger commented:
“Unfortunately he did not respond to a Cortisone injection which does put some doubt on the diagnosis.”[13]
[13]PCB 126
27 At the time of this consultation, Mr Berger considered the plaintiff to be –
“… capable of continuing with light and non-repetitive activities that do not involve repetitive gripping and twisting with his right and to a lesser extent the left forearms. I believe Mr Butrako[w]ski should be capable of increasing his work days to five days a week but still maintaining his light modified duties with self-paced activities.”[14]
[14]PCB 128
28 When seen again on 17 September 2013, Mr Berger considered the plaintiff:
“…certainly has some features of de Quervain’s tendonitis but [t]his does not explain all of his symptoms and certainly does not explain the tenderness further up his forearm. This could be due to some intersection syndrome problems but again, his symptoms are not typical. Unfortunately he has failed to respond to a full range of conservative treatments including Cortisone injections. We have discussed this at some length and I suspect it may be better just to leave things alone however surgical release is an option but obviously there is no guarantee that this would cure his problem.”[15]
[15]PCB 129
29 Mr Berger saw the plaintiff again on 26 May 2015. He noted:
“His bilateral wrist pains have persisted for many years now with no real change. He has tried new occupations but this failed and now he is looking at a course in airport screening. He still describes his pain as being a constant burning on the radial aspect of both wrists with some pins and needles at times. He has not had any improvement with multiple Cortisone injections. Although the ultrasounds have always suggested the possibility of de Quervain’s tendonitis none of them have really shown any definite tendonitis. Clinically his symptoms are somewhat atypical and I am really concerned that surgery is not going to be of any benefit … I have taken the liberty of referring him off to see a neurologist.”[16]
[16]PCB 133
30 In the meantime, the plaintiff was seen, again, by Mr John Owen, who reported on 28 May 2015. Mr Owen stated:
“[The plaintiff] has grumbling symptoms of his De Quervain’s tenosynovitis and I told him he has really reached the end of his time putting up with this without surgery.
We are going to operate in the near future. The question of liability is a vexed one apparently.”[17]
[17]PCB 121
31 The plaintiff tendered in evidence the opinions of occupational medicine practitioner, Dr Umberto Boffa,[18] and occupational physician, Dr Leon Le Leu,[19] both of whom furnished opinions on behalf of the defendants.
[18]Exhibit 11
[19]Exhibit M
32 Dr Boffa first assessed the plaintiff on 21 July 2011. He took a history that the plaintiff had been with his current employer for approximately five years and the work involved the same repetitive computer-based tasks all day. Dr Boffa also noticed the work was fast turnaround and high volume.[20] Dr Boffa noted that, prior to his injury, the plaintiff enjoyed going to the gym, lifting weights and riding mountain bikes. He had done neither for the previous twelve months, as these activities had allegedly aggravated the pain in his wrists. The plaintiff said he was particularly frustrated by the fact he cannot help his elderly father in the garden at home, leaving the latter to do the heavier digging. He denies depression, but is clearly upset by the restrictions imposed by his injury. He also expressed a sense of loss that his body image has changed since not being able to participate in gym work or ride his mountain bike, in that he is not as toned or strong as he used to be.[21]
[20]PCB 143
[21]PCB 144
33 After examining radiology and conducting an examination, Dr Boffa’s opinion was the plaintiff had:
“… developed persistent bilateral De Quervain’s tenosynovitis over the last 12 months, which has not settled despite reduction in pre-injury duties and hours and modification of his workstation and use of wrist splints. The options are surgery or instigation of alternative duties.”[22]
[22]PCB 145
34 Further, Dr Boffa considered that the tendinitis was caused by the plaintiff’s duties as a graphic designer and he was unable to return to his pre-injury duties and hours.[23] At that stage, Dr Boffa’s opinion was the plaintiff needed to remain on modified pre-injury hours and be introduced to alternative duties.[24]
[23]PCB 145
[24]PCB 146
35 Thereafter, Dr Boffa attended a worksite inspection on 28 July 2011. He noted the plaintiff’s workplace had already been ergonomically modified and appeared satisfactory to his requirements. He noted:
“For instance, he no longer needs to use a mouse but instead uses his dominant hand to operate keyboard mounted centrally located toggles. These alternative movements involve the smaller muscles in the hand and relieve the long extensor tendons that are inflamed. His chair and monitor are also satisfactorily adjusted.”[25]
[25]PCB 148
36 Further, Dr Boffa stated:
“As noted in my previous report, [the plaintiff] has recently increased his hours from three hours a day five days a week to 3½ hours a day five days a week. This has unfortunately been accompanied by a recrudescence of symptoms consistent with De Quervain’s tenosynovitis. As I informed Ms Iape, there is nothing for it but to reduce his hours again to three hours per day five days a week for another several weeks in order to have his symptoms settle down again.”[26]
[26]PCB 148
37 Dr Boffa’s conclusion was that the plaintiff had now developed:
“… an intractable bilateral De Quervain’s tenosynovitis that did settle after a period of rest. On a return to reduced hours and a graduated increase in hours, he has experienced an increase in symptoms. He now needs to maintain his hours at three hours a day five days a week for at least another month before attempting another increase of hours.”[27]
[27]PCB 148
38 Dr Le Leu examined the plaintiff on 28 November 2013. He noted the plaintiff was not wearing splints on his wrist but he had them in his bag. Amongst the material relied upon by Dr Le Leu, was a Medical Panel decision of 21 June 2013, confirming that the plaintiff was unfit for pre-injury duties and had bilateral de Quervain’s tenosynovitis. He also noted the plaintiff was currently receiving occupational therapy sessions, hand specialist consultations and general practitioner visits.[28]
[28]PCB 152
39 Relevantly, the plaintiff had recently applied for weekly compensation benefits under s93CD of the Act and Dr Le Leu was asked to advise the defendants accordingly. Dr Le Leu recited the criteria as follows:
“(a)the worker has returned to work (whether in self-employment or other employment) for a period of not less than 15 hours per week and is in receipt of current weekly earnings, or current weekly earnings together with non-pecuniary benefits within the meaning of section 5AB(1)(d), of at least $177 per week; and (b) because of the injury, the worker is, and is likely to continue indefinitely to be, incapable of undertaking further additional employment or work which would increase the worker’s current weekly earnings.”[29]
[29]PCB 152
40 Dr Le Leu noted that the defendants acknowledged the plaintiff met the criteria set out in (a), but were “… unsure of whether they currently meet criteria [under] (b).”[30] Importantly, Dr Le Leu noted that his present work status was as follows:
“He is doing part time work on Monday, Tuesday and Wednesday from 9 am to 5 pm. He is pushing himself to work three full days per week and is only just able to perform his job.”[31]
[30]PCB 152
[31]PCB 154
41 Relevantly, Dr Le Leu considered that the plaintiff’s pre-injury employment was still the cause of his current condition and that he would not be able to perform pre-injury duties with an old employer or new employer. At present, he was able to perform his current duties at three full days per week, but it was
“• … not clear that [h]is hours could be increased.
…
• He may be already working at his full capacity.”[32]
[32]PCB 156
42 Further, Dr Le Leu considered that the question of alternative duties would be best looked into by a vocational guidance person.
43 Significantly, Dr Le Leu later stated:
“In my clinical opinion, he may already be working at his full capacity … The situation is that he is indefinitely unable to increase his hours.”[33]
[33]PCB 157
44 Based on the plaintiff’s medical material, it would appear to me that there is a strong prima facie case that the plaintiff is still suffering from a “grumbling” bilateral de Quervain’s tenosynovitis, which is work-related and which has produced a permanent vulnerability and incapacity for his pre-injury duties. If I were to accept the prima facie case as ultimately proved, the most significant question thereafter would be whether the plaintiff would be able to increase his hours in “suitable employment” over and above those indicated by Dr Le Leu in his report of 28 November 2013.
45 It would appear to me that this is the main point of contention between the parties.
46 As Senior Counsel for the defendants succinctly, and fairly, put in his final address:
“If Your Honour accepts that the plaintiff has suffered a significant injury to [his wrists] - bilaterally that causes him an inability to work five days a week in light duty employment, then the plaintiff succeeds, and the plaintiff must succeed for pecuniary loss and he, as a consequence, must succeed for pain and suffering loss.”[34]
[34]Transcript (“T”) 99, Lines (“L”) 26-32
47 Senior Counsel developed his argument as follows:
“That would, as we would contend, require Your Honour to make a finding that the plaintiff, at a time when he was at Kwik Kopy, in relatively light duties, was at his maximum capability.”[35]
[35]T100, L1-4
48 This would, of course, align with the opinion of Dr Le Leu.
49 Senior Counsel further submits, however, if the plaintiff was capable of working fulltime with Kwik Kopy, undertaking relatively light duties, he would not meet the required threshold as required by statute, as, in effect, agreed to by plaintiff’s counsel.
50 For completeness, Senior Counsel for the defendants conceded that the plaintiff was not fit for his pre-injury employment, even on a three-day-a-week basis, but submitted that he would be fit for full-time employment in the light duties position he was performing at Kwik Kopy.[36]
[36]T100, L15-29
Economic loss consequences of compensable physical injury
51 The defendants adduced medical evidence from three practitioners, the first of whom was Dr Roy Karna, rheumatologist, who reported on 25 October 2012.[37] The reason for referral was recited as follows:
“He is presenting for evaluation of his medical payment entitlements and medical needs. He has an injury in relation to both wrists designated bilateral tenosynovitis with a date of injury being August 2010.”[38]
[37]Exhibit 2
[38]Defendants’ Court Book (“DCB”) 5
52 Dr Karna noted the plaintiff was a dominantly right-handed man currently working with Kwik Kopy part-time three days a week, 9.00am to 5.00pm. He further noted it was part of the WISE Scheme and he is, in essence, in sales/account management, which involves 50 per cent of the time doing telephone calls and 50 per cent of the time doing computer work.[39] He noted it was in the capacity of a graphic designer for the first defendant that he developed:
“… his first and only injury in May or June of 2010 when he insidiously developed pain on the radial aspect of the (sic) first his right and then his left wrist. He found that the symptoms progressively worsened over a two to three week period and he saw Mr John Owen, Orthopaedic Surgeon who injected his radial wrist region with steroid with some initial part-time benefit, but upon returning back to his normal work there was a recrudescence of symptoms on the right in particular and he had a second intralesional steroid injection into the right radial wrist. He then returned back to his normal job.
He said that the pain gradually recurred and worsened reaching a peak in January 2011 and he took three months off. During that time he continued with physiotherapy, splints, some analgesics and there was some relief of symptoms, but upon returning back to work in April 2011 he found that the symptoms worsened and notwithstanding the fact that his hours were restricted and he got to at (sic) a maximum three hours, five days a week.”[40]
[39]DCB 5
[40]DCB 6
53 Dr Karna further noted:
“In November 2011 with continuing pain both at rest and with activity he ceased work again and remained off work until June 2012. In that period he had extensive physiotherapy including dry needling, massage, ultrasound and a TENS machine. He was not taking any medication, but in June 2012 he did have further steroid injections into the wrist with some benefit.
He saw Mr Anthony Berger who suggested that realistically all that could be done was surgery, but he is not keen to present for surgery.”[41]
[41]DCB 6
54 Dr Karna noted that:
“Currently he says the pain is constant sometimes worse on the right and then other times the left. He does phone and computer work [with Kwik Kopy] and continues to use a mouse and says that his pain does worsen with activity. He says holding a hairdryer or even brushing his teeth can cause pain. Major swelling has not been an issue.
He has splints when he is at work. He can drive for 40 minutes at a time. He can hold cutlery and can dress eg: doing buttons. He however finds sustained forcible grip difficult and hence has not been able to go to the gym to lift weights or in fact grip handlebars on a pushbike. He has difficulty gardening. He lives at home with his parents.”[42]
[42]DCB 6
55 Importantly, in my view, Dr Karna does not recite what effect the work at Kwik Kopy is having on his symptoms and whether the plaintiff, himself, considers that he could work an extra two days.
56 The clinical examination appears to be essentially normal, and Dr Karna stated that his impression was:
“This worker may well have had bilateral De Quervain’s disease occurring in the work context and he may well be prone to developing recurrent symptomology when he does certain activities. Suffice it to say on todays (sic) presentation I do not believe that he has tenosynovitis or indeed De Quervain’s disease and certainly in my opinion surgery is not indicated.
On today’s presentation it would simply being (sic) a case of avoiding factors which have produced and/or aggravated symptoms in the past. This may require occupational therapy/rehabilitation review to minimise stress to the radial aspect of the wrists and for him to wear appropriate splints. In that context I would for example suggest that he is capable currently of doing full-time work in his current duties. It seems that his previous pre-injury duties were much more computer intensive and it may lead to problems, particularly with the repetitive mouse usage etc., in his dominant right hand.”[43]
[43]DCB 7
57 It would seem to me that this opinion involves the following inferences:
(a)The work-related bilateral de Quervain’s disease has produced a vulnerability in the plaintiff which, while not manifest at the time of examination, still leads the plaintiff to a situation where he needs to avoid factors which have produced or aggravated symptoms in the past;
(b)The opinion that Dr Le Leu expresses, that the plaintiff is working to maximum capacity at Kwik Kopy, is not shown to be negatived by Dr Karna by any discernible path of reasoning.
58 Further, Dr Karna’s opinion that the absence of demonstrable pathology at the time of his examination meant that work was not a material contributing factor to his symptoms, still leaves open the question of whether the plaintiff has a vulnerability as a result of the work-related condition. The fact that Dr Karna reports “He would require ergonomic furniture, ergonomic keyboard etcetera and something that needs to be identified perhaps with an occupational therapist”, is, in my view, consistent with an ongoing vulnerability.[44]
[44]DCB 8
59 Further, when Dr Karna states that he does not believe that the plaintiff is working to his full capacity, I consider this opinion has reduced weight when he does not obtain a history from the plaintiff as to the effect that the current three days’ work is having on his symptoms.
60 The defendants also tendered in evidence the report of orthopaedic surgeon, Mr Robin Williams, dated 10 September 2014.[45] An additional item of history was that the plaintiff had been made redundant from his Kwik Kopy job on 23 May 2014. Dr Williams reported the plaintiff described his current condition as being:
“… always a burning sensation, particularly on the lateral aspect of his wrists. Discomfort and increased burning sensation occurs the more he uses he hands. He said that at night he tosses and turns for about 40 minutes before he gets to sleep. He mentioned that there is a ‘worry factor’.
At present he is not have (sic) any specific treatment. Occasionally he takes Nurofen. His current general practitioner is Dr Gorgioski.”[46]
[45]Exhibit 3
[46]DCB 13
61 Further, the plaintiff said he did not play sport at present but used to enjoy some gymnasium activities and bicycle riding. It was Mr Williams’ opinion that:
“His symptoms are consistent with mild bilateral de Quervain’s disease. Symptomatically the right is a little more troublesome than the left.
Repetitive movements of his hands and wrists increase the level of his symptoms.”[47]
[47]DCB 14
62 Once again, I consider this opinion is consistent with a work-related de Quervain’s disease producing a vulnerability in the plaintiff such that any repetitive movements of his hands and wrists increase the level of his symptoms. Relevantly, Mr Williams considers that the activities that the plaintiff performed in August 2010 –
“… probably contributed to the condition described above. … He has developed a rather chronic pattern of pain and it is difficult to make a specific prognosis.”[48]
[48]DCB 15
63 Most relevantly, and fairly in my view, Mr Williams states:
“I am not able to define specifically how many hours he can perform as this would only be determined by observing his reaction to performing those hours of work.”[49]
[49]DCB 15
64 It would appear to me that this is specifically the matter to which Dr Le Leu turned his mind, as referred to above.
65 Despite not specifying a number of hours, Mr Williams considered the plaintiff had the capacity to resume suitable employment in a suitable job on a full-time basis but, again, commenting –
“… this would depend on his reaction to performing those activities.”[50]
[50]DCB 16
66 Finally, the plaintiff tendered in evidence the report of hand surgeon, Mr Damian Ireland, dated 1 April 2015.[51] Mr Ireland took a relevant history of onset of symptoms and treatment undertaken by Mr Owen. As part of his history, he noted:
“[The plaintiff] stopped work in November 2011 and was unemployed until May 2012 when he took on a different role in a sales position which only involved 40% keyboard work. He was working in the IT field. He continued in this capacity for an undisclosed period of time and is currently unemployed.”[52]
[51]Exhibit 4
[52]DCB 21
67 There is no further history of the type of work the plaintiff was performing, with Kwik Kopy, whether it caused symptoms, whether he was able to work part-time or full-time, or whether he was working to full capacity in that employment.
68 In any event, the plaintiff’s current complaints were cited as:
“Bilateral wrist symptoms which are essentially symmetrical, but more severe on the right dominant than the left side. On the right side he complains of a constant burning sensation which he locates in the first extensor compartment with associated overlying pain caused by use of the right thumb. He locates the pain a little more proximal in the crossover area than the burning sensation which is distal to the extensor retinaculum. He also complains of intermittent tingling in the pulp of the thumb and index finger. This is occasional and occurs once a week. He complains of stiffness of the thumb but can’t specify which movement is restricted. This combination of symptoms causes decreased function but he is not able to specify any specific functional loss.”[53]
[53]DCB 22
69 Mr Ireland notes that the plaintiff was currently not receiving any treatment for the symptoms, was taking no medications and not attending hand therapy. He notes the plaintiff –
“… wears DeQuervain’s splints bilaterally when he is using a keyboard but he doesn’t think these are of any substantial benefit.”[54]
[54]DCB 22
70 It does not seem Mr Ireland asked how often the plaintiff uses the keyboard and if it produced any, and if so, what symptoms.
71 When asked to what effect his condition has had on his social, recreational, hobby and sporting life, the plaintiff stated that he had to stop gym work and was unable to ride his bicycle. Also, his ability to gardening at his parents’ house was limited.[55]
[55]DCB 22
72 Mr Ireland considered that the imaging reports revealed –
“… changes consistent with but certainly not diagnostic of DeQuervain’s tenosynovitis bilaterally.”[56]
[56]DCB 23
73 His diagnosis was one of –
“Bilateral wrist pain of unknown origin … and … the worker’s condition is best described as chronic pain syndrome bilateral wrists.”[57]
[57]DCB 23
74 Mr Ireland’s opinion was:
“It is reasonable to assume that initially the worker suffered … [from] bilateral DeQuervain’s tenosynovitis based on his early response intra sheath corticosteroid injections albeit for a limited period of time. The failure to respond to many subsequent injections plus the negative or equivocal findings … indicates that the worker is currently not suffering from any major physical condition affecting either wrist.”[58]
[58]DCB 25
75 Further, Mr Ireland states that the plaintiff complains that the pain in both wrists prevents him from doing gym work, riding a bike and doing heavy gardening. He does not seem to disbelieve the plaintiff in this regard and, if he does, he does not mention it.
76 In Dr Ireland’s opinion, the plaintiff is capable of undertaking appropriate employment and if he believes the use of a keyboard and a computer mouse aggravates his symptoms –
“… then this work should be limited to no more than 50% of his daily activities. Otherwise I believe he is fit to return to full-time work.”[59]
[59]DCB 26
77 Finally Dr Ireland states:
“I believe he could undertake the ‘Kwik Kopy’ work on a full-time basis.”[60]
[60]DCB 26
78 Once again, his ultimate conclusion would have greater weight if Mr Ireland had descended to detail as to what effect the Kwik Kopy work was having on the plaintiff’s symptoms on a part-time basis, as alluded to by De Le Leu.
Conclusions
79 Based on the active treatment at the hands of the plaintiff’s specialists and the opinions expressed by the defendants’ doctors, particularly Dr Boffa and Dr Le Leu, I consider that the plaintiff has suffered from a work-related bilateral tenosynovitis which has been caused by his work with the first defendant as alleged.
80 Secondly, I accept that at various times, the signs elicited by various practitioners are negligible, which would be consistent with the plaintiff not performing any significant activities with his hands.
81 Thirdly, I accept that resuming work with the first defendant at various times produced “a recrudescence” of his symptoms, leading to an incapacity for that work, and that when he performed alternative light work with Kwik Kopy, he was performing that work, which consisted of keyboard work, to a certain extent, to the limit of his capacity, being three days a week.
82 Finally, the permanent vulnerability, according to the formula set out above and which equates with the three days of employment with Kwik Kopy, means that the plaintiff meets the test of 40 per cent loss of earning capacity as conceded by the defendants’ Senior Counsel.
83 Accordingly, leave will be granted to the plaintiff to issue proceedings at common law for loss of earning capacity and based on the principles outlined in Advanced Wire & Cable Pty Ltd v Abdulle.[61] Leave will also be granted to the plaintiff to issue proceedings for pain and suffering damages.
[61][2009] VSCA 170
84 I will hear the parties as to any consequential orders.
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