Byrne v Victorian WorkCover Authority
[2013] VCC 1953
•11 December 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-05026
| KATHIE MARY BYRNE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 December 2013 | |
DATE OF JUDGMENT: | 11 December 2013 | |
CASE MAY BE CITED AS: | Byrne v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1953 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Injury to the left thumb – disfigurement – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Leave granted to bring proceedings for damages for pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Goldberg | Maurice Blackburn |
| For the Defendant | Ms M Britbart | Hall & Wilcox |
HER 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 injury suffered by the plaintiff in the course of her employment with Lylean P/L (“the employer”) on 29 July 2008 (“the said date”).
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 s134AB(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 application is the left hand.
5 The plaintiff also brings an application pursuant to clause (b) for a permanent serious disfigurement of her left hand.
6 The plaintiff relied upon two affidavits and gave viva voce evidence. She was cross-examined. The plaintiff also relied on an affidavit sworn by her son, Mark Byrne, on 2 December 2013. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Outline of Section 134AB
7 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.
8 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
9 The plaintiff bears an overall burden of proof upon the balance of probabilities.
10 By ss(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 “more than significant” or “marked” and as being “at least very considerable”.
11 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.
12 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
13 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
The Plaintiff’s evidence
14 The plaintiff is presently aged forty-nine, having been born in December 1963. She left school at the age of fifteen and had her first two children at an early age. The plaintiff worked in the gaming industry for about twenty years and also worked in butcher shops. Before working with the employer, she worked as a retail assistant for about three years at Eltham Waterhouse.
15 On 18 October 2007, the plaintiff started work with the employer, a business with several butcher’s shops trading under the name Village Meats.
16 The plaintiff’s job at the St Helena shop involved preparing and serving various types of meat, and also cleaning the shop. Prior to injury, she enjoyed her work. She worked about 24 hours per week.
17 Prior to the said date, the plaintiff believed she was in good health. She had had a tendon injury involving her left ring finger as a teenager and that resolved.
18 The plaintiff showed the scarring in relation to this previous tendon injury to her ring finger. She had difficulty moving the finger because of the tendon damage and agreed that had been the case for many years, and that the finger would not curl under.[3]
[3]Transcript (“T”) 16
19 In cross-examination, the plaintiff confirmed that her ring finger had never caused her any problems in the past. She did not have to use her right hand to uncurl it.[4] She had a little bit of movement in it. That finger was probably never straight. Prior to the incident, the ring finger would never fully make part of her fist.[5]
[4]T23
[5]T24
20 Prior to the incident, the plaintiff hurt her low back working at the Eltham Waterhouse and was off work for a couple of days. When she was in her twenties, she became dependent on prescription medication but managed to overcome the problem.
21 At the time of her accident, the plaintiff was enjoying life. At home she was very houseproud and her house was spotless. She did all the housework. The kitchen was her favourite place and she loved cooking. She also enjoyed getting out in the garden.
22 One of the plaintiff’s favourite hobbies was to crochet, which she would do sitting on the couch for a couple of hours most nights making blankets.
23 The plaintiff also enjoyed going shopping, and she was involved in her young daughter’s school activities.
24 The plaintiff was enjoying being a grandmother and was very active with her young grandchildren. She was very proud of her personal appearance and had recently entered into a relationship with Shannon, who introduced her to fishing, which she loved and they did together most weeks.
25 On the said date, whilst cutting pieces of chicken at work, the plaintiff cut her left thumb (“the incident”). It became infected and she began suffering increasing pain in her left hand and arm. The plaintiff initially took Nurofen and Panadol.
26 On 4 August 2008, the plaintiff ceased work and went to The Austin Hospital (“the Austin”). Her hand was then swollen and weeping and she was given medication.
27 The following day, the plaintiff’s pain was even worse and she felt sick and began vomiting. She attended her local doctor, who sent her back to the Austin. She was then put on a drip and given intravenous antibiotics and stayed in hospital for nine days for treatment of a severe infection that had spread all the way up her left hand, wrist and forearm. The plaintiff described how the infection was eating away her flesh.
28 The plaintiff underwent urgent surgery on 6, 7 and 10 August 2008, during which time her hand was in agony and looked disgusting because of the scarring and dead flesh.
29 After discharge, for a couple of months the plaintiff was visited by a nurse who treated her wounds. She also attended outpatients at the Austin, seeing a plastic surgeon and undergoing hand therapy.
30 The plaintiff then could not properly use her left hand and she was still in severe pain. It was very stiff and sensitive to touch and she became depressed and anxious and was referred to a psychologist, Daphne Smith. The plaintiff began to take Lexapro and was also sent for physiotherapy.
31 In cross-examination, the plaintiff could not recall why she did not attend the outpatients at the Austin for appointments in March and April 2009. When she attended the plastic surgery outpatients in November and December 2008, she agreed her main trouble was hypersensitivity of the skin.
32 The plaintiff agreed she first went to her local clinic in about March 2009, where she saw Dr Shang after she had ceased treatment at the Austin. The main reason she went to the doctor at that time was because she was upset at work, but she then said she could not remember the appointment.
33 It could be correct the plaintiff’s hand was getting sore at work in March 2009 and she had ongoing left thumb pain and was having physiotherapy. The plaintiff was often overwhelmed and teary at work and complained of panic attacks. She was prescribed Lexapro. She attended the general practitioner for about the next twelve months. She has not really been back since then for treatment.
34 Attendances at the doctor during 2009 were for both emotional and physical issues. The plaintiff agreed she was not being prescribed any medication and agreed she told her doctor she could do the new job. Further, the plaintiff agreed that since February 2010, she had stopped taking antidepressant medication of her own volition and she was quite keen to get off it.
35 The only treatment the plaintiff received after discharge from the hospital was physiotherapy in Watsonia, last attending before she started her current job in November 2009.
Return to work
36 Despite her pain and restrictions, the plaintiff was eager to get back to work and in late November 2008, she returned to the employer, working nine hours a week, serving customers, working on the cash register using her right hand only. After a couple of months she increased to twelve hours and eventually got up to twenty hours per week.
37 In cross-examination, the plaintiff agreed by March or April 2009 she was back working normal hours but on light duties and was not working behind the counter and not doing any cutting.
38 The plaintiff’s boss made her return to work very difficult because she believed he was angry at her for making a claim. She was told she was not allowed to take her annual leave and he claimed she was faking her injury. The plaintiff was underpaid and given evening shifts which were inconvenient and she felt bullied and her boss tried to force her to resign. The plaintiff was taking Valium before and after work to cope.
39 In cross-examination, the plaintiff confirmed these difficulties which caused her upset and she attended her general practitioner and was referred to a psychologist, Daphne Smith. The plaintiff saw her over a period of five to six months and thereafter she did not really need to see a psychologist any more as it did not seem to be helping her.[6]
[6]T14
40 The employer’s business was sold and the new owners treated the plaintiff better. The new owner, Rachel, was sympathetic to her pain and understood the plaintiff’s restrictions.[7]
[7]T13
41 The plaintiff eventually left that employ and got another job at Brunsdon Pumps in sales and admin, similar to her duties at Eltham Waterhouse.[8] She has a lot of knowledge of irrigation pumps, things and styles.
[8]T8
42 The plaintiff coped with her new job but found it difficult to type and she avoided doing any other work duties with her left hand.
Pain and restriction
43 As of June 2012, the plaintiff deposed she still had pain in her left hand and thumb, always with a dull ache. There was often a burning feeling, as well as pins and needles. Her pain increased with activity. She tried to do things right handed. Her left hand and thumb were still very sensitive and it hurt when she knocked her left hand against her things. She found it difficult to move her left thumb properly and her hand lacked strength and it often locked up and she could not hold onto things properly, causing her to drop them.
44 The plaintiff’s hand went blue in cold weather. She had lost feeling over parts of her left thumb and hand. She was still taking Panadol and Nurofen. She had been told nothing more could be done for her injury and to put up with it. Two-handed activity was painful and restricted. The plaintiff had problems putting on her bra and tying her shoelaces, doing up buttons and the zip on her jeans.
45 The plaintiff had difficulty with personal grooming. It was painful to dry herself with a towel. She had difficulty drying her hair and her younger daughter’s hair.
46 The plaintiff found it painful and difficult to do housework, which she then did slowly and carefully. The house was no longer as clean as she liked it. Cooking was far less enjoyable, with the plaintiff experiencing difficulty cutting and peeling vegetables, as well as carrying heavy utensils. She had burnt herself while cooking because she could not do things properly with her left hand. Opening bottles and jars was awkward.
47 The plaintiff sold her manual car because of pain experienced changing gears.
48 The plaintiff no longer went to the pool because she could not get out of it using her hands.
49 Gardening was less enjoyable and the plaintiff no longer mowed the lawns because of the vibrations.
50 Shopping was often frustrating and uncomfortable because the plaintiff found it difficult to carry heavy shopping bags. It was difficult to get money out of her purse with her left hand.
51 The plaintiff no longer did knitting or crocheting. She avoided going fishing as holding a rod was painful and baiting hooks was too fiddly. She usually just sat and read while her partner fished.
52 The plaintiff’s left hand was unsightly and disfigured and she was very self conscious about the scarring. She was worried her hand would become clawed.
53 The plaintiff’s sexual relationship was affected physically and mentally and she felt much less attractive. She felt overwhelmed, anxious and depressed and often cried.
54 In her recent affidavit sworn 22 November 2013, the plaintiff described how her situation remains essentially unchanged with ongoing pain and restriction.
55 The plaintiff continues to feel an ongoing ache in her left thumb and hand and also experiences a burning sensation, as well as pins and needles, which varies from day to day depending on activity. She continues to have sensitivity over parts of her left thumb and hand and some areas are numb. She also continues to have difficulty moving and straightening her left thumb.
56 The plaintiff’s left hand lacks strength and she has dropped things when she has tried to hold them in her left hand, giving the example of recently picking up a can of soft drink and dropping it. Similarly, she has tried to pick up her mobile phone with her left hand and at times dropped it because of lack of strength and dexterity.
57 The plaintiff deposed that she has pain in the palm of her left hand and into her wrist. She stretches her fingers out in the morning and uses warm water to massage her hand to get the circulation going and to stop her fingers clawing up.
58 Up until four moths ago, the plaintiff was using a hard brace on her hand at night while sleeping. She was concerned about her hand clawing and she had been told by the hospital to use the brace. However, she was recently told she was not getting any benefit from it, so she happily stopped wearing it as it was very uncomfortable sleeping and wearing it.
59 In cross-examination, when asked about the dull ache which she described in 2012, the plaintiff said it now was more in the afternoon that she has noticed it. Her hand tends to be painful at the end of the day. When she wakes up in the morning, when it is stiff, she tries to straighten her hand and that is the first pain. She then works through that and, depending on what she does later, such as driving too far, that causes pain. The pain is different every day. She admitted she was not feeling any pain in the witnessbox and there were times when she does not have pain.[9]
[9]T21
60 Sometimes the plaintiff has a burning feeling as well as pins and needles and the pain increases if she tries to do things with her hand. While she tries to do everything right handed, there are some things unfortunately she cannot do. She denied it was an exaggeration to say she tried to do everything right handed. She agreed she regularly used her left hand and perhaps she had used the wrong word in her affidavit. If she bangs her left hand, it hurts more than if she bangs her right, but just touching her left hand does not give her a problem.
61 If the plaintiff does nothing for a while, her fingers just curl up. She has to use her right hand to open up her fingers, and it helps when she stretches them and runs them under water.[10]
[10]T23
62 When the plaintiff deposed she avoided using her left hand, she meant she does not do things that are going to cause problems – she never lifts anything heavy. She thought her brain just told her just to use the right hand. She was not sure.
63 The plaintiff agreed that four years after the incident she had got to a stage where she instinctively knew what to do and did things comfortable for her. Sometimes she used her left hand for things when she should not have, and realised afterwards it was a big mistake. Sometimes, if she has something in her right hand, she will use her left.
64 While she described an ongoing ache in her left thumb and hand in her recent affidavit, the plaintiff does not have that all the time, nor the burning sensation and pins and needles. The ache varies from day to day depending on activity. The sensitivity is always there.[11]
[11]T31
65 Sometimes, the plaintiff uses her left palm, the side of her hand, to hold things. She cannot hold a can of drink in her left hand because it is too heavy. She can cradle her mobile phone in her left hand.[12] She has dropped her mobile phone once or twice when trying to pick it up with her left hand. She can hold it in her left hand for a conversation. She uses her left middle and index fingers together like a thumb.[13]
[12]T32
[13]T32
Current work
66 The plaintiff remains in her job, which she enjoys, in admin and sales at Eltham Waterhouse. She does testing for people who bring in samples of pool and spa water. This is a light activity and she can do it without much difficulty. She then gives advice as to the type of products they require. She can pick up products without difficulty with her right hand and is able to use her left, but not with larger or heavier items. Frequently she gets help from a customer or a colleague to lift things to the customer’s car, as she is not able to carry them.
67 The plaintiff uses a computer and is able to do admin work. Her left hand does not interfere with work duties, although she has learnt to adapt so she will generally use her right hand whenever she needs to do something. She has been left with a poorly functioning left thumb and hand. She believes they are now at the point where they are as good as they are going to be.
68 In cross-examination, the plaintiff confirmed she presently enjoys and copes with her job in sales and admin but finds it painful typing with her left hand, although she can touch the pad with her left hand to type. Her work is mainly data entry which she can do with her right hand. She avoids doing anything else using her left hand. When she tests the water, she has to hold the vial of water with her left middle and index fingers to balance and steady it.[14]
[14]T19
69 The plaintiff deposed that she continues to have difficulties performing day to day activities at home, with problems chopping vegetables or peeling them, because she needs to hold them with her left hand. Similarly, opening jars and bottles remains difficult.
70 In cross-examination, the plaintiff agreed she still did most of the housework and did the cooking but not as often as previously. She does not carry utensils with her left and she has dropped pans once or twice. There are times when she does use her left hand.[15]
[15]T25
71 The problem with the swimming pool is getting herself out, not using the stairs.
72 The plaintiff can still carry the shopping in her right hand.[16] She fumbles a bit getting money out of her purse with her left hand.
[16]T26
73 While she can dress herself, the plaintiff still has difficulty. While she can wash her hair, she has difficulty drying it because she needs to use a straightening brush and hairdryer at the same time and sometimes her daughter does her hair.
74 In cross-examination, the plaintiff agreed she had adapted her own way of doing things like buttons, zips and laces. She did her bra up and then slipped into it and pulled it on.
75 The plaintiff continues to be embarrassed by the appearance of her hand and feels it looks disfigured. She does not like people asking her about the scarring and the way her thumb is fixed.
76 In cross-examination, the plaintiff agreed she notices the scar and she is very self-conscious about it. Her thumb is a quarter of the size it used to be, having lost some of the flesh which was removed when it was infected. It worried the plaintiff the way her thumb sat. Her ring finger scar has never bothered her. It is the way her hand looks.
77 The plaintiff lives at home with her son and daughter and they both help as much as they can. The plaintiff has a three-month old granddaughter who stays every weekend. The plaintiff can hold the baby as she is very light but cannot change her nappy or her clothes, as she does not have the necessary dexterity or strength.
78 In cross-examination, the plaintiff confirmed she loved gardening and clothes shopping before her injury. She was also involved in her children’s school activities as she worked part time.[17] She also enjoyed being a grandmother. Her grandchildren are now aged twelve, seven, five and three months.
[17]T17
79 The plaintiff has been with her partner, Shannon, since 2006. They are not living together at the moment but see each other regularly.[18] She confirmed difficulties with her sexual relationship physically and mentally, although she had told Dr Kornan her relationship was fine.[19]
[18]T18
[19]T29
80 The plaintiff can no longer go bike riding and does not go fishing with Shannon any more. She tried fishing but her left hand claws if she holds the rod too long in the one position.
Medication
81 The plaintiff takes two Panadol and two Nurofen daily on an alternate basis. She generally takes medication in the late afternoon and at night, and it helps settle the pain.
82 In cross-examination, the plaintiff agreed she had not taken any prescription medication for her hand since a few months after the incident, and she has just taken Panadol and Nurofen hereafter. She agreed that in 2012 when she saw Mr Ireland, she was taking a total of eight Panadol and Nurofen every day alternating them, but not this number every single day. She agreed her intake had significantly reduced but it depended on the activity she had been doing and her pain, depending on each day.
83 The plaintiff has tried to stop taking tablets and takes them when she needs. She cannot remember a day when she has not taken them.[20] She agreed that she is taking half as many now. In recent times, she takes a minimum of four a day and a maximum of six to eight.[21]
[20]T34
[21]T34
84 The plaintiff has not been able to return to the hobbies she enjoyed, such as fishing and crocheting, because her hand and thumb prevent her from doing so as she does not have strength or dexterity.
85 In cross-examination, the plaintiff explained that she had tried crocheting since the injury but it caused too much pain and was too hard and impossible to do because she could not tense the wool in her left hand. It was an activity she had enjoyed since she was six.[22]
[22]T28
View
86 With counsel, I viewed the plaintiff’s left hand whilst she was sitting in the witnessbox.
87 The plaintiff described how chicken juice got into a tiny cut and her thumb got infected. She showed a T-shaped scar with a long line running through the middle of her hand joined at a T at her wrist. She did a “thumbs up” with left thumb not able to be fully extended. It was flexed above the 90 degrees.
88 There were a couple of different areas where there was numbness at the side of the plaintiff’s thumb and some very sensitive spots towards the top of her thumb, going down into her hand from her thumb. There is no pain on resting.
89 The plaintiff confirmed there was a scar on her left ring finger from a previous tendon injury.
90 The plaintiff demonstrated a very limited left clenched fist and to open it, she had to use her right hand to unlock her fingers.
Video surveillance
91 There was 13 minutes and 31 seconds of film taken over 18, 19 and 21 July 2012.
92 The plaintiff confirmed she had earlier seen this film.
93 On the first date, the plaintiff was shown holding sunglasses in her left hand and using both hands to move an empty pump box on a shelf at work. She put on her glasses using both hands and typed with both hands on the computer at the counter.
94 On the second date, the plaintiff got into her car holding some letters in her left hand with her handbag over her left arm and wrist. She was shown holding her mobile phone to her ear with her left hand and talking. She then drove off using both hands.
95 On 21 July 2012, the plaintiff was shown at Preston Market. She moved her hair from her face with her left hand and then put her left hand in her jean pocket. She was shown holding hands with her partner with her left hand. She picked up a pair of sunglasses with her left hand and tried them on and was shown holding a cream cake in her left hand and eating it.
96 At the butcher’s, the plaintiff held her wallet in her left hand and took money out using the right. She was again seen later holding hands with her partner with her left hand.
97 The second surveillance was of 3 minutes and 38 seconds over 15 and 19 July 2013. On the first date, the plaintiff was shown getting out of her car and closing the car door with her left hand. On the second date, she picked up a coffee cup with her left hand, moved her arms and hands around, gesticulating whilst speaking, with the coffee cup in her right hand.
98 The plaintiff then demonstrated a pump inside the store in some water using her right hand. She then demonstrated a pump outside using her left hand to hold the pump down onto the ground.
99 The plaintiff agreed she was shown using her left hands at times in the first film, holding her glasses and using two hands to move an empty pump box. She was also seen typing on a keyboard with her left hand.
100 The plaintiff agreed she could hold a number of letters in her left hand and at times carry her handbag over her left shoulder and arm. She could hold her mobile in her left hand. She was able to drive around.
101 The plaintiff agreed she was able to easily move her hair out of her face with her left hand and put her left hand in the pocket of her jeans and hold her partner’s hand. She could pick up sunglasses with her left hand and try them on.
102 The plaintiff agreed she was shown holding a cream cake in her left hand and later holding her wallet in her left hand. They are things she needed to do.
103 In answer to a suggestion by counsel for the defendant, the plaintiff said it looked conflicting when you saw what was on the film and what was in her affidavit.[23] She agreed her hand sounded worse in the affidavit. She agreed what was shown on the film was a better reflection of the use she could make of her hand on that day.[24]
[23]T39
[24]T40
104 The plaintiff later said that film does not represent what she can do most days, saying it was a special occasion and she does not go to Preston Market all the time. She then agreed the movements she was shown undertaking were things that she could do on a day-to-day basis.
105 The plaintiff did not dispute she could pick up a coffee cup with her left hand, although she saw herself holding it in her right hand when talking to a customer in the second film. She agreed she could freely gesticulate with her left hand in conversation.
106 The plaintiff agreed that whilst she may not have unrestricted use of her left arm, she would adapt herself in a way that she was able to do most things she needed to on a day-to-day basis.
Lay evidence
107 The plaintiff’s son, Mark, swore an affidavit on 2 December 2013. He is aged thirty and has a three-month old child.
108 Since sustaining injury, he has seen the plaintiff struggling with activities with which she previously had no difficulty. Mr Byrne confirmed he had seen the plaintiff drop things and fumble when she tried to pick things up with her left hand. He also noticed her having difficulty gripping things, with her dropping a pan of oil from her left hand recently.
109 The plaintiff has become very upset and teary and expressed frustration to him. He has seen her drop other things and break them.
110 Mr Byrne is aware the plaintiff has bought an automatic car because of her problems changing gears, but even then he has seen her fumble trying to get a grip of the transmission gear in order to move it.
111 Since her injury, the plaintiff has not cooked as much as she used to and now her cooking tends to be pretty simple and they get more take away. He has seen the plaintiff struggle cutting vegetables and lifting utensils. Frequently, the plaintiff will ask him or his sister to help because she cannot do things with her left hand.
112 The plaintiff will only nurse her three-month old grandchild when she is seated and she has told him she feels as though she will drop the baby because of her hand and she always asks the baby be handed to her, rather than picking her up.
113 Prior to the incident, the plaintiff used to enjoy gardening and was happy to do it herself when he offered to help. However, since the injury, the plaintiff does not garden to the same extent and he is now doing a lot more.
114 There has been a change in the plaintiff since the incident as she does not seem as happy as she was previously. She was a strong, confident, independent woman but since the incident, she appears as though she has lost a lot of confidence and he and his sister are doing a lot more for her than they used to.
The Plaintiff’s medical evidence
Treaters
115 Austin Health, in a report of 22 January 2010, detailed the plaintiff’s admission on 5 August 2008 after presenting with cellulitis of the left hand.
116 Surgery was undertaken on 6 August 2010 and the plaintiff returned to the operating theatre for further washout and ultimate closure of the surgical wound on 10 August 2010. She was discharged on 13 August 2010 and followed up by the in home program.
117 The plaintiff returned to the plastic surgery clinic on 25 August 2010 and on review on 8 September 2010, the infection appeared to be completely settled and some necrotic skin was removed. The plaintiff was referred for mobilisation in the hand therapy department.
118 On 6 October 2010, it was found that the thumb remained still to movement and a small amount of slough remained on its mid aspect. The plaintiff indicated slow improvement. On further review on 20 October 2010, the wound was completely healed and the plaintiff showed signs of some hypersensitivity to touch on the inner aspect of the left thumb. Movements remained minimal and she was advised to continue hand therapy.
119 The plaintiff was also referred to the clinical and health psychology department for management of adjustment and depressive symptoms where she saw an accredited WorkCover psychologist.
120 The plaintiff was seen in the OT department on 20 October 2010 when it was noted she had a markedly inherent tendon of flexor pollicis longus with a fixed flexion contracture of the interphalangeal joint.
121 On review in the plastic surgery clinic on 10 November 2010, the pain had improved somewhat and the plaintiff was continuing with the exercises and the use of anti-inflammatories and analgesics. Further appointments were made on 24 November and 18 December 2010. By that time, the plaintiff was mainly troubled by hypersensitivity of the skin. Further appointments for 12 March and 9 April 2011 were not attended.
122 In his report dated 31 August 2010, Dr Smith confirmed the plaintiff suffered a laceration which became infected and she developed necrotizing fasciitis which spread as far as her left wrist, requiring surgical intervention.
123 Subsequent to the injury, the plaintiff had presented at the Andrew Place Clinic in Bundoora, with symptoms of significant anxiety with some depressive elements. The first consultation was March 2009, with eleven visits to February 2010.
124 The plaintiff had ongoing pain in the left thumb with muscle wasting. She had regular physiotherapy in Watsonia and was also referred to a psychologist due to feeling overwhelmed, tearful, experiencing panic attacks, and having poor appetite and sleep.
125 Dr Smith noted a past history of overdoses with benzodiazepine. He thought the injuries were consistent with the stated cause.
126 Dr Smith noted there was a reference from March 2009 that the plaintiff was working alternate duties, serving customers instead of food preparation, with no lifting greater than 5 kilograms.
127 When Dr Smith saw her for the only time on 8 February 2010, the plaintiff was able to do all her duties in her current job. She was last seen on 24 February 2010. Dr Smith expected the plaintiff’s capacity to be unchanged in the absence of any new information and to continue this way into the future. He thought it difficult to offer a prognosis. He assumed that the plaintiff’s physical restrictions were likely to be permanent and he knew of no future treatment plan.
128 Dr Smith noted a significant aspect had been the treatment of psychiatric symptoms, noting the plaintiff had seen Ms Smith and Mr Wright in that regard.
129 The plaintiff was prescribed medication for anxiety and depression from March 2009, though she expressed her desire to cease that at her last visit. She was referred to a psychiatrist, Professor Buist, for an opinion in March 2009 but there was no record that she attended.
Medico-legal evidence
130 The plaintiff was examined by Dr David Fish on 24 October 2010.
131 Dr Fish noted the scar, which he described as a midline palmar scar of 12 centimetres with a hocked turn to the ulnar border measuring 1.6 centimetres in length. The total length of the scar was 13.6 centimetres. It was Keloid and lightly puckered. Over the thumb there was a Z-plasty scar measuring a total of 4 centimetres that was pale, fine and well healed.
132 Examination of motion revealed fixed flexion deformity of the IP joint of the left thumb and there was restricted movement in the thumb MCP joint.
133 Dr Fish concluded the plaintiff suffered a severe infection of the left thumb after a minor injury during the course of work and she had continuing left hand dysfunction. He carried out an AMA assessment making an allowance for movement, loss of grip strength and sensation.
134 Associate Professor Felix Behan, plastic surgeon, examined the plaintiff on 13 May 2013.
135 Mr Behan noted clinical assessment of the hand therapy was it may have stopped prematurely, even though it went for six months. He noted the plaintiff’s present complaints and conditions.
136 Mr Behan took fourteen photographs. He diagnosed a thenar space infection and pulp infection. He noted the plaintiff now also had developed proximal radiating pain into the palmaris longus and other tendons of the flexor surface of the left wrist which radiated proximally to the medial epicondyle common flexor origin. He pointed out the plaintiff’s dexterity and pincer and her oppositional movement between the thumb and index finger was quite deficient and she used her thumb, index and middle finger as an adductor operational substitute.
137 Mr Behan thought the plaintiff had the sequelae now of a palmar space infection following a thenar space infection with ongoing sequelae of restricted range of movement with neural and possibly vascular changes. He noted the cold hand-cold weather sensitivity was quite disturbing.
138 Mr Behan thought the plaintiffs condition had stabilised but he thought improvement could be done by manipulation and teaching her with hand therapy how to get the opposition back to the thumb and index finger. She complained, even though she used it, that the pulp on apposition was still painful and therefore she had to use the nail as a direct line of contact.
139 Mr Behan noted clinically, as the distal phalanx of the left thumb was not functional and partially anaesthetic and was never used socially or industrially without oppositional movements, that was equivalent to an amputation in impairment terms.
140 Mr Behan thought revisional surgery was not indicated. He noted there was persistent scarring in the subcutaneous tissue restricting movement as described. There were no relevant pigmentry abnormalities in relation to the scarring. He certainly thought the plaintiff would have a disability from an industrial loss point of view as result of her injuries, taking into account the clinical, domestic, industrial and social aspects. He thought overall, she would have a 50 per cent disability. He noted the plaintiff could not even pick up an object such as a pen comfortably, could not even hold an onion in her left hand comfortably, and now crocheting is impossible. In other words, her hand acts merely as a token support for bimanual hand function.
141 Mr Behan did not think there was a good indication, given the length of time, that there would be any normality of hand function regained. He confirmed the plaintiff had a penetrating wound infection of the pulp which spread to a thenar infection to a mid palmar infection – consistent with the injury.
The Defendant’s medical evidence
142 Mr Damien Ireland, hand surgeon, examined the plaintiff in September 2012, and more recently in November 2013.
143 Mr Ireland diagnosed left thumb dysfunction following a laceration complicated by suppurative flexor tenosynovitis and carpal tunnel syndrome.
144 Mr Ireland thought the plaintiffs condition had not stabilised, and noted further improvement was anticipated. He thought the prognosis was good, noting that the range of motion of the thumb would always be restricted and he thought no further treatment was necessary.
145 Mr Ireland noted on recent examination, the plaintiff presented as extremely anxious and tense. Examination findings were essentially unchanged from twelve months previously. There was an obvious flexion deformity with an inability to fully extend the left thumb interphalangeal joint. There was full opposition of the thumb to the little finger but opposition power was weak.
146 Mr Ireland noted the plaintiff was currently employed as a bookkeeper working 40 hours per week and intends to continue in this capacity indefinitely.
147 Mr Sinha, consultant general surgeon, examined the plaintiff in June 2009. He thought she was suffering from a stabilised residual deformity involving the left thumb which was a source of minimal incapacity.
Overview
148 In this case, it is not disputed the plaintiff suffered a compensable injury to her left thumb and hand as a result of cutting her left thumb at work on the said date.
149 Mr Ireland described the plaintiff’s condition as septic tenosynovitis, resulting in restricted motion of the left thumb at all three joints, adhesions in the flexor pollicis – longest tendon of the left thumb – and nerve damage, being the neuropraxia of the left thumb and scarring of the median nerve – the carpal tunnel.
150 Liability was accepted for the plaintiff’s claim and she was paid weekly payments and medical expenses. On 18 March 2011, CGU, on behalf of the defendant, determined the plaintiff’s whole person impairment at 25 per cent.
Credit
151 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[25]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[25](2010) 31 VR 1 at paragraph [12]
152 I found the plaintiff to be a straightforward, somewhat uncomplicated witness who did her best to answer questions truthfully. At times, I thought she had difficulty comprehending matters put to her by counsel for the defendant and agreed with what was suggested to her without fully understanding the question.
153 Any difference in the plaintiff’s affidavit as to level of pain or restriction described and her viva voce evidence was minor and does not trouble me accepting the plaintiff as a witness of truth.
154 Whilst there was surveillance film of approximately 16 minutes taken over several days in 2012 and 2013 relied upon by the defendant, it did not show the plaintiff engaging in any hand movements requiring dexterity or significant grip, and was not inconsistent with her affidavit or viva voce evidence as to her restrictions.
155 Further, no doctor mentioned there was any exaggeration or embellishment by the plaintiff on examination.
156 The plaintiff’s evidence was corroborated by her son, Mark, who was not required for cross-examination.
157 The main problem the plaintiff faces is restriction of movement and her inability to use her left hand effectively, as her thumb is permanently flexed – a deformity accepted by all medical practitioners, the presence of which was conceded by counsel for the defendant.
158 Mr Ireland described flexion deformity with an inability to fully extend the left thumb interphalangeal joint. Opposition power was weak. Dr Fish found a fixed flexion deformity of the IP joint of the thumb and restricted movement in the thumb MCP joint.
159 Mr Behan pointed out the plaintiff’s dexterity and pincer and her oppositional movement between thumb and index finger was quite deficient and she used her thumb and index and middle finger as an adductor operational substitute.
160 Mr Behan thought, clinically, the problems with the distal phalanx of the left thumb were equivalent to an amputation in impairment terms.
161 I am satisfied Mr Behan formed this view after a thorough examination and upon a mostly accurate history from the plaintiff as to her level of restriction and disability.
162 The plaintiff described her effective left hand use now substituting her middle and index finger for her left thumb.
163 Whilst the injury is to the plaintiff’s non-dominant hand, I accept that it seriously affects activities involving bilateral hand use, as well as her left hand alone.
164 Limitation of movement as a result of disfigurement or scarring is properly assessed pursuant to ss(a) – see Dwyer v Calco Timbers Pty Ltd (No 2).[26]
[26][2008] VSCA 260
165 There have also been consistent findings of loss of sensation in the thumb and hand on examination.
166 Whilst there was a previous injury to the left ring finger involving scarring and some loss of movement, the plaintiff was able to move that finger on its own without having to use her right hand, as is now the case, with all fingers on her left hand clawing since the incident injury.
167 Lack of movement, not pain, is the major ongoing feature of the plaintiff’s presentation. She does have some pain, not a constant dull ache as described in her 2012 affidavit, but more pain that is activity related. She still requires the frequent use of non-prescription painkilling medication. As she freely conceded in the witnessbox, she does not experience pain on rest.
168 The plaintiff’s condition is not one that warrants ongoing attendances on her general practitioner or other specialists as nothing further can be done for her. It has only recently been suggested by Mr Behan in a medico-legal context that she may benefit from more hand therapy with treatment in that regard having ended prematurely in his view.
169 It was not suggested the left hand injury significantly impacted on the plaintiff’s capacity to work. In her current job, she is working full time, double the hours she worked for the employer. She is coping well save for restriction with her left hand in typing and an inability to lift heavy products.
170 The plaintiff however would not be able to do work requiring use of both hands in a role such as her previous job. Whilst she did return to work with the employer after the incident, the plaintiff was unable to do any cutting work and there were restrictions on the level of lifting she could undertake. Her work after the incident was essentially in sales.
171 Whilst she has learned to adapt, in effect using her middle and ring finger to grip, on a daily basis in even the simplest activities, the plaintiff lacks strength and dexterity in her left hand.
172 All daily tasks are affected by this situation whether those involving personal hygiene (drying and straightening her hair) or carrying out household and domestic tasks. Whilst she can modify the way she does most tasks, the problem remains, and will do so permanently. A simple example of her difficulties was on occasion leaving a shop in tears of frustration after not being able to do up her bra after trying on clothes. A “two-finger thumb” still has its significant limitations.
173 The plaintiff is no longer able to enjoy cooking as she did previously, now only cooking lighter meals and cooking less frequently because of difficulties cutting and peeling vegetables and carrying heavier cooking utensils.
174 The plaintiff has some difficulty carrying and picking up her three-month old granddaughter. Recreational activities such as fishing and bike riding are no longer available to the plaintiff. Further, she is unable to do the level of gardening she previously enjoyed.
175 As the plaintiff’s condition has persisted for in excess of five years and there is no further surgery suggested, I am satisfied her impairment is permanent.
176 Taking into account all the evidence, I am satisfied that the plaintiff has an impairment of her left hand that meets the statutory definition of “serious”.
177 Having found a serious and permanent impairment of the function of the left hand pursuant to clause (a), I am not required to consider the claim pursuant to clause (b) for disfigurement.
178 Accordingly, I grant the plaintiff leave to bring proceedings for damages for pain and suffering.
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