Cosa v Spence Plumbing
[2013] VCC 1576
•8 November 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-12-00873
| JOHNATHAN GHEORGE COSA | Plaintiff |
| v | |
| RICHARD LAURENCE, DAVID PAUL, ANNE GERALDINE AND JULIE MAREE SPENCE (TRADING AS SPENCE PLUMBING) | Defendant |
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JUDGE: | Her Honour Judge Millane | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 and 17 October 2013 | |
DATE OF JUDGMENT: | 8 November 2013 | |
CASE MAY BE CITED AS: | Cosa v Spence Plumbing | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1576 | |
REASONS FOR JUDGMENT
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Subject:Serious injury application
Legislation Cited: Accident Compensation Act 1985
Cases Cited:JatayilakevToyota Motor Corporation Australia Ltd (2008) VSCA 167; MeadowsvLichmore Pty Ltd [2013] VSCA 201; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Sutton v Laminex Group Pty Ltd [2011] VSCA 52; Aburrow v Network Personnel Pty Ltd [2013] VSCA 46
Judgment: Leave denied to the plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. Fitzpatrick | Ryan Carlisle Thomas |
| For the Defendant | Mr J. O’Brien | Wisewould Mahony |
HER HONOUR:
Introduction
1 The plaintiff is 28 years of age. He was born in Bacchus Marsh and married in 2012.
2 The plaintiff left Camperdown Secondary College in 2001 without completing Year 11. As I understood the thrust of his evidence, the plaintiff was not academically inclined. Later attempts to finish VCE studies elsewhere were, however, thwarted by his sister's ill-health and financial considerations.
3 The plaintiff worked with an engineering company for less than a year before travelling to England where he lived and worked as a builder's labourer for nearly 3 years.
4 After returning to Australia, with the assistance of his father, a boilermaker and builder, from January 2006, the plaintiff was employed as a trade assistant by the defendant, Spence Plumbing, earning at the rate of $878 gross per week.
5 The defendant was involved in the renovation of the Colac Hospital. On 28 February 2006, whilst cleaning the roof, the plaintiff slipped and nearly slid off the roof, lacerating his right hand and fingers in the process ('the accident'). He was treated at the Emergency Department of the hospital and his injury was sutured. The plaintiff was off work for a few days.
6 The plaintiff was seen by general practitioner, Dr Reid, on 3 March 2006. He concluded that the plaintiff had injured the flexor tendons and referred the plaintiff to plastic surgeon, Mr Nam.
7 It appears that the plaintiff returned to work before seeing Mr Nam. He deposed that he had difficulty using the fingers in his right hand and, after about 2 to 3 days, while using a drill at work, he experienced "a pop-like sensation"[1] in the fingers of his hand. The plaintiff had suffered a delayed rupture of the flexor tendons of the right little finger. He consulted another doctor at the Otway Medical Clinic.
[1] Plaintiff's Court Book (PCB), Exhibit P1, PCB 8
8 Mr Nam performed surgery twice, on 23 March 2006 to repair the flexor tendons and on 1 June 2006, to perform tenolysis of the right little finger. Unfortunately, the tendons ruptured again within weeks of this further surgery.
9 In the latter part of 2006, the plaintiff travelled to England for 5 to 6 weeks in an attempt to re-establish a relationship with his then girlfriend.[2] The plaintiff remained off work until early 2007.[3]
[2] Transcript (TN) 57
[3] TN 26-27
10 In this action, the plaintiff seeks leave to commence common law proceedings pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 to recover damages for injury arising out of or in the course of, or due to the nature of his employment with the defendant.
11 Leave was sought under paragraph (a) of the definition of ‘serious injury’ to recover damages for pain and suffering only. The application under paragraph (a) relates to permanent serious impairment or loss of a body function,[4] that is, the plaintiff's dominant right hand. The determination of whether this injury is 'serious' is assessed by reference to the consequences to the plaintiff of the impairment of his right hand, which would not meet the test unless the pain and suffering consequence is, when judged by comparison with other cases in the range of possible impairments, 'fairly described as being more than significant or marked and as being at least very considerable'.[5]
[4] Section 134AB(38)(b)
[5] Section 134AB(38)(c)
12 Specialist opinion tendered indicated that the plaintiff was likely traumatised by the accident and his injury. He continues to present with symptoms of this traumatisation.
13 In a medico-legal report dated 4 December 2012 and addressed to the plaintiff's solicitors, consultant psychiatrist, Dr Weissman opined that the plaintiff had been suffering from, and continued "to suffer from, a moderate degree and amount of chronic Post-Traumatic Stress Disorder symptoms and traumatisation features, directly due to the circumstances of the incident itself".[6]
[6] PCB 50
14 On 20 March 2013 treating psychologist, Dr Brownfield, reported to the plaintiff's solicitors, that, by letter dated 8 January 2013, among other things, she had advised the plaintiff's general practitioner, Dr Quddus of a provisional diagnosis, Post Traumatic Stress Disorder (Chronic). As her report also shows, when last seen on 20 February 2013 the psychologist understood her patient had already been referred to a chronic pain specialist based at the Epworth Hospital.[7] Dr Brownfield then closed her files.
[7] Exhibit D3 (PCB 57B-F)
15 It was clear from both specialists’ reports that the plaintiff’s psychological impairment reduced his employment options because he was advised to avoid working around objects or implements that were sharp or involved blades.
16 At hearing, the plaintiff did not pursue a further application made under paragraph (c) for permanent severe mental or permanent severe behavioural disturbance or disorder. Relevantly, section 134AB(38)(h) precludes consideration of any psychological or psychiatric consequences of the injury when assessing the consequences of impairment or loss of function of the plaintiff's right hand.
17 The defendant conceded compensable injury.
18 The defendant submitted that this was a 'disentanglement' case. Generally speaking, the Court applies a two-step approach to an application in which this issue is raised.[8] The first step is to determine whether there is a substantial organic basis for the pain and suffering consequence on which the plaintiff relies. In this case, it was clear that the plaintiff suffered ongoing injury-related loss of function of his right hand. However, the extent to which any consequence alleged was mediated by the physical disability was less clear.
[8] See JatayilakevToyota Motor Corporation Australia Ltd (2008) VSCA 167; MeadowsvLichmore Pty Ltd [2013] VSCA 201, [19]
19 If this question cannot be answered in the affirmative the plaintiff must 'disentangle' the physical contributions to his pain and suffering consequence from the psychological in order to satisfy the Court that the pain and suffering consequence attributable to his right-hand injury satisfies the statutory test.
20 The defendant, nonetheless, acknowledged that, in this case, the primary contention made was that the pain and suffering consequence of any physical impairment of the plaintiff's right hand did not meet the test.
The evidence called and tendered
21 The plaintiff gave evidence. Affidavits sworn by him on 26 October 2011, 15 January 2013 (as amended) and 20 September 2013 were tendered along with a short affidavit of his wife, Andrea Torres Gordillo, sworn on 6 February 2013. Her evidence was not challenged by cross examination.[9]
[9] PCB 7-14I
22 As to the amendment of the further affidavit, at hearing the plaintiff sought to amend paragraph 3, where in January 2013 he swore that he had: "been taking antidepressant medication since the middle of the year. I am not coping with the restrictions and problems with my right hand and I have become depressed at times".[10]
[10] PCB 13
23 According to the plaintiff the antidepressant medication to which he referred was Amitriptyline. Having discussed the uses of this drug with a chemist, the plaintiff now believed he was taking this medication to treat nerve-based pain, not depression.[11] There was, however, no medical evidence specifying that this medication was prescribed in the treatment of neuropathic pain. I will discuss the medical evidence recording the use of this medication in due course.
[11] TN 20-21
24 The plaintiff's evidence in this regard was based on a recent reconstruction of events. At hearing, this and other evidence concerning the plaintiff's capacity, left me with the impression that he had difficulty acknowledging and sought to rationalise and minimise the extent to which psychological factors probably also contributed to his pain and suffering consequence.
25 The plaintiff tendered medical reports of treating doctors, general practitioner Dr Reid and plastic surgeons, Mr Nam and Dr Baldwin. He was assessed for medico-legal purposes and tendered reports submitted by plastic surgeons, Mr Ham and Mr Anstee, by consultant physician, Dr Blombery and by psychiatrist, Dr Weissman. The plaintiff also tendered a copy of the Medical Panel Certificate of Opinion dated 23 September 2008 indicating a permanent 16% whole person impairment resulting from the injury to the little finger of the plaintiff's right-hand.[12]
[12] PCB 16-17, 18-31D, 38A-52 and 60
26 The plaintiff tendered a photograph of a portrait of the plaintiff and a former girlfriend painted by him in 2005.[13] He also relied on and tendered the first of the medico-legal reports submitted by senior consultant surgeon, Mr Scott, on this occasion, to the insurer.[14]
[13] Exhibit P2
[14] Exhibit P3
27 The defendant tendered medico-legal reports prepared by specialist in hand surgery, Mr Ireland, orthopaedic surgeon, Mr Hart and Mr Scott.[15] A bundle of photographs taken of the plaintiff holidaying in Mexico in 2013, including one taken in March 2012 at his wedding in Melbourne, were tendered.[16] The defendant also relied on and tendered a report of a treating general practitioner, Dr Quddus and Dr Brownfield’s only report.[17]
[15] Defendant’s Court Book (DCB), Exhibit D1, DCB 2-11, 13-40 and 55-63
[16] Exhibit D2
[17] PCB 55-57 and 57B-F respectively
28 There was no direct challenge to the plaintiff’s credit as a witness. He presented as an intense young man. On occasion, he was visibly distressed when recalling various incidents occurring in his personal life following the accident. As a witness, other than when asked to show the area of his right hand and arm over which pain was experienced, the plaintiff mostly kept his right arm and hand at his side and invariably preferred his non-dominant left hand when required to handle documents.
29 As the instance mentioned earlier shows, I concluded that, at times, the plaintiff to rationalise and minimise the likely role of psychological factors in mediating many of the pain and suffering consequences alleged.
The injury and its consequences to mid-2007
30 As mentioned, the treating plastic surgeon perform surgery twice. In his only report, dated 23 July 2007 and addressed to the insurer, Mr Nam advised that, following the surgical repair procedure, the plaintiff had "seemed [to the surgeon] to be getting agitated about his perceived lack of progress".[18] This was despite making, what Mr Nam considered was good progress in the weeks after surgery on 23 March 2006. Against his better judgement, Mr Nam said he was persuaded by the plaintiff to try and hasten his recovery and improve the range of movement by undertaking tenolysis surgery before the plaintiff returned to England.
[18] PCB 20
31 Evidently, Mr Nam was not happy with his patient's behaviour, having later learnt that there was no deadline for the plaintiff to return to England.
32 As we now know, within three weeks of the further surgery there was a second rupture of the tendons, following which the plaintiff was referred to another plastic surgeon, Mr Baldwin. He saw the plaintiff twice, on 5 July 2006 and 19 July 2006.
33 However, after undergoing the further surgery and before the tendons ruptured for a second time, on 14 June 2006, senior consultant surgeon, Mr Scott, examined the plaintiff at the request of the insurer. This was the only medico-legal examination report tendered for 2006.
34 As mentioned, the plaintiff relied on Mr Scott's report dated 19 June 2006, particularly because it recorded early clinical evidence of excessive sweating of the right palm.
35 Among other things, this report indicated that, during the recovery period the plaintiff had not complained of "any excessive pain".[19] Rather his complaints were directed to:
[19] Exhibit P3 (DCB 43)
· some ache and discomfort in the flexor aspect of the little finger;
· a loss of normal range of movement of the proximal and distal interphalangeal joints;
· an inability to roll up his little finger firmly into the palm to produce a strong fist;
· some excessive sweating of the palm.
36 Mr Scott examination revealed, among other things;
· a well-healed Z-shaped scar centred over the proximal interphalangeal joint of the digit;
· a full range of painless movement of the metacarpo-phalangeal joint;
· restrictions in the movement of both the proximal and distal interphalangeal joints and an inability to roll up the little finger firmly into the palm;
· evidence of excessive sweating of the right palm. As mentioned, the plaintiff placed particular reliance on this finding.
37 In June 2006, Mr Scott expressed optimism that there would be significant improvement with the passage of time. He advocated further hand physiotherapy.
38 In view of the early stage in the recovery process at which this report was obtained, I have not placed particular weight on the individual clinical findings.
39 In a short report addressed to the insurer and dated 2 July 2007, Mr Baldwin advised that he had seen the plaintiff to discuss his options for further rehabilitation.[20] They apparently discussed a two-stage tendon grafting procedure. Dr Baldwin recommended the plaintiff first test how he coped with his disability.
[20] PCB 18-19
40 When he wrote his report nearly a year after the last consultation, Dr Baldwin informed the insurer he had not seen the plaintiff again. When last seen, he considered the injury/disability was stable and unlikely to worsen. A decision by the plaintiff to undergo further surgery offered, he said, the only prospect of improvement.
41 During re-examination, the plaintiff recalled discussion of the grafting procedure with Dr Baldwin, which he understood would have taken place over an 18 month period, with the likelihood that the tendons would rupture again.[21] More recent specialist evidence suggests that this procedure is probably no longer viable.[22]
[21] TN 73-74
[22] See for example, Mr Ham's report, PCB 22-26
42 Having last seen his patient on 21 July 2006, among other things, Dr Reid indicated to the insurer on 20 September 2006 that he was still awaiting the results, if any, of subsequent surgery by Dr Baldwin. Clearly, the general practitioner did not then feel in a position to offer any final prognosis. [23]
[23] PCB 16-17
43 As mentioned, during the latter part of 2006 the plaintiff journeyed to England where he said he had not been successful in re-establishing his relationship with a girlfriend.
The consequences – employment and socially – to 2012
44 Based on the evidence before me, there was a hiatus of close to 5 years, over which time the plaintiff had not sought or undergone active medical treatment for injury-related symptoms. Mr Scott’s report following re-examination of the plaintiff on 28 November 2011, suggests that this probably changed from mid-2011. Mr Scott recorded that, the plaintiff had returned to Dr Reid in June 2011 complaining of sweating in the palm, marked pain in the right hand and some swelling of his fingers.
45 Mr Scott further recorded that the general practitioner had prescribed medication, Nurofen (1 to 5 tablets daily) and an anti-inflammatory medication. Based on the plaintiff's later evidence the latter was probably another over-the counter medication, Ibuprofen. Mr Scott evidently also discussed amputation as a potential treatment, which he said the plaintiff rejected for "religious reasons (body scarring)".[24]
[24] DCB 57
46 Surgery does not appear to have been discussed with the plaintiff when he was examined in August 2013 by, plastic surgeon, Mr Anstee. This surgeon, nonetheless, advised the plaintiff's solicitors that amputation could improve the comfort and efficiency of the hand. The down side of this procedure was that reduction in breadth of the hand could impair leverage when using tools such as a spanner.[25]
[25] PCB 38C
47 However, after considering the responses to discussion of amputation by Mr Scott and by Mr Hart (in June 2012[26]) in conjunction with the psychiatric evidence of ongoing trauma and the plaintiff's phobic reaction to knives and sharp implements, I concluded that psychological factors likely preclude amputation as an option for improving comfort and efficiency in the right hand for the foreseeable future.
[26] DCB 32-40
48 Under cross-examination, the plaintiff agreed with the proposition that, between returning from England and consulting a doctor from the South Melbourne Family Clinic (Dr Quddus in June 2012) he "really didn't see any doctors at all".[27] Without, explaining the dosage or the period over which this medication was taken, the plaintiff did, however, indicate that he had self-medicated with over-the-counter medication (he named anti-inflammatory medication, Ibuprofen and painkilling medication, Panadeine Extra) purchased from time to time as required – "… quite often".[28] I was left with some reservations about the evidence that the plaintiff had used stronger, codeine-based painkilling medication, because this was not mentioned in any doctors' reports or the plaintiff's affidavit evidence before September 2013 (Panadeine Forte).
[27] TN 61
[28] TN 61
49 Otherwise, plaintiff’s evidence on these matters suggested to me that, for some years prior to the reported attendance on Dr Reid in June 2011, he had not required or sought active medical treatment, including hand therapy. Furthermore, his use of over-the-counter medication to control any symptoms was likely irregular.
50 As to employment subsequent to the accident, plaintiff deposed that problems with his hand had kept him out of work for a prolonged period and precluded returning to labouring jobs or work similar to the work performed with the defendant.[29] The doctors largely agree that the impaired functioning of the plaintiff’s right hand probably has permanently reduced the plaintiff’s occupational choices. I will deal with this issue in more detail shortly.
[29] PCB 9
51 Under cross-examination, the plaintiff agreed that after returning from England, he resumed employment in 2007.[30] This was with Carlton and Handyman and Hardware, where he worked for about three months stacking shelves, serving customers and processing orders. However, from approximately July 2007 the plaintiff obtained a sales position with Bunnings in Maribyrnong. He performed similar duties working, he deposed, approximately 30 hours per week. This is when he also attempted to complete further Year 11 and 12 subjects.
[30] TN 26-27
52 As mentioned, on 23 September 2008 the Medical Panel certified permanent whole person impairment of 16%.
53 It appears that the plaintiff met his future wife in the latter part of 2008. Under cross-examination, the plaintiff agreed that, he performed a full range of duties with Bunnings - serving customers, advising them on products and equipment and stacking shelves. This was before travelling to Mexico to meet his girlfriend's parents. The trip lasted some five weeks, between December 2008 and January 2009.[31]
[31] TN 27
54 While in Mexico the plaintiff appears to have met with his girlfriend's extended family, travelled around Mexico and enjoyed sightseeing as a tourist. In September 2013 the plaintiff deposed that he now travels "light", with a suitcase on wheels, pulled along with his left hand and carrying a large bag over his shoulder. However, there was certainly no suggestion that any injury-related disability had constrained the plaintiff’s social activities on any of the numerous occasions he travelled overseas. The photographs taken during his holiday in Mexico in 2013 reinforce this conclusion.[32]
[32] Exhibit D2
55 After returning to Australia the plaintiff said he had not been able to regain his shifts with Bunnings. In the circumstances described, I did not form the view that prior to leaving his employment the plaintiff had struggled with the demands of this job by reason of any right hand disability.
56 The plaintiff subsequently found employment for a short period, about three weeks, working as a door-to-door salesman for Simple Energy. Work. This was work to which the plaintiff believed himself unsuited. It was not clear from the evidence to what extent, if any, the plaintiff's right hand disability contributed to the plaintiff’s decision to give up working in door-to-door sales.
57 Under cross-examination, the plaintiff agreed that in about May 2009 he registered the business, 'Chaos Genius', with a view to selling electronics online. However, as I understood his evidence, the plaintiff, who professed a long-standing interest in inventing, had not previously advanced beyond "tinkering with things mechanical and electrical". This included working on "what is called 'HH0 clean fuel' technology" and an interest in safety lighting for motorbikes.[33]
[33] PCB 14F
58 The plaintiff agreed that the business name was still registered, although he said that he had never pursued or operated this online business, because the initial arrangement with a supplier had failed.[34] Despite his desire to invent, the plaintiff appears to have been deterred from resuming this activity because he said he had a problem gripping a pen, which was exacerbated by his hand “constantly sweating” and by pain - “After a long time it is just painful”.[35]
[34] TN 33-34
[35] TN 34-35
59 The plaintiff was next employed between approximately August and December 2009 by ABC Photo Signs assembling signage for house sales. According to the plaintiff, this job required him to put screws into timber frames. Another employee was responsible for fixing the metal to the frames. The plaintiff deposed that he had been unable to continue with this work because it required significant use of his hands and tools.[36]
[36] PCB 9
60 Under cross-examination the plaintiff indicated that, as part of this work, he used one type of drill to make holes in the timber and an impact drill, which, due to its rotationary hammer action, made the screw’s entry into the timber easier.[37]
[37] TN 29-30 and 59-60
61 My understanding of the plaintiff's evidence in this regard was that, when used for a long period in either hand, the impact drill, in particular, caused soreness. He managed this problem by using the drill for some time in his right hand before moving it to his left hand ("… to distribute the pain").[38] This evidence suggested to me that long use of this type of drill was likely to cause pain irrespective of the hand in which it was used. This is not to deny the medical evidence to the effect that impaired functioning of the plaintiff's right-hand, probably restricted his employment choices, particularly those requiring manual dexterity.
[38] TN 30 and 59-60
62 The plaintiff was next employed supervising house cleaning for Riverside Apartments. It appears that in the last two to three months of 2009, in addition to his work with ABC Photo Signs the plaintiff also worked some weekends supervising house cleaning. However, between January 2010 and August 2010 he worked full-time with Riverside Apartments. Initially this was as a house keeping supervisor and, after approximately 4 months, the plaintiff also took on maintenance duties.[39]
[39] PCB 9
63 The plaintiff's house cleaning duties evidently involved taking trolleys to different floors (I infer that this involved pushing laden trolleys by hand) and checking rooms before advising reception whether cleaning had been completed. The additional maintenance tasks evidently involved what the plaintiff described as "light work", namely checking for problems, fixing these where they involved simple tasks (changing a light bulb was one such example) and, with permission, arranging for contractors to fix any larger problems.[40]
[40] TN 30-31
64 Apparently, between July and August 2010 the plaintiff returned to Mexico to propose to his girlfriend. On returning to Australia, he was informed by his employer that they were restructuring and no longer required his services. Again, I did not form the view that the plaintiff had difficulty meeting the demands of this employment by reason of any right hand disability.
65 As it turned out, the plaintiff had already negotiated a second job working evenings as a caretaker at Camberwell Girls Grammar for a four-month period up to the start of 2011.
66 Under cross-examination, the plaintiff agreed that as a caretaker he was on call over a 24 hours period. During this time he spent two hours cleaning the pool area with a mop, he managed the cleaning team and he was responsible for yard security.[41]
[41] TN 31-32
67 There was another trip to Mexico, lasting about four months from Christmas 2010.[42]
[42] TN 57
68 On his return, due to financial constraints the plaintiff said he returned to live with his parents in the Western District. Between May 2011 and September 2011 he worked as a casual meat slicer and later as a packer with an abattoir, Midfield Meats, based at Mortlake.
69 In October 2011 the plaintiff deposed that due to weakness in his hand and problems with his fingers he had failed to keep up with other workers.[43]
[43] PCB 10
70 As I understood the plaintiff's evidence under cross-examination, his work as a slicer lasted some weeks. It involved perhaps five or six hours per day slicing flank steaks from sheep or cattle carcasses with a knife held in his right hand. The plaintiff was one of a large team, which dealt with, on average, some 80 to 100 cattle carcasses per day or 400 sheep carcasses per day, in the course of a fairly speedy operation.[44]
[44] TN 43-45 and 58-59
71 However, the plaintiff told the Court that he had been harassed and threatened during this time because his failure to keep up had slowed down other members of the team. There was, he said, an altercation as a result of which the plaintiff went to management.
72 During re-examination the plaintiff explained and demonstrated the difficulties he experienced while using a knife. For instance, the plaintiff said that he needed to grip the knife with his forefinger and second finger. This meant that the knife handle pivoted into his hand and caused significant pain. Once he informed the employer that he was taking medication to control pain and swelling caused by working with the knife, the plaintiff said he was moved to packing meat into a bag, which he then placed on a cryovac table.[45] The plaintiff agreed that this packing job involved a regular and continuous process.
[45] TN 45 and 69-71
73 Notably, the plaintiff’s reported complaint of sweating in the palm, marked pain and some swelling of his fingers to Dr Reid in June 2011 coincided with the earlier period of employment with Midfield Meats.
74 The defendant submitted that the reason the plaintiff left his employment at Midfield Meats was because he argued with his father and left home to live in Melbourne with his fiancée. My understanding of the evidence in this regard was that there had been a fight, evidently over the repair of a bumper bar the plaintiff had been attempting to refix to a car. The plaintiff left the house, within a week he moved to Melbourne and, within a couple of weeks he and his fiancee moved to an apartment in the city.[46]
[46] TN 47-48 and 76-77
75 In the circumstances described, the plaintiff did not satisfy me that ongoing pain and disability had caused the cessation of his employment as a meat packer in the abattoir, although working in the abattoir environment had been problematic because the plaintiff did not keep pace with other workers when previously performing meat slicing duties. I accept that some loss of dexterity and impaired functioning of the plaintiff’s right hand not to mention problems in using a slicing knife, probably contributed to this problem. Nevertheless, based on the evidence of the psychiatrist and the treating psychologist, I infer that at the time, a likely phobia relating to knives and sharp implements may have also contributed to the plaintiff’s inability to work effectively as a meat slicer.
76 As it turned out, the plaintiff was examined for medico-legal purposes during and shortly after his employment with Midfield Meats.
77 In August 2011 plastic surgeon, Mr Ham examined the plaintiff at the request of his solicitors. Mr Ham obtained a detailed history and recorded complaints of insufficient power in the plaintiff's hand, especially for gripping and limitations on movement of the little finger due to pain. The plaintiff also apparently reported that taping his little finger to the adjoining ring finger had not been successful.[47]
[47] PCB 22-26
78 On examination, Mr Ham had noted mild sweating of the plaintiff's hand, but not, he said, colour change in the hand or fingers.
79 In Mr Ham's opinion:
· there was no complex regional pain syndrome;
· the work-related impairment restricted the plaintiff's employment and related activities. However, the plaintiff was fit for suitable employment, which did not require heavy lifting or grasping with his right hand. I note that there was no indication in Mr Ham's report that the plaintiff was then unfit to continue his duties as a meat packer;
· lack of use of the plaintiff's right hand had contributed to weakness of grip, which Mr Ham believed could be improved (as would the plaintiff's employment options) by continuing active exercise of the plaintiff's forearm and hand muscles. He, however, expressed concern that the plaintiff's situation could worsen due to lack of use;
· in view of the passage of some five years, tendon grafting was no longer an option. However, if he improved his muscle movement, Mr Ham thought fusion of the joint of the proximal interphalangeal joint in a straighter position remained an option. This would move the tip of the finger out of the way and could, Mr Ham thought, improve the use of the hand;
· the plaintiff had lost the use of the least important digit in a hand in which he had almost complete normal movement of his thumb and other three fingers.
80 The tenor of Mr Ham's report was to the effect that the grip function of the plaintiff's right hand and his employment prospects could be improved by both regular hand therapy and surgery to straighten the proximal interphalangeal joint of the little finger.[48] As far as I can tell, the plaintiff has not undergone hand therapy since the period immediately following his earlier surgical procedures. Moreover, apart from the observations I have already made about the prospect of amputation surgery, the plaintiff gave no indication that he contemplated surgical intervention of any kind in the foreseeable future.
[48] PCB 24-25
81 It appears that, shortly after leaving the abattoir, the plaintiff found employment at the Melbourne Parkview Hotel. Between about October 2011 and July 2013 he was employed as a maintenance hand 2IC performing duties the plaintiff described as “light”. These duties included, reading the computerised job request system, undertaking preventative maintenance (namely checking rooms for repairs or maintenance, making checklists on a wooden clipboard and organising times for repairs), performing the easier maintenance jobs, performing basic tests to ensure that the pool, spa and cooling tower were all functioning and touching up walls with paint. The plaintiff told the court that he held the paint brush in his left hand and whilst he had used a hammer and screwdriver, these tools were also held in his left hand.[49]
[49] PCB 12-13 and 14A and TN 35-38 and 64-66
82 When the plaintiff swore his first affidavit on 26 October 2011 he did not refer to the use of medication or any ongoing treatment in the management of symptoms. He did, however, depose to consequences which included: [50]
[50] PCB 10
· an inability to do heavy labouring work or work in an abattoir due to pain and restriction;
· hand pain, "all the time", which became much worse the more he gripped or held "things";
· restrictions on lifting with his hand, probably only 2 to 3 kg;
· waking at least 2 to 3 nights per week with cramping and pain in the hands;
· exacerbation of hand pain when driving;
· giving up motorcycle riding because the vibration caused extreme pain;
· slowness in using a computer because he could only use three fingers;
· loss of dexterity and awkwardness due to the little finger sticking out;
· restrictions on gardening, because the hand felt "like it's got a glove on all the time and its awkward (sic)";
· difficulty in cutting and stirring food and in lifting pots when cooking;
· swelling if he uses his hand "very much", which also leads to his hand becoming "very painful";
· without explaining what these entailed, restrictions on engaging in activities with family and friends due to his hand problems;
· difficulty doing any sort of maintenance involving fixing of cars or pieces of equipment or machinery
83 Specialist in hand surgery, Mr Ireland examined the plaintiff at the request of the defendant's solicitors for the first time on 21 November 2011.[51] He too obtained a fairly detailed history. Mr Ireland was one of a number of specialists who made observations about the plaintiff's presentation ("… presented as an introspective and anxious person") without also questioning the plaintiff's genuineness ("There was no obvious tendency to exaggerate his symptoms").[52]
[51] DCB 2-6
[52] DCB 4
84 When examined by Mr Ireland, other than taking self-administered Ibuprofen (a non-prescription medication), one tablet daily, the plaintiff reported no further specialist appointments or plans to undertake further treatment. The plaintiff, nonetheless, described pain and a range of restrictions in terms similar to those to which he had deposed some weeks earlier:[53]
[53] PCB 10-11
· an inability to perform heavy labouring work or work in an abattoir due to restriction and pain. Based on the evidence already summarised I was not satisfied that the plaintiff's right hand disability precluded working in an abattoir as a meat packer;
· pain in his hand "all the time and the more I do gripping or holding things it becomes much worse", as well as swelling and increased pain if he used his hand "very much". This appears to be the first record made by a doctor that the plaintiff experienced constant pain in his hand;
· an inability use his hand to lift weights beyond 2 to 3 kg;
· disruption of sleep at least 2 to 3 nights each week due to cramping and pain in his hand. This appears to be the first record made by a doctor that pain regularly disrupted sleep;
· difficulty driving a car due to pain and an inability to ride his motorcycle because vibration caused extreme pain;
· a reduction in the speed at which he was able to use a computer;
· a loss of dexterity in a hand in which the finger sticks out awkwardly;
· awkwardness in gardening and difficulty cooking, in the cutting and stirring of foods and in the lifting of pots and difficulty in maintaining or fixing cars or pieces of equipment and machinery.
85 As far as I can tell, 21 November 2011 was the first occasion on which a doctor obtained a description of pain (albeit intermittent pain) on the ulnar side of the right hand involving both the palmar and dorsal aspects. According to Mr Ireland's report, the plaintiff had not been able to describe provoking or relieving factors and was uncertain about the frequency and duration of this pain. I took this to be a comment on this particular type of pain, as the plaintiff had clearly complained that he had pain all the time, exacerbated by sustained gripping.
86 The plaintiff also reported:
· experiencing "a throbbing pain" in his forearm, which occurred hourly and lasted for approximately 2 seconds;[54]
· awkwardness and diminished grip strength due to the deformity affecting his right little finger, without also being able to nominate any specific functional loss resulting from this; and
· increased sweating in the palm of the right hand.
[54] DCB 3
87 On examination Mr Ireland found:
· an obvious flexion deformity of the little finger;
· an absence of evidence of constriction of the blood vessels, sweating or evidence of increased perspiration in the pulp of the fingers of the right hand, or dystrophic skin changes. Rather, he found normal skin texture and moisture in all finger pulps. Notably, under cross-examination the plaintiff sought to explain the fact that Mr Ireland had not observed evidence of sweating by saying that this depended on the temperature of the room and whether he was outside.[55] In other words, based on this evidence, his hand sweated depending on room temperature and the plaintiff's location. When re-examined the plaintiff added that sweating remained a problem ("a major problem all the time"[56]) especially when he tried to also grip a pen;
· a barely detectable healed zig zag incision;
· reduction in the range of motion of the little finger, whereas the thumb, index middle and ring fingers were all normal with regard to sensibility and range of active movement.
[55] TN 35
[56] TN 75
88 In all, Mr Ireland's clinical findings were similar to those recorded by Mr Ham a couple of months earlier.
89 Mr Ireland attributed the fixed flexion contractures noted at the interphalangeal joints of the right little finger to injury-related loss of flexor tendon integrity.
90 As submitted on the plaintiff's behalf, in this report Mr Ireland also stated that he had found a reasonable match between the subjective symptoms reported by the plaintiff and the physical findings. In my view, this was not an indication of his acceptance of the extent to which the symptoms reported impacted on the plaintiff's activities. Rather, in Mr Ireland's opinion, while causing some minor loss of efficiency, the deformity of the plaintiff's right little finger had not diminished his ability to engage in normal social, recreational, sporting and occupational functions.
91 Clearly, Mr Ireland viewed the loss of efficiency in the use of the right hand as insufficient to preclude normal engagement in the areas of activity nominated.
92 As we know from the plaintiff's evidence, he was not a sportsman prior to the accident. As to other areas of activity, in most of the instances cited by the plaintiff, the extent to which his participation was restricted by his physical disability was a question of degree. For example, allowing for his education and experience, the plaintiff has a retained capacity for full-time employment, albeit with likely physical and psychological restrictions on some occupations and/or specific occupational activities.
93 Any detriment to his social life is hard to measure because the plaintiff appears to have continued to enjoy a good social life, including meeting and marrying his wife and regular travel overseas. Some recreational activities involving the use of a pen or a paint brush may be affected whereas other activities, such as riding a motor cycle, as claimed, may be precluded because vibration and safety are problems. Mr Ireland's evidence in this regard is probably best assessed after consideration of specific observations made in later reports by him and Mr Hart.
94 Mr Scott re-examined the plaintiff, a week later, on 28 November 2011,[57] at which time the plaintiff reported chronic pain affecting his right little finger. This pain, the plaintiff said, radiated up the flexor aspect of his right forearm to just below the elbow and was worsened by repetitive activities or making a strong fist. The plaintiff further complained of loss of dexterity and strength in his right upper limb and anxiety, depression and frustration.
[57] DCB 55-63
95 As to any anxiety and depression, the plaintiff apparently told Mr Scott that, after moving to Mortlake to live with his parents, he developed a lot of depression in association with increasing pain in his right little finger. He said that, until he resigned from his position with Midfield Meats in August 2011, he had struggled with this job due to ongoing pain in the right little finger extending into his forearm, ongoing anxiety and depression and harassment in his workplace.
96 Accordingly, while Mr Scott was aware that, in the past, the plaintiff had complained of sweating and other autonomic symptoms, on this occasion the plaintiff described a chronically painful condition and anxiety and depression, for which he had not been treated or investigated.
97 Having previously examined the plaintiff in June 2006, Mr Scott said he found no marked improvement in the plaintiff's condition. Specifically he found no evidence of excessive sweating of the palm, colour change or of swelling of the right hand, palm or wrist. Accordingly, on this occasion Mr Scott concluded that, any earlier features suggestive of a chronic regional pain syndrome were resolved.
98 In Mr Scott's opinion, the plaintiff suffered from persistent immobility of the right little finger, due to rupture of the flexor tendons. This had resulted in chronic pain in the finger, with a loss of normal range of movements in the proximal and distal interphalangeal joints. Impairment of the plaintiff's little finger impacted on the plaintiff's ability to perform any fine or dextrous movements with his right upper limb and on his ability to make a strong fist and handle heavy tools.
99 However, Mr Scott also concluded that a great deal of anxiety and frustration and a chronic pain syndrome were magnifying the plaintiff's overall presentation. He suggested that this aspect of the plaintiff's presentation be assessed by a consultant psychiatrist.
100 Accordingly, by late 2011 specialists on both sides had rejected Chronic Regional Pain Syndrome as an explanation for the plaintiff’s symptoms and, in November 2011, specialists (Mr Ireland and Mr Scott) were given an account of the plaintiff's subjective experience of pain which extended into his arm. While Mr Scott was concerned that psychological factors were also contributing to the plaintiff’s symptoms, neither Mr Ham nor Mr Ireland identified any significant diminution in the plaintiff’s activities due to pain and physical disability. Rather, Mr Ham was concerned that underuse could worsen the plaintiff's situation and he advocated strengthening exercises and possibly fusion surgery, the latter to improve the function of the hand.
The consequences 2012 to the date of hearing
101 It appears that a further 6 to 7 months elapsed before the plaintiff sought active medical treatment, having on 21 June 2012 presented to another general practitioner, Dr Quddus reporting both pain and psychological symptoms. In the interim, he was examined by orthopaedic surgeon, Mr Hart on 21 February 2012 at the request of the defendant's solicitors, he married in March 2012, he was examined at the request of his solicitors by consultant physician, Dr Blombery on 17 April 2012 and re-examined by Mr Ireland less than two months later, on 13 June 2012.
102 Mr Hart appears to have viewed some of the earlier medical material, including the first of Mr Ireland's reports and the result of an ultrasound of the right wrist and hand obtained on 19 July 2011. The latter was not tendered, although Mr Hart reported that this had not shown tendon abnormality in the wrist and had shown a normal median nerve. Otherwise, this surgeon reported the plaintiff's history in some detail.
103 When seen by Mr Hart the plaintiff reported, among other things:
· limited movement of the interphalangeal joints of his right little finger;
· reduced strength in both the fourth and fifth fingers, although his major complaint was that discomfort and weakness of his little finger restricted his grip;
· sweating when he used this hand, coldness in cold weather and the potential for the colour of the little finger to change;
· using Brufen (an anti-inflammatory medication) intermittently to treat pain;
· that due to difficulty with his hand grip he sometimes experienced problems grasping a stair rail and he experienced problems with cooking, shopping and vacuuming;
· slight difficulty in sustaining grip with his right hand when driving, although the plaintiff also said he found driving an automatic car less problematic. In his final affidavit, among other things, the plaintiff deposed that he had previously enjoyed driving manual vehicles, but due to his disability this was not something he could not "really do a lot of now".[58] Under cross-examination the plaintiff agreed that he did not find an automatic car as difficult to drive. However, the plaintiff, who now lives in the city with his wife, added that he had given his automatic car to his father and had constructed his lifestyle so that he did not need a car.[59] In these circumstances, it seems that whilst the plaintiff has retained the capacity to drive, particularly an automatic car, this is not an activity his current lifestyle calls for;
[58] PCB 14G
[59] TN 49
· no problems with daily living or other activities, or it seems gardening or lawn maintenance because the latter was not required, presumably because of the plaintiff's inner-city location. As was evident from the plaintiff’s evidence he was concerned about the impact of his disability on his capacity to garden because, when he visited his mother at her property in Camperdown he had previously enjoyed spending time assisting her in her garden. The plaintiff said he did not garden any more because he could not help his mother other than to pull weeds using his left hand;[60]
[60] PCB 14C and TN 46
· that he used his left hand to perform many activities for which he previously used his right hand;
· his major recreational activities prior to the accident were painting portraits and inventing, which since the accident he had given up. As we now know the plaintiff painted in the order of 15 paintings in the years prior to the accident for his own gratification.[61] Exhibit P2 is a photograph of one such painting. During re-examination the plaintiff told the Court this took about three months to paint. This painting and other works evidently involved hours of work finding, correcting and painting an image, especially because the plaintiff is colour blind. This condition meant that prior to the accident when painting, the plaintiff had to paint over the work many times;[62]
· that he had decided not to proceed with tendon grafting due to the pain he experienced when using a corrective splint, pre-operatively. This was the first indication in the medical material that the plaintiff had engaged in any pre-operative program and that pain had been a factor in his decision not to proceed. As mentioned, the plaintiff's evidence at hearing suggests that he had decided not to pursue this procedure both because of the time it would take to complete and because he had accepted advice that the risk of further rupture was high.
[61] TN 66
[62] TN 71-72
104 It appears that, in February 2012, Mr Hart understood that the plaintiff was coping with his position as a maintenance supervisor at the Parkview Hotel.
105 Clinical examination revealed, among other things:
· full function of all fingers of the right hand except the little finger;
· in addition to restriction in the movement of the little finger, a small area of altered sensation on the lateral aspect of the proximal phalanx which overlaid the scar where there had been delayed healing;
· no hypersensitivity in the right little finger.
106 In common with all of the specialist evidence tendered, Mr Hart concluded that, as a result of the accident, the plaintiff had been left with flexion contractions of the proximal and distal interphalangeal joints of the little finger.
107 Mr Hart was specifically asked by the defendant's solicitors whether he agreed with Mr Ireland's opinion that the injury had not diminished the plaintiff's ability to engage in normal social, recreational, sporting and occupational functions, but had caused some minor loss of efficiency.
108 In response, Mr Hart, firstly noted a disproportion between the complaints made and the physical effects of the injury ("The plaintiff seems to be very focused on the difficulties associated with his injured right little finger. Many of these appear to be associated with discomfort on gripping, but in general his complaints seem to be out of proportion to the physical effects of the injury"[63]). In response to further questioning Mr Hart also indicated that, in his opinion the plaintiff, who reported having dreams where his fingers were removed, had developed a psychological reaction to the injury.
[63] DCB 29
109 As to Mr Ireland’s opinion, Mr Hart concurred with this, save in his assessment of the impact of the disability on the plaintiff's participation in alternative employment.
110 In Mr Hart's opinion, the difficulty the plaintiff reported in gripping with his right hand represented a major occupational restriction. He also noted that there may be some relationship between the difficulty the plaintiff experienced in gripping with his right hand and symptoms relating to disturbance in autonomic dysfunction. Accordingly, while Mr Hart had not found evidence of hypersensitivity of the right little finger, as his earliest report indicated, he thought complaint of changes in colour, excessive sweating and undue discomfort when gripping with a right-hand could indicate a mild case of Complex Regional Pain Syndrome Type 1.
111 Mr Hart, clearly accepted that poor grip and the additional symptoms described would make it difficult for the plaintiff to use power tools, such as drills or to perform heavy manual labour where this required gripping with the right hand. He did not, however, believe that these matters would affect the plaintiff's ability to lift using his right arm.
112 As mentioned in March 2012, the plaintiff married his fiancee in Melbourne. No doubt this was a very happy time for the plaintiff, although in re-examination he was visibly distressed when he recalled that he had upset his wife on their wedding day by pulling his right hand away because holding her hand had caused pain. [64]
[64] TN 78
113 The next medico-legal examination on 17 April 2012 was by Mr Blombery at the request of the plaintiff’s solicitors.[65] He recorded the plaintiff's complaints as follows:
[65] PCB 27-31
· his "major problem" was an inability to flex the right little finger of the dominant hand, which caused a reduction in grip strength. It seems that the plaintiff reported difficulty in performing activities such as cooking, opening door handles, jars and bottles, motorbike riding and painting. Without explaining why this was so, the plaintiff also reported limitations on his social activities due to the fact that his little finger remained extended;
· that excessive use of the right hand caused swelling;
· an aching pain in the area (presumably the area of the little finger) which was increased with use of the hand;
· a little coldness and excessive sweating, but no colour change in the hand;
· slight numbness in the fifth finger on the radial side;
· occasional interruption of sleep by cramping in the "area", which I took to mean in the area of the little finger;
· dreaming about his fingers and a recent sensation that the fingers of his right hand were moving away from him.
114 When seen by Dr Blombery the plaintiff reported that he was not taking medication or undergoing hand therapy. He also told Dr Blombery that his hotel maintenance work with Parkview did not place excessive strain on the right hand and he coped fairly well with this job.
115 On examination, Dr Blombery found:
· the right hand to be 2° cooler than the left and paler in appearance, with increased sweating;
· a differential between hands in grip power, 26 kg on the right and 64 kg on the left;
· restricted movement in the right little finger, but not in the hand and wrist.
116 In Dr Blombery's opinion:
· the combination of features of ongoing pain together with autonomic disturbance was diagnostic of complex regional pain syndrome type 1. He did not, however, consider the condition to be severe. Dr Blombery treated this as additional to the limitation on the use of the plaintiff's right hand due to the flexor tendon disability;
· the plaintiff's condition was permanent, inasmuch as this specialist did not envisage significant change in the level of disability in the foreseeable future;
· the plaintiff was unfit for his pre-injury work as a plumber's labourer or for work involving heavy use of his right hand, although he remained fit to perform suitable employment on a full-time basis including the hotel maintenance duties he was then performing at the Parkview Hotel
· the plaintiff may require intermittent use of analgesic medications and, should he develop any secondary depression, this may also require treatment. Clearly, at that stage Dr Blombery did not envisage any immediate need for regular use of over-the-counter or prescription painkilling medication.
117 Mr Ireland re-examined the plaintiff on 13 June 2012.[66] The plaintiff again described pain on the on the side of the hand, although he described this pain as episodic and caused by power gripping. The plaintiff illustrated this disability by explaining that he could not hold a broom handle with his right hand. He said he used a broom by grasping it with his left hand and pushing the end of the broom handle with the palmar aspect of his wrist.
[66] DCB 7-11
118 The plaintiff also complained about awkwardness and difficulty with normal activities of daily living, including an inability put his hand in his pocket, difficulty touching his wife, difficulty when cooking in grasping a heavy saucepan and in stirring food. According to Mr Ireland, the plaintiff was unable to offer a plausible explanation for why awkwardness with this hand also impeded writing and touch typing. This and other comments made in Mr Ireland's reports indicated to me that, during multiple examinations he had (in my view appropriately) pressed the plaintiff to illustrate how and to what extent his physical disability actually limited particular activities.
119 When reviewed by Mr Ireland the plaintiff reported taking medication, Ibuprofen, (approximately) 1 per day, with no arrangement for further treatment. On this occasion, Mr Ireland's clinical findings appear to have been much the same as his earlier findings. However, Mr Ireland also found a discrepancy in the plaintiff's grip strength. When measured successively, he recorded 30, 30 and 29 kg on the right compared with 60, 57 and 64 kg on the left.
120 In response to specific questioning, among other things, Mr Ireland opined as follows:
· the injury did not impact on the plaintiff's ability to travel and paint. Evidently the plaintiff has not painted since the accident. I note that after re-examining the plaintiff on 4 December 2012, Mr Hart also questioned why the plaintiff was unable to paint with his right hand. From my reading of Mr Hart's report his concern was directed to the plaintiff's report that his dexterity had been so significantly affected he could no longer paint. He thought this reluctance to paint was more the result of psychological than physical factors.[67] It may very well be that the plaintiff's effectiveness as an amateur artist has been compromised and the end result may be less satisfying. However, in circumstances where he had not attempted to paint since the accident and, objectively speaking, his functional limitations probably are not such that the plaintiff cannot hold a brush, pen or crayon, I could not be satisfied that right hand disability precluded recreational painting altogether;
[67] DCB 37
· appropriate cookware and the use of the plaintiff's left hand would probably remedy the problem so far as cooking was concerned. Again, Mr Hart agreed with Mr Ireland that the plaintiff could employ alternative strategies which would enable him to perform most cooking functions;[68]
· in his words: "There is a discrepancy between the severity of the subjective symptoms of which the plaintiff complains and the presence of corresponding major objective physical findings. There is no doubt that the worker has an assessable impairment due to fixed contractures at the interphalangeal joints of the right little finger and loss of function of the long flexor tendon, however although this causes some awkwardness there is no explanation of the pain that he experiences in the palm of his hand. Rather than describing this as "a functional component", it may simply represent his inability to adjust to his injury".[69] Obviously, Mr Ireland is not qualified to offer an expert opinion on the state of the plaintiff's mental health or to diagnose any psychological condition associated with the accident and the injury. The point that needs to be made, however, is that Mr Ireland and other specialists in this case were unable to offer a physical explanation for the level of the pain reported or the extent of the disability reported;
· an inability to fully extend the right little finger and awkwardness associated with this would likely cause difficulty with functions that required the plaintiff to work in confined spaces, for example as a motor mechanic, plumber or electrician. Like Mr Hart, he did not consider the plaintiff's capacity to lift weights had been impacted by the injury.
[68] DCB 37
[69] DCB 10
121 The plaintiff first sought treatment in respect to his right finger injury from general practitioner, Dr Quddus on 21 June 2012. As mentioned, the defendant tendered one of her reports dated 26 November 2012.[70]
[70] Exhibit D3
122 Dr Quddus' short report, to which she attached a copy of her consultation notes, indicated that the plaintiff was seen by her on only four occasions between 21 June 2012 and 4 October 2012 inclusive for treatment of his right hand injury.
123 When first seen on 21 June 2012, the plaintiff evidently explained the history of the injury and surgery. He presented with pain, stiffness and contracture which he said persisted, despite using analgesia and he complained that he could no longer use Ibuprofen because it caused some stomach pain.
124 Relevantly, the record of the first consultation suggests that the plaintiff attended for treatment both because he could no longer take Ibuprofen and needed help with his psychological state ("his mood has been low constantly since after the injury, feels low self-esteem, unable to concentrate, feel useless, feels he can't function as he used to(sic)" and "here wanting pain relief and mental health plan – referral to psychologist – have a compulsion to cut off top of his little finger if he come across scissors– has been dealing with it by himself so-long but now unable to cope").[71]
[71] Exhibit D3, (PCB 57)
125 The plan made with the doctor on this occasion was to trial the medication, Amitriptyline hydrochloride, by prescribing a 10 mg tablet nightly and to book a long consultation in order to complete a mental health plan.
126 The second consultation on 29 June 2012 appears to have involved the doctor providing further support to the plaintiff by preparing a letter to the insurer's dispute resolution team. As the consultation note made on the next visit on 10 August 2012 shows, the insurer had by then agreed to pay for the costs of the plaintiff's medical treatment for the right little finger injury. While both in her notes and report the general practitioner recorded the plaintiff's condition as Dupytrens Contracture, I think it clear that this was a reference to the injury to the tendons of the right little finger, one consequence of which was contracture of the joints.
127 On 10 August 2012 the doctor recorded a long discussion with the plaintiff about his pain and disability. She referred the plaintiff to psychologist, Dr Morrell. However, as the record of the fourth attendance on 4 October 2012 shows the plaintiff required a referral to another psychologist, who worked on weekends. As we now know the plaintiff was eventually referred to Dr Brownfield.
128 At his last consultation with Dr Quddus, the plaintiff evidently reported that pain had been “a lot better” with the use of Amitriptyline. He obtained another prescription for this drug.
129 In his most recent affidavit, sworn in September 2013, the plaintiff deposed that he no longer took Amitriptyline.[72]
[72] PCB 14E
130 Amitriptyline is a well-known antidepressant medication, which may also be used for pain relief. Without calling further evidence from the doctor to explain the purpose or purposes to which the prescription of this medication was directed, I concluded that the prescription of a low dosage of a medication, with more than one potential use could have been intended to help relieve the reported psychological symptoms and/or pain.
131 I was reinforced in this view by the plaintiff’s report to psychiatrist, Dr Weissman on 4 December 2012 that Amitriptyline had led to a reduction in his bad dreams ("slightly fewer").[73] Moreover, at the time, Dr Weissman thought the plaintiff could benefit from a therapeutic trial of anti-depressant medication.[74]
[73] PCB 45
[74] PCB 51
132 In November 2012 Dr Quddus informed the plaintiff's solicitors that in her opinion the plaintiff's physical injury, which could affect his right hand function in gripping and in performing manual work, may require further orthopaedic assessment. However, having by then received the psychologist's report following the first therapy session on 14 November 2012, Dr Quddus concluded that the greatest impact of the plaintiff's disability had been psychological. If his psychological issues were properly addressed, in her opinion the plaintiff was employable and could function normally with only mild restriction in the use of his right little finger.
133 As mentioned, the defendant tendered Dr Brownfield's only report.[75] I understood from this report that, after five sessions (between 14 November 2012 and 20 February 2013) she reported a provisional diagnosis of Chronic Post Traumatic Stress Disorder and closed her file in anticipation of the plaintiff commencing treatment with a pain specialist. The provisional diagnosis took account of symptoms of – thought rumination, high emotionality, hypervigilance, irrational fears that the plaintiff may hurt himself, intense fear of rejection from others in relation to the injury, persistent avoidance of talking about the injury and having distressing nightmares, which included themes of chewing off his hand.
[75] Exhibit D3 (PCB 57B-57F)
134 As the report originally submitted to the plaintiff's solicitors in March 2013 shows, Dr Brownfield was optimistic that with appropriate treatment for chronic pain and trauma, in combination with pharmacotherapy, there was a reasonable prospect of improving the plaintiff's psychological difficulties.
135 Dr Brownfield also identified psychological factors, which she thought could restrict the plaintiff's employment options and his ability to socialise with peers at work. In effect, Dr Brownfield’s evidence indicated that the plaintiff should avoid workplaces where he may exacerbate his psychological distress by re-experiencing the injury or coming into contact with sharp objects. I expect these factors also contribute to the plaintiff's inability, for instance, to return to his pre-injury work where he may be required to work on roofs or to return to work as a meat slicer or work which required him to work with knives, scissors or other sharp implements.
136 In September 2013 the plaintiff deposed that he had ceased consulting Dr Brownfield because he believed this was not needed. With hindsight, the plaintiff considered himself to be more frustrated with his injury rather than depressed.[76] In my view this evidence represented another instance where the plaintiff sought to rationalise and minimise psychological factors which probably are causing or contributing to many of the claimed restrictions on his activities.
[76] PCB 14F
137 I note that on 4 December 2012, when examined at the request of the plaintiff's solicitors, psychiatrist, Dr Weissman assessed the plaintiff as the type of person who tended to under-report, underestimate, minimise and de-emphasise his psychiatric symptoms and distress. This assessment does not, however, fully explain the discrepancy between the plaintiff’s evidence and Dr Brownfield’s report that the counselling sessions ended because, with the plaintiff’s agreement, she had recommended referral to a chronic pain specialist.
138 When she closed her file, Dr Brownfield clearly understood that, another practitioner working at the same clinic as Dr Quddus, had referred the plaintiff to a chronic pain specialist at the Epworth Hospital, who, no doubt, could investigate and manage the physical and psychological causes of chronic pain and trauma.
139 No, explanation was forthcoming, either in the materials or at hearing, about what occurred after the referral to a chronic pain specialist. It is for the plaintiff to prove his case and explain these matters.
140 The plaintiff has expressed dissatisfaction with Dr Quddus and, in September 2013, deposed that he was looking for a new general practitioner. He couched his criticism of Dr Quddus in the following terms:[77]
[77] PCB 14E
"… Dr Quddus was someone I tried to ask about being sent to a pain clinic to assist with the management of my pain. She did not seem particularly interested in this.
In fact, she relates the story of how she had had a finger injury. She said she had an operation on the finger and had simply just got better without having any pain after it. I'm sure she meant well by telling me this but I felt that she was not particularly interested in my case.
… Dr Quddus had been concerned when my solicitors were making contact with her. She didn't appear from what she said to be very happy to be involved in a case that involved WorkCover I had attended her on one occasion requested that you complete a Centrelink form. She was not happy with this. She did not seem to want to help me."
141 Were it the case that Dr Quddus had been reluctant to refer the plaintiff as requested, her report suggested to me that she had assisted her patient in a number of other ways and, whether or not this suited the plaintiff, her conclusion that psychological factors were playing an important role in his presentation accords with the views expressed by a number of the specialists whose reports I have summarised.
142 Dr Weissman's examination took place during the early stage of therapy and some weeks before the psychologist recommended referral to a chronic pain specialist.[78] At the time, the psychiatrist had a copy of the plaintiff's first affidavit sworn in October 2011, copies of reports made by treating doctors following the initial injury, copies of the reports submitted to the plaintiff's solicitors by Mr Ham and Dr Blombery and a copy of the Medical Panel Certificate. Notably, he did not have a copy of the general practitioner’s report or any other material which raised concern about the level and frequency of pain reported or questioned the extent to which the plaintiff’s complaints and restrictions were mediated by physical factors.
[78] PCB 39-52
143 In summary, Dr Weissman reported that:
· the plaintiff suffered from a moderate degree and amount of chronic Post-Traumatic Stress Disorder symptoms and traumatisation features directly due to the circumstances of the accident;
· there were various examples of anxiety, nervousness, hypervigilance and hyperarousal around sharp objects leading to associated distress and to avoidance and phobia of sharp objects;
· the plaintiff reported uncertainty and concern about his future and self-consciousness, shame and embarrassment in relation to his right hand. Notably, the plaintiff reported self-consciousness, shame and embarrassment about his right hand especially when shaking hands with people or touching his wife. Pain on shaking hands and when intimate with his wife were among the consequences to which the plaintiff and his wife alluded to support this application.[79] Allowing for this evidence, I was satisfied that psychological factors likely interfered with the plaintiff‘s capacity to shake hands with his right hand and to touch his wife. The extent to which physical pain also interfered with these activities was not at all clear;
[79] PCB 14. See also the affidavit of Andrea Torres Gordillo, PCB 14I
· on a purely psychiatric grounds of the plaintiff had a capacity for full-time suitable duties, but like Dr Brownfield he deemed the plaintiff unfit for work with sharp objects or items that involved blades;
· the plaintiff would benefit from ongoing psychological counselling (he "should continue to see his new clinical psychologist on a weekly basis for about three months and thereafter on a 2- to 3-weekly basis for a further six months or so followed by review"[80]) and may also benefit from a therapeutic trial of antidepressant medication;
· the plaintiff was less active socially, because, as reported he was playing "it safe a bit" This indicated to me that psychological factors were likely also influencing the plaintiff’s social/recreational activities. However, without clarification of how and to what the extent psychological factors interfered with any social or recreational activities, I had difficulty measuring the extent to which the physical disability also contributed.
[80] PCB 51
144 The plaintiff was also seen by Mr Hart on 4 December 2012.[81] Among other things he had access to copies of Mr Ireland’s reports made in February and June 2012, the earlier treating specialist evidence in 2007 and the results of the ultrasound obtained on 19 July 2011.
[81] DCB 32-40
145 I have already commented that Mr Hart concurred with Mr Ireland’s opinion that psychological factors were likely interfering with the activities mentioned by the plaintiff many of which could be undertaken by adopting alternative strategies. Additional matters arising from Mr Hart’s re-examination included:
· no reported improvement in the condition of the right little finger;
· an indication that Amitriptyline aided the plaintiff’s sleep;
· other than coldness in cold weather, no reported paraethesia or numbness in the little finger or change in colour;
· reports that the plaintiff used his left hand as much as possible or used the base of his right hand to avoid contact with his right little finger;
· that the plaintiff identified pain in his hand as the predominant cause of limitations on his activities. Mr Hart could find no obvious explanation for the pain in the palm of the plaintiff’s hand and on the ulnar side, which he claimed was responsible for most of his disabilities;
· confirmation that Mr Hart had not found evidence of complex regional pain syndrome type 1 and, in the absence of associated paraethesia or referral of pain to the finger, confirmation that the pain was not neurogenic;
· a likely psychological reaction to the physical condition which Mr Hart considered was responsible for many of the disabilities reported;
· as mentioned, an aversion to amputation as a means of improving the function of the finger because the plaintiff was experiencing bad dreams about this;
· confirmation that, but for the presence of non-organic factors, Mr Hart believed the plaintiff physically capable of performing many of the functions he reported as difficult;
· confirmation that Mr Hart saw the plaintiff’s physical incapacity as involving difficulty gripping with the ulnar border of his right hand. This would, he said, cause problems in the plaintiff using a hammer and grasping relatively heavy articles.
146 The plaintiff was re-examined by Mr Ireland on 12 December 2012. A number of matters emerged from the report made some six months after the examination and report in June 2012.
147 The first was that on this occasion the plaintiff described his symptoms, which included pain in the little finger on the palmar aspect extending to the proximal forearm on the ulnar side, as "constant". I understood that in June 2012 the plaintiff had spoken of episodic pain on the side of the hand.
148 The plaintiff also complained of cramping in the forearm which woke him from sleep at night. His major concern was, however, with stiffness of the little finger which he said caused awkwardness and difficulty in the normal activities of daily living. On this occasion the plaintiff also noted increased sweating in the palm of his right hand and weakness of grip.
149 Essentially, Mr Ireland clinical findings were much the same, although he reported that the plaintiff had been able to make a full power fist without difficulty and had held the little finger flexed against a strong passive extension force without apparent pain or discomfort.
150 When examined by Mr Ireland the plaintiff reported taking Endep (another name for Amitriptyline) prescribed by his general practitioner and self administering Ibuprofen, one tablet every two days.
151 The second matter was that, Mr Ireland again drew attention to the discrepancy he found between the severity of the subjective symptoms of which the worker complained and the objective physical findings. He correctly acknowledged that it was beyond his area of expertise to comment on whether this represented an adjustment disorder or psychiatric disorder.
152 On this occasion, Mr Ireland was specifically asked whether the plaintiff's disability prevented a range of activities. Mr Ireland responded in the negative in respect to activities involving overseas travel, household duties, using a computer (I note that the plaintiff told Mr Ireland that he used the Internet), going out to dinner or to social functions (other than to the extent that the plaintiff claimed he used a knife with his right hand), going to the cinema or theatre, using public transport, undertaking further study and visiting his family in Warrnambool.
153 Mr Ireland accepted that there could be some areas in which the plaintiff’s activities were restricted without necessarily preventing any of these activities. These included cooking (the plaintiff apparently claimed he was only able to use a microwave, when in the past he had used pots and pans), in his intimate relationship with his wife (Mr Ireland had previously accepted that the plaintiff may experience difficulty touching his wife, although why this was so remained unclear to me) and in driving (Mr Ireland appeared to accept that the plaintiff's reported symptoms may impact on his ability to drive). Notably, when asked later the same month whether the symptoms affecting the right hand prevented the plaintiff from driving his car, Mr Ireland replied that, there was no physical reason for the plaintiff being unable to drive due to the condition affecting his right hand.[82]
[82] DCB 19
154 Lastly, Mr Ireland summarised his opinion in the following words:[83]
"The worker has an obvious impairment of the right hand due to restricted motion at the little finger which would obviously cause awkwardness of fine motor function and difficulty with some tasks without specifically preventing any single task. The condition has been significantly amplified by the nonphysical component of his symptom complex."
[83] DCB 17
155 By a letter dated 19 December 2012 Mr Ireland provided a supplementary report to the defendant's solicitors, having by then read the earlier report of Mr Hart and reports prepared by the plaintiff's medical specialists, plastic surgeon, Mr Anstee, Mr Ham and Dr Blombery.[84] In the supplementary report, he discussed the evidence underlying the diagnosis of Complex Regional Pain Syndrome Type 1.
[84] DCB 18-19
156 Mr Ireland said (wrongly as it turned out because this symptom was first mentioned in his November 2011 report[85]) the complaint made concerning increased sweating in the palm of the plaintiff's right hand was made by the plaintiff for the first time during the third examination on 12 December 2012. Perhaps, more persuasively, Mr Ireland explained that, by itself this symptom was not diagnostic of complex regional pain syndrome. On the other occasions on which the plaintiff was examined, Mr Ireland confirmed that he had not found clinical evidence of swelling, colour change, temperature difference, abnormal temperature gradient, asymmetrical hair growth, asymmetrical nail growth or any dystrophic skin changes, some of which, he said, would be necessary to provide a convincing case for a diagnosis of complex regional pain syndrome.
[85] DCB 3
157 Mr Ireland quite rightly pointed out that there was no record of complaint of these symptoms made or clinical findings by Mr Ham or Mr Anstee in August 2011 and May 2012 respectively. Moreover, while in February 2012, Mr Hart had noted complaint of increased perspiration on the right hand, on examination he had not found evidence of this symptom or any other symptoms diagnostic of this condition.
158 Mr Ireland correctly noted that Dr Blombery had found evidence of temperature differential between hands, although, as was submitted on behalf of the plaintiff, Mr Ireland was mistaken when he said that Dr Blombery had not also found clinical evidence of increased sweating in the right hand.
159 The point that needs to be made at this juncture is that, by December 2012, there was limited and inconsistent objective evidence of the features of this condition and certainly no ongoing support for this diagnosis by specialists (some of whom had also examined the plaintiff more than once) other than Dr Blombery.
160 In about April 2013 the plaintiff again travelled to Mexico for about two weeks, this time accompanied by his wife.
161 In his final affidavit, sworn in September 2013, the plaintiff summarised his reasons for resigning from full-time employment with the Parkview Hotel at the end of June 2013. One was that he had been struggling with his job and had been asked to do more hands-on work, which the plaintiff deposed he found very difficult.[86] Another reason was that, having been told that he would be shifted to a more supervisory role when another employee left in six months, the plaintiff later learnt that this shift was unlikely to occur.
[86] PCB 14A-B
162 Under cross-examination the plaintiff agreed that he had received a written warning from this employer. Without further explanation of this, the plaintiff said he was wrongly blamed for a "situation that caused a lot of damage".[87]
[87] TN 38
163 In view of this circumstance and earlier reports to doctors from which they understood, the plaintiff had been coping with this employment, I could not be satisfied that difficulty in performing his job due to impaired functioning of the right hand had precipitated his resignation from long-term employment with Parkview Hotel.
164 The plaintiff has been employed at the Batman Hill Hotel since July 2013. He agreed that this employment involved a similar role, albeit a more basic job because contractors were called in "for everything".[88]
[88] TN 38-39
165 At hearing, the plaintiff told the Court he had applied via the Internet for a position as a Protective Services Officer (PSO) for the police, but had not yet undergone medical assessment. According to the plaintiff he had wanted to be a policeman, but when he applied in 2007, he discovered that he did not have the required grip strength in his right hand. The plaintiff recalled that this was twice that required for a PSO.[89]
[89] TN 21-23
166 Under cross-examination, the plaintiff agreed that he had passed the exam to work as PSO, although he remained uncertain about qualifying specifically because of the reduction in grip strength in his right hand, which he said was 27 kg. As I understood the plaintiff's evidence, including the responses given during re-examination, he was pessimistic about passing any medical test because 30 kg was the minimum grip strength required.[90]
[90] TN 40-41 and 75-76
167 From my reading of the medical evidence, the plaintiff's concern that his grip strength could disqualify him from obtaining a position as a PSO may not be justified. There are variations between the measurements obtained by the specialists. However, the most recent of these indicate that in July 2013 Mr Ireland recorded successive readings of 28, 27 and 25 kg on the right, whereas in August 2013 Dr Blombery reported grip strength of 42 kg on the right.
168 At hearing the plaintiff also reported that he had commenced a government funded course, a Diploma of Building and Construction, two nights a week at Careers Australia. The plaintiff said his wife has offered to assist him with typing written work.
169 The plaintiff was re-examined by Mr Ireland on 31 July 2013, who provided an additional report on 2 October 2013.[91] In the latter Mr Ireland commented on the various consequences of physical injury to which the plaintiff deposed in his final affidavit on 20 September 2013.
[91] DCB 19A-E and 19F-H
170 The plaintiff was previously examined in 2012 by plastic surgeon Mr Anstee at the request of his solicitors. He was re-examined by Mr Anstee on 21 August 2013[92] and by Dr Blombery on 29 August 2013.[93]
[92] PCB 38A-G
[93] PCB 31A-D
171 Commencing with Mr Ireland’s report, the salient features of this are summarised as follows:
· the plaintiff was not then undergoing any specific treatment, although he attended his family doctor every two months for repeat medications which included taking Amitriptyline, the plaintiff said to treat "neuropathic pain and post-traumatic stress";[94]
[94] DCB 19B
· the plaintiff self-administered Ibuprofen, approximately 2 tablets per day and Panadeine, approximately one tablet per day;
· the plaintiff reported that his symptoms were unchanged since the last examination;
· in response to questioning about specific functional loss the plaintiff apparently described difficulty digging and using a computer mouse;
· the plaintiff continued to present to Mr Ireland as someone who was depressed. Mr Ireland again commented on the discrepancy between the severity of the subjective symptoms and the presence of corresponding objective physical signs. In his opinion, a major component of the symptom complex was non-physical. While Mr Ireland appears to have assumed that this was attributable to an adjustment disorder following injury, the clear message conveyed through multiple reports is that, Mr Ireland had not been able to identify a physical cause to explain the severity of the subjective symptoms reported;
· there was no evidence of complex regional pain syndrome;
· there was a differential in grip strength successively recorded at 28, 27 and 25 kg on the right compared with 58, 55 and 54 on the left;
· the plaintiff was looking for non-manual work, specifically in building management. Mr Ireland acknowledged that the physical disability would cause problems with some fine motor movements of the hand in confined spaces, should the plaintiff work, for example, assisting a plumber or an electrician;
· Mr Ireland placed no restriction on lifting at or above shoulder height, he considered the plaintiff capable of lifting weights up to 20 kg and also capable of engaging in repetitive activities for unrestricted periods.
172 From reading his report I was not able to ascertain what material or materials had been made available to Mr Anstee. His report dated 21 August 2013 confirmed, among other things, that the plaintiff probably suffers from permanent injury-related impairment of the right little finger, which likely precluded and restricted the plaintiff in relation to various employment or related activities.
173 In Mr Anstee's opinion:
· any right-handed task would be somewhat more difficult by virtue of the injury. Evidently, his clinical examination revealed a small area sensory loss in addition to a considerable reduction in range of movement of the right little finger;
· the plaintiff was permanently unfit by reason of his injury to perform his pre-injury duties, although Mr Anstee considered the plaintiff fit for suitable full-time employment. His previous work supervising cleaning and as a caretaker were, Mr Anstee said, within his physical capacity;
· the disability would make any right-handed task performed in a domestic social or recreational setting somewhat more difficult and in a few cases impossible. He pointed to examples of using a hammer and grasping sporting goods. However, Mr Anstee was of the opinion that a task such as writing was relatively unaffected;
· amputation could provide a more comfortable and efficient hand, although the loss of this digit would reduce the breadth of the plaintiff's hand and, it follows, the leverage available to use of a tool such as a spanner. As mentioned the plaintiff did satisfy me that this remained a viable option due primarily to psychological factors.
174 The last of the reports submitted on behalf the plaintiff was Dr Blombery's report dated 6 September 2013.
175 The salient features of this further report are summarised as follows:
· the plaintiff reported having left his job at the Parkview hotel due to an escalation in the level of his work and increased pain in his right hand. Based on the evidence summarised, I concluded that factors other than the plaintiff’s disability probably also played an important role in the plaintiff’s decision to leave this long-term employment;
· the plaintiff was then taking Panadeine Forte, 4 tablets per day and occasionally taking Brufen or the painkiller, Mersyndol (another over-the-counter medication). When he swore his final affidavit in September 2013 the plaintiff deposed that he was looking for another general practitioner and he was probably taking 4 Panadeine Forte per day, as well as Ibroprufen. It was not clear to me what factors had triggered an escalation the plaintiff’s use of strong pain killing medication in the weeks since the plaintiff was re-examined by Mr Ireland. Whatever the reason may be, the frequency of the plaintiff’s use of strong pain killing medication was not directly supported by Dr Blombery, who reiterated his earlier opinion that the plaintiff would likely require intermittent use of analgesic medication and possible treatment for depression;
· examination on this occasion revealed that the right hand was, in Dr Blombery's words: "much more sweaty than the left-hand and 1° cooler. The dorsum of the right hand was swollen compared to the left side… Power grip on the right side was 42 kg versus 62 kilograms on the left side";[95]
[95] PCB 31B
· there were ongoing features of complex regional pain syndrome type I complicating the injury to the right little finger;
· in Dr Blombery's opinion the disability affecting the finger was significant, because the plaintiff could not flex or fully extend this finger or use it in his employment. However, Dr Blombery noted "moderate pain from complex regional pain syndrome type I although this is not severe. Nevertheless he is limited because of the ongoing pain in his hand";[96]
[96] PCB 31B
· the plaintiff was permanently incapacitated for his pre-injury duties and the plaintiff's employment activities were permanently limited should these require use of the right hand in a heavy repetitive way. However, for the reasons I have already given I have rejected Dr Blombery's conclusion that the physical disability was the likely immediate or main cause of the cessation of the plaintiff's long-term employment with the Parkview Hotel;
· the plaintiff has a retained capacity to perform suitable full-time employment;
· while through his responses to questions asked by the plaintiff's solicitors, Dr Blombery indicated that the plaintiff's physical injury would likely permanently preclude or restrict social, domestic and social recreational activities, in his words: "to a significant degree", I did not find his report particularly helpful in this regard. Unlike Mr Hart and Mr Ireland, he did not identify the range of activities affected or attempt to explain how these were likely to be restricted.
176 In a supplementary report dated 2 October 2013 Mr Ireland commented on the matters to which the plaintiff deposed in his final affidavit, sworn on 20 September 2013. In the main his comments were directed to the activities the plaintiff alleged were restricted by reason of ongoing physical disability.
177 For instance, Mr Ireland queried the plaintiff's claimed difficulty with writing which, after an extended period of writing caused "real problems with gripping the pen".[97] The plaintiff had illustrated this problem by deposing that in 2007 he had required an extra hour to complete the written exam when he tried to complete Year 12 English.
[97] PCB 14B
178 In response Mr Ireland noted that the little finger of the dominant hand is not normally critical to writing and problems involving gripping of a pen usually relate to the thumb, index and middle fingers.
179 After considering all of the evidence, I too had difficulty in understanding the physical constraints on holding a pen where specialist evidence indicated that function of the thumb and other fingers of the plaintiff’s right hand was essentially normal. This is not to deny some ongoing loss of dexterity and awkwardness due to the deformity of the little finger. The impression I had after hearing the evidence and reading the medical material was that, for the purpose of this application, the plaintiff’s complaint was focused on the pain he said he experienced in his hand. In combination with other factors, such as excessive sweating, experienced in this hand from time to time, this interfered with his activities.
180 During re-examination the plaintiff described (both in word and through demonstration) the level of discomfort he experienced should he hold a pen or paint brush. Evidently, when the plaintiff tried to push with his second finger onto his other fingers he experienced pain "right into the centre" of his hand, which ran down from the top of the palm near the little finger through the left side of his palm and around toward his elbow.[98] The plaintiff also described:
[98] TN 72-73
· a burning and pulling sensation which he experienced right through his hand with cramping from the wrist toward his elbow when he tried to write;
· experiencing a ripping sensation in the area of the surgical scar "almost like if you slammed your fingers into a door something like that, and it feels like that in the centre of the hand";
· with pain originating from approximately one and three-quarter inches to 2 inches down his hand with a feeling "like it's on the bone".
181 When the evidence was considered as a whole I could not be satisfied that the physical basis (either due to the deformity of the little finger with or without the confirmation of a mild case of chronic regional pain syndrome) for the intensity and severity of the pain described by the plaintiff was clearly made out.
182 As mentioned, at hearing the plaintiff told the Court that he had since been employed in maintenance work at the Batman Hill Hotel. Mr Ireland agreed that this position was probably ideal for the plaintiff. On the evidence before me I could not be satisfied that, by reason of his right hand disability the plaintiff will not qualify for a position as a PSO. However, while the plaintiff has a retained capacity for full-time employment and, no doubt, an ability to better himself through application to further study, the evidence supports a finding that, due to the impairment of his right hand, some areas of work are probably no longer viable options.
183 As the plaintiff did not provided any specific example of the "innumerable tasks" involving his right dominant hand with which he continued to have great difficulty, Mr Ireland quite rightly pointed out that he could not comment on this aspect of the plaintiff's final affidavit.
184 Mr Ireland queried the plaintiff's contention that he was very restricted when it came to gardening. In Mr Ireland's view residual impairment of the right little finger should not impact on the plaintiff's ability to do normal gardening or prevent the heavier gripping work in using a shovel or a pickaxe or impede the ability to use secateurs. This evidence again emphasises the discrepancy between the plaintiff’s reported experience of pain and disability (he could possibly pick weeds with his left hand) and the medical evidence, which largely indicated a greater functional capacity in his right hand. There may be good psychological reasons for not using a range of bladed gardening tools like secateurs but I was not satisfied that the opportunity to enjoy time in the garden with his mother when visiting her property on weekends was fully denied because the plaintiff was physically incapable of performing gardening beyond pulling weeds with his left hand.
185 Mr Ireland again pointed out that he could see no satisfactory physical explanation for ongoing difficulties in cooking (presumably because both he and Mr Hart considered that by employing alternative strategies the plaintiff could continue to cook). Moreover, Mr Ireland queried (in my view with good reason) the physical basis for the plaintiff's complaint that he needed to use his left hand to open non-lever door handles. This is not to deny that there may be different shapes and styles of handles which are best managed with the use of the plaintiff’s left hand.
186 Mr Ireland accepted that, at a subjective level, the plaintiff experienced, as claimed, a constant ache through his right hand which radiated from the palm aspect under his ring a little fingers down over his wrist and toward his elbow. He, nonetheless, questioned the physical basis for pain, which Mr Ireland said was best described as a chronic pain syndrome. In offering this opinion Mr Ireland clearly relied on the absence of evidence of chronic regional pain syndrome or damage to the digital nerves of the right little finger. However, even where allowance is made for Dr Blombery's diagnosis of chronic regional pain syndrome, it seems to me that this specialist’s assessment of the severity of this condition ("He has moderate pain from complex regional pain syndrome type 1…"[99]) is at odds with the plaintiff's subjective description of the intensity and extent of the pain experienced by him.
[99] PCB 31B
187 Mr Ireland accepted that there was diminished grip strength in the plaintiff's right hand. However, clinically he saw this as a consequence of pain and discomfort, not loss of muscle strength due wasting or loss of muscle substance. In reaching this conclusion Mr Ireland evidently took into account the absence of evidence of forearm musculature disuse atrophy.
188 Mr Ireland was clearly perplexed by the plaintiff's claim that tasks related to construction, tools, machinery and practical hands on tasks were beyond him. I accept that Mr Ireland's statement that many workers with far more serious hand injuries and residual impairment are able to undertake these sorts of tasks is very general in its application.
189 Nevertheless, if the plaintiff's subjective description of his pain is left to one side, it is difficult to see why he remains physically incapable of using most of the selection of tools to which his final affidavit referred (pliers, hammer, screwdriver and spanner). As mentioned, at hearing the plaintiff told the Court that when employed by Parkview Hotel he had used tools such as a hammer and screwdriver but only in his left hand.
190 As Mr Ireland said, the thumb and radial fingers are more important in using pliers. He, nonetheless acknowledged, as other specialists before him have, that little finger was important in the use of a hammer. As to a screwdriver, Mr Ireland thought this would be marginally affected by pain in the little finger whereas the use of small to medium spanners should not, he said be affected by the plaintiff's right hand injury.
191 My understanding of this and other medical evidence mentioning the use of implements and tools is that, even with some allowance for pain or discomfort in the area of the little finger, there are probably many tools the plaintiff could safely handle if he chose to.
192 As to the plaintiff's complaint that his right hand became quite stiff throughout each day, Mr Ireland noted that this problem was caused by an inability to fully extend the little finger. He appears to have accepted that was a result of the tendon injury.
193 Mr Ireland agreed that the plaintiff may have to retrain and he supported the plaintiff’s decision to study a Diploma of Building Construction with a view to obtaining a Bachelor of Facilities Management. Again this evidence indicates a likely capacity to retrain and, in the future, enjoy employment in an area, in which the plaintiff has a long-standing interest.
194 Mr Ireland questioned the plaintiff's ongoing use of anti-inflammatory medications on the basis that there was no evidence of inflammation. I have already commented on the apparent recent escalation in the amount of pain killing medication the plaintiff reported using. The justification for taking daily doses of strong pain killing medication and ongoing use of anti-inflammatory medication is not evident from the medical evidence, where as recently as September 2013 Dr Blombery contemplated only intermittent use of analgesic medication.
195 I have already discussed the plaintiff' claim that his disability precludes a return to painting portraits. On this occasion, Mr Ireland reiterated his opinion that the condition at the right little finger would have minimal effect on this activity. It is unfortunate that Mr Ireland also expressed doubt that the plaintiff would wish to paint his portrait. However, I was not satisfied that this comment undermined the efficacy of his evidence, which along with other specialist evidence suggests that physically, for the purpose of recreational painting (or committing his ideas for invention to drawings), the plaintiff probably has a retained capacity to hold a paint brush or drawing implement. The level of enjoyment of this recreational activity and satisfaction with the outcome may nevertheless be reduced.
196 On this occasion, Mr Ireland appears to have again accepted that the loss of full mobility in the plaintiff's little finger would cause difficulty working in tight spaces. This comment was made in response to the plaintiff's claim that a loss of dexterity had affected his ability to tinker with mechanical and electrical items and work on projects he had been interested in such as ‘HHO clean fuel’ technology and safety lighting for motorbikes.
197 In Mr Ireland's opinion the plaintiff has sufficient grip strength to ride a motorbike. He nonetheless accepted that vibration may aggravate the pain the plaintiff experienced, rendering this a hazardous activity.
198 Lastly, Mr Ireland reiterated his opinion that there was no physical reason why, as claimed, the plaintiff was unable to drive a manual automobile. Whether or not he is correct in this view, it is clear that the plaintiff, can still drive the automatic vehicle he said was given to his father. The real question is to what extent the plaintiff is less capable of performing this activity over any extended period by reason of the restricted mobility of his little finger and pain.
The compensable injury
199 As my summary of the medical evidence has shown doctors are unanimous in accepting that impairment of the plaintiff‘s right hand due to the work-related injury to the plaintiff's little finger is permanent and continues to contribute to functional deficits such as reduced grip strength and dexterity.
200 At this stage, future surgical intervention to improve the function of the hand appears unlikely, grafting due to the passage of time and amputation due to the likely impact of psychological factors. There was no evidence to suggest that the plaintiff has ever contemplated the fusion procedure Mr Ham recommended in August 2011 as a means of improving function.
201 Allowing for the clinical findings reported by a number of specialist on both sides, commencing from August 2011, I was not satisfied that the plaintiff’s condition was complicated by the presence of Chronic Regional Pain Syndrome Type 1. Dr Blombery is the only specialist, treating or otherwise, whose clinical examinations have identified a selection of features of this condition. However, accepting for the moment that, from time to time the plaintiff has experienced one or more of the features typical of this condition, Dr Blombery’s conclusion that this condition contributed to the limitations on the use of the plaintiff's right hand and to a moderate degree of pain, did not adequately explain the plaintiff’s subjective description of the level and intensity of his pain or the extent to which he claimed the use of his right hand was restricted.
202 However, irrespective of whether in this case the diagnosis made by Dr Blombery is justified, in assessing the pain and suffering consequence I have made allowance for any objective evidence of findings such as sweating and swelling in the dominant hand recorded from time to time since the injury.
The pain and suffering consequence
203 As was explained by the Court of Appeal in Haden Engineering Pty Ltd v McKinnon,[100] the pain and suffering consequence encompasses both the plaintiff's experience of pain and the disabling effect of the pain on his physical capabilities (including his capacity for work) and enjoyment of life.
[100] Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 [9]-[17] and applied in Sutton v Laminex Group Pty Ltd [2011] VSCA 52 and more recently in Aburrow v Network Personnel Pty Ltd [2013] VSCA 46
204 Evaluating the experience of pain due to the right hand injury requires consideration of:
· the plaintiff’s evidence as summarised as to the intensity, frequency and duration of episodes of pain;
· the treatment received or recommended in the more than seven years since the accident and the medical evidence (also summarised) as to the extent of and intensity of pain;
· the objective evidence of the disabling effect of pain.
205 Evaluating the disabling effect of pain requires consideration of the extent to which pain continues to limit the plaintiff's physical function and interferes with his enjoyment of life. In this regard the significance of what is lost maybe informed to some extent by what he has retained.
206 As is evident from the plaintiff's evidence (to which his wife’s evidence gives some support) and the reports made to doctors in the years since the incident, the areas of the plaintiff's life impacted by pain and disability, included, he said, his employment opportunities, sleep, domestic duties, intimacy, recreational and social activities and his enjoyment of life.
207 I do not propose to repeat in detail the numerous observations already made as part of my discussion of the evidence regarding the pain and suffering consequence of the right little finger injury.
208 Generally speaking, subject to some differences, mainly about the extent to which the right hand disability interfered with these activities, the doctors largely agreed that the plaintiff is probably permanently precluded from a range of employment activities. For example, on the evidence, his disability may, as claimed, deny any ambition to pursue a career as a policeman, although the plaintiff remains fit for full time suitable employment. However, despite the evidence of ongoing loss of grip strength in the dominant hand, the plaintiff has not satisfied me that, by reason of this restriction or loss of dexterity, he is unlikely to meet the requirements for the position of a PSO. As already discussed the plaintiff’s retained capacity and opportunities for suitable employment are probably much more extensive than he believes.
209 Importantly, the plaintiff’s evidence of the intensity and constancy of his experience of pain (and to the extent that this was supported by his wife, who swore that, particularly toward the end of the working week, her husband nursed his right hand and his sleep was disrupted by pain[101]) was not commensurate with the medical assessment of the disability. Furthermore, as my discussion of the evidence shows there was some discrepancy between the objective evidence of the likely disabling effect of the functional loss and pain and the plaintiff’s evidence as it related to a range of activities.
[101] PCB 14H-I
210 This is not to deny, for instance, that pain affecting the little finger may increase with use and may also, at times, disrupt the plaintiff’s sleep.
211 The plaintiff’s wife confirmed that she performed the majority of domestic tasks. She illustrated this by explaining her husband could not open a jar apparently because twisting caused increased pain. However, having regard to particularly the evidence of Mr Ireland (and to the extent that this found support in Mr Hart’s evidence), I could not be satisfied that the restrictions in the plaintiff’s domestic (including gardening) activities were largely mediated by pain or restriction due to the physical injury.
212 On the evidence, I could not be satisfied that physical impairment of the right hand, as his wife deposed, limited the plaintiff to operating a computer with his left hand only. Moreover, on the evidence it was not clear that pain and restrictions due to the physical injury was largely responsible for the plaintiff inability to hold his wife’s hand or to shake hands.
213 As mentioned, the plaintiff is probably permanently denied future involvement in some recreational activities, such as motorbike riding and he may not be as accomplished an artist as he was when, in 2005, he painted the portrait tendered in evidence. However, I could not be satisfied that this activity had been entirely lost to the plaintiff by reason of the physical injury.
214 In conclusion, on the evidence, I was not satisfied on the balance of probabilities that there existed a substantial organic basis for the disability and consequences of which the plaintiff complained. Moreover, the plaintiff did not satisfy me that, at the date of hearing, pain, the disabling effect of pain and the extent to which this and any loss of function of the right little finger interfered with the plaintiff’s capacity to perform or enjoy activities, where this could be ascribed (in part or fully) to the physical injury was fairly described as being at least very considerable. In reaching this conclusion, I necessarily compared this case with the many other cases in the range of possible impairments.
215 The application is dismissed.
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