Darnley v Victorian WorkCover Authority
[2016] VCC 289
•18 March 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-06464
| WENDY DARNLEY | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 and 4 March 2016 | |
DATE OF JUDGMENT: | 18 March 2016 | |
CASE MAY BE CITED AS: | Darnley v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 289 | |
REASONS FOR JUDGMENT
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to function of both arms, hands and thumbs – disentanglement from other physical injuries – pain and suffering and economic loss – whether consequences “very considerable” – whether 40 per cent loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Jurokouski v Windsor Caravans [2015] VCC 1800; Davies v Nilson [2014] VSCA 278; Zlateska v Consolidated Cleaning Services Pty Ltd & Anor [2006] VSCA 141; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; [2006] VSCA 172; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Petkovski v Galletti [1994] 1 VR 436; R J Gilbertson v Skorsis [2000] VSCA 51; Bezzina v Phi [2012] VSCA 161; Advanced Wire & Cable Pty Ltd and VWA v Abdulle [2009] VSCA 170
Judgment:Leave granted in respect to pain and suffering and loss of earning capacity damages.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Worth | Verduci Lawyers |
| For the Defendant | Mr P Jens QC Mr R Lewis | Lander & Rogers |
HER HONOUR:
Preliminary
1 The plaintiff alleges she suffered injured whilst working as a truck driver in the course of her employment with Flemington Fields Pty Ltd (“the defendant”) from October 2006 until January 2010, and in particular on 30 May 2008 and 30 June 2009. The plaintiff claims she suffered injuries to her thumbs, hands and wrists as a consequence of the heavy, repetitive, strenuous and awkward manual work which she was required to do, whilst lifting and manoeuvring heavy truck gates and securing loads on trucks.
2 The plaintiff has not worked since January 2010. She has required surgical treatment of both hands, involving the removal of the trapezium at the base of both of her thumbs.
3 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered over the course of her employment.
4 Mr G Worth of counsel appeared for the plaintiff and Mr P Jens QC appeared with Mr R Lewis of counsel.
5 The body function said to be lost or impaired is the function of both arms, hands and thumbs. Mr Worth submitted that it was permissible for me to aggregate the upper limbs, pursuant to the principles most recently set out in Jurokouski v Windsor Caravans.[1] In that case his Honour Judge Jordan described the multiple tasks performed by a manual repetitive worker requiring both hands. He concluded that manual dexterity was the relevant body function. I note this authority was not challenged by Mr Jens.
[1][2015] VCC 1800
6 I, too, accept that in circumstances where it is alleged that the injury to the hands arose over the course of employment, involving lifting and manoeuvring of heavy truck gates and securing loads with both hands, that it is appropriate to combine the functioning of both hands, and to assess them together as the one body function.
7 The application is brought under sub-section (a) of the definition of “serious injury” contained in s134AB(37) of the Act and leave is sought in respect of both pain and suffering and loss of earning capacity.
8 Only the plaintiff was called to give evidence and she was cross-examined. In addition, numerous medical reports and other documents were tendered in evidence.
9 The two key issues for me to decide in this case are:
(i)Was the plaintiff’s condition caused by her employment?
(ii)If yes, then do the consequences to the plaintiff meet the definition of serious injury?
10 For reasons that I will explain below I am satisfied that the plaintiff’s employment from October 2006 to January 2010 was a material contributing factor to her current medical condition. Further, I am satisfied that she suffers a serious injury both in respect of her loss of earnings and pain and suffering consequences.
11 In the medical material tendered, and throughout this Judgment, the words thumbs, wrists and hands are sometimes used interchangeably. I accept that that the plaintiff suffered injury to both her thumbs, but the medical records and reports often refer to this as wrist pain.
Relevant background
12 The plaintiff is 55 years of age. Prior to commencing employment with the defendant, the plaintiff completed school to Year 11 level. Thereafter she worked as a truck driver for her father’s business for approximately nine years. She then worked as a vine attendant, for approximately 18 months which involved pruning and planting grapes. She was then out of the workforce between 1996 to 2001, as she was living with her partner and “kept home”.[2] During this time she did not work, with the exception of some casual landscaping.[3]
[2]Transcript (“T”) 46, Line (“L”) 23‒25
[3]T47, L2‒7
13 In 2001 the plaintiff represented Australia at the Oceana Games held in New Zealand in the sport of target clay shooting. From 2001 to 2005 she worked in a garden supply store where she drove a tipper truck, performed deliveries and assisted with sales. During this time, she usually practiced shooting on Wednesday afternoons and competed on the weekends, mostly Saturdays.[4] She ceased that employment as the hours did not suit her shooting commitments.[5]
[4]T48, L22‒23
[5]T47, L16‒21
Injury and its consequences
14 The plaintiff commenced employment with the defendant in about October 2006. As part of the plaintiff’s duties, she was required to drive a Tautliner with heavy vinyl curtains and metal gates along the side of the truck. The gates were about 2 metres in length and 1½ metres in height and weighed about 20 kilograms each. The plaintiff says that she had to perform this task up to 40 times per day.[6] During cross-examination, the plaintiff demonstrated the motion of lifting the gates. The demonstration showed the use of her hands and, in particular, her thumbs and wrists in performing the task.
[6]Plaintiff’s Court Book (“PCB”) 2
15 The plaintiff first complained of left wrist pain when she attended her local medical clinic, the Wyndhamvale Health Centre, on 12 May 2007.[7] She was seen by Dr Teng. The relevant part of the record states “Pain left wrist of sometime/no significant trauma. Work as truck driver. Right handed. Pain to palpation left lateral wrist. Tendonitis.” She was prescribed Naprosyn and Nexium.
[7]PCB 69
16 In cross-examination, the plaintiff accepted the proposition that she had pain in her left wrist for some time before that appointment.[8] The plaintiff explained that the pain was from “the constant lifting of the gates”.[9]
[8]T65, L9‒11
[9]T65, L2‒3, 11 and 14‒15
17 A significant issue in the case was the plaintiff’s failure to recall that she had suffered left wrist pain at this time. She did not tell her surgeon and medico-legal doctors about this. Nor did she refer to it in her affidavit. I will comment more on this later.
18 The plaintiff was then injured in an accident at work on 30 May 2008 (“May 2008 incident”) when she was collecting a load of steel from a business in Rowville. Whilst performing this task, a 200 kilogram load of steel was lowered by another person on to her left hand. According to her affidavit, she was able to extract her hand before it was crushed[10] but “suffered the onset of problems which have continued thereafter”.[11] The plaintiff reported the incident to her employer and continued working. She did not seek medical treatment at the time. She did not lodge a claim with respect to this incident. When asked why she had not lodged a claim, she said she was in a “bad relationship” and in a situation where she needed to keep her job.[12]
[10]PCB 35
[11]PCB 34
[12]T106, 4‒6
19 On 27 August 2008, the plaintiff re-presented to the Wyndhamvale Health Centre. On this occasion she saw Dr Bermudas, general practitioner, who prescribed more Naprosyn and recommended she wear a support. On examination Dr Bermudas noted that the plaintiff was tender over the proximal left 1st metacarpal. It appears from record that a diagnosis of De Quervain’s tenosynovitis was considered. Dr Bermudas recorded the following note:
“De Quervain’s
#!-flare up of L wrist pain for a few weeks – getting shooting pain yesterday
Had the same pain last year and responded to Naprosyn
O/E – tender over the prox. L 1st MC.
De Quervain’s
Wear support
Try Naprosyn again…”[13]
[13]PCB 49
20 In cross-examination, the plaintiff accepted the proposition put to her by Mr Jens, that the pain she experienced at the 27 August 2008 consultation was similar to the pain she had in May 2007.[14] She denied the proposition that the May 2008 incident made no difference to her. Referring to pain, she said “it got worse”.[15] The plaintiff was extensively cross-examined on whether she told Dr Bermudas about the May 2008 incident. The plaintiff’s answers vacillated somewhat between being unable to recall what she told him,[16] to “I did tell him in August”.[17]
[14]T67 L28
[15]T68, L1‒2
[16]T68, L29
[17]T68, L29‒T69, L21
21 The plaintiff returned to her local medical clinic on 12 November 2008, on this occasion she saw Dr French. Whilst raising other health issues, the plaintiff also discussed her wrist pain and a referral was given for an x-ray of the left and right hands with a possible diagnosis of De Quervain’s tenosynovitis, as well as an ultrasound. For no known reason the x-ray was not performed.
22 The left wrist ultrasound performed on 19 November 2008 revealed:
“osteo-arthritic changes in the left 1st carpo-metacarpal joint.”[18]
[18]PCB 39
23 In November 2008 the plaintiff asked the defendant’s state manager whether she could work on a truck, where the gates were suspended from the roof of the tray, such that she would not have to take the full weight of the gates when positioning them. She said the change to the system of work was made soon after and she said the work was easier after that, as she did she did not have to lift the gates to and from ground level.[19]
[19]PCB 5
24 Sometime in June 2009 the plaintiff was required to drive a different truck and again was required to manually lift the gates.
25 On 25 June 2009 the plaintiff presented to a general practitioner at the Wyndhamvale Health Centre. The note of that consultation recorded:
“Presents today quite annoyed as has been moved from her usual job (truck) to a small truck which need manual lifting of the gates which she feels flares up her ‘osteoarthritis in the wristsw (sic)”[20]
[20]PCB 67
26 I note that this is the first recorded complaint of bilateral wrist pain.
27 On 30 June 2009 whilst moving gates the plaintiff experienced severe pain in both hands and wrists. She dropped the gate and began crying. She could not complete the job. She reported the incident to the defendant and was taken to see the company doctor, Dr Mal Ong. The plaintiff was advised to apply ice and told that she had sprained her wrists. On review one week later, Dr Ong noted that her symptoms had improved, however, she was still sore. During cross-examination the plaintiff conceded that there was no reference to right wrist pain in either of Dr Ong’s consultation notes. She was adamant however, that she reported right wrist pain at the second consultation.[21]
[21]T74, L10‒11
28 On 20 July 2009 the plaintiff lodged a claim for compensation in respect of her sprained wrist. It referred to her suffering the injury when she lifted a gate on a truck on 30 June 2009. This claim was accepted and the plaintiff received weekly payments and medical and like expenses from 8 July 2009 through until 20 June 2014.
29 On 25 September 2009 the plaintiff was referred by her general practitioner to orthopedic surgeon, Mr Richard Maxwell. In attending him she only told him on the May 2008 incident and did not advise him that she had suffered left wrist pain the previous year.
30 On 6 November 2009 Mr Maxwell treated the plaintiff by injecting cortisone into the base of her thumbs, but this did not offer any lasting resolution of her symptoms. Mr Maxwell then recommended that the plaintiff undergo excision arthroplasty and tendon suspension at the base of both thumbs. Liability was accepted for such surgery by the WorkCover insurer.
31 Following the June 2009 incident the plaintiff was placed on light duties until October 2009 at which time the defendant advised that it had no appropriate duties available. She remained off work until January 2010 when she attempted a return to work. The plaintiff found the tasks she was required to undertake repetitive and unsuitable as they increased the pain in her wrists and thumbs. She ceased work permanently after one or two weeks.
32 The plaintiff moved to Tungamah in October/November 2010. Since that time she has consulted doctors at the Yarrawonga Denis Medical Group. She initially consulted Dr Sanwar Sawdagar and later Dr Kyaw Lynn.
33 On 21 March 2011, Mr Maxwell performed a right trapeziectomy and tendon suspension of the thumb metacarpal. The same procedure was performed on the left hand on 8 August 2011. Two months after the left thumb surgery, the plaintiff suffered a rupture of the left flexor carpi radialis tendon. After both surgeries, the plaintiff underwent hand rehabilitation.
34 Mr Maxwell recommended further surgery involving the insertion of fat grafts as padding over both metacarpal bases and for fusion of the right scaphotrapezoid joint with a bone graft. The plaintiff is unwilling to undergo such surgery, as she does not want to go through the pain of surgery again given it may not be successful.[22]
[22]T36, L1‒7
35 Dr Lynn remains her general practitioner and the plaintiff sees her monthly. The plaintiff takes six to eight Panadeine Forte a day to help her with her pain.
36 According to her affidavits and evidence, the plaintiff complained of the following consequences:
·She suffers constant pain in both thumbs for which she takes pain relieving medication without any lasting resolution of symptoms.
·She required surgery in the form of a right and left trapeziectomy and tendon suspension of the thumb metacarpal. She now experiences a painful ‘bone on bone’ sensation in each thumb.[23]
·She has difficulty with activities requiring the use of her hands which involve pushing, pulling, gripping and lifting.
·Basic domestic tasks such as sweeping, vacuuming, mopping cause pain. She undertakes domestic tasks generally at a slower pace sometimes over the course of several days.
·She is restricted in the garden as she cannot dig and has difficulty planting. She relies on a self-pushing lawn mower. She previously enjoyed “pottering” around in the garden and would, at times, spend most of the day out there.
·She has been unable to return to employment.
·She gave up her cherished activity of target clay shooting after the thumb surgeries in 2011. Although she had not done it regularly since 2007, it is an activity she would probably be doing now, if not for the pain in her wrists.[24]
·She no longer goes fishing and has placed her boat on the market.
[23]T98, L25-28
[24]T112, L3-4
Unrelated injuries
Carpal Tunnel Syndrome
37 The plaintiff suffered some tingling in her fingers at about the time that she commenced employment with the defendant. Such symptoms were investigated by Mr Maxwell and he referred her to neurologist Dr David Freilich. He performed nerve conduction studies in November 2009 and then diagnosed Carpal Tunnel Syndrome (“CTS”). It was then recommended to the plaintiff that she undergo CTS release surgery.
38 The plaintiff lodged a WorkCover claim for this injury on 16 June 2010. This claim was rejected on the basis that the medical condition was not work-related. The plaintiff did not agitate that issue, as her symptoms improved after ceasing work in January 2010. She did not undergo the CTS surgery. In cross-examination she confirmed that since ceasing work her CTS symptoms had been alleviated[25] such that her only current complaint in her hands is in relation to her thumb joints, where the trapezium bones were removed.[26]
[25]T98, L15-17
[26]T81, L14-16
Neck and shoulder pain
39 The plaintiff lodged a WorkCover claim on 19 August 2009 in relation to neck and shoulder pain, which she related to an uncomfortable seat on a truck she was driving.[27] It seems this was only a temporary complaint, and did not cause the plaintiff any ongoing problems.
[27]T101
Left knee injury
40 The plaintiff has been suffering an unrelated right knee injury since approximately 2010. She underwent an arthroscopy in 2011 and then in December 2015, she underwent a total knee replacement. She said that prior to this surgery she suffered constant pain, whereas now her knee is “wonderful”.[28] Although it is now much improved, she conceded that her knee condition would still restrict her in doing some jobs, such as getting on a tractor or trailer.[29] However, her hand injury would exclude her from such employment.[30]
[28]T91, L30
[29]T92, L10
[30]T111, L20
Medical evidence
41 In support of her application, the plaintiff relies on two reports from Dr Colin French, general practitioner. Dr French is the only practitioner with a complete history of the onset of the plaintiff’s symptoms including the initial attendance on Dr Teng regarding left wrist pain on 12 May 2007. In a report dated 29 October 2009 he said:
“It is believed that her work flared up this condition [osteoarthritis of both left and right thumb carpo metacarpals] – which appears to have developed over a long time”. [31]
He concluded:
“Other issues in the history do not appear to have as much significance in relation to her workplace injury.”[32]
[31]PCB 41
[32]Ibid
42 Mr Maxwell took a history that the pain in her left thumb arose from an injury on 30 May 2008 when the plaintiff’s left hand was squashed between two heavy metal objects. He noted the injury was around the thumb base and she was treated with analgesics and anti-inflammatory tablets. He then noted that on 30 June 2009 the plaintiff stated she was lifting a gate at work when she felt sudden pain in both thumbs causing her to drop the gate. Subsequent to that she experienced pain in both thumb bases, both at work and with most activities of daily living. He noted that the painful osteoarthritis of her thumb bases continued to get worse with the passage of time. In his report dated 19 July 2010,[33] he noted that it affected most of her activities of daily living, including holding kitchen pots and pans and peeling vegetables and getting dressed.
[33]PCB 182
43 Mr Maxwell then commented on the cause of the degenerative osteoarthritis in her thumb joints. He stated that he did not consider that condition was caused by her work or the injuries allegedly sustained at work on 30 May 2008 and on 30 June 2009. However, he stated that “I do believe her work has aggravated both conditions”.
44 He again expressed this opinion in a letter to the QBE Claims Officer dated 28 July 2010.[34] In the final paragraph of that letter he stated:
“Whilst this condition has not been caused by her work, the condition has certainly been aggravated by her work. There is both clinical and x-ray evidence to support the diagnosis.”
[34]PCB 186
45 This opinion from Mr Maxwell is important, and ultimately supports the plaintiff’s claim that her symptoms have been aggravated by her work. He expressly referred to “her work” as well as the incidents of 30 May 2008 and 30 June 2009. In my mind, this means that Mr Maxwell has considered the role which her work duties, over time, played in aggravating the osteoarthritis. It means that his opinion is not limited to those two specific incidents, which were just part of the overall role that employment played in aggravating the osteoarthritis.
46 In Mr Maxwell’s most recent report dated 5 October 2015, he simply restated the history and injury previously provided.[35] He stated that the plaintiff has a very poor prognosis with no possibility of her performing heavy manual work. He noted that she is not trained or experienced in clerical or other non-heavy duties. Further, he noted that the plaintiff is unable to engage in her leisure time pursuits of clay shooting, tennis, boating and fishing.
[35]PCB 198
47 The plaintiff received some physiotherapy treatment in 2009. In a letter from the plaintiff’s physiotherapist, Mr Marcus Ym, to Dr French dated 13 August 2009, he stated that “Wendy has had ongoing bilateral thumb issues, recently complicated by an overextension injury while she was manipulating a gate of a truck.”[36] He prescribed a thumb splint on each hand. He stated that in the longer term he considered she would have to have “some modifications to her truck (hanging curtains\hanging gates) for her to continue safely in her line of duties”.
[36]PCB 51
48 There is also a report from Ms Kayla McGinness, physiotherapist, dated 16 August 2009. Ms McGinness stated that she only saw the plaintiff on one occasion, that being on 5 August 2009. She stated that the plaintiff presented with bilateral thumb and wrist pain, more predominant on the left hand. She took a history of injury which she suffered 12 months ago and a more recent injury believed to have happened approximately four weeks ago. The plaintiff attended on this occasion and reported a recent lifting injury bilaterally where her hands gave way and a distraction force was applied to the wrists.
49 The plaintiff’s subsequent general practitioner Dr Sawdagar had a history of the May 2008 incident. He noted that she kept working until the pain was unbearable. She then attempted to work on modified duties which aggravated her pain. He noted there was another injury at work in 2009 when she dropped a gate resulting in more hand pain.[37]
[37]Medical reports dated 10 February 2012, PCB 74, and 23 March 2012, PCB 75‒76
50 The plaintiff then came under the care of Dr Kyaw Lynn. She did not comment on the cause of the injury given she came to treat the plaintiff four years after she ceased work. However, in her report dated 16 April 2015, she stated that in her opinion the plaintiff’s “symptoms will be exacerbated by work and she is not capable to work”.[38]
[38]PCB 77
51 I will now turn to the defendant’s medico-legal opinions.
52 The plaintiff was examined by Mr Peter Battlay, orthopedic surgeon, on 12 January 2010.[39] In his report dated 13 January 2010, Mr Battlay recorded a description of the physical duties the plaintiff was required to undertake including driving a van, shifting pallets, tying down loads and lifting the curtains. He took a history that she first developed a pain in her left wrist when her hand was crushed by falling metal. He further recorded that in June 2009 she lifted a gate weighing about 20 kilograms and her “left wrist gave way”. He noted that she subsequently developed a pain in the right basal thumb joint which he thought was from overusing the right hand.
[39]Defendant’s Court Book (“DCB”) 1-6
53 Mr Battlay concluded that the plaintiff suffered osteoarthritis of the basal joints of her thumbs. He was of the opinion that “this is a genetically based condition and partly related to age changes. I think that her aggravation through her work has been temporary and no longer relevant.”
54 The plaintiff was assessed by Mr Murray Stapleton, plastic surgeon on 23 August 2011.[40] In his report of that day, he obtained a history of the crushing of her left hand, but recorded it as being under 2 kilograms of steel, not 200 kilograms of steel. He recorded that she was suffering constant pain in her left thumb since then. He recorded that the right hand was similarly affected but was not involved in the crushing injury. He then noted that during the course of her duties, lifting of side gates and Tautliner curtains became uncomfortable for her. He related the discomfort relating to the progressive onset of bilateral CMC arthritis.
[40]DCB 7-10
55 Mr Stapleton concluded that the CMC joint condition is a “degenerate problem”, commonly found in women of menopausal age. He dismissed the May 2008 crushing injury by saying “if it was relevant then her right hand would not have produced similar symptoms, to a similar degree when the right hand was not injured at all”. He ultimately concluded that employment was never the cause, nor was it an aggravating factor.
56 Mr Stapleton re-examined the plaintiff on 23 April 2014.[41] At this stage he noted that it was 2 tons of steel involved in the May 2008 incidents. He then commented that “it sounds an horrendous injury for 2 tons of steel to fall on a person’s left hand”. However, he stated that as the plaintiff kept working and she did not suffer subluxation or fracturing across the basal joint of her left thumb, the evidence of a relationship between her condition and work is not strong. Once again, he concluded there is no evidence that her employment remains the cause or the aggravating factor of her condition.
[41]DCB 12-14
57 The plaintiff was then assessed by plastic surgeon, Mr John Anstee[42] for an assessment of the plaintiff’s s98C lump sum claim. He had a history of her putting a side gate onto her truck and as she lifted it above her head, it went over her head, twisting her hands and thumbs. He does not have a note of the May 2008 incident. Nor does his report detail the nature of the plaintiff’s work duties. In any event, he stated that she suffered a degenerative genetically determined disease which develops over a period of time. He stated: “This is not to say the accident did not bring the condition to Mrs Darnley’s attention, but certainly did not cause the problem.” I consider that Mr Anstee only addresses the issue of the cause of the osteoarthritis, not the cause of her symptoms. In circumstances where he does not specifically address the cause of the aggravation, I am not assisted in anyway by the opinion of Mr Anstee.
[42]DCB 15
58 Finally, the plaintiff was examined by rheumatologist, Dr Kevin Fraser, on 8 October 2015.[43] He took a history as to the nature of her duties, including the need to:
“Open and close curtains and lift and replace gates. As well, she helped with loading and unloading, occasionally using a forklift. She describes herself as a Jack of many trades.”
[43]DCB 24-27
59 He then had a history of the May 2008 incident. He noted that from time-to-time she attended her general practitioner because of the pain at the base of her left thumb. He also noted that that at the plaintiff’s request, the gates were put on sliders or hangers and because of that, the lifting of her left hand was less painful. However, when she was put on a smaller truck which had heavy gates she again suffered an episode of severe pain.
60 Dr Fraser concluded that the osteoarthritis was not caused by her work as a truck driver, either in general, or as a result of any specific incidents on or around 30 May 2008 or in June 2009. He stated that the osteoarthritis of the finger joints is age-related and due to genetic and constitutional factors. He stated that:
“So far as the osteoarthritis involving the first carpometacarpal joint is concerned, it would be surprising if the sort of manual work which she was performing did not cause symptomatic aggravation from time-to-time… However, I don’t consider the use of her hands in the course of her work or any specific incidents in May 2008 or June 2009 accelerated or otherwise altered the natural history of the underlying degenerative condition.”
61 Dr Fraser therefore acknowledged that the condition was not caused but may well have been aggravated by the nature of her work duties.
62 At the time the plaintiff lodged her WorkCover claim in July 2009, the WorkCover insurer arranged for a worksite assessment to be performed by
Dr Maurice Wallin, consultant in occupational health, safety and legal medicine. In his report of 2 October 2009,[44] he had a history of the May 2008 incident as well as the June 2009 incident. He noted that the plaintiff was suffering pain in both her left and right wrists and, at that time, there were restrictions in the activities she could perform at work. He thought that at that stage she should avoid repetitive use of the left or right hand, minimal gripping, pushing or pulling with the left or right hand; no lifting more than 2 kilograms using left or right hands, and to avoid use of the thumb; do not lift more than 5 kilograms using both hands, but avoid pressure on the thumbs; when driving avoid any pressure on the base of the thumb.
[44]PCB 199
63 He noted: “The physical activities involving opening of the rear gates on the trucks and also the moving of metal panels which have to be placed on the inside of the curtains over the lateral aspects of the Tautliner trucks”. He concluded “those activities did incorporate a significant physical component using the upper limbs”. I believe his identification of the work duties and the restrictions which he recommended, are consistent with a conclusion that the general nature of her duties were a cause of the osteoarthritic symptoms.
Causation
64 The plaintiff claims that she has suffered aggravation of pre-existing osteoarthritis as a consequence of her work duties, including the daily lifting of the gates, as well as when her left hand was struck in the May 2008 incident, as well as the lifting incident in June 2009.
65 It is not ideal that the plaintiff did not give the complete history to Mr Maxwell or the medico-legal doctors. But this should not be fatal to her claim.
66 I do not believe the plaintiff’s failure to tell the complete history was done intentionally.
67 The plaintiff seemed a relatively simple woman. After seeing her cross-examined, I found her to be credit worthy, and mostly reliable. It was apparent she is a very poor historian when it came to dates. For example she could not recall when her close friend and clay shooting partner died[45] and she could not remember when she was offered a job at her husband’s work place.[46]
[45]T88 L20-21
[46]T42 L22-25
68 It is necessary for me to decide the causation issue after considering all the evidence. Such consideration is not confined to the direct evidence, but I am permitted to consider inferential reasoning.[47] Further, I note that the question of causation should be a matter of common sense.[48]
[47]Davies v Nilson [2014] VSCA 278 at [17]
[48]Zlateska v Consolidated Cleaning Services Pty Ltd & Anor [2006] VSCA 141 at [9]
69 I am of the view that the May 2008 incident would have been a significant and memorable event in the plaintiff’s mind. It would have been frightening for her to quickly remove her hand away from a load, as 200 kilograms fell towards it. It would have been much more memorable than her daily work task of lifting and manoeuvring large metal gates. It is easy to understand why the May 2008 incident stuck in the plaintiff’s mind such that she focused on it when swearing her affidavits and when attending her surgeon and medico-legal doctors.
70 When asked about her failure to tell Mr Maxwell about the prior left wrist pain, first recorded in May 2007, the plaintiff explained that “I haven’t probably thought that it was important what had happened beforehand. The significant thing that stuck in my mind was my crush injury.”[49]
[49]T97
71 Taking a “whole of evidence” approach[50] I am satisfied that her employment, accelerated the onset of the degenerative arthritis. Her first wrist pain was in May 2007, some seven months after she commenced her employment. As Ashley, J stated in Grech v Orica Australia Pty Ltd,[51] the scheme of the Act “tends to equate injury with its externally evident manifestation.”[52]
[50]Davies [107]
[51](2006) 14 VR 602
[52][2006] VSCA 172 at paragraph 69
72 I am satisfied her work duties were responsible for setting the aggravation in motion. There was no other known trigger. Her general practitioner, her surgeon Mr Maxwell, her physiotherapists and medico-legal plastic surgeon Mr Behan, all accept that her work duties were capable to causing the osteoarthritis to become symptomatic. As it is a claim over the course of employment, the exact timing of it does not matter.
73 The plaintiff’s general practitioner, Dr French, is the only doctor with the complete medical history. Further, he saw her more often than any other doctor in this case. I am therefore most assisted by his opinion that her work duties caused the flare up of the osteoarthritis – which appeared to have developed over a long period of time.[53]
[53]PCB 41
74 The other medical practitioners have the history of the 2008 incident, but not of the prior left wrist pain. However, I am not troubled by this as the first complaint of left wrist pain was in May 2007, at which time the plaintiff was working for the defendant. If there had been wrist pain prior to October 2006 that would require difference considerations. However that is not the situation here. It is a claim for an injury arising over the course of employment. The complaint of left wrist pain in May 2007, with no history of trauma, is entirely consistent with the plaintiff’s claim that her injury has arisen as a consequence of the general lifting duties.
75 I accept that the May 2008 incident was a further and significant trigger of her left wrist pain. The symptoms were then further accelerated when the lifting incident occurred in June 2009.
76 The plaintiff’s right wrist was not involved in the May 2008 incident, yet she has suffered similar symptoms in it since at least 25 June 2009. She has required similar treatment for it, including the surgical removal of the trapezium. There are two apparent causes of the onset of this right wrist pain. Either it arose from her overusing her right hand, as she was guarding her left hand. Or it arose as from the general nature of her work duties, over time. Both are logical conclusions and both connect the right hand injury with her employment.
77 I accept that the plaintiff had no symptoms in either her left or right wrist prior to commencing employment with the defendant. The underlying degenerative condition most likely existed then, but was asymptomatic. The first recorded complaint of left wrist pain was when the plaintiff consulted her general practitioner in May 2007.[54] The first recorded complaint of right wrist pain is on 25 June 2009.[55]
[54]PCB 69
[55]PCB 67
78 Each of the Defendant’s medico-legal doctors seem to accept the plaintiff as genuine in her complaints of pain and the restrictions it causes her. There is no suggestion by any of them that the plaintiff is exaggerating her symptoms. Further there was no history taken that there were any symptoms in her hands before commencing work with the defendant.
79 Dr French, Mr Maxwell and Mr Behan were of the opinion that her work had caused the symptoms. Dr Fraser and Mr Battlay were of the view that if work aggravated the underlying condition, such aggravation was temporary only. Only Mr Stapleton said work played no role in the onset of the symptoms. Although the specialists are all respectable medical practitioners, I prefer the opinions of Dr French, Mr Maxwell and Mr Behan. I find it improbable that if work had caused the onset of the symptoms, and the symptoms had persisted throughout, that work is no longer a cause of them.
Permanent
80 Given I have found that her injuries are work-related, I must now consider if the bilateral hand injury is serious.
81 In order to satisfy the definition of serious injury, the plaintiff must prove the injury and its consequences are both serious and permanent. The authorities have defined the latter to mean “likely to last for the foreseeable future”.[56] I am satisfied that the plaintiff’s injuries and the consequences which flow are permanent. She has had the trapeziums of both hands surgically removed. Although further surgery to implant fat grafts has been recommended, the plaintiff does not intend to undergo such surgery. There is no further treatment proposed which is likely to lead to an improvement.
[56]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at [34]
82 Having thus accepted that the injuries are permanent, I must now consider the consequences of them.
Aggravation
83 As it is an aggravation case, this involves a comparison between the plaintiff’s pre-existing condition, with the aggravated state. Pursuant to the well-known principles enunciated in Petkovski v Galletti,[57] I must consider only the consequences arising from the aggravation.
[57][1994] 1 VR 436
84 Chernov JA, in R J Gilbertson v Skorsis,[58] summarises the task before me:
“In determining whether an injury which is an aggravation of a pre-existing injury is a “serious injury”, it is necessary first to make a comparison between the applicant’s condition before the accident that gave rise to the second injury and to his or her condition after that incident and thereby ascertain the degree of additional impairment that has been brought about by the second injury. It is then necessary to make an assessment of whether the additional impairment is serious and long term.”
[58][2000] VSCA 51 at [40]
85 Defendant’s counsel referred me to the Court of Appeal decision in Bezzina v Phi,[59] where the Court of Appeal stated that when examining the consequences of the claimed serious injury, the Court must look at how they affected the plaintiff as she was and would likely have been absent the injuries sustained in the accident. This included looking at and considering the effect (and likely effect in the future) of the applicant’s pre-existing injuries.
[59][2012] VSCA 161 at [23]
86 I note that in Bezzina, the plaintiff had suffered a prior neck injury and was unable to work as a consequence of that prior neck injury. In assessing whether the subsequent transport accident had caused a serious injury to his neck, the trial judge considered that there were no significant restrictions beyond the pre-existing condition. This is a very different situation to the present case where the plaintiff was asymptomatic prior to commencing her work with the defendant. I can reasonably infer she would have continued on that path, if not for the repetitive lifting and manoeuvring of truck gates.
87 The task set out in Skorsis is a relatively simple one here, as this case involves aggravation of an asymptomatic degenerative condition. As stated above, I am satisfied that the plaintiff did not suffer any symptoms prior to commencing her employment with the defendant. Therefore, I am able to look at the totality of her symptoms in assessing the consequences of her thumb injuries.
Loss of earning capacity
88 There was little dispute at the hearing as to the extent of the incapacity arising from the plaintiff’s thumb injuries. The plaintiff gave evidence, and I accept, that when she was attempting light duties between July 2009 and January 2010, she experienced an increase in her bilateral thumb pain. In particular I note the following duties caused an increase in such pain:
·Tidying up in the yard;
·Rolling up ropes and binders;
·Filing of paperwork in the office;
·Holding a clip board and writing up notes.[60]
[60]T108-109
89 Further, I accept the plaintiff’s evidence that she “can’t drive for hours”[61] due to increased pain from driving.
[61]T114, L5-6
90 The plaintiff was offered a job at her husband’s work in the winter of 2014 or 2015. It was a job to drive a tractor and roller as part of a road crew. However, she considered such a job inappropriate as it would involve holding rails to get in to the tractor, using hand gears and doing maintenance.[62]
[62]T111, L9‒20
91 The plaintiff has only ever worked in manual jobs.
92 Her general practitioner has been providing her with certificates stating no capacity for work since January 2010.
93 Mr Maxwell considered her prognosis with respect to work was very poor, with no possibility of manual work, and noting she was not trained or experienced in clerical or other non-heavy manual duties.[63]
[63]PCB 198
94 In April 2014 Mr Stapleton was of the view in April 2014 that she did not have a current work capacity.[64] In October 2015 Dr Fraser was of the view that the plaintiff is unfit for truck driving work, or any work requiring lifting or any repetitive or forceful use of her hands.[65] He considered she would be fit for full-time light work within the bounds of such restrictions.
[64]DCB 13
[65]DCB 26
95 The plaintiff suffers increased pain in her thumbs when doing household tasks, such as vacuuming, sweeping and cooking. She has learnt to accommodate her injuries by doing such activities at a slower pace. She is restricted in the gardening activities she can perform.
96 To succeed in her application, the plaintiff has the onus of satisfying me that she has sustained a loss of earning capacity of 40 per cent or more; and that she will continue permanently to have a loss of earning capacity which produces a financial loss of 40 per cent or more. In assessing this, I must consider what the plaintiff is capable of earning, whether in suitable employment or not.
97 The definition is an objective test which looks at the worker’s current suitability for work, taking into account matters such as the plaintiff’s age, education, experience and whether the work is a reasonable distance from the plaintiff’s place of residence.[66]
[66]Barwon Spinners Pty Ltd & Ors v Podolak at [25] and [28]
98 Mr Jens spent some time cross-examining the plaintiff as to her move from Werribee to Tungamah, suggesting to her it was a vacation destination,[67] and her move there in November 2010 indicated she had given up on any prospect of returning to work. Further, it was put to her that there were minimal job opportunities in the area.
[67]T38, L2
99 The plaintiff explained that she and her husband moved there, as housing was more affordable and she was concerned that her WorkCover payments would be terminated. In any event, in cross-examination, the plaintiff did not concede there were any jobs which she could undertake and I accept this, so it seemed irrelevant to me whether she was living in Werribee or Tungamah.
100 Taking into account all of the evidence, I am satisfied on balance that given the plaintiff’s age and experience, her bilateral hand injuries results in her having no present capacity for suitable employment.
101 Further, as the plaintiff has satisfied me she suffers a serious injury in respect of loss of earning capacity, it is not necessary for me to consider separately her pain and suffering consequences.[68]
[68]Advanced Wire & Cable Pty Ltd and VWA v Abdulle [2009] VSCA 170 at [63]
Orders
102 I am satisfied that the plaintiff suffers a permanent condition in both hands, arising as a consequence of her employment with the defendant and the consequences are such that she should be granted leave to commence proceedings for pain and suffering and pecuniary loss damages.
103 I shall make the consequent orders.
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