Demetriou v Victorian WorkCover Authority

[2019] VCC 805

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-18-05270

CHRISTOS DEMETRIOU	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HER HONOUR JUDGE BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	9 May 2019
DATE OF JUDGMENT:	7 June 2019
CASE MAY BE CITED AS:	Demetriou v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2019] VCC 805

REASONS FOR JUDGMENT
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Subject:  ACCIDENT COMPENSATION

Catchwords:             Serious injury application – impairment to the left thumb/hand – pain and suffering only – range case

Legislation Cited:     Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)

Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Spiteri v Canfam Nominees Pty Ltd [2010] VCC 224; Kelso v Tatiara Meat Company Pty Ltd [2007] VSCA 267; Meadows v Lichmore Pty Ltd [2013] VSCA 201

Judgment:                Leave granted to bring proceedings for damages for pain and suffering.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M J Walsh with Mr P Haddad	Zaparas Lawyers
For the Defendant	Mr J L Batten	IDP Lawyers

HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injury suffered by the plaintiff in the course of his employment with Crown Joinery Pty Ltd (“the employer”) from February to May 2016 (“the said period”).

2       The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.

3       The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s325(1) of the Act. There, “serious injury” is defined relevantly as meaning:

“(a)   permanent serious impairment or loss of a body function.”

4       The body function relied upon in this case is the left thumb/hand.

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

6       The impairment of the body function must be permanent.

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

8 By s325(1)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant or marked”.

9       Section 325(2)(h) requires all psychological consequences to be ignored in determining the plaintiff’s application in relation to the physical impairment. 

10      I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury.  Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.

11      I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.

[1](2005) 14 VR 622

[2](2006) 14 VR 602

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

The Plaintiff’s evidence

13      The plaintiff was born in Victoria in February 1966 and is presently aged fifty-three.  After competing Year 11, he then went to TAFE and undertook a motor mechanic’s apprenticeship but did not finish the course, leaving when aged about twenty-one.

14      The plaintiff then worked full time in an amusement park for about four years. After this, he worked in furniture sales – with Sortino Furniture for three years, and Fantastic Furniture for four years.

15      When the plaintiff was nearly thirty, he bought a café in Hartwell which he ran for about six years with his ex-wife.  The café was a lunch shop with a few dining tables and a coffee shop.  His role was prep work, cooking, cleaning and serving customers.  He did not have any training or trade skills for that role.[3]

[3]T13

16      In about 2000, the plaintiff and his ex-wife opened a second café business in Perth, “Fasta Pasta”, which they operated for about eighteen months.[4]

[4]T13

17      In about 2006, the plaintiff and his ex-wife separated and he stopped working in the café and moved back to Melbourne.  He then started working part time, again for a furniture retailer, working about two days a week for sixteen hours.

18      The plaintiff worked briefly as a cable television installer after he returned from Perth, that job ceasing after he was hit by a car.[5]

[5]T15

19      The plaintiff also worked in a toy warehouse, “Colorific”, in Westerville in warehouse duties.  Before that, he had a brief tyre fitter job at Beaurepaires in Kew for about three months.  He stopped that because it was just too far to travel from home.[6]

[6]T15

20      The plaintiff last worked in sales about eight years ago at Easy Living Furniture.  He worked in that job for about eighteen months and left because he was made redundant when they were downsizing, being the last hired and the first sacked.[7]

[7]Transcript (“T”) 11

21      The plaintiff worked at Sunshine Nursery for about a year as a general hand.  That was the last job before starting with the employer.  He left because it was seasonal work and through an employment agency on call.[8]

[8]T14

22      The plaintiff denied that these jobs were brief in duration because he had personality clashes with his boss and other workers.  His Bipolar Disorder might have caused periods of time away from work “a little.”[9]

[9]T16

Pre-incident health

23      The plaintiff fractured his right hand at work in 1999.  Before that, he was right handed, but after this injury, he started to rely on his left hand.

24      The plaintiff was diagnosed with Bipolar Disorder in 2013 by Dr Mazumbar, specialist psychiatrist, whom the plaintiff saw once.[10]  This disorder was well managed by his general practitioner and his psychiatrist, Dr Ken Estur, who practiced at the Endeavour Hills Medical Clinic, where the plaintiff attended on and off for many years.

[10]T8

Work with the employer

25      The plaintiff agreed that from time to time he was in receipt of Centrelink payments, and from 2014, he had been in receipt of a disability support pension.[11]

[11]T14

26      A disability employment agency organised a job with the employer driving a 3‑tonne truck.  This was the first time the plaintiff had undertaken that type of work.  He did not need a special licence for this job.[12]

[12]T15

27      The employer provided commercial shop fitting services, including the manufacture and installation of full fit-outs for a range of retail hospitality and commercial businesses.

28      The plaintiff started work with the employer in December 2015, initially working about three days a week, but increased his working hours to approximately fifty-two hours a week on a regular basis.  His usual working hours were Monday to Friday from 7.00am to 3.30pm, although he sometimes worked six or seven days a week, and sometimes sixteen or seventeen-hour days.

29      The plaintiff was employed as a truck driver and general hand.  The tasks required were varied, but often included strenuous manual labour.  In his affidavit, the plaintiff described in some detail the nature of the tasks he was required to perform.

30      The plaintiff worked at various sites, with his duties involving lifting heavy tiles upstairs, walking in narrow spaces carrying heavy items and walking upstairs carrying heavy materials.  At times, his job involved assisting with the installation of shop fittings, which would often involve the use of power tools, including drills, grinders and sanders.  At other times, he was engaged in demolition work.  About three times a week, he had to do a tip run to take excess building waste from onsite.

31      After the plaintiff had been working for the employer for about two months, he complained to his project manager, Simon, that the work was too difficult, especially when he was unloading at the jobsite because often there was insufficient assistance.  The plaintiff was told he could manage and nothing was done to change the conditions.  After about two or three months of repeated requests for help, the plaintiff was given some part-time help, but that was not adequate.

32      The constant heavy lifting and twisting and turning through jobsites, on uneven concrete and other difficult conditions, put a lot of strain on the plaintiff’s hands.

33      In about February or March 2016, the plaintiff began to notice pain in his left thumb and shooting pains up his arm.  For about two months, he continuously taped up his hand and wrist, but continued working.  He was uncomfortable but tried to keep working.  After a while, he started dropping objects, and the pain was getting worse and worse, and eventually it was too intense. 

34      On or about 7 May 2016, the plaintiff saw his usual general practitioner, Dr Jenny Harindran.  He then had a lot of pain in his left thumb, and pins and needles in his thumb and three of his left fingers. 

35      The plaintiff told Dr Harindran he had had constant left thumb pain for a month, and pins and needles in his fingers, not mainly at night as she noted, starting around February-March 2016.  He went back to see her four weeks later and, in the intervening time, she referred him to Dr Li.  She was a WorkCare and pain specialist, and he was referred to her to get WorkCover certificates.[13]

[13]T10

36      The plaintiff agreed that he actually worked for the employer between 7 December 2015 until about 11 May 2016.[14]  When he told medical examiners he had worked for a longer period, he was describing the period he was employed, not working.[15]

[14]T17

[15]T53

37      The plaintiff was drug free when he was working for the employer.  The work was very demanding and physical and he needed to have his wits about him, so there was no drug use at all.[16]

[16]T53

Subsequent treatment

38      The plaintiff saw Dr Li on 11 May 2016 at Sonic Health Plus for injury management.  Dr Li referred him for hand therapy with Diana Francis, who gave him a splint, which he wore for about six to eight weeks.  Hand therapy continued until surgery in February 2017.

39      On 27 May 2016, nerve conduction studies were performed, the results of which were normal. 

40      On 17 June 2016, the plaintiff had a cortisone injection in his thumb joint but it did not take the pain away.  At that time, he was feeling pain all around his thumb and shooting pains up his arm.

41      At about this time, the plaintiff’s mood started to deteriorate again and his anxiety became an issue again, and he began having problems concentrating and sleeping.

42      In July 2016, the plaintiff was referred to psychiatrist, Dr Mahalingam, as a result of increasing stress and anxiety caused by his injury and also as a result of his Bipolar Disorder.  He attended Dr Mahalingam on about eleven occasions from about July 2016 to about December 2017.

43      On 15 August 2016, the plaintiff had an x-ray of his left thumb.  He was referred to a hand surgeon, Mr Tham, who diagnosed an ulnar collateral ligament attenuation/repute.  Later that month, the plaintiff had a second cortisone injection in his thumb joint. 

44      In late September 2016, Dr Li certified the plaintiff fit for light duties with the following restrictions:

·        minimal thumb movement

·        splint left hand

·        no lifting of more than 5 kilograms for both hands.

45      In October 2016, the plaintiff returned to work for three hours a week on a few occasions before the 2017 surgery, undertaking cleaning tasks like mopping and sweeping. He could not do these tasks one handed.[17] Eventually, alternative duties were withdrawn and he lost his job.

[17]T18

46      On 19 December 2016, the plaintiff had an MRI scan of his left thumb MCP joint.  He was told by Mr Tham that this investigation showed he had a ganglion at the base of the thumb, tendon damage and joint damage.  Mr Tham recommended surgery.

47      On 21 February 2017, Mr Tham operated, repairing tendons using a wire (“the surgery”).   After the surgery, the plaintiff’s wound became infected and he was in a lot of pain and could not use his left hand at all.

48      Post operatively, the plaintiff wore a fixed splint for about six to eight months and had hand therapy.  After about three months, the surgical wire was removed. 

49      Following the surgery, the plaintiff was able to move his thumb more but the pain was still there.  When last seen on 23 May 2017, Mr Tham told the plaintiff there was nothing further he could do.

50      Post surgery, the plaintiff had had some improvement, but ultimately, his thumb went back to how it was before the surgery.[18]

[18]T25

51      The plaintiff never told Mr Tham he had regained 90 per cent use of his left thumb, nor did he tell him that he had minimal discomfort with use.  He mentioned to Mr Tham that he had significant pain. Mr Tham told the plaintiff it was the scar tissue and that would get better over time.  The plaintiff did not tell him how the injury was caused, as Mr Tham never asked.[19]

[19]T27

52      The plaintiff has never discussed with Mr Tham going back to work as a truck driver.  Mr Tham did not recommend the plaintiff continue any therapy or exercise.[20]

[20]T28

53      Mr Tham really did not give the plaintiff too much advice about pain or work.  It was a very quick consultation – in and out in about fifteen seconds.  Medico-legal doctors have told the plaintiff not to undertake repetitive duties.[21]

[21]T37

54      The plaintiff confirmed that the pain had returned to its pre-surgery level.  When he last saw Mr Tham, he was still feeling the pain from the surgery so he could not really determine the difference.  He confirmed that he was told about the scar tissue down the bottom of the base of his thumb.  That pain never subsided.  It has been constant.  He has had chronic pain since the surgery.  There is not a day that goes past when he does not know that there is an injury to his hand.  He is reminded with small things like unclipping or trying to flick a piece of paper.[22]

[22]T52

55      Around July 2017, the plaintiff injured his left shoulder while moving a pot at home.  These symptoms settled almost straight away.[23]

[23]T36

56      On 22 July 2017, the plaintiff had an MRI scan of his left hand, which he was told showed severe De Quervain’s tenosynovitis, synovitis of the first CMC and degenerative changes.

57      On about 31 January 2018, the plaintiff saw Dr Bennett, rheumatologist, who advised that he diagnosed De Quervain’s tenosynovitis, left thumb MCP joint instability, and left thumb ulnar collateral ligament repair.  He was advised to continue taking Celebrex and Tramadol for pain and inflammation.  He did not schedule any further appointments and advised the plaintiff he would continue to have pain.

58      The plaintiff last saw Dr Li for treatment in January 2018.  At that time, the plaintiff continued to suffer from a painful left thumb.  Dr Li advised him that he was suffering from De Quervain’s tenosynovitis to the left thumb, which was the cause of his ongoing pain.

Psychiatric

59      Since the work injury, the plaintiff suffered from anxiety, moodiness, and had difficulty concentrating and making decisions.  His sleep had also been affected.  As of July 2018, he relied on his girlfriend a lot for support, and that put a strain on their relationship.

60      The plaintiff’s injury had had a significant impact on his mental and emotional state.  Dr Harindran referred him to Dr Peter Fanning, psychologist, whom the plaintiff saw him about nine times in 2018 to help him deal with stress, which was caused in part by his injury, as well as other interpersonal issues.  No further sessions were planned since the plaintiff was last seen in December 2018, given the improvement in his symptoms.

61      The plaintiff agreed he was referred to Dr Fanning pursuant to a plan on 1 February 2018 requesting opinion and management of symptoms of depression and anxiety.  He considered himself to be depressed from not working.[24]  While that psychologist noted the main therapy goal was abstinence from illicit drug use, the plaintiff explained he wanted to stay away from drug use.  It did not mean that he had a problem with drug use at that stage.[25]

[24]T20

[25]T23 and 24

62      The plaintiff was asked about the form that Mr Buntine asked him to complete in July 2017.  At that time, the plaintiff was stuck in his bipolar symptoms and he was fed up filling out the same questions over and over. 

63      The plaintiff answered “heroin and cocaine” in the form when asked what were his current medications, including painkillers, because he was frustrated then about repeated questions and answers he had to keep giving over and over, so he wrote something stupid.[26]

[26]T23

Current treatment

64      The plaintiff saw Ms Kelly, hand therapist, regularly from about February to July 2017.  He saw her again in September 2018 for an assessment but has not seen her since, as funding ceased.[27]

[27]T39

65      The plaintiff is a little frustrated with Dr Harindran’s treatment.  He is lost at the moment, not knowing what to do.  She referred him to a WorkCare doctor and that is what he found over the years – everyone was handballing him to someone else.[28]

[28]T38

66      In March 2018, the plaintiff saw Mr Crock, a plastic and reconstructive surgeon, for medico-legal purposes.  The plaintiff was then suffering significant pain in his wrist, thumb and hand.  Mr Crock commented that if he continued to have ongoing pain and lack of stability in his left thumb, he might require a joint fusion or ligament reconstruction.

67      Since the surgery, no one has given the plaintiff a definitive treatment plan.  No one has x-rayed his hand.  He did not think he would go ahead with an operation because the last one did not get him anywhere and he is still exactly where he is today.[29]

[29]T42

68      The plaintiff is unhappy about the way his general practitioner is handling his pain management.  The only solution is pain medication, and he wants to be very careful with taking it.[30]  Dr Harindran has not discussed the suggested surgery with him in any detail.[31]

[30]T32

[31]T56

69      In February 2019, the plaintiff saw Dr Sullivan, a pain specialist, for medico-legal purposes.  He advised the plaintiff that he was suffering from a chronic pain condition which was caused as a result of the ulnar collateral ligament surgery.  He advised the plaintiff to avoid performing repetitive activities such as factory work, including labouring work and any work which required repetitive use of his hands, wrists and arms.

70      The plaintiff thought Dr Sullivan had suggested pain management and he is presently in the process of seeking help in this regard with the assistance of his general practitioner.  It is still up for discussion.[32]

[32]T32

71      The plaintiff uses a hand brace about 70 per cent of the time.  It gives his hand support and stability.  He tends not to use it when he is not required to do any significant physical activity with the use of his left hand.

72      The plaintiff has been told by treaters to use his hand until it hurts and not to push it past the pain threshold.[33]  He does exercises suggested by Ms Kelly.  He tested his hand on a daily basis and performed the exercises she taught him.  He demonstrated putting his fingertips together.  He does not use a ball or any strengthening equipment.[34]

[33]T23

[34]T29

Medication

73      The plaintiff currently takes Valium daily, as well as over the counter medication, Voltaren tablets, Voltaren Gel (which he uses over his hand, wrist and thumb) daily, and Targin (one per day).  He also continues to take medication for an unrelated condition (Bipolar Disorder), which includes Olanzapine (a mood stabiliser), 10 milligrams once a day.

74      The plaintiff was prescribed Tramadol for left wrist pain at Dandenong Hospital on 15 January 2018.[35]

[35]T47

75      In early March 2019, Dr Harindran prescribed Targin and Valium.  The plaintiff consumed the twenty-eight Targin tablets that month.

76      The plaintiff last attended his general practitioner in early April 2019, complaining of ongoing pain and discomfort in his left hand and wrist, and was prescribed Valium as a muscle relaxant.  Dr Harindran advised against a repeat of Targin and Valium, as she was concerned that he might develop dependency on it.

77      Targin causes the plaintiff to feel drowsy, affects his memory and makes him feel fatigued.  He has also suffered from heightened anxiety as a result of his injury.

78      The plaintiff has suffered substance abuse issues over the years.  When he is prescribed Targin, he takes all the tablets often too quickly.  Dr Harindran has warned him against the use of opioid medication.  He has had to take a break for several weeks between prescriptions.  During these breaks without medication, he experiences increased pain and he does not cope as well.

79      The plaintiff denied he had any problems with excessive use of Tramadol.  It would have been prescribed sometime last year for pain in his hand.  Dr Harindran stopped prescribing it because she did not want him to become addicted.  He has taken Tramadol on and off his whole life.[36]

[36]T30

80      The plaintiff understood that he had been put on Targin as a substitute, but they are all basically the same.  They are addictive and you become dependent if you use them too much.[37]  He is still being prescribed Targin and takes it all too quickly on occasion.  He did not tell Dr Fanning about it.  Targin is legally prescribed and his general practitioner monitors his intake.[38]

[37]T31

[38]T34

Pain

81      As of July 2018,[39] the plaintiff had constant left thumb pain and a tingling which was worse when he used his thumb.  The pain went into his fingers and left wrist.  His left thumb looked bigger than his right.

[39]The first affidavit

82      The plaintiff currently experiences pain on a daily basis.  He is constantly worried about his left hand and further injuring it, and he tends to over protect it. The muscle between his wrist and the base of his thumb at the palm of his left hand is significantly smaller than it is on his right side.  He uses his left hand less than his right hand and it is significantly weaker than his right hand.

83      The plaintiff’s left hand is significantly smaller and softer, and there is not as much muscle on that side.[40]

[40]T57

84      Since March 2017, the pain has been constant.  Any time the plaintiff uses pressure on his thumb, pushing down on the item, pulling up or twisting, the pain is sharp and severe at the base of the thumb.  It causes him discomfort and puts him off undertaking a lot of menial tasks, which could see him as being lazy, which he is not.[41]

[41]T56

Work capacity

85      As of mid-2018, the plaintiff did not think he could do his previous job or any job that involved manual work and the use of his left hand.  He wanted to work though, and he was looking to do something if he could.  He was hoping to get full-time work in furniture sales.

86      The plaintiff had not been able to return to the workforce save for a short period of about two days in about July 2017, assisting a friend in his demolishing company.  The plaintiff could not do anything useful because of his injury.  At the demolition site, he felt like an eight-year-old kid.  He sat in the truck and watched for a couple of days.  He could not drive the truck and could not pick up items.[42]

[42]T45

87      The plaintiff agreed that he told doctors during this case that he was looking for work as a furniture salesman.  He told Mr Buntine this in July 2017 because he did not think he was capable of doing anything else.  Since that time, the plaintiff has applied for four furniture sales jobs and would have returned to work in that area had he been given those jobs.[43]

[43]T12

88      Nothing came of any of these job applications which the plaintiff made after the unsuccessful demolition work.  He disclosed his injury in the application process and received no feedback.[44]

[44]T51

89      The disability organisation is presently helping the plaintiff with job applications.  While he has been looking for furniture sales jobs, he has an open mind to see if there is anything else he can do.  He knows that some furniture companies would require him to do storeman-type work. He could not do the manual side of a sales role, heavy lifting, or putting together furniture and displays in the showroom.[45]

[45]T52

90      The plaintiff wants to go back to full-time work and does not want to sit at home.  It is frustrating not interacting with other people, and his goal is to get back to work and hopefully find a company that will employ him with his disability.[46]

[46]T33

Consequences

91      As of mid-2018, the plaintiff was able to dress, wash and shower, and go to the toilet by himself, but with difficulty.  He often asked his girlfriend to help him put on his jeans and shoes and was also hesitant to take them off because the whole process was so painful.

92      The plaintiff tried to help with domestic tasks but struggled because of his left thumb and wrist pain.  He had difficulty tying his shoelaces.  He struggled to sweep, vacuum, wash dishes or prepare food, and struggled to easily lift a cup to his lips.  He relied on his partner’s help doing these tasks.

93      The plaintiff was then trying to use his right hand for more things, but because he was not used to doing so, he was often clumsy and fumbled things.  He tried to do as much as he could, but everything took a long time.

94      It troubled the plaintiff that he had so many problems undertaking basic activities around the house.  He struggled to even wash the dishes because of thumb pain.  He often dropped things or gripped onto them strangely to manage.  He felt that people thought he was lazy, but he struggled to even lift a plate properly.

95      Pre injury, the plaintiff’s hobbies were only disc jockeying and motor racing.[47]  He had a mobile set up and undertook disc jockeying for friends’ parties and barbecues.[48]  He was not paid for it.[49]

[47]T40

[48]T21

[49]T22

96      The plaintiff had not worked as a disc jockey since his injury, explaining there were different levels of disc jockeying. Post injury, he has been able to undertake some disc jockeying using his laptop and just his right index finger.  He could take that to a party and just plug it in.  He would have no chance of putting the equipment together now.[50]  He has not done old fashioned disc jockeying since he hurt his hand.[51]

[50]T22

[51]T23

97      Pre injury, the plaintiff also had a real passion for car racing.  As of June 2018, he found it too difficult to hold onto the steering wheel or change gears.  He had real difficulty even trying to drive an automatic and usually tried to hold the wheel with his right hand.

98      The plaintiff was also a member of the Surrey Hills Motors race team.  The team had an Alfa Romeo sports car which it raced.  His role included test driving the car and doing mechanical work on it using various tools.  He was a member of the race team for about ten years and met with the team about once a month before his injury.  He gave up the role after his left hand injury as it became too difficult and painful for him to drive the car and use the tools.  It makes him upset that he cannot do it anymore – it makes him feel useless.

99      The plaintiff was not really a member of an Alfa Romeo Car Club.  He never worked for Alfa Romeo Motors.  It was a hobby.  He tested racing cars but could not remember when he last did so, and agreed that it was many years ago.[52] He did not race a car himself.  In about 2016, when he last went to the workshop which his cousin owned, the plaintiff used to help out as much as he could, and he made coffee the last couple of times he was there.[53]  He denied he stopped going to the workshop because of his Bipolar Disorder.  It was because of physical issues.[54] 

[52]T39

[53]T41

[54]T42

100     Pre injury, the plaintiff also used to enjoy wiring stereo equipment into cars.  This was a task that used to take him a couple of hours, but would now take him days.  He still tried to do it, but the amount of time it took and the discomfort he felt when he tried to use his hands, meant he was reluctant to do it often.

101     The plaintiff had sleep difficulties because of his hand, particularly if he bumped it accidentally during his sleep.  To prevent this, he usually slept with his left hand jammed under the pillow under his head so it did not move.

102     The plaintiff continues to suffer from the consequences described in his earlier affidavit.

103     The plaintiff has been advised against performing repetitive duties or activities with his left hand and arm.  He finds it difficult to perform simple tasks such as cleaning at home, vacuuming, mopping, sweeping, activities which require constant application of force.  Holding objects with a firm grip is also difficult to perform.  He is currently not living with his partner, so day-to-day, he struggles even more.  She is currently in rehabilitation for alcohol use.

104     The plaintiff has difficulties performing repetitive activities at home such as using a knife to cut vegetables, using any tools which require a forceful grip, opening jars and a range of other activities.  He finds it difficult to tie his shoelaces as he finds it difficult to maintain a tight grip of his left fingers.  He can put clothes in the washing machine and on the clothesline.[55]

[55]T40

105     The plaintiff feels useless using tools.  Before his accident, he kept a toolbox in his car.  It travelled with him and he used the tools frequently.  After his injury, he gave the toolbox away.  On the odd occasion that he does use tools, he finds it difficult and it takes him much longer than it used to.  He becomes worried about pain and often drops the tools while using them when pain comes on suddenly.

106     The plaintiff has to be careful lifting anything heavy with his left hand.  He tries to avoid lifting heavy weights.  He is able to lift shopping bags and weights up to about 5 kilograms but has to be careful of lifting anything in excess of that weight.

107     The plaintiff has his good and bad days.  He often wakes up in the morning with a sore hand and thumb.  On most nights, he sleeps with his left hand in between the pillow and the mattress as he feels that his hand is properly protected in that position.  At times, he wakes up because of the pain at night.

Relationship issues

108     Since his injury, the plaintiff also had a significant increase in his level of anxiety and it caused a lot of stress in his relationship, which has in turn caused an escalation of tension between he and his partner.  In January 2017, six months after the plaintiff stopped work, his partner took out an intervention order which was granted for about a twelve-month period.  At that time, Dr Mahalingam prescribed a mood stabiliser, Olanzapine, for the plaintiff.[56]

[56]T19

109     During the twelve-month order, the plaintiff continued to have contact with his partner as she continued to ring him.  He was then accused of breaching the order and was given a community-based order.  The plaintiff and his partner lived together after the expiration of the intervention order, but recently she moved to alcohol rehabilitation.

110     The plaintiff had to go to court in August 2017 for breaching the intervention order.  He has lived with his girlfriend since then.  She is presently receiving a Newstart allowance.[57]

[57]T35

111     The plaintiff moved house four or five times since that relationship broke down.[58]  He obtained help with moving.[59]

[58]T24

[59]T25

112     The plaintiff and his girlfriend live in a freestanding home in Caulfield South.  He can take the rubbish out.  They have a gardener.  The plaintiff does not really do anything, but he can push a broom.[60]  He tries this and tests that, but when the pain cuts in he stops.  He tries to do things every day.[61]  He tries to do whatever he can with his left hand but does not if the pain is too uncomfortable, and he has to stop.[62]

[60]T35

[61]T36

[62]T36

113     The plaintiff lost his licence in January last year.  He had problems driving before then and had to stop driving manual cars and be very careful on the way he would drive.  His partner drove mostly.[63]

[63]T29

Other medical issues

114     The plaintiff confirmed various attendances at the Emergency Department at Dandenong Hospital for a right little finger injury, an injury to his right eye, left shoulder pain and a problem with his ribs/chest in November 2017.[64]

[64]T47

115     When asked about an attendance at Monash Medical Centre at the end of December 2016 “admits to smoking ice one to two kilograms a day ... denied recent heroin …”, the plaintiff agreed that maybe he had had a relapse of his drug problems but he was not doing it all the time.[65]

[65]T50

116     The plaintiff was given Endone at Emergency at Box Hill Hospital on 20 November 2017 after hurting his ribs/chest play boxing.[66]  The play boxing was with friends for only ten minutes.[67]

[66]T48

[67]T50

The Plaintiff’s medical evidence 

117     Dr Harindran, the plaintiff’s general practitioner, provided one brief report dated 1 May 2019.

118     When Dr Harindran saw the plaintiff on 10 June 2016, the plaintiff told her he was on WorkCover for RSI of the left hand.  He was attending Sonic Health for WorkCover certificates.  She had given him painkillers, as he was complaining of ongoing left thumb and left wrist pain.

119     Dr Harindran noted the plaintiff complained of left wrist pain as a consequence of his left thumb injury.  She thought he may become dependent on pain medication, as his left wrist pain was ongoing and she considered the prognosis of the left wrist pain was unclear.

120     Diana Francis, hand therapist, reported in September 2018.

121     When seen on 13 May 2016, the plaintiff advised he had issues with his left thumb, index and middle fingers, with the gradual onset on pain over the last two months caused by his work duties.

122     On initial assessment, there was pain with resisted action of the extensor pollicis brevis muscle and to the lesser extent in the extensor pollicis longus muscle.  Finkelstein’s test was positive and both these assessments led her to make a diagnosis of De Quervain’s tenosynovitis.  The plaintiff also had very tight forearm extensor muscles and presented as being stressed about his work duties and hand condition.

123     Ms Francis thought the plaintiff’s condition was work related. She noted the consequences of the injury appeared to be of great concern to the plaintiff, in that he expressed, regularly, he was concerned about losing his employment and the associated stress of this.

124     The plaintiff was last reviewed on 2 November 2016.

125     Ms Francis advised if the plaintiff still has ongoing pain in his hand and thumb, and the reduced function he displayed during consultation, she believed he would still be unfit for pre-injury employment.  Any future employment would not be able to include use of his left hand, except for light supportive tasks on an intermittent basis only.

126     Ms Francis believed the plaintiff was unlikely to be able to use his left hand for moderate to heavy tasks and was likely to have ongoing pain into the foreseeable future.  She had not seen him since the surgery.

127     Dr Li last reported on 24 July 2018.  She first saw the plaintiff on 11 May 2016 on referral from Dr Harindran for work injury management. 

128     Dr Li initially referred the plaintiff to a hand therapist for treatment and a splint to help with his symptoms and certified him unfit to drive, allowed a splint to the left hand as per the hand therapist, and no lifting of more than 5 kilograms.

129     A subsequent ultrasound showed synovitis of the left thumb CMC joint and mild de Quervain’s tenosynovitis, which was treated by ultrasound injection on 17 June 2016.

130     Dr Li noted there was a case conference on 13 July 2016, when the plaintiff reported feeling bullied at work and stressed.  He was then very tender in the left thumb, there was a positive Finkelstein test (positive for De Quervain’s tenosynovitis).  Also low mood and affect, and frustration were noted, the plaintiff already having been referred to a psychiatrist, with a previous diagnosis of Bipolar Disorder.  It was noted he had been depressed for two months.

131     Dr Li referred the plaintiff to Mr Tham, hand surgeon, and suggested a further MRI scan.  There were subsequent reviews on 21 and 28 July and 17 August 2016, during which time the plaintiff’s depressive symptoms continued.

132     The MRI scan of 22 July 2016 showed severe De Quervain’s tenosynovitis, synovitis of the first CMC and degenerative changes.  A second injection was performed on 22 August 2016 and the plaintiff was feeling more positive, and his symptoms improved thereafter when seen on 21 September 2016.

133     The plaintiff was then deemed suitable for light duties, minimal left thumb movement, allow splint to the left hand, no lifting of more than 5 kilograms with both hands.  Dr Li suggested a meeting with the employer before a return to work.

134     The plaintiff met with the employer for proposed cleaning duties, three hours a week.  On 12 October 2016, the plaintiff reported he was coping with his cleaning duties.  Referral was suggested to Mr Tham, who the plaintiff saw on 26 October 2016.  Meanwhile, the plaintiff was managed with conservative hand therapy and Targin, and to continue with light duties.

135     Following review on 19 December 2016, Mr Tham suggested surgery.  As at 2 February 2017, the plaintiff’s employer had not offered him any duties.  The surgery was undertaken on 21 February 2017.

136     Dr Li saw the plaintiff for regular review on 15 and 29 March and 5 and 26 April 2017.  The surgical wound infection was treated and completely healed and, clinically, left thumb movement had improved.  Targin was weaned off.  As of 24 May 2017, despite mild tenderness, the plaintiff had good left thumb range of movement with grip strength left of 42 kilograms and 44 kilograms on the right, and Dr Li recommended a trial of pre-injury duties.

137     On 7 June 2017, the plaintiff, clinically, had no tenderness, full left thumb range of movement, and had a capacity for a trial of full pre-injury duties, but he had not been offered any duties and was seeking a new job.

138     On 30 August 2017, there was a case conference, where Nabenet agreed to look for a new employer.

139     On review on 18 October 2017, due to the plaintiff’s persistent left thumb pain, Dr Li also referred the plaintiff to Dr Tim Bennett, consultant rheumatologist and specialist physician, for an opinion.

140     Dr Li last saw the plaintiff on 17 January 2018, when he told her his general practitioner had prescribed Tramadol for his left thumb pain.  Clinically, the plaintiff had slightly restricted thumb flexion due to pain.

141     Dr Li noted Dr Bennett’s letter of 31 January 2018 in which he advised that the plaintiff’s symptoms were consistent with degenerative process and that, unfortunately, the plaintiff may be left with a degree of chronic pain, despite adequate medical surgery and allied health intervention.  Dr Bennett recommended a trial of oral non-steroidal anti-inflammatories and no further injections.

142     Dr Li diagnosed left thumb de Quervain’s tenosynovitis, synovitis of the CMC joint and rupture of the ulnar collateral ligament of MP of the left thumb.

143     Dr Li thought the plaintiff’s main symptom was left thumb pain, consistent with degenerative process.  The condition was chronic.  According to specialist rheumatologist, Dr Bennett, a degree of chronic pain was expected.  Therefore, the plaintiff’s symptom – pain – was likely to persist into the future; however, based on the described symptoms and the effect on his activities, Dr Li thought the plaintiff would benefit from a pain specialist review and it may help him manage in his chronic pain.

144     Bernadette Kelly, hand therapist, first saw the plaintiff on 7 March 2017, post-surgery. 

145     The plaintiff was seen over four months to assist with recovery and rehabilitation and this situation was complicated by difficulty with his mental health and difficult social situation, and non-attendances a number of times in July 2017.

146     On examination on 14 September 2018, the plaintiff was limited in the range of movement of all joints of the left thumb. 

147     There was a significant reduction in grip strength of the left hand in all measures as compared to the right, with power grip on the left to 39 kilograms, compared to 51 kilograms on the right.  Pinch grip strength was affected, with a measurement of 2.5 kilograms in the left as compared to 7.5 in the right thumb. 

148     The plaintiff had reasonable sensation in his left thumb but had reduced sensation in the left little finger, which was injured in the period following the surgery.  Sensation in the left thumb was reduced in comparison to the right, but was within normal range.

149     The plaintiff recorded a current level of 4 out of 10 for pain during assessment, 3 out of 10 was the best level over the past twenty-four hours, and 6 out of 10 the worst.   He scored an average of 4 out of 10 for pain, putting him into the moderate level.

150     Ms Kelly noted the plaintiff had moderate difficulty with daily living activities, as reflected in his self-report questionnaires.  The RAND Health Survey indicated that he was in a moderate to poor health state across many health concepts.

151     On presentation to hand therapy, the diagnosis was related to a rupture of the ulnar collateral ligament of the left thumb MCP joint repaired surgically.  The situation was complicated post-operatively by a laceration to the left little finger.

152     The ruptured ulnar collateral ligament injury was confirmed surgically and required repair.  The plaintiff has had ongoing left thumb pain despite surgery.  He had had some complications with his post-operative recovery which may have impacted on his prognosis.

153     On assessment, there was reduced range of motion in the left as compared to the right thumb. There was also a significant reduction of grip strength in all ranges as compared to the opposite hand. The plaintiff reported moderate difficulty with activities of daily living.  He scored at a moderate level for pain which impacted on his ability to use his left hand.  Otherwise, he was in moderate to poor health across many health concepts. 

154     The plaintiff reported he would prefer to find employment in sales.   He was keen to find a job where it was non-repetitive and did not require any heavy lifting.  He reported he was happy to use his fingers on the left hand, but preferred to avoid using his thumb.

155     Ms Kelly thought the plaintiff would have the physical capacity to work in a sales-type role where no heavy lifting or repetitive lifting was required.  Based on the period since the surgery and injury, it was likely the plaintiff would have ongoing pain in his left hand.  Physically, he was likely to have ongoing discomfort with the use of his left hand.

156     Dr Tim Bennett, consultant rheumatologist and specialist physician, saw the plaintiff on referral from Dr Li on 31 January 2018.

157     The plaintiff’s current problems were left thumb pain, hypertension and BPAD. He denied any features consistent with inflammatory arthritis.  He had had no morning pain and stiffness, no swelling, and no joint symptoms beyond the thumb.

158     The plaintiff advised, post-surgery, he had continued to have marked mechanical pain. 

159     On examination, the left hand revealed tenderness, with grind test positively at the first CMC joint.  The plaintiff had tenderness without synovitis at the left thumb MCP joint, with positive Finkelstein’s test.  The remainder of the MCP joints were normal and there was no wrist tenderness.

160     Dr Bennett thought the plaintiff’s symptoms were consistent with degenerative process, but there were no features on history or examination to suggest an inflammatory cause.  He recommended a further trial of non-steroidal anti-inflammatories in the form of Celebrex and a proton pump inhibitor for gastric protection.  He did not arrange further corticosteroid injections, as the plaintiff had not received any benefit from those previously.

161     Dr Bennett advised, unfortunately, the plaintiff may be left with a degree of chronic pain despite adequate medical, surgical and allied health intervention.

162     As at 31 January 2018, the plaintiff’s current medications were:

·        Celebrex capsules – 100-milligram – one tablet

·        Exforge 10/160 tablets – 10-160-milligram tablet – one tablet

·        Olanzapine – 10-milligram orally disintegrating tablets – one tablet

·        Pantoprazole AN tablets – 40-milligram tablets – one tablet

·        Tramadol/amneal capsules – 50-milligram capsules – one tablet.

163     In a medico-legal report dated 20 February 2019, Dr Bennett diagnosed de Quervain’s tenosynovitis, left thumb MCP joint instability, left thumb ulnar collateral injury plus repair.

164     Dr Bennett thought the plaintiff’s work was a significant contributing factor to his left thumb pain and resultant dysfunction, having had no left thumb pain prior to commencing work with the employer.

165     Dr Bennett considered the plaintiff had a reduction in left hand function due to pain.  Radiological and surgical findings had confirmed the organic basis of his injury.

166     When seen, the plaintiff had continuous mechanical pain in the left thumb despite analgesia and anti-inflammatories, steroid injections, surgery and hand therapy.  The pain had resulted in dysfunction and reduced ability to undertake his paid work.  Some domestic activities were painful and difficult to undertake due to the left thumb injury, and the plaintiff’s overall quality of life had been reduced. 

167     Dr Bennett considered the effects arising from the plaintiff’s left thumb injury and secondary consequences were predominantly as a result of an organic left thumb injury.

168     Having seen Mr Robbins’ report, where he believed the work effects had now ceased, Dr Bennett confirmed his initial assessment was that the pain and dysfunction the plaintiff experienced in his thumb and hand was directly attributable to his work.  Despite the fact he had undertaken surgery and therapy, the plaintiff was still experiencing pain when seen.

169     If the nature and severity of the pain today is exactly the same as when he saw the plaintiff (31 January 2018), Dr Bennett thought it would be reasonable to assume the effect or result of the workplace injury continued, despite the cessation of the initial precipitator.

Investigations

170     There was an MRI scan of the left thumb MCP joint on 19 February 2016.

171     It was reported there was mild thinning of the ulnar collateral ligament of the first MCP joint, but the ligament was intact.  The small geode was demonstrated deep to the metacarpal origin of the ulnar collateral ligament.  There was minor volar subluxation of the proximal phalanx in relation to the metacarpal head.

172     There was an x-ray of the left thumb on 15 August 2016.  It was reported there was no fracture focal osseous or soft tissue abnormality.  There was very mild degenerative change, CPC joint with joint space narrowing, and small osteophytes.  MCP and IP joints were unremarkable.

173     There was an ultrasound of the right wrist on 16 June 2016.  There was joint effusion with synovitis at the first CMP joint – presumably representing an underlying degenerative change – a 23-millimetre complex cystic lesion – most likely representing a large ganglion cyst arising from the joint rather than the tendon sheath – and mild De Quervain’s tenosynovitis.

174     A nerve conduction study carried out in May 2016 was normal.

Psychiatric

175     Dr Mahalingam, psychiatrist, reported in April 2019, having seen the plaintiff between 27 July 2016 and 6 December 2017.

176     Dr Mahalingam diagnosed Bipolar Disorder Hypomanic State, and the plaintiff was commenced on Epilim.  His mood improved, but he was having difficulties with his ex-girlfriend and daughter.

177     When seen on 21 October 2016, the plaintiff was working three hours a week, only mopping the floors, and stated his boss was accusing him of falsifying every complaint and also not paying him on time.

178     When reviewed on 19 November 2017, the plaintiff said his girlfriend had taken out an intervention order and he appeared elated in his mood.  Olanzapine, 10 milligrams, was added to Epilim to stabilise his mood. 

179     When last seen on 6 December 2017, the plaintiff was taking another mood stabiliser as he could not tolerate the side effects of Epilim, and he was less agitated in his mood.

180     In terms of premorbid personality, Dr Mahalingam noted the plaintiff had been a heroin user, stopped in his late twenties, was a gambler, stopped thirteen years ago, had few friends, smoked ten to fifteen cigarettes a day, and his hobby was music.

181     Dr Mahalingam noted the plaintiff had a Bipolar Disorder which started long before his left hand injury, but the injury had led to a loss of job and a loss of income which exacerbated his condition.

182     Dr Mahalingam diagnosed Bipolar Disorder Type 1 and Chronic Pain Disorder. He thought the plaintiff had progressed well with regard to his Bipolar Disorder, but the Chronic Pain Disorder prevented him from obtaining manual work.

183     Dr Peter Fanning, psychologist, reported in May 2019.  The plaintiff first presented to him under a mental healthcare plan for Medicare on referral from Dr Harindran in February 2018.

184     Dr Fanning saw the plaintiff for nine sessions of therapy between 12 February and 5 December 2018.  These sessions were devoted to symptom assessment, diagnosis, confirmation of history, socialisation to treatment, psychological therapy, cognitive therapy and treatment planning.

185     On initial presentation, the plaintiff was in a distressed state and emotionally labile, and had difficulty with concentration.

186     Progress and attainment of the plaintiff’s primary goals of abstinence and a return to the workforce had been mixed.  While he reported remaining free from illicit drugs over therapy, and this was evident in a significant improvement in his mental state, the plaintiff remained frustrated by a lack of progress finding work.  Attainment of this important milestone had been complicated by the plaintiff’s physical limitations, the exact nature of which were beyond the scope of the psychological assessment.

187     Intervention included supportive counselling, strategies for managing abstinence, psychoeducation related to emotional regulation, anxiety management, relationship conflict management and structured problem-solving skills.  Cognitive behaviour therapy was the primary treatment modality.

188     The plaintiff reported an improved understanding of emotional regulation, a renewed sense of purpose and a direction in his life.  Dr Fanning confirmed the diagnosis of Bipolar Disorder.

189     In answer to a question from the plaintiff’s solicitors, Dr Fanning explained, drawing a specific nexus between the plaintiff’s anxiety symptoms and his injury was complicated by a range of biopsychosocial stressors the plaintiff faced at the time of treatment.  Dr Fanning thought it likely that the combination of all the stressors contributed to the plaintiff’s very distressed mental state on initial presentation, one of which was his inability to work due to his wrist injury.

190     Dr Fanning thought the plaintiff’s prognosis was substantially dependent on the progress and goal attainment, specifically a return to work.  The plaintiff was at risk of a relapse in his symptoms, should his ability to regain employment be impeded substantially by his physical limitations.

The Plaintiff’s medico-legal evidence 

191     The plaintiff saw Dr Joseph Slesenger, specialist occupational physician, on 24 January 2018.

192     The plaintiff then advised he had ongoing pain in the base of the left thumb, with restricted range of movement.  He had difficulty gripping, turning, pushing and pulling with force.  He had difficulty with fine dextrous tasks such as tying knots and turning keys.  In particular, he had difficulty with simple key grip and pinch grip.  He advised he now tried to avoid using his left thumb and index finger and was generally more reliant on the right side.

193     The plaintiff advised, prior to the incident, he had Bipolar Disorder.  As a result of the incident, his mood generally deteriorated, anxiety became more pronounced, and he had difficulty concentrating and also difficulty with decision-making and sleeping. 

194     At that stage, the plaintiff was taking Olanzapine and Tramadol, 200 milligrams, and in the past had had Targin.

195     On examination, Finkelstein’s test was weak and positive.  There was tenderness around the left MCP joint.  There were no osteoarthritic change in either hand.  The plaintiff was able to approximate his thumb to the base of the little finger.

196     The plaintiff described residual pain and dysfunction in the base of the left hand and thumb in general.  He was then awaiting further assessment by Mr Bennett.  In addition to physical symptoms, he also advised of an aggravation of pre-existing psychiatric impairment as a result of the incident.

197     Dr Slesenger diagnosed left De Quervain’s tenosynovitis, aggravation of degenerative disease of the first MCP joint and left collateral ligament tear, for which the plaintiff had undergone surgery. He also found a psychiatric impairment.

198     Dr Slesenger was satisfied the occupational exposures were a plausible cause of the plaintiff’s impairment.  He was satisfied there was a physical basis for that impairment and that was related to workplace exposures.

199     Dr Slesenger advised the plaintiff against returning to work performing pre-injury duties, noting the manual handling and postural requirements.

200     With regard to alternative duties, Dr Slesenger noted the plaintiff’s past occupational experience, his current symptoms and functional limitations, and his dexterity.

201     Dr Slesenger thought the plaintiff retained capacity for work, with restrictions, namely avoid repetitive left wrist and hand work, avoid firm gripping, pushing and pulling, avoid prolonged typing and work four hours per day, four days per week.

202     Dr Slesenger recommended the plaintiff remain under the care of a hand therapist and continue with self-managed exercise and remain under the care of his general practitioner.  He thought he may require support for his mental health impairment.

203     Dr Slesenger recommended the plaintiff see a pain specialist to address his current pain management and adaption to any residual impairment and disability.

204     Despite the plaintiff’s limited response to treatment, Dr Slesenger remained optimistic he would see some improvement in his overall presentation with appropriate treatment, and some overall improvement in his residual occupational, recreational and domestic activity; however, it was then difficult to quantify the plaintiff’s residual functional tolerances.

205     Dr Slesenger had considered a functional element to the plaintiff’s symptoms and did not identify any adverse clinical finding.  In particular, there was no improvement in the range of movements upon distraction, and no evidence of manual activities being performed.  While he noticed there was a psychological impairment, he thought that this was a separate issue to the plaintiff’s physical impairment.

206     Dr Slesenger was subsequently provided with Mr Bennett’s report and the plaintiff’s affidavit of 10 July 2018.

207     Dr Slesenger noted the history to Mr Bennett and the affidavit was broadly similar to that given to him. He confirmed the diagnosis and noted the restrictions outlined in the affidavit were consistent with the history presented to him and the clinical examination findings.

208     Dr Slesenger confirmed that he now recommended the plaintiff be referred to a pain specialist.  He anticipated some improvement in the plaintiff’s domestic capacity and anticipated that he would be encouraged to engage in recreational pursuits. 

209     Dr Slesenger confirmed his view as to the plaintiff’s restricted employment capacity.  He noted the pain management program was likely to improve the plaintiff’s exercise tolerance through pacing of activity; however, he did not anticipate a significant improvement in the plaintiff’s overall occupational functional capacity given the lack of surgical options open.  He considered the restrictions he suggested were likely to continue into the foreseeable future.

210     The plaintiff was seen by Mr John Crock, plastic and reconstructive surgeon, in March 2018.

211     On examination, the plaintiff had a full range of movement of his shoulders, elbows, wrists and fingers in both hands, and both hands were symmetrical.

212     The plaintiff had a grip strength of 40 kilograms on three successive passes of the dynamometer on both hands.  X-ray using an OrthoScan fluoroscopy in the office showed he had laxity of the left ulnar collateral ligament and the joint subluxed over 30 degrees on stressing it under the FluoroScan and this produced pain.  He also had subluxation of the basal joint of the left thumb, with what looked like an Eaton Grade 1-2 osteoarthritis of the basal joint.  He had no tenderness over the first dorsal compartment of his left wrist.

213     Based on the clinical history, examination and special investigation (stress test under fluoroscopy performed in the room as a dynamic study), the plaintiff had instability of the ulnar collateral ligament of his left thumb with joint subluxation under stress.  He also had subluxed basal joint on the left side, with early basal joint arthritis.

214     Mr Crock thought these conditions were consistent with heavy manual labour, particularly of a repetitive nature, performed by a gentleman of the plaintiff’s age.  He noted the plaintiff had ongoing pain in the left thumb and left basal joint, particularly related to work and lifting heavy objects.

215     Mr Crock thought the plaintiff was unfit for his pre-injury employment and his inability to do his pre-injury duties was due to the degeneration of the ulnar collateral ligament and the basal joint, with subsequent basal joint arthritis.  This was a degenerative condition, made worse by heavy manual work.

216     Mr Crock thought the plaintiff is currently fit for alternative duties, which do not require heavy manual labour or the use of the left thumb.

217     Based on the dynamic fluoroscopy performed that day, Mr Crock considered the plaintiff’s left thumb is still unstable and causing him some pain, but more importantly, he has a subluxed and painful basal joint on the left side, indicating that basal joint arthroplasty (reconstruction) would probably benefit his condition.  If laxity of the ulnar collateral ligament on the left thumb remains a problem, either a joint fusion or ligament reconstruction was an alternate form of therapy, which may be of use.

218     With treatment, Mr Crock thought the prognosis was good.

219     Mr Crock noted the plaintiff demonstrated signs and symptoms consistent with a degenerative condition, common in his age group, and aggravated by work.  With medical treatment and common sense, he thought the plaintiff should be able to be rehabilitated into the workforce in a meaningful way.  He still probably had at least ten to fifteen years of useful working life where he could contribute to the society, and Mr Crock thought it worth pursuing that, particularly with the plaintiff’s psychiatric history, and to get him back to work would be good for all parties.

220 Mr Crock had to differ from Mr Robbins’ opinion. While the plaintiff’s condition certainly was degenerative, it had, according to the Act, been exacerbated by work, and as such fell under a compensable situation. In addition, regeneration of this OA is not documented, and to say it is no longer being exacerbated is an oxymoron.

221     Mr Crock thought the plaintiff’s ulnar collateral ligament injuries seem to have been expertly and appropriately treated by Mr Tham, but the osteoarthritis of his basal joint was the genesis of his current set of symptoms.  With surgical intervention, this could be treated very successfully and enable the plaintiff to return to the workforce.  As such, he should be afforded the opportunity to return to Mr Tham for re-assessment and consideration for a basal joint arthroplasty, noting Mr Tham is a world leader in the field.

222     Dr Richard Sullivan, pain specialist, examined the plaintiff in February 2019.

223     The plaintiff then reported he experienced pain largely at the base of his thumb, but it could extend into the lateral aspect of the left wrist and down the thumb towards the distal phalanx.  Pain was exacerbated by activities that required utilisation of the wrist, joint or thumb itself.  He had a carrying capacity of 5 kilograms and he had limited functional dexterity.

224     Dr Sullivan was aware the plaintiff had been diagnosed with Bipolar Disorder and the medication prescribed in relation thereto.

225     On examination, the plaintiff had an acceptable range of movement throughout the hand and wrist; however, abduction and flexion of the thumb against resistance exacerbated pain at the base of the thumb.  Extension was better tolerated.  Adduction was also uncomfortable.  Grip strength on the left was noticeably weaker than the right.  There was reported sensory attenuation to brush and pinprick over the left thumb and lateral aspect of the second digit, which would be consistent with the median nerve distribution.  There was no wasting.

226     Dr Sullivan thought the plaintiff has a chronic pain condition, that had persisted post surgery, affecting his left thumb that arose in the context of his work duties.

227     Dr Sullivan considered the plaintiff’s work duties and the heavy manual repetitive nature was the likely antecedent event that had produced his diagnosis and the indication for surgery, and in spite of those treatments, his chronic pain condition had persisted and he had substantial functional limitations subject to his chronic pain condition.

228     The MCP collateral ligament injury symptoms had persisted in spite of surgery.  The plaintiff’s sleep was adversely affected and the mobility of his left thumb was impaired, affecting his capacity for self-care and management.

229     Also in the context of any sporting activity or recreational activity requiring repetitive or ongoing use of the upper limb, the plaintiff would likely have impairment which will be ongoing into the foreseeable future and would affect his enjoyment of life into the foreseeable future.

230     Dr Sullivan believed the plaintiff had an organic condition affecting his left thumb that had resulted from his work, and that that injury was independent of any mental or behavioural disturbance, and that the functional limitation is consequent to that injury, and the chronic pain condition ensuing will continue into the foreseeable future.

231     Dr Sullivan thought Mr Robbins’ assessment was incorrect.  There was no indication in the history or available information to suggest the collateral ligament injury or the left thumb pain occurred spontaneously.  All evidence pointed to this injury and the ensuing pain as having occurred due to the nature of the plaintiff’s work.

232     Dr Sullivan believed the plaintiff’s initial injuries arose in the context of his work as a truck driver and general labourer.  He believed his chronic pain condition was a consequence of this work-related injury.  Furthermore, that this condition and associated functional limitations will continue into the foreseeable future.

The Defendant’s medico-legal evidence

233     The defendant relied on a report from the plaintiff’s treating orthopaedic surgeon, Mr Stephen Tham, to the plaintiff’s lawyers dated 15 March 2018.

234     Mr Tham advised that the plaintiff presented with pain at the MCA joint of his left thumb, which had been present since March 2016 without any known cause, when he saw the plaintiff on 15 August 2016.

235     Because of the plaintiff’s ongoing symptoms, repair of the ulnar collateral ligament was performed on 21 February 2017.  Post-operatively, the plaintiff was reviewed at two weeks and further splinted for four weeks before commencing hand therapy treatment.

236     When Mr Tham last saw the plaintiff on 23 May 2017, the plaintiff stated he had regained 90 per cent use of his left thumb, with minimal discomfort.  Clinically, there was minor laxity of the ulnar collateral ligament, and the plaintiff had been discharged from Mr Tham’s care.

237     Mr Tham noted the plaintiff did not volunteer any cause for his thumb symptoms.  There was no traumatic cause.  It was said to have occurred gradually, with worsening of his symptoms.

238     Mr Tham diagnosed early arthritis of the left basal thumb joint with rupture of the ulnar collateral ligament of the left thumb MCA joint.

239     Mr Tham then thought the plaintiff was capable of returning to normal duties as a truck driver.  He noted there was evidence of early arthritis at the TMC joint which may require further treatment.  There was no arthritis at the MCP joint.  Mr Tham did not anticipate recurrence of instability of the MCP joint unless there was a repeat injury.

240     Dr Umberto Boffa, consultant occupational and environmental physician, examined the plaintiff on 15 June 2016.

241     The plaintiff reported he first noted pain in the base of his left thumb in early March 2016 with repetitive lifting and carrying, and driving the truck.

242     The plaintiff advised he was certified unfit for a few days in early May 2016 and returned to modified pre-injury duties and reduced hours on 10 May 2016.  He was restricted from lifting or carrying more than 5 kilograms.  He drove a light utility vehicle, with no loading or unloading, and helped to clean the depot.

243     During that time, the plaintiff worked half days, 7.00am to 11.00am, on Monday, Wednesday and Thursday.  Left wrist pain worsened, particularly with sweeping duties, and he again ceased work on 18 May 2016.

244     On examination, the plaintiff complained of constant left thumb base pain and tingling, that has only improved while away from work.  He was woken by left wrist pain at night.

245     In terms of social history, Dr Boffa noted the plaintiff was a non-professional disc jockey and had continued this pastime since his injury.

246     On examination, the plaintiff wore a cloth sleeve and immobilising left wrist splint. There was tenderness along the abductor pollicis longus and extensor pollicis brevis tendons in the distal forearm, extending into the dorsal first compartment of the radial styloid process.  The first CMC joint was hypertrophied, consistent with arthritis but not tender.

247     Dr Boffa concluded the plaintiff had left De Quervain’s tenosynovitis caused by manual handling in the course of his duties.  He then thought the plaintiff had a current work capacity, but not for pre-injury duties and hours, and would require definitive treatment before a successful return to work.  He recommended an ultrasound-guided tendon sheath corticosteroid injection.

248     On re-examination in September 2016, examination findings were similar to the earlier examination.  A Finkelstein test was positive. In addition to De Quervain’s tenosynovitis, on this occasion, Dr Boffa diagnosed first CMC arthritis.

249     At that stage, the plaintiff was restricted from lifting or carrying more than 5 kilograms.  He drove a light utility vehicle and helped clean the depot.  Helping in the office, sorting paper, exacerbated wrist pain.  He was working half days for four hours, Monday, Wednesday and Thursday.

250     The plaintiff was not then working, last having worked on 25 July 2016.[68]  Dr Boffa thought the plaintiff had a current work capacity and a worksite visit would identify suitable modified pre-injury and alternate duties.

[68]Returned to work 7 July 2016 but ceased again 11 July 2016

251     There was a further examination in March 2017, Dr Boffa having carried out a worksite assessment on 7 September 2016.

252     On re-examination, the plaintiff then reported improvement in left wrist and thumb symptoms. There was now mild tenderness only, and there was non-tender first CMC arthritis.

253     At that stage, the plaintiff was four weeks post tendon release for De Quervain’s tenosynovitis.[69]  Dr Boffa thought the plaintiff would recover within ten to twelve weeks and the compensable injury had not resolved.  The plaintiff was not then fit for pre-injury duties and hours, but was fit for a graduated return to duties that avoided repetitive gripping, pushing, pulling, lifting and carrying more than 3 kilograms in his left hand.

[69]Mr Tham carried out a repair of the ulnar collateral ligament in February 2017

254     Mr John Buntine, consultant plastic surgeon, examined the plaintiff in July 2017.

255     The plaintiff then said he had pain affecting the dorsum of his left thumb and the adjacent radial side of his left wrist, which was present most of the time, but not continuous.  He said he had only taken five Endone and, for a time, Targin, but that he was not presently taking any significant medication.

256     The plaintiff advised he avoided using his left thumb because it hurt, and any grip which involved the left thumb was weak.

257     The plaintiff said he was depressed, anxious and angry because a number of people, including doctors and his recent employer, did not believe he was in pain.

258     On examination, Mr Buntine observed none of the features of CRPS.  Objective examination of the palm of the left hand, apart from some firm non-tender swelling in the region of the surgical repair, otherwise revealed no abnormality. There was a slight limitation of flexion and opposition of the left thumb, consistent with the plaintiff’s complaint of feeling dorsal tightness.

259     Mr Buntine did not consider Finkelstein’s test on the left to be truly positive, and he detected no crepitus of the type which is diagnostic of De Quervain’s.  Grip with the left hand measured 50 kilograms, compared to 55 kilograms with the right.  The plaintiff advised that although he wrote with his right hand, he used to perform many tasks requiring strength in a left handed manner.  Pinch with both thumbs was of equal strength, but the plaintiff said pinching strongly on the left side hurt.

260     Mr Buntine believed the plaintiff suffered a soft tissue injury due to strenuous use of his left thumb and hand at work over two months; however, he found no evidence of any significant persisting condition of physical cause at the time of the examination.  He considered the plaintiff’s complaints concerning his hand and his behaviour were consistent with a genuine moderately severe psychological-psychiatric condition outside his specialist qualification.

261     As far as Mr Buntine could determine, the soft tissue injury had already resolved completely and he doubted employment still materially affected the plaintiff’s physical condition, although the plaintiff seemed to be genuinely upset by his perception of the way he had been treated by the employer.

262     Mr Buntine had not identified a persisting compensable condition of physical cause which was responsible for an incapacity for work.  He noted the plaintiff had previously suffered from an abnormal psychological-psychiatric condition which it seemed was now troubling him again.

263     In these circumstances, in the absence of a significant diagnosed condition of physical cause related to his work, Mr Buntine believed the plaintiff should be able to undertake a variety of types of work, but his mental state would presently prevent him from working.

264     Mr Buntine thought, with respect to the physical condition of the left hand, only symptomatic treatment was currently appropriate and noted the drugs prescribed by psychiatrists could help appreciably.  His non-specialist opinion was that psychosocial factors and relationship problems at work were affecting the plaintiff’s recovery, and issues of the plaintiff’s work capacity would be better answered by a psychiatrist.

265     The plaintiff completed a questionnaire when he saw Mr Buntine on 20 July 2017.  When asked what work he had previously done, listing the most recent and approximate dates, the plaintiff answered “kittens, disc jockey, Surrey Hills Motors, Alpha Romeo, hand model”.

266     The plaintiff listed his hobbies and recreational activities prior to his injury as disc jockey and race car driving.  He listed mental conditions under “any other health problems” and, in terms of any current medications including painkillers, he wrote “heroin and cocaine!” and described his general practitioner as “Mr Dick”.

267     Dr Roy Karna, rheumatologist, examined the plaintiff in April 2018.  The plaintiff was then taking Tramal, 200 milligram tablets, ten a week; Exforge for hypertension, and Olanzapine for Bipolar Disorder.

268     The plaintiff advised, post-operatively, he had gained a significant improvement of the left thumb and it was less painful than it was prior to surgery; however, because of pain, he had trouble grasping things – for example his phone and a coffee cup, he could not wash dishes, but he could attend to aspects of personal hygiene unaided.  He was not seeking medical attention currently.

269     On examination, using a goniometer, there was a full range of motion of the left thumb DIP, MP and CMC joints.  Finkelstein’s test was negative, and there was no distinctive sensory loss, or features of autonomic dysfunction noted.  Grip strength was collapsing, as was key pincer grip.  Suffice it to say there was a normal keratinisation pattern and preservation of small muscles in each hand.

270     Dr Karna noted the plaintiff presented with symptoms, but no physical findings pertaining to a left thumb injury.  He would suggest, therefore, that the plaintiff had a resolved soft tissue injury to the left thumb with persisting symptoms, with no physical findings to suggest dysfunction.  On that basis, further noting the plaintiff had a full range of left thumb motion, no evidence of neurological impairment or autonomic dysfunction, and no pathological swelling in the left hand or thumb, Dr Karna he believed he had a zero per cent whole person impairment.

271     Mr Thomas Robbins, hand, plastic and reconstructive surgeon, examined the plaintiff in April 2019.

272     When asked which hand was dominant, the plaintiff said he wrote with his right, but he used his left for everything else since he sustained a fracture to his right hand twenty years ago.

273     The plaintiff then complained of pain over the MCP joint of his left thumb, particularly when he pushed down with it, and pain on certain usage of the thumb.

274     The plaintiff said, at present, he was looking for a suitable job and said he could do truck driving, but complained of pain which interfered with his hobby of fitting car sound systems, and he said he cannot drive a manual car.

275     On examination, the plaintiff was wearing a splint on his thumb.  The MCP joint of the thumb was found to be reasonably stable, but the plaintiff complained of pain and tenderness, mainly on the ulnar side of the joint, but also on the radial side.

276     Mr Robbins noted the MRI scan of 19 December 2016, which indicated a small cavity deep to the MCP ligament of the MCP joint, and also some of the volar subluxation of the proximal phalanx in relation to the metacarpal head.

277     Mr Robbins found tenderness over the left MCP joint of the thumb, plus radiological evidence of pathology.  He thought the plaintiff has degenerative changes which were initially spontaneous and not work related.  He noted the plaintiff was still complaining of pain, and therefore the condition has not resolved.

278     Mr Robbins thought the condition will persist and that the plaintiff would be best treated with an arthrodesis of the MCP joint of the thumb.  That procedure would reduce the excursion of the MCP joint of the thumb, but minimally restrict the excursion of the plaintiff’s thumb, and it should relieve his pain and tenderness.

279     Mr Robbins believed the condition was spontaneous.  It was aggravated by the plaintiff’s work, but the effects of the aggravation have now ceased.

280     Mr Robbins considered the plaintiff has a work capacity, but restricted – light use of the hand and wearing a splint.  He also thought social, domestic and recreational capacity was affected.  He believed the symptoms and impairment were real, but possibly exaggerated, with some functional overlay.

Psychiatric

281     Dr Leon Turnbull, psychiatrist, examined the plaintiff in December 2017.

282     The plaintiff told Dr Turnbull he was diagnosed with Bipolar Disorder five years ago by his treating psychiatrist.  He tried different medications and more recently, had been on a mood stabiliser in addition to Olanzapine.  He was seeing a psychiatrist, Dr Mahalingam, for two years.  The initial presentation was for personal problems with work and relationships.

283     The plaintiff insisted he was psychiatrically able to work.

284     The plaintiff advised he had been emotionally unsettled over the previous year and had been frustrated with his workplace.  He felt he was stable and had been psychologically capable of work.  Dr Turnbull had no reason to change the established diagnosis of Bipolar Disorder.

285     Dr Turnbull noted it seemed the plaintiff had had some unsettling of his Bipolar Disorder over the last year and he alleged he was not welcome back into the workforce.  The plaintiff maintained he wanted to work and had been psychiatrically capable of doing so.

286     Dr Turnbull thought one would need to be cautious, if the plaintiff was sedated from his medications, about operating machinery or driving heavy vehicles, but he would be fit for that work if he could pass all appropriate driving tests.

287     In terms of future treatment, Dr Turnbull thought continued psychiatric consultation, including ongoing medication review, was appropriate.

288     Di Francis, hand therapist, wrote to Dr Li on 13 May 2016.  She was not involved in the plaintiff’s post-operative care.

289     There were a number of entries relating to the plaintiff’s attendances at Dandenong and Southern Hospital about which the plaintiff was cross-examined.[70]

[70]See paragraphs [114] and [116] of my Judgment

Overview

290     While it was accepted for the purposes of this application that there was a “work connection”,[71] counsel for the defendant submitted the effects of that had ceased[72] and the plaintiff has degenerative based MCP joint arthritis “which cannot be put at the door of the defendant”[73]

[71]Letter dated 21 June 2016 - acceptance of statutory benefits claim in relation to injury on 11 May 2016

[72]Mr Robbins

[73]T62

291     Counsel for the defendant submitted that at the end of the day, the defendant’s case was pretty simple.  Whatever the plaintiff had, had resolved[74] and as such, it could never be serious within the parameters of the legislation.[75]  There were also issues of stabilisation given the suggestion of further surgery.[76]

[74]Mr Tham

[75]T3

[76]T2

292     Counsel for the plaintiff submitted, whilst the medical evidence seemed to be equivocal as to any ongoing issues with De Quervain’s tenosynovitis, what seemed to be to the fore was the aggravation to the asymptomatic osteoarthritic change in the basal thumb joint, where further surgery had been suggested.[77]

[77]T3

293     It was submitted that the plaintiff has continued to suffer from ongoing pain in his thumb as a result of his work with the employer. Two medico-legal examiners consider the plaintiff requires further surgery, with Mr Robbins suggesting an arthrodesis, and Mr Crock suggesting arthroplasty.[78]

[78]T4

Credit

294     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[79]

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

[79](2010) 31 VR 1 at paragraph [12]

295     In this case, there was no real attack on the plaintiff’s credit.  I found him to be a truthful witness who gave a credible account of a range of difficulties he has experienced with his left thumb/hand since the work injury.

Has the compensable injury resolved?

296     Counsel for the defendant relied on Mr Buntine and Dr Karna’s views that the underlying condition had resolved as a “first port of call”.  Further, Mr Tham repaired the ruptured lunate.  De Quervain’s had recovered.  The other condition was arthritis.[80]

[80]T60

297     While Mr Robbins said there were ongoing problems related to arthritis, he considered those problems were degenerative.[81]  Experts, Mr Tham and Dr Karna also concluded that there is a degenerative condition and any work contribution has resolved or has ceased.[82] 

[81]T60

[82]T63

298     Counsel was critical of the medical opinions relied on by the plaintiff, as none of the doctors was asked, “in a legal sense, to state what they meant by ‘aggravation’, and that has to increase the gravity of the underlying pathology”.[83]

[83]T63

299     Further, the Court was urged to rely on Mr Tham’s examination findings in May 2017, after the surgery, that the plaintiff’s functioning had improved 90 per cent and he had minimal discomfort.[84]

[84]T60

300     In response, counsel for the plaintiff also relied on Mr Tham’s opinion.  When he last saw the plaintiff in May 2017, he diagnosed early arthritis of the basal thumb joint, rupture of the ulnar collateral ligament, left thumb MCP, thus flagging, at that stage, there are arthritic changes, a point was taken up by Mr Crock nearly a year later.[85]

[85]T67

301     When Mr Crock, described by plaintiff’s counsel as an eminent and qualified plastic and reconstructive surgeon, saw the plaintiff in March 2018, he thought he had instability of the ulnar ligament of his left thumb, being the ligament repaired by Mr Tham with joint subluxation under stress.  He thought the plaintiff had subluxed basal joint on the left side, with early basal joint arthritis, as Mr Tham had noted a year earlier.  The plaintiff was then symptomatic in the left hand and had ongoing pain in the left thumb and had problems lifting heavy objects.[86]

[86]T68

302     It was submitted there was therefore a history of ongoing thumb pain from May 2017 to March 2018.  It is now May 2019, and the plaintiff continues to suffer from ongoing issues with his thumb.[87]

[87]T60

303     It was submitted the plaintiff has had continuous pain since March 2016 as a result of the heavy work activity with the employer – a view shared by the plaintiff’s general practitioner, Dr Li, and Mr Crock, and whilst he did not say so directly, Mr Tham, who saw the plaintiff on referral by Dr Li for what she described as a work-related injury.[88]

[88]T69

304     Counsel for the plaintiff relied on Ms Kelly’s assessment in September 2018 where she listed the plaintiff’s various ongoing thumb/hand complaints.[89]

[89]T70 – see paragraph [147] ff

305     Further, Dr Bennet thought, in January 2018, that the plaintiff’s work was a significant contributing factor for the pain in his left thumb and resultant dysfunction.[90]

[90]T71

306     Counsel submitted Mr Crock’s view as to an ongoing work contribution should be preferred to the opinions of Dr Karna and Mr Buntine to the contrary.  It was also submitted their views were against the weight of the evidence which suggests the plaintiff has had ongoing pain since the injury and surgery.[91] 

[91]T72

307     It was submitted that Mr Buntine was given a very significantly truncated set of documents and not one report from the plaintiff’s “camp”.  Further, his examination was nearly two years ago and the plaintiff has had further treatment since that time.[92]

[92]T73

308     Mr Robbins, who was also given limited documentation, accepts there is ongoing pain in the thumb joint, but says any work connection has ceased; however, it was submitted his opinion should not be accepted, as in this regard, there was no clinical or pathological basis for that opinion given the plaintiff’s ongoing thumb pain on a daily basis.[93]

[93]T74

309     Taking into account all the evidenced, I am satisfied the plaintiff suffers ongoing problems with his thumb/hand and that those problems continue to relate to his work activities with the employer.

310     Prior to injuring his left thumb/hand working for the employer, the plaintiff had not had any problems with his left lower limb.  While he writes with his right hand, since he fractured his right hand twenty years ago, he has used his left hand for everything else since then.

311     I accept the plaintiff’s evidence that he currently experiences pain in his left thumb/hand on a daily basis.[94]  He is constantly worried about his left hand and further injuring it, and he tends to over protect it.  Any time he puts any pressure on his thumb, the pain is sharp and severe at the base thereof, causing him difficulty with a range of manual tasks.[95]

[94]Haden Engineering Pty Ltd v McKinnon (supra) at paragraph [11]

[95]T56

312     The plaintiff continues to require strong painkilling medication, including Targin, for his work injury.[96]

[96]Kelso v Tatiara Meat Company Pty Ltd [2007] VSCA 267 at paragraph [199]

313     While Mr Buntine thought the plaintiff’s thumb condition had resolved as early as 2017, complaints of pain and the need for treatment has continued beyond that time.

314     It is clear from Dr Li’s January 2018 referral of the plaintiff to Dr Bennett because of persistent thumb pain, that practitioner thought the plaintiff required further treatment.  Dr Bennett then found ongoing problems with the left thumb and a continuing work relationship, noting radiological and surgical findings had confirmed the organic basis of his injury.  Further, he thought the plaintiff may benefit from a pain specialist review.

315     Before that referral, Dr Li had seen the plaintiff regularly following the surgery, with ongoing complaints of left thumb pain.  Dr Li last saw him in January 2018.

316     Dr Harindran, the plaintiff’s current general practitioner, noted, on 23 March 2018, that the plaintiff complained of “pain on L wrist” and she prescribed Tramadol and Valium.  As recently as 1 March this year, Dr Harindran noted “wants Targin for L wrist pain told him it is addictive”.

317     Following his February 2018 examination, Dr Sullivan considered the plaintiff’s work duties were the likely event that produced his diagnosis, the need for surgery and his persisting chronic pain.

318     As of September 2018, Ms Kelly thought the plaintiff’s thumb/hand problems were ongoing.

319     In terms of the medico-legal evidence, Mr Crock differed from Mr Robbins’ opinion and confirmed that there was an ongoing work-related exacerbation of the plaintiff’s degenerative condition.

320     Neither Dr Karna nor Mr Buntine give any explanation why, at any particular time, work ceases to contribute to the plaintiff’s condition when they earlier accepted such a link.  A similar criticism can be made of Mr Robbins; however, he accepts the plaintiff does have ongoing thumb problems.

Non organic/unrelated conditions

321     In general terms, counsel for the defendant submitted that if it was accepted there was a continuing work contribution to the plaintiff’s condition, “there is a very florid descriptive Bipolar Disorder which is huge in the context of this case and needed to be stripped aside”.[97]  It was abundantly clear that it was psychosocial factors in the plaintiff’s life that were stressors, which were real, and which impacted on his overall abilities and job seeking facilities.[98]

[97]T63

[98]T65

322     It was submitted the Court had to be careful in terms of its view of the plaintiff because of the underlying other comorbidities that pre-exist and continue – taking significant Olanzapine, an antipsychotic, for many years, with clearly a history of issues, stresses, relationships and intake of substances as Dr Fanning noted in his May 2019 report in which he made no reference to any work issues.[99]

[99]T66

323     It was submitted the matters put to the plaintiff in cross-examination relating to attendances at Emergency on a number of occasions, made it difficult to dissect the organic basis.[100]

[100]T64

324     I am required, when considering this application, to focus on the consequences of the compensable injury only and determine whether they met the definition of “serious”.

325     In Peak Engineering & Anor v McKenzie,[101] Maxwell P described the difficulty faced when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury.

[101][2014] VSCA 67

326     In such circumstances:

“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ... at least very considerable’.  For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”[102]

[102]At 1

327     The President found that the judge was bound to identify, and exclude, the continuing consequences for the plaintiff of the un related injury and when the consequences properly referable to the relevant injury were identified, identify them as “serious”.[103]

[103]At 2

328     I am also bound to disregard psychological factors pursuant to ss(h) and have to be satisfied any consequences are organically based.[104]

[104]Meadows v Lichmore Pty Ltd [2013] VSCA 201

329     This high point for the defendant in relation to this issues is Mr Buntine’s view that the plaintiff’s complaints and behaviour are consistent with a genuine moderately severe psychological/psychiatric condition. His non specialist opinion was that psycho social factors and relationship problems at work were affecting his recovery.

330     In April 2018, Dr Karna, whilst of the view there were no physical findings pertaining to a left thumb injury and that the plaintiff had a resolved soft tissue injury to the left thumb, noted the plaintiff had persisting symptoms.  Dr Karna made no comment about the presence of non-organic factors or any exaggeration on examination.

331     Mr Robbins believed the plaintiff’s symptoms and impairment were real but possibly exaggerated, with some functional overlay

332     This issue was addressed specifically by a number of medico-legal examiners relied on by the plaintiff. Dr Slesenger found no adverse clinical finding, having considered a functional element to the plaintiff’s symptoms.  Dr Sullivan thought there was an organic condition affecting the left thumb independent of any mental or behavioural disturbance.  

333     Dr Bennett noted radiological and surgical findings have confirmed the organic basis of the plaintiff’s injury.  

334     Mr Crock made no comment about any functional factors, focussing only on the organic condition.

335     When he last saw the plaintiff in December 2017, Dr Mahalingam, psychiatrist, reported that the Bipolar Disorder started long before the left hand injury but that injury led to loss of job, and loss of income, which had exacerbated his condition. Dr Mahalingam thought the plaintiff had progressed well with the Bipolar Disorder but his chronic pain prevented him from getting manual work.

336     In her very detailed report of 4 July 2018, whilst noting the diagnosis of bipolar disorder, Dr Li focussed largely on her treatment of the plaintiff’s ongoing physical complaints.

337     It is significant to note the plaintiff insisted to psychiatrist, Dr Turnbull, whom he saw in December 2017, that he was psychiatrically fit to work.

338     Whilst diagnosed with Bipolar Disorder in 2013, the plaintiff was able to work for the employer from December 2015 for six months, building up to 52 hours per week.  He then suffered the left thumb/hand injury, leading to the surgery in early 2017.

339     Focussing therefore on the consequences of this compensable injury, excluding any non-related matters/conditions, I must determine whether such consequences are “serious” and permanent as at the date of hearing.

340     If it was accepted the effects of the work injury continued, counsel for the defendant submitted that any present impairment was not serious[105] and the “primary reasons were the stressors”.[106]

[105]T65

[106]T66

341     Counsel for the defendant submitted the loss of work component in this case was not large.  The plaintiff had short-term employment for six months as a truck driver and his job over the years was in retail.[107]  He is a fifty-three-year-old man who had undertaken a wide range of employment from nursery work to hospitality, to music.[108] 

[107]T63

[108]T64

342     Counsel for the defendant conceded however, there would be some restriction in the plaintiff’s ability to obtain a job in sales because of the requirement to do some physical work, but it was submitted “the risk with that is - the plaintiff has what they now call bio psychosocial generic health presentation – this large looming non organic component”.  In those circumstances, it was difficult to dissect the organic basis.[109]

[109]T64

343     It was submitted the plaintiff was man with substantial pre-existing fairly sporadic and varying employment.  Six months with the employer at best with a return to work that did not succeed – “Whether it was not liking cleaning or not liking the personalities, it was clear that there was a non-organic component why the plaintiff did not continue with the employer and had not worked since for a range of reasons.”[110]

[110]T66

344     In addition to the plaintiff’s ongoing complaint of pain, counsel for the plaintiff relied on the range of consequences deposed to – problems with sleep, impaired mobility of left thumb, difficulties dressing, problems with housework and food preparation and basic activities like washing the dishes, problems with grip, dropping things, difficulty carrying, problems with dexterity, opening jars, cutting vegetables and using tools.

345     It was submitted a number of factors identified by the Court of Appeal in Sutton v Laminex Group Pty Ltd[111] were satisfied in this case.[112]

[111](2011) 31 VR 100. Where the Court of Appeal adopted what Maxwell P stated in Haden Engineering Pty Ltd v McKinnon (supra) at paragraph [16]

[112]T75

346     Further, the plaintiff had been unable to return to the old fashioned dis jockey role, he had difficulty using tools and was limited in his involvement with cars and other sports he had previously enjoyed.  There was also an impact on his level of social functioning.

347     Counsel for the plaintiff relied on the factors identified by Ms Kelly’s hand therapy in her September 2018 assessment.[113]

[113]T71.  See paragraphs [153] and [155] of my Judgment

348     Mr Robbins was relied upon, insofar as he thought there was a need for further surgery, finding instability and pain.[114]  Further, it was submitted that Mr Crock’s suggestion of surgery, having seen Mr Robbins’ report, made it clear the impairment to the thumb was serious.[115]

[114]T72

[115]T74

349     Counsel also submitted there were serious consequences in terms of the plaintiff’s capacity for work.[116]  No medical practitioner in this case has suggested he can return to physical work.  The plaintiff did not finish his apprenticeship and had only undertaken manual work since the age of sixteen. He is now fifty-three, and it is very unlikely he will be retrained in anything meaningful.  He does not have an academic or intellectual background to be retrained into alternative work.  It was submitted that these employment consequences were serious, together with the other consequences mentioned earlier.[117]

[116]T75

[117]T75.  See paragraph [343] of my Judgment

350     In this regard, counsel relied on the decision of his Honour Judge Parrish in Spiteri v Canfam Nominees Pty Ltd,[118] in which the plaintiff succeeded with a left non-dominant thumb injury surgically treated following a fracture.  His Honour was satisfied that the plaintiff suffered the narrative test, a consequence of the left hand impairment being the inability to engage in manual physical work.[119]

[118][2010] VCC 0224

[119]T5

351     It was submitted that the plaintiff “looked very confused about the lack of progression in his condition.  He had an ongoing significantly painful thumb.  There is a suggestion of further surgery but he is not optimistic about those future procedures assisting him.[120]

[120]T76

352     As it is unlikely the plaintiff will have the surgery, given the lack of success of the earlier procedure, counsel for the plaintiff submitted his condition is unlikely to improve and could be seen to be permanent, in that he would need to continue to wear a wrist brace and would suffer pain in his left thumb for the foreseeable future.[121]

[121]T76

Findings

353     While the plaintiff was diagnosed with Bipolar Disorder in 2013, and continues to take medication in relation thereto, he was able to obtain work with the employer, initially on a part-time basis, and then increase to working 52 hours per week.

354     Following surgery, the plaintiff has been unable to return to work and has continued to be restricted in his ability to perform a range of activities using his left hand.

355     Taking into account all the evidence, I am satisfied the consequences of the plaintiff’s left thumb/hand impairment are “serious”.

356     As I have earlier stated, I accept the plaintiff’s ongoing complaints of pain and restriction in even the most basis of daily activities.

357     Medico-legal examiners have accepted the plaintiff has these injury-related complaints.

358     Dr Sullivan found substantial functional limitations subject to the plaintiff’s chronic pain condition. He thought the plaintiff’s MCP symptoms persisted despite surgery, his sleep was adversely affected and mobility of the left thumb was impaired, affecting his capacity for self care and management.

359     Dr Bennett, in January 2018, came to a similar view.  Despite extensive treatment, he thought the pain had resulted in dysfunction and reduced ability to undertake paid work.  Some domestic activities were painful and difficult to undertake due to the left thumb injury, and the plaintiff’s overall quality of life had been reduced.

360     The plaintiff continues to require significant painkilling medication, and surgery has been suggested – a situation obviously inconsistent with any suggestion his condition has resolved.

361     I also accept there are employment consequences for the plaintiff.  Although he has worked in furniture sale at various times, he last did so about eight years ago.  His work since then has been of an unskilled manual nature.

362     As the plaintiff explained, furniture sales work requires physical activity such as moving furniture – as well as sales – and he would have difficulty with any heavy work as all doctors have confirmed.

363     Whilst further surgery has been suggested, the plaintiff seems to reluctant to undergo any procedure given the lack of success of surgery in 2017.  In those circumstances, I accept that the plaintiff’s pain and restriction will continue into the foreseeable future and are therefore permanent.

364     Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering.

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