Eymir v VWA
[2025] VCC 422
•10 April 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-24-01628
| DILEK EYMIR | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | His Honour Judge Ginnane | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 – 11 October 2024 | |
DATE OF JUDGMENT: | 10 April 2025 | |
CASE MAY BE CITED AS: | Eymir v VWA | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 422 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – bilateral carpal tunnel syndrome – whether impairment to body function – whether injury to each hand meets the test – whether pain caused by non-work related injuries - pain and suffering – credibility – permanent severe mental or permanent severe behavioural disturbance
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited:Barwon Spinners Pty Ltd & OrsvPodolak (2005) 14 VR 622; Dwyerv Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; HuntervTransport Accident Commission & Avalanche [2005] VSCA 1; Lexa v Transport Accident Commission [2019] VSCA 123; 88 MVR 394; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181; Tatiara Wheat Co Pty Ltd v Kelso [2010] VSCA 12.
Judgment: The plaintiff is granted leave to pursue a common law claim for pain and suffering damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J. Frederico with Mr T. Katz | Zaparas Lawyers |
| For the Defendant | Ms M. Cameron | Russell Kennedy |
HIS HONOUR:
Introduction
1Pursuant to Section 335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”) the plaintiff seeks the grant of a Serious Injury Certificate for pain and suffering pursuant to sub paragraphs (a) and (c). The Particulars of Injury are expressed as:
(a) injuries sustained to her right upper limb and/or left upper limb including, but not limited to, her hands and wrists, bilateral carpel tunnel syndrome and/or right trigger thumb sustained throughout the course of her employment with the defendant;
(b) a permanent serious impairment or loss of function of her right upper limb including hand, wrist, and right trigger thumb, and left upper limb including hand and wrist; and
(c) anxiety and depression.[1]
[1]Particulars of Injury filed 8 May 2024 as amended by consent at hearing.
2The plaintiff deposed that in her pre injury work as a kitchen hand, she relied on full and unrestricted use of both arms and hands. The plaintiff described developing increasing pain in both of her hands and fingers, and particularly her thumbs, and also experiencing strange pins and needles feelings in her fingers.
3The plaintiff pinpointed her physical problems commencing in about 2014, but she worked on with some symptoms of pain. However, the pain worsened over time. She underwent nerve conduction studies, which revealed a problem with carpal tunnel in each wrist.
4As to the paragraph (c) injury claim, the plaintiff says she became depressed as a result of her injuries and has been referred to a psychologist for counselling, and to a psychiatrist. She remains under such care. She remains in receipt of medication to treat her mental state.
5The plaintiff was represented by Ms J Frederico of counsel, with Mr T Katz of counsel. The defendant was represented by Ms M Cameron of counsel.
The paragraph (a) injury
6The plaintiff is aged 56 years. She relies on bilateral carpal tunnel syndrome as the injury. She argued that if the law does not permit a finding that bilateral carpal tunnel syndrome for the left and right hand and wrists as one body function, that the injury to each of the right and left separately satisfies the relevant test.
The legal conundrum
7In addressing the question whether bilateral carpal tunnel is an impairment to a body function, the plaintiff submitted that bilateral carpal tunnel is an exception to the requirement that impairments to different body parts cannot be aggregated. The plaintiff did not point to case law in support of the contention.
8I am satisfied that as the law stands, and in light of the decision of the Court of Appeal in Lexa v Transport Accident Commission (“Lexa”),[2] there are limited circumstances in which a plaintiff is able to rely on bilateral carpal tunnel as constituting impairment to a single body function. Instead the extent of impairment to each of the right and left limb will call to be separately assessed to determine whether the test for seriousness has been established by a plaintiff. Put another way, it seems likely that the decision in Lexa means, that in cases involving bilateral carpal tunnel syndrome, an impairment to one, or both of each affected limb must meet the serious injury test, and reliance cannot be placed on an aggregation of the injuries. In this regard, I respectfully agree with the detailed analysis of case law and principles expressed by her Honour Judge Clayton in Puhovac v VWA (“Puhovac”).[3]
[2] [2019] VSCA 123; 88 MVR 394.
[3][2024] VCC 1591.
Balance of issues in contention
9At the commencement of the hearing, and conscious the plaintiff presented with an accepted claim, I asked the defendant what matters were in issue. Ms Cameron’s initial submission was largely to the effect that everything was in issue namely, causation, range and stability, as well as the legal capacity to aggregate bilateral injuries as a single impairment, and a challenge whether the plaintiff had disaggregated unrelated and previous physical injuries along with the degree of her severity and/or stability of mental condition. Later on, the defendant said it did not challenge the causation of the onset and development of carpal tunnel, but it continued to press whether the plaintiff had proved that her “current injury condition and consequences arise from the compensable work injuries”.[4] I took this to mean whether the plaintiff had proved that her injury is current and continuing and likely permanent.
[4] Transcript (“T”) 65, Lines (“L”) 4-6.
The Documentary Evidence
10The plaintiff relied on the following evidence:
(a) Affidavit of Plaintiff dated 26 September 2023;[5]
[5]Exhibit P1, Plaintiff Court Book (“PCB”) 25-30.
(b) Further Affidavit of the Plaintiff dated 11 September 2023;[6]
[6]Exhibit P2, PCB 31-38.
(c) Lay Witness Affidavit of Zehra Eymir dated 24 September 2024;[7]
[7]Exhibit P3, PCB 39-42.
(d) Report of Dr Shehata dated 4 September 2024;[8]
[8]Exhibit P4, PCB 52-54.
(e) Three reports of Dr David McCombe dated 2 October 2023, 19 February 2024 & 7 August 2024;[9]
[9]Exhibit P5, PCB 55-59.
(f) Report of Dr Duraiswamy dated 3 September 2024;[10]
[10]Exhibit P6, PCB 60-62.
(g) Report of Ms Sumertas dated 15 July 2024;[11]
[11]Exhibit P7, PCB 63-68.
(h) Report of Dr Weissman dated 4 July 2024;[12]
[12]Exhibit P8, PCB 69-82.
(i) Report of Mr Stephen Doig dated 8 July 2024;[13]
[13]Exhibit P9, PCB 83-86.
(j) Nerve Conduction Study dated 22 August 2012;[14]
[14]Exhibit P10, PCB 87.
(k) Ultrasound Right and Left Wrist dated 27 February 2020;[15]
[15]Exhibit P11, PCB 88.
(l) Nerve Conduction Study dated 30 March 2020;[16]
[16]Exhibit P12, PCB 89-90.
(m) Ultrasound Right Elbow dated 23 April 2020;[17]
[17]Exhibit P13, PCB 91.
(n) MRI Cervical spine dated 25 May 2020;[18]
[18]Exhibit P14, PCB 92.
(o) Three Operation Reports dated 24 July 2020, 24 May 2021 & 2 September 2021;[19]
[19]Exhibit P15, PCB 93, 99-100.
(p) X-Ray Right Thumb dated 14 December 2020;[20]
[20]Exhibit P16, PCB 94.
(q) Ultrasound Right Thumb dated 15 December 2020;[21]
[21]Exhibit P17, PCB 95.
(r) MRI Right Wrist dated 13 April 2021;[22]
[22]Exhibit P18, PCB 96.
(s) Nerve Conduction Studies and EMG dated 20 May 2021;[23]
(t) Nerve Conduction Studies and EMG dated 21 October 2021;[24]
(u) Nerve Conduction Study Report dated 1 August 2023;[25]
(v) MRI Right Wrist dated 12 October 2023;[26]
(w) Ultrasound Right Elbow dated 21 February 2024;[27]
(x) Workers Injury Claim Form dated 19 February 2020;[28]
(y) Certificate of Capacity dated 18 June 2024;[29]
(z) Centrelink medical certificate dated 18 June 2024;[30]
(aa) Letter from Mr David McCombe to Dr David Freilich dated 3 April 2024; and[31]
(bb) Clinical notes of Alpha Health Physiotherapy dated 6 October 2023 to 4 October 2024.[32]
[23]Exhibit P19, PCB 97-98.
[24]Exhibit P20, PCB 101-102.
[25]Exhibit P21, PCB 103.
[26]Exhibit P22, PCB 104-105.
[27]Exhibit P23, PCB 106.
[28]Exhibit P24, PCB 107-108.
[29]Exhibit P25, PCB 126-127.
[30]Exhibit P26, PCB 128.
[31]Exhibit P27.
[32]Exhibit P28.
11The defendant relied on the following evidence:
(a) Report of Dr Audi Widjaja dated 8 January 2020;[33]
[33]Exhibit D1, Defendant Court Book (“DCB”) 32.
(b) Four reports of Mr Anthony Berger dated 30 July 2020, 17 December 2020, 22 July 2021 & 27 October 2021;[34]
[34]Exhibit D2, DCB 35-36, 39, 43.
(c) Dr Baglar questionnaire dated 6 September 2021, report dated 7 September 2021 & report dated 6 May 2022;[35]
[35]Exhibit D3, DCB 44-51.
(d) Report of Dr Barberis dated 20 January 2022;[36]
[36]Exhibit D4, DCB 52-57.
(e) Report of Dr Dennis Handrinos dated 2 February 2022;[37]
[37]Exhibit D5, DCB 58-66.
(f) Report of Professor Evange Romas dated 7 July 2022;[38]
[38]Exhibit D6, DCB 67-72.
(g) Report of Professor Saji Damodaran dated 20 July 2022;[39]
(h) Medical Panel opinion and reasons dated 16 January 2023;[40]
(i) Report of Dr Loretta Reiter dated 10 September 2024;[41]
(j) Worker’s Injury Claim Form dated 7 July 2021;[42]
(k) Rejection of claim for compensation dated 6 August 2021;[43]
(l) Report of Dr Leon Le Leu dated 2 August 2021;[44]
(m) Records of Alpha Health Physiotherapy;[45]
(n) Centrelink certificates of capacity of Coburg Family Medical Centre dated 10 July 2023 and 11 April 2023;[46]
(o) Clinical records of Ms Sumertas;[47] and
(p) Report of Dr Haka Baglar dated 14 November 2022.[48]
[39]Exhibit D7, DCB 77-92.
[40]Exhibit D8, DCB 93-106.
[41]Exhibit D9, DCB 107-117.
[42]Exhibit D10, DCB 118-120.
[43]Exhibit D11, DCB 121-127.
[44]Exhibit D12, DCB 128-141.
[45]Exhibit D13, DCB 142-146.
[46]Exhibit D14, DCB 147-149.
[47]Exhibit D15, DCB 150-164.
[48]Exhibit D16, DCB 46-48.
Relevant Legal Principles – Serious Injury
12The definition of “serious injury” contained in section 325(1) of the Act reads:
“Serious injury” means –
(a) permanent serious impairment or loss of a body function; or
…
(c) permanent severe mental or permanent severe behavioural disturbance or disorder…
13The court must not give leave to commence common law proceedings unless it is satisfied, on the balance of probabilities, that the plaintiff’s “injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in section 325(1) of the Act.[49]
[49] Section 335(5) of the Act.
14To establish serious injury, the plaintiff must prove, on the balance of probabilities, that:
“the injury” suffered by her arose out of, or in the course of, or due to the nature of employment;[50]
“the injury” and resulting impairment must be “permanent” – that is, permanent in the sense that it is “likely to last for the foreseeable future”;[51]
the “consequences” of the impairment in relation to “pain and suffering” must be “serious” – that is, the impairment or loss of body function “when judged by comparison with other cases in the range of possible impairments … may be fairly described as being more than significant or marked, and as being at least very considerable”.[52]
[50] Section 327 of the Act; see also Barwon Spinners Pty Ltd & OrsvPodolak (2005) 14 VR 622 (“Barwon”).
[51] Barwon (2005) 14 VR 622, 638 [33].
[52] Section 325(2)(c) of the Act.
15The requirement to satisfy these elements is sometimes referred to as the “narrative test”.
16In determining the “consequences” of an injury, the court is required to consider them as they affect this plaintiff, viewed objectively, arising from his injury and according to an assessment of range of like impairments.
17In determining the application the court:
must not take into account psychological or psychiatric consequences of “the injury” for the purposes of paragraph (a) of the definition of “serious injury” – these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[53]
must assess whether “the injury” is a “serious injury” as at the time the application is heard;[54]
must give reasons that disclose the pathway of reasoning in dealing with the evidence and issues raised by the application;[55]
[53] Section 325(2)(h) of the Act.
[54] Section 325(2)(j) of the Act.
[55] See generally HuntervTransport Accident Commission & Avalanche [2005] VSCA 1, [23]-[26].
18In TTB SMS Pty Ltd v Reading,[56] Tate and T Forrest JJA said that on a serious injury application in a pain and suffering case, in assessing the seriousness of claimed impairment consequences, a Court is required to determine a number of matters and these include both the effects of the impairment and those aspects of the affected body function which remain unaffected.[57] A serious injury also requires a permanent serious impairment or loss of a body function.[58] Furthermore, an impairment shall not be held to be serious unless the pain and suffering consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked, and as being at least very considerable.[59]
[56] [2020] VSCA 203.
[57]Dwyerv Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 (“Dwyer (No 2)”), [27] per Ashley JA; Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181 (“Stijepic”), [44] per Ashley JA and Beach AJA; Tatiara Wheat Co Pty Ltd v Kelso [2010] VSCA 12, [77] per Ross AJA, quoting Dwyer (No.2) [2008] VSCA 260, [27]).
[58] Section 325 of the Act.
[59]Section 325 of the Act. This formulation picked up the language in Humphries, which concerned similar provisions in the Transport Accident Act 1986.
The Plaintiff’s Affidavit Evidence
The First Affidavit[60]
[60] Exhibit P1, PCB 25-30.
Background
19The plaintiff’s background and work ethic is admirable. She impressed me as a diligent and dedicated woman. She arrived in Australia in 1988 from Turkey. She worked for the Ford Motor Co. sewing upholstery. She had some time out of work for family and children rearing, and in 1995, she returned to work as a machine operator but with a different company.
20In 2001 she commenced work for Lions Biscuits as a process worker, and about two years later she moved to a plastics company as a machine operator making automotive parts.[61]
[61]Exhibit P1, PCB 25-26, at paragraph [1]-[6].
21In 2008, she commenced work with the Chandler McLeod Group which became Programmed Skilled Workforce, and in that guise, she worked for Qantas at Tullamarine as a kitchen hand. The company later became DNATA Catering. She worked for 14 years as a casual employee, having various shifts but in later years, she largely worked consistent shifts from 7:00 am to 2:30 pm and earned about $940 a week.[62]
[62]Exhibit P1, PCB 26, [7].
Previous Injuries and Illnesses
22In addressing prior injuries and illnesses, the plaintiff deposed that in 2015, she twisted her left knee and had arthroscopic surgery from which she made a good recovery although the trouble flared again in 2019, and it has since been “a niggling ongoing problem”.[63]
[63]Exhibit P1, PCB 26, [8].
23The plaintiff also deposed to long-standing problems with her back, neck and hip which were painful and continue to cause her problems. She deposed that she has attended her doctor about them, but has not required surgery or “other significant treatment”.[64]
[64]T 19, L 12.
24The plaintiff said she had experienced problems with her shoulders and in the past had been referred to a rheumatologist.[65]
[65]Exhibit P1, PCB 26, [9].
The Injury and Treatment
25The plaintiff deposed that her work as a kitchen hand involved food preparation, and packaging. She had to cut, grate, and chop fruit, vegetables and meat to make salads, and then put them into a container and mix them. She also had to use her arms and hands to mix sauces, to plate and package foods, push trolleys, and lift heavy pots and trays weighing approximately 10 to 12 kgs. Her work was daily and repetitive.[66]
[66]Exhibit P1, PCB 27, [11].
26The plaintiff described developing increasing pain in both her hands and fingers and particularly her thumbs, and of experiencing a pins and needles feeling in her fingers that commenced in about 2014, but she continued to work despite some symptoms of pain. The pain worsened, and in about 2020, she attended the company doctor, who sent her for ultrasound tests on both of her arms. She also saw her General Practitioner (“GP”) Dr Kurnaz, but because he did not treat WorkCover patients, she was referred to Dr Baglar. The plaintiff deposed that nerve conduction studies revealed carpal tunnel in each wrist. She was referred to Mr Berger, a hand surgeon, who recommended surgery.[67]
[67]Exhibit P1, PCB 27, [12].
27The plaintiff had an accepted WorkCover claim in 2020. She was placed on light duties which did not involve any heavy use of her hands. Covid struck. The plaintiff’s work ceased.[68]
[68]Exhibit P1, PCB 27, [13].
Surgeries
28The plaintiff underwent surgery in late July 2020 on her right wrist.
29In May 2021, she had surgery to her left wrist.
30In September 2021, the plaintiff had further surgery on her right hand. Hand therapy followed. She continues to have hand therapy, usually fortnightly, although at times weekly. She has been referred to a pain specialist.[69]
[69]Exhibit P1, PCB 28, [14].
31The plaintiff says she developed depression. She has been referred to a psychologist for counselling and to a psychiatrist.[70]
[70]Exhibit P1, PCB 28, [15].
Consequences
32The consequences of injury relied on by the plaintiff are of pain and sensory changes in both her left and right hands. She said these changes mostly affect her first three fingers and thumb. If she uses her hand forcefully or repetitively, the pain increases. She said her hands are very weak and she has lost strength, and along with it, the ability to perform fine tasks with the fingers in both hands.[71]
[71]Exhibit P1, PCB 28, [16].
33She said she was using medication including Celebrex, Lyrica and Panadol Osteo on a daily basis. Sometimes she uses a heat pack.[72]
[72]Exhibit P1, PCB 28, [17].
34She has trouble sleeping, and wakes frequently in the night because of pain in both hands, but mostly pain in her right hand. She takes natural and prescribed tablets to assist with her sleep. She said she often gets out of bed to retrieve a heat pack, or for pain medication to help her return to sleep.[73]
[73]Exhibit P1, PCB 28, [18].
35She finds it very difficult to manage cooking or household tasks and has problems lifting more than a few kilograms in weight without increasing pain. She needs help with shopping and the laundering of clothing.[74]
[74]Exhibit P1, PCB 29, [19].
36The plaintiff said that the problems with her hands make it difficult for her to help out and to play with her two grandchildren and, in particular, to lift them without resulting increases in hand pain. Gardening, and arranging flowers, which she used to enjoy, are now very difficult and can only be performed in a very limited way.[75]
[75]Exhibit P1, PCB 29, [21].
37Although the plaintiff drives, the use of the steering wheel is difficult, and often enough causes increased pain, and therefore, she tends to limit her driving to local areas of no more than about 15 minutes duration.[76]
[76]Exhibit P1, PCB 29, [22].
38The plaintiff says she is unable to return to work as a kitchen hand, or to perform any other work of the type to which she is accustomed. Her work had always involved the use of her hands. She has limited English skills. She deposed that she is not good at computer use. She cannot contemplate what she could do for work and which she finds upsetting.[77]
Further Affidavit of the Plaintiff
[77]Exhibit P1, PCB 29, [23].
Treatment
39The plaintiff’s second affidavit was sworn on 11 September 2024,[78] from which the following chronology is derived:
· On 1 August 2023, she had nerve conduction studies.
· On 19 September 2023, she attended a psychiatrist.
· On 2 October 2023, she went back to see Associate Professor McCombe, hand surgeon.
· On 12 October 2023, she underwent an MRI scan of her right wrist.
· In February 2024, she had an ultrasound of her right wrist.
[78] Exhibit P2, PCB 32-38.
40She said she had a subsequent, as well as a more recent nerve conduction study but it appears she was wrong about this.[79]
[79]Exhibit P2, PCB 32, [7].
41The plaintiff is in receipt of Centrelink payments and remains certified by her GP as incapacitated for work.[80]
[80]Exhibit P2, PCB 32, [8].
42The plaintiff deposed to being under the care of Dr Shehata from the Coburg Family Medical Centre. She attends her psychiatrist, Dr Duraiswamy, once a month. She sees her psychologist, Ms Sumertas, every 2 to 3 weeks. She attends physiotherapy fortnightly for her wrists and hands, and takes Celebrex, Duloxetine, Nexim, Osteomol, and Agomelatine.[81]
[81]Exhibit P2, PCB 32, [9].
43The plaintiff remains under the observation of A/Prof McCombe, having last seen him a couple of months prior to the hearing. A/Prof McCombe discussed with her the possibility of further surgery on her right wrist. However, the plaintiff said that because she suffered from severe pain in her wrists after her previous operations, she has not gone down this path. A/Prof McCombe suggested a cortisone injection into her right wrist, but the plaintiff decided against it.[82]
[82]Exhibit P2, PCB 32, [10].
44The plaintiff deposed to using a hard brace when she sleeps, and a soft brace usually during the day.
45The plaintiff said she has been diagnosed with osteoporosis and has regular Prolia injections.[83]
[83] Exhibit P2, PCB 33, [11]-[12].
46The plaintiff deposed to having made a worker’s compensation claim for neck, back and shoulder pain but that it was not accepted. She said she continues to suffer from neck, back and shoulder pain and undergoes physiotherapy.[84]
[84] Exhibit P2, PCB 33, [13].
47The plaintiff said that prior to the subject injury, she suffered from some mental health issues stemming from family matters.[85]
[85] Exhibit P2, PCB 33, [14].
Consequences
48The plaintiff deposed that her use of a knife to cut food, and the use of her hands to open a jar or a water bottle, to carry objects, to push, pull, lift and the like, causes increased pain in her right hand and, therefore, she tries to avoid these tasks as much as she can.[86] She deposed that the injury to her right hand has affected her ability to open doors, to write, or to make any use of it.[87]
[86] Exhibit P2, PCB 33, [16].
[87] Exhibit P2, PCB 34, [19].
49She said that she continues to experience numbness in her right thumb, index and middle fingers.[88] She deposed that due to pain in her right hand she still finds it hard to get to sleep, and when she does, is wakened during the night with pain.[89]
[88] Exhibit P2, PCB 33, [17].
[89] Exhibit P2, PCB 33, [18].
50The plaintiff deposed that symptoms in her left wrist and hand interfere with her capacity to perform housework, gardening and cooking.[90] Its condition contributes to difficulty in dressing, and interferes with her care of her grandchildren, impacts her social life and the ability to drive.[91]
[90]T 35, L 11-14; T 25, L 28-31; T 36, L1-2; T 36, L 27-31; T 37, L1-5; T93, L 19-22.
[91] Exhibit P2, PCB 34, [22].
51The plaintiff deposed that her pain still affects her mental health.[92] She feels isolated as a result of the loss of the job that she loved. As well, and since her injury, there has been a divorce from her husband.
[92] Exhibit P2, PCB 37, [34].
Lay Witness Affidavit of Zehra Eymir
52The plaintiff relied on an affidavit in support of her application from her daughter Ms Zehra Eymir dated 24 September 2024.[93] Ms Eymir was not required for cross-examination by the defendant.
[93]Exhibit P3, PCB 39-42.
53Ms Eymir deposed to living with her mother until February 2021, when she married and moved out of her mother’s home. Prior to her mother’s injury, she described her as active, outgoing and energetic. She deposed that her mother worked long hours and often enough additional hours when her employer required it.[94]
[94]Exhibit P3, PCB 39, [2]-[3].
54Ms Eymir deposed that her mother’s work was very much part of her identity, and she believed she had great relationships with her co-workers and management.
55Ms Eymir deposed that whilst living at home before the injury, her mother did all the cooking and cleaning, and entertained their extended family and guests. Food and entertainment was an integral aspect of family life.[95] Since the injury, her mother has struggled and is anxious and sad, and had separated from her father after more than 35 years of marriage.[96]
[95]Exhibit P3, PCB 40, [4]-[5].
[96]Exhibit P3, PCB 40, [7].
56Ms Eymir deposed that on occasions when visiting her mother she finds her lying down and in apparent pain.[97]
[97]Exhibit P3, PCB 42, [11].
The Plaintiff’s Medical Evidence
Dr Ahmed Shehata
57Dr Shehata is the plaintiff’s GP who practices from the Coburg Family Medical Centre. He made a report dated 4 September 2024.[98] Dr Shehata said the plaintiff sustained bilateral carpal tunnel syndrome in February 2020, while working as a Qantas Caterer due to the tasks of repetitive cutting, chopping and slicing.
[98]Exhibit P4, PCB 52.
58Dr Shehata documented the plaintiff’s two surgeries for bilateral carpal tunnel syndrome, and a nerve conduction test from 1 August 2023, that revealed the plaintiff continued to present with bilateral carpal tunnel syndrome.
59Dr Shehata’s prognosis for the plaintiff was influenced by her constant discomfort and pain, and of struggling with numbness on a daily basis, and he believed that her injuries were likely to continue to impact her quality of life and lifestyle for the foreseeable future.[99]
Associate Professor David McCombe
[99]Exhibit P4, PCB 54.
First Report dated 2 October 2023
60A/Prof McCombe reported that nerve conduction studies performed in August 2023 showed persistent changes of carpal tunnel syndrome. The parameters measured in the studies had improved compared to the plaintiff’s pre-operative studies, however, A/Prof McCombe said it was unclear if the plaintiff had ongoing compression or a residual effect of her nerve compression and arranged for the plaintiff to have an MRI scan.[100]
[100]Exhibit P5, PCB 55.
Second Report dated 19 February 2024
61A/Prof McCombe reported that an MRI scan showed some slight thickening of the median nerve and possibly recurrent carpal tunnel syndrome, which state of affairs was supported by the plaintiff’s symptoms and the nerve conduction studies performed in August 2023.
62A/Prof McCombe reported that the plaintiff complained of some proximal symptoms and was tender over the median nerve at the level of the elbow, which suggested the possibility of some nerve compression in that area as well.
Third Report dated 7 August 2024
63In his third report, A/Prof McCombe noted that an ultrasound from February 2024 did not reveal abnormality of the median nerve, but there was some evidence of lateral epicondylitis consistent with tennis elbow. The plaintiff was referred for repeat nerve conduction studies to see if the improvement within the parameters of nerve function had continued, or if there had been further deterioration, so as to assist him in assessing if surgery would be warranted.
64A/Prof McCombe reported that the plaintiff had also been treated for carpal tunnel syndrome for her left upper limb.
65A/Prof McCombe wrote that the plaintiff’s treatment to date had been investigative and not active. He thought there was potential of a need for further surgery by way of a revision of the carpal tunnel release on the right side. He considered that the plaintiff’s prognosis was difficult to determine while she remained under investigation.[101]
[101]Exhibit P5, PCB 58.
Dr Ganesan Duraiswamy
66Dr Duraiswamy is the plaintiff’s treating psychiatrist who provided a report to the plaintiff’s solicitors dated 3 September 2024.[102]
[102] Exhibit P6, PCB 60-62.
67Dr Duraiswamy recorded that the plaintiff had separated from her husband, and had been referred to him by her GP for an assessment of depression and pain following her workplace injury. Dr Duraiswamy examined the plaintiff initially on 19 September 2023 via zoom, with an interpreter present.
68The plaintiff presented to Dr Duraiswamy with a one-year history of depression and anxiety that marked her first experience with diagnosed mental health issues. She reported a significant decline in her motivation and ability to engage in daily activities. Her symptoms included anhedonia, fatigue, body aches, and sleep disturbances. She had lost interest in activities she previously enjoyed, such as cooking, and she had withdrawn from social interactions. Her self-care had deteriorated, and she experienced increased irritability. In addition to depressive symptoms, she exhibited anxiety manifestations including a fear of impending doom, hypervigilance, and excessive worry. She experienced anxiety attacks once or twice a week, lasting approximately 10 minutes each.
69Dr Duraiswamy thought the plaintiff’s experience of psychotic symptoms were of concern and these included seeing shadows, hearing noises, and experiencing auditory hallucinations of people talking or calling her name.
70As to the plaintiff’s personal history, Dr Duraiswamy noted that the previous year she had separated from her husband of 33 years. She had two daughters, one of whom had married years ago. Following her separation, the plaintiff lived with her other daughter for 10 months, before that child moved out.
71Based on mental status examination, Dr Duraiswamy considered that the plaintiff satisfied the criteria for major depressive disorder with psychotic features.[103] Her treatment plan included increasing her dosage of Duloxetine to 60 mg daily and Quetiapine to 100 mg at bedtime. Continued psychological support was recommended along with regular follow-ups to monitor her response to the medication changes, and overall progress.
[103]Exhibit P6, PCB 60-61.
72Dr Duraiswamy’s prognosis was that the severity and intensity of the plaintiff’s depressive, anxiety and psychotic symptoms would reduce with adequate psychiatric treatment involving medication and psychological therapy, however, a complete resolution of her symptoms would be limited by her ongoing pain, her inability to get back to the workforce and the loss of her working role function.[104]
[104]Exhibit P6, PCB 61.
Ms Ipek Sumertas
73The plaintiff’s treating psychologist Ms Sumertas prepared a report for the plaintiff’s solicitors dated 15 July 2024.[105]
[105]Exhibit P7, PCB 63.
74Ms Sumertas reported that by the end of 2021 the plaintiff had undergone three-surgeries and cortisone injections but reported no relief from pain. Post surgeries she developed further pain, in her neck and hips, and that the intensity of her overall pain had become severe and chronic. She reported that she subsequently began to experience symptoms consistent with depression.
75Ms Sumertas noted that on first assessment, the plaintiff described a sense of “worthlessness” and “helplessness”, being “very emotional, sensitive, stressed” with “prolonged periods of crying”.[106]
[106] Exhibit P7, PCB 64.
76The plaintiff reported “very low mood, constant sadness, lethargy, constant exhaustion, forgetfulness, difficulty concentrating, invasive thoughts, ruminations, extremely low motivation, social withdrawal, anhedonia and insomnia”.[107]
[107]Ibid.
77During subsequent psychology sessions, the plaintiff described auditory and visual hallucinations. Ms Sumertas reported that the plaintiff’s scores on the Depression, Anxiety, Stress scales were all in the “extremely severe” range.[108]
[108]Exhibit P7, PCB 64.
78The plaintiff’s treatment from Ms Sumertas was primarily Cognitive Behaviour Therapy (“CBT”). However, Ms Sumertas reported that it was due to a lack of response to CBT alone, that the plaintiff was referred for psychiatric assessment and treatment.
79Ms Sumertas wrote that after taking into consideration the plaintiff’s lack of response to psychological therapy and psychiatric medication, her prognosis seemed poor. She also thought that the plaintiff’s poor prognosis may be due to the development of chronic pain.[109]
[109]Exhibit P7, PCB 67.
Dr David Weissman
80Dr David Weissman is a consultant psychiatrist, who assessed the plaintiff on 4 July 2024 at the request of her solicitors.[110]
[110]Exhibit P8, PCB 69-82.
81Dr Weissman reported that the plaintiff presented with no prior psychiatric history.[111] She told him that before her work injury, she enjoyed shopping, socialising and going out in general. She loved working, and that “working was like going out for me”, and she had a lot of friends at work.[112]
[111]Exhibit P8, PCB 73.
[112]Ibid.
82The plaintiff said that she “now can’t lift [her] arms up very much. [She doesn’t] answer calls now from people. [She doesn’t] return their calls”, and she avoids socialising.[113]
[113]Ibid.
83Dr Weissman thought that the plaintiff had at least a moderate amount of physical and psychiatrically based functional impairment, in terms of day to day, personal, domestic, social and community activities of daily living.[114]
[114]Exhibit P8, PCB 75.
84Addressing her psychological and emotional symptoms, Dr Weissman reported that the plaintiff sees her psychiatrist every six-eight weeks and her psychologist monthly. She was taking Cymbalta and Duloxetine 60 mg per day, and Seroquel 50 mg at night.
85When Dr Weissman asked the plaintiff about her emotional state, mood and morale she said that it was “not very good. It feels like I’m finished up”.[115] She went on to say that she was “very depressed…like I don’t wanna do anything and my arms don’t have the strength to do anything. It’s like I want to sleep all the time”.[116] The plaintiff rated her mood as a 2/3 out of 10 on average.[117]
[115] Ibid.
[116]Ibid.
[117]Exhibit P8, PCB 76.
86The plaintiff said she derived enjoyment from her grandchildren. She said that realistically she did not think that she could work.[118] She said that “I don’t have the strength anymore, and I don’t have the energy, and I don’t feel like getting dressed up anymore”. She said mentally “…I don’t feel normal, like my head’s not in the right place. My head feels it’s all over the place”.[119]
[118]Ibid.
[119] Ibid.
87Dr Weissman reported the absence of an obvious pre-existing or related psychiatric condition or impairment. Dr Weissman suggested that the plaintiff’s separation from her husband was related to her work injuries.[120]
[120]Exhibit P8, PCB 79.
88Dr Weissman considered that the plaintiff continued to experience moderate, mixed, reactive, depressive and anxiety symptoms, themes and features with uncharacteristic reactive frustration and irritability, and some pain and symptom focus, as a consequence of, or secondary to, her work-related pain, injuries, disabilities and restrictions.
89Dr Weissman regarded the plaintiff as most probably satisfying the diagnostic criteria for a chronic major depressive disorder, but he said he preferred a diagnosis of moderate chronic adjustment disorder with depressed and anxious mood, relevant to her employment, because the plaintiff had found it very difficult to adjust, adapt to, cope with, or come to terms with her work-related injuries.[121]
[121]Exhibit P8, PCB 80.
90In Dr Weissman’s opinion, on psychiatric grounds alone, the plaintiff was totally incapacitated for all work, including pre injury duties, suitable duties, or alternate duties. He thought her psychiatric prognosis was moderately uncertain and guarded, but probably relatively poor, negative and unfavourable.[122]
[122]Exhibit P8, PCB 81.
Mr Stephen Doig
91Mr Doig is an orthopaedic surgeon who provided a report on the plaintiff, following examination on 8 July 2024.[123]
[123] Exhibit P9, PCB 83-86.
92Mr Doig diagnosed the plaintiff’s right upper limb complaint as a recurrent right carpal tunnel syndrome with evidence of right subacromial bursitis. He thought her prognosis to be somewhat guarded because he anticipated that she would continue to experience trouble.
93He identified a significant organic component to the plaintiff’s pain in both upper limbs, with clear evidence that she presented with a residual carpal tunnel based on nerve condition studies. He also identified clinically demonstrated objective signs of bilateral upper limb injuries.[124]
[124]Exhibit P9, PCB 85.
94Mr Doig was satisfied that the plaintiff’s employment was a contributing factor to her bilateral carpal tunnel injuries.
95Addressing her right upper limb, Mr Doig reported that the plaintiff experienced difficulty lifting, carrying, holding, pushing, pulling or reaching. Her range of movement was somewhat restricted in her shoulders, but was minimally restricted in her right hand. The plaintiff told him that she had trouble performing daily activities such as cleaning, washing dishes, gardening, playing with her grandchildren, holding scissors and squeezing the nozzle of a petrol pump.
96Addressing the plaintiff’s left upper limb injury alone, Mr Doig diagnosed recurrent carpal tunnel syndrome post-carpal tunnel release and evidence of a mild left subacromial bursitis. As with her right upper limb, Mr Doig thought that the plaintiff will have difficulty in lifting, carrying, holding, pushing, pulling and reaching. Although she did not have a limited range of motion as far as the wrist or the hand was concerned, she did have some limitation in her range of motion of the left shoulder. He said that the plaintiff’s range of restrictions are the same on the right and left sides. He considered that her prognosis was guarded and her condition may warrant a redo carpal tunnel release.
Plaintiff’s Radiology
Nerve Conduction Study dated 22 August 2012
97A nerve conduction study performed on 22 August 2012, found mild median neuropathy at both of the plaintiff’s wrists, consistent with bilateral mild carpal tunnel syndrome.[125]
[125]Exhibit P10, PCB 87.
Ultrasound of the Right and Left Wrists dated 27 February 2020
98Bilateral ultrasounds of the plaintiff’s wrists performed on 27 February 2020, revealed at the:
(a) right wrist: a mildly thickened medial nerve at the carpal tunnel level measuring a surface area of 0.13cm2 (a normal measurement is less than 0.11cm2); and a thickening of the extensor carpi ulnaris tendon and was noted as being suggestive of tendinosis.[126]
(b) left wrist: median nerve measured at 0.11cm2 at the carpal tunnel level (being the upper limit of normal).
[126]Exhibit P11, PCB 88.
99The ultrasound findings raised the possibility of bilateral carpal tunnel syndrome, markedly more on the right side than the left.
Nerve Conduction Study dated 30 March 2020
100Dr Simon Li performed a nerve conduction study and electromyography (“EMG”) on the plaintiff on 30 March 2020.[127]
[127]Exhibit P12, PCB 89.
101He found that the plaintiff’s electrophysiological findings were consistent with bilateral median neuropathy at the wrist, in keeping with the diagnosis of bilateral carpal tunnel syndrome that was moderate to severe in the right wrist, and moderate in the left wrist.[128]
[128]Exhibit P12, PCB 90.
Ultrasound of the Right Elbow dated 23 April 2020
102A right elbow ultrasound conducted on 23 April 2020, found the common flexor and common extensor origins, biceps and triceps tendons appeared intact; no elbow effusion, nor bursal wall thickening or effusion of the olecranon bursa to suggest bursitis.[129]
[129]Exhibit P13, PCB 91.
MRI of the Cervical Spine dated 25 May 2020
103An MRI of the plaintiff’s cervical spine conducted on 25 May 2020, concluded:
(a) early degenerative disc disease including broad based circumferential disc bulging at C5/6 and C6/7. However, there was no evidence of disc herniation or significant central canal stenosis at this level, with mild right sided osteophytic neuroforaminal compromise was observed at C5/6;
(b) a very small non compressive broad based right posterior central disc protrusion at C4/5; and;
(c) no additional significant abnormalities.[130]
[130] Exhibit P14, PCB 92.
X-Ray of the Right Thumb dated 14 December 2020
104An x-ray of the plaintiff’s right thumb taken 14 December 2020, reported normal alignment of the thumb. The joint spaces were preserved, with no subchondral change, and there was early osteophyte formation in the first metacarpophalangeal joint.[131]
[131]Exhibit P16, PCB 94.
Ultrasound of the Right Thumb dated 15 December 2020
105There was a suggestion of mild thickening of the abductor pollicis brevis tendon, however, the tendon sheath was not thickened, and the scan targeted the palmar aspect/ROI. There was no significant joint effusion, and no ganglion demonstrated.[132]
[132]Exhibit P17, PCB 95.
MRI of the Right Wrist dated 13 April 2021
106Dr Daniel Ou performed as MRI scan of the plaintiff’s right wrist on 13 April 2021. Findings included: satisfactory alignment of the wrist and thumb joint, no joint effusion, synovitis or ganglion; and no contusions or fractures.[133]
[133]Exhibit P18, PCB 96.
Nerve Conduction Studies and EMG dated 20 May 2021
107A nerve conduction study was conducted on 20 May 2021. Dr Kiers concluded that there was electrophysiologic evidence of bilateral median neuropathies at the wrist consistent with carpal tunnel syndrome, which was moderate on the left and mild on the right. The study provided no evidence of ulnar neuropathies on either side.[134]
[134]Exhibit P19, PCB 98.
Nerve Conduction Studies and EMG dated 21 October 2021
108A further nerve conduction study was conducted on 21 October 2021. It showed electrophysiologic evidence of mild bilateral median neuropathies at the wrist, however, there had been an improvement on both sides as compared with the previous study performed on 20 May 2021. There was no evidence of ulnar neuropathies on either side; and comparatively reduced right distal radial sensory amplitude, but there was no evidence of a significant right radial sensory neuropathy.[135]
[135]Exhibit P20, PCB 102.
Nerve Conduction Study dated 1 August 2023
109Dr David Freilich conducted a further nerve conduction study on 1 August 2023. He found bilateral carpal tunnel syndrome.[136]
[136] Exhibit P21, PCB 103.
MRI of the Right Wrist dated 12 October 2023
110An MRI of the plaintiff’s right wrist performed on 12 October 2023 identified:
(a) evidence of prior carpal tunnel release, with some scar tissue appearing to bridge the postsurgical gap, which appeared to be irregular and not particularly thickened, or under tension;
(b) subjective mild thickening of the median nerve at the level of carpal tunnel, which did not appear to be significantly inflamed;
(c) a partial tear of the styloid attachment of the triangular fibrocartilage complex (“TFCC”), as well as mild extensor carpi ulnaris tenosynovitis;
(d) mild to moderate distal radioulnar joint (“DRUJ”) fusion, with perhaps very minor degeneration.[137]
[137] Exhibit P22, PCB 104-105,
Ultrasound of the Right Elbow dated 21 February 2024
111The most recent ultrasound of the plaintiff’s right elbow performed on 21 February 2024,[138] showed findings in the common extensor tendon that could point to mild lateral epicondylitis but otherwise, there were no features of median nerve entrapment, which was noted to be the clinical concern.
Other Evidence
[138]Exhibit P23, PCB 106.
Operation Reports
112The plaintiff underwent three operations at St Vincent’s Private Hospital under Mr Anthony Berger, hand and upper limb surgeon.[139]
(a) the first operation, a right endoscopic carpal tunnel release, performed on 24 July 2020, was reported as routine;[140]
(b) the second operation, a left endoscopic carpal tunnel release performed on 24 May 2021, was also reported as routine;[141] and
(c) the third operation was a release of the right trigger thumb performed on 2 September 2021, it was reported as routine.[142]
[139]Exhibit P15, PCB 93, 99 and 100.
[140]Exhibit P15, PCB 93.
[141]Exhibit P15, PCB 99.
[142]Exhibit P15, PCB 100.
Workers Injury Claim Form dated 19 February 2020
113The plaintiff’s injury claim form lodged on 19 February 2020, described her injury as “carpal tunnel both hands”, and attributed it to 13 years of repetitive work as a kitchen catering hand.[143]
[143] Exhibit P24, PCB 107.
Certificate of Capacity dated 18 June 2024
114The plaintiff lodged a Centrelink certificate of capacity completed by her GP Dr Shehata on 18 June 2024, which recorded that she had bilateral carpal tunnel syndrome.[144]
[144] Exhibit P25, PCB 126-127.
115Regarding the plaintiff’s physical function, Dr Shehata recorded that the plaintiff could work two hours per week online from home, lift a maximum 0.5 kg in both hands and avoid repetitive hand/wrist movement.
116The plaintiff’s mental health function was recorded as “low mood, no energy, not able to sleep well, has depression”.[145] She reported her treatment plan as attending a “hand therapist, had two operations for both hands and one operation for her right thumb, had physiotherapy, pain medications, psychiatrist, psychologist, antidepressant”.[146]
[145]Exhibit P25, PCB 126.
[146]Exhibit P25, PCB 127.
Centrelink Medical Certificate dated 18 June 2024
117The plaintiff further lodged a Centrelink medical certificate on 18 June 2024, in which GP Dr Shehata recorded diagnosis of “bilateral carpal tunnel syndrome, depression and osteoporosis”, and her condition as “exacerbation of the exiting condition”.[147]
[147]Exhibit P26, PCB 128.
118The plaintiff’s symptoms were expressed as “pain and numbness both hands, feeling down, not able to sleep well, not able to concentrate, low energy, bodyache has done Dexa scan on 12/12/2022 revealed osteoporosis”.[148]
[148]Ibid.
119Her treatment plan was recorded as “did see hand specialist, had surgeries of both wrists, physiotherapist, pain medications, psychiatrist Dr Ganesan Duraiswamy, psychologist, anti-depressant, using prolia injection for osteoporosis, was referred to see specialist (Dr Azni Wahab) for osteoporosis”.[149]
[149]Ibid.
Letter from Associate Professor David McCombe to Dr David Freilich dated 3 April 2024
120A/Prof McCombe wrote to Dr Freilich requesting that he perform repeat nerve conduction studies on the plaintiff.[150] A/Prof McCombe wrote that repeat nerve studies showed some persistent median neuropathy, and while the plaintiff feels that she has stable symptoms, he wanted to see if she was deteriorating or stable.
[150]Exhibit P27.
Defendant’s Medical Evidence
Mr Audi Widjaja
121The plaintiff saw Mr Widjaja, an orthopaedic surgeon, on 8 January 2020. He wrote to her GP, Dr Kurnaz of that same date providing an update on the plaintiff’s condition.[151] He recorded that the plaintiff suffered from left knee mild osteoarthritis of the medial compartment with a medial meniscus tear; and pseudo articulation of right L5 transverse process with the right sacral ala.
[151] Exhibit D1, DCB 32.
122Mr Widjaja said that surgical intervention was not necessary. He said that the mainstay of the plaintiff’s treatment would comprise regular physiotherapy and analgesia. He noted as well that her left knee pain was “very minimal”.[152]
[152]Ibid.
Four Reports of Mr Anthony Berger
123The defendant tendered four reports of hand and upper limb surgeon, Mr Berger.[153]
[153] Exhibit D2, DCB 35-43.
First Report dated 30 July 2020
124Mr Berger first reviewed the plaintiff on 30 July 2020, one week after he had performed her right endoscopic carpal tunnel release. Mr Berger reported that the plaintiff’s sensory symptoms were settling well, although she still reported some numbness.
Second Report dated 17 December 2020
125Mr Berger again reviewed the plaintiff on 16 December 2020 and provided a report to the defendant. He wrote that she was progressing well following her right carpal tunnel surgery, and she was to have a left sided carpal tunnel release in April 2021.
Third Report dated 22 July 2021
126In his third report to the defendant of 22 July 2021, Mr Berger was asked to comment on a proposed return to work program. He considered that the plaintiff was capable of performing “the duties as described with two hours of computer-based activities”.[154] He said she would need to undertake her work self-paced, without any heavy lifting or other repetitive activities.
[154] Exhibit D2, DCB 39.
127Mr Berger recorded the plaintiff’s treatment had included a right endoscopic carpal tunnel release in July 2020. In November 2020, she presented with left sided carpal tunnel symptoms and right thumb tenderness consistent with early trigger thumb. He observed that the trigger thumb had deteriorated and when reviewed in April 2021, she had experienced a very painful trigger thumb requiring a cortisone injection, but it had failed to relieve her symptoms. It was decided that she required a trigger thumb release, however, she requested the left carpal tunnel to be treated first, and this was released in May 2021. Since then Mr Berger noted her carpal tunnel symptoms had settled but the triggering in the right thumb persisted, and she had been scheduled for surgery in September 2021.[155]
[155]Ibid.
Fourth Report dated 27 October 2021
128Mr Berger reviewed the plaintiff on 27 October 2021.[156] He reported that she had undergone a routine endoscopic carpal tunnel release earlier in the year for her left side, and in July of 2020, had one for the right side and had recently had a trigger finger surgical release on her right thumb.
[156] Exhibit D2, DCB 43.
129Mr Berger reported that the plaintiff complained of some sensory changes, however, recent nerve conduction tests showed very mild nerve problems with improvement since the pre-operation study had been performed, and which he said was not uncommon following successful carpal tunnel release. Mr Berger also recorded that the plaintiff said that she felt she was experiencing significant problems with her shoulder and neck, and might have some cervical spine problems.
Dr Hakan Baglar, GP
130Much of the defendant’s evidence stemming from Dr Baglar concerned her other injuries and rejected WorkCover claim. The defendant tendered a WorkCover questionnaire completed by Dr Baglar on 6 September 2021,[157] and three reports dated 7 September 2021,[158] 6 May 2022,[159] and 14 November 2022.[160]
[157] Exhibit D3, DCB 44-46.
[158] Exhibit D3, DCB 47-48.
[159] Exhibit D3, DCB 49-51.
[160] Exhibit D16, DCB 46-48.
Questionnaire dated 6 September 2021
131Dr Baglar described the plaintiff’s injuries as impacting the “neck, bilateral shoulders, left hip and back pain due to physical nature of her vocational tasks along the 13 years”.[161]
[161]Exhibit D3, DCB 44.
132He wrote that the plaintiff’s first consultation with the claimed injury had been on 29 September 2020.[162] The mechanism of injury was described as “repetitive lifting, carrying, pulling and pushing”.[163] He said that the plaintiff’s reported cause of the injury was consistent with how he would expect the injury to have arisen.
[162]Ibid.
[163]Ibid.
133As to her capacity for employment, Dr Baglar ticked the box for “total incapacity for all duties”, and noted on the questionnaire that the plaintiff’s return to work timeframe was then “not predictable”.[164] The plaintiff’s restrictions were a maximum lifting weight of 5 kgs to waist level, with no weight lifting above shoulders, occasional ability to squat, no pushing or pulling, standing and/or walking for a duration of 15-20 minutes, along with sitting and an ability to drive for a duration of 20 minutes.
[164]Ibid.
134Dr Baglar recommended “physiotherapy, medications and swimming” as possibly assisting a return to normal or modified work duties.[165]
[165] Ibid.
Report dated 7 September 2021
135Dr Baglar’s report was primarily in respect of the plaintiff’s disputed claim for neck, bilateral shoulders, left hip and lower back. Dr Baglar wrote that the plaintiff had:
…been working as a catering assistant for her current employer for 13 years; her tasks involved repetitive bending, rotating, lifting carrying, pulling and pushing as well as repetitive wrist movements which is the cause of her other injury. She did not cite any specific incident or any accident at work but stated that she developed pain along the years because of the physical nature of her vocational tasks. Apparently, she presented at her previous GP for her pain in various parts of her body and had some imaging studies. I had the opportunity to review some of them. most of them.
Dilek's 25 May 2020 dated MRI of her cervical spine revealed early degenerative disc disease at her CS/6 and C6/7 levels along with broad based circumferential disc bulging and a small broad bases right posterior central disc protrusion. She had to have cortisone injection into her left hip in August 2020 for degenerative changes which were causing hip pain and interfering with her sleep and her walking/standing capacity.
Her right shoulder imaging studies revealed bursitis in her subacromial/subdeltoid bursa in October 2020. Again, the similar imaging studies revealed subacromial bursitis with painful bursa bunching in her left shoulder, around same time. Dilek also had small annular disc bulge at her LS/S1 level and stress response in her L3 and LS vertebrae.
Dilek's medical conditions as explained above, with their radiological findings are not severe enough requiring surgery; however, they are severe enough to interfere with her capacity for her pre-injury vocational tasks and, also with her capacity to perform certain household chores.
She stated that because of her continuing lower back pain, her neck pain and pain in her both shoulders making it difficult to fall asleep and, also waking her up frequently whenever she rolls in her bed. Because of waking up frequently, she is constantly tired as if she was never sleeping.
When Dilek sustained the injuries she claims, she was not one of my patients. The medical investigations and procedures she had revealed that she genuinely has multifocal physical problems. Considering the nature of her vocational tasks, as described by Dilek for me, I believe her current clinical condition should be acknowledged by the insurer and she should have the opportunity to treat/ improve her condition.
In her current state, Dilek is not fit for her pre-injury employment or any other employment with similar physical requirements.[166]
[166] Exhibit D3, DCB 48.
Report dated 6 May 2022
136In Dr Baglar’s second report to the defendant he again outlined the radiology relevant to the plaintiff’s cervical spine and shoulder. He wrote:
The pathologies detected by the imaging studies as I listed above are not severe enough to require surgery and not amenable to surgery. However they are severe enough to interfere with her capacity with her pre-injury tasks and also with her ability to perform certain household chores. She also stated that she was having shoulder pain in whichever position she sleeps and with the slightest tossing and turning in bed, she wakes up with pain. Therefore her sleep patterns are frequently interrupted by her pain. This in turn made her tired, lethargic and very moody during the daytime.
Ms. Eymir's claim was accepted and her entitlements continued until she reached to the end of her second entitlement period for her weekly payments.
During my long involvement with Ms. Eymir's care, I happen to have a good idea about her physical state and limitations. I cannot say that Dilek has been paralyzed for the remainder of her life however considering her pre-injury tasks and her current state, I am confident to state that Dilek is not fit to return to her pre-injury employment or to any other employment with similar physical requirements.
She did not have any formal education/training and she has no experience in any non-physical forms of employment. Her English is very limited and she has nothing to offer to any prospective employer in an office setting.
In short, Dilek is not fit for any employment for which she could qualify because of her education, experience and training. She is not employable in a realistic labour market.[167]
[167] Exhibit D3, DCB 50-51.
Report dated 14 November 2022
137Dr Baglar provided an update to the plaintiff’s solicitors addressing both the plaintiff’s bilateral wrist/hand condition and her cervical spine lower back and shoulders. He wrote:
Dilek is reporting that due to pain in her neck, her shoulders, in her hip and also in his lower back, she is unable to perform certain household chores and her sleep was interrupted frequently with pain whenever she turns and tosses in her bed. Since her sleep was interrupted frequently, she was tired throughout the following day.
In terms of her bilateral wrists/hands condition, she admits that her right hand is better than her pre-operation state. However, she complains that she still has some sensory changes in her right thumb and in her first three fingers. The fingers in her right hand feel swollen and she stated that she gets triggering of her right thumb intermittently.
In terms of Dilek’s left hand, she claims that she is better after her post-release surgery on 24 May 2021. However, she has some ongoing sensory disturbance on her thumb and first three fingers.
Apart from the interruption of her sleep due to her pain in other body parts, pain in her right hand also wakes her from her sleep more than a couple times every night. Due to the state of her hands she cannot perform certain house chores and receives help from her adult daughter and she pays a professional for heavier household weekly cleaning. I described vocational tasks Dilek was performing while she was employed as a catering assistant by Programmed Integrated Workforce Limited. I believe her current state (in terms of both of her hands/wrists and also cervical and lumbosacral spine along with her bilateral shoulder and left hip conditions) is the result of her employment.
Due to Dilek’s current clinical state, she is unable to perform certain household chores as well as vocational tasks required for her pre-injury employment. Therefore, she is not fit to return to her pre-injury employment or to any other employment with similar physical requirements. Dilek does not have any formal education and her English is at a very basic level. She does not have any credentials to be employed in a sedentary/office type of duties. I believe Dilek is not fit for any employment for which she could qualify because of her education, experience and training. Her condition is permanent and irreversible.[168]
[168]Exhibit D16, DCB 47-48.
Dr Louise Barberis, Occupational Physician
138Dr Barberis, provided a report to the defendant dated 20 January 2022.[169]
[169]Exhibit D4, DCB 52-57.
139Dr Barberis reported that the plaintiff was recovering from post bilateral carpal tunnel release surgeries, with her left sided symptoms having significantly improved.[170] Dr Barberis reported right thenar and volar wrist discomfort and nocturnal paraesthesia of the plaintiff’s thumb, index and middle finger which was affecting her sleep quality. However, she reported that the right trigger thumb symptoms had resolved post-surgery.
[170]Exhibit D4, DCB 55.
140Dr Barberis thought that the plaintiff was unlikely to resume the fine dexterous tasks and repetitive forceful tasks associated with food preparation and work in a kitchen for the foreseeable future.[171] Dr Barberis considered that the plaintiff had capacity for alternative sedentary and/or light physical duties. She was considered to be unable to lift more than 500 gm or undertake repetitive or forceful activities with her hands.
[171]Ibid.
141Dr Barberis reported that the plaintiff was managing two hours of online training per week with her pre-injury employer, however, her computer skills are limited and she thought them unlikely to translate to meaningful work.[172] Dr Barberis thought that the plaintiff required redeployment to more suitable duties such as light process work, quality checks and light packing, and for her to gradually build up to pre-injury hours.
[172]Exhibit D4, DCB 56.
142Dr Barberis noted that the plaintiff reported issues with her neck and shoulders. She mentioned Mr Berger’s report dated 26 January 2021, which referenced successful surgical release and ongoing neck and shoulder pain.[173]
[173]Exhibit D4, DCB 56.
143Dr Barberis reviewed the employment options referred to in a transferable skills analysis report dated 15 April 2021 and considered that the plaintiff was unsuitable to be a caterer and/or kitchenhand, given she was unable to use knives, stir food, use blenders or other kitchen utensils nor handle plates, pots and pans on a repetitive basis, nor was she thought suitable for work as a cashier, given her inadequate numeracy skills and that retraining would be required.[174] Dr Barberis thought the plaintiff was not suited to be an information attendant or telephone operator, as her English language skills would be unacceptable and retraining would be required. Dr Barberis, on the other hand considered that the plaintiff would, depending on the nature of the tasks, be suited for employment options such as product assembler process worker (light items), and retail assistant (light items).[175]
[174]Exhibit D4, DCB 57.
[175]Ibid.
144Addressing the plaintiff’s hands and wrists, Dr Barberis thought that her current management is appropriate, and she should expect a reduction and withdrawal of hand therapy within the next eight weeks or so in favour of self-management.[176] Based on an objective physical assessment of the plaintiff, Dr Barberis said that her functional tolerances of sitting, standing, walking bending are unrestricted. The plaintiff’s lifting, pushing and pulling tolerance was a 0.5 kg bilateral limit, and her driving capability was upwards of 10 kms.[177]
[176]Ibid.
[177]Ibid.
Dr Dennis Handrinos, Psychiatrist
145Dr Handrinos assessed the plaintiff at the defendant’s request on 2 February 2022.[178]
[178]Exhibit D5, DCB 58-66.
146On examination, he noted that the plaintiff’s mood was depressed and she cried at times. He said that “Themes in her speech focused on her inability to work, inability to come to terms with the fact that she is not doing the work that she wants to do and a sense of hopelessness about her future”.[179]
[179] Exhibit D5, DCB 61.
147He thought that the plaintiff was suffering from an adjustment disorder with depressed mood, relevant to the claimed injury.[180]
[180]Ibid.
148Dr Handrinos reported that despite the plaintiff’s complaints of fatigue and a lack of energy, she was not incapacitated for work in her pre injury duties and hours from a psychiatric perspective. He wrote that any impediment to work related to the plaintiff’s pain and physical complaints was beyond the scope of his report.
149He considered that the plaintiff has capacity for work in suitable employment from a psychiatric perspective. However, he noted problems with the plaintiff’s English proficiency and her history of unskilled work.
150He said that “in theory” from a psychiatric perspective, she could work in each of the suitable employment roles that he had been supplied as caterer/kitchen hand; product assembler (light items); process worker (light items); cashier; retail assistant (department stores, ie Kmart, Target, Big W); information attendant (customer facing, ie shopping centre); telephone operator (taxi’s or hospital).
Associate Professor Evange Romas, Rheumatologist
151Associate Professor Romas undertook a clinical examination of the plaintiff on 7 July 2022 and provided a report to the defendant of the same date.[181]
[181]Exhibit D6, DCB 67-72.
152On examination, he found:
(a) the plaintiff’s neck moved uniformly and had no signs of injury.
(b) the plaintiff’s wrist joints moved normally, and there was no clinical indication of tenosynovitis or small joint synovitis.
(c) there was no demonstrable triggering, or no visible scarring, in her right thumb and the CMC, MP and IP joints moved normally.
(d) on testing her median nerve motor function in her hands, the plaintiff exhibited only pseudo-weakness with “giving way”.[182] A/Prof Romas was satisfied that the plaintiff had no thenar atrophy or neurogenic weakness in either hand.
(e) the plaintiff’s responses to median nerve sensory function were patchy, however, this was consistent with mild residual bilateral median nerve sensory deficits.
(f) no signs of cervical C6 or C7 radiculopathy, and no signs of complex regional pain syndrome in either upper extremity.
(g) no cutaneous signs of systemic sclerosis.
[182] Exhibit D6, DCB 68.
153A/Prof Romas reported that the ultrasounds disclosed no significant abnormality of the wrist joints, or flexor tendons.
154A/Prof Romas found no intrinsic bilateral wrist joint abnormality, no persisting right thumb constrictive tenosynovitis or dysfunction, but mild residual bilateral median nerve sensory deficits and minor surgical scarring.[183]
[183]Exhibit D6, DCB 69.
155A/Prof Romas regarded the plaintiff’s prognosis to be determined by psychological factors. He reported her injuries to be stable and that the plaintiff likely had bilateral carpal tunnel syndrome, however, carpal tunnel decompression had been satisfactory and the condition was now substantially resolved.
156A/Prof Romas reported the plaintiff’s surgical scarring was barely visible and did not impinge in the activities of her daily living.
Medical Panel Opinion and Reasons
157A Medical Panel examined the plaintiff on 27 October and 8 November 2022, and provided an opinion and reasons dated 16 January 2023 in respect of the plaintiff’s physical and psychiatric injuries.[184]
[184]Exhibit D8, DCB 93-106.
Physical Injuries
158The plaintiff was assessed with a 3% whole person impairment resulting from the accepted carpal tunnel syndrome in both the plaintiff’s left and right wrists/hands, right thumb, and surgical scarring injury. The plaintiff’s degree of impairment was considered permanent.
159Physically, the Panel concluded that the plaintiff suffers from residual right and left hand and wrist dysfunction, following surgically treated bilateral carpal tunnel syndrome and trigger right thumb, that was now resolved, relevant to the accepted right and left carpal tunnel syndrome, right thumb and surgical scarring injuries.[185]
[185]Exhibit D8, DCB 97.
160The Panel acknowledged that the plaintiff gave a history of residual left hand symptoms, but on examination documented no permanent impairment attributable to the accepted injury to the left hand. The plaintiff also gave a history of residual right hand symptoms, but similarly on examination, the Panel documented no permanent impairment attributable to the accepted right hand (other than the right thumb).
Psychiatric Injuries
161Psychiatrically, the Panel found the plaintiff was suffering from a chronic adjustment disorder with mixed anxiety and depressed mood, attributable to her accepted psychological injury. The Panel considered that her psychiatric condition had stabilised, but noted that she was considering taking antidepressants.
162The Panel was of the opinion there was no psychiatric impairment from an unrelated injury or cause which is playing a part in the worker’s current psychiatric impairment. It considered that the breakdown of the plaintiff’s marriage appeared to be linked to her injuries and in that sense could not be considered an unrelated cause, however, it did not consider the plaintiff’s current psychiatric symptoms or impairment to be related to the marriage breakdown.
163The Panel agreed with A/Prof Damodaran’s assessment dated 20 July 2022, that all of the plaintiff’s psychiatric impairment, was secondary to the physical injury.
164The Panel assessed the plaintiff with a 0% psychiatric impairment.[186]
[186]Exhibit D8, DCB 93.
Dr Loretta Reiter, Rheumatologist
165Dr Reiter prepared a report for the defendant’s solicitors dated 10 September 2024.[187] She was provided with the plaintiff’s affidavit, the reports of Dr Barberis, A/Prof Romas, the Medical Panel opinion and the plaintiff’s radiology.
[187]Exhibit D9, DCB 107-117.
166Dr Reiter wrote:
Ms Eymir was diagnosed with bilateral carpal tunnel syndrome, right greater than left which was considered to be aggravated by her employment.
In addition, she had right trigger thumb.
She had surgery to decompress the right median nerve and her right flexor pollicis longus tendonitis, which was causing her right trigger thumb, on 24 July 2020 by the surgeon, Mr Anthony Berger. This was then followed by surgery to decompress the median nerve in her left carpal tunnel in May 2021, also by Mr Anthony Berger, Surgeon.
Although, I note that Ms Eymir reports that she has ongoing pain and sensory changes in her left and right hand affecting her first three fingers and thumb, the panel found that she had patchy and inconsistent areas of reduced sensation with both pinprick and two-point discrimination that was not in an anatomical distribution, and therefore not within the median nerve distribution indicating that she had a good outcome from her carpal tunnel surgery in both hands. Her sensory complaints were not due to median nerve impingement in her carpal tunnels.
In addition, although Professor Romas found her to have mild sensory changes, and his impairment of 4% was not too dissimilar from the Medical Panel’s impairment finding of 3%. However, he did find a full range of motion of both wrists as well as her right thumb, different to the range of motion noted by the Medical Panel.
Further to this, Professor Romas noted that her sleep “is now disturbed by worries rather than paraesthesias”, which is not what is claimed by Ms Eymir in her affidavit.
In addition, the Medical Panel noted that her numbness was intermittent and it only occurs two to three times a week and last five to ten minutes, which in my opinion is extremely infrequent.
Therefore, it is my opinion that Ms Eymir has completely recovered from her bilateral carpal tunnel syndrome and her right trigger thumb.[188]
[188]Exhibit D9, DCB 112.
167Dr Reiter considered that the plaintiff had recovered from her left and right carpel tunnel syndrome, as well as her right trigger thumb, with surgical decompression.
168As to the radiology, Dr Reiter noted that the MRI of the right wrist of 12 October 2023 included that the median nerve was not significantly inflamed, in keeping the plaintiff having had a successful right carpal tunnel release/decompression. She considered that there was evidence of age-related changes in the plaintiff’s wrist, which may be contributing to the wrist pain of which the plaintiff was complaining.
169Addressing the cause of the plaintiff’s bilateral carpal tunnel, Dr Reiter wrote:
In my opinion, I consider that her bilateral carpal tunnel syndrome was due to her age, female gender and her BMI of 29.9 kg/m2, top of the overweight range.
Although I note that her work was repetitive and fast, as was described, I would disagree with Dr Gary Davison, Occupational Physician’s opinion expressed in his medical report dated 25 March 2020, that the work aggravated her condition as he considers that her work was repetitive and forceful.
I would not consider the work that she was doing to be forceful, so in this regard I would disagree with Dr Davison’s opinion.
According to the literature, carpal tunnel occurs in those occupations that involve the prolonged use of vibrating tools: e.g. welders, boilermakers, grinders; as well as those occupations that involve repetitive tasks requiring repetitive wrist flexion/extension with forceful grip: e.g. slaughterhouse workers, meat boners.[189]
[189]Exhibit D9, DCB 114 (citations omitted).
170Dr Reiter noted that a number of occupational and non-occupational risk factors for median nerve entrapment at the wrist. Of the non-occupational risk factors, she emphasised the following:
(a) Age: Very strong evidence; risk increases with increasing age;
(b) BMI: Very strong evidence; high BMI increased risk;
(c) Gender: Very strong evidence; female.
171Dr Reiter addressed the plaintiff’s treatment, that included taking duloxetine and quetiapine for depression, and not for pain management. She wrote “in my opinion, Celebrex is for joint pains and not for carpal tunnel syndrome, from which she has recovered. I consider that she does not require any future treatment in regards to her bilateral carpal tunnel syndrome or her trigger thumb as these have resolved”.[190]
[190]Exhibit D9, DCB 115.
Dr Leon Le Leu, Occupational Physician
172Dr Le Leu provided a report to the defendant dated 2 August 2021 addressing the plaintiff’s neck, shoulders and lower back.[191] Addressing the reported symptoms of each in turn and based on his examination he said as follows:
[191]Exhibit D12, DCB 128-141.
Neck
· She has pain over the left trapezius, like a cutting sensation and also pain over the back at the neck.
· The pain is worse with flexion, but it also appeared to be bad on extension on examination.
· Coughing or sneezing increases the pain in the neck.
· Sometimes she cannot rotate the neck.
Right Shoulder
· She has no pain there now.
· She has a better range of movement than on the left side, but on examination, it was not good.
Left Shoulder
· She has pain there right now.
· She pointed out the pain areas, the deltoid and trapezius. As a result, she cannot put on her bra or remove it.
· She has a decreased range of movement.
Lower Back
· She took some tablets this morning, so has no pain at present but expects to have some later on.
· The pain is mainly on the left side, going into the left buttock and going down the leg all the way to the heel.
· It seems like her hip pain is coming from the back, not the hip (which is probably correct).
· Bowel and bladder work normally.
· When she sits for too long, she cannot get up, and she cannot sit on the floor.
· Coughing or sneezing increase the pain.[192]
[192] Exhibit D12, DCB 138.
173Dr Le Leu diagnosed the plaintiff with longstanding degenerative disease in several areas. He considered that her neck, back and shoulder disorders were more probably than not on a degenerative basis.
174Regarding the extent to which the plaintiff’s employment contributed to an aggravation, acceleration or exacerbation of a pre-existing condition, Dr Le Leu wrote, “this is imponderable, but I suspect her conditions would have come on anyway irrespective of work. The symptoms in the neck and back came on a long time ago, but she did very little about them then and certainly made no claim”.[193]
[193] Exhibit D12, DCB 139.
175Dr Le Leu did not consider that the plaintiff had a capacity for pre injury duties. He thought that she could perform work within the following restrictions:
· No lifting, carrying, pushing or pulling greater than 2.5 kg (or horizontal force equivalent).
· No repetitive or sustained back bending or twisting.
· No repetitive or sustained neck bending or twisting.
· No work with either hand or arm at or above mid-breast level.
· No work on ladders or at heights.[194]
[194] Ibid.
176Dr Le Leu reported that the duration of the restrictions was probably permanent and he did not consider that there was anything that could help the plaintiff achieve a full return to work.
The Plaintiff Cross-Examined
177The plaintiff testified with the assistance of an interpreter. Some of the cross-examination identified a poor recall by the plaintiff on matters reported by various practitioners to have been volunteered by the plaintiff on examination.
178The plaintiff could not remember if A/Prof McCombe, whom she saw on two occasions in October 2023, following further nerve conduction studies and an MRI and ultrasound of her right elbow, had identified evidence of tennis elbow.
179Having seen the plaintiff on 19 February 2024 A/Prof McCombe said the plaintiff had been referred for repeat nerve conduction studies as part of a further investigation of carpal tunnel symptoms, but the plaintiff could not recall if the studies were subsequently undertaken.
180The plaintiff testified to wearing a soft brace around her right hand and wrist. She said she had worn it since her thumb operation in September 2021. She said that sometimes she wears the brace of a day, but not every day and there are occasions when she doesn’t use it, for example, when her wrist and hand are not bothering her, but she also said that her wrist and hand bothers her all the time but she sometimes forgets to put it on.
181The plaintiff said the benefit of the brace is to tighten her hand and provide warmth.
[236] Exhibit D4, DCB 55.
231Ms Cameron addressed the question of the extent of ongoing carpal tunnel problem and submitted that the most appropriate reporter is A/Prof McCombe, the plaintiff’s treating hand surgeon.
232Ms Cameron referred to A/Prof Romas who examined the plaintiff on 7 July 2022,[237] and expressed the opinion that her carpal tunnel decompression was satisfactory and that the condition had resolved.
[237] Exhibit D6, DCB 69.
233Ms Cameron referred to Dr Reiter who provided a desktop report dated 10 September 2024. She was provided with the plaintiff’s affidavit of September 2023, the report Dr Barberis and A/Prof Romas, the Medical Panel opinion, the complete record of the Coburg Family Medical Centre and radiology undertaken to that point in time. She said that the plaintiff’s bilateral carpal tunnel syndrome had resolved, as had the plaintiff’s right trigger thumb. Ms Cameron submitted that there appeared to be no dispute that the trigger thumb was repaired by the surgery, a conclusion I was urged to accept, and that was consistent with the plaintiff’s evidence in cross examination.
234Ms Cameron referred to A/Prof McCombe’s report dated 19 February 2024,[238] who when addressing the course of the plaintiff’s ongoing symptoms, said he was unclear why and had requested repeat nerve conduction studies in his correspondence to Dr Freilich in April 2024, but which had not been undertaken.
[238] Exhibit P5, PCB 56.
235Ms Cameron referred to A/Prof McCombe’s report dated 7 August 2024,[239] when he expressed the opinion that the previous nerve conduction studies had shown improvement consistent with an effective release with her surgery, but that on the basis of the plaintiff’s recurrent symptoms, it was reasonable to investigate further with an MRI scan. Given the plaintiff’s right sided symptoms were the more significant, he recommended an MRI scan should occur on the right side. A/Prof McCombe described the MRI scan of October 2023 as showing that the median nerve was thickened within the carpal tunnel, but there was no significant change in the intensity of the soft tissue signal in the nerve and some scarring of the site of release, and it was unclear if this was causing “recurrent compression”.[240] He said he discussed the findings of the October 2023 MRI scan with the plaintiff in February 2024, when she also reported to him some other symptoms. He referred her for an ultrasound of the elbow for possible elucidation but it did not reveal any abnormality of the median nerve. There was, however, some evidence of lateral epicondylitis (tennis elbow). Then having referred the plaintiff for repeat nerve conduction studies to determine if the improvement within the parameters of nerve function had continued, or there had been further deterioration, they had not been performed.
[239] Exhibit P5, PCB 57.
[240] Exhibit P5, PCB 58.
236Addressing the ongoing contribution to the plaintiff of her back, neck, shoulder and hip pain, Ms Camereon submitted that the plaintiff fell afoul of the requirement set down in Peak Engineering & Anor v McKenzie (“Peak Engineering”),[241] in the sense that she had not enabled findings to be made as to what consequences affect her from the claimed impairment by comparison to her other conditions.
[241] [2014] VSCA 67.
237Ms Cameron submitted that Dr Weissman’s report of 4 July 2024,[242] was unhelpful, as he only recorded a history of left knee arthroscopy and no ongoing pain or discomfort in her left knee, and of the plaintiff having experienced some stomach problems in the past, and of having undergone an appendectomy sometime in the past.
[242] Exhibit P8, PCB 73.
238Ms Cameron submitted that Mr Doig obtained an incomplete and insufficient history recorded in his report dated 8 July 2024,[243] of a past history of knee injuries and that the plaintiff had denied any significant problems with her arms prior to the gradual onset in 2014. Moreover, he recorded that the plaintiff was unable to say if she had any other problems of a medical nature in the past but she gave an account of some right shoulder problems and occasionally some problems with the left shoulder at the date of examination.
[243] Exhibit P9, PCB 84.
239Ms Cameron submitted that Mr Doig’s report had not disentangled or disaggregated consequences of the carpal tunnel from her shoulders, and made no accounting of them because he was unaware of them and, moreover, his report combined carpal tunnel and the plaintiff’s shoulders and he provided an opinion about the effect of the injuries on the plaintiff’s recreational, domestic and social activities.[244]
[244] Exhibit P9, PCB 85-86.
240Ms Cameron submitted that the plaintiff’s account is questionable that Panadol Osteo that had been recommended in January 2020 by her orthopaedic surgeon for back pain is also efficacious for her hands.
241Ms Cameron submitted that it would be open to find that the plaintiff had exaggerated her evidence of her hands being cold and swollen all the time in light of the Medical Panel on examination not having found the same.
242As to a psychiatric or psychological injury from which the plaintiff may be labouring, Ms Cameron referred to the plaintiff’s evidence that her depression commenced because she was unable to work, and not because of pain.[245] In the wake of the Covid disruption to the airline industry, the plaintiff was on modified duties before and when she ceased work in March 2020.
[245] T 30, L 11-16.
243Ms Cameron submitted that the plaintiff’s psychological condition was not, in any event, severe. Although the plaintiff takes medication and sees a psychologist and a psychiatrist, she has not been an inpatient for any treatment, and by and large, the diagnosis is better understood as an adjustment disorder. Despite the plaintiff’s treating psychiatrist diagnosing a major depressive disorder, Dr Weissman described the plaintiff as having a moderate amount of psychiatrically based functional impairment. In any event, as to the plaintiff’s prognosis for any relevant condition, her treating psychiatrist is of the opinion that she can improve.
Plaintiff’s Final Address
244Ms Frederico submitted that if the application made under paragraph (a) of the definition of serious injury for a bilateral impairment of the hands is impermissible as a matter of law, then the plaintiff’s claim is pursued alternatively by reliance on either the impairment to one or other of the hands.
245Ms Frederico submitted I should regard the plaintiff as woman of credit, who gave her evidence in an honest and straightforward manner. Ms Frederico referred to a series of concessions against interest made by plaintiff under cross examination, that should buttress a favourable finding of the plaintiff’s overall credit.
246Ms Frederico submitted that I could have regard to the plaintiff’s very strong work history, both prior to commencing with the defendant and when working for it, noting that she had been employed since she arrived in Australia in 1988, taking only 11 to 12 months off when she had her two children.[246]
[246] T 82, L 5-21.
247Ms Frederico submitted the plaintiff was ready, willing and able to work at all times and losing her job was a great loss, which was plainly reflected in her evidence.
248As to the use of a brace, Ms Fredrico submitted that the plaintiff’s wearing of it was explained because her hands feels cold. The plaintiff told the Medical Panel that she wears the gloves at night to keep her hands and the scars warm. Ms Frederico submitted that the plaintiff’s affidavit was that she usually wears a glove, and there had been many references to her feeling the cold in her hands.
249Mr Frederico pointed out that the plaintiff agreed in cross-examination that her physiotherapy treatment had have borne witness to improvements in her back, neck, shoulders and hips, however, Ms Frederico observed that the plaintiff was only taken to a selection of the physiotherapy records. Ms Frederico submitted that the records for 2024, identified a reduced treatment regime for the conditions of the plaintiff’s neck, back and shoulders but an enhanced focus on the bilateral forearms and carpal tunnel injury, with the most recent entry of 4 September 2024 referring to “Increased pain in bilateral forearms. Pain medication is not helping”.[247] Ms Frederico submitted that despite the absence of a report from the plaintiff’s physiotherapist, the clinical notes are a primary and reliable source of evidence.
[247] Exhibit P28.
250Ms Frederico referred to the defendant’s admission that 45 hours of surveillance of the plaintiff was commissioned and with 7 minutes of footage obtained in January and September 2024, but with none of it being relied on by the defendant as relevant to contradicting the plaintiff’s evidence.
251Ms Frederico addressed the nature of the plaintiff’s injury. She referred to Mr Doig’s finding of clear evidence of residual carpal tunnel.[248] Dr Shehata, the plaintiff’s treating GP, on whom the plaintiff regularly attends, commented on the nerve conduction study dated 1 August 2023.[249] The plaintiff’s treating hand surgeon, A/Prof McCombe said of the plaintiff that “she has developed recurrent symptoms of carpal tunnel syndrome, particularly on the right side, with hand numbness and pain”.[250] He noted how MRI showed some slight thickening of the median nerve and possible recurrent carpal tunnel syndrome, and which he said was supported by the plaintiff’s symptoms, as well as her nerve conduction studies the previous year.[251]
[248] Exhibit P9, PCB 85.
[249] Exhibit P21, PCB 103.
[250] Exhibit P5, PCB 58.
[251] Exhibit P5, PCB 56.
252Addressing the plaintiff’s reliance on a paragraph (c) injury, Ms Frederico submitted that Ms Sumertas,[252] the plaintiff’s treating psychologist, and Dr Duraiswamy,[253] the plaintiff’s treating psychiatrist, diagnosed a major depressive disorder. Ms Frederico submitted that although Dr Weissman found a moderate chronic adjustment disorder, that in his reasoning to diagnosis he said that “in terms of symptoms alone, she most probably satisfies the diagnostic criteria for a chronic major depressive disorder”,[254] however, he went on to say that he preferred the diagnosis of a chronic adjustment disorder, “because she has found it very difficult to adjust, adapt, cope with and come to terms with her work-related injuries”.[255]
[252] Exhibit P7, PCB 65.
[253] Exhibit P6, PCB 61.
[254] Exhibit P8, PCB 80.
[255] Ibid.
253Dr Weissman psychiatric prognosis “for the future is moderately uncertain and guarded and probably relatively poor, negative and unfavourable”.[256] Dr Weissman recorded the plaintiff’s symptoms to include feeling, hopeless, worthless and useless. Ms Frederico noted that the plaintiff’s marriage had collapsed, and referred to that in terms of her not being able to cope any more in difficult circumstances, and the loss of her work.
[256]Exhibit P8, PCB 81.
254Dr Duraiswamy described “significant decline in motivation, ability to engage…and deterioration in self-care”.[257] He noted that the plaintiff had psychotic symptoms, was seeing shadows, hearing noises and experiencing auditory hallucinations and was a reason for the increase in duloxetine.[258]
[257] Exhibit P6, PCB 60.
[258] Exhibit P6, PCB 60; T 100, L 16-26.
255Ms Sumertas provided a significant and detailed description of the plaintiff’s symptoms that included moodiness, loss of pleasure, increased weight, some insomnia, fatigue, feelings of worthlessness and guilt, and depleted concentration. Ms Sumertas reported that there had been some suicidal ideation.[259]
[259] Exhibit P7, PCB 66.
256Accordingly, Ms Frederico submitted that overall the plaintiff’s application under paragraph (c) meets the “severe” test. Ms Frederico submitted that the plaintiff is taking a significant amount of medication, in particular 120 milligrams of duloxetine; she has been diagnosed with major depressive disorder; and has been receiving consistent psychological treatment for at least the last three years.
257In addressing permanence, Ms Frederico submitted that the carpal tunnel has required three surgeries, and that the plaintiff has developed recurrent carpal tunnel and has reached a point where she does not want to pursue further surgery to her right wrist and that her attitude should be regarded as reasonable in all the circumstances given the results to date from previous surgery.[260] Ms Frederico also relied on the prognoses of Mr Doig and Dr Duraiswamy.
[260]Ibid.
258Ms Frederico observed that Professor Damodaran found a 14% permanent impairment,[261] with the Medical Panel assessing a 15% permanent impairment.[262] Dr Duraiswamy, although expressing some optimism, said that complete resolution of the plaintiff’s symptoms were likely limited by reason of her ongoing pain, her inability to get back to the workforce, and the loss of her working role.[263]
[261]Exhibit D7, DCB 88.
[262]Exhibit D8, DCB 102.
[263]Exhibit P6, PCB 61.
259As to the defendant’s argument that the plaintiff had not discharged the obligation to disaggregate the compensable injuries from her other conditions, Ms Frederico relied on the plaintiff continuing to undergo physiotherapy for her forearms and wrists, this being a state of affairs consistent with her oral evidence of their ongoing troubling presentation. Ms Frederico submitted that by contrast, recent attendance records are indicative that the treatment the plaintiff has received for her neck, shoulders and lower back has been intermittent, and the plaintiff is predominately receiving treatment for her upper limbs. Ms Frederico submitted that Dr Baglar’s opinion is somewhat outdated,[264] and instead, she pressed reliance on the evidence of Dr Shehata, that the plaintiff’s incapacity is due to her carpal tunnel injury, as well as the certificates of capacity he has issued.[265] Ms Frederico submitted that the Certificate of Capacity dated 18 June 2024 referred to bilateral carpal tunnel syndrome,[266] and with the second Centrelink Certificate of the same date,[267] referring to bilateral carpal tunnel syndrome and depression, and of the plaintiff having no work capacity.
[264]Exhibit D16, DCB 46; T 87, L 29.
[265]Exhibit P25, PCB 126-127; Exhibit P26, PCB 128.
[266] Exhibit P25, PCB 126-127.
[267] Exhibit P26, PCB 128.
260Ms Frederico submitted that the evidence revealed the plaintiff’s genuine love of her work, and of its loss having been of very great significance and that although the plaintiff’s neck, back and shoulders caused her problems, they were not the reason that put her off work.[268] Ms Frederico submitted that the plaintiff’s evidence should be accepted about the condition of her shoulders, neck and back as being comparatively minor compared to her wrist and forearm injuries. Ms Frederico observed that the plaintiff had stood for a number of hours while giving her evidence and without complaint of back pain.
[268]T 89, L 4-7.
261Ms Frederico submitted that the plaintiff testified about how the other conditions affect her activities, such as dressing, but despite experiencing pain in her shoulders, she emphasised that it is her hands which inhibit her ability to dress.
262Ms Frederico relied on the plaintiff’s evidence of gardening, housework and cooking, and of it being her hands which prevent her from going about these activities as she previously did.[269]
[269] T 93, L 15-22; T 35-37.
263Ms Frederico submitted that because the plaintiff is right hand dominant, there are innumerable activities which she cannot perform because of the carpal tunnel as it particularly affects her right hand.
Analysis and Findings
Paragraph (a) Claim
264Turning now to consider what injuries were caused by the plaintiff’s work, it is accepted by the defendant that the plaintiff developed bilateral carpal tunnel syndrome which was confirmed on ultrasound and by nerve conduction studies. The work activities the plaintiff deposed to in detail, as well as medical opinions, support the mechanism of injury and its diagnosis. I accept that the plaintiff has symptomatic carpal tunnel syndrome.
265I am satisfied that the plaintiff has made out her claim for a certificate for pain and suffering under paragraph (a) of the definition of serious injury. My reasons for reaching this conclusion follows.
266First, I will address the plaintiff’s credit, as it was a matter of significance from the defendant’s perspective. As President Maxwell said in Haden Engineering Pty Ltd v McKinnon,[270] the weight to be attached to the plaintiff's account of the pain experience will, of course, depend on assessment of the plaintiff's credibility. Contrary to the defendant’s submission, I am not satisfied that the plaintiff’s credit was impugned. I accept that there was demonstrated occasions in which the plaintiff’s recall was found wanting, but certainly not to such a degree as to have caused me to doubt the plaintiff’s efforts in giving her evidence as best she could, or that the absence of recall, undermined the plaintiff’s evidence of the pre-eminent significance of the pain and suffering consequences caused by the conditions of her hands and forearms and most notably her right hand.
[270] (2010) 31 VR 1.
267I am not persuaded that the plaintiff gave disparate and, therefore, troubling evidence about the wearing of a brace. The plaintiff’s evidence was not that she always wears it. Her explanation that she sometimes forgets to wear it, despite her evidence that she always needed it, is not irreconcilable. The plaintiff gave evidence with the assistance of an interpreter and this is also a factor to put into the overall mix in assessing the weight to be given any discordance in her evidence on contested matters of fact.
268I am next required to assess if the plaintiff has complied with her obligation to enable an assessment to be made of the pain and suffering consequences attributable to the right or left hands from carpal tunnel as opposed to the pain and suffering consequences due to the state of her back, hip, shoulders and neck. I am amply satisfied that she has done so. Not infrequently, a plaintiff will present to Court with unrelated health conditions. That is not a bar to a successful claim. However, such a state of affairs can prove problematic if the other condition or conditions themselves inflict on a plaintiff the same pain and suffering consequences as do an impairment to a different body function on which reliance is placed under a paragraph (a) claim.
269The substance of the challenge made to the plaintiff can be seen in this extract from the defendant’s cross-examination:[271]
[271]T 37, L 6-31; T 38, L 1.
“So you admit at least that there would be times that those pains, the back, neck and shoulder, would stop you from doing those heavier household chores?---Yes.
Cooking traditional Turkish meals, standing in the kitchen for a long time, lifting heavy pots, bending over to the oven repeatedly, those are things that you wouldn't be able to do because of your back, neck and shoulders.
INTERPRETER: Without the hands again?
MS CAMERON: Without the hands?---No, it won't affect me. I would try to do them.
Similarly, getting dressed. You have said you have difficulty washing your hair, difficulty getting dressed, you wear larger clothes to make them easier to
put on. Those are things that are impacted by back, neck and shoulder pain, aren't they?
INTERPRETER: Again without the hands?
MS CAMERON: Yes?---It won't stop me but it might slow me to do some of the things.
The real situation is that you have a multitude of problems and pain throughout your body, don't you?---Yes, I do have pains.
All of those things combined impact your life on a daily
basis?---Yes, it does impact me.
And you take pain medication for all of those problems?---I take my painkillers mainly for the throbbing, the pain in my hands, because they are more severe. Like, the other parts aren't severe”.270I have taken into account that the plaintiff’s treatment for the unrelated conditions is comparatively infrequent and has been for some time, in contrast to the treatment that is required and continues to be undertaken by her for her carpal condition. I accept the plaintiff’s evidence that the unrelated conditions are a comparatively less and infrequent break on her activities as opposed to her carpal syndrome. The records of attendance and notes from Alpha Health Physiotherapy are testament to the increased trajectory throughout 2024, but particularly after and since about March 2024, of the accepted work claim. Notes in June, July and August are replete with accounts of bilateral pain in the forearms and reaching into the hands. For example, on 2 August 2024 it is recorded that the plaintiff presented with "pain in bilat forearms and pain radiating into hands. having difficulty sleeping at night". On 12 July 2024, it was noted that the plaintiff had “increase pain in bilat forearms. pain meds not helping". I consider the recent attendances are consistent with the plaintiff’s evidence of her symptoms, and with a number of the medical opinions, and is more probative than the older opinions by Dr Baglar.
271In August 2024, A/Prof McCombe said of the plaintiff:
"She has developed recurrent symptoms of carpal tunnel syndrome, particularly on the right side, with hand numbness and pain".[272]
[272]Exhibit P5, PCB 58.
272A/Prof McCombe also noted that MRI showed that there was some slight thickening of the median nerve and possible recurrent carpal tunnel syndrome which he said was supported by the plaintiff’s symptoms and nerve conduction studies from 2022.
273I find that the plaintiff has disaggregated the consequences of her the hands and wrists from the other conditions and that it is her work related injuries that currently and will likely into the future be the reason for the limitations and pain and suffering about which she complains. I find, therefore that she has discharged the requirement expressed in Peak Engineering.[273]
[273][2014] VSCA 67.
274I am not persuaded by the defendant’s arguments that the plaintiff has failed to disentangle the psychological or psychiatric consequences of her mental or behavioural condition in any assessment required under paragraph (a). As the Court of Appeal in Noori v Topaz Fine Foods Pty Ltd said:[274]
With great respect, no question of ‘disentanglement’ arises under para (c) of the definition of serious injury. As the decisions of this Court make clear, ‘disentanglement’ is a task which arises — if at all — only in relation to para (a) of the definition. That is, where the application is based on the ‘permanent serious impairment or loss of a body function’, the court is obliged — by s 134AB(h) — to exclude from consideration ‘the psychological or psychiatric consequences of a physical injury’. Where necessary, that will require the ‘disentangling’ of the psychological consequences of the injury from the physical consequences.
[274][2018] VSCA 323, [5].
275In Meadows v Lichmore Pty Ltd, the Court of Appeal said:[275]
As a result, so the respondent submitted, serious injury applications raising issues of this kind are effectively approached in a two-step manner. The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative — and, of course, if the pain and suffering consequences satisfy the statutory criterion — then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.
[275][2013] VSCA 201, [21].
276Mr Doig was satisfied that the plaintiff suffered an organic injury in the form of residual carpal tunnel, and A/Prof McCombe, the plaintiff’s hand surgeon, said that “she has developed recurrent symptoms of carpal tunnel syndrome, particularly on the right side, with hand numbness and pain”.[276] I am not satisfied by the defendant’s submission that the plaintiff’s application is precluded based on a need to or any failure to disentangle. I am satisfied that having excluded from consideration the psychological or psychiatric consequences of the physical injury, that there is a substantial organic basis for the pain and suffering consequences relied on and attributable to the accepted claim.
[276] Exhibit P5, PCB 58.
277The next issue is whether in light of Lexa,[277] the application can succeed by the plaintiff separating out and placing reliance on the impaired function to one or other or both of her left and right hands individually and satisfy the test for the grant of a certificate? I am satisfied that plaintiff may legally separate out one from the other by application of principle. My judgment is reinforced by the decision in Puhovac[278] earlier referred to. When that exercise is undertaken and applied to the evidence, I am satisfied that the plaintiff has proved that the consequences as they pertain to the right hand independently of the left, and of the left separately assessed from the right, present her with functional consequences that satisfy the test for seriousness. Let me explain.
[277][2019] VSCA 123; 88 MVR 394.
[278][2024] VCC 1591.
278Naturally enough, in relation to some activities, the consequences of pain in one hand need not cause a limitation if a particular function to be performed is able to be executed by one hand. So, for example, if the plaintiff encountered difficulty picking up fine objects with one hand, or a folder or a book or magazine but could do so with the other, the presence of pain in one hand would not be a consequence likely to be made out to meet the test because it would not prevent the task from being performed.
279However, there are a multitude of other activities that require two hands, such that pain in one hand will cause a difficulty or prove impossible, even if pain is nonexistent or negligible in the opposite. Therefore, even if only one limb is affected, actions that require two hands would be impacted to a very similar degree to the impact of pain in each hand.
Sleep and hard brace
280The plaintiff said she sleeps with a hard brace on her right hand, and I accept her evidence. I accept the plaintiff’s evidence in relation to her sleep. I am satisfied that the pain in both hands is the main cause of her sleep disruption, but it is mostly due to pain in her right hand. When her sleep is broken the plaintiff said she has often a need for a heat pack or to take pain medication to assist a return to sleep.
Use of soft brace of a day
281I accept that the plaintiff needs the benefits of a soft brace of a day to her right wrist and hand although the evidence supports a finding that it is not applied every day.
Chores and everyday activities of living
282The plaintiff’s difficulty in undertaking the task of cutting with the use of a knife held in her right dominant hand is obvious. To be able to cut or chop or slice safely will very frequently require the effective use of both hands so as to steady the thing to be cut, chopped or sliced. The same may said of other tasks the plaintiff described, such as opening the lid on a jar, removing the top of a water bottle as it will involve pulling or twisting a top which requires strength and dexterity and maneuverability of the dominant hand and the ability to stabilize the object with the other. The undertaking of cooking from which plaintiff obtained much satisfaction and was culturally important to her, as well as it being a necessity of life, is patently affected by the loss of function in her right hand and is not ameliorated because of, for example, greater functional capacity with the other. The exercise involved in driving that entails the need to steer, or the use of cutters or shears when gardening, are affected because of pain in both hands, but equally so, if the plaintiff had pain in only one hand. It would not be possible to drive safely or effectively using only one hand or to undertake those other tasks. As well, the plaintiff said, and I accept her evidence, that use of the steering wheel causes her increased pain and more often than not she finds herself limiting her driving to no more than about 15 minutes duration.
283The plaintiff deposed to the problems with her hands making it difficult to help out with and play with her grandchildren, and in particular, in lifting them without increasing hand pain. It is not feasible to lift a child using only one hand, and one might readily and sensibly anticipate numerous play activities that could not be done effectively or safely using only one hand.
284Because the plaintiff is right hand dominant it is likely that she will do more things with her right hand than with her left. So many of the activities to which the plaintiff deposed, for example, around the house and the kitchen and the like, are as I comprehend them, predominantly requiring the use of both hands for their execution such that the loss of function of one hand, will preclude the activity from being performed.
285I accept the plaintiff’s evidence of activities of daily living such as washing her hair, dressing, doing up and undoing buttons, and being unable to fasten a bra are affected.
286The work injury has impacted the plaintiff’s capacity to work. Given her pre injury employment history, which was manual in nature and required dexterity, and taking account of the enjoyment she said she derived from it, something that was corroborated by her daughter, that loss is also consequence to be weighed with all the other consequences.
287I prefer the medical accounts relied on by the plaintiff and certainly in contrast to Dr Reiter, on whose opinion the defendant among others relied, but whose analysis struck me as out of kilter with, and less persuasive than the plaintiff’s treating GP, Mr Doig and A/Prof McCombe. I do not accept as Dr Reiter said that the plaintiff’s condition has resolved.
Paragraph (c) Claim
288I am satisfied that the plaintiff has made good her claim under paragraph (c). I am satisfied that she has developed a major Depressive Disorder with psychiatric features. There is no commented upon recorded past history of mental disturbance. I am satisfied that the onset and development of the mental condition occurred in the wake of and because of the subject bilateral condition. The matter of the marriage collapse has been diagnosed as a stressor, but one that is intimately connected to her work injury and the pain she has suffered, and not independently of it. The plaintiff is in receipt of significant medication to address her psychiatric symptoms and she remains in need of regular attendances on her mental health care providers. The effects on the plaintiff of the symptoms caused by her mental condition are detailed in the primary reporting of the plaintiff’s treating psychologist and psychiatrist, and when all of the effects on her from her mental state are considered, I am satisfied that the injury is more than significant and is severe. Her grief, her sense of loss and isolation, her symptomology of mental disturbances satisfies me of the correctness in making such a finding.
Stability
289For completeness, I note that Ms Cameron raised the question of the stability of the plaintiff’s physical and mental conditions. As to the latter, counsel referred to the plaintiff’s treating psychiatrist, Dr Duraiswamy who reported that the severity and intensity of depressive, anxiety and psychotic symptoms would reduce with adequate psychiatric treatment involving medications and psychological therapy. However, he said that complete resolution was limited because of her ongoing pain. I do not derive from that comment of a reduction in symptoms, and that appears to have developed in the wake of an increase in dosages of psychotropic medications, that it follows that a reduction will be of such a degree that at some point in the future, it will be less than warranting a determination of severe.
290As to the plaintiff’s carpal tunnel, Ms Cameron suggested that the stability of any recurrent carpal tunnel condition was questionable because the plaintiff had not at the date of the hearing obtained nerve conduction studies as recommended by A/Prof McCombe in his correspondence to Dr Freilich on 3 April 2024. Be that as it may, it is difficult to ignore that A/Prof McCombe also said of the plaintiff that:
"She has developed recurrent symptoms of carpal tunnel syndrome, particularly on the right side, with hand numbness and pain".[279]
[279]Exhibit P5, PCB 58.
291The physiotherapy records of attendance I have referred to, fortify a finding that the condition has worsened, and of a recurrence, to adopt A/Prof McCombe’s language.
292Lastly, if there be any doubt, I am satisfied that both heads of injury will persist through the foreseeable future.
Conclusion
293The plaintiff has had three operations. There is a continued presence of pain and restriction caused in each hand and wrist, and even if only one was painful, the plaintiff would still be requiring pain relief. The plaintiff would still be waking frequently although not exclusively due to the right. She would still be unable to work. She would have the restrictions on driving and cooking and gardening and participating as a grandmother with her grandchildren in those activities that require both hands, so that she could not undertake them with, for example, an unaffected limb. When compared with the range of comparable cases, I am satisfied that the injury to each when assessed for its consequences is objectively more than significant or marked, and is very considerable, and therefore, is serious.
294The plaintiff has a mental condition that is more than serious to the extent of being severe.
295Accordingly, the plaintiff is granted leave to pursue a common law claim for pain and suffering damages.
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