Forrester v Booralite Park Pty Ltd
[2023] VCC 1419
•18 August 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-22-03463
| KRISTY FORRESTER | Plaintiff |
| V | |
| BOORALITE PARK PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 and 12 May 2023 | |
DATE OF JUDGMENT: | 18 August 2023 | |
CASE MAY BE CITED AS: | Forrester v Booralite Park Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1419 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment of the right upper limb – complex regional pain syndrome – compensable injury – causation – credit – pain and suffering – loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Cases Cited:Barwon Spinners & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dordev v Cowan & Ors [2006] VSCA 254; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Petkovski v Galletti [1994] 1 VR 436; Kelso v Tatiara Meat Company Pty Ltd [2010] VSCA 12; Herald & Weekly Times Ltd and Victorian WorkCover Authority v Jessop [2014] VSCA 292; O’Brien Glass Industries Ltd v Pisani [2018] VSC 294; Woods v Ross [2000] VSC 501; Woolworths v Warfe (2013) VSCA 22; Eliis Management Services Pty Ltd v Taylor [2013] VSCA 326
Judgment: Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram KC with Mr P Haddad | Carbone Lawyers |
| For the Defendant | Mr S Pinkstone | TG Legal + Technology |
HER HONOUR:
Preliminary
1This is an application for leave to bring proceedings pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the WIRC Act”) in relation to an incident at work with the defendant on 24 October 2020 (“the said date”).
2The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity.
3The plaintiff brings this action pursuant to paragraph (a) of s 325 of the WIRC Act:
“permanent serious impairment or loss of a body function”
4The body function said to be impaired is the right upper limb/hand.
5The plaintiff bears an overall burden of proof upon the balance of probabilities.
6By s325(2)(b) of the WIRC Act, the impairment must have consequences in relation to pain and suffering which:
“… when judged by comparison with other cases in the range of possible impairments, or losses of a body function or disfigurement, as the case may be, fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable.”
7I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
8Subsection s325(2)(h) of the WIRC Act provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
9In this application, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
10Subsections (2)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
11Subsection (2)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
12I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[1] Peak Engineering & Anor v McKenzie[2] and Petkovski v Galletti[3] in reaching my conclusions.
[1](2005) 14 VR 622
[2][2014] VSCA 67
[3] [1994] 1 VR 436
13The plaintiff swore two affidavits and was cross-examined. Her husband, Michael, swore an affidavit on 11 May 2023. The plaintiff also relied on affidavits sworn by Wendy Baines on 4 May 2023, and Vanessa Pingitore sworn on 9 May 2023. The defendant relied on an affidavit sworn by Melanie Welsh on 6 May 2023 and an affidavit sworn by the plaintiff in 2002 in relation to her back claim. Also in evidence were medical reports and other material. I have read all the tendered material.
14The main issues in dispute were the diagnosis of Complex Regional Pain Syndrome (“CRPS”), credit, range and the extent of the plaintiff’s pre-existing back condition.[4]
[4] Transcript “T” 78-79
15The defendant’s case was that the plaintiff can only succeed if the diagnosis of CRPS - an organic condition- is accepted. If it is not, there is no other organic explanation for the plaintiff’s complaints.[5] Further, the plaintiff’s long standing back problems continue to play a part in her current presentation and impact on the consequences claimed to result from the right upper limb impairment.
[5]T87
The Plaintiff’s evidence
16The plaintiff is presently aged forty-seven, having been born in August 1976. She is married with two children, aged twenty-one and eighteen.
17After completing Year 10, she worked in sales for nine years. Her next job for five years was developing photographs for Rabbit Photo at various locations. She then worked for Kodak Fountain Gate as a photo printer for about two years. Her next job was a sales representative with San Remo Pasta (“San Remo”), where she initially worked for four years followed by a further four years, while working in the interim in her father’s newsagency.
18She then worked at Capsol Business Systems as a PA for two months.[6] For just over a year thereafter, she worked as a receptionist at Park Hill Medical Centre, Berwick.
[6]T33
19In 2016/17 financial year, she worked full-time as manager of her father’s business, Beacy Sandwich Bar (“Beacy”). She declared all her income.[7] When shown her tax return for that year, she agreed she earned $1,620 at Beacy, having worked about 4 weeks and that she had earned $18,700 at San Remo.[8]
[7]T29
[8]T30
20She left Beacy when it closed, and went back to San Remo doing sales work, driving around looking its products on supermarket shelves, speaking to managers, advocating the product. That was her main job that year as her tax return confirmed.[9] She had little income that year as she was home-schooling her child.[10]
[9]T32
[10] T33
21Before starting work with the defendant in May 2020, she worked at the front desk at four different medical practices, the last being Park Hill Medical. She did not do this receptionist work while in the defendant’s employ.[11]
[11] T34
Health pre incident
22Prior to the said date, she was in good health and, in particular, did not suffer from any of the disabilities from which she suffered following injuries sustained working with the defendant.[12]
[12]T9
23She injured her back at Rabbit Photo in 1997, and then had a second back injury in 1999. She could not remember how long she was off work. She thought it was about three months, and she put in a WorkCover claim. She returned to her pre-injury duties full-time at Rabbit Photo.
24She did not remember in all those years after her back injury that there was any period she was out of gainful employment.[13]
[13]T70
25She received a damages award for pain and suffering in relation to her back injury but could not remember when.[14]
[14]T18
26Following her back injury, she had a substantial amount of physiotherapy for lower back pain – for at least 12 years. She also had chiropractic treatment, the last session being in 2022. She still uses a TENS machine.[15]
[15] T12-13
27The claims agent was initially paying for this physiotherapy treatment. The plaintiff went to the Medical Panel in about 2008-9 when funding ceased. She then continued physiotherapy fortnightly, paying for it herself.[16]
[16]T13
28As at March 2009 as the Medical Panel noted, she was suffering constant lower back pain, worse with sitting and driving. She also had some paraesthesia and numbness into both thighs, and Voltaren and Panadeine Forte was then prescribed for her low back pain. As she told the Panel, she had played tennis, golf, and aerobics and since her back injury, walking was her only physical activity.[17]
[17]T14
29She was then working two days a week as a merchandiser, probably at Arnotts. Her back was worse if she worked three days, and two days was about her limit, depending on what she did. She did need help with heavier cleaning at home. It took a few years, but the situation improved - she would say she had learnt to live with it.[18]
[18]T15
30Her husband also helped her with home duties – mostly those involving bending. They also had young children at that stage.[19] He was right when he deposed that he never perceived her back to impact her ability to work or perform activities of daily living such as cleaning because she worked out ways she could do the washing and other household tasks. Her back pain was not improving, but it did not get worse.[20]
[19]T16
[20]T17
31It was probably right when she saw Dr Vivian in early 2011 that she was then doing merchandising 15 hours a week over two days at Arnott’s, or at San Remo. She was having significant problems with housework, as he recorded. She did not recall having a cleaner 10 years after she hurt her back. Her husband was helping her.[21]
[21]T18
32She could not recall when home help stopped. She thought she only had it for a short time when she moved to Beaconsfield, having lived in Cranbourne for seven and a half years. At as 2011, she was having a major problem at home and only coping with lots of medication depending on what she did.[22] Excess bending was what caused her major back problems. She was struggling working three days and was working usually two.[23]
[22]T19
[23]T20
33Dr Arnould from Beaconsfield accurately described her back condition and restrictions as at February 2012.[24] Her working options were then limited quite significantly because of ongoing low back pain, depending on what she did.[25]
[24]T20- see paragraphs 264-265 of this judgment
[25]T21
34She was only able to cope with two days’ work through medication and physiotherapy, depending on what she did. On a daily basis, she was then taking Endep 25 milligrams, Panadeine Forte, Cymbalta and also Lyrica, but at a lower dose. She had been taking them for 10 years.[26]
[26]T21
35When she saw Mr McArthur in June 2012 for her back injury, she was taking up to six Panadeine Forte a day and had been doing so for 15 years, plus Cymbalta, Lyrica, and Endep. She then had greatly restricted lower back movement, which quite significantly limited her work capacity. Chronic low back pain has remained to this day.[27]
[27]T22
Work with the Defendant
36In May 2020, she commenced work with the defendant, a horse breeding and training facility in Pakenham South. She was employed as a stable hand, working about 27 or more hours a fortnight, performing tasks such as cleaning stables, rubbing horses and feeding horses.
37She had found out about this job through her daughter, who had worked for the defendant as a stable hand for about a year before she started. Her daughter told her how good the job was, so she decided to apply. Her daughter started on low hours, then worked up, and the plaintiff wanted to do the same.
38She was initially employed casually, working a minimum of nine hours per week, three shifts, three hours each shift. A short time later, the defendant started giving her more hours, which increased steadily, and by the said date, she was regularly working between 15 to 20 hours a week and sometimes more.
39She loved the job, in particular because she loved animals. She felt like she had found the perfect job and wanted to continue working there. She worked every hour she was offered. In fact, she wanted more hours and was getting them.
40She believed that after about another year, her regular hours would have increased to more than 30 a week and her pay rate would also have increased. She wanted at least 30 hours a week work. If she did not get those hours, she would have found another stable that gave her them.
41Originally when she started with the defendant, she was working seven hours a week, with two shifts of 3.5 hours. Some weeks she got more than 20 hours. She was paid fortnightly. The payslip for the fortnight ending 9 July 2020 showed she worked 40 hours, with 30 ordinary hours and 10 on Sundays.[28]
[28]T36
42She denied 40 hours was the limit that she worked for the defendant. She did not have all her payslips. “Definitely” there were several fortnights where she worked more than 40 hours. Her hours were not set. People would call in sick, and she was always the one who filled in. There were split shifts - 5.00am till about 10.00am and 2.00pm till 6.00pm, depending on what was going on at the time.[29] Everyone was a casual.[30]
[29]T37
[30]T38
43She disagreed that the hours she worked depended on whether people called in sick, because at the time - October, she had regular shifts. She was doing pretty much five nights a week, then mornings and Sundays. She thought some weeks she worked 30 hours.[31] She would know the week before she had five nights coming up – she also did mornings.[32] She was taking every shift she could, and she loved the job.[33]
[31]T38
[32]T39
[33]T40
The incident
44On the said date, the defendant was understaffed, and the horses had not been put out from their stables on the walker. The plaintiff was rushing to perform mucking out tasks and raking sawdust to fill a hole in one of the stables when suddenly the horse in the stable angrily kicked at her, striking her on the outer side of the palm of her right hand (“the incident”). The force of the kick was sufficient to snap the rake.
45She was immediately aware of significant pain in her dominant right wrist and hand. She stopped work, hoping initially that the pain would settle, and she applied ice to the injury.
46However, the pain persisted, and she attended Casey Emergency the following morning where radiological examinations were undertaken, which she understood showed no clear fracture. She was discharged with Panadeine Forte for pain relief.
47Because of persisting pain, she attended general practitioner (“GP”), Dr Hrstic, in Beaconsfield, because she could not get in to see her normal GP, Dr Tuladhar. She did not change clinics because of her incident injury.[34]
[34]T23
48In October 2020, Dr Hrstic referred her for a CT scan but again she understood that scan failed to disclose the source of her persisting pain and discomfort. Later that month, he arranged an MRI of her right wrist. The plaintiff was told it did identify a partial thickness scapholunate ligament tear and a small ganglion in the radiocarpal joint, as well as some mild degenerative change in the lunate and triquetrum.
49Dr Hrstic referred her to orthopaedic surgeon, Mr Jason Harvey, whom she saw in January 2021. She understood on examination he identified considerable tenderness. He gave her a steroid injection into the carpometacarpal joint. That injection did not relieve her symptoms and she was referred for a further MRI scan which was undertaken in January 2021. She then returned to Mr Harvey, but he advised that there was nothing he could do to help.
50Because of the persisting pain, Dr Hrstic referred her to another orthopaedic surgeon, Mr Clitherow. By that stage, she was having hand therapy and had been given a wrist splint which, like earlier treatments, was failing to assist with pain control. She told Mr Clitherow that the earlier injection had not helped.
51She understood Mr Clitherow thought there was swelling and reduced hand function and was of the opinion that the ganglion identified was not the cause of her symptoms. It was further thought the lack of response to the injection indicated that was not the cause of her symptoms. Injecting the scaphoid trapezium joint was proposed to ascertain whether that led to any improvement.
52Mr Clitherow gave her an injection. Again, it gave her little real assistance. Swelling and pain continued over the wrist joint. He thought she may have developed a pain syndrome and suggested a referral to a pain specialist to consider further intervention.
53The plaintiff saw pain specialist Dr Saleem Khan, and from there, was referred to a hand and wrist surgeon, Dr Neela Janakiramanan, who diagnosed CRPS in the right hand and wrist. It was recommended the plaintiff be referred to Peninsula Hand Therapy to commence ongoing therapy.
54She attended there a number of times but made only very slow progress. She returned to Dr Janakiramanan for review in June 2021. There was a suggestion of arthroscopic investigation of a possible scapholunate injury, but that did not proceed. She was then prescribed a course of Prednisolone, but the steroidal qualities of that medication did not assist her at all.
55As at April 2022,[35] she had been unable to return to work for an extended period since sustaining her injury. She obtained work as a receptionist at Casey Super Clinic (“Casey”), working about one day a week. Although she enjoyed that work, she found it put a significant strain on her wrist, even though she favoured her dominant right hand and used her left. It caused her nonetheless to suffer immense pain throughout the course of her working day and by the time she got home at night, she generally iced her wrist to try to reduce her pain level. Due to her right hand problems, she also had pain in her right shoulder.
[35] April 2022 affidavit
56She worked at Casey until about June 2022. She continued suffering a great deal of pain as a result of her work duties and was limited in the amount of work she could do, and Casey ultimately stopped giving her work.
57She thought she lasted two to three months at Casey. Her back did not prevent her from returning to work there. Even putting ice on her hand when she got home from work was not enough to allow her to continue work. Casey stopped giving her work, and about a month later offered her three hours, but she could not do it because of her hand.[36]
[36]T72
58As at April 2022, she was taking up to eight Nurofen tablets a day, alternating with six to eight Panadol on the other days, and Panadeine Forte on a daily basis. She took Lyrica, 300 milligrams, which had been prescribed at an earlier point for her back condition, but which was of some use in treating neuropathic pain in her right wrist. She also took 60 milligrams of Endep at night to help with sleep, augmented by Temazepam, 20 milligrams, also at night. She had recently been prescribed the anti-depressant, Sertraline, 100 milligrams for her depressive response to her pain and disability.
59Despite the use of a variety of medications, she continued to struggle with ongoing pain and disability in her wrist, particularly on the outer side where she was kicked by the horse. She was concerned that, despite the passage of time since the incident, there had been so little progress with her injuries, and that her symptoms were persisting and resistant to treatment to date. She was worried the pain would be with her permanently and that she might develop arthritic or more severe pain in the future.
60Despite the quantity of medication to help her sleep, she often struggled to get to sleep because of the pain, and woke during the night. Her sleep habits had been significantly disturbed since the incident.
61Currently, due to the effects of her medication, she is tired and lethargic, and her concentration has been severely impacted. She sleeps in the afternoon most days as a result.[37]
[37]April 2022 affidavit
62When she drove, she protected her right hand by driving mostly, if not exclusively, with her left. Her children drove her because she could no longer drive beyond a short distance. Generally, she protected herself against any activity which involved repeated strain on her right hand and the constant pain and disability she suffered.
Sporting activities
63She had been unable to resume social and recreational activities such as tennis and golf, which she used to enjoy playing. Recently, her husband and children had ridden electric scooters, but she was unable to join them because of pain in her right wrist and hand.[38]
[38]April 2022 affidavit
64She was playing golf and tennis pre incident – not regularly but when her family played. She played tennis mainly when the family was on holidays, up to three times a year. She had last played tennis in 2020. She could not remember exactly when she had last played golf. She thought her last attempt was 2018 roughly. She tried playing golf, even with back pain, because she enjoyed playing.[39] She had played golf since seeing the Medical Panel.[40]
[39]T11
[40]T29
65She has not been able to return to tennis or golf at all since the incident.[41]
[41]T71
Horse riding
66She used to enjoy horse riding, but was no longer able to ride because of the strain that placed on her hands holding the reins to control the horse.
67She had tried to ride a horse once since April 2022. Her daughter and a friend came out and helped her. They strapped the horse up for her and her daughter held it. She attempted to ride by avoiding using her hand, but it was difficult. She tried to hold the stirrups between her middle and ring finger, but it was very painful. She was worried she was going to lose control and hurt herself. She rode for a short time and has not attempted doing so again since for fear of injuring herself.
68She has been riding horses since she was twelve. In about 2015, she bought a number of horses and rode them regularly with her daughter and friends. She loved riding horses and is very upset she can no longer ride like she used to. She could before she injured her wrist and did so two or three times a week.[42]
[42]T73
69She can lead a horse now. She just does it left-handed. She had sat on and walked a horse. She has two horses, one aged 13 and the other, a yearling. She tried to ride the older horse but could not.[43]
[43]T27
70She honestly did not realise she had to tell doctors about various activities, like leading a horse.[44] She would never walk a horse that she did not know.[45]
[44]T54
[45]T55
71She misses being the free and unrestricted person she was pre-injury. She is an active and outdoors-type person who misses being able to do all the physical activities in the manner she did pre-injury. In particular, she misses being able to be physically active with her family.
Domestic activities
72Around the house, she was heavily dependent on family members to undertake cleaning, cooking, washing and light tasks. She disagreed she was having real problems doing housework at the time of the incident.[46]
[46]T25
73Because of her hand injury, she is dependant on family members for housework and cooking. She could do a lot more herself before the incident although she could not do excessive bending and twisting.[47]
[47]T55
74She denied she painted a very misleading picture that housework and the need for assistance were because of her hand when it had always been required because of her back. That was not true. She was back doing normal household tasks at the time of the incident.[48]
[48]T27
75She accurately described to Dr Blombery her level of disability - getting her daughter to wash her hair, and the difficulty she had even bringing the washing off the line.[49] It was true she needed help to wash her hair, even though she could lead a horse and go shopping and drive, the way she described.[50]
[49]T44
[50]T54
76Before the incident, she stopped home help because they were not doing a good job, but she actually could not remember whether they stopped it, or she did. After home help stopped, she was able to do some cleaning work and light duties, and her back did not affect those. She has never got back to the same level of housework after the incident.[51] That is because her right hand hurts. Obviously, it is constantly in pain, and if she does things with her left hand, the carpal tunnel plays up, so she ends up with two sore hands.[52]
[51]T71
[52]T72
Cleaning with Wendy
77Since around January 2022, she had spent time with her friend Wendy while she works as a cleaner. She does so approximately weekly to get out of the house and have some company as she is “sick of looking at four walls.”[53] She goes when she is able. She does not get paid. It is something she does not do regularly. She does not have a set date.[54]
[53]T53
[54]T72
78She helps out with some cleaning tasks at her own pace, using her left hand when carrying cleaning products or equipment, vacuuming and dusting. After an hour or two, she tends to find her hand becomes too sore to continue, so she spends the rest of the time just having a chat.
79She suffers a lot of pain as a result of her attempts at cleaning, even though she is doing it in a restrained manner. She manages her pain by using medication and icing her hand when she gets home.
Current pain
80She continues to suffer the pain, restrictions and consequences she described in April 2022.
81She can handle light touch with the fingers on her right hand, but it does cause pain. Her ring and little fingers manage the pain the best. She can manage light touch on her index and middle fingers, but prolonged or forceful use is very painful. This was the main issue she had typing working as a receptionist.
82Medication is still being prescribed for her back pain. Back pain persists depending on what she does, like excessive bending and lifting, and she takes precautions like bending her knees, and does not do things excessively. She cannot compare her back pain to her right wrist pain. The pain in the wrist is constantly throbbing. The back pain comes and goes. Her pain in the palm of her hand and wrist is just always there.[55] That is why she has not attempted any more work.[56]
[55]T69
[56]T70
Appearance of her hand
83In examination-in-chief, together with counsel, I viewed the plaintiff’s hands. On her right, there were marks from where she had been wearing a compression glove with the fingers cut out of it, and also from a Velcro splint over that glove which her GP suggested she wear.
84She described her left hand as “normal”. She was curling her fingers up a little bit and getting shaky with her right hand, which would not close.
85I indicated I thought the fingers on her right hand looked a bit skinnier or thinner. She said she could not use her right hand. She can “only use it for limited – and it’s with pain all the time.”[57]
[57] T6
86“Definitely” her right hand was colder than her left. Grabbing her four fingers - “They can be freezing at times.”[58]
[58]T6
87The compression glove helps with the pain. It is not too tight. If she moves her wrist, her thumb and her next two fingers are sore. The other two fingers still hurt, but are not as painful when she uses them to do things like pull up her pants or cook.[59]
[59]T7
88When she wears the glove and brace, “basically it does not throb as much”, and restricts her from trying to do anything with the hand because it hurts. It is just constantly painful.[60]
[60]T7
89The plaintiff volunteered her hand was “freezing now if you’d like to come and touch it”.[61]
[61]T59
Current treatment
90From around early 2022, she had about six to eight sessions of therapy with a psychologist. She stopped this treatment as she did not find it helpful. She continues to suffer depression and anxiety because of her right-hand injury and its impact on her life.
91She continues to see Dr Hrstic about monthly. She certifies her unfit for all work involving the right arm, right hand and also prescribes medication for her injuries.
92Her present medication regime is:
(a) Panadeine Forte on a regular basis when she has a flare-up of pain;
(b) Lyrica, 50 milligrams twice a day, morning and night;
(c) Endep, 50 milligrams at night;
(d) Temazepam, 20 milligrams at night;
(e) Movicol, two sachets a day for constipation;
(f) Sertraline, 250 milligrams at night;
(g) Naproxen, 550 milligrams once a day.[62]
[62] April 2023 affidavit
93She disagreed that she has always been on the same medication for over 20 years. She has added other medications. She did not know she had to make another claim, when told that WorkCover was paying for her medication under her back claim. She has added Temazepam, Sertraline, and Naprosyn to the medication she was taking for her back.[63]
[63] T65
94She agreed that Lyrica was being prescribed at 300mgs daily before the incident and remains at that dosage.[64] She agreed before the incident she had had over 20 years of very significant low back pain and daily medication in the form of Lyrica, Endep, Cymbalta and Panadeine Forte.[65]
[64]T24
[65]T25
95She thought Endep went up from 25 mgs to 60 and it is now 50mgs. Since the incident, she does not use Panadeine Forte as often, as it gives her problems with burning. She has tried other things, mostly Nurofen, Nurofen Zavance, Nurofen Panadol, Panadol Plus, on the suggestion of a pharmacist.[66]
[66]T74
96She did not recall never telling Dr Blombery she had been on medications for over 20 years for her back. She did not realise she had to tell him.[67]
[67]T44
97Dr Janakiramanan told her that surgery cannot help.[68] She touched the plaintiff’s hand when she examined her. It hurt when she pressed on it. Dr Janakiramanan definitely touched her hand, “because she sent (the plaintiff) to a hand therapist.”[69]
[68]T59
[69]T60
98She had no meaningful use of her right hand, as Dr Janakiramanan noted in June 2021. She could not recall Dr Janakiramanan telling her that ongoing care would be in pain management and therapy domain.[70] All the doctor talked about was hand therapy, which the plaintiff tried at Peninsula Hand Therapy and also in Berwick. She could remember seeing hand therapist Jane Aarons four times in May/June 2021. She had to stop because “Jane” left, and she started treatment with another man. She did not find it helpful. She knew then of her diagnosis of CRPS.[71] She cancelled her follow-up consultation because she could not get there. She did not make another booking because she did not find the treatment helped.[72]
[70]T62
[71]T63
[72] T64
99She was never asked to go back to Dr Khan. He did not want to see her again.[73]
[73]T62
100She could not remember being educated and instructed about graded motor imagery- “GMI.”[74]
[74]T63
101Since last having hand therapy, the only treatment has been via her GP, Dr Hrstic who just talks to her about things, and she does not actually give any treatment. She gives her prescriptions.[75]
[75]T64
102She disagreed she was not doing more in terms of treatment because her hand pain was not that great. She had been to two lots of hand therapists, and nothing had helped.[76] There is no treatment her GP has recommended that she has not followed through with.[77]
[76] T65
[77]T70
Carer
103Since mid-2019, she has been her mother in law’s carer, receiving a Carer Allowance from Centrelink. She feels bad because she is restricted in how much physical support she can provide because of her right-hand injury. She is unable to care for her mother-in-law as well as she would like to.
104Her mother-in-law lives at Pakenham. The plaintiff gives her help depending on what she requires. The carer’s allowance is $13,000 as her tax return set out. The more she works, the less allowance she receives. She told Centrelink whenever she earned anything. She is getting some sort of WorkCover payments now.[78]
[78]T35- December 2020 claim for compensation accepted. Weekly payments have been terminated but medical and like expenses continue to be paid
105In December 2020, her claim for compensation was accepted and she thereafter received weekly payments and medical and like expenses. Whilst her entitlement to weekly payments was terminated, medical and like expenses continued to be paid.
Work
106Since the incident, she had attempted to find secure and suitable employment on an ongoing basis, but ultimately failed because of the effects of her injury.
107Having regard to her training, qualifications, experience and the effects of her right hand injury, including pain and restriction, she does not consider she is capable of performing any work on a reliable and consistent basis, in particular for more than a few hours a week.
108Because of the variability of her pain and the difficulty she has using her right hand, she is unreliable and inefficient employee and she is unable to do anything physically strenuous.
109Further, she is not able to do sedentary work reliably or consistently as most sedentary jobs require repetitive use of the right hand for tasks such as writing or typing, which cause her a lot of pain when she does it regularly.
110She had not applied for work since the receptionist job at Casey in mid 2022. She told Nabenet she could not do any job at all. She had tried reception and it was painful. She did not know what she could do one-handed as her right hand is constantly in pain.
111She had had a number of jobs in the past as a sales representative, but that is not the sort of work she could do now – “You need two hands. You have to build displays, move furniture and things.” She agreed she could “talk the ears off an elephant”, but she could not do the physical side of a sales job.[79] She cannot do lifting. If she was going by what she used to do, she cannot work as a sales representative.[80]
[79]T57
[80]T58
112Before started the job at Casey, she did speak to people in regard to jobs. She had not made any enquiries about a sales representative job because she cannot do what she previously did in that role.[81]
[81]T58
113Sales work does involve a lot of manual handling. She is not able to perform the physical demands of the job, and definitely could not work at Johnny’s in Pakenham.
114Doing a speed camera job sitting in a car for eight hours straight, she would have problems, as she would have to write. She disagreed that that was a job she could do if she made inquiries. There is no work at all she could do, even part-time, because of the constant pain in her hand.[82]
[82]T59
115She had no knowledge of the weights which would be associated with setting up a speed camera. She could not cope with extended periods of driving. She would be unable to drive to Warragul on a daily basis.[83]
[83]T74
116She could not do the manual handling required in the customer services role. She would be unable to stretch, climb and lift on an occasional basis. She would be unable to work as a delivery driver because of the manual handling involved. She could not do the car park job which involved collecting bags of rubbish and sweeping.[84]
[84] T76
117She had not contacted the defendant to go back to work because it had been handled through WorkCover and she cannot do the job. The tasks required as a stable hand cannot be done one-handed. She has never said she could not do that job with two hands – “It’s with pain, I mostly use my little finger. If I have go to hold something, I just put it on my little finger – like to pull up pants and things like that.”[85]
[85]T40
118She told Associate Professor (“Dr”) Mendelson in November 2022 that she had not returned to any work because she could not use her right hand at all. She also told him she had tried to back to work.[86]
[86]T42
119She did tell Mr Robbins in November 2021 that she could not do anything with her right hand. She told Dr Hrstic she had difficulty performing all activities of daily life.[87]
[87]T43
Surveillance film
120There was 3 minutes 42 seconds of film taken on 5 August 2022. The plaintiff was shown driving to visit her GP. She closed the car door with her right hand. She later used her right hand to put on her seat belt. She was later shown walking a pony and two horses at a rural property. She had the lead through her right hand and was holding it with her left.
121There was six minutes film taken on 12 August 2022. The plaintiff was shown standing talking to a neighbour for about five minutes. The plaintiff held her right hand against her body. She briefly tapped on her mobile phone with her right finger, holding the phone in her left hand. She then put her right hand in her pocket and later removed it to tap briefly on her phone.
122On 16 May 2022, the plaintiff was filmed getting out of her car carrying a large water bottle on her right little finger.
123There was about nine minutes of film taken on 18 May 2022. In the morning, the plaintiff was shown driving a ute, pulling a caravan. About midday, she went to a shop and on her return to the vehicle, she sat eating ice cream with the spoon in her right hand between ring finger and little finger.
124In response to the May and August 2022 film, the plaintiff deposed:
(a) she used her right hand on occasion, but altered the way she used it to avoid pain because she had less pain on the side of her little finger, and it modified her grip to use that side when she had to;
(b) she occasionally went to the stable and moved horses she knew did not act out and would not hurt her hand. She tends to use her left hand to do most of the holding. To the extent she uses her right, she alters the way that she holds the ropes to reduce and avoid strong pain;
(c) she uses her right hand to put on a seatbelt, but does it by allowing the belt to sit between her fingers rather than grasping it like a normal person would;
(d) she can open the car with her right hand but does it using her ring and little fingers to take the weight of the lever and door.
125Her horses are at an agistment property, 20 minutes from her home. She does not always drive to that property. Sometimes her daughter drives.[88]
[88]T46
126In the film, she was not pulling the horse in her right hand, the lead was in her left- she was leading it with her right pinkie. It was a friend’s horse that she knew well, and she knew what to expect.[89]
[89]T45
127She goes to the property to spend time with the horses and just pat them. She does not have to take them out, and she does not ride, so they do not have to go anywhere. She was helping out her friend who was away. She was not grimacing or demonstrating any signs of pain because she was leading the three horses in her left hand. She did not have any difficulty doing so, as she knew the horses.[90]
[90]T47
128When shown leading a horse in August 2022, she had the leads in her left hand, and was using her right pinkie so the lead would not be hanging down. She has never led a horse she is not familiar with since the incident as she does not feel confident doing so.[91]
[91] T66
129She did not need to tell doctors she was walking horses, because she was not actually doing so.[92]
[92]T60
130When driving the ute on 15 August, she was driving with her left hand, and did not have both hands on the wheel. Very rarely does she use her right hand on the steering wheel - “Not definitely, no” but she drives left-handed. If she uses her right, it is painful, and she tries not to.[93]
[93] T57
131When shown on 19 May 2022, she was driving a ute, towing a caravan, going camping with her father to Lakes Entrance.[94] She never said she cannot drive. She drives left-handed. She has driven to Lakes Entrance once, and to Bonnie Doon, with breaks in the trip.[95]
[94]T50
[95]T52
132She can go shopping on her own, depending on what she is buying. She mostly uses her left hand to start the car.[96]
[96]T53
133When she is driving, she uses her left hand all the time, and her right just goes through the steering wheel to rest it, because otherwise it gets knocked as the steering wheel turns.[97]
[97]T67
134When filmed outside her neighbour’s house, she did use a couple of fingers to use her smart phone. She agreed she had no real problem “flicking” her hand. She can tap to use the phone.[98] She holds her smart phone in her left, and taps with her right. She can also use her left finger. She can use her right hand; it is just very painful.[99] She held her right hand constantly by her side because it was just comfortable there.[100]
[98]T49
[99]T53
[100]T66
135When filmed on 18 May 2022, sitting eating the ice cream in the car, she used a spoon between her little finger and the next finger “because it did not hurt as much. Because it’s just constantly painful.”[101]
[101] T67
136She explained when shown on 19 May 2022 carrying a water bottle on her right little finger – “if I’ve got something in my left hand, I picked it up to put it under my arm.”[102]
[102] T67
Facebook film – 13 January 2023 (26 seconds)
137The plaintiff was filmed standing on a bridge at Bonnie Doon with three other people. The person to her left had only one leg. After holding onto a rail, she jumped into the water, landing feet first. Her arms were extended by her sides when she hit the water.
138Jumping off the Bonnie Doon bridge was on her bucket list. She did not have any problem doing it. She jumped with her hand up. She did not swim at Bonnie Doon. She got out of the water on the jet ski driven by her daughter, holding her daughter around her waist. She cannot drive a jet ski.[103]
[103]T54
139When asked to explain what she was doing in this film, she responded-
“Honestly, my mental state just wasn’t there, I’m not going to lie. ... I was in a bad mental headspace. That’s all I can say to you. I’ve been struggling – I’ve been in four walls, basically, not being able to do anything, in constant pain. So I figured what difference is it going to make, jumping off a bridge?”
140Her hand pain did not increase after she jumped.[104]
[104] T61
141She “actually disagreed” that she was then having a good time and was in a great mental space.[105]
[105]T62
142There was “a group of us that did it”, family members, close friends. She definitely did not remember feeling she suffered injury to her hand as a result of jumping.[106]
[106]T68
| Financial Year | Taxable Income | Source of Income |
| 2015 | $38,650 | Beacy |
| 2016 | $5,280 | Beacy |
| 2017 | $26,567 | San Remo |
| 2018 | $40,002 | San Remo |
| 2019 | $21,593 | Lakeside Square Medical Centre |
| 2020 | $23,491 | Booralite ($2,604) |
| 2021 | $31,260 | Booralite ($18,593) |
| 2022 | $31,260 | Booralite ($12,766) |
Payslips
143For the fortnight ending 9 July 2020, the plaintiff worked 29.85 normal hours at $24.36; ten hours on a Sunday at $48.70 an hour.
144In the fortnight ending 3 July 2020, she worked three hours during the week and eleven hours on the Sunday.
145In the fortnight ending 28 May 2020, she worked twenty-seven ordinary hours. In the fortnight ending 12 May 2020, she worked three ordinary hours.
Lay evidence
Michael Forrester
146The plaintiff’s husband, Michael, swore an affidavit in May 2023. They married in October 1998 and have two adult children.
147Following the incident, the plaintiff complained about excruciating pain. She iced her hand, but the pain persisted, so she went to Casey Hospital.
148Before the incident, he did not know her to have any problem with her right hand. She had a back injury many years ago and complained of pain occasionally, but he never perceived it to impact on her ability to perform activities of daily living, such as cooking, cleaning and self-care.
149Pre-incident the plaintiff was active and outgoing. She had horses which she loved and rode on a regular basis, including with their daughter.
150Post incident, he has observed the plaintiff to be severely disabled by the injury to her right hand. She is not the type of person who complains a lot, but she does complain about her hand a lot now. Her injury impacts her ability to work and perform activities of daily living.
151Post injury, she has been restricted in the use of her hand and has modified the way she does things, in particular, using her left side.
152Pre incident, she used to do most of the cleaning, cooking and laundry. He works 10 hours a day, but even so, when he is home, he does most of these activities, particularly the heavier and more difficult cleaning ones, and if he cannot do them, his daughter does them. He did not do any of these tasks before the injury.
153The plaintiff has always been a very independent person and tries to do what she can, but suffers with a lot of pain. Even so, her activity now is extremely limited compared to how it used to be.
154He is aware that she tried work as a medical receptionist last year but complained more than usual about her pain and told him she could not keep up that work due that pain.
155He did not believe she had applied for any work since. She talked to him about wanting to work, but she does not think she can because of her injury, and she found it very difficult working as a receptionist. She complained about typing and she was icing her hand every night after work. Her hand also swelled much more than usual.
156He had seen her hand. It is colder than her left. She complains of numbness and pain. He has seen colour changes in her right hand. He also sees her regularly flinch with pain if she knocks her hand or is overactive with it.
157She was a good sleeper pre-injury but, since the incident, she has constantly been in and out of bed all night with pain. She complains she is unable to go sleep because of the pain. He is a light sleeper, so she wakes him up and it is quite frustrating, because he needs to rest for work and has to sometimes sleep in the spare room.
158The injury impacted on their intimate relationship which, previously, was regular and healthy. They are now less intimate because of the impact of her pain, which she says causes her to be unable to participate because the pain impacts upon her mood.
159Since the injury, her personality has changed drastically, and she is no longer the happy-go-lucky person she was before. She is depressed and sad, and much more stressed and agitated around the home. She often asks him to help around the house and says she hates it and hates she has lost her independence.
Wendy Baines
160Wendy Baines swore an affidavit on 4 May 2023. She and the plaintiff have been close friends for over 30 years. She was aware of the incident injury and also the plaintiff’s back injury many years ago.
161Despite the back injury, she observed the plaintiff to be physically and mentally healthy prior to the incident.
162She was aware the plaintiff worked as a stable hand for the defendant. The plaintiff told her that she loved her work, in particular, loved working with horses. As far as she was aware, the plaintiff wanted to continue in that role.
163Post injury, she has observed the plaintiff to be severely disabled by her injured hand. She is not a person who complains a lot, but does often tell her about her hand problems, which includes constant pain and restrictions.
164She was aware the plaintiff worked as a medical receptionist last year and during that time, she complained to her more than usual about hand pain and told her she could not keep up the work due to the pain.
165She operates a cleaning business which she operates as a sole trader. Over the last few months, she has invited the plaintiff to come and hang out when she cleans. She invites the plaintiff to come along because she knows she is going through a hard time with her injury and feels it helps her to get out of the house and have someone to talk to. It is also good for her, as she is going through a separation, and it is nice to have a friend to keep her company.
166She does not employ any cleaners and the plaintiff does not work with her. She does not pay her anything to come and hang out with her. It would not be worth her while anyway, because the plaintiff is not productive, and when she does tasks, she often complains about pain. She also sees her take medication while they are together, which she assumes is for her hand.
167Cleaning involves a lot of heavy and physical work that the plaintiff says she cannot do because of pain. The plaintiff sometimes helps her by doing short stints of wiping or dusting, and occasionally vacuuming with her good hand, but she is not at all productive. She is slow and favours her right hand, and she does not do any heavy lifting, mopping or sweeping, or move furniture. As far as she could tell, the plaintiff avoids all use of her right hand altogether.
168More often than not, the plaintiff is just there to have a chat. She thought the plaintiff’s injury prevented her from doing meaningful cleaning work, in particular, cleaning work that would be worth paying for.
Vanessa Pingitore
169Vanessa Pingitore swore an affidavit on 9 May 2023.
170She worked as a stable hand for the defendant for a year, commencing in early 2020, and during that time met the plaintiff and they remained friends. She sees the plaintiff about once or twice a month.
171She is aware of the incident injury and has observed the plaintiff struggle with restrictions to her hand since.
172She knew the horse involved in the incident. It had been sent to the defendant because it had behavioural problems and would lash out at people. She thought the plaintiff should have been warned about it before she was left to work in its vicinity.
173The plaintiff’s personality has changed since the incident. She used to be very outgoing and happy and is not like that anymore. She is visibly restricted by her hand and seems to be depressed. She is always wearing a brace and she has noticed the restriction the plaintiff has using her hand.
174The environment at the stables was chaotic and there was regular understaffing.
175She had her own injury when she was required to work with a horse which stepped on her toe. Instead of helping her, the defendant sent her an email avoiding it and did not want her to lodge a WorkCover claim.
Medical evidence - treaters
Dr Hrstic, Beaconsfield General Practice
176Dr Hrstic referred the plaintiff to orthopaedic surgeon, Mr Harvey, in November 2020. At that stage, the plaintiff was in extreme pain and was not able to use her hand at all. An MRI scan that showed a torn ligament, and the plaintiff was given a fibreglass cast.
177In March 2021, Dr Hrstic referred the plaintiff to Dr Khan for pain management. At that stage, the plaintiff’s right wrist and hypothenar eminence was swollen and tender. Dr Hrstic felt the plaintiff had an active pathology and not a regional pain syndrome.
178Dr Hrstic wrote to Allianz in September 2021, requesting treatment for the plaintiff’s left carpal tunnel syndrome due to overuse due to total inability to use the right hand, and also pain management in the form of CBD oil for treatment of chronic pain.
179In her 5 August 2022 report, Dr Hrstic advised that the plaintiff’s injuries were consistent with the incident, and she continued to suffer pain and restriction of movement. Dr Hrstic diagnosed CRPS of the right wrist and secondary shoulder pain.
180The plaintiff was unable to use her right hand and dominant arm, leaving her unable to write or cut food, and she had difficulty performing activities of daily life.
181The plaintiff suffered from severe depression and anxiety and had a severe sense of loss, doom and gloom. The plaintiff was not sure of the future and was unsure of what she could do and could not do and was not able to sleep.
182Treatment to date had been steroids and local anaesthetic injections, strong painkillers, anti-inflammatories, extensive physiotherapy, pain management and consultations, sleeping medication, anti-depressants and anti-anxiety medication.
183The plaintiff had undergone extensive hand therapy. CRPS is difficult to treat. There was not much that could be done to fix it. The plaintiff needed ongoing treatment and support, with good braces and physiotherapy to manage day-to-day pain. Her incapacity would continue indefinitely at this stage and definitely in the future.
184The plaintiff could twist but in regard to holding or gripping – pushing, pulling or lifting – manual dexterity, activities of daily living such as dressing, eating, showering or use of the right hand generally, or on a repetitive and/or prolonged basis was unable to without assistance or would need to improvise. She had been using her left hand more and now had carpal tunnel symptoms.
185The plaintiff was restricted in her social, domestic and recreational activities for the foreseeable future. She had pain 24/7 and is very distressed, depressed and anxious all of the time, and needed a lot of medication. Also, there was no definite treatment available, so the plaintiff felt very stressed about her future ability to work. She needed good support from a physiotherapist and access to a proper brace to control her pain.
186The prognosis of the plaintiff’s condition was poor, and the psychological impact, difficult to treat.
187Dr Hrstic’s March 2023 report was in similar terms.
Mr Harry Clitherow, hand and orthopaedic surgeon (upper limb)
188The plaintiff was referred to Mr Clitherow by Dr Hrstic in February 2021.
189In his February 2021 letter to the GP, Mr Clitherow noted the horse struck the ulnar side of the wrist, causing immediate pain. He then detailed the treatment to date.
190On examination of the right hand, there was swelling around the thenar eminence. The plaintiff had reduced opposition of the thumb because of pain. Carpal tunnel scars were present. She was very tender over the thumb, CMC and also the volar aspect of the STT joint. The thumb CMC shuck test was equivocal.
191A CT showed normal alignment. There was possibly some dorsal subluxation of the thumb CMC joint- also shown on an MRI. There was a ganglion arising from the STT joint, but it was very long and very deep, and did not appear to be the main cause of symptoms.
192It was not immediately clear what was the cause of the plaintiff’s pain. The lack of response to the CMC joint injection would suggest that was not the cause of her problem. He proposed to organise an STT joint injection to see if that made any difference, and if it was not better, the next step was to consider a CT angiogram.
193The plaintiff was not complaining of any vascular symptoms but may have an arterial injury which could be causing pain. He proposed to see her two months post injection.
194Following re-examination in March 2021, Mr Clitherow reported that the CT angiogram did not show any vascular injury and the STT injection did not really help either. The plaintiff still had a swollen, painful radial side of the wrist. He wondered whether she was developing a pain syndrome and thought she would benefit from assessment by pain specialists, and they could consider whether any further intervention, such as a nerve block, might be appropriate.
195Mr Clitherow could not find any obvious surgical lesion and referred the plaintiff to Precision Brain, Spine and Pain for pain management.
196As at March 2021, the plaintiff was in persistent radial-sided pain with difficulty performing grasping manoeuvres with that hand. She was then having difficulty with twisting, holding and gripping.
197Mr Clitherow diagnosed a soft tissue sprain involving the ligaments around the radial side of the wrist and also aggravation of some mild underlying degenerative change in the STT and thumb CMC joints. The plaintiff described an injury from a direct blow to the right wrist. She had features of oedema in the radial styloid and the radioscaphoid ligaments consistent with the injury mechanism.
Dr Saleem Khan, pain physician
198Dr Khan saw the plaintiff on one occasion, 22 March 2021, following which he wrote to Allianz.
199The plaintiff was then taking Lyrica, 300 milligrams, for back pain; Panadeine Forte; Endep, 60 milligrams, back pain, dose went up after wrist injury; and Cymbalta, 60 milligrams.
200He noted the incident history and subsequent treatment.
201On examination, the plaintiff complained of pain in the right thenar eminence and posterior aspect of the thumb, rated at 5 out of 10 severity at baseline. When she used the hand, the pain could go up to 10. There was no radiation of pain. It was relieved by elevating the hand to reduce swelling and by taking Panadeine Forte.
202The plaintiff reported colour change in the thumb region, with the skin changing to a blue or red in colour. She denied sweating. The painful area could be tender to touch with severe swelling.
203She had been taking Endep and Lyrica for a back problem prior to the injury and her Endep dose was increased after the recent injury.
204He diagnosed a “right wrist injury. ? Torn scapho-lunate ligament. ? Torn radio-scaphoid ligament. Development of ganglion cyst in the scapho-trapezium joint since first scan. (? In response to trauma) ? Development of a pain syndrome as well.”
205He recommended assessment by a hand surgeon and noted the plaintiff was then reluctant for more analgesia at that stage.
206According to his information regarding the injury sustained, the MRI showed a partial tear of the volar scapholunate ligament, consistent with the history of being kicked by a horse. He had referred the plaintiff to Dr Janakiramanan for plastic surgery opinion. He diagnosed CRPS and referred the plaintiff to Peninsula Hand Therapy.
Dr Neela Janakiramanan, plastic and reconstructive hand and wrist surgeon
207Dr Janakiramanan wrote to Dr Khan in April 2021, thanking him for referring the plaintiff.
208There had been multiple investigations and the plaintiff had been in plaster and a splint for four months and had very little hand therapy due to pain.
209On examination, there was a poor range of movement of her right hand/ wrist. It was very swollen and tender all over the radial side, with no clear localisation. MRI was non-diagnostic for scapholunate. She was not convinced the ganglion was clinically relevant.
210She diagnosed CRPS of right hand/wrist with prolonged immobilisation and inadequate hand therapy. The treatment plan was seeing Peninsula Hand Therapy to start therapy.
211Following review, Dr Janakiramanan again wrote to Dr Khan in June 2021. She advised that the plaintiff had not made huge progress with hand therapy and was in a shorter hand splint and was managing some movement. The plaintiff was a long way from being able to undertake any meaningful clinical examination and she was not sure whether arthroscopic investigation would be helpful given her level of pain.
212In discussions with the hand therapist, she had given the plaintiff a short course of Prednisolone to see if that would allow some more movement. In general, she thought most of the plaintiff’s ongoing care would be in the pain management/hand therapy domain. She had a difficult conversation with the plaintiff that day, that there will be no magic wand solutions in recovery such that it may take years.
213In her report to the plaintiff’s solicitors, she diagnosed likely CRPS by the initial trauma. When last seen in June 2021, the plaintiff had no meaningful use of the right hand and she was not able to undertake any gross or fine motor activities.
214In terms of the radiological investigations, there had been two MRI’s showing a small volar wrist ganglion, likely to be a complete tear of the scapholunate ligament.
215MRI is not diagnostic for wrist ligaments and wrist ligament injury does require an arthroscope to diagnose accurately. In the context of severe CRPS, it is not always appropriate to offer surgery for the sake of diagnosis as it can make the pain much worse.
216Based on her records, Dr Janakiramanan suggested it was likely the plaintiff would need physical therapies and pain physician input. Pain management should be by a multi-disciplinary pain service which was likely to include psychological support.
217She warned the plaintiff in June 2021 to not expect complete recovery ever and the possibility of substantial recovery to take years. She expected the restrictions with both gross and fine motor skills involving the right hand would persist for a prolonged period.
218The injury/condition was likely to affect the plaintiff’s work and social roles, and if the symptoms continued to persist at the June 2021 level, this would be a significant disability.
219CRPS is a painful, debilitating, distressing condition. The prognosis was that of likely incomplete and/or prolonged recovery. If the plaintiff was not in the care of multi-disciplinary pain service, then she needed to be.
Peninsula Hand Therapy, Jane Aarons
220The plaintiff was first seen in May 2021 on referral from hand surgeon, Dr Janakiramanan. The plaintiff had then been wearing a brace for four months provided by another service.
221The plaintiff presented with significant pain in the right thumb and radial wrist. A number of investigations had been undertaken.
222The injuries were consistent with the history given in June 2021, after four sessions, the plaintiff was certified as having no current work capacity.
223In terms of prognosis, the combination of factors of geographical distance from appropriate services, prolonged immobilisation without advice, no successful return to work attempted at six months post injury, failure to follow up with her rehabilitation at our service, and a concomitant diagnosis of acute injury with CRPS would lead her to have a guarded expectation that the plaintiff would return to high level function.
Investigations
224Following a CT scan of the right wrist in October 2020, it was reported there was no scaphoid bone fracture.
225On 14 February 2022, there was an x-ray and ultrasound of the right shoulder, with the clinical notes “? Right shoulder bursitis”. It was reported there was infraspinatus tendinosis, subdeltoid bursitis, mild tendinopathy of the remaining rotator cuff excluding teres minor, which was normal.
226There was an x-ray and CT scan of the right wrist and hand in February 2021.
227On x-ray, no fractures could be detected, and alignment was anatomical. There were mild degenerative changes of the middle finger at the DIP joint. Tiny non-specific periarticular erosive changes were seen at that level.
228Following the CT scan, it was reported no fractures could be detected of the right wrist, hand or distal forearm. Carpal arches were maintained and alignment was anatomical. There were mild degenerative changes and tiny periarticular erosions at the middle finger DIP joint. No joint effusion or localised fluid collection.
Medico-legal
Dr Peter Blombery, pain specialist/cardiologist
229Dr Blombery first saw the plaintiff in July 2021.
230The plaintiff the complained of constant, ongoing pain in the right hand which kept her awake, rated by her at 6 to 7 out of 10. The hand changed colour to blue or white and became hot and cold. She had tingling in the right thumb, index and middle fingers, but not in the fourth and fifth. Her symptoms were currently stable but were worse with use.
231The plaintiff wore a compression bandage on her right hand and the hand swelled and sweated excessively.
232Current treatment included the anti-neuropathic agent, Lyrica, 300 milligrams, one to two per day; the opiate painkiller, Panadeine, two to six per day, as well as Panadol; the anti-depressant, Cymbalta, 60 milligrams; and Endep, 50 milligrams at night.
233The plaintiff reported difficulties with domestic tasks and using her left hand to drive.
234On examination, the plaintiff presented reasonably and there was no exaggerated pain behaviour. Her right hand was swollen and paler and the left and the middle finger were 1.6 degrees cooler. She could fully extend the fingers but could not quite flex them in the palm. She was very tender on pressure over the thenar eminence. She was primarily tender over the medial half of the hand and there was no tenderness over the hypothenar prominence. There was a reasonable range of wrist movement.
235The combination of features of ongoing pain together with autonomic disturbance was diagnostic of CRPS type 1.
236On examination, there was a significant difference in temperature between the two hands, as well as colour and sweating, and the plaintiff fulfilled the Budapest criteria of the International Association into the Study of Pain as to the diagnosis of CRPS.
237The plaintiff was only now starting appropriate treatment for CRPS with newer imaging and graded motor imagery. She also may benefit from other techniques such as a stellate ganglion blockade as it was still relatively early after the onset of the syndrome. She intended to take appropriate medication for the disorder. It appeared there were no specific surgical interventions that were required at that stage given the fact she had not responded to steroid injections and other treatments from surgeons so far.
238The injury was consistent with the history given. Injury to the right wrist had been complicated by the syndrome. She was going to require ongoing physical therapy measures for the syndrome, and it may be required for some months, as well as possibly nerve blocks or other procedures.
239The plaintiff had very limited use of her dominant right hand as a consequence of the injury and would be unable to do any tasks where she had to use her right hand to any significant extent.
240Medications could make her somewhat drowsy and cause difficulty with concentration, which would also affect work.
241The prognosis for recovery was then moderate to poor and he hoped with appropriate treatment there was some significant improvement, though it would be best to be reassessed in a year.
242On re-examination in March 2023, the plaintiff’s complaints of pain and problems sleeping were similar. Discolouration of the right hand continued. She had only minor tingling in the right thumb, index and middle fingers now. Her symptoms were stable, but worse with use, and the right hand swelled and sweated excessively.
243She told Dr Blombery she had been quite depressed and had attempted suicide two months earlier.
244Lyrica was then 150 milligrams, Panadeine Forte usually four a day, as well as Panadol, Cymbalta, 120 milligrams, Endep, 50 milligrams at night, and another anti-depressant, Sertraline, 200 milligrams per day for depression.
245The plaintiff had tried reception work one day a week but found that flared up her pain quite markedly and her hours were reduced. She could not cope generally with the severity of exacerbation of pain and had not worked since May.
246Difficulties with housework continued. The plaintiff’s daughter washed her hair. The plaintiff was able to drive using her left hand but was not able to shop independently.
247Again on examination, the plaintiff presented reasonably and there was no exaggerated pain response.
248The plaintiff’s right hand was swollen, pale and bluer than the left after the compression garment was removed. There was no temperature difference. The plaintiff could fully extend the fingers but was only able to flex the fingers halfway into the palm. She was very tender on pressure over the thenar eminence and also over the medial half of the hand. There was no tenderness over the hypothenar eminence or over the ulnar side of the hand. Flexion and extension of the wrist were reduced to 20 degrees each, and there was a reduction in radial and ulnar deviation.
249The plaintiff continued to fill the Budapest criteria. Unfortunately, she had not really had appropriate treatment for CRPS, and he suggested a range of options that would be available. He was quite concerned she was taking a combination of high doses of Sertraline and Duloxetine and suggested ceasing one of those agents. He did not feel any particular surgery was going to be of any benefit. Her prognosis for recovery was relatively poor and the treatment options he suggested should be vigorously pursued as the longer she remained in her current degree of pain, the more difficult it would be to reverse any component of pain.
250Injuries to the right wrist had been complicated by CRPS and secondary depression. The plaintiff’s injuries had had a very marked effect on her ability to work. She was not able to use her right dominant hand to work effectively in any occupation.
251Taking into account the plaintiff’s condition, incapacity, age, education, skills, and work experience, he thought that she currently had no capacity for suitable employment. It was likely that situation is going to be permanent, but he hesitated to say that would be the case until she had had the full gamut of treatment for CRPS that she has and unfortunately had so far not been given.
252Treatment with other medication, Nervoderm patches, ketamine infusions and stellate ganglion blocks may be worthwhile, as well as referral to a psychiatrist for treatment of depression.
Defendant’s evidence
253The plaintiff swore an affidavit in October 2002 in relation to her back injury at work in June 1997 in which she detailed her treatment, daily pain and had trouble with housework. She used to enjoy going to the gym and playing tennis and golf before this injury. She had tried those activities since, but found she suffered too much pain and did not pursue them. She had trouble sleeping and was depressed.
Lay evidence
254Melanie Welsh, director of the defendant, swore an affidavit in May 2023.
255The plaintiff commenced work on 13 May 2020 as a stable hand. Her duties involved mucking out stables, feeding horses, rugging them, bringing them in from paddocks and unloading them from trucks or floats if required.
256At the time of the claimed incident, the plaintiff’s normal working hours were 2.00pm to 6.00pm Monday to Saturday. She would work 15 hours a week on average, and three and a half hours on a Sunday.
257The plaintiff’s hours would not have increased with the passage of time as there were a fixed number of boxes at the property and a maximum number of horses. Had the claimed incident not occurred, she would have remained on at approximately 20 hours per week.
258They do not have 30 hours a week of work a week to offer the plaintiff, nor did they foreshadow any increase in her hours.
Defendant’s medical evidence
Plaintiff’s back injury
259In April 2009, the Medical Panel concluded the plaintiff was suffering from residual dysfunction of the lumbar spine due to unresolved lumbar disc prolapses relevant to the claimed injury.
260The Panel’s Reasons for Opinion set out the plaintiff’s level of complaint and restriction at that time.[107]
[107]Cross examination at para 28 of this judgment
261The plaintiff had an MRI scan of her lumbar spine in January 2011 following which it was reported there was central disc protrusion at L4-5, as described, with no specific focus of nerve compromise.
262Dr David Vivian, pain physician, wrote to Allianz in February 2011 advising of the MRI scan results.
263He noted the plaintiff was then working 15 hours per week over 2 days, doing merchandising, and she was having a problem with work. She was having significant problems at home with household duties and needed to have home help reinstated.
264The plaintiff attended Dr Hanna Arnould at the Medical Centre in Beaconsfield who wrote to Allianz in February 2012, supporting funding for home help.
265He noted the plaintiff had been suffering persistent back pain since an injury at work in 1997. Her chronic condition caused her significant problems at home with household duties.
266Progress notes from Dr Arnould in October 2014 mentioned migraine.
267Mr Richard McArthur, orthopaedic surgeon, examined the plaintiff on behalf of Allianz in June 2012 to advise as to further treatment and assistance. He thought the plaintiff’s chronic lower back pain was due to a central disc prolapse.
268He considered the plaintiff would have the capacity to carry out some of the normal household tasks but would experience difficulty with vacuuming and bending to clean toilets and bathrooms, and possibly changing a bed.
269As at February 2015, Dr Dyer from Beaconsfield noted ongoing back pain and set out the level of medication at that time-Cymbalta, 60 milligrams; Endep, 50 milligrams; Leven ED, 150 milligrams, Lyrica, 300 milligrams; Mersyndol, 450 milligrams and Panadeine Forte, two tablets per day.
270Dr Dyer provided a general practitioner’s report in September 2015, in which he noted the plaintiff’s medications would not change. Endep had increased from 25 milligrams to 50 milligrams, there was Panadeine Forte; Lyrica, 150 to 300 milligrams, Cymbalta and Mersyndol.
271In July 2018, Dr Dyer also saw the plaintiff for WorkCover. The plaintiff’s medication continued unchanged from September 2015.
272Dr Tuladhar, from the Medical Clinic in Beaconsfield, referred the plaintiff to Mr Harvey for carpal tunnel treatment in December 2019.
273At that stage, the plaintiff was taking 60 milligrams of Cymbalta before bed; Endep 10, 50 milligrams before bed; Keflex, 500 milligrams twice a day; Levlen ED tablets; Lyrica, 300 milligrams and Panadeine Forte, 500 milligrams.
Medico-legal
Mr Thomas Robbins, hand, plastic and reconstructive surgeon
274Mr Robbins saw the plaintiff electronically in November 2021. The plaintiff told him of the incident circumstances and subsequent treatment.
275Domestically, she said she could not do chopping, she had difficulty with all housework and had to be helped by her daughter. She said she could not use her right hand.
276Her left hand developed pins and needles after the incident because of the excessive use. She reported pins and needles from the right shoulder down, and at night it affected her thumb, index and middle fingers. She had a right carpal tunnel release in July the previous year.
277The plaintiff told him she could not do anything with her right hand.
278On examination, she was wearing a splint and when that was removed her hand looked normal. She claimed there was swelling in the thenar eminence, but that was difficult to see, comparing it to her left hand. She had a reasonably full range of wrist movement, although she complained of pain on flexion of her right hand.
279Special investigations showed a ruptured scapholunate ligament and ganglia with contusion of the distal radius. This could have been pre-existing and was probably not relevant to the plaintiff’s symptoms of pain. Otherwise, he could find no explanation for her pain, noting she was kicked on the ulnar side of her wrist and the contusion was on the radial side.
280He was uncertain of the cause of the injury, noting there may be a psychological cause, but it was not likely to be a physical one.
281She probably had a physical capacity but, psychologically, he did not think she could work. He doubted if she had any intention of going back to work (pre-injury duties).
282He believed psychological factors were affecting her recovery and he could find no evidence of chronic pain syndrome.
283On re- examination in March 2023, the plaintiff told him she had not returned to work because of the pain. Before working in the stable she was working in offices but maintained she could not return to that.
284He was uncertain of the diagnosis but suspected there was no physical basis for it.
285On examination, the plaintiff’s hand was normal in appearance with a full range of movement. There was no muscle wasting, in particular, of the thenar eminence. Her hand, from the wrist down was depigmented, indicating a continued wearing of splints. She had apparent tenderness to pressure on her thenar eminence and her fingers seemed cold compared to her left hand.
286Injections had not been effective, and she was treated conservatively with splints and medication.
287The plaintiff believed her clinical condition was due to the kick by the horse. He repeated his comments to explain pain on the radial side when she was kicked on the ulnar side. Even if the ruptured scapholunate ligament was related to the injury, which he doubted, it would not explain her symptoms.
288The plaintiff claimed that, because of the severity of pain, she had no capacity to work or use her right hand. She previously did office work but said she could not even return to that. At present, she claimed her pain was too severe to do any job suggested in the vocational report. This being the case, it was not possible for him to be adamant that she could. It was unlikely the plaintiff had a capacity to complete any retraining, or a willingness to do so.
289He could find no physical explanation for the severity of her pain. There was no clinical evidence she was suffering from chronic pain syndrome or RSD. Her reaction to the injury was, considering the special investigations, extremely unusual and he concluded it was much more likely the complaints were not physical.
Associate Professor George Mendelson, consultant psychiatrist
290Dr Mendelson examined the plaintiff in November 2022 by video link.
291The plaintiff told him of the incident and being kicked on the hand, and subsequent treatment. She said she had not returned to any form of employment since the injury because she “can’t use [her] right hand at all”.
292He considered what could most accurately be diagnosed as an adjustment disorder with mixed anxiety and depressive reaction. The condition was due to the ongoing stressors of her physical complaints and concern about her progress and prognosis from a physical perspective, given the uncertainty of the diagnosis and lack of a treatment plan.
293He thought the plaintiff’s current emotional symptoms do not prevent her from undertaking a return to work program in any position consistent with her previous work experience.
294He thought she should continue on Sertraline in the current dosage.
295He was not aware of any indications that, during the examination, the plaintiff manifested any conscious or unconscious signs of exaggeration.
296During the examination, the plaintiff made no mention of any symptoms that could be considered as indicative of the possibility that she had developed PTSD as a result of the incident, when noting vocational assessors’ comments to this effect.
Vocational evidence
297Rehabilitation consultant, Jamie Ngan from Nabenet conducted a vocational assessment in August 2022.
298The assessor noted the plaintiff attempted to return to new employment in February 2022 as a medical receptionist, however the duties were not suitable, causing her increased pain and she was unable to increase her hours from one seven to eight hour shift a week, therefore ceased work at the end of June 2022.
299Dr Hrstic had issued a certificate of capacity, dated 6 July 2022, certifying the plaintiff had no capacity for employment from 6 June to 6 July 2022.
300The plaintiff reported no specific job interest, saying she was unable to do anything. She reported she would not return working with horses, as the incident had caused PTSD.
301The following jobs were suggested as suitable:
· Carpark attendant - $1,224 per week
· Customer service representative - $1,419 per week
· Sales representative - $1,419 per week
· Light local delivery driver - $1,010 per week
· Speed camera operator - $1,318 per week.
Overview
302There is no dispute that the plaintiff suffered an injury to her right hand/wrist when kicked by a horse on the said date. What is in issue however is whether as at the present date, the plaintiff is suffering from CRPS and if so, whether any consequences thereof are serious.
303While accepting CRPS is a diagnosis, the defendant’s principal submission was that the plaintiff does not suffer from that condition.
Credit
304As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[108]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[108](2010) 31 VR 1 at paragraph [12]
305Counsel for the defendant submitted the plaintiff was an unreliable witness and the Court should have real doubts about the level of reported pain.
306It was submitted she had understated the amount and nature of medication she had been taking for her back pain before the incident and had given the impression to doctors that this medication was in fact being prescribed for her hand pain. It was not until cross-examination that she conceded the range of heavy medication taken in relation to her back.[109]
[109]T87
307Further, there was limited disclosure in her affidavits regarding her pre incident medication and scant mention of her back condition, which was much more serious than her affidavits indicated in terms of her sporting and domestic activities – particularly her ability to do housework.[110]
[110]T80
308It was submitted that in these circumstances, the plaintiff’s evidence of her current right hand pain and restrictions, upon which supportive medical opinion is based, should not be accepted, nor should this medical opinion based on an inaccurate history.[111]
[111]Dordev v Cowan & Ors [2006] VSCA 254 at paragraph [14]
309The surveillance film was relied on in terms of the level of driving the plaintiff was able to undertake, her ability to use her smart phone with her right hand and “obviously leading horses.” It was submitted her activities on film were in contrast to someone who describes virtually no use of her right hand, and who has painted a picture to examiners of gross restriction, very significant amounts of pain and heavy medication for her hand.[112]
[112]T80
310While the film does not show anything particularly heavy or strenuous, it was submitted it did show the plaintiff is not sitting around in four walls. She is out and about shopping and driving.[113]
[113] T82
311Also telling against her reliability was her explanation about jumping off the Bonnie Doon bridge at a time when she was able to go camping with her family. It was submitted it should not be accepted that she honestly did not realise she had to tell doctors about this activity – to tell having had experience with Workcover going back to the 1990s with her back claim.[114]
[114]T82
312Further, her explanation that she did not have any pain, or increased pain after jumping “beggars belief” when one looked at how she presented in the witness box and the extreme pain and significant disability she described to doctors. To say this activity was on her bucket list and that she did not have any pain “just doesn’t add up”.[115]
[115] T82
313The surveillance film does not show pain or grimacing, although tapping with the index film on the phone is not by any means strenuous. The plaintiff was noted to be laughing and smiling and seemed quite happy. Similarly, there was no sign of pain when she was with the horses “and of course then the jumping off the bridge, where she denied any pain or additional pain at all…It might be a moment of madness but the jump happened in the context of holidays and camping.”[116]
[116]T121
314It was also submitted the plaintiff’s evidence about why she ceased hand therapy was unreliable because the hand therapist’s evidence was clear that the plaintiff simply cancelled/ did not attend further treatment.
315Counsel for the plaintiff submitted the plaintiff was very much a down to earth, straightforward, honest witness. She frequently gave evidence which might have been thought contrary to her own interests, but also there is a plethora of evidence which supports her application with respect to pain and suffering and loss of earning capacity.[117]
[117]T113
316The plaintiff has never hidden her back condition from examiners. To suggest Dr Blombery has been kept in the dark “is verging on ludicrous”.[118]
[118]T114
317It was submitted the surveillance film was not harmful to the plaintiff’s case. It was in fact helpful in that she was shown eating an ice cream in an unusual way. Also, she could hardly write her signature and just scribbled on her second affidavit.[119]
[119]T113
318The jump at Bonnie Doon was not a hugely physical task. One of those jumping with the plaintiff is actually missing a leg completely – “maybe it was just a madness jump” but it does not impinge on her credit when you look at the video generally, like holding her hand in a protective way, eating ice cream and also leading the horse.[120]
[120]T112
Findings
319I do not accept that the plaintiff hid her longstanding back problems from medical examiners. On close examination of the various histories, there is specific mention of her back condition in the history given or examiners have been provided with reports and notes that made reference to it. Further, I do not accept that the plaintiff has created the impression that all her current medication has been prescribed for her hand, not ongoing for her back.
320As I indicated during the hearing, the surveillance film did not cause me significant concern in terms of the plaintiff’s credit. There was not a level of activity shown inconsistent with her reported pain and restrictions. In fact, at times the plaintiff seemed to modify right hand activities to deal with her pain – leading the horses primarily in her left hand and also the manner in which she used her fingers to eat ice cream.
321The jump off the bridge, although an extraordinary and reckless activity for anyone, let alone a 46 year old woman with an injured hand, was an isolated one – a moment of madness, at a time when she felt she had nothing to lose. As she explained, her mental state “just wasn’t there.”[121]
[121] Woolworths v Warfe (2013) VSCA 22 at paragraph [11]
322This explanation was consistent with her history to Dr Blombery in March 2023 that she had been quite depressed and had attempted suicide two months earlier.
323However, it is somewhat difficult however to understand the plaintiff’s evidence that she felt no increased pain after the jump.
324As counsel for the defendant conceded, no medical examiner considered the plaintiff was exaggerating her symptoms. Mr Robbins was the only examiner who had some concerns about a psychological basis for the plaintiff’s complaints.[122] Psychiatrist, Dr Mendelsohn was not aware of any indications that, during the examination, the plaintiff manifested any conscious or unconscious signs of exaggeration.
[122]T92
325In my view, the plaintiff was a down to earth, truthful witness. Generally, I accept her evidence of her ongoing right hand pain and restrictions. Given her history of ongoing participation in the work force, albeit not always full time, if she was able to work, she would still be doing so. She very much enjoyed her work with horses and also riding them as a hobby and this has been lost to her because of her hand injury.
Diagnosis of CRPS
326Before a diagnosis of CRPS was first made by Dr Blombery in July 2021, later continued by Dr Janakiramanan, despite investigations being carried out, a number of examiners were unable to make a firm diagnosis.
327The defendant did not challenge the existence of CRPS as a diagnosis, but argued firstly the objective criteria had to be met and secondly, there had to be some confidence the subjective component was also made out which of course depended on the plaintiff’s reliability - what she had and had not told the doctors.[123]
[123]T91
328It was submitted the two doctors who diagnosed CRPS, Dr Blombery and Dr Janakiramanan, were totally reliant on the history given. The plaintiff had not told them about her significant past history of lower back pain, having been prescribed a cocktail of heavy-duty medication for over 20 years – “For that not to be divulged tells against her reliability and seriously impacts the weight those opinions should be given.”[124]
[124]T78
329Dr Blombery only found a temperature difference of 1.6 degrees on the first examination, with no difference in temperature on re-examination. If a difference in temperature is the vital indicator in terms of diagnosis, that finding was absent on re-examination.[125]
[125]T121
330It was submitted Dr Blombery was heavily reliant on the subjective history about pain and restrictions, but does not explain how the plaintiff met the diagnostic criteria on the second examination.[126] He did not say what the Budapest criteria was.[127]
[126]T97
[127]T94
331Dr Blombery did not find any wasting on examination, nor did any other doctor. It was submitted the absence of wasting was significant because in the witness box, the plaintiff demonstrated virtually no movement and had told doctors that, and that she either had no use, or very limited use of her hand.[128]
[128]T95
332While acknowledging Dr Blombery’s expertise in the field of CRPS, it was submitted that his opinion lacked a path of reasoning.[129]
[129]T97
333Examination findings of doctors all along the way vary and when deciding what weight to place on Dr Blombery, it gets back to whether or not the Court can be satisfied that his subjective history is made out, “because there is not much else apart from 1.6 degrees temperature difference in one of the fingers” and a bland statement that the criteria is fulfilled.[130]
[130]T99
334It was submitted examination findings had been variable. Dr Janakiramanan found a poor range of motion and that the plaintiff’s right hand was very swollen, whereas Dr Khan, found a full range of motion.
335In any event, Dr Janakiramanan has not seen the plaintiff since June 2021, even though there was a follow up which was cancelled. It was submitted, relevantly, Dr Janakiramanan could not even undertake a meaningful clinical examination.[131]
[131]T91
336Further, it was submitted the original treater, Dr Hrstic, initially “had no idea what was going on”. She seemed to think the plaintiff developed carpal tunnel syndrome in her left wrist due to overuse but she was not appraised of the significant past history. Dr Hrstic accepted the plaintiff’s complaints, being unable to write, cut food and difficulty performing all ADL’s – restrictions at odds with level of activity shown on the film. Dr Hrstic really gave little assistance on diagnosis and it should be inferred she has just adopted Dr Janakiramanan’s diagnosis.[132]
[132]T88
337Dr Harvey, the first hand specialist doctor who saw the plaintiff after the incident, performed the first steroid injection, hence there was no suggestion he was interested in CRPS.[133] He did not provide a report.
[133]T89
338The second specialist, Mr Clitherow, who gave the plaintiff a CMC and an STT injection, thought it was not immediately clear what was the cause of her pain. At the time of the injections, he was not entertaining the diagnosis of CRPS. He referred the plaintiff to a pain specialist.[134] He does really help in terms of CRPS and just focuses on the aggravation of a sprain which he thought would settle over a few months.[135]
[134]T89
[135]T90
339Dr Khan, pain specialist, saw the plaintiff once on referral from Dr Hrstic. He thought she had an active pathology and not a regional pain syndrome. His findings were similar to Mr Robbins and different to Dr Blomberys. Dr Khan has a couple of question mark diagnoses, including the development of a pain syndrome but does not delve into the Budapest criteria.[136] It was submitted it was significant that he did not diagnose CRPS as he is a pain specialist.[137]
[136]T90
[137]T91
340While the plaintiff’s hands looked different in the witness box, and as I pointed out, looked very similar to Mr Robbins photos. Counsel submitted this had to do with the compression glove.[138]
[138]T94
341Counsel for the defendant submitted Mr Robbins opinion should be accepted. He thought it much more likely the plaintiff’s complaints were non-physical or had a non-physical basis.[139]
[139]T102
342While Mr Robbins first saw the plaintiff remotely in November 2021, he re-examined her in person in March 2023. At that time her hand was normal in appearance with a full range of movement and there was no muscle wasting.
343Mr Robbins is a hand, plastic and reconstructive surgeon and could find no physical explanation for the severity of the plaintiff’s pain. It was submitted he met the diagnosis of CRPS “head on” and that there was insufficient clinical evidence of it and what remains is subjective.[140]
[140]T101
344Counsel for the defendant described the attack on Mr Robbins as “extraordinary”. He is a plastic and reconstructive surgeon. His findings were the same as pain specialist, Dr Khan.[141]
[141]T120
345Counsel for the plaintiff submitted that the defendant completely underestimated the debilitating nature of CRPS as a medical condition and completely underestimated the difficulties in trying to treat it.[142]
[142]T109
346CRPS is a serious and significant condition as a number of medical practitioners, particularly Dr Blombery have described. He is an expert in pain medicine and his CV lists his specialities are CRPS, neuropathic pain and chronic pain being a member of the International Association for the Study of Pain. He is the pre-eminent expert in CRPS.[143]
[143]See Woods v Ross [2000] VSC 501 (per Ashley J at paragraph [33]); T111
347This diagnosis was also made by Dr Hrstic after Dr Khan, to whom she referred the plaintiff, later received this expert opinion from Dr Janakiramanan.[144]
[144]T115
348The plaintiff has described temperature and colour changes since the incident. Her husband’s evidence of colour changes can be taken into account and is not a medical opinion.[145]
[145]T115
349It was submitted the high point of the defendant’s evidence – Mr Robbins evidence- did not assist the defendant in defending this application.[146] There is no indication at all that Mr Robbins has any experience in treatment of CRPS and his report “indicates he is very much completely out of his depth in the assessment”.[147] Further, Mr Robbins’ photographs confirm the plaintiff’s right hand is not normal in appearance, and also that it lacks a full range of movement.[148]
[146]T110
[147]T109
[148]DCB66
350On re-examination, Mr Robbins in fact found the plaintiff’s fingers seemed cold compared to the left, in part consistent with Dr Blombery’s initial examination findings. While Dr Blombery did not find any temperature differences on re-examination, he still came to the CRPS diagnosis.[149]
[149]T101
351It was submitted the finding by Mr Robbins of tenderness of the thenar eminence was, itself, a sign consistent with CRPS, as was the coldness. While noting these findings, he did not proceed to comment on them which of course is the vital diagnostic indication, as Dr Blombery did.[150]
[150]T110
Findings
352Taking into consideration the evidence viewed as a whole, I accept the plaintiff is presently suffering from CRPS relating to the incident injury.
353Much of the defendant’s submissions in terms of this were based on the various examiners knowledge or lack thereof, of the plaintiff’s longstanding back condition and level of medication she was taking in relation thereto, before the incident.
354It is clear however that the various examiners knew of these issues from the history given by the plaintiff or the documents forwarded to them.
355The diagnosis of CRPS depends on the satisfaction of the Budapest criteria and is not just subjectively based. In any event, I largely accept the plaintiff’s evidence that since the impact to her right hand in the incident, she has experienced hand pain, restricted movement, swelling, temperature and colour changes, although varying at times.
356Further, it is not apparent that any examiner based their diagnosis of CRPS on the understanding the heavy medication the plaintiff currently takes has been prescribed for her right hand condition.
357Both Dr Janakiramanan and Dr Blombery, an expert in this field, diagnosed CRPS and on re-examination earlier this year, Dr Blombery made the same diagnosis, although not finding any temperature difference.
358Mr Robbins first examination of the plaintiff in 2021 was on Telehealth. On re-examination, in person in March 2023, he confirmed his earlier view that he suspected there was no physical basis for the plaintiff’s complaints. However, on examination he did find coldness and “apparent tenderness” of the thenar eminence, both signs relevant to the diagnosis of CRPS. However, he did not comment on the significance or otherwise of those findings, simply stating there was no clinical evidence the plaintiff was suffering from RSD.
359While his report mentioned there was a full range of movement of the plaintiff’s right hand, his own photograph showed curling of the fingers of the right hand – similar to my observations of the plaintiff’s hand while in the witness box. His photos seemed to be of the hands of two different people.[151]
[151]T8
Consequences
360In terms of the claimed consequences of any right upper limb impairment, the defendant’s case was that these various activities were impacted significantly in any event by her longstanding back condition.[152]As at the incident date, she continued to suffer significant back pain and had been taking heavy medication for that condition for over 20 years.[153]
[152] Petkovski v Galletti [1994] 1 VR 436
[153] Kelso v Tatiara Meat Company Pty Ltd [2010] VSCA 12
361Further, it was submitted the plaintiff really only ever had a capacity for part time work because of her back injury, with the exception of her father’s shop, which is closed.[154] Her ability to do housework and other activities was still affected by back pain.[155] While she claimed her ability to play golf and tennis was affected by her hand, she had pretty much stopped because of her back.[156]
[154]T106
[155]T107
[156]T81
362It was also submitted that any incident related consequences as at the date of hearing are not serious - based to a large extent on what was said to be a significant level of activity shown on the surveillance film.[157] The lay evidence did not really advance her case.[158]
[157]T106
[158]T108
Findings
363As at the said date, while the plaintiff still had to take care with her back and required ongoing heavy medication, but significantly she was able to ride and handle horses and engage in heavy work with the defendant for at least 20 hours a week.
364Prior to that, and post her back injury, she had been able to work in sales and later medical reception, albeit on a part time basis.
365Since her hand injury, she has experienced ongoing pain and her ability to work has been seriously compromised. This has also been the situation with any right handed activities - a problem she did not have before the incident injury.
366While her back pain persists, her right hand pain is at a constant level and causes her more significant problems.
Pain
367The evidentiary basis of the pain assessment would ordinarily comprise the following, inter alia what the plaintiff says about the pain (both in Court and to doctors).[159]
[159] Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 per Maxell P at paragraph [11]
368The plaintiff experiences persistent radial sided pain with difficulty performing grasping manoeuvres with that hand. She has difficulty with twisting, holding and gripping. Further, the use of her fingers is affected with her ring and little fingers managing the pain best. However, with her index and middle fingers, prolonged or forceful use is very painful.
369Her complaints to examiners have been in similar terms. Most recently in March this year, she described to Dr Blombery constant right hand pain which ranged from 7 to 10/10. Dr Hrstic also reported the plaintiff had right hand pain “24/7” and also problems with the left hand because of overuse.
370While examination findings have been variable, swelling has been noted on a number of occasions, especially over the thenar eminence. Temperature and colour changes have been observed and there has been limited movement of wrist and thumb at various times.
Treatment
371The plaintiff has undergone a wide range of treatment for her hand injury.
372As GP Dr Hrstic noted, the plaintiff has had steroids, local anaesthetic injections, specialist referral and extensive hand therapy strong painkillers, anti inflammatories, extensive physiotherapy, pain management consultation, sleep medication, anti depressant and anti anxiety medication.
373However, counsel for the defendant submitted the plaintiff had not undergone treatment that had been suggested - GMI - and had ceased hand therapy without any proper explanation. Her failure to take up these treatments was against the proposition she was in so much pain.[160]
[160]T85
374However, I accept the plaintiff’s evidence that she has not taken up further treatment because to date, despite extensive treatment, there has been little improvement in her condition.[161] She thought she had done everything she could, and she was pessimistic about the future and thought she had reached the end of the line.[162]
[161]T83
[162]T117
375While there have been treatment suggestions, as her GP Dr Hrstic advised, there is not much that can be done to fix the condition.[163] When seen in June 2021, Dr Janakiramanan gave the plaintiff similar advice that there “will be no magic wand solutions and recovery such that it might be, may be years.”
[163]T118
376Dr Hrstic noted the plaintiff needed a lot of medications for her hand pain. While clearly the plaintiff was on a significant medication regime for her back pain, there have been additions to that regime as she described because of her hand pain – it helps both conditions.
Other consequences
377Significantly, because of her inability to use her right hand, the plaintiff has been unable to return to work, save for short lived attempt at Casey in mid-2022.[164]
[164]Haden Engineering at paragraph [15]; Eliis Management Services Pty Ltd v Taylor [2013] VSCA 326 at paragraph [35]
378The plaintiff has been unable to continue riding her horses, an activity she previously loved and continued to engage in pre incident, despite her back pain.
379The lay evidence relied upon by the plaintiff confirming her level of symptoms and restrictions was not challenged.
380Despite a range of treatment, the plaintiff’s hand problems persist and are likely to do so for the foreseeable future.
381Taking into account all the evidence, I am satisfied the consequences thereof are serious.
382Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering.
Loss of earning capacity
383Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, she has a loss of earning capacity of 40 per cent or more – s325(2)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s325(2)(e)(ii).
384The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
385The former must be calculated by reference to the six-year period specified in s (f).
386“Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
387It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
388The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.[165]
[165] Barwon Spinners Pty Ltd & Ors v Podolak [2005] VSCA 33 at paragraph [70]
389I am therefore required to determine a “without injury” earnings figure. Submissions were made by counsel in this respect.
390Counsel for the plaintiff suggested the plaintiff’s without injury earnings figure is $42,115- her earnings in 2014/5, her “exercisable capacity”.[166]
[166]Herald & Weekly Times Ltd and Victorian WorkCover Authority v Jessop [2014] VSCA 292; T119
391Counsel for the defendant put a much lower figure in round terms, around $23,000. Ms Welsh’s evidence that the plaintiff would never do more than twenty hours was not challenged.[167] Receipt of the carers pension in recent years was also relevant when looking at the plaintiff’s without injury earnings figure. [168]
[167]T106
[168]T104
Conclusion
392The plaintiff must therefore establish a loss of 40%, a much smaller amount on the defendant’s figure than that suggested by the plaintiff. However, the plaintiff’s case was one of total loss, thus falling below the 40% threshold on either figure.
393There is limited medical evidence as to the impact of the plaintiff’s hand injury on her work capacity.
394Dr Hrstic as at July 2022 certified no capacity for employment. She did not comment on her work capacity in March 2023, simply saying there is no definite treatment available so the plaintiff “feels very stressed about her future ability to work”.
395Dr Blombery in July 2021, noting the plaintiff had very limited use of her dominant right hand as a consequence of the injury, thought she would be unable to do any tasks where she had to use her right hand to any significant extent.
396On re-examination in March this year, he commented that the plaintiff’s injuries to the right wrist had had a very marked effect on her ability to work. She was not able to use her right dominant hand to work effectively in any occupation.
397Mr Robbins did not really comment on the plaintiff’s work capacity simply stating on the initial examination, that she probably had a physical capacity but, psychologically, he did not think she could work. He doubted if she had any intention of going back to work (pre-injury duties). On re-examination, he noted the plaintiff claimed her pain was too severe to do any job she had done previously or was suggested in the vocational report. This being the case, it was not possible for him to be adamant that she could. It was unlikely she had a capacity to complete any retraining, or a willingness to do so.
398I accept the plaintiff’s evidence that she has no work capacity because of her incident related hand condition. She tried a return to work on a very limited basis at Casey last year but was unable to continue because of increased right hand pain when typing.
399I also accept the plaintiff would be unable to work in any of the suggested jobs given the difficulties with her right hand. From her past experience in sales, she knows the nature of the duties involved. The other suggested jobs are also unsuitable given the amount of manual handling and driving involved.
400A return to work would expose the plaintiff to risk of injury, therefore it is not reasonable that she go back.[169]
[169]Daley AJ in O’Brien Glass Industries Ltd v Pisani [2018] VSC 294 at paragraphs [53]-[55]; T119
401The plaintiff had a good work history in the years leading up to the incident working mainly in medical reception. In 2020, she made a career change to her role with the defendant – a role with more physical tasks looking after horses and stables.
402She has been unable to return to this work which she particularly enjoyed given her love of horses. There is no suggestion by any examiner that she currently has a capacity for this type of work.
403Taking into account all the evidence, I am satisfied the plaintiff as a result of her upper right limb impairment, does not have a capacity for suitable employment and this situation is permanent. Accordingly, she has suffered the requisite loss of 40%.
404I am also required to consider issues of retraining and rehabilitation pursuant to ss(g).
405In light of my findings as to the plaintiff’s impairment and her incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that her has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of her capacity for employment, the plaintiff has satisfied the requirements of s325(2)(g).
406Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.
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