Gianchino v Voyager Distributing Co. Pty Ltd
[2014] VCC 247
•17 March 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-12-01895
| ROBERTA GIANCHINO | Plaintiff |
| V | |
| VOYAGER DISTRIBUTING CO. PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 February 2014 | |
DATE OF JUDGMENT: | 17 March 2014 | |
CASE MAY BE CITED AS: | Gianchino v Voyager Distributing Co. Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 247 | |
REASONS FOR JUDGMENT
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Subject:Serious injury application
Catchwords: Application under s. 134AB of Accident Compensation Act – whether pain and suffering consequence of injury is serious
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69, Sutton v Laminex Group Pty Ltd [2011] VSCA 52, Aburrow v Network Personnel Pty Ltd [2013] VSCA 46, Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, StijepicvOne Force Group Aust Pty Ltd [2009] VSCA 181
Judgment: Leave granted to the plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A. Macnab | Slater & Gordon |
| For the Defendant | Mr M. Clarke | Wisewould Mahony |
HER HONOUR:
The application
1 The plaintiff seeks leave to commence common law proceedings pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (the Act) to recover damages for injury to her dominant right upper limb arising out of or in the course of, or due to the nature of her employment with the defendant.
2 Leave was sought under paragraph (a) of the definition of 'serious injury' to recover damages for pain and suffering only for permanent serious impairment of the plaintiff's right upper limb.
3 'Permanent' refers to impairment of the right upper limb that is: "likely to last for the foreseeable future".[1]
[1]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 [33]
4 The determination of whether this injury is 'serious' is made by assessment of the consequences to the plaintiff of impairment of her right upper limb, which would not, in this case, meet the test unless the pain and suffering consequence, when judged by comparison with other cases in the range of possible impairments, is “fairly described as being more than significant or marked and as being at least very considerable”.[2]
[2] Section 134AB(38)(c)
5 Relevantly, section 134AB(38)(h) precludes consideration of any psychological or psychiatric consequence of the injury. Notably, whilst doctors did not question the existence of an organic basis for the pain and suffering consequence alleged, specialists from both sides have noted likely non-organic sequelae to the injury. For instance, orthopaedic surgeon, Mr Miller, who assessed the plaintiff at the request of her solicitors on 22 February 2013, recommended psychiatric assessment of an adverse mental state reaction (“She states she has some problems with feelings of anxiety and depression”[3]). However, rheumatologist, Dr Karna, who examined the plaintiff on 16 February 2012, 9 April 2013 and 11 December 2013 at the request of the defendant’s solicitors found clinical evidence of pain amplification. In December 2013, he reported as follows:
“Fundamentally this worker’s presentation is entirely dependent upon the accuracy of her history. She complains of continuing pain in the right lateral epicondylar region and that can occur in a chronic setting even post surgery and I have no way of refuting that claim of hers. There are however significant features suggesting that she is amplifying her presentation and certainly her alleged functional incapacity is not in keeping with the complete absence of features of disuse or relatively less use and the collapsing weakness is clearly functional.”[4]
[3] Plaintiff's Court Book (PCB) 83
[4] Defendant's Court Book (DCB) 30C
6 I will summarise the specialist evidence in more detail shortly.
7 The defendant conceded compensable injury. The issue was whether after applying the narrative test, the pain and suffering consequence of the injury sustained was serious.
8 As to the plaintiff’s credit, initially I was informed the only issue was whether, having heard the evidence, the Court accepted the plaintiff as a credible witness. During cross-examination and closing submissions, the defendant challenged the reliability of the histories provided to doctors (and, as a result, the bases upon which their opinions were formed) particularly where the plaintiff probably failed to mention earlier medical conditions, including knee conditions requiring multiple surgical interventions.
9 My impression of the plaintiff’s evidence was that she tended to minimise the impact of her knee conditions and there may have been some element of selectivity in the information provided to doctors about earlier medical conditions. However, the relevance of this information to formulation of their opinion required careful analysis. I also formed the view that the plaintiff had likely exaggerated her evidence as to the frequency with which her sleep was interrupted by right arm pain and discomfort.
10 In all, I was satisfied that Dr Karna was justified in his concern that the plaintiff’s functional capacity was better than as presented. My reasons for so concluding are explained in due course.
The evidence
11 Extracts from the Court Books comprising the plaintiff’s affidavits, medical reports, radiological reports, entries in the general practitioner’s clinical notes, home help assessment reports and WorkCover Worker’s Claim Forms (the letter for earlier work-related injuries), were tendered.[5]
[5] Exhibit P1 and Exhibit D1
12 The plaintiff relied on her affidavits sworn on 1 December 2011 and 13 June 2013 respectively and through her oral evidence updated her current treatment regime and the level and frequency of her experience of pain. She was cross-examined.
13 The plaintiff also tendered copy Certificate of Capacity, dated 12 August 2008, which specified the restrictions in place post-surgery on the plaintiff’s hours and duties (no lifting over 3 kilograms with right arm, limited repetitive gripping with left (sic) hand, 4 hours on alternative, days 3 days per week).[6]
Background
[6] Exhibit P2
14 The plaintiff is 49 years of age. She migrated from Italy with her family when she was 6 years old. The plaintiff is married with adult children.
15 The plaintiff completed Year 12, followed by a short travel course. Until she fell pregnant, the plaintiff was employed for some 10 years in data entry/customer service duties by a local council. Her duties included administrative work in the rates department, processing bills and invoices, telephone enquiries and working as the council’s records manager.[7]
[7] Transcript (TN) 27-28
16 There followed some four years at home with young children.
17 From about 1999 to 2005 the plaintiff was employed with various employers as a part-time retail sales assistant and for a short time (maybe 9 months[8]) by Telcare caring for an elderly woman 3 to 4 hours per week.
[8] TN 29
18 On 23 December 2003 and again on 30 March 2005, the plaintiff made claims against her then retail employer for right hand, thumb, wrist and forearm injury and strained tendons in the thumb and right arm injury respectively.[9] At hearing, the plaintiff said she saw a doctor on both occasions and wore a bandage for a short period (possibly after the second injury). The plaintiff could not be certain whether she took any time off work.[10]
[9] DCB 55A and 55F
[10] TN 30-32
19 On 10 November 2005, the plaintiff commenced employment with the defendant as a retail sales assistant working some 26 hours per week. The plaintiff said she intended to work full time after her children became more independent.
20 In her first affidavit the plaintiff deposed that, in about mid-2007, she noticed pain in her right elbow which gradually worsened. The plaintiff attributed her symptoms to the heavy nature of her duties and, in particular, difficulty in opening and closing the store roller door for which she was required to use a stick with a hook. In the plaintiff’s words this necessitated trying to: “.. pull the roller door down as this usually involved significant force pulling with my right arm on the stick. I also had difficulty lifting the door as it required significant force to open….” In addition to this activity, the plaintiff further deposed that: “during the course of my employment with the defendant I was often required to lift, carry and manoeuvre heavy boxes filled with clothing around the store. At times I was also required to repetitively rip open plastic bags, which also placed a strain on my arms.”[11]
[11] PCB 45
21 On 25 June 2007 the plaintiff attended her general practitioner, Dr Martiniello. In a report dated 28 October 2009,[12] the treating doctor said he recorded complaint of worsening right elbow and arm pain which the plaintiff reported had been present for a few months. He diagnosed tennis elbow and administered a cortisone injection. According to the plaintiff this injection reduced her pain for about six weeks, after which pain gradually increased and she had difficulty sleeping at night.
[12] PCB 55
22 In September 2007 Dr Martiniello prescribed the anti-inflammatory medication, Mobic and referred the plaintiff for physiotherapy.
23 On 4 September 2007, the plaintiff submitted her claim for compensation.
24 On 12 October 2007 the plaintiff reported no improvement in her condition and pain aggravated by work. She was certified unfit for duties for two weeks. An ultrasound of the right elbow was performed on 16 October 2007.[13] According to the treating doctor this “demonstrated marked features of tennis elbow and a small intra-substance tear in the common extensor or tendon.”[14]
[13] PCB 53
[14] PCB 55
25 After a further cortisone injection failed to relieve her symptoms, the plaintiff was referred to orthopaedic surgeon, Mr Pullen. Having examined the plaintiff on 28 November 2007, he too diagnosed tennis elbow or right lateral epicondylitis in association with the work activities described by the plaintiff.[15]
[15] PCB 68
26 On 15 February 2008, Allianz Australia Workers Compensation gave permission for a right tennis elbow release and humeral ostectomy. The operation was performed on 4 March 2008. Despite this procedure and hand therapy, the plaintiff reported persistent pain.
27 On 19 March 2008, the plaintiff was assessed by WorkCover Household Help. This organisation recommended assistance over a 17 week period, commencing at two hours per week and reducing to 2 hours per fortnight.[16]
[16] PCB 89
28 MRI performed at the request of her surgeon on 30 June 2008[17] apparently indicated moderate thickening and hyperintense signal without definite tear and a very mild surrounding soft tissue hyperintensity. However, the radiologist’s report suggests that these appearances on the common extensor tendon were most likely secondary to the post-operative state, with the tendon remaining intact and no evidence of discrete tear.
[17] PCB 53
29 When last seen by her treating surgeon on 6 August 2008, he recommended a further cortisone injection. Based on the assessment of the plaintiff’s condition on that date, Mr Pullen concluded that she would have struggled to return to her pre-injury duties.[18]
[18] PCB 71
30 I note that hand therapy continued until 6 August 2008, by which date the therapist, Ms Moloney, reported the plaintiff had regained almost full range of motion, but complained of ongoing pain.[19]
[19] PCB 73
31 On 25 August 2008, the plaintiff underwent her third cortisone injection.
32 It appears that the plaintiff returned to work from May 2008 until 14 September 2009, working restricted hours and duties (12 hours per week). According to the treating general practitioner’s reports, during this period the plaintiff was unable to increase her hours and remained on restricted duties due to reported symptoms involving persistent right elbow pain, pain travelling up the right arm to the plaintiff’s shoulder and to the right side of her neck and headaches. The plaintiff also reported left arm pain, which she attributed to compensatory overuse of this limb.
33 On 22 June 2009, the plaintiff was again assessed as requiring home help for a three-month period to assist with vacuuming, mopping the floor and cleaning one bathroom.[20]
[20] PCB 94
34 I note that a number of the medical reports refer to video surveillance obtained on 24 June 2009. For instance, in his report dated 10 March 2010, having viewed this film the treating general practitioner stated: “… it in no way can be used to suggest that it demonstrated full function nor that Mrs Gianchino was experiencing no pain or discomfort whilst performing these functions. Nor does it demonstrate what affect [sic] these activities and other activities of a repetitive nature, involving lifting or gripping, have by the end of the day”.[21]
[21] PCB 59
35 Rheumatologist, Dr Karna, also advised the defendant’s solicitors in his report, dated 5 September 2012, that the activities shown in this surveillance material had not altered his opinion. In summary, he concluded the plaintiff was suffering from chronic right lateral epicondylitis lesion, which incapacitated her in respect to unrestricted pre-injury duties but not for suitable employment in sales and light administrative work on a full-time basis.[22]
[22] DCB 23, 25, 29 and 30D
36 Rheumatologist, Dr Kostos, was another specialist, who advised the defendant’s solicitors that the activities filmed were consistent with the plaintiff’s presentation when examined by him on 6 August 2012.[23] Notably, having re-examined the plaintiff on 2 December 2013, Dr Kostos further indicated that the surveillance material had not changed his opinion that duties involving customer service, general cleaning and unpacking or hanging clothing garments on a regular basis, would prove difficult for the plaintiff.[24] I did not understand this evidence to mean that Dr Kostos viewed the plaintiff as being totally incapacitated for alternative employment.
[23] DCB 36
[24] DCB 39C
37 On 14 September 2009, the plaintiff’s employment was terminated. A later unfair dismissal claim was settled by the parties.
38 Under cross-examination, the plaintiff agreed the termination was the only reason she had ceased employment. Had this not occurred, the plaintiff agreed she would have happily continued working reduced hours, 12 hours per week (four hours on three alternate days).[25] As we now know the plaintiff never returned to any gainful employment, although she claimed to have sought this.
[25] TN 50-51
39 In December 2009, the plaintiff presented to her general practitioner complaining of worsening right elbow pain. According to the doctor’s report the plaintiff was unable to straightened her elbow and she was tender at the lateral epicondyle of the elbow, with a noticeable reduction in grip strength.[26] She underwent a further cortisone injection on 23 December 2009, the benefits of which the plaintiff said wore off with the passage of time.[27]
[26] PCB 62
[27] PCB 47 and 62
40 It appears that requests for gym membership in 2010 to aid the plaintiff’s rehabilitation and for further home assistance in 2011 were refused.
41 Since the further injection in late 2009, the evidence of the treating general practitioner has indicated that the plaintiff continued to report right arm symptoms involving pain, tenderness and aching, which were not relieved by the use of medication, Nurofen, or it seems, the anti-inflammatory, Celebrex, the latter prescribed from April 2013. On 18 July 2012 the doctor described her condition as chronic and likely to persist indefinitely.[28] He initially recommended further cortisone injection, although, as his May 2013 report shows, by August 2012, Dr Martinellio appeared to favour treatment by way of autologous blood injection. Approval for this procedure and a trial of acupuncture were not, however, forthcoming.[29]
[28] PCB 62
[29] PCB 65
42 The salient features of the doctor’s final report dated 29 January 2014, can be summarised as follows:[30]
[30] PCB 65a
· when last seen on to January 2014 the plaintiff complained of: “ongoing pain at the right elbow with pain shooting down into her hand with sensations of “electricity” type shooting pain and tingling. Weakness of hand grip and easy and early fatigue of the right arm continue to restrict the use and function of that limb. Her sleep was affected by the pain shooting down from her elbow down to her hand and this was associated with any movement of the arm or certain positioning of the arm at night”;
· examination revealed some swelling over the lateral epicondyle, associated tenderness and a weaker hand grip than on the left side;
· the plaintiff reported using Nurofen or Celebrex intermittently to control pain;
· the treating general practitioner continued to diagnose work-related chronic right lateral epicondylitis, which required ongoing analgesic treatment and would, he opined, affect the function of the plaintiff’s right upper limb indefinitely.
43 Having read, particularly the medical evidence, which included the specialist reports summarised below, I had some difficulty identifying the physical basis for the reported worsening of the condition of the plaintiff’s right elbow and the reportedly increased levels of pain from December 2009 to 2014. This is not to deny the evident chronicity of the right elbow condition or the physical effects from time to time of symptoms of minor capsulitis in one or both shoulders or some symptoms in her left elbow, to which compensatory use of the left arm contributed.
The Other Medical Opinions
44 The medico-legal opinions tendered commence from February 2012. It is convenient to deal with each specialist’s evidence in chronological order.
45 As mentioned the plaintiff was examined by rheumatologist, Dr Karna for the first time on 16 February 2012. He obtained a history of the injury and treatment received. As to her symptoms, the plaintiff gave the following account:[31]
“Currently at the right elbow she says that it aches at rest. She has a heavy dull aching sensation in that context even for example whilst watching television. With certain activities she gets a superadded sharp pain, which can last two to three hours. She cited examples of driving, showering, drying her hair and doing housework including ironing as producing this kind of pain. She has restricted movement and some ongoing swelling at the right elbow. She has trouble lifting a kettle. Gripping can be difficult. She feels weakness in her right arm. She has had some intermittent swelling on the dorsum of the right ring finger. She says that because of using her left arm she is getting some compensatory pain at the back of the left upper arm.”
[31] DCB 21
46 Examination apparently revealed some puffiness around the right lateral elbow region, restriction in the range of motion and a loss of extension at the right elbow, equal circumference between the left and right forearms with no specific features of disuse, preservation of shoulder and neck movements, an absence of neurological abnormalities or features of autonomic dysfunction, reduction in grip strength (a consistent reducible observation measuring approximately half on the right compared to the left) and right lateral epicondylar pain on resisted right wrist movements.[32]
[32] DCB 22
47 On the occasion of his first examination, the rheumatologist considered the plaintiff genuine and credible. He concluded she was disabled by work-related chronic right lateral epicondylitis lesion, but she was not, Dr Karna said, totally incapacitated for work. I will return to discuss in more detail each doctor’s finding in respect to the plaintiff’s capacity for employment, shortly.
48 The next specialist examination took place on 4 July 2012. This was by sports physician, Dr Wood, at the request of the plaintiff’s solicitors. In addition to obtaining a history of the injury and treatment Dr Wood was informed as follows:[33]
“Her current symptoms include constant pain and aching through the outside of the elbow. She describes the arm as fatiguing easily. Any significant use of her right arm produces a sharp pain around the elbow. If she drives significant distances it also exacerbates the pain. The pain starts in the elbow and can radiate into the hand. She has difficulty with chopping vegetables and she has to do a number of the domestic chores at a much slower pace than normal. She uses a TENS machine that she was given by the hand therapist at night or otherwise heat. She takes occasional nurofen, up to two to four per day but not every day. She tries to do some grip strengthening using a “putty”. She does use the tennis elbow brace occasionally. She was on mobic but this gave her an upset stomach.”
[33] PCB 77
49 Examination apparently revealed a reduced range of movement on the right side, pulling in the lateral aspect of the elbow with pronation, tenderness over the common extensor origin, positive tennis elbow tests including resisted wrist extension and middle finger extension, shooting pain in her right ring finger with middle finger extension and reduced grip strength on the right side.[34]
[34] PCB 78
50 Dr Wood diagnosed right extensor tendinopathy (tennis elbow) as a consequence of the plaintiff’s employment with the defendant. In his opinion the plaintiff was permanently precluded and restricted in relation to employment and activities involving lifting or pulling using the right arm. Moreover, he accepted that the plaintiff was unable to return to activities, such as ten pin bowling, tennis or netball and her ability to undertake gardening was reduced due to the impaired functioning of her right upper limb.
51 I note that in July 2012, Dr Wood recommended against further cortisone injection, which had only temporarily relieved the plaintiff’s symptoms in the past. He advocated an autologous blood injection (two injections 4 to 6 weeks apart) followed by a dedicated daily eccentric strengthening exercise programme.[35] However, as noted in Dr Martinielli’s recent reports, approval of this procedure was denied. No doubt the absence of support for this procedure from other specialists contributed to this decision.
[35] PCB 80
52 Rheumatologist, Dr Kostos, examined the plaintiff at the request of the defendant’s solicitors on 6 August 2012, 29 April 2013 and 2 December 2013.[36]
[36] DCB 31-39C
53 When first seen by Dr Kostos the plaintiff apparently reported that she now believed her condition to be worse than prior to surgery in 2008.[37] The plaintiff complained of constant pain over the lateral aspect of a right elbow which could shoot down the right forearm and into her right ring finger, sleep interrupted by pain at night, a worsening of pain due to any activity involving the use of her right hand and reduced grip strength with some intermittent paraesthesia and numbness which affected the entire hand.[38]
[37] DCB 32
[38] DCB 32
54 Examination evidently revealed slight restriction in neck movements with right-sided discomfort in all directions, limited elevation with pain in her right shoulder and decreasing glenohumeral movements on the right, restricted right elbow movements in flexion and extension with discomfort (although pronation and supination were full), marked thickening and tenderness over the right lateral epicondyle with positive confirmatory testing, poor extensor muscle flexibility on the right, a full range of movement of the wrists but with some discomfort in right wrist flexion and reduced grip strength on the right (measuring 0 on the right and 17 on the left). This specialist also took into account the appearance of the plaintiff’s hands. Like Dr Karna, he found their appearance consistent with normal use.[39]
[39] DCB 33
55 In addition to evidence of work-related right lateral epicondylitis, Dr Kostos noted very minor adhesive capsulitis of the right shoulder. Interestingly enough, based on the history received, Dr Kostas formed the view that the work duties as described had not contributed to any permanent injury. He evidently believed the permanent injury had been caused by failed surgery. The defendant has, however, accepted liability for compensable injury.
56 I have already mentioned in passing Mr Miller’s only report following his assessment of the plaintiff on 22 February 2013. [40] I note that Dr Wood’s report and reports submitted by, rheumatologists, Dr Karna and Dr Kostos were among the materials available to him.
[40] PCB 82-88
57 Mr Miller obtained a history of the injury and treatment received. The salient features of his report are summarised as follows:
· the plaintiff reported ongoing pain and discomfort in the right elbow, with pain radiating up in the proximal arm and further down the arm. She indicated difficulties in the performance of activities of daily living, such as turning taps on or off, turning door handles and with cooking and cleaning. The plaintiff reported fluctuating symptoms with no pattern towards improvement and some sleep disturbance;
· the plaintiff reported some problems with feelings of anxiety and depression. As previously mentioned, Mr Miller recommended this be separately assessed;
· the plaintiff’s treatment involved taking Nurofen (she had discontinued medications, such as Panadeine and Panadeine Forte due to gastric disturbance) and using a TENS machine and tennis elbow splint;
· clinical examination and testing relevantly revealed a mild form of right shoulder capsulitis (which suggested the plaintiff was still experiencing the effects of the right shoulder condition earlier noted by Dr Kostos), marked tenderness in the region of the lateral epicondyle, positive testing for tennis elbow with more diffuse hypersensitivity over the distal aspect of the forearm and some weakness of finger extension and wrist extension, which the surgeon attributed to pain inhibition;
· Mr Miller concluded the plaintiff’s condition had been stabilised since approximately March 2009. Allowing for significant ongoing symptoms in the right elbow (no doubt based on both the symptoms reported and the clinical findings), Mr Miller considered the prognosis for her right elbow was only fair;
· having no doubt noted Dr Wood’s treatment recommendations Mr Miller, nonetheless, recommended maintenance of the plaintiff’s current conservative treatment regime with an emphasis on pain management and rehabilitation. Notably, he did not envisage any problems in the future with arthritic disease;
· as to the impact on activities other than employment, Mr Miller noted the plaintiff’s capacity to drive a motor vehicle, albeit with some difficulty in operating the steering wheel. He accepted that the plaintiff would continue to have some difficulties with heavier domestic activities and with gardening activities as a result of the injury to the right upper limb (although he understood the plaintiff’s husband was responsible for gardening activities) and he appeared to accept that the plaintiff could not return to playing tennis or netball because these activities involved the use of her dominant arm. In effect, Mr Miller accepted that by reason of impairment of the right upper limb, the plaintiff was permanently restricted in performing repetitive pushing, pulling or right arm activities.
58 When next examined by Dr Karna on 9 April 2013, the plaintiff reported treatment involving intermittent attendances on her general practitioner and using Nurofen tablets (to which she also attributed epigastric problems) and Voltaren cream for pain relief.[41]
[41] DCB 27
59 The plaintiff informed Dr Karna she could use her right arm to drive, perform house work in a piecemeal fashion and attend to aspects of personal hygiene, although she claimed the arm was easily fatigued. Furthermore, she continued to perform exercises learnt from a physiotherapist and wore a tennis elbow type strap when working and at home.
60 As to treatment, the plaintiff again reported that she had sought funding for autologous blood injection and acupuncture. Dr Karna advised against approval of any further intervention by way of autologous blood injection, acupuncture or injection because he believed these would be of no benefit in the treatment of the plaintiff’s chronic lateral epicondylitis. Rather, as Mr Miller had, Dr Karna supported the plaintiff’s current treatment regime, involving intermittent use of analgesics, self-performing exercises and wearing the tennis elbow strap (the latter for the medium to long-term).
61 Under cross-examination, the plaintiff indicated that she had been deterred from pursuing self-funded acupuncture treatment by other people who had reported no relief from this procedure. [42]
[42] TN 57
62 In the circumstances described, the defendant was correct in submitting, there was no direct evidence that the plaintiff would have pursued any of the procedures mentioned had funding of these been available. Nevertheless, the plaintiff’s conduct in seeking approval for the autologous blood injection suggested, at least at that time, an intention to pursue this treatment, were it approved.
63 Clinical examination on 9 April 2013 revealed, among other things, a loss of extension, although the plaintiff retained full flexion of the right elbow and pronation/supination were normal, a one centimetre greater circumference of the right forearm with no features of disuse and a collapsing weakness of the right upper limb. The latter apparently impacted on the specialist’s ability to confirm other manoeuvres. The absence of features of disuse and the evidence of collapsing weakness were matters which prompted Dr Karna’s observation that the plaintiff had portrayed a greater degree of functional incapacity than he believed was realistic in her case.[43] Notably, on this occasion, Dr Karna had not also reported signs of puffiness or swelling.[44]
[43] DCB 29
[44] DCB 30C
64 When reviewed by Dr Kostos some weeks later on 29 April 2013, the plaintiff again reported a belief that her condition was deteriorating. This was despite the results of clinical examination, at that time showing normal neck function.
65 Among other things, the plaintiff described constant pain over the lateral aspect of her right elbow extending into the right forearm, being woken every night by pain, aggravation of her symptoms during the day due to any use of her hands, intermittent paraesthesia and numbness in her right hand predominantly in the right ring finger and ongoing weakness of grip in both hands.
66 Dr Kostos’ findings in respect to the condition of the plaintiff’s right elbow were consistent with his earlier clinical results, although, on this occasion the grip strength measured on the right was ‘2’ and on the left it was ‘13’. The doctor also found reduced sensation to pinprick in the right index, middle and ring fingers. He expressed concern that the plaintiff was then demonstrating symptoms of some left lateral epicondylitis.[45]
[45] DCB 38-39
67 Relevantly, when re-examined on 2 December 2013, among other things, Dr Kostos noted the following:[46]
[46] DCB 39B
· the plaintiff’s neck and shoulders were normal;
· the plaintiff’s left elbow was also symptomatic. This evidence generally points to likely increased reliance on this limb as claimed by the plaintiff;
· the appearance of the right elbow was unchanged and she was still unable to fully straighten her right elbow. As we know from Dr Karna’s examination and the plaintiff’s responses in cross-examination, nine days later the plaintiff was able to straighten the right elbow and demonstrated a full range of motion;
· definite swelling and tenderness over the right lateral epicondyle with discomfort on resisting and middle finger extension
· extensor muscle flexibility on the right was considerably decreased, with some decrease also on the left;
· the plaintiff’s wrists were normal;
· the plaintiff’s hands were consistent with normal use
· the plaintiff demonstrated a reduced grip strength on the right (1 on the right and 10 on the left) and, on this occasion, sensation to pin prick was normal.
68 Unlike Mr Miller and Dr Karna, Dr Kostos said he had not detected evidence of psychological reaction to the plaintiff’s condition or any likely functional component. He clearly considered the plaintiff’s condition to be permanent.
69 The salient features of Dr Karna’s final report dated 11 December 2013 are summarised as follows:
· the plaintiff reported that there had not been much change in the condition of her right elbow (“… she suggest she has a baseline dull ache, which she suggested was 6/10 level of pain, which periodically flares up with certain activities which raise the pain level to 10/10 only for it to then settle thereafter, usually be (sic) the next day or next morning. She said in the last six weeks there had been quite a few social activities at home including birthdays which meant doing more shopping and pushing of trolleys and this had led to a general increment in her baseline level of pain perhaps to an 8/10 level. Swelling, vasomotor change and sudomotor change have not been noted, but she suggest there is puffiness around the right elbow”;[47]
[47] DCB 30B
· the plaintiff reported an increased intake of Nurofen tablets to accommodate the increase in discomfort, she used Voltaren cream and she planned to consult a chiropractor regarding her elbow condition. I note there was no indication at hearing that the plaintiff had pursued chiropractic treatment;
· pain was localised diffusely in the right arm with the epicentre being the right extensor or forearm;
· the plaintiff wore a right tennis elbow strap at home and essentially described the same functional capacity at home as previously reported (“She does do the shopping and does drive and indicated prolonged driving [45 minutes to come for this interview] can lead to increased pain”[48]);
[48] DCB 30B
· clinical examination indicated no features of disuse of both hands, it was again noted that the right forearm circumference was greater than it was on the left at an equidistant point from the wrist. On this occasion, there was a full range of motion at the right elbow with full extension, flexion, pronation and supination (previously there had been some restriction in extension), no overt swelling or features of autonomic dysfunction, and, again because of a collapsing type weakness, Dr Karna said it had been impossible to assess the effects of resisted wrist extension. Whilst the plaintiff complained of diffuse tenderness in the right forearm and around the right lateral epicondyle, this had been less evident when she was distracted, there was no medial epicondylar pain and no features of ulnar neuritis or carpal tunnel syndrome. Using a Dynamometer, there was bilateral reduction in grip strength (on the right side readings of 0, 2 and 7 and on the left side readings of 14, 12 and 6 against an expected range for a female of 20 to 25 kgs), upper limb reflexes were preserved, neck and shoulder movements were full, sensory examination was normal and reflexes were preserved;
· in Dr Karna’s opinion, overall, there had been little change since he reviewed the plaintiff’s condition in April 2013;
· as previously mentioned, Dr Karna concluded that there were features of functional overlay in the plaintiff’s presentation. In this regard he emphasised the absence of features of disuse to correlate with the stated degree of functional incapacity and the collapsing weakness found on two examinations. Moreover, the 0 grip reading when using a grip meter was, Dr Karna said, incompatible with any day-to-day functioning.
70 Accordingly, some nine days after Dr Kostos’ examination, among other things, the plaintiff’s grip strength was significantly impaired, despite the plaintiff presenting with a full range of motion and full extension of the right elbow.
71 Under cross-examination, the plaintiff told the Court that both the strength and movement of her elbow and the level of her pain varied depending on the amount of heavy housework performed.[49] As I understood her evidence, activity such as heavy housework might aggravate the level of pain and this, in turn, impacted on the extent to which the plaintiff could move the elbow.
[49] TN 55
72 The plaintiff agreed she had demonstrated a full range of motion when assessed by Dr Karna on 11 December 2013. This finding alone suggested that loss of movement had not contributed to the grip strength measurements obtained that day.
73 On the second hearing day, during re-examination, the plaintiff told the Court that she did not have full range of movement in her elbow and she gave some demonstration of the limitations in movement of this limb.[50] For instance, the plaintiff said she had difficulty straightening her arm and could not fully stretch. When asked to demonstrate various movements, from my observation, the plaintiff at first appeared to straighten her arm in front of her body although, after being asked by counsel to turn the palm and thumb away from her body, the plaintiff appeared unable to fully complete this manoeuvre.
[50] TN 62-63
74 The plaintiff was next asked by counsel to turn side on and straighten her arm. On this occasion, she did not fully straighten the arm and described a pulling sensation into her forearm and ring finger.
75 My summary of the various medical reports has shown that, over many years, the plaintiff’s ability to straighten and move her elbow in a clinical setting has been variable. Nevertheless, reduction in grip strength has been a consistent finding. However, as far as I can tell, the rheumatologists were the only doctors to formally measure this function using a grip meter device.
76 As to the evident discrepancy between the reduction in grip strength recorded and the consistent evidence obtained suggestive of normal use of the affected limb, in his final report, Dr Kostos explained that during testing, he typically asked workers (and, in this case, the plaintiff) to only demonstrate the grip strength with which they were comfortable. Dr Kostos evidently felt this could explain any variation in the plaintiff’s readings, particularly where on each of the occasions he examined her, the plaintiff’s grip strength had been demonstrably weak.[51] In other words, Dr Kostos, appeared less concerned by the extreme weakness demonstrated because he had not required the plaintiff to attempt more than was comfortable for her.
[51] DCB 39C
77 I was not, however, satisfied that this or any difference in the doctors’ approach to measuring grip strength, adequately explained the overall absence of evidence of disuse of the right upper limb or the matters of concern raised by Dr Karna, within nine days of Dr Kostos’ examination. As Dr Karna recorded on this occasion:[52]
“The inconsistency between Dr Kostos’s report of August 2012 and my February 2012 in terms of the grip strength is in keeping with there being a functional component to her presentation. That is to say, there is no structural musculoskeletal reason why such a disparity should be noted and as indicated today her registering 0 on the grip meter today with her right hand is incompatible with any day to day functioning. A 0 grip meter finding is indeed compatible with the notion of there being no features of disuse [sic].”
[52] DCB 30D
78 In preferring Dr Karna’s evidence, I also had regard to the plaintiff’s day-to-day activities as described in her affidavit and oral evidence. Based on her evidence, the plaintiff had modified the way she performed her activities but largely continued to carry out most of her pre-injury tasks, in the performance of which she no doubt needed to grip and use various appliances with her right hand. This evidence, summarised below, was consistent with the clinical evidence of normal use of the right upper limb but incompatible with the grip strength measurement obtained by Dr Karna on a day the plaintiff acknowledged she had demonstrated a full range of movement of her right arm and elbow.[53]
[53] TN 55
79 For instance, in her first affidavit, the plaintiff deposed to previously having been very house-proud and someone who enjoyed cooking and gardening.[54] However, as a result of her injury the plaintiff deposed as follows:
“… I now have difficulty chopping and peeling vegetables. At times I am prone to dropping things. I have difficulty opening jars. I now buy pre-packaged food much more than what I used to. For a period of time I was provided with home help by the insurer. As a result of my injury I have difficulty with cleaning household chores. I have to pace myself and undertake cleaning in short bursts. I still do some gardening. However, I have difficulty with the heavier tasks and at times I suffer from increased pain and discomfort in my arms if I overdo things.”
[54] PCB 48
80 At hearing, among other things, the plaintiff gave evidence to the following effect:[55]
[55] See TN 54-57 and 63-67
· her husband and adult sons worked full-time and she was responsible for the cooking, shopping, washing and household tasks as well as some gardening;
· she described herself as having “always been a clean freak”,[56] for whom cleaning her home was very important;
[56] TN 56
· prior to the injury the plaintiff had, she said, vacuumed the family room and the meals and kitchen area and mopped the toilets and bathrooms every day;
· since suffering injury the plaintiff still performed the domestic and household tasks described, although she said she modified, took shortcuts and paced the rate at which she performed these tasks. For example, the plaintiff said she wore a bandage recommended by her health care professionals when working (this was probably the splint mentioned to the doctors during examinations). By her account, the plaintiff made the beds, started the bathrooms and toilets and then took a break for half an hour during which time she massaged her arm with Voltaren cream;
· the plaintiff said, as a general rule, she now vacuumed 4 to 5 days per week, but only mopped 3 to 4 days per week. She mainly used her left hand to vacuum but swapped to her right hand periodically. However, on the days she experienced “a lot of pain”, the plaintiff said she did not clean at all;
· with cooking, the plaintiff said she avoided cutting, chopping and peeling tasks by purchasing “a lot” of pre-packaged food and used electrical appliances to cut, blend and slice food. As I understood the plaintiff’s evidence she now used an electric knife to slice, for example roast meat because she could not grip a knife properly and suffered shooting pain up her arm should she apply pressure;
· she did the same amount of washing (2 to 3 loads of washing per day) but now hung the washing on hangers to avoid stretching to reach a clothesline;
· her husband and sons wiped out the bathroom showers because using spray cleaners and scrubbing caused her pain and swelling;
· the plaintiff no longer cleaned her oven, a task for which she now employed an oven cleaner twice a year;
· the plaintiff evidently made all of the beds but now only shakes out doonas irregularly because, she said, this activity increased her pain level from five to eight out of 10;
· whereas in the past the plaintiff had shopped once or twice a week, she now shopped every day and purchased in smaller quantities so that the load was easier to manage and it was easier to push her trolley.
81 Clearly, even after modifying her activities to accommodate the right elbow injury, the plaintiff remains very active in the performance of domestic tasks. As mentioned, I have accepted the evidence indicating the likely presence of non-organic factors affecting the plaintiff’s presentation. I have, nonetheless, allowed for the clinical evidence of physical symptoms reported from time to time, such as swelling and positive testing for tennis elbow. The clinical findings made were indicative of a likely chronic and symptomatic condition affecting the plaintiff’s dominant upper right limb with some level of associated and likely permanent disability. The question was whether physical impairment of the right upper limb gave rise to a pain and suffering consequence that met the test for serious injury under the Act?
The evidence relating to prior conditions
82 It is convenient at this juncture to discuss the impact, if any, of other unrelated medical conditions on the plaintiff’s physical capacity before and since the injury.
83 As mentioned, the defendant was critical of the plaintiff’s failure to mention unrelated knee conditions in her affidavit evidence or to some doctors and, for that matter, to mention the past WorkCover claims made on 2003 and 2005. From my reading of Dr Kostos’ reports, he obtained a history from the plaintiff in which she indicated having suffered a strained right thumb in 2002/2003 which resolved without treatment. The plaintiff reported good general health otherwise.[57]
[57] DCB 33
84 At hearing, the plaintiff told the Court that she had suffered, among other injuries, a torn medial meniscus in her right knee as the result of a motor vehicle accident when aged 16 or 17.[58] This led to surgery in 1981/1982 and since then probably two arthroscopies, the last some 6 to 7 years before the hearing. The plaintiff agreed these further procedures had been intended to treat pain and discomfort in the right knee (“clicking”[59]) and that she now suffered from severe osteoarthritis.
[58] TN 33
[59] TN 34
85 The plaintiff agreed that she had also undergone arthroscopy on her left knee (due to “wear and tear”[60]), although she was unclear about whether there were two arthroscopies on this knee as recorded by orthopaedic surgeon, Mr Kierce. He undertook an impairment assessment of the right upper limb at the request of Allianz Australia Workers Compensation on 25 October 2010 (“She has had considerable knee problems having had arthroscopies on each knee, 2 in number in each knee. She said that she did her right knee in a car accident when she was a teenager. She has been told that her knees are not in good shape, due to arthritis”[61]).
[60] TN 36
[61] PCB 14
86 Under cross-examination, the plaintiff could not recall advising her medico-legal specialist, orthopaedic surgeon, Mr Miller on 22 February 2013 that she had no prior medical problems and, specifically, no prior elbow problems.[62] The explanation given by the plaintiff was to the effect that, had the surgeon specifically questioned her about earlier surgery, she would have mentioned her knees and, further, that the condition of her knees was not an ongoing issue for the plaintiff at the time.
[62] PCB 84 and TN 38
87 The plaintiff was also challenged about the history obtained by the defendant’s rheumatologist, Dr Karna. When first examined on 16 February 2012, the specialist relevantly recorded:
· “She maintains she was in good physical condition when she commenced work”.[63] I took this to refer to work with the defendant from November 2005;
· Under the heading “PAST HISTORY” the doctor recorded: “Past history includes hypertension”;[64]
· Under the heading “Prior Conditions” the doctor recorded: “The worker suggested that she had no prior work-related injuries and indeed the issues you have outlined in your letter were not disclosed by the worker” and “I believe that the worker’s presentation relates solely to her lateral epicondylitis lesion and its management thereof with no input from any alleged prior injuries…”.[65] I understood this observation to refer to the earlier WorkCover claims made by the plaintiff in 2003 and 2005.
[63] DCB 21
[64] DCB 22
[65] DCB 23
88 Re-examination by Dr Karna on 9 April 2013 again suggested no past medical history other than hypertension was reported (“She denies any other medical problems arising in the past twelve months and has a defined past history of hypertension”[66]).
[66] DCB 28
89 Under cross-examination and when re-examined, in effect, the plaintiff rejected any suggestion that she had deliberately misled Dr Karna. The plaintiff’s explanation was she had not thought of the earlier WorkCover claims for unrelated injury.[67] Irrespective of whether, as claimed, the plaintiff only recalled these earlier claims after being reminded by her solicitor, I think it clear from the reports of the rheumatologists that their analysis of the injury and any ongoing impairment was not compromised by any failure to fully identify the earlier workplace injuries.
[67] TN 74
90 As to her knee conditions, the plaintiff indicated that she could not recall whether she told the rheumatologist about these. Moreover, so far as the plaintiff was concerned, prior to the injury to her right upper limb, the condition of her knees had not prevented her from being physically active or playing sport.[68]
[68] TN 40
91 In respect to this issue, I note the following: [69]
[69] TN 37-45
· the plaintiff probably underwent multiple arthroscopy procedures (two or three on the right knee and at least one on the left knee) the last of which may have been performed some six or seven years ago (in 2007 or 2008);
· the plaintiff acknowledged long-standing problems affecting both knees;
· the plaintiff’s knees remained symptomatic with some level of pain, clicking in both knees (when she bent). The right more than the left knee tended to give way. Since her last surgery (presumably to the right knee) the plaintiff said her right knee had been a lot better, although the plaintiff agreed that her right knee was generally weak;
· the plaintiff was not currently undergoing treatment for knee problems;
· notwithstanding the knee conditions, the plaintiff said she could still run but not sprint, she could still bend and garden (mowing the lawns, a little bit of weeding on her knees and potting a few small plants but not heavy lifting or using a shovel) and until the injury to her right upper limb she played either netball (the plaintiff had stopped playing as a member of a netball team in about 2006 due to her husband’s long working hours and only filled in when required) or tennis. The plaintiff said that tennis, which she played with her family at weekends, 2 to 3 times each month, had also stopped in around 2006. Other than some soreness in the treatment of which the plaintiff said she took anti-inflammatory medication, the plaintiff denied that the condition of her knees (which were bandaged prior to playing) had impacted on her ability to play tennis or was responsible for her no longer playing tennis;
· having not played ten pin bowling for a long time the plaintiff was at first unable to say whether her knees or elbow would impact on her participation in this activity. However, she later said she would not be able to lift the ball with her right arm. She resisted the suggestion that this was not the only condition which caused her to cease this activity;
· the plaintiff did concede during cross-examination that she had given up skiing due to the condition of her knees.
92 I note the general practitioner’s tendered clinical notes for the period 27 April 2004 to 16 April 2013 make no reference to attendance for treatment of either knee. In these circumstances, it is unlikely that the condition of one or both of the plaintiff’s knees was particularly problematic. [70] This is not to say that the plaintiff’s knee conditions did not continue to cause pain and reduce the plaintiff’s physical capacity to participate in the sports nominated by her or to garden.
[70] DCB 40-55
93 The plaintiff was also cross-examined about recent assessment of and any ongoing treatment for pain in her right hip. It appears that during 2013 the general practitioner arranged for x-ray of the right hip[71] and referred the plaintiff to an orthopaedic surgeon. The latter apparently recommended a cortisone injection in the hip (which the plaintiff said she declined because the injections for her right upper limb had not provided relief in the past) as well as swimming and walking exercise.[72]
[71] DCB 41
[72] TN 46-48
94 The plaintiff told the Court that she has continued with the exercises recommended including stretching exercise and whilst she no longer takes anti-inflammatory medication specifically to treat the symptoms in her right hip, the plaintiff indicated that the Nurofen medication taken by her every second or third night in the treatment of right upper limb symptoms also acted to relieve hip and knee pain.[73]
[73] TN 48
95 In summary, the plaintiff’s participation in sporting activities probably had ceased prior to her injury due mainly to her family commitments. She had not played ten pin bowling for a long time and, whilst the plaintiff maintained an ongoing interest in gardening, I think it likely that the condition of her knees had also placed some restriction on this activity.
96 I found implausible the plaintiff’s explanation for not mentioning the multiple knee surgeries earlier. However, based on all of the evidence, the plaintiff satisfied me that, had she wanted to return to playing netball, tennis or ten pin bowling, whilst the condition of her knees reduced her ability to play these sports and further impaired her ability to garden, the condition of her knees had not precluded participation in these activities in the future. In short, the plaintiff satisfied me that had she contemplated returning to these sports, impairment of her right elbow likely precluded this and had further reduced her capacity to garden.
Pain and Suffering Consequences
97 As the Court of Appeal explained in Haden Engineering Pty Ltd v McKinnon,[74] the evaluation of the pain and suffering consequence required consideration of the plaintiff's experience of pain and the disabling effect of pain on her physical capabilities (including her capacity for work) and enjoyment of life.
[74] [2010] VSCA 69 [9]-[17] and applied in Sutton v Laminex Group Pty Ltd [2011] VSCA 52 and more recently in Aburrow v Network Personnel Pty Ltd [2013] VSCA 46
98 Evidence of the intensity and frequency of pain (from the plaintiff and doctors), the treatment received or recommended and any objective evidence as to the disabling effect of pain was important to any proper evaluation of the plaintiff's experience of pain. The evaluation of the disabling effect of pain called for consideration of the extent to which pain continued to limit this plaintiff's activities and to interfere with her enjoyment of life.
99 In this assessment, the significance of what is lost may be informed to some extent by what the plaintiff has retained. For instance, as my discussion of the plaintiff’s likely work capacity in due course shows, the plaintiff probably has retained the capacity to undertake alternative employment, subject to restrictions on the use of her right upper limb.
100 The doctors have largely accepted that symptoms of chronic tennis elbow and pain impair the functioning of the plaintiff’s right upper limb. Although, as mentioned, Dr Karna’s evidence has drawn attention to discrepancies between the plaintiff’s presentation and her likely functional capacity.
101 The plaintiff no longer engages in active therapies in the treatment of her reported pain and disability. Indeed, the specialist medical opinion in the main supports the continuation of the current conservative regime.
102 I have already summarised in passing the evidence concerning the plaintiff’s pre-injury and current domestic/household and sporting activities. I will summarise the evidence of her employment capacity last.
The experience of pain
103 In her first affidavit, among other things, the plaintiff described symptoms involving: “a constant dull ache and a heavy, pulling feeling in the region of my right elbow. Often during the day I suffer shooting pain down my forearm and into my ring finger. At times I suffer from pins and needles in my arm, but not as often as what I used to. My elbow is tender to touch and painful with movement. I am unable to fully straight my arm and my elbow joints feel stiff and restricted.. ..”.[75]
[75] PCB 47
104 According to the plaintiff, pain affected her sleep (“My sleep is poor. I find it difficult to get comfortable at night and I am often woken by pain if I roll on my right side. There are also times when I suffer from pins and needles in my right arm. This occurs more so at night than during the day.”[76]) and activities such as using a computer, writing for an extended time or overdoing her activities increased pain and discomfort.[77]
[76] PCB 48
[77] PCB 48
105 The clinical records tendered indicated that on 13 November 2010 the plaintiff reported, among other things, problems sleeping. I was unable to locate any similar earlier entry. In October 2010, Mr Kierce obtained a history of difficulty sleeping and this was also mentioned at different times to other specialists in 2012 and 2013 (Dr Kostos in 2012 and 2013, Mr Miller in 2012 and to Dr Karna in December 2013) and to the general practitioner on 2 January 2014 (“Her sleep was affected by the pain shooting down from her elbow down to her hand and this was associated with any movement of the arm or certain positioning of the arm at night…”[78]) Accordingly, for reasons which were not explained by the evidence, sleep disruption due to right elbow symptoms appears to have emerged as a problem some years post-surgery.
[78] PCB 65a
106 Under cross-examination the plaintiff said sleep deprivation was one reason for not persisting with earlier efforts to seek employment (“...the reason is I don’t sleep properly at night, I wake up and I’m tired, I’m distressed and I’m sore...”[79]).
[79] TN 52
107 During re-examination, the plaintiff essentially reiterated the same problems with sleep as outlined in her first affidavit. To this the plaintiff added that due to pain she did not sleep eight straight hours each night. She considered herself lucky to sleep half an hour to one hour before she woke and needed to make herself comfortable again.[80] However, when questioned about the number of times during the night she woke and needed to make herself comfortable, if correct the plaintiff’s response (“About three or four times”[81]) suggested much longer intervals of uninterrupted sleep.
[80] TN 70
[81] TN 70
108 As to the number of nights sleep was interrupted by pain, the plaintiff told the Court this generally occurred five nights per week. The latter response is in contrast to Dr Kostos’ report in December 2013, where he recorded pain woke the plaintiff every night.
109 I was troubled by the plaintiff’s evidence of the intensity of her pain levels and the frequency with which pain interrupted her sleep. The evidence begs the question of how the plaintiff managed to work even 12 hours per week in the period post surgery until termination of her employment in September 2009.
110 As to the management of the plaintiff’s reported pain levels, in her affidavit, sworn on 13 June 2013, the plaintiff deposed that she generally took Nurofen (two tablets in the morning and two at night) every second day, although, as reported to doctors, over the years this and other stronger pain killing medications had led to gastric upsets. She further deposed to using a TENS machine before going to bed and to regularly undertaking a home-based strengthening exercise program. [82]
[82] PCB 50-51
111 In further evidence-in-chief given at hearing, the plaintiff told the Court that: [83]
[83] TN 25
· due to stomach problems she had undergone endoscopy and reduced her intake of Nurofen to 2 tablets every second or third night. In assessing the pain and suffering consequence, I have made allowance for any adverse effect caused by regular use of painkilling medication;
· she tried to use the TENS machine every second night before going to bed (under cross-examination the plaintiff said she sometimes used this machine in the afternoon for 20 minutes or so, although she gave the impression that the time depended on her condition[84]) and she had continued with the regular home-based strengthening and exercise program recommended by the hand therapist;
· the level of her pain had not changed and she experienced “a constant dull ache which I wake up with”.
[84] TN 57
112 In re-examination, the plaintiff confirmed that in June 2011 her general practitioner had prescribed Panadol Osteo (modified release). However, I understood this prescription was obtained preparatory to the plaintiff embarking on a family holiday in Thailand.[85]
[85] TN 59
113 I could not be satisfied that, as repeatedly suggested to the doctors, there had been any deterioration in the overall condition of the plaintiff’s right elbow or that there was a physical basis for any increase in the intensity of her pain. On the contrary, there was objective evidence pointing to normal use of the plaintiff’s hands. However, when assessing the evidence relating to the intensity and frequency of the plaintiff’s pain, I have also allowed for the clinical evidence of ongoing symptoms of tennis elbow and the acceptance by the doctors that greater use of the right elbow (pushing, pulling and lifting activities) could increase pain, in the management of which, among other things, the plaintiff said she regularly took over-the-counter medication.
The disabling effect of pain
114 It is convenient to discuss at the one time the disabling effect of pain and the extent to which pain interferes with the plaintiff’s ordinary activities (including her employment) and enjoyment of life. In her affidavits, oral evidence and through various reports made to doctors, the plaintiff described the various activities affected by pain and disability, most of which have already been discussed.
115 Generally speaking these involved:
· Restrictions on the plaintiff’s ability to lift, push or pull with her right upper limb. This, the plaintiff said, affected her ability to undertake a range of domestic, sporting and recreational activities. Some activities, particularly recreational sport, such as tennis and ten pin bowling are probably no longer feasible, whereas others such as vacuuming and other domestic tasks are all achievable, albeit with modification to the manner and pace of performance. In view of the high standard of domestic cleanliness to which the plaintiff previously worked, I expect, as claimed, she now feels very frustrated by not being able to vacuum, mop and so forth with the same frequency. On the evidence, the plaintiff gave up many of her pre-injury sporting interests due to her family commitments. However, in assessing the impact of the impairment of the right upper limb on the plaintiff’s sporting/recreational interests, I was satisfied that permanent impairment of the right upper limb materially contributed to the plaintiff’s inability to return to playing social tennis with her husband and sons, who continue to play tennis;[86]
[86] TN 71-72
· Restrictions on gardening. I have already summarised these. The plaintiff clearly retained the capacity to garden subject to restrictions on the use of her right upper limb;
· Restrictions on the size of luggage taken on family holidays and on the plaintiff’s ability to lift luggage into a plane’s overhead locker. I accept that the plaintiff probably will continue to need assistance in this regard, although she clearly retained the capacity to travel and enjoy holidays with her family in resorts overseas;[87]
· Disruption of the plaintiff’s sleep. I have already summarised the evidence concerning this. In all, I was not satisfied of the extent to which the plaintiff’s sleep was disrupted by pain and, it follows the disabling impact of disrupted sleep on her day-to-day activities.
[87] TN 59-61
116 In assessing the pain and suffering consequence suffered by the plaintiff, I have also made allowance for the likely contribution of the injury to symptoms in her left upper limb, due to compensatory use of the left upper limb.
117 I have left to last my discussion of any impact of pain and impaired functioning of the right upper limb on employment. As mentioned, the plaintiff has not returned to the workforce. The plaintiff was cross-examined in some detail about, among other things, the issue of whether she has the physical capacity to engage in any employment, either in the commercial and domestic maintenance business commenced by her husband in 2011 or in other employment.
118 In her first affidavit, the plaintiff deposed that, due to the nature of her injury, she believed it would be difficult for her to find a suitable alternative employment.[88] However, in her supplementary affidavit the plaintiff deposed that she had attempted to assist her husband in his property maintenance business by performing some administrative duties, such as taking telephone calls and typing up quotes and invoices. The plaintiff further deposed that she was not paid for this work and through her evidence indicated that she had experienced difficulty in sustaining these duties (“…I am lucky to dedicate one hour a day to it during the week. However, I have found that if I undertake prolonged typing or writing that I suffer from worse pain”[89]).
[88] PCB 49
[89] PCB 51
119 At hearing, the plaintiff explained that her husband and two employees undertook the maintenance work for the business, whereas the plaintiff assisted with administrative jobs. The plaintiff said, she currently organised her husband’s work, on average, for one hour, three mornings per week, although at times this took one to one and a half hours. This work entailed, she said, making calls to clients, typing on a computer and sending invoices, paying bills and doing the banking. However, at inception of the business, the plaintiff said she had devoted “a little bit more”[90] time by working a couple of hours in their home office, perhaps four days per week. Presently, her husband is less reliant on the plaintiff because he has an assistant.
[90] TN 49
120 The plaintiff agreed that assisting in her husband’s business had been the only work performed since the termination of her employment in September 2009. The plaintiff did, however, tell the Court that, whilst she had applied for a couple of jobs in retail (“probably couple of years ago”[91]) with a view to finding retail work that did not involve unpacking or lifting, she no longer actively sought employment.
[91] TN 52
121 As I understood the plaintiff’s evidence, prior to her injury, she had contemplated working longer than 26 hours per week once her children had grown up. The plaintiff now believed she would not cope with any full-time employment at the same time as running her home, due to pain. Moreover, according to the plaintiff, using a computer on and off for even half an hour increased the level of pain in her arm.[92]
[92] TN 53
122 Based on all of the evidence, if, as claimed, the plaintiff was not paid for her personal exertion in setting up and running her husband’s business, I found the distinction the plaintiff drew between paid and unpaid work somewhat artificial. Indeed, allowing for the plaintiff’s obvious functional capacity, both in the performance of her domestic and household duties and the contributions made to her husband’s business, I formed the view that the plaintiff’s residual physical capacity for gainful employment was probably much greater than stated.
123 Apart from the reports of Drs Martiniello and Wood in July 2012[93] and Dr Karna in April 2013,[94] it was not clear whether Mr Miller and Dr Kostos had also understood that the plaintiff performed unpaid home-based work in her husband’s maintenance business since about 2011.
[93] PCB 77
[94] DCB 28
124 The treating and specialist medical evidence obtained since 2012 supported a finding, firstly, that the plaintiff was probably permanently incapacitated for unrestricted retail sales duties and, secondly, that the plaintiff probably has a retained capacity for employment, where permanent restrictions on the use of her right upper limb were accommodated.
125 Recent medical opinion as to work capacity is summarised in the following passages from the reports:
· Dr Martiniello. In his opinion, the plaintiff’s condition restricted her capacity for work indefinitely, such that the plaintiff would be unable to perform repetitive tasks with her right upper limb, including lifting, pushing or pulling objects or grouping objects tightly or repetitively with her right hand;
· Dr Wood. In his opinion, the plaintiff was capable of performing suitable employment on a part-time basis (“Mrs Gianchino has some computer skills that may need to be further enhanced so some work in a call centre on a part-time basis may be possible. The maximum number of hours would be four to six hours on four to five days a week. Rest breaks may be required if excessive computer use causes an increase in her symptoms”.[95] If correct, this evidence suggested a capacity for gainful employment of up to 30 hours per week;
[95] PCB 79
· Mr Miller. In his opinion, the plaintiff could not return to pre-injury duties on any significant part-time or full-time basis and “she would have difficulties with work that involves repetitive arm action and lifting of weights more than 2 kg. These restrictions are likely to be permanent…”;[96]
· Dr Karna. In his opinion, the plaintiff was unfit to return to unrestricted pre-injury duties “but she certainly does have a work capacity for suitable work”. With refinement of the plaintiff’s computer skills, Dr Karna said the plaintiff was immediately capable of performing modified or alternative duties on a full-time basis in suitable employment in sales (whilst avoiding duties which involved a lot of lifting) and light administrative work;[97]
· Dr Kostos. In Dr Kostos’ opinion the plaintiff would only be able to undertake work involving her right hand on a very limited basis, with rest breaks as required.[98] As previously mentioned, I did not understand Dr Kostos’ evidence to mean that he considered the plaintiff totally incapacitated for alternative employment.
[96] PCB 86-87
[97] DCB 29
[98] DCB 34 and 38-39
126 Clearly, the medical evidence supports a finding that the plaintiff is unfit to perform her pre-injury duties on an unrestricted basis. None of the doctors have suggested that the level and frequency of pain or any difficulty in obtaining adequate pain relief militated against retraining and returning to productive employment, albeit employment which was restricted.
Conclusions
127 To summarise, I was satisfied that:
· the plaintiff suffered compensable injury in the nature of chronic right lateral epicondylitis affecting the right elbow; and
· the impairment consequences of the injury are as described above.
128 In assessing whether the pain and suffering consequence of the compensable right upper limb injury meets the “very considerable” test, I was required to consider globally all of the pain and suffering experienced by the plaintiff to which this injury materially contributed.[99]
[99]Sutton op. cit. at paragraph 114
129 I have summarised the evidence relating to the alleged impact of ongoing impairment of the plaintiff’s right upper limb on her day-to-day activities and her enjoyment of life. As is evident from my discussion of particularly the medical evidence there were some non-organic features affecting the plaintiff’s presentation. This is not to deny, however, that the disabling consequences and the consequences involved in the plaintiff’s experience of pain as a result of impairment of her right upper limb are significant for a woman who had been used to mopping and vacuuming her home daily as well as working part-time.
130 The test is whether the plaintiff has established that the pain and suffering consequence of the right elbow injury, when judged by comparison with other cases in the range of possible impairments or losses of a body function may be fairly described as being more than significant or marked and as being at least very considerable. Applying this test involves a value judgement in which matters of fact and degree and of impression all play a role.[100]
[100]StijepicvOne Force Group Aust Pty Ltd [2009] VSCA 181 [41]
131 Section 134AB(38)(c) of the Act requires the Court to consider where, on its facts, the present case sits when compared with other cases in the range of possible impairments or losses of body function.
132 I have expressed and explained my reservations about various aspects of the plaintiff’s evidence. The earlier summary of the pain and suffering and loss of enjoyment of life consequence (in which the significance of what the plaintiff claimed to have lost was informed to some extent by what she had retained) was, in my view, consistent with a finding that the consequence in respect to the injury can be fairly described as being significant. Accordingly, the plaintiff has not met the requirements of the narrative test because, on the evidence, I could not be satisfied that the pain and suffering consequence could be fairly described as more than significant or marked and at least very considerable.
133 I propose to make an order dismissing the application for leave.
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