Greenwood v Victorian WorkCover Authority
[2024] VCC 701
•22 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-23-04835
| ALLISON GREENWOOD | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 April 2024 | |
DATE OF JUDGMENT: | 22 May 2024 | |
CASE MAY BE CITED AS: | Greenwood v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 701 | |
REASONS FOR JUDGMENT
---
Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment of the right hand/wrist – pain and suffering only – causation – aggravation – range
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Petkovski v Galletti [1994] 1 VR 436; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260
Judgment: Leave granted to bring proceedings for damages for pain and suffering.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J P Brett KC with Ms I Murphy | Henry Carus and Associates |
| For the Defendant | Mr J Angenent | Hall & Wilcox |
HER HONOUR:
1This is an application for leave to bring proceedings for damages pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injury suffered by the plaintiff in relation to an incident at work with EACH (“the employer”) on 21 January 2021 (“the said date”).
2The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s325(1) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4The body function relied on in this application is the right hand/wrist.[1]
[1]Transcript (“T”) 1. The right hand includes the thumb UCL
5Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6The impairment of the body function must be permanent.
7The plaintiff bears an overall burden of proof upon the balance of probabilities.
8By s325(1)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant or marked”.
9Section 325(2)(h) of the Act requires all psychological consequences to be ignored in determining the plaintiff’s application in relation to the physical impairment.
10I 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.
11I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[2] Haden Engineering Pty Ltd v McKinnon[3] and Petkovski v Galetti[4] in reaching my conclusions.
[2] (2005) 14 VR 622
[3](2010) 31 VR 1 (“Haden Engineering”)
[4][1994] 1 VR 436 (“Petkovski”)
12The plaintiff relied upon two affidavits and she was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
13The defendant’s case was that the plaintiff’s hand/wrist condition was constitutional, arthritic in nature, and therefore non-compensable. If there was an injury, it was an aggravation, and the plaintiff had failed to disentangle the consequences, per Petkovski. Range was also in issue.[5]
[5]T4
The Plaintiff’s evidence
14The plaintiff is presently aged fifty-four, having been born in May 1969. She is right-hand dominant.
15The plaintiff obtained a Diploma of Welfare and then started work with the employer in August 2003. She began working as a mental health support worker, before making her way up to be integrated services lead in the Yarra Valley office.
16As at the said date, she was working forty hours per week and managing around twelve staff working in four or five different programs, including financial counselling and mental health services.
The 2013 incident
17In May 2013, the plaintiff was lifting a box on a bookshelf at work when another box fell from the top shelf, which she caught using her right hand, causing her pain. (“the May 2013 incident”).
18After the May 2013 incident, she attended her general practitioner (“GP”). An MRI scan showed a small ganglion between the second and third metacarpal joints in her right wrist.[6] She was advised to continue conservative treatment. Her wrist was put in a splint for about four weeks, which helped reduce the pain and swelling.
[6]This is the only reference to this investigation. There is no report of any 2013 wrist MRI scan. There is no mention in the GP’s notes of any MRI scan.
19After she removed the splint, she noticed a continual improvement in her right wrist function. Every now and then, especially in winter, she experienced some pain and discomfort. In about February 2015, she had a particularly painful flare up and went to her GP.[7]
[7]Her GP described this as “flareup or R hand tenosynovitis”
20However, after the initial treatment, she felt her right thumb condition remained largely benign. She could still do day-to-day activities without pain, and her work was not affected.
Right wrist and hand condition pre 2021
21The plaintiff disagreed she had had significant problems with her right hand and wrist for many years.[8]
[8]T13
22After the 2013 incident, she was prescribed some medication, and some scans were ordered.[9] She had a splint put on her wrist but not her forearm. She was in a splint for about four weeks, and her condition improved over the years.[10]
[9]T14
[10]T15
23She had flare-ups now and then. They involved mainly some swelling in the joint – “where the ganglion thing came up”, she explained, indicating across the top of her fingers, down at the bottom of her thumb – if she had been doing too much.[11] She disagreed these flare-ups were regular.
[11]T15
24She could still do day-to-day activities before the said date without experiencing pain, and her work was not affecting her right thumb condition: it “largely remained benign”. She had some problems occasionally, but she decided just to get on with it, because that is what she does.[12]
[12]T16
25She would not say she was having problems with her right thumb and hand all the way up until 2020. It was not an ongoing thing like her knees; it was just on occasion.[13]
[13]T16
26In a “Surgery Consultation” on 16 June 2020, Dr Vaidya recorded:
“History: for results – results discussed. PT was on physio program including hydrotherapy from ortho – stopped due to COVID-19 seeing rheumatologist.
C-O pain to RT thumb extending to RT wrist, pain specifically on flexion and feels pain when using the thumb, H/O of RT hand.
On examination of the RT hand – mild swelling – dorsum of RT hand over first metacarpal and web between first and second metacarpal.”
27The reason for visit was “Bulging MED meniscus B/L knees results discussed.” In terms of action, there was an –
“… ultrasound of the right knee and ultrasound injection to the shoulder and ultrasound of the right wrist and dorsum of hand? Tenosynovitis H/O right hand injury prescription printed: Panadeine Forte 500 milligrams, 30 milligrams tablet two twice a day P.R.N.”
28Physiotherapy noted on that visit was for her knee. While there was a complaint of the right thumb, the prescribed Panadeine Forte was for her knee.[14] She could not recall significant symptoms in her right hand and wrist at that time. At times, her hand would become sore and swell a little bit, especially between the knuckles where the ganglion had been.[15]
[14]T18
[15]T18
29The predominant reason for that visit was for her knee and there were no further attendances for her hand until the 2021 incident.[16]
[16]T33
30The plaintiff agreed she had some problems sleeping prior to the incident on occasion, having been shown Dr Vaidya’s 5 February 2021 note that she was not sleeping well for four nights and had tried Temaze in the past but did not tolerate it well.[17]
[17]T31
Hobbies between 2013 and 2021
31The plaintiff confirmed that she was able to do her hobbies on an ongoing basis from 2013. She gardened a lot, went fishing, and her household and gardening activities were not affected in that period to the same degree as they are now.[18] She did go game fishing after the 2013 incident.[19]
[18]T30
[19]T33
The incident
32During COVID-19, the employer was assisting the government rollout of the vaccination program. As part of the compliance rollout regulations, the floor of the employer’s premises had to be kept clear and no cardboard was allowed in the vaccination area.
33At that time, the plaintiff was engaged in a federal program involving community art classes and, as a result, there were a number of cardboard boxes of art supplies lying around the floor.
34There was a rush to get everything ready to clear the facility for preparation for an audit. As the plaintiff went to pick up a box of art supplies, the items in the box moved as they had not been packed properly, and the shift in weight caused the box to move in her hands as she lifted it. She then effectively juggled the box, trying to steady it from falling and letting the glaze break, and in the process she felt a sharp pain in her right wrist and thumb (“the incident”).[20]
[20]T19
35She called her supervisor shortly afterwards and reported an injury, having felt pain in her right wrist and thumb.
Treatment
36A day or two after the incident, she saw a different doctor, as her usual GP was not available. She saw her GP, Dr Vaidya, about a week later, on 29 January 2021.
37An x-ray of the plaintiff’s right hand on 20 January 2021 did not reveal any abnormalities.
38Between the said date and July 2021, the plaintiff’s right hand was in a hard brace to keep it stable.
39In March 2021, she was referred to Mr Kemble Wang, orthopaedic surgeon, for specialist opinion after continuing to experience pain and restriction in her right wrist. He arranged an MRI scan of her wrist, which was carried out on 29 March 2021. The plaintiff understood that MRI showed a tear to ligaments in her wrist and thumb.[21]
[21]T21
40The plaintiff first attended Melbourne Hand Therapy in April 2021.
41Mr Wang performed a reconstruction of the plaintiff’s right first MP joint ulnar collateral ligament on 13 July 2021. She continued weekly hand therapy after this surgery.
42In order to repair the scapholunate ligament, Mr Wang performed a reconstruction of that ligament on 11 December 2021.
43The plaintiff disagreed that her dorsal wrist pain had ceased by 22 March 2022, as Mr Wang reported several months after the wrist surgery. She did not think at any time the pain has completely gone away.[22]
[22]T26
44Her thumb got better in some ways after the surgery, and it was never as painful as before the surgery. It was the same situation with her wrist. It still gives her pain at various times, depending on what she is doing.[23]
[23]T26
45Mr Wang told her that you do not get the “Gold Logie” at the end of the procedures.[24]
[24]T27
46After the surgery, the plaintiff continued to experience pain in the base of her right thumb. On 24 May 2022, Mr Wang performed a CMC joint injection, which improved this pain.
Situation as at April 2023
47The plaintiff was having monthly hand therapy, and she had a home exercise program.
48After each operation, the plaintiff was given pain medications, which she tried to stay off as much as possible. She was then taking Panadeine and Nurofen as needed for breakthrough pain, which was usually about twice a week.
49She still experienced intermittent pain and discomfort in her right wrist and thumb. She noticed right thumb pain whenever she overexerted herself, like doing too much cleaning or gardening. She loved gardening on her acre block; however, if she did too much digging or weeding, she paid for it the next day.
50She felt she had lost a lot of her autonomy because of her right wrist injury.
51She had significantly reduced strength in her right hand, and struggled to perform twisting actions, like opening jars or stiff doorhandles. She struggled to carry heavy items. She could not move rocks around the garden or carry large pots of water and could no longer mow the lawn or hold the Whipper Snipper.
52She could not complete heavy domestic tasks and relied on her partner. She tried to arrange a cleaner and gardener to help, but there was no-one approved by WorkCover available to provide those services.
53She had struggled with sleep since the incident, and in the year thereafter, continued to struggle to get to sleep and was prescribed medication to help her sleep. Her sleep was average, and she found it difficult to get comfortable without aggravating the pain in her right hand or left shoulder.
54Sexual intimacy with her partner had also suffered because of pain and discomfort in her right hand.
55She used to love open sea game fishing and had tried since the incident, but could no longer hold the fishing rod when anything other than a small fish was on the line.
56She used to be a keen antique bottle collector, which involved walking through parks and forests using a probe, like a metal detector, and digging when she got a reading. Due to the loss of strength in her right hand, she could no longer do the shovelling action.[25]
[25]T33
57She and her partner loved camping and they still went regularly, but she could no longer assist with the set-up, which made her feel like she was a burden.
58Her physical limitations continually frustrated her, because she did not want to have to rely on other people to do things for her.
Left shoulder
59Since the incident, she had to rely more on her left hand and shoulder. In about April 2022, she noticed her left shoulder becoming sorer and sorer and then started to get sharp pains in her left hand and left shoulder.
60On 13 March 2022, she was referred by her GP for an ultrasound, which showed mild subacromial bursitis and bursal impingement in her left shoulder, and synovitis in her first metacarpal and IP joints in her left hand.
61She then commenced a physiotherapy and hydrotherapy program for her left shoulder. She believed this treatment had helped her left shoulder pain and restriction, although she still had to be careful when doing any physical activity, as she then felt pain. She had not had any treatment for her left hand or wrist.
62In early 2023, Mr Wang performed a hydrodilatation to her left shoulder, which reduced her left shoulder pain and also increased the range of movement. Her left shoulder has improved since that procedure.[26]
[26]T31
Other conditions
63In 1975, the plaintiff had osteomyelitis to her right ankle. This resolved around 1977. While Dr Kostos had a history that the plaintiff’s ankle had always been stiff, she did not recall telling him that.[27]
[27]T9
64The plaintiff has had longstanding issues with her knees after she suffered a knee injury at work at Panorama Nursery. As at April 2023, she still had occasional pain and swelling in both knees; however, that did not restrict her day-to-day life.
65In about 2017, she was diagnosed with rheumatoid arthritis in her knees and left fingers. She took daily medication for this condition, which she believed kept it under control.
66She agreed she had had longstanding issues with her knees “on and off”.[28] They would swell at times, sometimes more than others, particularly before the diagnosis of rheumatoid arthritis. Since she has taken Methotrexate, her knees have not given her any grief, and she can now wear shoes with a high heel.
[28]T9
67She had been taking medication – “not all the way through” – since the 2017 diagnosis. She stopped taking it when she was working in the COVID-19 testing clinics because of her immune system problems. She believed that her knees had been under control and “good”.[29]
[29]T10
68In 2019, she was referred to Mr Simon Talbot, orthopaedic surgeon, for her knees. He referred her to an orthopaedic clinic at Eastern Health, where she was diagnosed with seronegative inflammatory arthritis. In around June 2020, she had some aspirations, which involved removal of fluid from her knees. She also had a problem with bilateral popliteal cyst ruptures in her knees about the same time. Cysts had not been an ongoing problem.[30]
[30]T12
69She agreed her knees were still a problem just a few months before the incident.[31] She agreed she was then suffering severe knee problems and had been prescribed Endone, but denied that she had continued to have knee problems from time to time since 2020. Since she has been taking the Methotrexate and hydroxychloroquine “like a mix,” she has not had any knee problems. She also takes Celebrex.[32]
[31]T12
[32]T13
Work post-surgery
70After her July and December 2021 operations, it took her about four to six weeks to regain movement in her hand.
71She returned to work between September and December 2021 and then from March 2022 onwards on light duties. Following the second return to work, it took a long time – until February 2023 – for her to be able to get back to full-time duties.
72She was working full time, but she found she was limited in how fast and how long she could type, so she had to develop workarounds for large writing tasks.
Current situation
73In her further affidavit, sworn in March 2024, she confirmed her physical condition, pain, and limitations had not changed a great deal since April 2023. Her life continues to be greatly impacted by her physical injuries.
74She is currently working her pre-injury hours and duties with the employer and continues to be limited with some of her tasks, but has developed workarounds.
75She continues to see Dr Vaidya, in Launching Place, when needed. She takes Panadeine and Nurofen for pain in her thumb and wrist as required, usually two to three times a week.[33]
[33]T28
76She also takes Zopiclone, 7.5 milligrams, before bed as required. She has had trouble sleeping due to her wrist and thumb pain, but she has also been feeling more anxious recently, which she believes is linked to menopause and also her partner injuring his ankle and being unable to work.
77She continues to take daily medication for her arthritis. She uses a heat pack and wrist brace when the pain is more severe.
78She did some hand therapy initially and then had local physiotherapy, which she had attended a couple of times.[34] In late 2023, she had physiotherapy at Yarra Ranges to help reduce pain in her right thumb and wrist.
[34]T27-28
79She continues to experience persistent pain and discomfort in her right thumb and wrist. The pain is at the base of her thumb and right first finger and in her wrist. The pain varies in intensity and is aggravated by activity and overdoing things. It is an achy, throbbing type of pain; however, she also experiences a stabbing type of pain with certain movements.
80While the plaintiff described her pain as “intermittent” in her first affidavit, she was not necessarily pain free when she was doing nothing. She could just be in bed and her right hand would hurt. Sometimes she does not have pain in her wrist or thumb.[35]
[35]T29
81She still tries to do things about the house and her property, including her garden, but pays for it later with a flare-up.
82She notices the pain more when the weather gets cold, and she uses a heat pack and wrist brace more often in cooler months.
83She feels she has lost a lot of independence and autonomy since her injury. Grip strength and dexterity in her right hand remain significantly reduced. She continues to struggle to do simple things like open a packet of chips or a jar, and continues to be restricted in doing heavier household tasks and things in the garden and relies on family members to do them for her.
84At Christmas, she dropped a plate of food and when she picked up the platter with her right hand. She had sharp pain through the base of her thumb and wrist, and the platter just fell from her hand. That was not the first time something like that had happened.
85She remains very frustrated by her limitations and has bought different tools, like jar openers, so she does not have to ask for help. She had always been independent and self-reliant, but the injury changed this and affects her mood, and sometimes she feels flat because of her limitations.
86She continues to struggle with heavier cleaning tasks because of right thumb and wrist pain, and her daughters help her clean the bathroom. It has been harder to maintain the house and garden because of her partner’s injury.
87She continues to have disturbed sleep because of her injury and finds it difficult to sleep due to pain in her right thumb and wrist. If they are throbbing, she puts her right hand above her heart, as she has been told this can reduce the throbbing sensation. She continues to take sleeping tablets, which help, usually two to three nights per week.
88Her injuries have affected her relationship with her partner because their recreational pursuits are more limited and intimacy remains reduced, which has also been affected recently by his ankle injury.
89Her hobbies remain greatly restricted by her injury.
90Having previously gone fishing with one of her brothers nearly monthly, she rarely does so anymore, because if she does catch a fish, she cannot bear the weight of the fishing rod, as she does not have the strength. Therefore, she does not see her brother as often, and she misses that activity with him.
91She does not go camping as often as she used to. About a year ago, she and her partner bought a caravan, but she struggled to assist with the setting up and pack down process when they went camping because she lacked strength in her hand. She did not enjoy camping much after the injury.[36]
[36]T32
92She was generally less social since the injury, largely because it affected her hobbies, so she has less occasions to see family and friends. She also had reduced capacity to enjoy cooking and has difficulty lifting heavy pots and performing repetitive chopping tasks.
93Her ability to play and interact with her five-year-old granddaughter is affected, as she struggles to pick her up due to her injury. She is disappointed by that situation.
94She continues to have a very understanding supervisor and employer, who allow her to adjust her work activities and workplace to accommodate her pain. She uses Microsoft Teams frequently rather than writing emails, as prolonged computer work aggravates her pain. She worries, if she lost this job, she would not be able to cope with a new employer who was not as understanding.
Lay affidavit
95The plaintiff’s colleague, Debbie Stanley, swore an affidavit on 21 March 2024. She is the employer’s program director for Child, Youth and Family Wellbeing and has been a work colleague since about 2013.
96Since that time, she has been the plaintiff’s direct supervisor, although there was a brief time during COVID-19 when this was not the case.
97She is aware of the incident and has discussed it and the plaintiff’s injuries on numerous occasions with the plaintiff.
98She is aware of the plaintiff’s incident-related right hand and wrist injury, as well as her left shoulder problems. The plaintiff has told her about this, and she has seen the medical certificates.
99Prior to the incident, when they worked together, the plaintiff was a passionate leader with a “can-do” attitude.
100As a result of the workplace injuries, the plaintiff required time off work. As the plaintiff’s direct manager, she was aware that the employer had made a number of accommodations to enable her to return to work. These included extra leave when she was in too much pain, or too distressed, to work; ergonomic assessments to ensure her workstation was optimal for her following her injuries, and regular breaks when necessary.
101An ergonomic assessment was done after the plaintiff’s injuries which reviewed her posture and work environment, and at home. As a result of that assessment, equipment was purchased to accommodate the plaintiff’s injuries. She still uses the equipment, which is portable, so she can take it home when she works at home.
102They have a monthly supervisor catch-up, during which the plaintiff has told her she feels her injuries have impacted on her ability to deliver to clients and her team. The plaintiff finds this frustrating, and she finds she has not been able to do as much due to her injuries and her pain.
103She has had numerous conversations with the plaintiff when the plaintiff has been frustrated due to her injuries, pain and limitations. The plaintiff has been in tears and visibly distressed on occasions and told her that she just wanted this to be over.
104The plaintiff had told her that her frustrations often come when she struggles to do something simple like move a box. These small things add up to one big frustration. They have also had several conversations where the plaintiff described not being able to go fishing due to her injuries, and frustrations about gardening, doing very little in the garden compared to pre-injury, and also the limitations when interacting with her grandchild.
105Over time, the plaintiff has mentioned her frustration and limitations less, but she has continued to mention them. This was a testament to the plaintiff’s stoicism, which had enabled her to return to work and continue with the employer.
Plaintiff’s medical evidence
Treaters
Mr Kemble Wang, orthopaedic surgeon
106Mr Wang first saw the plaintiff on 6 April 2021. Her first injury was to the right thumb, metacarpophalangeal (MP) joint ulnar collateral ligament (UCL), which was sustained when she was trying to catch a falling box in early 2021.
107During the same incident, the plaintiff had also aggravated her right-sided scapholunate ligament injury which she had likely first sustained during a separate, but also work-related, incident seven or eight years earlier. This prior incident was also under WorkCover, and also involved a falling box.
108Mr Wang diagnosed the plaintiff with both an unstable right-sided thumb UCL injury as well as an acute on chronic unstable right wrist scapholunate ligament injury.
109On 13 July 2021, he performed a right thumb UCL reconstruction to which the plaintiff responded reasonably well with resolution of instability to the thumb MP joint.
110On 11 December 2021, he undertook a right wrist arthroscopy scapholunate ligament reconstruction to which the plaintiff responded partially with decreased instability but some ongoing pain.
111In his 18 December 2023 report, he noted that the plaintiff’s recovery had been complicated by symptoms of pain in her thumb joint related to post-surgical immobilisation, right-sided pisotriquetral joint pain of the volar wrist and opposite left-sided shoulder symptoms, for which he suggested a hydrodilatation.
112The plaintiff told him that the first injury in 2013 settled with non-operative management and then she had the incident injury.
113He diagnosed a right thumb UCL injury, right wrist acute on chronic scapholunate injury, right thumb CMC joint strain – resolved as of latest review appointment, which was also the case with right wrist pisotriquetral joint area pain. The plaintiff had also developed left shoulder adhesive capsulitis (frozen shoulder).
114When he last saw the plaintiff in late October 2022, her main residual issue was left shoulder adhesive capsulitis, for which he recommended hydrodilatation. He did not see benefit from any further surgery of the right wrist/hand condition.
115He then believed the plaintiff was able to perform some duties, although not all, as she was limited by her right hand and left shoulder.
116In terms of prognosis, there was some guardedness regarding the plaintiff’s ongoing right wrist pain, and she was still having some left shoulder stiffness.
117He was asked to comment on Dr Kostos’ October 2023 report. He noted that there were a number of inaccuracies and strange assumptions that were completely false in that report.
118Dr Kostos referred to him as a plastic surgeon. It is quite clear he is an orthopaedic surgeon with sub-speciality training and expertise in hand and wrist surgery.
119He thought Dr Kostos was strangely attributing most, if not all, of the plaintiff’s injury and symptoms to rheumatoid arthritis. That did not fit with the temporal onset of her symptoms relating to well-documented work injuries, nor did it fit with her disease pattern and observations intraoperatively and radiographically. The plaintiff had no prior thumb or wrist problems before her documented work injuries and her pain started immediately after she tried to catch a box.
120The plaintiff reported trying to take anti-rheumatoid medication in the past, including Methotrexate and Plaquenil. She had had, at best, only a minimal response to these medications in regard to her knees, and never had any temporally relatable response to the medications with regard to her wrist and hand.
121Dr Kostos made multiple mentions of synovitis and joint effusion in the plaintiff’s wrist and hand, which he attributed to rheumatoid arthritis. However, it is well known that the most common cause of synovitis is post-traumatic inflammation. Both thumb and MP joint instability and wrist scapholunate instability produced abundant synovitis. It would, in fact, be extremely strange should there be an absence of synovitis in the plaintiff’s post-traumatic wrist and hand.
122Dr Kostos’ dispute or dissatisfaction with the diagnosis of a traumatic UCL injury is contrary to the pre-operative MRI finding dated 12 May 2021 from IMED, which reported a chronic ulnar collateral ligament injury with a Stener lesion. That lesion is, by necessity, a traumatic injury involving such forceful displacement at the ulnar collateral insertion, that it is flicked under the adjacent adductor aponeurosis sheath. The only possible explanation for Dr Kostos’ reluctance to accept the traumatic origin of the thumb problem is unfortunately a poor understanding of pathology and anatomy.
123Dr Kostos’ reluctance in accepting a diagnosis of scapholunate instability is also quite strange. Prior to commencing scapholunate reconstruction, Mr Wang performed a diagnostic arthroscopy of the plaintiff’s wrist, which confirmed Geissler Grade III scapholunate instability. As is well known, the gold standard for diagnosis of that instability is based on arthroscopic assessment and not based on MRI findings, which have very poor sensitivity and specificity for this pathology.
124He accepted the plaintiff’s rheumatoid arthritis may have contributed to slower than expected recovery and ongoing pain in her wrist and hand. However, it is quite clear from a temporal perspective of onset of pain relative to injury at work, as well as from structural abnormality seen on MRI and arthroscopy, that the plaintiff sustained traumatic work-related injuries to her wrist and hand that resulted in her ongoing issues.
125Mr Wang provided a supplementary report, having been given Mr Robbins’ October and November 2023 reports.
126Mr Wang thought the plaintiff’s injury and subsequent surgery contributed to her increase in symptoms from the CMC joint of the thumb.
127Despite best efforts of scapholunate reconstruction, the condition of scapholunate ligament insufficiency and instability is a notoriously difficult condition to treat in hand and wrist surgery. No operation is perfect, and patients frequently have ongoing symptoms despite the best efforts of their treating professionals.
128The consequences of scapholunate ligament instability are well-documented and lead predictably to wrist arthritis and degenerative changes. The plaintiff’s symptoms in her right wrist are contributed to by her original work-related injury to that wrist.
Correspondence
129On 29 March 2022, Mr Wang wrote to WorkCover after seeing the plaintiff that day, noting it was several months after her scapholunate ligament reconstruction.
130He advised the dorsal wrist pain is now no longer there. However, the plaintiff still had residual pain at the base of her thumb in the first CMC joint, noting she had a previous thumb problem in the MP joint which he reconstructed. The MP joint was now stable and pain-free; however, the base of the thumb at the CMC joint was now incredibly painful and limiting for her.
131He sought approval for an injection as soon as possible.
132In his letter to Dr Vaidya in May 2022, he advised that the injection to the CMC joint had improved the plaintiff’s symptoms significantly in that joint, and she had a good result from her MP joint. However, she said there was new pain in the triquetral joint of her hand and that resulted after returning to work and typing, which placed pressure on that area. He asked her to see Dane Johnson at Melbourne Hand Therapy to try an offloading doughnut kind of brace, and if that was not working, then the next thing to try would be an injection. He also noted the plaintiff had pain in the opposite shoulder now, which she had only been using to compensate for her right arm.
Investigations
Pre incident
133Following an x-ray of the plaintiff’s right hand on 15 May 2013, it was reported no fracture was seen.
134On 13 June 2013, the plaintiff had an ultrasound of her right forearm. It was reported she had mild tenosynovitis of extensor compartment 2.
Post incident
135A right-hand x-ray in January 2021 showed no abnormalities.
136Following an ultrasound of the right wrist in February 2021, it was reported there was synovitis over the dorsum of the wrist and tenosynovitis of the flexor pollicis longus tendon.
137Mr Wang organised a right wrist MRI scan in March 2021. It was reported there was a suggestion of at least a partial tear of the scapholunate ligament.
138There was diffuse effusion/synovitis of the ventral aspect of the radiocarpal joint and also the intercarpal joints. There was degenerative change at the first carpometacarpal joint. There was moderate sized effusion/synovitis associated. There was small effusion/synovitis of the distal flexor carpi radialis and included the flexor pollicis longus tendon sheath. The included flexor pollicis longus tendon was intact. In the absence of intravenous contrast, it was not possible to definitively differentiate between effusion and synovitis.
139Mr Wang organised an MRI scan of the plaintiff’s right thumb in May 2021. It was reported there was probable chronic ulnar collateral ligament rupture and a Stener lesion. There was also flexor pollicis longus tenosynovitis.
140On 24 May 2022, there was an ultrasound of the plaintiff’s left shoulder, following which it was reported there was mild subacromial bursitis and bursal impingement and normal rotator cuff tendons.
Medico-legal
Mr Thomas Kossmann, orthopaedic surgeon
141Mr Kossmann saw the plaintiff on 31 January 2024.
142The plaintiff told him about the 2013 incident and subsequent investigations, and conservative treatment with a splint for about four weeks. She continued to suffer from flare-ups affecting her right wrist, for which she was treated conservatively by her GP.
143He noted the plaintiff suffered from pain issues in her knees and, in 2017, she was diagnosed with rheumatoid arthritis in her knees and left fingers for which she took methotrexate.
144On examination, the plaintiff complained about pain over the dorsum of her right Metacarpal I (thumb) and right wrist. Sometimes she drops things out of her right hand. She advised she had pain over the dorsal wrist when cleaning, signs of epicondylitis lateralis of the right elbow, movement restriction to the right wrist, and difficult sleeping, particularly if she had done too much.
145On examination of the right wrist, there was flexion and extension to 40 degrees, ulnar deviation to 10 degrees, and radial deviation to 20 degrees.
146He diagnosed a partial tear of the scapholunate ligament; aggravation of degenerative changes in the first carpometacarpal joint on the right; diffuse effusion/synovitis of the ventral aspect of the radiocarpal joint and the intercarpal joint; and Stener lesion (complete tear of the ulnar collateral ligament UCL from the thumb proximal phalanx at the level of the MP joint that is displaced superficial to the adductor pollicis aponeurosis, leading to interposition of the aponeurosis between the UCL and the MP joint on the right side). Subacromial bursitis of the left shoulder joint had resolved.
147The plaintiff told him that her incident injuries had had a profound impact on her social, domestic and recreational activities.
148He thought the prognosis regarding her left shoulder was good.
149The prognosis regarding the plaintiff’s right wrist and right thumb was guarded and she would require further treatment with pain medication and anti-inflammatories. She was at risk that she may develop osteoarthritic changes in her right wrist and joints of her right thumb, and may then require further treatment, including surgery.
150Her injuries have had an impact of her social, domestic and recreational activities.
151In his opinion, the 2021 incident caused, or materially contributed to, the plaintiff’s injuries.
152While she is working full time, he recommended the plaintiff abstain from any physically demanding work with her upper extremities.
153As a consequence of those injuries, the plaintiff was restricted in terms of repetitive pushing, pulling or lifting, bending, reaching, twisting or stooping, and any other physical functions or motions. This incapacity will last for the foreseeable future.
Dr Richard Sullivan, pain specialist
154Dr Sullivan examined the plaintiff on 7 February 2024.
155The plaintiff then complained of chronic pain affecting the right base of the thumb and right first digit (thumb, right hand and right dorsum and volar surface of the wrist). The pain had aching, burning and stabbing characteristics which is associated with reduced grip strength, dexterity and endurance of the plaintiff’s right hand, wrist and forearm.
156On examination, the plaintiff had restricted movement of the right wrist, demonstrating no more than 30 degrees of extension and 20 degrees of flexion. She was able to demonstrate an adequate incidental grip strength, and pinch strength testing incidentally was within normal limits.
157The pain is rated mild to moderate at rest, although moderate to severe with increase in activity, including strenuous use of the plaintiff’s hand or wrist, or any activity that requires flexion or resisted flexion of the wrist and forearm, excessive loading through the hand such as trying to lift or carry objects or weights in excess of a few kilograms, strenuous or repetitive activities of the right hand, wrist or upper limb, writing for extended periods, and utilising a mouse and keyboard for extended periods.
158The injuries sustained in the incident have included injury to the scapholunate ligament of the right upper limb and injury to the ulnar lateral ligament of the right thumb, and precipitation of tenosynovitis in the right thumb. While treated surgically, the plaintiff has developed post-traumatic chronic pain and post-surgical chronic pain in her right thumb and wrist.
159The plaintiff’s condition relates to her work injury on the said date and has failed to resolve despite surgical intervention.
160The plaintiff used to enjoy game fishing and was an avid gardener. Since the time of her injuries, she reports a substantially reduced capacity and enjoyment for fishing and has a substantially reduced capacity for gardening and only now potters in the garden with very light tasks.
161Lifting and loading through her right upper limb is restricted to less than 5 kilograms incidentally and less than 2 to 3 kilograms repetitively.
162She has adjusted her work role to accommodate her symptoms. She would not be able to increase her capacity for domestic, social or recreational activities beyond her current reported capacity. This is a permanent situation.
Dr Daniel Lewis, rheumatologist
163Dr Lewis examined the plaintiff on 7 March 2024.
164He had a history relevant to the injury and also a history related to the plaintiff’s arthritis.
165The plaintiff then advised of mild pain through the right hand and wrist which became more intense if she did repetitive activities. At rest she had no pain and there was no swelling.
166Her grip strength was reduced when compared to her pre-injury state. She had changed how she did domestic tasks and no longer did vacuuming. She could no longer lift heavy pots and had to reduce the time she spent gardening. She could no longer follow her hobby of game fishing.
167He noted that in 2013, the plaintiff injured her right wrist in a work injury. She had conservative treatment for a short time and symptoms improved, with no significant ongoing issues.
168On examination, the plaintiff’s grip strength in her right hand was variable. She had a good functional range of motion in the right wrist and thumb.
169The plaintiff had right wrist pain and dysfunction due to a soft-tissue injury treated surgically. The history was consistent with the incident and therefore work was a material contributing factor to those injuries.
170The reported functional capacities indicate the plaintiff has reduced strength and therefore would have restrictions for gripping, pulling and pushing. She has therefore adjusted and reduced some of her hobbies and some domestic tasks. Her current symptoms are likely to last for the foreseeable future.
Dr Michael Epstein, psychiatrist
171Dr Epstein examined the plaintiff by Zoom on 27 February 2024.
172He concluded the plaintiff does not have a diagnosable psychiatric disorder and does not require any psychiatric or psychological treatment or counselling. She is an intelligent, confident woman who has had experience with adversity and seems to be able to cope with it well.
Defendant’s medical evidence
Dr Majid Rahgozar, occupational physician
173Dr Rahgozar examined the plaintiff on 30 June 2023.
174She told him that, subsequent to the 2013 incident, she developed pain associated with a dorsal ganglion on the right hand which was managed conservatively. She told him she experienced intermittent episodes of wrist and hand pain for a number of years, and was using a brace for comfort but, nonetheless, was able to return to work.
175On examination, the plaintiff stated that at rest, and whilst seated with arms resting below shoulder height on her lap, she had a mild pain that she rated 1-2 out of 10 in the left shoulder and dorsal aspect of the left wrist. Forceful grabbing, grasping, lifting and carrying can result in deterioration of her right hand and wrist pain. She reported some morning stiffness in her knees related to her rheumatoid arthritis. She reported interruption of sleep by pain. She reported weakness of the right hand and occasional dropping of items.
176On examination, range of motion of the right wrist revealed mildly restricted extension, moderately restricted flexion, ulna, and radial deviation.
177The plaintiff has a history of chronic right wrist and hand pain which had been diagnosed as a scapholunate ligament tear and ulnar collateral ligament tear of the right hand.
178On examination, the plaintiff had evidence of ongoing mechanical dysfunction of the right wrist in the form of restricted range of motion and loss of grip strength. She also had evidence of a non-work-related rheumatoid arthritis in her right hand in the form of tenderness and swelling of her PIPs and was receiving disease modifying treatment for her rheumatoid arthritis.
179Compared to her left wrist, the plaintiff’s right wrist range of motion was restricted moderately and, as such, there was some ongoing mechanical dysfunction that could be attributed to the compensable injury and subsequent surgeries. There was a significant rheumatoid arthritis component to her presentation.
180In relation to her left shoulder, the plaintiff seems to have been diagnosed with adhesive capsulitis.
181Overall, he thought the plaintiff had the capacity for a pre-injury role without restriction from the compensable injury point of view.
182There is some mechanical dysfunction of the right wrist and hand and, as such, the condition is still materially contributed to by the compensable injury. In his opinion, the relationship between the left shoulder and the right wrist and hand injury could not be ruled out.
183The plaintiff is fit for her pre-injury duties and had the capacity for pre-injury work. She should refrain, however, from lifting, pushing, pulling more than 10 kilograms when the load is close to the body, and no more than 5 kilograms when it is away from the body or at above shoulder height. There are some restrictions in relation to her rheumatoid arthritis, given the involvement of both hands in relation to typing, lifting, carrying and grasping.
Mr Thomas Robbins, hand, plastic and reconstructive surgeon
184Mr Robbins examined the plaintiff on 5 October 2023.
185The plaintiff’s current complaints were pain around the wrist and at the base of the thumb, particularly at night. This is a throbbing pain, and it occurs when pushed on housecleaning, et cetera. It sometimes continues at work.
186The plaintiff said she could no longer do sports, fishing or pursue her hobby of probing the earth for antique bottles and opening jars. This, she reported, was because of weakness and pain.
187On examination, the plaintiff’s hand functioned well.
188In terms of diagnosis, the assumption is that the plaintiff had a collateral ligament rupture in her thumb. and injury to her scapholunate ligament, both of which have been operated on.
189On balance, he believed the plaintiff’s symptoms were due to degenerative changes and not related to her injuries.
190The pre-existing conditions obviously did not incapacitate the plaintiff. The early special investigations indicated there were no pre-existing conditions with her hand.
191The ruptured collateral ligament of the thumb and the ruptured scapholunate ligament are possibly consistent with the mechanisms of injury as described. The expected clinical course is the progress of non-related degenerative conditions of her hand, but with respect to the repair of the collateral ligament and scapholunate ligament, he could see no reason why the plaintiff should have further problems.
192Considering all the parameters, on balance, the plaintiff’s employment in the two accidents contributed to her injury, but ongoing symptoms are probably more likely due to non-related degenerative change. Employment does not continue to materially contribute to the injury.
193On balance, he did not think the plaintiff’s current impairment is related to the 2013 and 2021 incidents. It is more likely related to degenerative changes, which are not uncommon in women the plaintiff’s age.
194Further treatment would involve pain relief. The plaintiff now takes pain relief in the form of Celebrex and is also taking Methotrexate, but this is for an unrelated condition.
195On balance, he did not think the plaintiff had a loss of body function or impairment related to the compensable injury likely to continue for the foreseeable future, but there may be a progress of degenerative change unrelated to the incident.
196Mr Robbins provided a supplementary report, having been given Mr Wang’s clinical notes.
197These records did not cause him to reconsider his opinion. The surgery and treatment by Mr Wang could, on balance, be due to the 2013 and 2021 injuries. The arthritic changes, however, indicated in the March 2021 MRI are degenerative due to the ageing process and not work-related and are common in middle-aged women.
Dr Tony Kostos, rheumatologist
198The plaintiff was examined on 24 October 2023.
199He noted the 2013 injury and that subsequent investigations did not apparently show any abnormalities at the time. Treatment consisted of use of a brace, which the plaintiff wore when her thumb was painful. The plaintiff also noted a lump appear in the region of her second and third MP joints which was diagnosed as a ganglion. Apparently, this appeared subsequently.
200The plaintiff continued to note flare-ups in her right wrist and hand symptoms, but when she rested, her symptoms improved.
201As a child, the plaintiff had right ankle osteomyelitis and had right ankle surgery, and her right ankle had always been stiff.
202The plaintiff also recalled having bad knees for as long as she could remember, and at the age of eleven years, was diagnosed with juvenile arthritis. Although her condition improved, she always had ongoing symptoms.
203The plaintiff recalled having bilateral knee arthroscopies and, at one stage, was told she had a torn meniscus in the left knee. However, her knee problems were ongoing, and, at one stage, she was told she would need a knee replacement in the future.
204The plaintiff saw Mr Talbot, orthopaedic surgeon, in 2019, who arranged bilateral knee MRI scans. She was referred to the Orthopaedic Clinic at Eastern Health because she did not have private health insurance. It was then decided she should be seen at the rheumatology clinic at Box Hill.
205The plaintiff was diagnosed with seronegative inflammatory arthritis and, in January 2020, was prescribed Methotrexate, but was reluctant to take it because she was managing a COVID clinic.
206Her knees continued to be a problem and she required bilateral aspirations and corticosteroid injections, which she found painful and only provided temporary relief. She also had bilateral popliteal cyst ruptures. During that time, she had only short courses of Methotrexate.
207The incident occurred in January 2021.
208He noted Mr Wang’s diagnosis and his surgery on the plaintiff’s right thumb in July 2021, after which she had a splint and hand therapy and made a slow recovery. However, it was then noted she was having pain at the base of the right thumb, and Mr Wang arranged for her to have a corticosteroid injection into the right thumb CMC joint, which provided some benefit at the time.
209The plaintiff was continuing to have right wrist problems, and Mr Wang recommended surgery to repair the ligament. It was never mentioned to her that her right wrist MRI showed diffuse synovitis and joint effusions consistent with her rheumatoid arthritis.
210Following right wrist surgery on 11 December 2021, Mr Wang noted there was an abundance of synovitis in the radiocarpal and midcarpal joints.
211The plaintiff reported her post-operative progress was very slow and she had ongoing swelling and pain in her wrist, particularly activity related.
212Around that time, it was also thought her knee arthritis was active and she was encouraged to take Methotrexate on a regular basis, as well as other medication, and her knees in particular improved considerably.
213Subsequently, the plaintiff developed lumps in her thumbs and fingers, particularly in the left. She was not aware of any specific diagnosis. At one stage, she was sent for a corticosteroid injection into her left finger PIP joint, but the radiologist could not get the needle in.
214There was a complaint of left shoulder pain.
215During 2024, the plaintiff has continued to have ongoing problems, particularly with the right wrist and hands. Her wrist feels like it is stiffening up and she also notes particular problems at the base of the right thumb. She has clearly developed Heberden’s and Bouchard’s nodes in both hands.
216On examination, all right wrist movements were markedly restricted, especially in flexion, and were associated with stiffness. Flexion of the right thumb MP joint and left ring and little finger PIP joints were limited. No synovitis was noted.
217The inflammation suggested the plaintiff injured her right thumb and, according to Mr Wang, she suffered a rupture of an ulnar collateral ligament at the MCP joint in 2013. Obviously, he would have to accept that was the case, as he could not offer any other opinion because the plaintiff had undergone surgery.
218In 2013, there was also documentary evidence that the plaintiff injured her right wrist and that was mentioned several times in the doctors’ notes, although at times the doctors referred to tenosynovitis and De Quervain’s tenosynovitis.
219The situation was complicated by the plaintiff’s long history of knee problems and eventually she was diagnosed with seronegative inflammatory arthritis.
220Following the 2021 incident, the plaintiff had a right wrist ultrasound which showed widespread synovitis in the wrist, confirmed on subsequent MRI scan on 31 March 2021. However, he found it concerning that in all the correspondence from Mr Wang, he did not mention rheumatoid arthritis on any occasion, nor did he mention inflammatory arthritis in her wrist to the plaintiff.
221Therefore, although the right wrist MRI scan commented on a suggestion of at least a partial tear of the scapholunate ligament, the main finding was diffuse effusion/synovitis of the ventral aspect of the radiocarpal joint and the intercarpal joints.
222The incident as described could have caused a flare-up of the plaintiff’s pre-existing rheumatoid arthritis in her wrist. There is no evidence to suggest that the abnormality of her scapholunate ligament was an acute injury or whether indeed related to the 2013 incident.
223At the very least, Mr Wang should have considered the possibility of rheumatoid arthritis and referred the plaintiff back to the rheumatology unit for further assessment. Certainly, given the MRI findings, an intra-articular corticosteroid injection should have been performed.
224However, Mr Wang went on to operate and, as the plaintiff advised, the progress was extremely slow, although she did make a reasonable recovery in the end. He noted the recovery also coincided with the improvement in her knees when she was taking regular Methotrexate and Plaquenil, and he suggested this also resulted in an improvement in her right wrist arthritis.
225Whatever the case may be, the surgery has left the plaintiff with a very stiff wrist which is unlikely to improve.
226The situation had been further complicated by the development of Heberden’s and Bouchard’s nodes with osteoarthritic changes at the bases of both thumbs. The base of the right thumb had become symptomatic, and Mr Wang arranged for this to be injected, which did help.
227It did not appear that the nature of this problem had been understood earlier.
228The form of arthritis the plaintiff has is also known as primary generalised osteoarthritis and is a strongly hereditary condition in women and, as is often the case, it is usually worse in the non-dominant hand – as in the plaintiff’s case. This has had nothing to do with her employment or any incidents described but is clearly giving her problems. The diagnoses are clear in relation to the plaintiff’s inflammatory arthritis.
229Mr Wang dated the injury to the right MP joint ulnar collateral ligament to the 2013 incident.
230Dr Kostos could not confirm a scapholunate ligament injury occurred in 2021, given the presence of widespread inflammatory arthritis in the plaintiff’s right wrist. The natural course of her condition has been influenced by her surgeries and her response to treatment for rheumatoid arthritis.
231Based on this information, he would have to consider the plaintiff’s right thumb injury was significantly contributed to by work, but he doubted that was the case in relation to the right wrist. Her employment had certainly not contributed at all to the osteoarthritis in her hands.
232The plaintiff will have ongoing restriction of movement in her right wrist, and her osteoarthritis will continue to progress.
Overview
Compensable injury
233This issue is in dispute, with the defendant’s case being that the plaintiff’s presentation is essentially concerned with the constitutional arthritic inflammatory changes as Dr Kostos opined, based on the radiology.[37]
[37]T42
234What the defendant “really hung its hat on” was Dr Kostos’ view that the form of arthritis the plaintiff has is also known as primary generalised osteoarthritis and is a strongly hereditary condition in women. It is often the case the condition is worse in the non-dominant hand. It is nothing to do with the plaintiff’s work or any of the incidents, but it is clearly giving her a problem.[38]
[38]T41
235In Dr Kostos’ opinion, there was no evidence to suggest the abnormality of the scapholunate ligament was an acute injury in the incident or whether it indeed related to the previous incident in 2013.[39]
[39]T41
236Dr Kostos’ view that the post incident 2021 MRI scan showed diffuse synovitis and joint effusions were consistent with rheumatoid arthritis should be preferred.[40]
[40]T41
237While Dr Rahgozar conceded there was ongoing mechanical dysfunction of the right wrist,[41] he thought that there was significant non-work-related rheumatoid arthritis, consistent with Dr Kostos’ view.[42]
[41]T40
[42]T41
238Mr Robbins agreed that the plaintiff’s current presentation is due to degeneration, not the injury. He confirmed this view having seen Mr Wang’s clinical file.[43]
[43]T42
239Counsel for the plaintiff relied on operating surgeon, Mr Wang’s view, that the plaintiff’s right wrist and thumb condition is related to the incident – a view shared by Dr Sullivan, Rheumatologist Dr Lewis and Mr Kossman.
240It was submitted Dr Kostos had “got it all wrong” and that Mr Wang, the operating surgeon, “has completely disposed” of Dr Kostos.[44]
[44]T44
241While Dr Kostos thought Mr Wang operated for the wrong reasons, it was submitted the two procedures in 2021 were clearly a consequence of the work injury. Further, Dr Kostos conceded the plaintiff’s wrist is still stiff and would be likely to affect her activities.[45]
[45]T45
242It was submitted Dr Kostos was wrong when he thought Mr Wang dated the thumb injury to 2013. Mr Wang made no mention of it in his report, simply stating that in 2021, there was an aggravation of an old 2013 scapholunate injury.
243Dr Kostos has completely misunderstood what Mr Wang saw and diagnosed and, in those circumstances, Mr Wang’s view should be preferred.[46]
[46]T46
Findings
244Mr Wang and Dr Kostos are the only examiners who have considered in any detail the cause of the plaintiff’s current condition and whether arthritis is involved in the plaintiff’s current presentation.
245Interestingly, Dr Lewis, rheumatologist, who had a history of the plaintiff’s arthritic condition, did not consider the plaintiff’s current condition was due to arthritis but diagnosed right wrist pain and dysfunction due to a soft-tissue injury treated surgically.
246On balance, I accept that the plaintiff’s wrist/thumb condition is work related. I prefer the view of treating surgeon, Mr Wang, who has operated twice on the plaintiff’s right upper limb.
247In my view, Mr Wang’s response to Dr Kostos’ report completely meets the points relied on by Dr Kostos in reaching his conclusion.
248Mr Wang thought there were a number of inaccuracies and strange assumptions that were completely false in Dr Kostos’ report.
249Dr Wang explained that an attribution of most, if not all, of the plaintiff’s injury and symptoms to rheumatoid arthritis (Dr Kostos’ view) did not fit with the temporal onset of her symptoms relating to well-documented work injuries, nor did it fit with her disease pattern and observations intra-operatively and radiographically.
250Mr Wang considered it was quite clear from a temporal perspective of onset of pain relative to injury at work, as well as from structural abnormality seen on MRI and arthroscopy, that the plaintiff sustained traumatic work-related injuries to her wrist and hand that resulted in her ongoing issues.
251Mr Wang’s path of reasoning was as follows:
Arthritis medication
252The plaintiff had previously tried anti-rheumatoid medication, including Methotrexate and Plaquenil. She had, at best, only minimal response to these medications in regard to her knees, and never had any temporally relatable response to the medications with regard to her wrist and hand.
The UCL injury
253Dr Kostos’ dispute with the diagnosis of a traumatic UCL injury is contrary to the pre-operative MRI finding on 12 May 2021 which reported a chronic ulnar collateral ligament injury with a Stener lesion. That lesion is, by necessity, a traumatic injury involving such forceful displacement at the ulnar collateral insertion.
Scapholunate injury
254It is quite strange why Dr Kostos was reluctant to accept a diagnosis of scapholunate instability. Prior to commencing scapholunate reconstruction, the diagnostic arthroscopy of the plaintiff’s wrist, which confirmed Geissler Grade III scapholunate instability. As is well known, the gold standard for diagnosis of that instability is based on arthroscopic assessment and not based on MRI findings which have very poor sensitivity and specificity for this pathology.
Synovitis/effusion
255Dr Kostos had made multiple mentions of synovitis and joint effusion in the plaintiff’s wrist and hand, which he attributed to rheumatoid arthritis; however, it is well known that the most common cause of synovitis is post-traumatic inflammation. Both thumb and MP joint instability and wrist scapholunate instability produced abundant synovitis. It would, in fact, be extremely strange should there be an absence of synovitis in the plaintiff’s post-traumatic wrist and hand.
256Mr Wang also relied on the temporal connection of the onset of pain with the incident, a situation Dr Kostos seemed to have ignored.
Aggravation
257In this case, where there is a pre-existing wrist condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether any additional impairment resulting from the incident is serious and permanent.
258In Petkovski, the Full Court of the Victorian Supreme Court accepted the proposition that:
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused … .” [47]
[47]Supra
259Counsel for the defendant submitted, even if it is accepted there is a compensable component, there has been no attempt to disentangle incident-related consequences, given it is an aggravation.[48] The plaintiff has singularly failed to marshal her evidence to deal with the relevant Petkovski analysis where she bears the onus.[49]
[48]T42
[49]T36
260It was submitted medical material does record presentations and treatment since the 2013 injury for the plaintiff’s right hand and wrist. Also, in the six months prior to the incident, the plaintiff attended her GP for right hand wrist pain.[50]
[50]T36
261Counsel submitted there was obviously a quite significant injury in 2013 which required quite significant treatment. That treatment was largely conservative but, nevertheless, there were flare-ups in 2015, which the plaintiff deposed to, and then the presentation at her GP six months before the incident. On that basis, any injury in the incident must be seen as an aggravation.[51]
[51]T38
262Counsel for the plaintiff submitted, in terms of Petkovski, 2013 was a transient episode with minimal general practitioner attendances thereafter.[52]
[52]T46
263The plaintiff was treated in relation to the 2013 incident, as the notes indicate, from 15 May to 17 June – just over a month.[53] Treatment involved the use of a splint for a few weeks and one prescription of medication.
[53]Reason for visit; hand injury 15 and 27 May and 11 June 2013
264This was certainly not significant treatment; it was minor, and there were no further GP attendances for two years, until 18 February 2015 with a complaint of right-hand tenosynovitis. There were then no attendances until June 2020.[54]
[54]T44
265That was a single visit when the plaintiff went to see the doctor about her knee. She mentioned her thumb and while there is reference to an ultrasound there is no suggestion it actually took place.
266In the following seven visits, before the said date, there was no mention of the right upper limb at all. It was submitted it entirely consistent with the plaintiff’s history that she was able to get on with her life and continued with activities until the time of the incident.[55]
[55]T44
267While I accept this an aggravation case in terms of the plaintiff’s wrist, the plaintiff was functioning well before the incident injury and did not require ongoing treatment for her wrist.
268In the early years after the 2013 incident, there was minimal treatment. There were investigations and medication for a short time and no further complaint until the February 2015 attendance where the GP diagnosed right-hand tenosynovitis.[56]
[56]T38
269The June 2020 visit, six months prior to the incident, was predominantly for the plaintiff’s knee. An ultrasound of the wrist/hand did not occur. Panadeine Forte was then prescribed for the plaintiff’s knee, not her right thumb/hand.
270Significantly, as at the said date, the plaintiff was doing well and able to undertake full duties at work. She continued to engage in, and enjoyed, a range of hobbies: game fishing, camping and antique bottle collecting.[57]
[57]T37
271That situation changed after the incident injury.
Credit
272As Maxwell P said in Haden Engineering:[58]
“… 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.”
[58]At paragraph 12
273Not surprisingly, there was no attack on the plaintiff’s credit. As I indicated during the hearing, I thought the plaintiff was a very truthful, believable witness.[59] I accept the submission by counsel that the plaintiff is a stoic witness who is not overstating her complaints at all.[60]
[59]T43
[60]T49; Dwyer v Calco Timbers (No 2) (2008) VSCA 260 at paragraph 4
Range
274Counsel for the defendant submitted the plaintiff does not meet the test for seriousness if one assesses the nature and symptoms of the right wrist and thumb and consequences. There has been largely successful surgery which is borne out by the treating orthopaedic surgeon’s material, with reports of significant improvement. There has been very little, if any, treatment in recent times, with the main focus of treatment being for an unrelated arthritic condition.[61]
[61]T35
275Counsel for the plaintiff submitted the plaintiff’s evidence of ongoing pain should be accepted. The plaintiff had been able to continue with full activities until the incident and then had a significant change, with all her hobbies being affected: camping, fishing and her unusual hobby of antique bottle collecting.[62]
[62]T46
Pain
276The evidentiary basis of the pain assessment ordinarily comprises (inter alia) what the plaintiff says about her pain to the court and doctors.[63]
[63] Per Maxwell P in Haden Engineering at paragraph 11
277I accept that the plaintiff suffers continuing intermittent pain in her right wrist and at the base of her thumb, worse on activity.[64] These symptoms have continued despite Mr Wang’s somewhat optimistic view in May 2022 of the plaintiff’s postoperative condition.
[64]T48
278The plaintiff has told recent examiners her wrist feels like it is stiffening up. She feels a throbbing pain with activities like housework. Forceful grabbing, grasping, lifting and carrying can result in deterioration of her right hand and wrist pain. She has also reported weakness of the right hand and occasional dropping of items.
279The plaintiff no longer has any issues with her left shoulder following the hydrodilatation early last year.
Treatment
280After an x-ray in January 2020, the plaintiff was referred to specialist Mr Wang, who arranged further investigations. The March MRI of the wrist showed a partial tear of the scapholunate ligament. The May 2021 MRI of the right thumb showed chronic UCL rupture and a Stener lesion as well as flexor pollicis longus tenosynovitis.
281Mr Wang then proceeded to operate on the plaintiff’s right thumb on 13 July 2021 and on her right wrist on 11 December 2021. He gave the plaintiff a CMC injection in her thumb on 24 May 2022.
282Post surgery, the plaintiff underwent hand therapy, physiotherapy, and later, exercises at home.
283The plaintiff has continued to require painkilling medication for her wrist and thumb. She takes Nurofen and Panadeine for this pain two to three times a week.
Restricted movement
284Dr Kostos and other examiners concluded that the plaintiff had been left with a very stiff wrist which is unlikely to improve.[65]
[65]T45
285A number of examiners have found reduced grip strength in the plaintiff’s dominant right hand. She has problems opening jars and door handles, and struggles to perform twisting actions and carry heavy items.[66]
[66]T48
Sleep
286The wrist/thumb injury has had an affect on the plaintiff’s sleep, although she conceded that she had other inputs into that from time to time.[67] She has difficulty getting to sleep due to pain in her thumb and wrist. She continues to take sleeping tablets to help her sleep, usually two to three times a week.
[67]T46
287Intimacy with her partner remains affected by her pain but also by his recent ankle injury.
Gardening and housework
288The plaintiff used to love gardening, which she still does, but pays for it later. Truthfully, she does not say she can no longer garden. She just has problems. She can no longer mow the lawn or hold the Whipper Snipper, and she cannot move rocks around the garden or carry large pots of water.[68]
[68]T48
289The plaintiff can no longer do the heavy cleaning and requires help around the house from her partner.[69]
[69]T48
290She has tried to arrange a cleaner and gardener to help her, but there is no one available who WorkCover will approve.[70]
[70]T48
Work
291While the plaintiff continues to work fulltime, she still has problems at work using her dominant hand which have been accommodated by the employer. Her hand condition affects how long and fast she can type.[71]
[71]T46
292As her supervisor Ms Stanley confirmed, the employer has had to make ergonomic changes to the office and provide portable equipment so the plaintiff can work from home. The employer has also given the plaintiff some extra leave and regular breaks when required.[72]
[72]T44
293The plaintiff is worried that if for some reason she lost her job, she may not find such an accommodating employer.
Hobbies
294The plaintiff was a very active person pre incident and participated in a wide range of hobbies.[73] Her participation in these activities is now extremely limited as a result of her hand/thumb condition.
[73]T2
295She is no longer able to go camping with her partner, being unable to set up and dismantle the campsite. Twelve months ago, they bought a caravan to make camping easier.
296The plaintiff regularly went game fishing with her brother before the incident. Because of her injuries, she has stopped going fishing as she can no longer hold the rod if she catches a big fish.
297Pre incident, the plaintiff also enjoyed collecting antique bottles. This activity involved attending places in the country which she had researched as being suitable sites to dig and using like a metal detector to locate objects. She is no longer able to do the digging and shovelling required to find the bottles after they are detected.
298Because of her right wrist/thumb pain, the plaintiff is unable to play and interact with her five-year-old granddaughter as she would like.
299Taking into account all the evidence, I am satisfied the incident related consequences of the aggravation of the plaintiff’s right hand/wrist condition are “serious”. Before the incident she was functioning well. Thereafter, she has suffered pain, undergone a range of treatment and her activities at work, domestically and recreationally have been adversely affected by her wrist/hand condition.
300As the plaintiff’s pain and restrictions have persisted for over three years despite treatment, her impairment is permanent.
301Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering.
- - -
0
4
0