Grzelak v Victorian WorkCover Authority
[2022] VCC 363
•28 March 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE (VIA ZOOM HEARING) COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-21-02921
| AGNIESZKA (AGNES) GRZELAK | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne (via Zoom hearing) | |
DATE OF HEARING: | 25 February 2022 (via Zoom) | |
DATE OF JUDGMENT: | 28 March 2022 | |
CASE MAY BE CITED AS: | Grzelak v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 363 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – plaintiff seeks leave to bring common law proceedings for “pain and suffering” damages only in respect to a right hand injury – reliance on paragraph (a) of the definition of “serious injury” – a “range case”
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Hunter v Transport Accident Commission [2005] VSCA 1; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) (2008) 234 CLR 124; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Stijepic v Once Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Sabo v George Weston Foods [2009] VSCA 242; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143; TTB SMS Pty Ltd v Reading [2020] VSCA 203
Judgment: Leave to the plaintiff to bring common law proceedings for “pain and suffering” damages in respect of a right hand injury suffered on or about 20 November 2018.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Pierorazio | Arnold Thomas & Becker |
| For the Defendant | Ms S De Guio | IDP Lawyers |
HIS HONOUR:
1By way of Originating Motion, Ms Agnieszka (Agnes) Grzelak (“the plaintiff”) seeks leave pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (as amended) (“the Act”) to bring common law proceedings for “pain and suffering” damages in respect of an injury to her right hand suffered on or about 20 November 2018 in the course of her employment with Christopoulos Constantine & Joshem Pty Ltd (trading as “The European and Melbourne Supper Club Bar”) (“the employer”).[1]
[1]The Originating Motion issued in this matter names the defendant to be the “Victorian WorkCover Authority”. During the course of this Judgment, when I refer to the employer of the plaintiff, I will be referring to Christopoulos Constantine & Joshem Pty Ltd (which is named in the first affidavit of the plaintiff, but not the second).
2The plaintiff gave evidence and was cross-examined. At the conclusion of the evidence, counsel for the plaintiff tendered the Plaintiff’s Court Book (“PCB”) consisting of 39 pages (exhibit 1) and counsel for the defendant tendered the Defendant’s Court Book (“DCB”) consisting of 66 pages (exhibit “A”).
Relevant legal principles
3In relation to the injury, the Court must not give leave unless it is satisfied, on the balance of probabilities, that such injury is a “serious injury” within the meaning of the definition of “serious injury” contained in s325(1) of the Act.[2]
[2]See s335(5)(a) of the Act
4The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s325(1) of the Act. That paragraph states, relevantly:
“serious injury means —
(a) permanent serious impairment or loss of a body function … .”
5The part of the body said to be impaired for the purposes of paragraph (a) is the right hand.
6In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a) The injury arose out of, or in the course of, or due to the nature of, her employment with the employer on or after 1 July 2014;[3] and
[3] See s1 of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
(b) The injury must be “permanent”; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[4]
(c) Section 325(2)(b) of the Act provides that the term “serious” is to be satisfied by reference to the consequences of any impairment or loss of body function. In relation to the injury, it is for the plaintiff to establish, on the balance of probabilities, that her injury in relation to “pain and suffering” consequences must be “serious”, that is:
“… when judged by comparison with other cases in the range of possible impairments … [can be] fairly described as being more than significant or marked, and as being at least very considerable … .”
These words are sometimes referred to as the “narrative test”;
(d) Section 325(2)(h) of the Act provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of “serious injury” and not otherwise;
(e) Section 325(2)(j) of the Act provides that the assessment of serious injury must be made at the time that the application is heard by the Court, unless s348 and s358 of the Act apply (which they do not);
(f) The Court must give reasons disclosing the pathway of reasoning in dealing with the evidence and issues raised by the application.[5]
[4] See Barwon Spinners Pty & Ors v Podolak (op cit) at paragraph [33]
[5]See Hunter v Transport Accident Commission [2005] VSCA 1 at paragraphs [23]-[36]
The issues
7In his opening, counsel for the plaintiff stated that the plaintiff was employed by the employer as a full-time casual worker performing service work on tables. On or about 20 November 2018, the plaintiff was carrying a ceramic jug in her right hand, when she slipped on the floor, causing injury to her right dominant hand. Such fall caused damage to the nerves, principally to the middle finger of the right hand and also the index finger, both of which were operated on. Persisting symptoms relate to the injury to those fingers and the scarring that arose from the surgery. There are two distinct sites of the scarring – the first where the actual laceration took place when the plaintiff dropped the ceramic jug, and that is lower down the palm, and the second area of the scarring arises from the surgery, which is quite distinct and separate in the upper area of the palm.
8Counsel for the plaintiff also noted that the plaintiff suffered a second injury involving her right thumb occurring on or about 5 June 2020 during the course of her employment with another employer, which has resulted in a small scar injury where surgery was performed. Apart from some loss of sensation on the inside of her thumb, the plaintiff does not have any significant symptoms arising from that injury – in particular she suffers no pain symptoms in that area of her right hand. That injury forms no part of the application before the Court.
9When queried as to what were the issues, counsel for the defendant confirmed that it was essentially a “range” case[6] ꟷ by which I took her to mean that, although the plaintiff had a compensable right hand injury resulting in some permanent impairment and organic consequences, the issue is whether or not she satisfied the narrative test, to which reference has already been made. However, during the course of the application and during her final address, it became clear that counsel for the defendant, no doubt relying on the opinion of Mr Thomas Robbins, also considered that the issue of “permanence” was still open.
[6]See Transcript (“T”) 2 at Lines (“L”) 5-16
The evidence of the Plaintiff
10The plaintiff relied on two affidavits, the first sworn on 18 March 2021[7] and the second, sworn 14 February 2022.[8]
[7]See exhibit 1, affidavit of Agnieszka Grzelak, sworn 18 March 2021, at pages 3-10 PCB
[8]See exhibit 1, affidavit of Agnieszka Grzelak, sworn 14 February 2022, at pages 11-14 PCB
11The plaintiff was sworn and gave evidence that her present occupation is that of analytical chemist.
12The plaintiff gave evidence that in “recent times” she had read her affidavits and that they were “true and correct”.[9]
[9]T12, L28 ꟷ T13, L3
13With leave of the Court, the plaintiff gave further evidence and confirmed that she was working as an analytical chemist up until the end of 2021, at which time she developed a blood clot following a Pfizer vaccination against COVID-19. At the present time, she is not yet back at work as a chemist, as her workplace will not let her come back until she is double vaccinated, notwithstanding she has a valid medical exemption.
14The plaintiff is presently on paid leave and hopes to resume her chemist duties once the clot is cleared and she can have a further vaccination.
15I refer to the first affidavit of the plaintiff and note the following salient matters:
· The plaintiff is a thirty-one-year-old[10] single woman who is naturally right handed.
[10]Born October 1990
· She deposes that the injury which she seeks to establish as a “serious injury” is an injury to her:
“… right upper extremity including [her] right hand, right middle finger and right index finger and related consequences of the serious injury”.[11]
[11]See exhibit 1, paragraph [2] at page 3 PCB
· She was born in Altona and has always lived in Melbourne, and at the time of swearing her first affidavit, was living with her parents.
· She attended Sunshine Heights Primary School and later St Aloysius College in North Melbourne, where she completed Year 12, after which she went on to complete an Advanced Diploma in Fashion Design at Kangan TAFE, before completing a Bachelor of Science at Victoria University.
· After completing her studies, she worked as a research and development chemist for Dunlop in around 2015 for about nine months, before going on to work as a colour chemist for Wattyl Paints for around two years. After that, and seeking a “change of experience”, she travelled overseas in 2018.
· She commenced employment with the employer in around September 2018 as a full-time casual worker performing, among other things, service work. Her hours were generally from around 7.00am until 4.00pm five days per week (Monday to Friday), for which she earned on average $1,000 a week on a gross basis.
· She states that about three years prior to swearing her first affidavit she was diagnosed with Polycystic Ovarian Syndrome, which causes her periodic pain and discomfort, but has not prevented her from working and enjoying life. Otherwise, she has been healthy and well prior to the injury, the subject of the claim.
· On or about 20 November 2018, the plaintiff was working for the defendant around the lunchtime service and was in the kitchen when the chef asked her to provide him with a jug. She walked from the kitchen to the front of the house bar, collected the ceramic jug, and started to walk back to the kitchen. As she walked past the water station at the house bar, she turned to walk towards the kitchen and felt her foot slip on liquid on the wooden floor, causing her to fall to the ground. The jug which she was holding smashed into two pieces when she fell to the ground and consequently cut her right hand.
· As a result of such cut, she was bleeding heavily and was assisted by the manager, who attempted first aid, before she took an Uber ride to St Vincent’s Hospital Emergency Department.
· She was admitted to St Vincent’s Hospital on 20 November 2018 and was told that she had sustained “a severed tendon, artery and nerve”,[12] causing her to undergo surgery on or about 21 November 2018. Following such surgery, she was placed in a splint, which she was required to wear for about three months.
[12]See exhibit 1, paragraph [14], at page 5 PCB
· She was off work for about three months and during this period attended St Vincent’s Hospital for outpatient visits, and for hand rehabilitation at Essendon, by Melbourne Hand Rehab.
· She continued with the hand therapist, initially twice per week, from about late November 2018 for three months, and then around once per week until around late June 2019. Such treatment involved splinting, pain management, sensory retraining and movement and strengthening exercises.
· During rehabilitation, her right middle finger became aggravated and she experienced stiffness and numbness in that finger as a result.
· She initially attended her general practitioner, Dr Raj, at Cairnlea Superclinic, as required, but later changed to Dr Lina Nido at the Western Medical Centre, as she considered she needed a more detailed level of care.
· She also commenced attending an osteopath at Kinetic Osteopathy in Cairnlea on a weekly basis to assist her right wrist pain, which she experienced as a result of the right hand injury. Such treatment involves massage, dry needling and strength training, which gives her some relief from the pain.
· She initially returned to work with the defendant around one day per week, and then increased it to about two days per week working about six hours per day, but was only able to maintain this for about one month.
· She did not feel supported in the workplace and subsequently obtained employment at Milton Wine Bar as a bar hand and worked there for about four months before commencing work as a sales manager for Australian Wine Agencies, which is a distribution company, where she worked for about ten months, with such role finishing in about March 2020 as a result of the COVID-19 pandemic. After that work, she obtained work as a barista on a casual basis at Hunters Harvest.
· In or about June 2020, she suffered a cut to her right thumb while working at Hunters Harvest Health Café when she put her right hand in a sink and was cut by a sharp knife blade. She describes how she lacerated a nerve in her right thumb requiring surgery at the St Vincent’s Hospital, followed by hand rehabilitation following recovery from surgery. She was still attending hand rehabilitation fortnightly in respect to the subject injury when the right thumb injury occurred. She notes she has some reduced sensation over the left side of her right thumb.
· On or around 23 November 2020, she obtained full-time work as an analytical chemist, working for Racing Analytical Services and has continued to work in that role to date. Such work requires her to be able to manipulate items with her hands and to use fine motor skills, which she now has difficulty performing due to her right hand injury. She notes that she is required to use test tubes, pipettes, technical machinery and instruments that require repetitive fine motor skills. She finds the repetitive gripping and grasping of the small and large objects difficult to manage with her right hand injury and finds that she often drops items at work, such as glassware, test tubes, solutions and stationary. She also finds the use of a keyboard far more difficult at work and she is much less efficient in working as she was prior to her right hand injury.
· She notes the following consequences of her right hand injury:
ꟷshe states that since undergoing the operation to repair the tendons in her right hand, she has experienced constant pain on the palm and fingers of the right hand (i.e. the middle and index fingers), where she underwent surgery.
ꟷfollowing the surgery and rehabilitation, she regained movement in her right hand, but has a significantly-reduced feeling in the right middle and index fingers, and constant pain at the base of her right index and middle fingers around the scar site. She also experiences significantly-decreased sensation of feeling in her index finger and middle finger.
ꟷshe experiences a constant numb pain in the palm of her right hand, with occasional sharp pains at the scar site. She also experiences a pulling sensation from the scar site, like someone is pulling her hand with a needle. The skin across her right palm is tight due to the scarring, and she used to massage the scar using a small vibration device to break up the scar tissue, but now does this manually.
ꟷshe wears a pressure glove on her right hand when she is not at work.
ꟷsuch glove is a sensory tool to assist her to feel items when she is gripping or grasping. If she does not wear the pressure glove when she grips or grasps items, she often drops them, unless she can maintain eyesight with the item. She notes that she regularly drops items around the home, such as utensils, toiletries and glasses.
ꟷshe is conscious of how she is perceived by other people when wearing the glove, and feels less confident using her right hand. She notes these activities extend to performing cooking, chopping vegetables or meat, exercise, boxing and using her right hand in everyday household activities, such as washing dishes, hanging clothes, cleaning the shower and toilet, vacuuming and changing bed linen. She now limits, as far as possible, domestic activities which require intensive use of her right hand as a result.
ꟷprior to her right hand injury, she enjoyed reading, going to the gym and going for bushwalks. She now finds something as simple as turning pages on a book and using her right hand to hold a book causes her pain and makes the experience unpleasurable.
ꟷshe used to train at boxing in the gym before her right hand injury and has done this since her early twenties, almost around four times a week at a gym in Derrimut. She used to perform strength training and now has difficulty gripping weights and her eye/hand coordination is diminished. She also now avoids weight training and boxing because of the sensitivity of her right hand and the pain that would result from the repeated hitting, even with gloves. She misses the boxing and gym for the exercise, and also from the social perspective.
ꟷ she finds the pain is “constant” and if she attempts to do too much with her right hand, the pain becomes very intense.
ꟷ she avoids taking medication when she experiences pain because she does not want to become reliant on pain medication. The pain that she experienced in her right hand when the ligaments were torn would be around 9 out of 10, but most of the time she would rate the pain somewhere between 6-7 out of 10.
ꟷ when driving, she avoids using her right hand as much as possible unless she has to and relies on her left hand more in the action of driving.
ꟷ she has reduced grip strength in her right hand compared to her left hand and avoids, as much as possible, lifting, pushing, gripping and pulling any significant weight with her right hand.
ꟷ she finds it difficult to use her right hand in activities requiring use of fine motor skills such as handwriting and that her right hand becomes fatigued more easily, and that she has less endurance to perform tasks such as typing, writing and cleaning. As a result, she has to break activities like those down to smaller tasks in order to complete them.
· She has difficulty showering, washing her hair and grooming herself because of the loss of sensation and fine motor skills in her right hand.
· As a result of the right hand pain, she now uses her left hand more, and has trained her left hand for toileting, due to the pain with her right hand.
· She notes she does not anticipate any further surgery on her right hand (or thumb) and has realised she needs to live with ongoing pain and restrictions in the right hand, right middle finger and right index finger.
16I refer to the second affidavit of the plaintiff and note the following salient matters:
· She notes that, since he first affidavit, she has purchased an apartment with a mortgage and “moved in” in approximately July 2021.
· She deposes that, since her first affidavit, her symptoms have “definitely not improved” and, if anything, have “gotten worse in terms of pain and numbness”.[13] She notes that while the numbness in her index and middle fingers remain in the same spot, the numbness has now trickled down to the palm of her right hand.
[13]See exhibit 1 – paragraph [3] of the second affidavit, at page 11 PCB
· She considers that this has resulted in “more frustration” as a result of finding even simple tasks difficult to perform – for example, washing her hair, applying her makeup, cleaning herself after she goes to the toilet “now rendered difficult as she is right handed”. She has had to change to using her left hand to clean herself, which is uncomfortable and does not come to her naturally.
· She remains restricted in terms of household duties, as described in her first affidavit.
· She continues to be restricted in terms of physical and sporting exercise, including boxing, which she has not been able to resume. She notes that the boxing kept her fitness levels up and effectively she cannot resume this activity as she has “basically ... a dead right hand”.[14]
[14]See exhibit 1 – paragraph [7] of the second affidavit, at page 12 PCB
· Her right hand feels stiff and lifeless and she struggles holding things for long periods of time – ranging from using a vacuum cleaner to using a sponge when cleaning.
· She continues to drop things from her right hand and has consequently been burnt a few times.
· She has continued to experience difficulties at work, which were set out in her first affidavit, although she has tried to mask her frustration, as she does not want anyone seeing her struggle.
· In terms of treatment, she continues to see an osteopath once a week, with treatments lasting thirty to forty minutes, including massaging the whole right hand, including the scar, right forearm and gentle exercise, in addition to needling of the skin. She notes that she has been seeing her osteopath now for a period of years “on again off again” because of COVID issues.
· She finds that when she exercises, for example, going for a walk, her hands tend to increase the blood coming through her veins and she feels a very uncomfortable and nasty feeling in her right hand. That is the reason she wears a compression glove on the right hand whenever she attempts to perform some form of exercise.
· She describes herself as basically clumsy at work, with her ability to handwrite remaining “affected”, and her writing, she describes as “scrappy”. When using a keyboard, she can only type with two fingers, and when she does go to the gym, she can only manage to lift small weights with her right hand as she has reduced strength.
· Whereas she was fit prior to her right hand injury, she is nowhere near as fit, and has put on approximately 8 kilograms, which upsets her “to no end”. She asserts that the way she used to be (prior to the right hand injury) and the way she used to look as a woman, and what she was able to wear was how she identified herself, whereas these days she gets about in “track pants” and this contributes to the depression she is experiencing.
· Because of the depression, she has been seeing a psychologist since about April 2021 on a weekly basis, although she has not been able to see her recently, as the psychologist is fully booked into early this year. At her suggestion, her general practitioner has been prescribing her an antidepressant, Venlafaxine, for the last few months, which she takes on a daily basis.
· She applies a moisturiser to her hand every day and her symptoms are made worse in cold weather, and for this reason, in winter she tends to wear the compression glove on her right hand more often. She tends to find that heat relaxes the muscles, which makes the pain more bearable.
· The injury affects her ability to sleep at night, as she finds it difficult getting into a comfortable position.
· The symptoms in her right hand have also had an impact on “intimacy”.
· Due to the numbness, simple things, such as turning the pages of a book, is difficult, and invariably she uses her mobile phone in her left hand and scrolls down with her left thumb.
The surgical and medical treatment given to the Plaintiff
17I refer to a letter from St Vincent’s Hospital dated 24 April 2020 addressed to those acting for the plaintiff.[15] Such letter records that the plaintiff was admitted to St Vincent’s Hospital on 20 November 2018 after sustaining injuries at work to her right hand. The history given was that she had a laceration to her right palm when she fell on a shattered ceramic milk jug at work.
[15]See exhibit 1 at pages 26-27 PCB
18The plaintiff was admitted to St Vincent’s Hospital under the plastics surgical team and had surgical further assessment. On 21 November 2018, she was taken to theatre, had exploration and a repair of the right palmar lacerations ,and also repair of the flexor digitorum superficialis and profundas tendons to the right middle finger. Also, she had a repair of the finger right digital radial nerve as well, and artery.
19The plaintiff was described as having a “successful outcome” and had routine post-operative management and was discharged from hospital on 21 November 2018. The letter reveals that the records show that the plaintiff had regular follow up in the plastics outpatient clinic and allied health outpatients clinic, where she underwent intensive hand therapy and made a slow, but steady, recovery from her injuries.
20It is recorded that the plaintiff had some sensory dysfunction related to the injury and she was managed through allied health with a sensory re-education program to improve outcome, with her last review in the plastics outpatients clinic on 6 November 2019, at which time she had full range of movement, although did have some residual scarring and altered sensation.
21I also refer to the report from Ms Angela Cheng, senior occupational therapist at Melbourne Hand Rehab, dated 15 April 2020.[16] Ms Cheng records that the plaintiff initially attended Melbourne Hand Rehab on 28 November 2018 on referral from the St Vincent’s Hospital hand therapy department, for treatment of her right hand injury. She also records that the plaintiff attended for weekly hand therapy from 28 November 2018 to 25 June 2019, over which time she underwent splinting, scar and pain management sensory retraining, progressive movement and strengthening exercises, and return-to-work support.
[16]See exhibit 1 at pages 24-25 PCB
22Ms Cheng also records that, in January 2019, the plaintiff reported an average pain of 2/10, but 9/10 with feelings of anxiousness and low mood.
23In her report, Ms Cheng states, in part:
“On her last appointment at MHR, there were plans to continue weekly reviews and for [the plaintiff] to get a referral from her GP for a surgical opinion; however, no further appointments were made at MHR. According to her last objective measurements, [the plaintiff’s] grip strength was R22kgL L34kgL and she generally had full movement of her MF although her scar was slightly dense and sensation impaired.
Based on a recent call with … [the plaintiff], she sought a second surgical opinion at St Vincent’s Hospital last year although she was advised by the surgeon she would not benefit from any surgical intervention. … [The plaintiff] reports no improvement in her MF with ongoing constant dull ache, numbness and weakness in her hand. She continues to experience difficulty with writing, gripping and lifting activities.”[17]
(My emphasis.)
[17]See exhibit 1 at page 24 PCB
24Ms Cheng also noted that, at the time of treatment, the plaintiff was working on modified duties, but during her time of rehabilitation, left that job and worked at another wine bar in a sales position, but lost that job due to the COVID-19 situation. Ms Cheng did go on to state that the prognosis for the nerve injuries typically takes one to three years to recover, and given that the plaintiff did not complete her rehabilitation, she has a fair prognosis for further recovery. Ms Cheng considered that the plaintiff “may continue to experience gradual although likely mild improvements in her sensation in the next couple of years” and that she had some potential to improve “her hand strength with appropriate treatment”.[18]
[18]See exhibit 1 at page 25 PCB
25I also refer to the report of Ms Isabelle Anderson, an occupational therapist practising in hand therapy, dated 17 November 2021, addressed to the solicitors for the plaintiff.[19] Essentially, such report initially details hand rehabilitation therapy undertaken by the plaintiff, to which reference has already been made. It goes on to state that the plaintiff returned to Melbourne Hand Rehab on 9 March 2021 for further treatment. At that time, the plaintiff reported she was constantly dropping things and she returned to “see if there was anything further that could be done to manage her scars”.[20]
[19]See such report at page 20-31 PCB
[20]See exhibit 1 at page 29 PCB
26The plaintiff’s treatment included custom-made thermoplastic splinting, scar and pain management sensory retraining, progressive movement and strengthening exercises, therapeutic ultrasound and return-to-work support.
27Ms Anderson notes that the plaintiff’s outcomes have fluctuated throughout her treatment. She refers to the record of her grip strength measures, measured in kilograms of force for both right and left hands. I set these out as follows:
· 7 January 2019: right 18 kilograms; left 36 kilograms
· 24 January 2019: right 24 kilograms; left 34 kilograms
· 4 February 2019: right 18 kilograms; left 30 kilograms
· 7 March 2019: right 19 kilograms; left 31 kilograms
· 11 April 2019: right 20 kilograms; left 34 kilograms
· 2 May 2019: right 20 kilograms; left 34 kilograms
· 9 March 2021: right 14 kilograms; left 34 kilograms
· 8 June 2021: right 11 kilograms; left 28 kilograms
· 6 July 2021: right 18 kilograms; left 25 kilograms
· 17 August 2021: right 9 kilograms; left 24 kilograms.[21]
[21]See exhibit 1 – report of Ms Anderson at PCB 30
28Ms Anderson also notes that the plaintiff’s sensation was regularly assessed using the Semmes Weinstein Monofilament Assessment and that her most recent assessment at that time was on 10 August 2021 and indicated lost/diminished protective sensation to her middle finger and ulnar aspect of her ring finger.
29In her report, Ms Anderson states, in part:
“Given … [the plaintiff] continues to have limited functional use of her right hand and ongoing altered sensation in her middle and index fingers three years following her injury, it is unlikely that she will have significant ongoing improvements.
Future treatment
… [The plaintiff] had fluctuating results from hand therapy this year. She may benefit from a strengthening program to ensure she is able to maintain her grip strength.
She may benefit from psychological input to assist in managing the ongoing functional implications of her injury.
It is my understanding that [the plaintiff] consulted with plastic surgeon Mr Edmund Ek. … [The plaintiff] reported that Mr Ek indicated that he may be able to assist in the removal of scar tissue and that he did not recommend nerve grafting. I do not have any further information regarding this as no communication was received from Mr Ek. If she does choose to have surgery she would benefit from hand therapy to regain her range of movement, strength and manage any new scarring.
Do the injuries cause our client to be precluded or restricted in relation [to] her social and domestic and/or recreational activities for the foreseeable future? If so to what extent?
It is likely that … [the plaintiff] will continue to have functional limitations relating the her right hand. The extent of which is difficult to determine. There are several factors that will impact her function.
Given that [the plaintiff] continues to have decreased protective sensation in part of her hand she will require care when using sharp, extremely hot or extremely cold items. She reported that she would drop items frequently and I expect that this will likely continue.
Her decreased grip strength will significantly impact on her ability to use her hand functionally given that on her most recent assessment her strength was 38% of her non dominant hand.
Given the long term nature of her injury it is likely that … [the plaintiff] has adopted a tendency to favour her left hand for functional tasks. It can be difficult to relearn to use an injured limb and is likely contributing to her ongoing right sided weakness.
The likelihood of any deterioration in her condition
It is unlikely that … [the plaintiff’s] sensation or range of movement will significantly deteriorate but should she continue to have the tendency to avoid using her right hand it is likely that her strength may not improve, or it may decrease further.”[22]
(My emphasis.)
[22]See report of Ms Isabelle Anderson at pages 30-31 PCB
30I also refer to the report dated 18 February 2022, from the osteopath, Dr Z Petar Fiamengo, headed “To whom this may concern”.[23] Dr Fiamengo reports that the plaintiff initially attended his clinic on 21 August 2020 complaining of wrist/hand pain and noting that it was caused by an accident that occurred two weeks prior, resulting in trauma to the right thumb. Dr Fiamengo diagnosed the right thumb condition to be a chronic right peripheral nerve injury with an associated loss of sensation and thenar eminence myalgia. The plaintiff was treated with joint articulation, stretching, dry needling strengthening and soft-tissue massage to the wrist and hand.
[23]See report of Dr Z Petar Fiamengo at pages 37-38 PCB
31Dr Fiamengo stated, in part:
“Given the chronicity and the type of trauma she sustained, I believe her condition may be ongoing as she continues to experience discomfort, intermittent pain and motor/sensory changes to her hand.
[The plaintiff] noted treatment provides … symptomatic relief, however it can be aggravated by repetitive use of the hand and activities of daily living.
I do not believe … [the plaintiff’s] injuries will preclude/restrict her from social/recreational activities, however it may impact domestic activities. It is in my opinion, her condition will not deteriorate. From what I can gather, her condition is stabolised (sic) (this can be seen by the outcome measures above).
That being said, she may require further treatment/management via the likes of allied health professionals and, possible future intervention from a hand surgeon.”[24]
[24]See report of Dr Fiamengo at pages 37-38 PCB
32The plaintiff also relies on a report from the hand surgeon, Mr James Thomas, dated 16 June 2020.[25] The general practitioner, Dr Nivedita Nagarale, referred the plaintiff to Mr Thomas, seemingly for treatment in relation to the right thumb injury, which occurred on 5 June 2020.
[25]See report of Mr Thomas dated 16 June 2020, at page 28 PCB
33When seen by Mr Thomas, he also obtained a history of the injuries suffered by the plaintiff on or about 20 November 2018. I refer to the examination made by Mr Thomas at that time in respect to the subject injury. He states:
“[The injury to the right thumb] occurs on a background of a previous injury to her right palm, again which occurred at work, in November 2018. This was managed through St Vincent’s Public Hospital. She had repair of tendons, nerves and arteries to her middle and index fingers.
On examination today she has a well healed scar from her previous surgery. This extends along the line of the middle finger into the digit. She has diminished sensation in the ulnar digital nerve distribution of the index finger, as well as the radial and ulnar digital nerve distributions of the middle finger. She has full range of movement. There is some tender scar tissue overlying the MP joint of the middle finger … .”[26]
(My emphasis.)
[26]Op cit
34Mr Thomas also found that the plaintiff had a –
“… healing laceration at the level of the IP crease of the thumb and diminished sensation in the radial digital nerve distribution of the thumb distal to this laceration.”[27]
[27]Op cit
35Ultimately, Mr Thomas obtained permission to perform surgery, consisting of exploration and repair of the radial digital nerve in the right thumb.
36When seen in June 2020, Mr Thomas reports he informed the plaintiff there was still “some potential for further improvement in sensation”[28] in respect to the injuries suffered in November 2018.
[28]Op cit
Medico-legal material relied on by the Plaintiff
37Those acting for the plaintiff arranged for her to be medico-legally examined by the shoulder, elbow and wrist surgeon, Mr Ash Chehata, on 8 February 2022.[29]
[29]See report of Mr Chehata dated 10 February 2022 at pages 30-36 PCB
38Mr Chehata obtained a history of the subject injury, together with the various follow-up treatments. In particular, he notes that the broken ceramic milk jug lacerated the plaintiff’s Zone 2 FDS and FDP and was taken to St Vincent’s Hospital, where she had a laceration to the FDS and FDP musculature at Zone 2 and a 100 per cent laceration to the digital nerves on either side of FDS and FDP to the middle finger, as well as 20 per cent laceration to the artery, which was primarily repaired.
39At the time of examination, the plaintiff complained of having problems grabbing things, using a knife and cutting or using a pen. She also complained of having struggles to toilet herself, doing her hair or applying makeup, and that it had affected all aspects of her daily living, although she lives alone and can independently cook, drive, clean and shop. In particular, the plaintiff noted she has to consciously be aware of the use of the right hand now and is struggling to return back to work in a normal fashion.
40Mr Chehata made a clinical examination of the plaintiff and then responded to various questions posed by the solicitors for the plaintiff. I set out such questions and answers:
“1. The diagnosis in relation to … [the plaintiff’s] injury.
The diagnosis is a laceration to the FDS and FDP in Zone 20, 100% nerve laceration and repair and 20% arterial laceration and repair.
2.The relationship between … [the plaintiff’s] employment and her right hand condition.
There is a clear relationship between the employment and her right hand condition.
3. The prognosis including the likelihood of further deterioration in relation to [the plaintiff’s] right hand condition.
The prognosis unfortunately, after such a long period of time, is now poor.
4. Whether the right hand injury or impairment (excluding any psychiatric, psychological or functional overlay), suffered by [the plaintiff] as a result of the workplace accident, is likely to preclude or restrict her in relation to activities involving:
(i) lifting;
and if so to what extent?
The impairment has affected her ability to perform repetitive tasks and this has meant that she has constant pain, is unable to lift or utilise her hand while doing her hair or make-up, toileting or using a knife or pen. However, she feels that she can perform the majority of her tasks but would have to perform them slowly if forced.
There now appears to be a significant deterioration in her mental health and she has been referred to a psychologist by her general practitioner. This appears to be a new phenomenon. It certainly appears that her right hand is restricted and she has been unable to progress or improve since the time of the injury.
5. Excluding completely the psychiatric and psychological consequences of the right hand injury suffered by [the plaintiff] as a result of the workplace accident, what pain, restriction, disabilities and incapacities does she suffer as a result of the right hand injury? What are the consequences on the activities of her life apart from work as a result of the right hand injury she has sustained?
As a result of the workplace injury, there is no doubt that she has been unable to utilise the hand in a normal fashion. At this stage, the consequence of her activities is that it has affected all aspects of her daily living. She feels that even dealing with intimate personal relationships or any type of activity involving simply applying make-up or doing her hair, toileting or using a pen or knife have been impacted as she needs to focus, not only because of the scar formation, but the ongoing pain. There has been no improvement with intensive hand therapy, Allied Health intervention and she has even sought a second opinion with regard to scar revision to see whether this would improve, but unfortunately has had no seeming positive outcomes and is now resolved that the likely final result is an ongoing and chronic modification of all of her activities.[30]
(My emphasis.)
[30]See the report of Mr Chehata dated 10 February 2022 at pages 34-36 PCB
Medico-legal material relied on by the Defendant
41It is convenient to refer to the medico-legal material relied on by the defendant. Those acting for the defendant arranged for the plaintiff to be examined by the following:
(a) the general surgeon, Associate Professor Anthony Buzzard, on 9 September 2020;[31]
(b) the psychiatrist, Dr Richard Prytula, on 25 June 2020;[32] and
(c) the hand, plastic and reconstructive surgeon, Mr Thomas Robbins, who initially prepared a report “on the papers” without actually examining the plaintiff or consulting with her.[33] Mr Robbins actually examined the plaintiff on 16 September 2021.[34]
[31]See exhibit “A” – report of Associate Professor Anthony Buzzard dated 9 September 2020 at pages 9-13 DCB
[32]See exhibit “A” – report of Dr Richard Prytula dated 25 June 2020 at pages 16-27 DCB
[33]See exhibit “A” – report of Mr Thomas Robbins dated 19 May 2021 at pages 39-43 DCB
[34]See exhibit “A” – report of Mr Thomas Robbins dated 23 September 2021, at pages 44-50 DCB
42Before turning to those reports, I also refer to the following documents contained in the Defendant’s Court Book:
(a) Certificate of Opinion from a Medical Panel, dated 30 November 2020; and
(b) Reasons for Opinion of the Medical Panel, dated 1 October 2020.[35]
[35]See exhibit “A” at pages 28-38 DCB
43Medical questions were referred to the Medical Panel by the insurer on 1 October 2020. Such questions were pursuant to the Act and were concerned with whether the plaintiff had suffered any degree of whole person impairment resulting from the subject injury. The Medical Panel comprised of the following: Dr Robert Shields, a psychiatrist; Dr Robin Hunter, a rehabilitation physician and Mr Russell Corlett, a plastic surgeon.
44Ultimately, the Medical Panel formed the opinion that the plaintiff had suffered a 10 per cent whole person impairment resulting from the “accepted right hand, index and middle finger injury”[36] and that such impairment was “permanent”. Also, the Medical Panel formed the opinion that there was 0 per cent psychiatric impairment. It was common ground that the plaintiff suffered injury to her right index and middle fingers and psychological consequences were in respect to the subject injury on 20 November 2018.
[36]See Certificate of Opinion of the Medical Panel, dated 30 November 2020 at page 28 DCB
45When examined by Dr Hunter and Mr Corlett on 24 November 2020, a history was obtained from the plaintiff, with the Panel noting that she had been admitted to the St Vincent’s Hospital and undergone surgery on 21 November 2018 to repair the middle finger flexor digitorum superficialis and flexor digitorum profundus tendons, and repair the 100 per cent laceration of common palmar digital nerve and 25 per cent laceration of the radial common palmar digital artery, and repair of the ring finger radial digital nerve. The Medical Panel recorded the current symptoms of the plaintiff to be:
“… [The plaintiff] told the Panel that she has constant pain in the scar on the palm of her right hand. She describes the pain as being a numbing, sharp pain and she feels that her palm is contracted and taut due to the scar. The scar is raised and she finds it unsightly. She is conscious of the scar at all times and when doing activities with her right hand. She manages the scar with massage and uses a vibration device to break up scar tissue. The pain does not wake her at night. The pain is exacerbated by activities such as walking and writing. She wears a pressure glove on her right hand most of the time.
… [The plaintiff] told the Panel that she has loss of sensation in her index and middle finger which disrupts her activities on a daily basis. She needs to plan how she is going to perform activities as she lacks confidence in using her right hand. This is particularly with activities such as cooking and chopping.
… [The plaintiff] told the Panel that she has reduced grip strength in her right hand.
… [The plaintiff] told the Panel that her range of motion in her right wrist and fingers is normal and she has no triggering of her right middle or index finger.
… [The plaintiff] told the Panel that she is independent with all personal care activities but avoids domestic activities such as vacuuming and gardening, as she feels overwhelmed by managing the pain and sensory loss. She drives a car mainly using her left hand.
… [The plaintiff] told the Panel that she is currently attending hand therapy once a week. The therapy consists of exercise, massage and dry needling. She does a home exercise program including the use of putty and dumbbells to strengthen the hand. She has recently started attending an osteopath for right wrist pain on a weekly basis.”[37]
(My emphasis.)
[37]See exhibit “A” – Medical Panel Reasons for Opinion dated 30 November 2020, at pages 30 DCB
46I also refer to findings made by the Medical Panel on examination:
“•Healed irregular scar over the mid palm. Proximal traumatic scar 4.5cm and curved distal surgical scar 3.5cm, with mild thickening in the mid palm.
•Middle finger active ranges of motion were within normal limits: DIP 0 degrees to 70 degrees, PIP 0 degrees to 100 degrees, MP +20 degrees to 90 degrees.
•Index finger active ranges of motion were within normal limits: DIP 0 degrees to 90 degrees, PIP 0 degrees to 100 degrees, MP +20 degrees to 90 degrees.
•2 point discrimination indicated total transverse sensory loss over the radial and ulnar side of the right middle finger from MP joint to tip of finger (100% digit length).
•2 point discrimination also indicated total longitudinal sensory loss over the ulnar side of the right index finger from MP joint to tip of finger. Sensation over the radial side was normal (100% digit length).
•Grip strength left 45, 12, 10 and right 40, 30, 38 limited by pain in the right palm and variable effort.
• Finger flexion/extension and intrinsic power normal.
• Wrist range of motion normal.”[38]
(My emphasis.)
[38]See exhibit “A” – Medical Panel Reasons for Opinion dated 30 November 2020, at pages 34 DCB
47Ultimately, the Medical Panel stated:
“The Panel concluded [the plaintiff] suffered from a soft tissue injury to the right hand treated surgically with digit sensory loss and scarring affecting the right index and middle fingers, relevant to the accepted physical injuries.
The Panel accepted … [the plaintiff’s] history that her right hand pain has not changed and that the likelihood of her proceeding with further treatment is less than 25%. The Panel considered that [the plaintiff’s] right hand condition is unlikely to change substantially in the next year with or without medical treatment, so concluded … [the plaintiff’s] medical condition is stable.”[39]
(My emphasis.)
[39]See exhibit “A” – Medical Panel Reasons for Opinion dated 30 November 2020, at pages 35 DCB
48Preceding the Medical Panel’s determination in relation to her impairment (which is binding on the parties in relation to the statutory benefit claim for permanent impairment), the plaintiff was examined on behalf of the defendant by Associate Professor Buzzard and Dr Prytula for the purposes of an “independent impairment assessment”.
49When examined by Associate Professor Buzzard, the plaintiff gave a history of slipping and falling while carrying a ceramic jug, landing on the right side of her body, causing the ceramic jug to lacerate her right hand. At the time of the examination, she complained of right index and middle finger numbness which affected the volar aspect of both digits and, to a lesser extent, the dorsal aspect of those digits. In particular, she noted that, because of the numbness, she has burnt herself and also dropped things. The plaintiff also complained of pain in the palm of the right hand at the site of the injury. Associate Professor Buzzard reports that such pain is “static” and that “she doesn’t take medications for it”.[40]
[40]See exhibit “A” – report of Associate Professor Anthony Buzzard, at page 10 DCB
50At that consultation, Associate Professor Buzzard also obtained a history from the plaintiff as to her right-thumb injury. At the time of the consultation, the plaintiff complained that she had some numbness in the radial aspect of the right thumb following that injury.
51On examination, Associate Professor Buzzard records:
(a) that he found, on the volar aspect of the right hand, there was a 10-centimetre-long sinuous scar resulting from the subject injury and subsequent treatment;
(b) on the dorsal aspect of her right hand, there was a 2-centimetre-long recent scar, which was said to be due to a cooking burn;
(c) Associate Professor Buzzard found a full range of movements of all the joints of the forearms and hands, measured using a goniometer. He carried out grip-strength tests in the manner described, and on the right side the findings were 16, 14 and 18 kilograms, whereas on the left side the findings were 32, 26 and 22 kilograms;
(d) he tested sensation and found there was a complete sensory loss on the volar aspect of the right middle finger. There appeared to be some inconsistently-altered sensation in the dorsal aspect of the middle and index fingers.
52Under the heading “ASSESSMENT”, Associate Professor Buzzard stated:
“I think that … [the plaintiff] did suffer from a laceration to the right-hand palm as a result of the accident in question ... That laceration involved complete division of the flexor digitorum superficialis and flexor digitorum profundus to the right middle finger. It also involved complete division of the palmar digital nerves to that finger and partial arterial problems.
She has made a good recovery from this problem but still has some sensory deficit, as is described above. At this stage, I don’t think that this is likely to change.
…
So far as her employment capacity is concerned, I think it is reasonable to accept that she needs to be very careful not to inadvertently traumatise the affected areas. She appears to be aware of that. This situation is not likely to change. I think that she is physically capable of carrying out pre-injury employment.”[41]
(My emphasis.)
[41]See report of Associate Professor Buzzard, dated 9 September 2020 at pages 12-13 DCB
53When consulting Dr Prytula, the plaintiff gave a history of the injury. Dr Prytula made a mental note examination and ultimately formed the view the plaintiff suffered from a mild adjustment disorder with mixed anxiety and depressed mood. He considered such condition to result from the psychiatric injury.
54When Mr Robbins prepared his first report, dated 19 May 2021 “on the papers”, he had available the report of Associate Professor Buzzard, dated 9 September 2020, the letters from St Vincent’s Hospital detailing the nature of the surgery and the rehabilitation, the Medical Panel’s answers to questions and the Reasons for Decision and a letter from the plastic surgeon, Mr Ek, dated 19 October 2020.
55On the basis of this material, Mr Robbins responded to various questions posed by the solicitors acting for the defendant. I set out such questions and answers as follows:
“1. Based on the enclosed material, what is your understanding of the worker’s right hand injuries? Please refer to each injury / part of the hand separately, and include reference to the right thumb injury.
Right-hand: On 20 November 2018 she sustained a laceration to the palm of her right hand. This required repair of the flexor tendons of the right middle finger and two digital nerves (according to the operation report).
With respect to the accident of 5 June 2020, when the worker apparently had lacerated her thumb, I note that the quote from Mr Thomas confirmed diminished sensation in the worker’s middle and index fingers without mentioning any diminished sensation in the thumb, and then on 19 June he requested funding to repair the radial digital nerve of the thumb. I find this confusing.
Mr Buzzard in his report indicated diminished sensation in the thumb but there was no mention of it by Mr Ek in his letter of 19 October 2020, although he confirmed reduced sensations in the right middle and index fingers.
There was also no mention of nerve injury to the right thumb by the Panel in its determination.
The injury of 2020 to the right thumb is not relevant to the injury of November 2018.
With respect to the injury of 2018, the worker sustained a lacerated palm of her right hand requiring repair of both flexor tendons of the right middle finger and repair of two digital nerves (according to the operation notes of 21 November 2018).
From the photographs, there is a serpiginous scar on the palm of the hand, most of which is fine and mature but the distal 5 cm is hypertrophic. There was a slightly reduced extension of the index and middle fingers. Extension is reduced by 30 degrees at the proximal interphalangeal joints and the distal phalangeal joints. There is no photograph indicating flexion, but I understand from the information provided, that she has full flexion.
2. What is your understanding of the surgery that the worker had?
a.Do people tend to experience any ongoing symptoms following this type of surgery? In particular, do people tend to experience any ongoing neurological problems following surgery?
After division and repair of digital nerves, sensation is still diminished and recovery is slow.
b.Would you expect the worker’s neurological problems, e.g., the diminished sensation in her hand, triggering, / pain in the middle finger, to have resolved?
No. It takes six to seven years for maximum recovery of the nerves. Mr Ek, in his letter, indicated that there was a Tinel sign for the whole length of the fingers. This suggests a very good prognosis and a relatively rapid recovery.
c. If yes to (b), over what timeframe would you expect this to resolve?
The answer was no, but six to seven years is not uncommon.
3. What is your understanding of the usual progression of these types of injuries? Do they tend to improve over a particular timeframe?
Yes, when repaired.
4. What is your understanding of the worker’s right thumb injury? What impact do you believe it has on her day-to-day activities, with particular reference to her grip strength and fine motor movement?
Please see my response to Question 1. There would be no impact on the worker’s grip.
5. Based on your experience, and with specific reference to the right middle finger, index, and palm injury:
a.What long-term consequences might a person experience after this surgery?
There is gradual improvement after repair of a nerve over time, usually six to seven years for maximum recovery, but continuous improvement particularly with protective sensation then gradually diminishing distance between two point discrimination.
b.What is the long-term prognosis following this type of injury?
I anticipate the worker will make a very good, and possibly complete, recovery.
c.What is the long-term prognosis following this type of surgery?
See my answer to Question 5b.
d.Would you expect the worker to use a compression / pressure glove for this type of injury? (If yes, please explain your response and tell us why a compression glove would assist? In particular, is this for the middle finger, index finger, palm scar, or right thumb?).
No I would not. The hypertrophic scar on the palm can be tender. It may mature with time. There is local treatment for it in the form of steroid injections and silastic sheeting and compression which may help and encourage maturation. Resolution on maturation of scars can be improved with pressure dressing, but a soft glove as the worker was wearing would have no effect.
e. Would you expect the worker to experience any of the following consequences / limitations? If yes, please explain why.
i.Constant pain to the palm and fingers.
No.
ii. Decreased sensation and feeling in the right index finger and middle finger
Yes, but improving.
iii. Pulling sensation near the scar site, which she likens to a “needle” pulling her.
Possible. The scar did look tight.
iv.Using a keyboard.
I see no reason why she could not use a keyboard.
v.Reading, the worker says that she has difficulty turning the ages of a book.
I find that statement unbelievable.
vi. Walking, the worker says that she has difficulty walking because of pain.
I find that very hard to believe.
vii.Exercising, the worker says that she has problems gripping weights and boxing.
I see no reason why she would have these problems.
viii.Driving, the worker says that she avoids using her right hand where possible.
I see no reason why she could not use her right hand while driving.
ix.Problems with fine motor movement / manipulation, particularly with holding and grasping holdings. She deposed that ‘I will often drop [items] unless I can maintain eyesight with the item. I regularly drop items around home such as utensils, toiletries, and glasses.’
The worker has diminished sensation of her index and middle fingers, but she has normal sensation in the other digits. I believe she is exaggerating her difficulties here.
x. Attending to personal and household ADLS, such as cooking, cleaning, washing dishes, handing clothes, cleaning the shower and toilet, vacuuming, and changing the bed.
All I can say is that in my experience over the years with people with such injury at this stage they have no trouble with these chores.
6.Do you think the worker would have difficulty with any of the above activities because of her right thumb injury? If yes, please explain which of the above activities you think she would have difficulty with and why?
No, I do not.
7. Do you recommend any further treatment for the worker? (physiotherapy, medication etc.).
No, I would not recommend physiotherapy or medications except for possible treatment of the hypertrophic scar.
8. Is there anything else you would like to add?
Having read the Medical Panel’s report, the impression was that the worker is deliberately exaggerating difficulties.”[42]
[42]See exhibit “A” – report of Mr Thomas Robbins dated 19 May 2021, at pages 40-43 DCB
56Mr Robbins ultimately examined the plaintiff on 16 September 2021 and at that examination, Mr Robbins notes that the plaintiff confirmed she was right-hand dominant. Most of the report of Mr Robbins is in response to various questions posed by the solicitors for the defendant. Mr Robbins’ evidence is, of course, critical to the position of the defendant and in the circumstances, I set out the various questions posed and the answers given by Mr Robbins as follows:
“1 The history provided by the [plaintiff] as to:-
(a) The onset and progress of the [plaintiff’s] symptoms;
The [plaintiff] was employed by City Wine Shop starting in September 2018. The accident occurred on 20 November 2018 when in the normal course of her duties, the [plaintiff] slipped on a wet floor while carrying a ceramic milk jug. She fell. The milk jug broke, lacerating the palm of her right hand. She went to St Vincent’s Hospital and surgery was performed the following day.
She was followed up every six weeks until the surgeon was happy with the wound. She was then referred to a hand therapist.
The … [plaintiff] says she is still attending a hand therapist weekly. She receives ultrasound for treatment of the scar and exercises and ‘light scar treatment’.
In the injury there was damage to deep structures. The letter from St Vincent’s Hospital legal department dated 24 April (in documents) says the [plaintiff] had a repair of the palmar laceration and the superficial and deep tendons of the middle finger and a repair of a radial digital nerve. The report does not say which finger in which the nerve was damaged.
She said she later consulted two surgeons whose names she cannot remember at least a year ago regarding the scar and she was told that ‘it was not worth the risk’.
She returned to work but left because, she said, she was bullied.
(b) Whether the … [plaintiff] is presently working (whether full-time, part-time, casual or voluntary) and if so, details of their current employment including duties performed;
She is presently working full-time 40 hours a week in a pharmacy lab drug testing. She started in November 2020. The job involves analysing drug samples. It involves using pipettes and doing some computer typing. The … [plaintiff] said she had other jobs before that including a café, but she was terminated from that job when she lacerated her right thumb. This injury is not relevant to the present report (except that the [plaintiff] says she intends to make another claim regarding it).
(c) Treatment received;
She had surgical repair at St Vincent’s Hospital. She still sees a hand therapist weekly for the scar treatment. She also sees an osteopath for muscle treatment and scar treatment and she attends a psychologist. She said she self-referred to these people but says that the fees are paid by WorkSafe.
(d) The … [plaintiff’s] current complaints;
The [plaintiff] wears a glove at work. She complains of pain in the palm over the distal scar. She complains of numbness over the palmar surface of the middle finger and the ulnar half of the palmar surface of the adjacent index finger. She also complains of numbness over all the dorsum of both these fingers.
She said she lives alone. She says she has trouble washing her hair and applying makeup. She says she has to do this with the left hand because of tenderness in her right palm. She says she is not confident that she has full control of the injured hand. She said she did boxing but cannot do it now because of pain and numbness. When walking she says she has pain in her hand. She says she is clumsy at work. She wears a glove but has not told them at her present work of this claim. She says when she is working she can feel the veins in her hand pumping. At gym she can only now lift small weights because she says she has ‘no strength’. She still says she cannot turn the pages of the book when reading because of the numbness in her finger. She said she can now write but the writing is scrappy and associated with pain in her hand after writing one page. She says the pain is in her scar. She also complains that her fingers go stiff.
2Your findings on examination and review of the right hand condition. Please make specific comment on whether the … [plaintiff] attends wearing a compression bandage / glove.
On examination, the [plaintiff] was wearing a soft glove but it had no compression. This was removed for examination.
On examination of her hand there was a very fine almost unnoticeable 7 cm scar extending from the middle of the palm in towards the forearm. She says this gives her no trouble and was the scar of the accident. There is an angulated scar extending from the middle of her palm into the distal palm. This is slightly hypertrophic and tight. She says this was a scar of surgical extension at the time of repair. She complains of numbness in the central area of the palm around the distal scar. She complains of numbness and on testing there is numbness of the volar surface of the middle finger on both sides and the ulnar side of the index finger. She also complains of numbness along all of the dorsal surfaces of both the index and middle fingers. Two-point test on the injured part of the palm and the volar and dorsal surface of both hands indicated she could only discriminate it as one sharp point when the points were 1.5 cm apart. This indicates incomplete recovery of the nerve. She has full flexion and extension of all her digits, indicating an excellent result from the tendon repair (that is if they were repaired and if they were completely divided).
3 Your diagnosis.
The [plaintiff] has full recovery of the tendon function after the repair. She has diminished feelings on the volar surface of the right middle finger and half of the volar surface of the adjacent index finger. The nerve repair has now completely recovered but may be progressing. I cannot explain the complaint of numbness in the dorsum of her fingers as it is not anatomically rational for this injury.
4 The … [plaintiff’s prognosis.
(a) In your previous report, we asked whether you would expect the [plaintiff’s] neurological problems to have resolved. You answered – ‘No. It takes six to seven years for maximum recovery of the nerves. Mr Ek, in his letter, indicated that there was a Tinel sign for the whole length of the fingers. This suggests a very good prognosis and a relatively rapid recovery.’ Please comment on whether your examination of the … [plaintiff] has caused you to change your view?
With time I believe the hypertrophic scar should mature and settle. Nerve recovery is uncertain. Please see my previous report. I do not change my opinion from the previous report. Digital nerves at maximum recovery rate of around 1 mm or less a day but this is only for protective sensation and there is a progressive increase as the distance between two-point discrimination narrows down to normal 2 mm. Maximum recovery if it occurs, takes six to seven years. My authority on this is Sir Sydney Sunderland, former Professor of Anatomy at Melbourne University and world authority in nerve injury and recovery (personal communication).
I believe that her nerves may completely recover with time but also the recovery may not be complete but there should be further improvement. I have no reason to change my opinion. I would encourage no treatment except for self-applied massage to the scar and the worker encouraged to use the hand as much as possible as this encourages nerve recovery.
(b)Similarly, in your previous report we asked you what the long term prognosis following this type of injury is. You said: ‘I anticipate the … [the plaintiff] will make a very good, and possibly complete, recovery.’ Please comment on whether your examination of the … [the plaintiff] has caused you to change your view?
No. I have not changed my view.
(c)What treatment would you recommend for the treatment?
Apart from self-massaging of the scar no other treatment.
(d)Is the … [plaintiff’s] current treatment regime, including treatment to the scar across her palm, appropriate?
I do not believe the current (hand therapy) treatment regime is appropriate.
5 To what extent (if any) are the … [plaintiff’s] symptoms or level of impairment due to functional overlay, exaggeration, psychological or psychosomatic factors?
I believe the … [plaintiff’s] complaints to a large extent are greatly exaggerated and my impression was that it was manipulative rather than psychological.
6Whether you consider that the … [plaintiff’s] current level of impairment will continue into the foreseeable future.
I believe the current level of impairment will improve. Her hypertrophic scar will settle and the nerve injury will improve over time. I cannot say that it will be complete but it should improve.
7 In your previous report, you commented on the following consequences / limitations. We ask that you review your previous comments having now had the benefit of examining the … [plaintiff]. Would you expect the [plaintiff] to experience any of the following consequences / limitations? If yes, please explain why?
(a) Constant pain to the palm and the fingers?
There may be very slight tenderness and tightness in the palmar scar but minimal. Interestingly, she complains of numbness around that area. I believe it will improve physically with time.
(b)Decreased sensation and feeling in the right index finger and middle finger? In your previous report, you said that this was improving. Please comment on this and any progress that the [plaintiff] has made.
It is difficult to assess progress. The [plaintiff] complains of numbness in the dorsum of her index and middle fingers. There is no anatomical explanation for this.
(c)Pulling sensation near the scar site, which she likens to a ‘needle’ pulling her.
There is a tightness of the hypertrophic scar but this should be minimal and not inhibitive.
(d)Using a keyboard.
The numbness in the fingertips may interfere with use to some extent.
(e) Reading, the … [plaintiff] says that she has difficulty turning the pages of a book.
The fingertip numbness could theoretically affect turning of pages when reading but there are multiple ways to overcome this.
(f) Walking, the … [plaintiff] says that she has difficulty walking because of pain.
In my experience with similar injuries over many years, I have never come across this complaint.
(g) Exercising, the … [plaintiff] says that she has problems gripping weights and boxing.
Again I believe this complaint is a severe exaggeration.
(h) Driving, the [plaintiff] says that she avoids using her right hand where possible.
Please see my answers to (f) and (g).
(i)Problems with fine motor movement / manipulation, particularly with holding and grasping holdings. She deposed that ‘I will often drop [items] unless I can maintain eyesight with the item. I regularly drop items around home such as utensils, toiletries, and glasses.’
Again, she has diminished sensation of the fingertips of the index and middle fingers but I believe her complaint of this and the effects of it, as she claims, is an exaggeration.
(j) Attending to personal and household ADLS, such as cooking, cleaning, washing dishes, handing clothes, cleaning the shower and toilet, vacuuming, and changing the bed.
Again, her present impairment I do not believe would explain these claimed difficulties.
8Did the … [plaintiff] wear a compression bandage (or similar) to your examination? If yes, is this appropriate for her condition (if any)?
The … [plaintiff] was wearing a soft glove with no significant compression.”[43]
(My emphasis.)
[43]See exhibit “A” – report of Mr Robbins dated 23 September 2021, at pages 44-50 DCB
The cross-examination of the Plaintiff
57Under cross-examination, the plaintiff gave the following salient evidence:
· The plaintiff confirmed that her work duties with the employer basically involved “waitressing”,[44] which essentially involved serving drinks.
[44]T13, L11-13
· The plaintiff confirmed that she was off work for three months, after which she returned to work with the employer for a month or so, after which she left and commenced work at the Milton Wine Bar in Malvern Road, Malvern. At that job, she served wine, did normal duties behind the counter, cleaned up and served food, and when queried as to whether it was similar to the work she did with the employer, she responded “[i]t was similar but it was more wine related”.[45] The plaintiff also confirmed she was in that job for a few months before leaving because she was not getting enough shifts to cover herself, after which she obtained employment with the Australian Wine Agencies in about July 2019.
[45]T14, L26-27
· The plaintiff explained that job involved selling wine to bars, to Dan Murphy’s, restaurants and other various places which were on her then employer’s lists. The plaintiff described herself as being in charge of “basically sales and hosting tastings”.[46] Such job involved a fair bit of travelling.
[46]T15, L21-22
· The plaintiff accepted that her role was that of “sales manager” and that it was “definitely” moving up in the progression of the wine industry from the various wine bars in which she had worked.
· Her driving involved her going from her boss’s house which was “[h]ead office” and then from there she would travel to various clients and estimated that she was on the road for a “couple of hours a day”.[47]
[47]T16, L6-7
· The plaintiff confirmed that she lost her job due to COVID in about March 2020, after which she worked at the Hunters Harvest in Seddon, where she just served coffee, and with the plaintiff noting that the job “required little to no effort but it got me out of the house and it got me paid”.[48]
[48]T17, 6-8
· The plaintiff stated that she was not involved with the preparation of food and had very minimal duties in relation to cleaning up any tables or premises. The plaintiff confirmed that particular job involved working thirty hours a week, up to, on occasion, forty hours a week.
· As to the query as to why that job came to an end, with the suggestion it was due to COVID, the plaintiff responded:
A:“Yes, it was due to COVID, but I think it was due to my - my injury.
Q:Was that around August 2020 that you stopped working.
A:That sounds right.
Q:When you say, ‘my injury’, obviously, there was an injury in June of 2020 as part of this job?‑‑‑
A:Yes.
Q:And that was when you lacerated the right thumb, unfortunately?‑‑‑
A:Yes.
Q:Tell His Honour a little bit about that injury, please?‑‑‑
A:I was helping the chef clean up and unfortunately, instead of putting all the knives blade (sic) in to the sink, one of the knives was facing up with the blade, so it was hot soapy water and as I reached in, I cut myself, so that is how the injury happened.
Q:I believe you severed a nerve, as well, as part of that injury, in the thumb?‑‑‑
A:Yes.
Q:And attended St Vincent’s Hospital?‑‑‑
A:Yes, for surgery.
Q:Had surgery, yes, and you later on made a WorkCover claim in respect of this surgery?‑‑‑
A:Correct.
Q:And received some compensation, yes?‑‑‑
A:No, I didn’t receive compensation. I received a WorkCover payment, as in, like, payment, as in, like, I’m working. Yep.
Q:And payment for loss of work. Is that right, loss of work hours?‑‑‑
A:Yep.
Q:And also a payment for medical expenses for this one?‑‑‑
A:It was covered, yeah.
Q:Paid for your surgery, I think, at St Vincent’s?‑‑‑
A:Yes.
Q:And also the cost of your hand therapy?‑‑‑
A:Yes.”
HIS H”ONOUR:
Q:This is all very interesting, but what do you say is the relevance of all that?---"
MS DE GUIO:
A:“Yes, Your Honour, it goes to my submission later on at the closing, Your Honour, in relation to the thumb injury ‑ ‑ ‑“
HIS HONOUR:
Q:“It goes to what, sorry?---"
MS DE GUIO:
A:“It will go to my submission in closing, Your Honour, in relation to the thumb injury and subsequent effects of that.”
HIS HONOUR:
“I’ll give you some leeway, but most of the stuff you are referring to is just confirming what is in the affidavit, but anyway, keep on going.”[49]
[49]T17, L26 ꟷ T19, L3
58The plaintiff then confirmed that she commenced work as a analytical chemist working forty hours per week, but was presently on unpaid leave following the Pfizer blood clot that she suffered.
59The plaintiff was queried about her role as an analytical chemist, and the following evidence was given:
MS DE GUIO:
Q:“Prior to this blood clot issue, how were you performing in this role? Were you doing well?‑‑‑
A:Prior to that, sorry?
Q:Yes?‑‑‑
A:I would say great. I have a good work ethic. I am very knowledgeable in what I do and I put in 100%.
Q:A role that really utilises the Bachelor of Science that you had?‑‑‑
A:Yes.
Q:Did you enjoy the role?‑‑‑
A:Yes.
Q:You’ve described at paragraph 23 of your first affidavit the details involved in this job and I won’t take you laboriously through that but it involves operating test tubes and technical machinery, instruments, et cetera. By and large, given that you’ve been able to maintain this job for the period that you have, a good part of a year, is that right?‑‑‑
A:Yes.
Q:Before you stopped. I suggest to you that whilst there might have been some discomfort in terms of your hand, you’ve been able to manage it though, have you, these duties?---
A:I wouldn’t use the word ‘discomfort’. I would use the word ‘pain’. But I do what I can and I do it at my own pace.
Q:But you’ve able to do it (indistinct) ‑ ‑ ‑”
HIS HONOUR:
Q:“Sorry, just if I could interrupt. Could you describe when you were doing your job and just so I understand, is the job you’re doing is the one which you’ve had your tertiary education in, is that correct?---
A:Correct.
Q:I think you’ve told counsel already that you enjoy the type of work you’re doing, is that right?‑‑‑
A:Correct.
Q:I just want to hear a little bit more about what you - when you said the word, ‘pain’, how frequently would you experience pain in your day to day activities at your workplace?‑‑‑
A:My pain never goes away, Your Honour. It is there when I wake up. It is there when I go asleep. Ever since my injury, I have been in pain.
So it is a matter of managing that pain, whether it’s through pills or whether it’s through aids that I have or going to the osteo. It’s all pain management. So when I have a task to - to do at work, I have to do it. I have to earn a living and I have to make a - a path for myself in society. It’s a matter of just doing the job but the pain is there and yes, I can get through the day but that doesn’t mean that I’m not affected.”[50]
[50]T20, L14 ꟷ T21, L24
60When queried as to whether or not the plaintiff wore the glove on her right hand, she stated that she wore latex gloves at work and that she wore a smaller size on her right hand, which gives compression to the hand and makes for better feeling when she is doing her job. The plaintiff added that “outside of work” when she is going for a walk, she puts on a compression glove on one side.[51]
(d) what the objective evidence shows about the disabling effect of the pain.[91]
[91]Reference was made to Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108 at paragraph [171]
12 As to (a), 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.[92] The Court will make its own assessment of the plaintiff’s credibility if he/she gives evidence,[93] and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.[94]
[92]Reference was made to Dwyer v Calco Timbers Pty Ltd (No 2 (op cit) at paragraph [8]; Sejranovic v Berkeley Challenge Pty Ltd (op cit) at paragraph [171]; Sabanovic v Atco Controls Pty Ltd [2009] VSCA 143 at paragraphs [142]-[145]
[93]Reference was made to Dwyer v Calco Timbers Pty Ltd (No 2) (op cit) at paragraph [8]; Sabanovic v Atco Controls Pty Ltd (op cit) at paragraph [145]
[94]Reference was made to Sabanovic v Atco Controls Pty Ltd (op cit) at paragraph [142]
13 As to (d), the cases recognise that some plaintiffs may be more ‘stoical’ than others. This means that such a plaintiff is, to an unusual degree, prepared to endure pain in order to maintain a desired level of function. The injury suffered by the ‘stoical’ plaintiff is not to be viewed as any the less serious merely because he/she manages to remain more active than might have been expected given the level of pain.[95] In such a case, the ‘objective’ evidence of the disabling effect may be of less significance than usual.
The disabling effect of pain
14 As to the disabling effect of the pain, it is necessary to identify the extent to which the pain limits the plaintiff’s physical functioning, and interferes with the plaintiff’s enjoyment of life. As this Court (per Ashley JA) said in Dwyer (No 2): ‘… [I]mpairment is concerned with what has been lost. But the significance of what has been lost … may be informed, to an extent, by what is retained.’[96]
15 As to capacity for work, it is necessary to identify whether and to what extent the plaintiff is prevented by the pain from performing the duties of his/her previous employment. The fact that the plaintiff has been able to return to full-time employment does not preclude an affirmative finding of serious injury. It is simply one of the matters to be taken into account.[97] What matters in this regard is the extent to which ‘an area of work which [the plaintiff] enjoyed has been closed off to [him or her].’”[98]
(My emphasis.)
(d) I again refer to Ellis, wherein in the Court of Appeal expanded on the earlier comments in Haden, when it stated:
“… As has repeatedly been held, the inability of a worker to engage in employment which he or she enjoyed is a matter that may properly be taken into account in assessing pain and suffering and loss of enjoyment of life. Similarly, frustration at being unable to engage in former activities (work or leisure) may be a matter properly to be taken into account in assessing pain and suffering consequences.”[99]
[95]Reference was made to Dwyer v Calco Timbers Pty Ltd (No 2) (op cit) at paragraph [3]
[96]Reference was made to Dwyer v Calco Timbers Pty Ltd (No 2) (op cit) at paragraph [27]; see also Stijepic v Once Force Group Aust Pty Ltd & Anor (op cit) at paragraph [44]
[97]Reference was made to Stijepic v Once Force Group Aust Pty Ltd & Anor (op cit) at paragraph [47]; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [71]
[98]Reference was made to Dwyer v Calco Timbers Pty Ltd (No 2) (op cit) at paragraph [25]
[99]See also Ellis Management Services Pty Ltd v Taylor (op cit) at paragraph [35]
104Before setting out my findings, it is apposite to make findings on the credibility and reliability of the plaintiff. When queried by the Court as to whether there was “any reason I shouldn’t believe her”, counsel for the plaintiff stated:
“… there has certainly been parts of the plaintiff’s application where, in my submission, the plaintiff has been less than frank, in particular in relation to the jetski incident … .”[100]
[100]See T16, L2-7
105After some discussion about the jetski incident, I again queried counsel for the defendant as to whether there was anything else that I should have concerns about the credit of the plaintiff, to which counsel for the defendant stated:
“Your Honour, the plaintiff’s evidence in relation to pain aside, part of the plaintiff’s evidence in relation to the consequences of the claimed injury is in relation to the area of treatment and one of the, I would have thought, bigger areas of ongoing treatment in this particular case is the ongoing consultation with the osteopath which we would acknowledge given an injury of this nature does encompass the whole hand. It’s a very difficult exercise in this case, Your Honour. I’m not suggesting it’s an easy one and for that reason it’s almost not something that’s been addressed in any of the medical material … .”[101]
[101]T17, L24 ꟷ T18, L4
106I also refer to the reports of the plastic and reconstructive surgeon, Mr Thomas Robbins – the first being dated 19 May 2021, which was prepared “on the papers” without actually observing the plaintiff and making an examination of her, and a second report dated 23 September 2021, following examination on 16 September 2021.
107In the first report, Mr Robbins was posed various questions by the solicitors acting for the defendant, one of which was:
“Problems with fine motor movement / manipulation, particularly with holding and grasping holdings. She deposed that “I will often drop [items] unless I can maintain eyesight with the item. I regularly drop items around home such as utensils, toiletries, and glasses.”
108In response to such question, Mr Robbins stated:
“The worker has diminished sensation of her index and middle fingers, but she has normal sensation in the other digits. I believe she is exaggerating her difficulties here.”[102]
[102]See report of Mr Robbins dated 19 May 2021, Question 5(e)(ix), at page 43 DCB
109In the same report, Mr Robbins was also queried by the solicitors for the defendant as to whether “there [was] anything else you would like to add?”, to which Mr Robbins states:
“Having read the Medical Panel’s report, the impression was that the worker is deliberately exaggerating difficulties.”[103]
[103]Op cit, Question 8, at page 43 DCB
110In passing, I have assumed that what Mr Robbins means is that on his reading of the complaints made by the plaintiff to the Medical Panel, she was consciously exaggerating her symptoms. It should be noted that when one reads the Medical Panel’s Reasons for Decision, there is no suggestion of either “deliberate exaggeration” or, for that matter, any “exaggeration”.
111In his second report, Mr Robbins also responds to various questions posed by the solicitors acting for the defendant. In particular, at Question 7(g), the solicitors ask Mr Robbins to comment on the complaint of the plaintiff that she has problems gripping weights and boxing (in the gym). Mr Robbins responds:
“Again I believe this complaint is a severe exaggeration.”[104]
[104]See report of Mr Thomas Robbins dated 23 September 2021, in response to Question 7(g), at page 49 DCB
112Also in his second report, Mr Robbins is asked to comment on the problems alleged by the plaintiff in relation to fine motor movement/manipulation, particularly with holding and grasping holdings. The solicitors informed Mr Robbins that the plaintiff had deposed that:
“I will often drop [items] unless I can maintain eyesight with the item. I regularly drop items around home such as utensils, toiletries, and glasses.”
113In response to this, Mr Robbins stated:
“Again, she has diminished sensation of the fingertips of the index and middle fingers but I believe her complaint of this and the effects of it, as she claims, is an exaggeration.”[105]
[105]Op cit, in response to Question 7(i) at page 49 DCB
114In the same report, the solicitors for the defendant queried Mr Robbins as to:
“To what extent (if any) are the worker’s symptoms or level of impairment due to functional overlay, exaggeration, psychological or psychosomatic factors?”
115In response to this, Mr Robbins stated:
“I believe the worker’s complaints to a large extent are greatly exaggerated and my impression was that it was manipulative rather than psychological.”[106]
[106]Op cit, in response to Question 5 at page 48 DCB
116After having the advantage of having observed the plaintiff under cross-examination, I formed the view that she was an impressive witness who was extremely articulate. She gave her evidence in a frank and precise way and ultimately, I formed the view she was a creditworthy witness, responding to the questions put to her in an honest and responsive way.
117I never formed the view that the plaintiff was exaggerating her symptoms – rather, in a very precise way, she detailed the “problems” that she has resulting from the injury on 20 November 2018 from the relatively minor consequences which frustrate her and annoy her to the more significant consequences to her day-to-day living. At no time did I consider that the plaintiff was being “manipulative in her presentation of her case”.
118I also formed the view that, consistent with the opinion of the psychiatrist, Dr Prytula, the plaintiff most probably has suffered from a mild Adjustment Disorder, being frustrated and annoyed with the consequences of the injury suffered by her on 20 November 2018. If such be the case, I am satisfied that the pain and suffering consequences suffered by the plaintiff do have a substantial organic basis.[107]
[107]See Meadows v Lichmore Pty Ltd [2013] VSCA 201
119After a consideration of all the evidence, I make the following initial findings:
(a) The plaintiff is now a thirty-one-year-old single woman who is naturally right handed. She completed her secondary education and thereafter completed an Advanced Diploma in Fashion Design at Kangan TAFE, after which she completed a Bachelor of Science at Victoria University;
(b) On completion of her Bachelor of Science, the plaintiff initially worked as a research and development chemist at Dunlop in around 2015 for about nine months, before going on to work as a colour chemist for Wattyl Paints for around two years;
(c) In or about 2018, the plaintiff, seeking a “change of experience”, travelled overseas, and later in that year – in or about September 2018 – she commenced work as a full-time casual worker with the employer, performing basically “waitressing”[108] work, which essentially involved serving drinks;
[108]T13, L11-13
(d) On or about 20 November 2018, the plaintiff, during the course of her employment with the employer, was asked by the chef to provide him with a jug. She walked from the kitchen to the front-of-house bar, collected the ceramic jug and started to walk back to the kitchen, when her foot slipped on liquid on the wooden floor, causing her to fall to the ground. The jug which she was holding smashed into two pieces when she fell to the ground and consequently, cut her right palm area. Initially, she was assisted by the manager of the employer, who attempted first aid, after which she took an Uber ride to St Vincent’s Hospital Emergency Department, where she was admitted to the hospital. On 21 November 2018, she underwent surgery involving a repair of the right palmar lacerations and also repair of tendons, nerves and arteries to her right middle and index fingers;
The plaintiff was described as having a “successful outcome” and had routine post-operative management, being discharged from hospital on 21 November 2018. On discharge from hospital, the plaintiff initially attended Melbourne Hand Rehab from 28 November 2018 to 25 June 2019, initially twice a week for three months and thereafter approximately once per week, for treatment of her right hand injury. Such treatment involved her undergoing splinting, scar and pain management, sensory retraining, progressive movement and strengthening exercises, and return-to-work support;
(e) On her last appointment at that time, it was noted there were plans to continue weekly reviews and for the plaintiff to get a referral from her general practitioner for surgical opinion. At that time, the grip strength of the plaintiff was “R22kgL and L34kgL”[109] and she generally had movement of her little finger, although her scar was slightly dense and sensation impaired. The plaintiff was contacted by Ms Angela Cheng, the senior occupational therapist at Melbourne Hand Rehab, shortly prior to her report dated 15 April 2020, at which time she was advised by the plaintiff a second opinion had been obtained from the surgeon, who advised that she would not benefit from any surgical intervention;
[109]See report of Angela Cheng, dated 15 April 2020 at page 24 PCB
(f) At the completion of this treatment, the plaintiff asserts, and I accept, that such treatment caused her to regain movement in both her right, middle and index fingers, but she had ongoing numbness in those fingers and experienced pain in the scarring of the right palm where the surgery had been undertaken. Consistent with the advice that she had been given to keep her right hand active, the plaintiff obtained putty, appropriate banding and printouts of relevant exercises, and thereafter performed such exercises three times a day in order to improve her hand. I find that such activities also added to her ability to bend those particular fingers;
(g) During the course of her examination, the Court queried the plaintiff in relation to her pain, in particular where that pain was and how severe was the pain. In response to such questions, the plaintiff, holding up her right hand on camera, described the following:
(i)on the lower part of the right palm (nearer the wrist), there was faint scarring where the ceramic jug actually lacerated the palm;
(ii)there is a clearly separate area of scarring higher up on the right palm (at the finger end of the palm) where the surgery was undertaken on the palm and that area is a source of “constant pain”, which is generally dull but could also be sharp and have a pulling feeling;
(iii)she experiences both numbness and pain in her middle and index fingers extending into the scar area where the surgery was undertaken;
(h) On 5 June 2020, she suffered a cut to her right thumb while working at Hunters Harvest health café when she put her right hand in a sink and was cut by a sharp knife blade. Such event caused laceration of a nerve in her right thumb requiring surgery at St Vincent’s Hospital, followed by hand rehabilitation following recovery from surgery. The plaintiff gave evidence that her right thumb is not restricted in its movement and she experiences no pain in that area; however, there is reduced sensation over the left side of the right thumb which has been the case ever since that injury;
(i) The plaintiff consulted an osteopath, Dr Z Petar Fiamengo, on 21 August 2020. Dr Fiamengo reports that the plaintiff presented to his clinic with wrist/hand pain resulting from trauma to the right thumb. The plaintiff gave evidence, which I accept, that she continues to attend the osteopath on a weekly basis, and that the treatment that she now receives from the osteopath, which involves manipulation, massage and dry needling, is in relation to what she referred to as her “first injury” and that he “doesn’t touch the thumb”;
(j) The plaintiff again commenced rehabilitation with the Melbourne Hand Clinic on 9 March 2021 for further treatment in relation to symptoms suffered by her in her right palm and fingers. At that time, it is recorded that she was complaining that she was “consistently dropping things” and also to enquire “if there was anything further that could be done to manage her scars”.[110] The plaintiff attended Melbourne Hand Rehab intermittently to approximately August 2021, during which time she received treatment including custom-made thermoplastic splinting, scar and pain management, sensory retraining, progressive movement and strengthening exercises, therapeutic ultrasound, and return to work (RTW) support. Over that period of time, her grip strength was measured both in the right and left hands, and although there was fluctuation between the results, the right hand measurements were significantly less than those of the left hand;
(k) Following her right hand injury on 20 November 2018, the plaintiff was off work for approximately three months, initially returning to work with the employer around one day per week, which increased to two days per week working six hours per day, but was only able to maintain this for about one month. In particular, she did not feel supported in the workplace and subsequently obtained the following employments:
(i)employment at the Milton Wine Bar as a bar hand where she worked for about four months;
(ii)employment as a sales manager for Australian Wine Agencies, which is a distribution company, where she worked for about ten months, such role finishing in about March 2020 as a result of the COVID‑19 pandemic;
(iii)employment as a barista on a casual basis at Hunters Harvest (the employer where she suffered the injury to her right thumb);
(iv)on or around 23 November 2020, she obtained full-time work as an analytical chemist working for Racing Analytical Services and has continued to work in that role to date (subject to her being suspended until such time as she has a double vaccination). Such work requires her to use test tubes, pipettes, technical machinery and instruments that require repetitive fine motor skills;
[110]See report of Ms Isabelle Anderson dated 17 November 2021 at page 29 PCB
(l) The plaintiff gave evidence that since the subject injury, she has taken medication to ease the pain that she suffers. In particular, she gave evidence, which I accept, that the medication has fluctuated over the period of time since her injury but, in particular, over the last three months she would take Nurofen tablets both in the morning and at night, and Panadol in the afternoon;
(m) Furthermore, she gave evidence that in what she believed to be December 2021, her general practitioner prescribed her Endone because of ongoing pain, and she believes that she had been taking one tablet approximately once a week and only in circumstances where the pain gets to the point where she cannot sleep;
(n) Again, the plaintiff gave evidence, which I accept, that she was prescribed Valium in December 2021 which was to help her sleep, and, indeed, over an approximate three-week period in December 2021, she took Valium every night to help her sleep;
(o) The plaintiff accepts that she does not see her general practitioner frequently in relation to her condition, other than to obtain medication. She considers that there is no more that can be done by way of surgery, given her enquiry in 2019 when she was told the probability that further surgery would not assist her, or any other particular treatment for her pain and numbness.
120Again, after considering all of the evidence, I am satisfied that the plaintiff has suffered organic “consequences” of the injury suffered by her on 20 November 2018 – such “consequences” in varying degrees extend to an impact on her present employment, self-care, domestic and recreational activities.
121First and foremost, I do accept that, as a result of that compensable injury, the plaintiff has suffered, and continues to suffer, numbness in various areas of the right middle and index fingers, together with constant pain of varying intensity at the site of the surgery in the upper part of the right palm leading to those fingers.
122I have come to this view for the following reasons:
(a) consistent with the view I have formed that the plaintiff was a credible witness, I accept her evidence in this respect;
(b) moreover, the plaintiff has consistently complained of such palm pain and difficulties with her right and index fingers, whether it be to a treating doctor, a health professional or a medico-legal specialist.[111] No doctor, other than Mr Robbins, raises any issues as to the genuineness of the complaint of pain;
(c) it is also to be remembered that the plaintiff has been prescribed pain medication to combat the symptoms that she experiences in the palm area, the latest in December 2021 when she was prescribed Endone, which she only uses when the pain is particularly bad;
[111]See report of senior occupational therapist, Ms Angela Cheng, dated 15 April 2020, exhibit 1 at page 24 PCB; report of occupational therapist, Ms Isabelle Anderson, dated 17 November 2021, exhibit 1 at pages 30‑32 PCB; report of shoulder, elbow and wrist surgeon, Mr Ash Chehata, dated 8 February 2022, exhibit 1 at pages 32‑36 PCB; Reasons for Opinion of the Medical Panel dated 1 October 2020, exhibit A at pages 28‑38 DCB and, in particular, at page 30; report of Associate Professor Anthony Buzzard, dated 9 September 2020, exhibit A, in particular at page 10 DCB; report of Mr Thomas Robbins dated 23 September 2021 and, in particular, at question 1(d) of that report
123I do find that the pain, and particularly the numbness in the fingers experienced by the plaintiff, is “permanent” within the meaning of the phrase “permanent serious impairment”. I have come to this conclusion for the following reasons:
(a) the plaintiff asserts, and I accept, that she has had such symptoms since the date of injury – that is, nearly three-and-a-half years;
(b) the occupational therapist, Ms Isabelle Anderson, who treated the plaintiff up until about August 2021, stated:
“… [The plaintiff] continues to have limited functional use of her right hand and ongoing altered sensation in her middle and index fingers three years following her injury, it is unlikely that she will have significant ongoing improvements.”[112]
[112]See exhibit A at page 30 PCB
(c) the shoulder, elbow and wrist surgeon, Mr Ash Chehata, stated:
“The prognosis, unfortunately, after such a long period of time, is now poor.”[113]
(d) the osteopath, Dr Z Petar Fiamengo, stated, as at February 2022, that he was of the opinion that the plaintiff’s condition was “stabilised” with possible further treatment and management via Allied Health Professionals and possibly future intervention by a hand surgeon;
(e) Associate Professor Buzzard, in his report dated 9 December 2020, stated:
“She has made a good recovery from this problem but still has some sensory deficit as described above. At this stage, I don’t think is likely to change. … So far as employment capacity is concerned, I think it is reasonable to accept that she needs to be very careful not to inadvertently traumatise the affected areas. She appears to be aware of that. This situation is not likely to change. I think that she is physically capable of carrying out pre-injury employment.”[114]
[113]See exhibit 1 at page 35 PCB
[114]See exhibit A, pages 12-13 DCB
In this respect, I reject the evidence of Mr Robbins.
124Accordingly, I am satisfied as a matter of probability that the plaintiff has suffered a permanent impairment of the right hand within the meaning of the Act. The issue becomes as to whether or not that injury is “serious” within the meaning of the Act – that is to say, whether or not the organic consequences suffered by the plaintiff satisfy the narrative test.
125Because of her ongoing pain and numbness in the right palm area and the right middle and index fingers, I consider that, as a matter of probability, the plaintiff has suffered the following organic “consequences”:
(a) It must be borne in mind that the plaintiff is right handed and, on the basis of my findings, she has suffered, and will continue to suffer, constant pain in that hand of varying intensity and numbness in the two fingers. To use the words of Associate Professor Buzzard, the plaintiff needs to be “very careful not to inadvertently traumatise the affected areas”. When one considers the use of a dominant right hand, the plaintiff is exposed to a host of circumstances when she holds anything in the right hand or attempts to use the two numb fingers. I consider that to be a considerable consequence. The plaintiff is only thirty-one years of age;
(b) The plaintiff described, and I accept, that, in particular, the numb fingers gave rise to the difficulty of having an appropriate “feel”, which gives rise to difficulties being close to heat or sharp utensils. Furthermore, the plaintiff described, and I accept, that she still has difficulty with dropping things and needs to be very careful attempting to pick up anything with her right hand because of the lack of feel in those fingers. To this end, the plaintiff gave evidence, and I accept, that she has brought preservation gloves with silicon grips and she wears a glove on her right hand generally at home, to give some protection to the numb fingers and to increase her feel for articles that she is dealing with – especially small articles requiring relatively fine movement;
(c) There is ample evidence of the plaintiff undergoing grip strength testing, and although there has been variations in such testing, the plaintiff has constantly shown that grip strength in her right hand (the dominant hand) is materially less than on the left side;
(d) When working as a chemist at her present employer, she describes her work processes as “clumsy”, as she tends to drop smaller objects on occasion. The plaintiff gave evidence that she wears latex gloves as part of her employment, which does assist her, and although she can complete a day’s work, it generally takes longer than normal because of her right hand restrictions. In particular, her employment does involve typing up reports of her investigations and whereas she was a touch typist, she is now a “two-finger typist” which, again, slows down her work activities. The plaintiff accepts she enjoys her job and she would understand her employer was satisfied with her, as there has been no complaints, even though she takes her time in order to prevent giving herself pain doing something quickly;
(e) The plaintiff gave evidence, and I accept, that she has difficulties in using her right hand to do various cooking activities, chopping vegetables, washing dishes, drying clothes and cleaning generally. In particular, she has great difficulty with a vacuum cleaner, and tends to clean by other methods to avoid using a vacuum cleaner;
(f) In relation to her self-care, she also has difficulty in brushing her hair, performing make-up and showering and, in particular, she finds toileting particularly difficult as she is attempting to use her left hand rather than her right, and finds this to be uncomfortable and not to come naturally. Now, living by herself, she finds that she must take care with performing many activities, either by attempting them with her left hand or performing such duties over a longer period of time;
(g) In relation to recreational activities, she can no longer perform “boxing” in a gymnasium – an activity which she enjoyed very much prior to her injury. Such activity, wearing boxing gloves and curling the hand, exacerbates her pain in her right hand. She finds there is a host of what she can describe as annoying and frustrating things like when she reads a book, holding it in her right hand for any period of time gives rise to pain; riding a vehicle which she is capable of, but tends to concentrate with the left hand on the wheel rather than the right, and even to the extent where she enjoyed very much to do walks through bushland, such walks, which she is capable of performing obviously enough, is spoilt when she has ongoing pain in the right hand;
(h) She also finds that cold weather makes the pain worse;
(i) As already detailed, I accept the plaintiff has taken medication for pain control in varying amounts over the period from her injury and, indeed, has been prescribed (as I have already recorded) Endone by her general practitioner late last year. She also has periods where her sleep is affected because of the pain in her hand and, again, as she told the Court, she had a period last year where she took medication to help her sleep over a three-week period.
126I do refer to the report of Mr Chehata, dated 10 February 2022, wherein he was asked:
“… What are the consequences on the activities of her life apart from work as a result of the right hand injury she has sustained?”
To which he answered:
“As a result of the workplace injury, there is no doubt that she has been unable to utilise the hand in a normal fashion. At this stage, the consequence of her activities is that it has affected all aspects of her daily living. She feels that even dealing with intimate personal relationships or any type of activity involving simply applying make-up or doing her hair, toileting or using a pen or knife have been impacted as she needs to focus, not only because of the scar formation, but the ongoing pain. There has been no improvement with intensive hand therapy, Allied Health intervention and she has even sought a second opinion with regard to scar revision to see whether this would improve, but unfortunately has had no seeming positive outcomes and is now resolved that the likely final result is an ongoing and chronic modification of all of her activities.”[115]
I consider such comments consistent with the evidence before me.
[115]See report of Mr Chetata at page 37 PCB
127I turn, briefly, to some other matters:
(a) Counsel for the defendant effectively submitted that the plaintiff, especially her treatment with the osteopath or, indeed, her second bout of treatment with the occupational therapist at the Melbourne Hand Rehab, was essentially for the right thumb or, at least, a conflated condition consisting of any consequences of the right thumb injury and the subject injury.
Although there is no doubt she has had thumb treatment from the osteopath in relation to her right thumb injury shortly after the advent of that injury, I consider there is little force in this submission. The plaintiff made abundantly clear and appropriately demarcated between the subject hand injury and the right thumb injury, which has left some numbness on the left side of the thumb, but with the thumb having full movement and giving rise to no pain. Also, it is clear enough from the medico-legal specialists, and the health workers, that her complaints were limited to the palm of her right hand and the right middle and index fingers;
(b) Reference is also made by counsel for the defendant to what has been referred to as the “jetski incident”, said to give rise to credit issues. After reviewing the evidence in this matter, I reject such submission for the following reasons. First, in no way did the plaintiff prevaricate in giving her evidence about this incident and, indeed, explained the incident involved her being a passenger behind her then partner, who was driving a jetski at great speed, which ultimately caused her to fall off and injure another part of her body. There was no suggestion of ongoing consequences from that injury. Secondly, the plaintiff made plain that that was the only time she had been on a jetski. Thirdly, the plaintiff did give evidence that she was going to be shown how to drive the jetski, which seemingly never came about, and when queried whether she even knew where the brakes were, she could not say. If the point of the submission that the plaintiff considered she was capable of driving a jetski with her right hand, I am not prepared to draw that inference against her. The critical issue is that there is no evidence of her driving a jetski per se;
(c) Reference was also made, understandably, by counsel for the defendant, to Dwyer v Calco Timbers Pty Ltd (No 2)[116] and in particular to paragraph 27, whereat the Court of Appeal stressed that, in reaching a conclusion whether a worker has established he or she has suffered serious injury:
“… the significance of what has been lost, which bears upon the seriousness of consequences, may be informed, to an extent, by what is retained.”[117]
[116][2008] VSCA 260
[117](op cit) at paragraph [27]
Such proposition is relevant to this case in that, for example, the plaintiff can self-care, that is, can do her hair, can shower, can put on make-up, et cetera, but now there is more difficulty and annoyance when she has to use her left hand to perform many of these tasks. This is particularly so in the issue of toileting, wherein the plaintiff explained she is attempting to use her left hand for this activity and this gives rise to difficulty and annoyance. I take that all into account, as I do with her performance of domestic duties, which can be done with difficulty and over a longer period of time;
(d) Counsel for the defendant also referred to the relatively recent decision of TTB SMS Pty Ltd v Reading,[118] which has some factual similarities to the subject matter. In fairness, counsel for the defendant accepted that each case turns on its own facts. Perhaps the critical difference between Reading and this application is that I have found the plaintiff has had constant pain in her right palm area and will continue to have that pain into the future. Furthermore, as I have found in this proceeding, the plaintiff has been taking medication to control such pain.
[118][2020] VSCA 203
128Although I consider that this application is a lineball case, I am satisfied that the plaintiff has discharged her onus and satisfied the requirements of the narrative test; that is, that her right hand injury in relation to “pain and suffering” consequences is “serious” in that “… when judged by comparison with other cases in the range of possible impairments … [can be] fairly described as being more than significant or marked, and as being at least very considerable …”.
129Accordingly, I enter judgment for the plaintiff and order that the plaintiff has leave to bring common law proceedings for “pain and suffering” damages in respect of her right hand injury suffered by her on or about 20 November 2018 in the course of her employment with Christopoulos Constantine & Joshem Pty Ltd (trading as “The European and Melbourne Supper Club Bar”).
130I will hear the parties on any issue of costs.
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