Hollister-Clarke v Victorian WorkCover Authority
[2014] VCC 1961
•15 October 2014 (revised)
15
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-03336
| EMMA HOLLILSTER-CLARKE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 October 2014 | |
DATE OF JUDGMENT: | 15 October 2014 (revised) | |
CASE MAY BE CITED AS: | Hollister-Clarke v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1961 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to right thumb – pain and suffering only – whether consequences “very considerable”
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: Leave to the plaintiff to bring common law proceedings.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Veliotis | Ryan Carlisle Thomas |
| For the Defendant | Mr S Smith | Hall & Wilcox |
HIS HONOUR:
Preliminary
1 The plaintiff suffered an injury to her right thumb in an altercation with a patient in the course of her employment as a clinical nurse in the Emergency Department of the Rosebud Hospital on 21 June 2010. Surgery was performed to the right thumb after injury, and following a period of recovery, the plaintiff returned to her nursing duties, working the same hours and on the same duties as before the injury. She claims a range of social, domestic and recreational activities have been significantly affected, and she is restricted in the work she is able to perform as a clinical nurse.
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of the plaintiff’s employment on 21 June 2010. The body function said to be lost or impaired is the right hand. The application is thus brought under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act and leave is sought in respect of pain and suffering only.
3 The plaintiff was the only witness called to give evidence and be cross-examined. In addition, various affidavits of the plaintiff, her husband and co-workers, and medical and radiological reports were tendered into evidence. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature and the principal authorities of the Court of Appeal are well known and it is unnecessary for me to revisit the various relevant sections and those authorities.
Relevant background
4 The plaintiff was born in England where she trained and qualified as a nurse. She came to Australia in 2006, and has worked at the Rosebud Hospital, as a Division 1 Nurse, since. She is married with two teenage children.
5 Prior to the injury, the plaintiff was in good health, and in particular had no restriction in the use of her right hand. She pursued a range of recreational and sporting activities. Shortly prior to the injury, she decided to take up golf, in particular to play golf with her sons. She obtained lessons and purchased some golf clubs, and played five or six times, intending to obtain a handicap.
6 She played social tennis once a month or so, and was a member of a local tennis club. She was ambidextrous, although played golf and tennis using a right-hand grip. She claims that both those activities have been lost to her since her injury.
7 She had been involved with horses since a young age. Although she had not purchased a horse when she came to live in Australia, it was her intention to resume horse riding, in particular with her sons.
8 She was able to carry out a full range of domestic and social activities, undertake all the family shopping, cooking and cleaning. She was an avid gardener and took pride and enjoyment from working in her garden.
9 She was able to perform all of her nursing tasks without difficulty.
The injury and its consequences
10 On 21 June 2010, she was assisting in attempting to relocate a patient’s dislocated shoulder. The patient started abusing the plaintiff, grabbed her right thumb and pulled it backwards. It was described as a ‘dorsiflexion’ injury. An x‑ray was taken at the Rosebud Hospital, but no fracture established. The plaintiff was off work for a period. She went to see her general practitioner, Dr Heaney, who prescribed pain-relieving medication and a right thumb splint.
11 In January 2011, because of ongoing pain, Dr Heaney referred the plaintiff to Mr Jeremy Wilson, plastic surgeon. An MRI scan was undertaken which Mr Wilson described as showing damage consistent with a significant disruption of the right thumb at the carpometacarpal joint, together with ulnar collateral ligament rupture at the metacarpophalangeal joint. On 9 February 2011, Mr Wilson performed a repair operation with the insertion of Kirschner wires to stabilise the joint. A plaster of Paris splint was applied. Subsequently, she underwent a further procedure to remove the K-wires.
12 The plaintiff attended Ms Hayley O’Sullivan, hand therapist, for hand therapy over a considerable period. According to the report of Mr Wilson,[1] the surgery gave rise to significant improvement in the plaintiff’s pain and level of activities, although she was restricted in the activities she was able to undertake at work, in particular intravenous cannulation and CPR.[2] The plaintiff returned to work some six weeks after surgery, initially on restricted duties. Ultimately, she returned to full duties, working three eight-hour shifts per week in the Emergency Department of the Rosebud Hospital, being the same hours and duties as she worked before the injury.
[1]Plaintiff’s Court Book (“PCB”) 56
[2]Cardio pulmonary resuscitation
13 At the present time, the plaintiff has little in the way of treatment, although occasionally attends her general practitioner for the prescription of Panadeine Forte.
14 According to her affidavit and evidence, she suffers a range of consequences as a result of the injury to her right thumb. She says that the pain in her right thumb is constant, although fluctuates in intensity. It is more significant in cold weather. After an eight-hour shift at work, her pain is increased and she takes Panadeine Forte or over-the-counter pain-relieving medication. There are some duties at work which are difficult for her to perform, including lifting or rolling of patients, the use of her thumb for finer movements, persistent use of a right-hand computer mouse, and work involving cannulas. She finds CPR difficult, which she carries out about once a month. She says she receives considerable assistance from her co-workers without which she would be unable to perform her current duties.
15 Her evidence as to her work difficulties is confirmed by an affidavit of Dr Paul Yeung, who noted that her tasks had been significantly modified after her injury. He said she tends to do work which does not require as much “hands-on” attention. According to Dr Yeung, he regularly sees the plaintiff in pain.
16 Another work colleague, Ms Jessica Hall, noted the plaintiff was unable to undertake a range of clinical procedures including IV cannulation, opening packs of medical material, taking blood pressure manually and had some difficulty with compressions. She also noted the plaintiff to be in pain from her facial expressions, and described her as a stoic and good worker.
17 On behalf of the defendant, an affidavit of Ms Melanie Evans, a patient services manager of the Rosebud Hospital, was tendered into evidence. She noted that the plaintiff wears a splint on her hand while doing clinical work but that no complaint was made to her in relation to any of the plaintiff’s daily duties, nor had she witnessed the plaintiff being unable to complete any task.
18 The plaintiff said she has been unable to return to golf, tennis nor horse riding and they are all significant losses to her, particularly because she undertook or intended to undertake them with her family.
19 She has received further training at work, and from time to time stands in as a patient services manager which has largely administrative duties. She agreed in cross-examination she has the capacity to undertake this work, or even as a nurse unit manager, but prefers her clinical duties. She says that if she was unable to work in the supported environment of the Rosebud Hospital, she would have difficulty obtaining alternative employment.
20 According to her affidavit, she takes approximately three Nurofen tablets per week for pain relief; four Panadol Osteo tablets per day, and Panadol. She obtains a prescription for Panadeine Forte from her doctor and takes two Panadeine Forte tablets, one to two times per week when the pain is bad. She accepted in cross-examination the number of Panadeine Forte may be less, sometimes only one per week, in accordance with the prescription records of her general practitioner.[3]
[3]Exhibit 2
21 She wears a splint over her thumb every day at work, and occasionally at home. She has difficulty opening jars and cans and has obtained a device to assist. As she is ambidextrous, there are a number of activities, including writing, which she is able to do with her left hand. Generally, she has adapted by being able to use her left hand for more activities. Her sleep has improved with time, although she takes medication to assist, which she says “knocks me out”. On occasions, her sleep is disturbed. She is able to do a range of domestic duties including cutting and preparing food for cooking, undertaking the lighter household chores, and going shopping. Her children hang the clothes on the line, and her husband does the ironing. Fine motor movements are difficult and she is unable to do “beading” jewellery work and other activities requiring fine motor use of the right hand. She occasionally vacuums, but using her left hand. She has been able to adopt different measures in terms of personal care, doing up buttons and the like, although attends a hairdresser more regularly to have her hair managed.
22 She is no longer able to do the same work in the garden including planting, weeding, digging, clipping and pruning. Again, she has adapted and has done some of these tasks one-handed. She and her husband have hired a gardener to assist. She is able to drive, although her hand aches after about half an hour. She walks her dogs, although it is difficult in not being able to use her right hand to hold the dog lead. Her range of other activities have been preserved, including reading, Pilates and a range of social contact with friends.
23 The plaintiff is concerned that at some point in the future her right thumb joint may deteriorate with arthritis, and there is the prospect of joint replacement.
24 In the course of cross-examination, a document completed by the hand therapist, Ms O’Sullivan, was put to the plaintiff.[4] That document referred to twenty activities and the plaintiff was asked to rate those activities according to the degree of difficulty in carrying them out. There were no activities noted as being extremely difficult or unable to be performed or when performed involved “quite a bit of difficulty”. Some activities caused some difficulty. It was suggested to the plaintiff that there was a disparity between the activities described in that document, and those referred to in the plaintiff’s affidavit and evidence before the Court.
[4]Exhibit 1
25 While I am satisfied that there was some difference, in particular in activities such as driving, sleeping, cleaning, vacuuming and food preparation, I do not see the differences as particularly significant, in particular when regard is had to the report of Ms O’Sullivan,[5] where she points out a wide range of activities, both work and domestic, in which the plaintiff is restricted.
[5]PCB 43
Medical opinions
26 There is no significant difference between the parties as to the nature of the injury suffered by the plaintiff in the course of her employment, nor the treatment undertaken. The real issue is the nature and extent of the consequences which the plaintiff has suffered, and whether they achieve the “very considerable” level the Act requires. According to the report of the plaintiff’s general practitioner, Dr Heaney,[6] she is able to perform most but not all of her pre-injury work duties. He notes there is some limit on her ability to engage in social activities although remains socially active and is able to undertake aerobics at a local gymnasium. He noted there was the possibility of joint replacement at some time in the future.
[6]PCB 40-41
27 To Mr John Buntine, consultant plastic surgeon, the plaintiff complained of a range of pain and restrictions. Mr Buntine noted that in 2012, the plaintiff took two Nurofen tablets before going to work, and one Panadeine Forte and one Panadol Osteo tablet at the end of her work day. She complained of weakness in her right thumb when, for example pushing bags of intravenous fluid and using a syringe. Mr Buntine thought the plaintiff had some mild osteoarthritis in the right first carpometacarpal prior to the injury which was aggravated, causing some increased instability. He noted that the plaintiff suffered discomfort with a range of work tasks but that her work capacity would continue into the foreseeable future, although without spontaneous improvement. Possibly, he said, there would be very slow deterioration.
28 According to a recent report of Mr Felix Behan, plastic surgeon, the plaintiff complained of pain during dexterous movements of the right thumb, in particular in her nursing duties. She said the pain was worse after an eight-hour shift. She complained of difficulty in opening jars and holdings cups and saucers and that she was unable to play tennis, golf or go horse riding. Mr Behan included photographs which show some discrepancy in movements, in particular of the right thumb when compared to the left. He referred to a report of Mr David McCombe, plastic surgeon, as to potential arthritic degeneration.[7] He said that the joint was “unpredictable regarding development of arthritic change but more than likely to develop such as quoted by David McCombe”.[8] He said further:
“I would certainly consider the patient to have a disability from an industrial loss point of view as a result of her injuries taking into consideration the clinical, domestic, industrial and social aspects noted above. Overall the patient would have a 25 per cent disability, taking all these factors into consideration.”[9]
[7]No report of Mr McCoombe was tendered into evidence
[8]PCB 65
[9]PCB 66
Conclusions
29 I found the plaintiff a reasonable witness giving a fair account of the pain and disability related to the injury to her right hand. Although there were some discrepancies between the document completed by her hand therapist,[10] and her evidence, I did not find that discrepancy substantial and it is explained in significant part by the plaintiff’s statement that she did not want to give the impression to her therapist that she was significantly disabled. Given the plaintiff has returned to work on the same hours and duties as before the injury, I assess her as a stoic person, not tending to exaggerate the injury nor its affect upon her.
[10]Exhibit 1
30 There is no issue the plaintiff suffered a significant dorsiflexion injury to her right thumb in the incident as described. That led to surgery to her thumb including the placement of Kirschner wires to stabilise the joint. There was a further procedure subsequently to remove those wires. I accept the evidence, in particular of Mr Behan, that there is the prospect of further degeneration of the joint and the possibility of joint replacement.
31 I accept the submission of Mr Smith that the plaintiff’s current treatment is moderate and consists only in the taking of largely over-the-counter medication. To some extent, that is an objective measure of the plaintiff’s pain.
32 However, I accept the plaintiff’s evidence, and that of her co-workers, that she is regularly in pain, in particular at the end of an eight-hour shift. I accept that she is capable of undertaking most of her work duties, although, with the aid of co-workers, she works in a somewhat protected environment. I accept that she has some problems with sleep, although these are moderate, and have improved since surgery.
33 I accept her evidence that there has been a significant disruption of her sporting and recreational activities, including golf, tennis and horse riding. Although she was not participating in these activities to a high level before injury, in fact had only just taken up golf, nonetheless the loss of these activities, and the enjoyment they would have brought, in particular with her family, is a significant loss for her.
34 I accept that a range of domestic activities are significantly reduced, in particular those requiring fine motor use of her right hand. I accept her evidence that with time, she has been able to adapt, in particular with the use of her left hand, but still there are a range of activities in which she is restricted, or which are beyond her. While she has been able to maintain some domestic and recreational activities, in particular many of the tasks around the house, walking, reading, and her Pilates exercise classes, the loss to her of the activities and interests as described, are significant.
35 Weighing in the balance, on the one hand the activities and interests which the plaintiff has been able to retain, and those which are lost, taking into account the pain the plaintiff suffers on a continuing basis, the prospect of further deterioration in the joint and the sports and recreational activities which are lost, I am of the view that the plaintiff satisfies the “very considerable” test as to the consequences of injury. In these circumstances, the plaintiff’s case succeeds. I shall grant leave for the brining of common law proceedings, and make consequent orders as to costs.
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