Htoo v Victorian WorkCover Authority
[2018] VCC 695
•25 May 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-05066
| K’SER HTOO | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 and 9 May 2018 | |
DATE OF JUDGMENT: | 25 May 2018 | |
CASE MAY BE CITED AS: | Htoo v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 695 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Injury to the left hand – injury complicated by the onset of a secondary medical condition – whether the secondary medical condition is causally related to the initial injury to the left hand – film – conflict with the plaintiff’s affidavit and oral evidence – analysis of the content of the film – concurrent medical conditions – whether any of the concurrent medical conditions contribute to the claimed consequences
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Peake Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67
Judgment: Leave granted to the plaintiff to bring common law proceedings for pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N J Dunstan | Maurice Blackburn |
| For the Defendant | Mr C A Miles | Wisewould Mahony |
HIS HONOUR:
Introduction
1 The plaintiff is a fifty-four year old woman who was injured in the course of her employment with Boomaroo Nurseries & Wholesale Supplies Pty Ltd on 2 May 2013, when her left hand became jammed between a cart and a track, resulting in the traumatic amputation of the tip of her left middle finger and the crushing of the top of her left ring finger and index finger.
2 The plaintiff submitted that she had suffered a serious permanent impairment or loss of the function of her left hand. She made no claim for an impairment of her earning capacity.
3 Mr N J Dunstan of counsel appeared for the plaintiff. Mr C A Miles of counsel appeared for the defendant.
The issues
4 The defendant conceded that the plaintiff had suffered a permanent impairment or loss of the function of her left hand. It denied that the consequences of the impairment were “serious”.
5 The plaintiff previously suffered from three other medical conditions which the defendant submitted produce concurrent pain and suffering consequences.
6 Furthermore, the defendant submitted that the creditworthiness and reliability of the plaintiff was very much an issue.
The medical evidence
7 The only controversy in the medical evidence is the opinion of Dr Peter Blombery, vascular physician, that the plaintiff has additionally suffered a secondary condition of Complex Regional Pain Syndrome Type 1 affecting her left arm.[1] It is a diagnosis shared by Dr Agung Gyi, general practitioner, but not one stated as confidently as by Dr Blombery.[2]
[1]Plaintiff’s Court Book (“PCB”) 78
[2]PCB 45
8 I will briefly trace through the plaintiff’s treatment and then the opinions of a number of medical practitioners to whom counsel referred me.
9 The plaintiff was taken to the Geelong Hospital, where she was treated surgically. The amputated tip of her left middle finger was reattached. K-wire was used to reduce the fracture at the top of her left ring finger.
10 The plaintiff was discharged into the care of Dr Gyi. The tip of her left middle finger became gangrenous and infected. She underwent further surgery which resulted in the amputation of the tip of her left ring finger.
11 Subsequently, the plaintiff had hand therapy until March 2014. She was referred to the Sunshine Hospital by Dr Gyi for pain management. She was treated by Dr Andrew Jeffreys, pain medicine specialist, who saw her on 4 August 2016,[3] and a multidisciplinary team.
[3]PCB 40
12 Dr Jeffreys prescribed the plaintiff Gabapentin for chronic pain. He last reviewed her on 4 May 2017. The purpose of the review was to reconsider the medication which she had been prescribed. At that stage, she was on Pregabalin. He suggested that she use a 25-milligram tablet in the morning, and a 75-milligram tablet at night, and otherwise he referred her back into the care of Dr Gyi.[4]
[4]PCB 40 and 62
13 The plaintiff was referred to Community Based Rehabilitation at the Sunshine Hospital on 6 December 2016. It would appear that she was given some advice regarding further surgical treatment for her left hand, and also for other medical conditions. It would appear that she was given no treatment.[5]
[5]PCB 61
14 Otherwise, Dr Gyi referred the plaintiff to have physiotherapy, which appears to have commenced on 8 March 2017. Since 4 May 2017, when Dr Jeffreys ceased treating the plaintiff, Dr Gyi has been the plaintiff’s only treating medical practitioner.
15 Dr Gyi considered that the plaintiff was suffering from chronic neuropathic pain. It would appear that he arrived at that diagnosis from his own assessment of the plaintiff, but was probably assisted in reaching that diagnosis by the treatment provided by Dr Jeffreys and the multidisciplinary physiotherapy team at the Sunshine Hospital.[6]
[6]PCB 48
16 Dr Blombery examined the plaintiff on 5 June 2015 and provided a report dated 17 June 2015.[7] He examined the plaintiff again on 7 March 2018 and provided a supplementary report dated 15 March 2018.[8] On the second occasion he examined her, he noted that there were changes in temperature and colour of her left arm which, although they were not marked, was an examination result which he considered fulfilled the basic criteria for a diagnosis of Complex Regional Pain Syndrome Type 1.[9]
[7]PCB 68-72
[8]PCB 77-79
[9]PCB 78
17 Dr Blombery provided a gloomy prognosis. He considered that the condition of the plaintiff’s left arm would “severely” limit the work that she could do with her left arm, and he added that effectively, she had a “relatively useless left hand” in the context of employment. He considered that she would require ongoing treatment for the pain in her left hand indefinitely, with an ultimate prognosis for recovery as “poor”.[10]
[10]PCB 78-79
18 The defendant had the plaintiff examined by a number of medical practitioners. Their opinions can be summarised reasonably briefly.
19 The first was Mr John Anstee, plastic and reconstructive surgeon, who examined the plaintiff on 29 July 2014, and provided a report bearing the same date.[11] He described the plaintiff’s injury as a crush injury to the left middle and ring fingers with a laceration to left index finger. Additionally, he considered that there was a 10-millimetre shortening of the left middle finger and reduced sensation over the distal third of the left middle finger. He considered that she was capable of work similar to her pre-injury work.
[11]Defendant’s Court Book (“DCB”) 1-6
20 The next was Mr Murray Stapleton, plastic and hand surgeon, who examined the plaintiff on 11 November 2014 and provided a report wrongly dated 10 November 2014.[12] He expended quite some time analysing the causation of a Carpal Tunnel Syndrome which I will return to later in these Reasons. He described the plaintiff’s injury in much the same terms as Mr Anstee. He was obviously provided with a report of Dr Gyi, because he said that he could not find any sign of Complex Regional Pain Syndrome. He disagreed with Mr Anstee, to the extent that he considered that the plaintiff did not have a capacity for her pre-injury work. He considered that she was probably fit for modified duties for the following twelve months.
[12]DCB 9-12
21 Mr Stapleton examined the plaintiff again on 25 August 2016 and provided a report bearing the same date.[13] On this occasion he mostly concerned himself with the plaintiff’s left hand injury. He considered that there was a 1.5-centimetre shortening of the left middle finger. He repeated that he could not find any sign of Complex Regional Pain Syndrome.
[13]DCB 15-17
22 Mr Stapleton last examined the plaintiff on 28 March 2018 and provided a report bearing the same date.[14] He considered that the injury to the plaintiff’s left hand had resulted in awkwardness, but he did not consider that she had any discernible problems with cooking, cleaning, fine manipulation, shopping, gardening and general functioning. He disagreed with Dr Gyi’s opinion that the plaintiff was incapacitated for her pre-injury work.
[14]DCB 20-23
23 The next was Dr Roy Karna, rheumatologist, who examined the plaintiff on 19 February 2015, and provided a report dated 23 February 2015.[15] He described the plaintiff’s injury in much the same way as Mr Anstee and Mr Stapleton. Like Mr Anstee and Mr Stapleton, he considered that the plaintiff was fit for work.
[15]DCB 27-31
24 The last was Mr John Buntine, plastic and hand surgeon, who examined the plaintiff on 8 December 2015 and provided a report dated 9 December 2015.[16] He described the plaintiff’s injury in much the same way as Mr Anstee, Mr Stapleton and Dr Karna. He was asked to undertake an impairment assessment. At the time he examined the plaintiff, he considered that she would experience lessening degrees of discomfort over time.
[16]DCB 33-38
Carpal Tunnel Syndrome
25 There is some controversy about the causation of a right Carpal Tunnel Syndrome which the plaintiff said was a secondary consequence of the injury to her left hand.
26 The plaintiff underwent right carpal tunnel release surgery in August 2014. She considered that she had made a full recovery from the surgery, and thereafter did not have any problems with her right hand.[17]
[17]PCB 6
27 Mr Stapleton was asked to consider whether the right Carpal Tunnel Syndrome arose out of her work. He said, in effect, the Carpal Tunnel Syndrome cannot be caused by work.[18] Dr Karna was of the same opinion.[19] Dr Gyi and Dr Blombery disagreed.[20] Despite this controversy, it really goes nowhere, because the plaintiff unequivocally said that she has recovered from it, has no residual symptoms, confirmed by the fact that she has not had any treatment for it for many years.
[18]DCB 9, 11-12,13,15 and 21
[19]DCB 30
[20]Dr Gyi at PCB 34, 37 and 39-41 and Dr Blombery at PCB 71-74 , 75 and 78
28 Dr Karna was the only medical practitioner who detected the presence of a right lateral epicondylitis lesion which he considered to be non-compensable and “fundamentally constitutional”. He considered that it would improve with the passage of time and simple exercises.[21]
[21]DCB 30
29 The defendant disavowed any reliance upon the Carpal Tunnel Syndrome or the lateral epicondylitis lesion as being relevant to my consideration of the injury of the plaintiff’s left hand.[22]
[22]In particular, in the context of Peake Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67
What Injury?
30 The identification of the primary injury suffered by the plaintiff to her left hand is undoubted. It has been serially described by all of the medical practitioners whose evidence I have analysed.
31 The only area of controversy is whether the plaintiff has suffered what I will call a secondary consequence of neuropathic pain affecting her left arm, or Complex Regional Pain Syndrome Type 1. I prefer the plaintiff’s evidence for the following reasons.
32 Dr Gyi suspected that the plaintiff was suffering from neuropathic pain. It would appear that he was concerned enough about that to refer her for pain management. She ultimately came under the care of Dr Jeffreys, who prescribed her Gabapentin to treat chronic pain. It is medication also used to treat neuropathic pain.
33 Dr Blombery is a vascular physician whose particular special interest is the treatment of individuals who suffer from pain disorders. His special interest resulted in him knowing what to look for during his examination of the plaintiff and analysing his examination results in reaching the conclusion that the plaintiff has suffered a secondary condition of Complex Regional Pain Syndrome Type 1 affecting her left arm. Against this is the opinion of Mr Stapleton.
34 I prefer the plaintiff’s evidence that she experienced pain in her left arm consistent with the diagnosis ultimately made by Dr Blombery. I am fortified in reaching that conclusion, because the plaintiff was treated for that condition as it emerged by Dr Gyi and Dr Jeffreys. The evidence persuades me that there is an organic basis for it.
The Plaintiff’s consequences
35 The plaintiff’s evidence of the consequences of the impairment of the function of her left hand are found in her three affidavits and in her oral evidence. I will firstly summarise what she says in her affidavits:
· Constant daily pain in the left, middle and ring fingers
· Pain extending from her left middle finger up her left arm to her left shoulder
· Worsening pain in cold weather
· Sleep disturbance up to three times per week
· The need for medication to help with sleep disturbance
· Worsening pain in the middle finger when it is knocked
· Problems gripping with the left hand
· Problems undertaking fine movements with the left hand
· Restriction in the capacity to undertake housework, gardening, cooking, caring for grandchildren, and dressing when needing to do up, and undo, buttons
· Loss of the ability to play the guitar
· Loss of the ability to engage in traditional Karen weaving and sewing
· Consumption of up to six Panadol per day for pain in the left middle and ring fingers
· Consumption of Lyrica twice a week for pain relief
· Consumption of amitriptyline twice a week to assist with sleep disturbance.[23]
[23]The summary is principally taken from the plaintiff's first affidavit at PCB 16-19. Much of what the plaintiff said in her first affidavit about her consequences is repeated in her subsequent affidavits at PCB 21-24 and 25-28
36 The plaintiff was the only witness required for cross-examination. When she entered the witness box she wore a thick white cotton or wool glove over her left hand. Most of the time she had her left hand inserted into the left-hand side pocket of a sleeveless padded jacket that she was wearing.
37 Under cross-examination, she described a gross level of loss of function in her left hand. In summary, she said:
· Knocking her left middle finger causes pain
· She avoids “almost everything” to avoid the risk of knocking her left middle finger
· She rarely uses her left hand, saying that she “dare not” and that was said in the context of knocking her left middle finger
· When performing activities, such as sweeping, she tries to avoid using her left hand because it is painful and she has a fear of knocking her left middle finger
· Clapping or slapping her right hand on her left hand would cause pain
· She could not hold the paper cup which was placed on the edge of the witness box with the fingers of her left hand[24]
· She does not attend Karen community functions any longer. She does attend a church, and has attended Karen Christmas events.[25]
[24]Transcript 29-31
[25]Transcript 36
38 The strong impression I was left with after that part of the cross-examination was that the plaintiff avoids using her left hand because it is painful if she does so, and is more painful if she knocks her left middle finger. For reasons which will become plain, I do not accept that the plaintiff has suffered such a gross level of impairment of function of her left hand.
The film
39 The defendant showed thirty-eight minutes of film of the plaintiff taken on 28 and 29 April 2018. The following is my summary of critical parts of it relevant to 28 April 2018:
· At around 9.18am, the plaintiff was holding a hose in her right hand in her garden.
· At around 9.20am, and then at 9.49am, she was carrying a supermarket plastic bag in her right hand.
· At around 9.51am, she arrived at a park in the company of a man and a woman. She was wearing a shoulder bag. She was carrying a supermarket plastic bag in her right hand.
· At around 9.56am, she was standing with a group of people at the park. She removed a bottle from the plastic bag. She held it in her left hand and unscrewed the cap with her right hand.
· At about 10.30am, she was standing with a group of people watching a volleyball game. She then did the following:
§ She waved her hands
§ She rubbed her palms together
§ She knitted her fingers together
§ She clapped her hands on seven separate occasions.
· At about 10.33am, she did the following.
§ She clasped her palms together.
§ She clapped her hands.
§ She clasped her palms together.
§ She then clapped her hands on three further occasions.
· At about 11.46am, she removed what appeared to be a padded jacket and used both hands to tie the arms of it around her waist.
· Between 11.49am and 12.44pm, she did the following:
§ She clapped her hands at about 11.49am.
§ She clasped her palms together at about 11.52am.
§ She clapped her hands on four separate occasions at about 12.25pm to 12.28pm.
§ She adjusted the collar on her blouse with both hands and then clasped her palms together.
§ She clapped her hands on three separate occasions between 12.41pm and 12.44pm.
§ She raised both hands in the air and wriggled her fingers at about 12.44. pm.
40 The following is my summary of critical parts of it relevant to 29 April 2018:
· At between 9.30am and 9.39am, she was walking near a car wearing what appeared to be a traditional Karen cultural outfit.
· At about 11.08am, she opened the car door using her left hand.
41 There are three matters which are obvious when a comparison is made between the plaintiff’s oral evidence and what was evident on the film:
(a) Firstly, she attended a social/sporting event recently, which is in stark contrast to her evidence that she does not attend such events except at Christmas.
(b) Secondly, she was not wearing the glove she was wearing in Court.
(c) Thirdly, she is very capable of using her left hand and exposing it to potential knocking, which is in stark contrast to her evidence that she can do very little with her left hand because of pain and the fear of knocking it, which will cause increased pain.
Counsels’ submission about the film
42 Counsel for the plaintiff submitted that the starting point in the analysis of the plaintiff’s claimed consequences, is that there is little doubt that the plaintiff suffered a traumatic injury to fingers of her left hand, and the secondary consequence of neuropathic pain. I agree.
43 Counsel submitted that the film only shows that the plaintiff has attended at least one social/recreational event, and can clap her hands and move her fingers, but without exposing her left middle finger to knocking. On a second viewing of the film, it appeared to me that when she clapped her hands she crossed her palms with her fingers of one hand in an east-west configuration, with the other in a north-south configuration.
44 Similarly, when the plaintiff clasped her hands together, knitting her fingers together and wriggled her fingers, it did not involve her injured fingers. Counsel did not specifically refer to these movements of the plaintiff’s fingers shown on the film, but his broader analysis of the film encompassed these movements as well.
45 Counsel submitted that the medical evidence supports the conclusion that the tip of her left middle finger is sensitive and now shorter due to the amputation; there is damage to the tip of the left ring finger together, and neuropathic pain extending up into her left arm. Counsel submitted, therefore, that there are a number of consequences which I should accept are almost inevitably affected by the injury to her left hand:
· Karen weaving
· Cooking
· Playing the guitar
· Engaging in any activities which involve gripping through the fingers of her left hand, and in particular, which bring into play her left middle finger
· Engaging in activities requiring fine manipulative movements, for example doing up and undoing buttons
· Engaging in heavier manual tasks which put her left hand to use and which require finger dexterity.
46 Counsel expanded upon the submission by submitting that Karen weaving requires the weaver to sit with legs extended and feet against the bottom of a timber frame. In that position, the weaver uses both hands to manipulate a piece of timber fixed through the fabric horizontally and to otherwise manipulate the fabric and the piece of timber manually. It looked to me to be a task involving significant manual functioning both in terms of strength and finger manipulation.
47 It is the heavier nature of cooking involving the lifting and carrying of heavy cooking implements which were relied on. As a matter of simple general experience it is difficult to understand how one could manipulate such implements without the need for strong gripping strength in some degree of finger manipulation. Counsel emphasised that the plaintiff comes from a large family of a husband, four children and grandchildren and would be cooking, not modestly, but significantly, to cater for her family.
48 There cannot be any doubt that someone who is right handed would not be able to play the guitar effectively because it is the left hand which requires finer finger movement on a fret board in order to successfully play. Counsel for the defendant did not argue otherwise, and indeed, the medical evidence is all one way on that issue that the plaintiff cannot play the guitar.
49 I have dealt with, to some degree, plaintiff’s counsel’s submission relevant to the plaintiff’s difficulty with strong gripping and finger manipulation, but he expanded upon that by submitting that there are many tasks requiring those sorts of manual operations which the plaintiff either cannot do or will find difficult. For example cleaning, gardening and like domestic tasks. Again, as a matter of simple general experience, the use of both hands to undertake these manual operations is necessary to undertake them effectively.
50 Both counsel debated with me whether the plaintiff has actually suffered any interference with her capacity to undertake fine manipulative movements. I accept that she is unlikely to have any particular difficulty using her thumb in opposition to her index finger. Counsel for the defendant submitted, therefore, she could do up and undo buttons because using those two fingers would not include her left middle finger. Counsel for the plaintiff submitted that it is common to use the thumb, index and middle finger to do up and undo buttons and to pick up small objects. In the course of the debate I observed that the way in which I do up and undo buttons and pick up small objects is consistent with counsel for the plaintiff’s submission. So, I do not accept that the plaintiff’s capacity to undertake fine manipulative movements is unimpaired.
51 Counsel for the plaintiff also submitted that the impairment of the function of the plaintiff’s left hand has probably narrowed the range of employment for which she is presently outfitted. Despite the fact that there are medical opinions going both ways on that issue, there is little evidence concerning what residual capacity the plaintiff retains for suitable employment. However, I accept that someone who has little education and training will be dependent upon bodily integrity to undertake suitable employment, which must, in the context of the plaintiff, include reasonable manual function. The plaintiff no longer has that, so I accept that there is some level of narrowing of the range of employment for which the plaintiff is probably outfitted.
52 Counsel for the defendant submitted that I should not accept much of what the plaintiff says. More particularly, he submitted that I should be very cautious when dealing with the subjective complaints of the plaintiff which are otherwise not corroborated by other independent and objective evidence. I think that is a very sound submission, and it is the very approach I propose to take.
53 Counsel for the defendant referred to each of the consequences relied upon by the plaintiff, and essentially submitted that there is really no reason to believe that whatever deficits the plaintiff carries, that they are of much consequence to her when she engages in general, social, domestic and recreational activities. He did concede that playing the guitar and weaving may well be difficult for the plaintiff.
54 The mere showing of a film can be both seductive and beguiling. Anything seen on the film can be misconstrued as almost immediately being in conflict with a plaintiff’s evidence. That cannot be so. Any analysis of film must commence by determining what the film actually shows, and whether any of what is demonstrated on the film creates a conflict in the evidence.
55 The difficulty I have in determining how I should deal with this film is that none of it was shown to any medical practitioners. Therefore, I do not know whether what the plaintiff is seen doing on the film would persuade a medical practitioner that she has a greater level of functional capacity with her left hand and arm than she says she has. It is left to me to do that. The difficulty in doing that cannot be underestimated.
56 The conclusion I have reached based upon the film is that I do not accept that the plaintiff needs to wear a glove. I do not accept that she has the gross level of loss of function in her left hand to the extent that she could not even lift a light paper cup sitting on the witness box, and I do not accept that she does little with her left hand. I do not accept that she does not attend social/recreational functions with her Karen community.
57 I accept that the plaintiff has some use of her left hand as demonstrated in the film. But that demonstration only goes so far. She can clap her hands, clasp her hands together, knit her fingers together and do a level of the gripping of a light supermarket plastic bag, and open the door of the car. However, none of those activities call on manual strength and dexterity. What they do is to demonstrate to me that the plaintiff is less fearful of knocking her left middle finger which I think must be so given the extent to which she was prepared to clap her hands.
58 The main subjective complaints of the plaintiff are the extent to which she has pain, interference with sleep, and the extent to which she experiences the consequences referred to in her affidavits and oral evidence.
59 I accept that the plaintiff does have pain. I think the evidence of Dr Gyi and Dr Jeffreys demonstrates that she was having pain to the extent that she needed medical treatment. I think it is likely, therefore, that she uses medication to ameliorate the effect of pain. I accept that she uses Panadol for pain relief. I accept that she is prescribed Lyrica, which she uses twice a week. I accept that she is prescribed amitriptyline for the purpose of assisting her to sleep. As counsel for the plaintiff submitted, she gave histories to Dr Shand, psychiatrist, Mr Stapleton and Dr Blomberg that she uses medication to assist her with sleep,[26] which goes some way to demonstrating consistency in her complaints of interference with sleep to ameliorate that interference.
[26]Mr Stapleton at DCB 21, Dr Shan at DCB 44 and Dr Blombery at PCB 78
Analysis
60 I accept that the plaintiff suffered a fairly major injury to her left hand, with a secondary consequence of neuropathic pain, as described by Dr Gyi and Dr Blombery, deserving of a diagnosis of Complex Regional Pain Syndrome Type 1.
61 I do not accept that the function of the plaintiff’s left hand is as seriously impaired as she made out in her oral evidence, but I do accept that the impairment does have the consequences which I have referred to above, and in particular, in paragraphs 45-50 and 56 and 59.
62 The question is whether the consequences, in terms of pain, the need for medication, interference with sleep, interference with the capacity to engage in domestic and recreational activities, which I accept she has suffered, are sufficient to constitute a serious injury. Moreover, whether the consequences, when judged by comparison with other cases in the range of possible impairments or losses of a body function can fairly be described as being “more than significant or marked and as being at least very considerable”. I think they can.
Peak Engineering & Anor Pty Ltd v McKenzie[27]
[27][2014] VSCA 67
63 Counsel for the defendant submitted that the onus is borne by the plaintiff to demonstrate that her other health problems do not result in impairment consequences which necessitate the level of disentangling referred to in Peak Engineering Pty Ltd & Anor v McKenzie.[28] The Court of Appeal observed that where two different injuries are concurrently producing pain and suffering consequences, it will ordinarily be necessary to make findings about all of the pain and suffering consequences which are operative at the date of the trial because it is an essential pre-condition to the task of deciding which of the pain and suffering consequences are attributable to which injury.[29]
[28]ibid
[29]at paragraph [24]
64 I am not satisfied that there is much in the submission. The plaintiff was cross-examined about a problem with her left hip, chest pain and her left knee. She denied that any of those medical conditions are presently causing her any level of impairment of function.[30]
[30]Transcript 21-22
65 The plaintiff had an ultrasound of her left hip on 8 February 2017. Dr Gyi described the problem with her left hip as left trochanteric bursitis. She was treated with a cortisone injection.[31] There is no other mention of it by Dr Gyi as presenting the plaintiff with any level of impairment of function.
[31]PCB 47
66 The plaintiff had an x-ray and ultrasound of her left knee on 12 October 2017. There is no other mention of it by Dr Gyi as presenting the plaintiff with any level of impairment of function.[32]
[32]PCB 47
67 The plaintiff was referred to Dr Ian Matthews, cardiologist, who treated her for suspected ischaemic heart disease. After relevant investigations, he advised her to cease using aspirin and Lipitor because her coronary arteries were “completely normal”. He made no follow-up appointments as a consequence.[33]
[33]PCB 63-67, and in particular at PCB 67
68 The medical evidence is consistent with the plaintiff’s answers under cross- examination that none of these medical conditions is causing her any impairment of function. Therefore, there are no concurrent pain and suffering consequences produced by these medical conditions which require any degree of consideration.
Disposition
69 Counsel for the defendant referred me to four decisions of judges of this Court to demonstrate the range of possible impairments or losses of a body function relevant to hand injuries. I was not assisted by any of those decisions.
70 The conclusion I have reached is that the pain and suffering consequences of the impairment of the function of the plaintiff’s left hand and arm, referred to in paragraphs 45-50 and 56 and 59 above, are “serious” when the relevant comparison is made.
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