Huynh v VWA
[2020] VCC 776
•4 June 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-03273
| HONG HUYNH | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 and 13 May 2020 | |
DATE OF JUDGMENT: | 4 June 2020 | |
CASE MAY BE CITED AS: | Huynh v VWA | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 776 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injuries to left elbow and right elbow– aggregation – pain and suffering and pecuniary loss damages
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Ansett v Taylor [2006] VSCA 171; McVey v GJ & LJ Smith Pty Ltd [2014] VSCA 293]; Sednaoui v Amac Corrosion Protection Pty Ltd [2017] VSCA 66; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Jovceva v TAC [2019] VSCA 105; Sheridan v VWA [2019] VSCA 54; Carbone v Toyota Motor Corporation [2017] VSCA 249; Tavendale v The Age Co Ltd [2009] VCC 642; Lexa v TAC [2019] VSCA 123; De Bono v VWA [2019] VSCA 85.
Judgment: Leave granted to the plaintiff to issue a proceeding seeking pain and suffering damages and pecuniary loss damages.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie QC with Mr R Paoletti | Zaparas Lawyers |
| For the Defendant | Mr B McKenzie | IDP Lawyers |
HIS HONOUR:
Introduction
1 Hong Huynh applies under s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for leave to issue a proceeding for the recovery of damages in respect of injuries suffered in the course of her employment with Specsavers Pty Ltd (“Specsavers”). Ms Huynh relies upon the impairment of the function of her left elbow and right elbow separately. She also says the impairments to her elbows can be aggregated. Whether separately or collectively, she claims she satisfies paragraph (a) of the definition of “serious injury” in s325(1) of the Act. Her application is made in respect of pain and suffering and loss of earning capacity consequences. The claim under paragraph (c) was abandoned.
2 There was no accident or incident as such. Ms Huynh describes an escalation of pain at work on a particular day[1]:
“In or about mid to late 2015, whilst performing my tracing duties for the employer, I began to notice discomfort in my left elbow and forearm. I did not report it straight away as I thought it was something that would go away. Then, on or about 14 October 2015 whilst I was performing my duties, the symptoms became noticeably worse.
I continued working, as I hoped that the symptoms would resolve but I continued to feel pain and weakness in my left elbow and forearm. I recall taking days off periodically in late 2015 and early 2016.”
[1]Plaintiff’s first affidavit at [18] and [19].
3 This case was mainly a contest about whether Ms Huynh suffered an organic injury or, at least, predominantly so.
Circumstances
4 By the time I deliver this judgment, Ms Huynh will be 49[2]. She was born in Vietnam, migrating with her family in about 1983. She attended secondary school but completed only Year 8 and then at the age of 16 or 17. She is now single. In the past, there was a partner, but no children. After a delay of about five years, she started working as picker/packer and machine operator with Weston Biscuits. She then worked for HP Packaging as a picker/packer and forklift driver. On 1 September 2010, she started as a process worker with Specsavers.
[2]Born on 26 May 1971.
5 Ms Huynh described her duties in detail in three paragraphs of her first affidavit.
6 Ms Huynh sought medical advice the same day when she saw Roya Gorji, a general practitioner. An ultrasound was performed. Dr Gorji injected the left elbow twice.
7 Ms Huynh wanted to resign and asked Dr Gorji to write to Specsavers. He did, but instead of accepting her resignation, they offered other employment[3]. She now worked in the despatch area. Her tasks involved[4]:
“…I was required to perform tasks such as wrapping spectacle frames together with the associated paperwork with elastic bands and putting them into tubs. I was also required to sort spectacle frames into alphabetical boxes, and pick frames off shelves in response to orders.”
[3]Offer dated 3 January 2016
[4]Plaintiff’s first affidavit at [21]
8 It was a gradual return with her hours starting at two per day, two days a week, but increasing over time. As they increased, so did her pain. To complicate matters, Ms Huynh began moving back to her tracing duties. She could not cope and Dr Gorji certified her unfit for those duties. She persisted in the despatch area on restricted hours until her employment ended on 25 July 2017. She has not worked since then.
9 Meanwhile, during March 2016, there was a flurry of activity with Ms Huynh’s left elbow or arm: another ultrasound, laser therapy treatment and Bowen therapy, a further injection into the left elbow and a nerve conduction study. Following x‑rays and the abortive prescription of Lyrica in May 2016, she changed clinics for the second time. She saw a physiotherapist once and an osteopath for longer.
10 During June 2016, Ms Huynh underwent MRI scans and attended another physiotherapist, also briefly.
11 In July 2016, Ms Huynh saw a musculoskeletal physician who referred her to physiotherapy but she continued with her osteopath instead. He also suggested psychological treatment, which she declined.
12 In September 2016, Ms Huynh saw an orthopaedic surgeon, Ponnaren Pak. He recommended surgery but she deferred her decision, preferring to wait and see.
13 There was a further x-ray of Ms Huynh’s left elbow in September 2016. She resumed seeing her osteopath in February 2017, saw a different orthopaedic surgeon, Ash Chehata, in July 2017, and attended a pain management program in October 2017. She did not finish the program because its treatment worsened her left elbow pain.
14 Ms Huynh described the emergence of symptoms in her right arm and her perception of the cause was[5]:
“Due to the symptoms I had been experiencing in my left elbow and forearm since about 2015, I had been more reliant on my right arm, both in my work duties and in my life in general. By about mid to late 2017, I began noticing increasing symptoms of pain and weakness in my right elbow and forearm as well.”
[5]Ibid at [44]
15 In October 2017, there was an x-ray and ultrasound of her right elbow.
Current situation
16 Ms Huynh lives alone; she no longer lives with her sister. At present, she is living in temporary accommodation in South Melbourne. Her weekly payments of compensation ceased in 2018 and she now receives a Centrelink benefit.
17 Pain is always present in both arms. As at 10 January 2020, Ms Huynh described her experience[6]:
“I continue with constant, frequently strong, pain in both elbows, wrists and forearms, in particular. Pain is constant, though varied. It generally increases with activity requiring the use of my arms. Simple daily activities, such as driving, shopping, and housework, are often difficult and painful for me. My sleep continues to be impaired by pain.”
[6]Affidavit sworn 10 January 2020 at [11]
18 Ms Huynh struggles with heavy lifting because of the weakness in her arms. She uses both hands to lift even light items, giving the example of a kettle. She shops but ensures the weight of her bag is not heavy. She exercises at a gymnasium a few times per week. She exercises her arms and uses very light weights. She finds the repetitive use of her hands painful. She does light cooking. She struggles with many of her household tasks. She still drives, making short trips, and avoids trips involving turning. She is right-handed and finds it difficult to write for long periods. She can type for only short periods. The state of her arms limits what she can do with personal care, such as using a hairdryer and tying her shoelaces. It is harder for her to fall asleep and stay asleep. Her lack of sleep leaves her tired during day. She is very sad and anxious because of the loss of her job: she enjoyed her job. She lacks energy and the motivation to socialise.
19 Ms Huynh started a computer course in 2017. Surprisingly, she is still attending. She spends three hours per week at the course. Work Able Consulting has helped her look for work without success. With the help of Work Able Consulting, she obtained two qualifications: Responsible Service of Alcohol and Responsible Service of Food. She sought work from restaurants and retailers, again without success. She tried unpaid work as a gaming attendant at The Palms Tabaret in Maidstone, but after a few days she was forced to stop. She is still looking for work but has had no interviews. In January 2020, she assessed herself[7]:
“It is my belief, as a result of performing activities of daily living, performing household duties, and performing the unpaid trial at The Palms Tabaret, that I will struggle to find a job for which I am qualified that I could reliably and sustainably perform. This loss of capacity for work causes me a great deal of distress.”
[7]Affidavit sworn 20 January 2020 at [5]
20 Until the COVID-19 lockdown, Ms Huynh volunteered at her mother’s aged care home, Mekong Aged Care. She spent one and a half hours a day for two days a week playing cards and calling bingo.
21 Ms Huynh still sees Dr Pawar. He treats her other complaints as well as these. Although Mr Thai recommended surgery, she is afraid of an operation. She still undergoes chiropractic and physiotherapy treatments. Physiotherapy is helpful, giving some relief.
Medical and other evidence
Pawar
22 Mostly, Prashanth Pawar has been Ms Huynh’s general practitioner. He first saw her in late May 2016. In October 2016, his diagnosis was left medial epicondylitis. By October 2017, Dr Pawar was also diagnosing left lateral epicondylitis. By October 2018, the diagnoses were left elbow medial epicondylitis and lateral epicondylitis and right elbow medial epicondylitis[8]. Surprisingly, by 2020, Dr Pawar was referring to left elbow medial epicondylitis and right elbow lateral and medial epicondylitis. He saw the injury to the right elbow as a consequence of the injury to the left[9]:
“Condition 1) [left medial epicondylitis] was the original injury suffered by Hong during the course of her employment, and it first became clinically evident in October 2015. Condition 2) [right elbow medial epicondylitis] appears to have arisen in October 2017 secondary to condition 1) as Hong was preferentially using her Right arm for work duties and personal ADLs resulting in over-compensation injury to the corresponding site on her Right-elbow. Condition 3) [right elbow lateral epicondylitis] was not directly related to her employment, as she was not working at the time, but again it appears to be an over-compensation injury secondary to conditions 1) and 2) above, as she performed personal ADLs.”
[8]Report dated 11 October 2019
[9]Report dated 3 March 2020
23 Dr Pawar expected the condition of the elbows to deteriorate. Ms Huynh had no capacity for her pre-injury duties but retained[10]:
“…minimal current capacity with several restrictions. She is unable, in both hands, to perform repetitive gripping, pushing, pulling, lifting or carrying. She has a weight lifting limit of 1 kg using one arm and 2 kg using both arms. As her condition deteriorates, she is likely to lose all work capacity altogether.”
[10]Report dated 21 January 2020 at p 2
24 In his last report and under the heading “The pain and suffering, distress or anxiety experienced by my client”, Dr Pawar said:
“Ms Huynh has all the above as she is very distressed about living with chronic pain that is likely to persist. She briefly developed a possible psychotic disorder late in 2018, as she had beliefs of being possessed by spirits, but there is some overlap of these beliefs with her religion.”
Le
25 Vu Le is a general practitioner. At one time he practised with Dr Pawar. Later, Dr Pawar went to another practice. His diagnoses were medial epicondylitis of the left elbow and, perhaps, lateral epicondylitis of the right elbow due to “compensatory overuse in the context of her existing left elbow injury”[11]. She lacked the capacity to resume her pre-injury duties but was fit for modified duties which avoided repetitive gripping, pushing, pulling, lifting or carrying with both hands. With lifting, there would be a limit of one kilogram with one hand and two kilograms with both. He did not expect improvement or deterioration in the elbows. The injuries were stable. His prognosis was poor although she would benefit from surgery for both elbows as conservative treatment had been exhausted.
[11]Report dated 22 January 2020 at p 1
Jensen
26 Steven Jensen specialises in musculoskeletal pain medicine. Dr Pawar referred Ms Huynh to him. Dr Jensen saw her initially in July 2016. Although there were mixed clinical signs, he gave her the benefit of doubt, as he put it, and diagnosed medial epicondylitis of the left elbow. He prescribed Duloxetine or Cymbalta. Given her presentation, her suggested psychological counselling. He suggested she could increase her work hours to four per day, three days per week: “I reassured her that no harm will come from this and it is very important to maintain some level of activity and use of the elbow and arm generally”[12].
[12]Report dated 26 July 2016
27 The need for psychological counselling prompted Dr Jensen to write to the authorised agent[13]:
“Your records will reveal this lady has a work related left non-dominant medial epicondylitis. Her clinical presentation is such that she also has associated quite profound psychosocial distress related to this injury. In keeping with the Victorian WorkCover Authority’s clinical framework of treating chronic pain with a biopsychosocial model of pain management, I feel it imperative we invoke some psychological services to assist with the rehabilitation of this lady. To not invoke psychology services is, I believe, to provide suboptimal management of this lady’s clinical problem and also would potentially quite significantly worsen her long term prognosis….”.
[13]Letter dated 26 July 2016
28 Apart from psychological counselling as part of the pain management program, Ms Huynh refused to seek such treatment.
Pak
29 Ponnaren Pak is an orthopaedic surgeon to whom Dr Le referred Ms Huynh. He examined her on 29 September 2016. His examination of her left elbow showed[14]:
“…she has got normal cubitus alignment and full range of motion of the elbow. Stressing her collateral ligaments leads to significant amount of pain over the medial aspect of her elbow on vagus testing. In addition to this she has exquisite local tenderness around the medial epicondyle of the elbow”.
[14]Report dated 29 September 2016
30 Mr Pak noted abnormalities in the common flexor tendon shown in an ultrasound and MRI scans, and evidence of early degenerative changes in the elbow. He diagnosed medial epicondylitis of the left elbow and recommended an open surgical incision of the common flexor tendon, osteopathy and re-attachment of the common flexor tendon. Ms Huynh said she would think about it and consult what she called her “case manager”, presumably at an authorised agent. The operation did not happen.
Dere
31 Matthew Dere is an osteopath. He treated Ms Huynh on numerous occasions between 2015 and 2018. The treatments came in bursts, they were not continuously given. He last saw her in March 2018[15]:
“When I saw her last she was progressing well but she was not ready to return to work. She may have been able to do minimal light duties on a part time basis, but she would require weekly osteopath manual treatment to assist with pain. Without treatment she would have no capacity for work. In terms of future work, I would hope that with treatment she would be able to return to work. Possibly in a different role.”
[15]Report dated 17 July 2018 at p 2
32 Dr Dere noted throughout her treatment she was “excessively anxious, nervous and worried about her condition”.
Pain management
33 In September 2017, three practitioners from Advance Healthcare (occupational medicine specialist, physiotherapist and psychologist) examined Ms Huynh for her suitability for a multi-disciplinary pain management program. They recommended an eight to twelve week program for two or three times a week. In late November 2017, she was discharged from the program during its fourth week because she wanted to stop, as the program had made minimal changes to her pain levels.
Chehata, Mammen and Thai
34 Each is an orthopaedic surgeon. They saw Ms Huynh in 2018 and 2019. They are likely to have seen her once each. Their reports are of little value. Mr Thai sought permission from the authorised agent for surgery to the left elbow, provisionally diagnosing the problem left elbow common flexor origin tear. By a notice dated 19 December 2019, the authorised agent did not approve the proposed surgery, relying on the August 2019 opinion of Dr Kostos (see below).
Stapleton
35 Murray Stapleton is a plastic and hand surgeon. He examined Ms Huynh at the request of her solicitors on 18 June 2019. His examination revealed slight tenderness over the medial epicondyle of both elbow joints and no loss of elbow joint movement. He diagnosed bilateral medial epicondylitis. First, he assumed, incorrectly, the right elbow symptoms arose shortly after those of the left elbow. Second, he assumed, correctly, that the right elbow had been accepted as a work-related injury. For both elbows, her level of pain was high but he found only slight tenderness over the medial epicondyle of the elbows. Surgery was not required at present because the tenderness is not very severe. If it worsened then surgery may be the only option. She could not return to her pre-injury duties. Mr Stapleton was uncertain about suitable employment. Since both upper limbs were affected, her capacity was reduced for pushing, pulling, lifting, repetitive activities, gripping, typing, writing or holding tools (particularly vibrating tools).
36 In January 2020, Dr Stapleton answered two questions in the same answer. The questions: Do you believe employment was a material contributing factor to my client’s righty arm injury? Whether Hong Huynh’s overuse of her right arm, because of the left arm injury, has been the cause of her right arm symptoms? The answer was somewhat unexpected[16]:
“Employment, due to the nature of your client’s work, would have aggravated the symptoms of both her right and left elbows. This is a condition which mainly involves women of middle age. Clearly there is an underlying degeneration problem which is most likely to be an inherited problem, but certainly the aggravation from her activities at the workplace, involving her right and left elbows, should be regarded as a work-related matter.”
[16]Report dated 17 January 2020 at p 2
Slesenger
37 Joseph Slesenger is an occupational physician. He examined Ms Huynh on 1 August 2019 at her solicitors’ request. She described her work to him. He noted the type of activities required. His examination of the right elbow revealed tenderness on palpation over the medial and lateral epicondyle, common extensor origin and common flexor origin. He measured the range of movements, some of which were slightly reduced. With the left elbow, on palpation, there was tenderness over the medial epicondyle and the common flexor origin. The range of movement was slightly reduced, less so than the right elbow.
38 Dr Slesenger diagnosed medial epicondylitis of the left elbow and medial and lateral epicondylitis of the right elbow. He saw Ms Huynh’s employment as causing these injuries[17]:
“The repetitive fine dextrous tasks that were performed (as well as some forceful activities). The repetitive nature of the job tasks. Her stature (which would have resulted in her performing many of these tasks at the limits of extension of both her elbows and wrists).”
[17]Report dated 6 August 2019 at p m10[?]
39 Dr Slesenger’s prognosis was guarded for reasons including the length of her impairment and disability and her poor response to treatment. He recommended restrictions on what she could do physically. She could not resume her pre-injury duties. Nor could she perform the occupations of bar attendant, gaming attendant, cashier, sandwich hand or process worker. Each of these would demand activities beyond her physical capacity.
40 Dr Slesenger gave a supplementary report on 13 January 2020. He was asked questions about the causal link between injury and employment. In relation to the right arm, he said[18]:
[18]Report dated 13 January 2020 at p 4
“As noted above, the right arm symptoms are multifactorial in origin, in particular I note:
― the pre-injury job demands.
― avoidance of the left side due to the left elbow impairments.
― Ms Huynh’s right handedness.
I am therefore of the opinion that the overuse of the right arm because of the left arm injury was a partial causal factor with regard to the aetiology of her upper limb symptoms.”
Vo
41 Austin Vo is an orthopaedic surgeon. On 6 January 2020, he examined Ms Huynh at the request of her solicitors. He found a full range of movement of both elbows. With the left elbow, she was tender over the medial epicondyle with pain on resisted elbow flexion. With the right, there was tenderness over the medial and lateral epicondyle with pain particularly over resisted extension. He summarised the important results of the ultrasounds, x-rays, MRI scans and bone scan of both elbows and a nerve conduction study of the left side. Mr Vo concluded Ms Huynh suffered from medial epicondylitis of the left elbow and medial and lateral epicondylitis of the right elbow. He attributed both conditions to the work she performed at Specsavers. He described her symptoms as significant and continuing. He saw her overuse of the right arm due to her left arm injury as a significant contributing factor to her right arm symptoms. Her conditions are stable with her symptoms worse on the left than the right.
42 Taking each arm separately, Mr Vo considered Ms Huynh unable to perform her pre-injury duties, either part-time or full-time. He did consider she had the capacity for full-time or part-time suitable employment provided there was no repetitive use of the right elbow to lift or carry certain items. The only difference with the left elbow was that suitable employment was more restricted because she is “restricted from anything relating to the repetitive use of the left elbow”.
Nguyen
43 Tung Nguyen is a consultant psychiatrist. On 14 December 2018, he examined Ms Huynh at the request of a colleague of Dr Pawar. Dr Nguyen took an extraordinary history:
“As you may know, Hong has been having anxiety, hypochondriasis and pseudo and true hallucinations since November 2017 in the context of increased stress. She had been on Workcover for a year now and she has been trying to take legal action against her employer. There has been issues with her partner and family due to illness. She had to find accommodation. She no longer has a job.
She reported hypnopompic/hypnagogic visual hallucinations of a male figure. Over time, this has become more often and occurred during the daytime. She can often see figures of a male or child in her peripheral vision. She can often feel a presence behind her. She had felt the male figure entering and leaving her body. She believes she is possessed by a spirit after talking to monks, faith healers, family and friends. She misinterprets certain bodily sensations as being due to the spirit.”
44 Dr Nguyen considered Ms Huynh was suffering from a psychotic episode, presumably because of her delusions. Her psychotic symptoms were quite prominent, excessive, distressing for her and affecting her functioning. She also had excessive anxiety and hypochondriasis, but not major depression. He prescribed Lurasidone, 40 mg per day. Dr Nguyen hoped her anxiety and hypochondriasis would improve as her psychotic symptoms resolved.
45 Dr Nguyen asked Ms Huynh to focus on her daily living activities and to ignore her psychotic symptoms, and discouraged her from pursuing the Buddhist approach or faith healers to deal with her symptoms. Although a further appointment was arranged in a week’s time, Ms Huynh did not return to Dr Nguyen. I doubt she took the prescribed medicine.
46 As one practitioner reporting to another, Dr Nguyen did not explain what he meant by “hypochondriasis”. It is a psychological disorder recognised in DSM‑IV‑TR[19]. Beyond that, I will go no further. Neither counsel raised it in their submissions and the defendant’s counsel saw no support in Dr Nguyen’s report for a pain disorder, postulated by the rheumatologist, Dr Kostos.
[19]Diagnostic and Statistical Manual of Mental Disorders, 4th edition, text revision
Medical Panel
47 A Medical Panel, consisting of a rheumatologist and an orthopaedic surgeon, examined Ms Huynh for an impairment assessment. They examined her on 20 July 2018. For the purposes of this assessment, the defendant had accepted liability for epicondylitis and forearm strain for each upper limb[20]. The Panel’s reasons set out a detailed history. It possessed the reports of the various radiological and other examinations. It concluded Ms Huynh suffered from left elbow pain due to chronic medial epicondylitis and right elbow pain due to chronic medial epicondylitis. Using a goniometer, the Panel measured the movements of each elbow. The range of motion meant that none led to a percentage impairment of each upper extremity. The gradual loss of grip strength did not reflect true weakness and was ignored. It reached a whole person impairment of zero per cent.
[20]See notice dated 23 April 2018
Long
48 Michael Long is a general surgeon. He examined Ms Huynh on 2 May 2016 at the request of an authorised agent. He provided two reports. The second, dated 30 June 2016, came after the provision of more documents. By then, he had the reports for ultrasounds, bone scan and MRI scans in 2015 and until May 2016. Ms Huynh was distressed during a prolonged consultation. He examined both elbows. The movements of the left elbow were normal compared with those of the right. There was slight tenderness in the common flexor origin of the medial and none in common extensor origin of the lateral. Ms Huynh complained of pain in the medial left elbow on clenching the left hand. His diagnosis was in the first report and remained in the second as medial epicondylitis and inflammation of the common flexor origin of the left elbow. He noted the minor radiological changes, but these changes were also seen in the asymptomatic common extensor origin of the left elbow. He thought she should be helped to return to work for her emotional wellbeing and anticipated she could work 36 hours per week on modified duties, starting on 11 July 2016.
Barton
49 David Barton is a consultant occupational physician. Again, at the request of an authorised agent, he examined Ms Huynh on 10 August 2016. Unlike her presentation to Mr Long, Ms Huynh appeared reasonably calm and relaxed. That day, he visited the defendant’s facility in Port Melbourne with Ms Huynh. With her left elbow, he found a full range of movement. There was mild tenderness near the medial epicondyle extending along the path of the ulna. He saw an x-ray report, which Ms Huynh brought with her. It is unclear what Dr Barton is referring to for the first x-ray of her left elbow that is in evidence occurred in September. Nevertheless, he observed her pre-injury duties and described them in detail. His diagnosis was: “I believe she may have developed a mild soft tissue injury of the left elbow complicated by a degree of abnormal illness behaviour…I would accept that her work activities may have led to a mild problem but not such a long history of symptoms”. Dr Barton felt she could return to her normal duties and hours gradually. What she needed were appropriate reassurance and encouragement to move on from this episode and to do normal work and exercise.
Boffa
50 Umberto Boffa is a consultant occupational and environmental physician. Between January 2017 and June 2018, he examined Ms Huynh four times at the request of an authorised agent. He also visited her workplace. He wrote five reports. They provide an insight into Ms Huynh’s condition in the months before her termination and afterwards. Associate Professor Boffa’s consistent findings with the elbows are normal contours, movement and strength.
51 At the time of the first examination on 12 January 2017, Ms Huynh was working in the dispatch area on non-repetitive modified duties and reduced hours. She was working five days a week between 6.00am and 2.00pm. She complained of continuing, but improving pain from the medial area of her left elbow. However, resisted extension of the left middle finger produced lateral elbow discomfort which suggested extensor digitorum involvement. There was mild medial tenderness and no pain with provocative testing for medial epicondylitis. His diagnosis was medial epicondylitis of the left elbow, which was chronic. The injury was caused by her repetitive handling in the course of her duties. She could not return to her pre-injury duties. Associate Professor Boffa was reasonably optimistic[21]:
“Chronic elbow epicondylitis is known for a protracted recovery taking often over 12 months and occasionally 18 months. The worker’s condition has benefited from a prolonged period of performing suitable alternative duties and has commenced improving. On this basis, I anticipate a return to pre-entry [pre-injury] duties and hours in 12 weeks. Recurrence will remain a risk and depending on the work site assessment, permanent task modification or New Employer Services may be required.”
[21]Report dated 12 January 2017 at p 4
52 Six days later, Associate Professor Boffa visited Ms Huynh’s workplace. His inspection confirmed her unfitness to return to her pre-injury duties then. She was fit for duties which avoided repetitive pushing, pulling, gripping, lifting and carrying more than one kilogram with the left hand and for modified pre-injury duties. Examining available duties within that facility, her current duties of scanning, packing and taping boxes were suitable as well as scanning in other sections of the facility. She was unsuited for other areas of work there.
53 At Associate Professor Boffa’s next examination on 6 July 2017, Ms Huynh was still performing work in the despatch area. Her hours were 6.00am to 2.00pm, Monday to Friday. Unlike his first examination, there was local pain on provocative testing for medial epicondylitis.
54 By the time of Associate Professor Boffa’s third examination on 6 December 2017, Ms Huynh had lost her job and Work Able Consulting were helping her to find another. There was now a complaint of pain in the right elbow, less severe than the left. On testing, there was mild medial tenderness for each elbow and local pain on provocative testing for medial epicondylitis. He saw the injury to the right elbow as a direct consequence of the injury to the left through treatment. Her current pain management should cease and he suggested an autologous blood injection. He considered as suitable employment the roles of process worker, product assembler, forklift driver and order clerk provided there was no repetitive gripping, pushing, pulling, lifting and carrying more than two kilograms with either hand. He did not consider suitable other suggested roles because of the degree of manual handling. He saw some surveillance film and felt the activity depicted was consistent with her presentation to him.
55 Associate Professor Boffa’s fourth and last examination was on 6 June 2018. Its purpose was to assist in considering Ms Huynh’s ongoing medical and other health services. She experienced continuous pain in the elbows, worsening with activity. His examination revealed lateral and mild medial tenderness to the elbows with local pain on provocative testing for medial and lateral epicondylitis. His diagnosis was lateral and medial epicondylitis in both elbows but predominantly lateral. She is fit to return to work gradually with the same restrictions as before. He agreed with the proposed occupations of machine operator/tracer and process worker subject to the restrictions but not bar/gaming attendant, cashier, sandwich hand or packer.
Karna
56 Roy Karna is a rheumatologist. On 28 March 2018, he examined Ms Huynh at an authorised agent’s request for an impairment assessment. She was co‑operative and genuine. Resisted wrist flexion reproduced medial epicondylar pain for the elbows. Full flexion of both elbows produced discomfort. Flexion was slightly restricted for both. The other movements of the elbows were normal.
57 Dr Karna diagnosed bilateral common flexor tendinitis at each elbow with the right more symptomatic than the left. He saw the 2016 MRI report of the left elbow consistent with left sided common flexor tendinitis. His impairment assessment was minor, 2 per cent.
Kostos
58 Tony Kostos is a rheumatologist. At the request of the defendant’s solicitors, he examined Ms Huynh on 12 August 2019 and 21 April 2020. She complained of pain over the medial aspects of both elbows and forearms, which could be worse on either side. His examination of the elbows[22]:
“…showed a full range of pain free movements. She did not have any medial or lateral epicondyle tenderness and I confirmed this with the interpreter. Confirmatory testing for medial epicondylitis is negative on both sides. However, she has diffuse forearm tenderness medially with local forearm tenderness laterally over the proximal brachioradialis muscles.”
[22]Report dated 20 August 2019 at p 4
59 The condition of her hands was consistent with normal use.
60 Dr Kostos would not diagnose medial or lateral epicondylitis in the absence of any medial or lateral epicondyle tenderness. If she once had epicondylitis, it had resolved. Her chronic pain is not associated with any identifiable physical cause. She had a pain syndrome, which causes her to believe she is injured. Since the epicondylitis does not exist, she is not prevented from working because of it.
61 At his second examination, Dr Kostos reaffirmed his earlier conclusions. Ms Huynh’s complaints of pain remained the same. There was no evidence of epicondylitis. Ms Huynh had a chronic pain syndrome with widespread tenderness in both forearms. Dr Kostos described what he meant by the syndrome[23]:
“Pain syndromes are related to psychological and social factors with the role of inherent personality traits, previous life experiences, attitudes and beliefs and the adaptability to cope with anxiety and stress becoming increasingly appreciated.”
[23]Report dated 22 April 2020 at p 2
62 And adding in the next paragraph:
“The problem here is that this woman has not seen a Doctor who has expertise in musculoskeletal medicine who has been able to clarify the situation.”
63 Dr Kostos believed Ms Huynh has been misdiagnosed by her physicians. To him, the diagnosing of epicondylitis is straightforward: complaints of tenderness, thickening over the epicondyles, resistance testing and confirmed, if necessary, by corticosteroid injection. Radiological examinations, including ultrasounds, are unnecessary. He is critical of Dr Pawar and Mr Vo. With the latter, he is critical of his diagnosis of medial and lateral epicondylitis of the right elbow upon a finding of tenderness over the medial and lateral epicondyles with pain on resisted extension. This, he says, is only a problem with patients with lateral epicondylitis. He also criticises the suggestion of PRP injections and surgery.
Radiology
64 On 20 October 2015, an ultrasound of the left elbow showed mild chronic common flexor and common extensor tendinosis. A further ultrasound of that elbow on 3 March 2016 showed mild medial and lateral epicondylitis. A nerve conduction study in March 2016 did not find any left ulnar nerve dysfunction. On 6 May 2016, a whole body bone scan revealed early arthritis generally. With the elbows, there was mild arthritis and nothing to suggest epicondylitis. On 6 June 2016, MRI scans of the left elbow showed “subtle” scarring in the fibres of the common flexor origin and common extensor origin without distracted tearing. On 28 September 2016, x-rays of the left elbow were performed and revealed little according to the radiologist:
“An obvious plain radiographic cause for pain is not identified. No effusion, fracture or acute abnormality. Minimal spurring involves the coronoid process, presumably degenerative but not necessarily significant. No other arthropathy”.
65 On 20 October 2017, the right elbow was investigated. X-rays did not detect any body abnormality while an ultrasound showed mild medial and lateral epicondylitis. Finally, on 24 June 2019, ultrasounds of the elbows revealed minimal low-grade common flexor tendinosis of the left elbow and more obvious common extensor tendinosis of the right elbow with an associated ganglion cyst.
Ansett v Taylor
66 Counsel for Ms Huynh relied on the observation in Ansett v Taylor[24], but lightly so. Dr Karna and the Medical Panel were asked to assess the impairment to the elbows. They were told those injuries were accepted; that is, they arose out of or in the course of her employment with Specsavers and were compensable injuries. However, in December 2019, the defendant was unable to approve the surgical request of Mr Thai, relying on the opinion of Dr Kostos. If there had been an injury, it had resolved. Just to confuse the picture a little more, Ms Huynh sought further physiotherapy treatment. It was not approved by the defendant. She referred the dispute to conciliation. According to Ms Huynh, the defendant or, at least, its agent agreed to approve the request. She has now undergone treatment and would like more. Physiotherapy can only relate to an organic or physical injury. Noting the authorities drawn to my attention on this issue, overall, there is sufficient for me to use as evidence of an admission that the injuries to her upper limbs arose out of and in the course of her employment with Specsavers and were unresolved[25]. This admission is merely a piece of evidence and is far from decisive.
[24][2006] VSCA 171
[25]McVey v GJ & LJ Smith Pty Ltd [2014] VSCA 293 at [47] and [49]; Sednaoui v Amac Corrosion Protection Pty Ltd [2017] VSCA 66
Discussion
Credit
67 I accept Ms Huynh as a creditable witness. There was no real attack upon her credit, which is understandable as the defendant’s position is her complaints of pain are non-organic in origin.
Substantial organic basis or not
68 Both parties drew my attention to Meadows v Lichmore Pty Ltd[26], with the defendant drawing my attention to three other cases[27]. In Meadows, Maxwell P saw no error in law in the rule of practice or convenience developed in these applications[28]:
“As a result, so the respondent submitted, serious injury applications raising issues of this kind are effectively approached in a two-step manner. The first step is to ask whether there is a substantial organic pain and suffering consequences relied on. If the answer to that question is affirmative – and, of course, if the pain and suffering consequences satisfy the statutory criterion – then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.
If, however, that first question is not – or cannot be – answered affirmatively, then the applicant will need to take the next step and ‘disentangle’. That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the Court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.”
[26][2013] VSCA 201
[27]Jovceva v TAC [2019] VSCA 105 at [54]; Sheridan v VWA [2019] VSCA 54 at [70]; and Carbone v Toyota Motor Corporation [2017] VSCA 249 at [108]
[28]At [21] and [22]
69 Ms Huynh relies on “substantially organic pain and suffering consequences”. Her counsel submits the substantial organic basis is confirmed on the radiology. The defendant’s counsel submitted the results were relatively benign. The investigations suggest pathology. Their significance is not for me to say. Suffice to say that many of the practitioners have used the results to make diagnoses.
70 All the practitioners, except Dr Kostos, find an organic basis for the pain and suffering consequences. With reservation, Dr Jensen did. It is fair to say Dr Barton found an organic basis but not to the extent of substantially so. Plainly, Dr Kostos did not. Four practitioners have recommended surgery, three of whom gave their opinions to Dr Pawar. Mr Thai’s recommendation was rejected by the defendant. Mr Stapleton made a qualified recommendation as a medico-legal practitioner[29].
[29]Report dated 18 June 2019 at p n3[?]
71 In a piece of advocate’s licence, Ms Huynh’s senior counsel submitted Dr Kostos descended into advocacy. I do not accept that submission. Dr Kostos proposed a chronic pain disorder, going so far to explain what he meant. It is outside his area of expertise to so diagnose. There is no psychiatric or psychological diagnoses of a chronic pain disorder or whatever may be the proper name of that disorder. Dr Jensen saw the urgent need of psychological counselling but did not go anywhere near such a diagnosis. Neither did the anomalous report of the psychiatrist, Dr Nguyen. When Dr Nguyen saw Ms Huynh, she was undergoing a psychotic episode. He reported to Dr Pawar. Dr Pawar describes this episode as brief. There is no suggestion in Dr Pawar’s last report that he thought Ms Huynh still suffered from symptoms amounting to a psychiatric or psychological disorder.
72 When Dr Kostos referred to a specialist in musculoskeletal medicine, he includes himself in that category. He bemoans the fact that none of Ms Huynh’s practitioners had such expertise. I would have thought Dr Karna, as a fellow rheumatologist, came within the category. I cannot see how you could exclude the orthopaedic surgeons from that category. There has been a consistent diagnosis of medial epicondylitis of the left elbow. In time, there were diagnoses of epicondylitis of the right elbow. I am assuming Dr Karna’s diagnoses of bilateral common flexor tendinitis is akin, or somewhat akin, to medial epicondylitis of both elbows.
73 Dr Kostos was aware of the radiological and other investigations for he summarises the reports in his first report. Where the other practitioners, including Dr Karna, gained help in their diagnoses from this material, it appears Dr Kostos does not, going so far as to say their findings confused Ms Huynh’s practitioners.
74 It is another instance of advocate’s licence to submit Dr Kostos treats Dr Pawar and Mr Vo as fools. He does not. He is very forthright in his language, which is surprising, given he is speaking about fellow practitioners. Mr Vo’s suggestion of PRP or blood patch injections is savagely rejected as “trendy money spinners with little evidence of efficacy”. I suppose the rough and tumble of the adversarial system has its effect. He certainly asserts misdiagnosis. In the way these applications are conducted, I cannot resolve this criticism of Mr Vo[30]:
“He also notes that she is tender over both right medial and lateral epicondyles with pain on resisted extension which is only a problem with patients in lateral epicondylitis, yet diagnoses both medial and lateral epicondylitis.”
[30]Report dated 22 April 2020 at p 3
75 Not unnaturally, Dr Kostos rejects the possibility of surgery. I would be surprised if he did otherwise since he does not diagnose epicondylitis or any other organic condition. The fact that other practitioners have recommended surgery merely highlights others have diagnosed an organic condition requiring surgery, in their view.
76 When Dr Jensen used the expression “the benefit of the doubt”, I believe he meant, on balance, Ms Huynh was suffering from epicondylitis. Admittedly, he recommended psychological counselling, but I do not consider his comments can be interpreted as her complaints are predominantly psychological, for he also recommended her seeing a physiotherapist. I daresay most persons who suffer significant injury also experience some degree of psychological reaction. I believe Dr Jensen saw Ms Huynh in that light.
77 Dr Barton ‘s diagnosis of a soft tissue injury is imprecise. He saw Ms Huynh about 10 months after the onset of symptoms. The only investigation he saw was the x-ray report she brought. I do not know what he saw, for the first x‑ray I am aware of occurred the month after she saw him. He has not had the benefit of a more recent opportunity to examine her and assess the left and right elbows. I do not agree with the submission that the opinions of Drs Jensen and Barton necessarily support Dr Kostos. I have explained Dr Jensen and Dr Barton because it is speculative to extrapolate an opinion in August 2016 to the present.
78 The report of the psychiatrist, Dr Nguyen, is anomalous. He saw Ms Huynh once. Dr Nguyen found her undergoing a psychotic episode. He reported to Dr Pawar that day, arranged another appointment in a week’s time and prescribed a medicine. He referred to her as having anxiety, hypochondriasis and pseudo and true hallucinations. He noted left elbow and low back pain from her work injury two years earlier. Dr Pawar later felt she had had a brief psychotic episode. Implicitly, he did not link the hypochondriasis with the left elbow or low back injuries, for he makes no mention of it in his later reports. The significance of Dr Nguyen’s report for this proceeding is that there is no mention of a pain syndrome, however described, and it gave no support to a claim under paragraph (c), which was withdrawn at the beginning of the hearing.
Treatment
79 The defendant submitted that Ms Huynh’s failure to respond to treatment is consistent with a non-organic injury. Her counsel contended there was no medical evidence to that effect and there is evidence of some effectiveness. It is true there is no medical opinion supporting the contention. Dr Kostos does not say so explicitly. However, it is the clear implication from his reports. Ms Huynh sought funding for further physiotherapy. Her request was rejected. She referred her dispute for conciliation. At the conciliation conference, the defendant agreed to pay for eight sessions, to be used by 20 May 2020. She attended Main Road West Physiotherapy for treatment, which she found helpful. She is hoping the defendant will fund more sessions[31]. She gains relief from those sessions. She still takes two to three Panadol Osteo tablets each day, three to four days a week and gains some relief from taking those tablets.
[31]Affidavit sworn on 8 May 2020 at [3]
80 I am not prepared to dispense with the opinions of the other practitioners who diagnosed an organic problem in one or other or both elbows and prefer those of Drs Kostos and Barton. The weight of opinion argument is attractive in some cases and not in others. It depends on one’s analysis of the opinions. In this case, it is a compelling argument that the origin of Ms Huynh’s pain is organic.
Injury
81 I am satisfied Ms Huynh has suffered compensable injuries, being medial epicondylitis of her elbows and lateral epicondylitis of the right elbow, arising out of or in the course of her employment with Specsavers.
Aggregation
82 Ms Huynh puts her case one or other of two ways. First, she relies on the impairment of the body function relating to her left elbow. Second, she seeks to aggregate the impairments to the body functions of her elbows. For the latter, she relies upon a judgment of this Court in Tavendale v The Age Co Ltd (“Tavendale”)[32].
[32][2009] VCC 642
83 Tavendale was raised in Lexa v TAC[33] where the Court distinguished it on its facts. It is still accepted as good law. In that case, an incident caused injury to the left knee. Later, the right knee was injured as a result of the injury to the left knee in these circumstances[34]:
“…the evidence establishes that the plaintiff’s right knee gradually became symptomatic as the plaintiff was caused to favour his left knee by reason of the presence of symptoms in that knee, and that the symptoms in the plaintiff’s right knee increased dramatically as a result of his knee succumbing to the increased pressure placed upon it in these circumstances. In my opinion, it is appropriate to categorise the plaintiff’s injury to the right knee as arising as a consequence of the injury occasioned to the plaintiff’s left knee because it was caused directly by reason of the fact that the plaintiff, in protecting his left knee following his injury, altered his gait which in turn exposed his right knee to unusual and unnatural pressure with the result that his right knee became symptomatic.”
[33][2019] VSCA 123
[34]Tavendale at [19]
84 I have already quoted what Ms Huynh said about the emergence of right elbow symptoms, a position she maintained during cross-examination. From 2015, she relied more on her right arm because of the symptoms experienced with her left. Since she is right-handed anyway, there was reliance for things done with that hand. However, there was even more reliance on that arm with the result of it becoming painful. It is reliance that is important as Tavendale makes clear. Her view is supported medically.
85 Dr Pawar sees the right medial and lateral epicondylitis as a consequence of the injury to the left elbow through Ms Huynh preferring to use her right arm for work duties and her activities of daily living. Dr Slesenger takes a somewhat similar view. He implicates her work as a cause of the right elbow symptoms, as well as the greater reliance upon the right arm after the injury to the left and the fact she is right-handed. Mr Vo is, perhaps, taking a somewhat similar view as well when he says that overuse of the right arm due to the left arm injury has been a significant contributing factor to her right arm symptoms. I say that because he uses the expression “significant contributing factor”. Associate Professor Boffa viewed the right elbow injury as a direct consequence of the injury to the left through treatment.
86 The principle in Tavendale is expressed in terms of causation. On my reading, it does not require a single cause. If overuse of one limb because of the injury to the other is an important or significant cause of the injury to that limb, then the impairment of the relevant body function can be aggregated with the other. That is the case here.
Pain and suffering consequence
87 I have set out the current situation for Ms Huynh under the heading “Current situation”. It is the experience of pain in both elbows, which is critical. I accept she does experience the pain she describes. I also accept that this pain comes from an organic or physical injury. The pain inhibits so much in her life. If one focussed on the left elbow, then constant, frequently strong, pain is present. She cannot lift anything but the very light with the left arm due the pain in the elbow. It impairs many of her household and personal tasks in conjunction with her right arm. Because she is right-handed, the left elbow makes less of a contribution. The loss of her pre-injury job is significant. She enjoyed it. Its loss leaves her sad and anxious. Looking from the perspective of the impairment of the body function related to the left elbow, after making the required comparison, the pain and suffering consequence is more than significant or marked and is very considerable. Aggregating the impairments of the body functions related to both elbows, then the same conclusion is reached.
Loss of earning capacity consequence
88 Ms Huynh must prove[35]:
(a)her loss of earning capacity consequences, when judged by comparison with other cases in the range of possible impairments or losses of a body function, were fairly described as being at least very considerable; and
(b)she suffered a loss of earning capacity of 40 per centum or more, measured as set out in s 134AB(38)(f); and
(c)she would continue permanently to have a loss of earning capacity which would be productive of a financial loss of 40 per centum or more.
[35]De Bono v VWA [2019] VSCA 85 at [47]
89 Dr Pawar has treated Ms Huynh for years. One can trace his views of her capacity for work in his reports. His last report, dated 21 January 2020, is the most pessimistic. Speaking of the arms together, there is minimal capacity for work with the likelihood of none at all through deterioration of her condition.
90 In August 2019, Dr Slesenger considered her incapacitated for her pre-injury duties. In relation to the arms individually, he also considered five specific jobs beyond her capacity. Reading the physical restrictions he recommended, her incapacity for her pre-injury duties and the reasons for her incapacity for those five jobs, Dr Slesenger was defining a person with minimal residual capacity for work. Presumably, combining the arms renders her capacity even less. Interestingly, Dr Slesenger advised against the gaming attendant role. Ms Huynh proved that piece of advice was correct for she attempted the role but was unsuccessful.
91 Mr Vo excluded Ms Huynh’s pre-injury duties for each arm individually. For each arm, he considered she retained some capacity for suitable employment although restricted from anything related to the repetitive use of either the left or right elbow.
92 I am satisfied Ms Huynh’s loss of earning capacity consequence is more than significant or marked and at least very considerable. Ms Huynh was once reasonably fit and has been reduced to a person with minimal capacity for work. She also satisfies (b) and (c) of the above statutory test. Her Court Book sets out her gross annual earnings been 2010-2011 and 2017-2018[36]. Neither party relied on any vocational assessment or similar material. That is understandable for, as I have said, her residual capacity for work is minimal. Plainly, she satisfies the additional test posed by s 134AB(38)(e) and (f).
[36] P 187.
Conclusion
93 I will give leave to Ms Huynh to commence a proceeding to recover damages for pain and suffering and pecuniary loss damages.
- - -
0
10
0