Kankanamge v Victorian WorkCover Authority
[2021] VCC 1845
•24 November 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-04450
| SATHYA RUPASINGHE KANKANAMGE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 November 2021 | |
DATE OF JUDGMENT: | 24 November 2021 | |
CASE MAY BE CITED AS: | Kankanamge v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1845 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment of the left wrist/hand – pain and suffering only – range
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners & Ors v Podolak (2005) 14 VR 622; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Abbas v Transport Accident Commission [2015] VSCA 217
Judgment: Leave granted to the plaintiff to bring proceedings for damages for pain and suffering.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L Allen | Maurice Blackburn |
| For the Defendant | Ms F Ryan | IDP Lawyers |
HER HONOUR:
Preliminary
1This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with Blue Mountains Victoria Pty Ltd, trading as Domino’s Pizza (“the employer”) on 27 February 2014 (“the said date”).
2This application, although originally brought under both heads, proceeded in relation to pain and suffering only.[1]
[1] Transcript (“T”) 1
3The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4The body function said to be impaired is the left wrist/hand.
5The impairment of the body function must be permanent.
6Subsection 38(h) of the Act provides that consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
7The plaintiff bears an overall burden of proof upon the balance of probabilities.
8By subsection (38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which:
“… when judged by comparison with other cases in the range of possible impairments, or losses of a body function or disfigurement, as the case may be, fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable.”
9I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
10I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[2] and Haden Engineering Pty Ltd v McKinnon[3] in reaching my conclusions.
[2] (2005) 14 VR 622
[3] [2010] VSCA 69
11The plaintiff swore two affidavits. She was cross-examined. She also relied on an affidavit sworn by her husband, Mahamarakkalage Ramesh Nandika Stembo, on 8 November 2021. Also in evidence were medical reports and other material. I have read all the tendered material.
12Range was in issue in this application.[4]
[4] T6
13Counsel for the plaintiff submitted the consequences “comfortably satisfy the narrative test.”[5]
[5] T50-51
14Counsel for the defendant submitted that the consequences do not meet the threshold and the Court should not be satisfied that the plaintiff’s level of pain or dysfunction, as claimed in her most recent affidavit, are serious.[6]
[6] T46
The Plaintiff’s evidence
15The plaintiff is presently aged thirty-six, having been born in Sri Lanka in 1985. She is right hand dominant. She is married, with a six-year-old son. They live at a house they recently bought in Clyde.
16She completed Year 12 and worked in credit control/financial services for five years. She came to Australia in 2012 after an arranged marriage in Sri Lanka.[7]
[7] T12
17In June 2013, she started work with the employer in Box Hill – a business run by her husband.
18On the said date at work, she fell and injured her left hand (“the incident”).
19She was taken by ambulance to Box Hill Hospital, where her fractured wrist was placed in a cast. The following day, she consulted Mr Patrick Byrne, orthopaedic surgeon, at South Eastern Hospital, who operated on 1 March 2014, inserting a plate in her left wrist (“the operation”). She was subsequently reviewed by him and had further x-rays.
20The plaintiff consulted Dr Mendis, general practitioner, and also had physiotherapy at Hampton Park, last attending in August 2014.[8] She has been taking over-the-counter medication from an early time and agreed that as at August 2014, she was no longer being prescribed medication, but was taking Panadol and Nurofen.[9]
[8] T10
[9] T11
21The plaintiff suffered ongoing wrist pain and Mr Byrne suggested she could have the plate removed to help, but she could not because she was pregnant. He advised her that this surgery may or may not help and, because there was no guarantee, she was reluctant to have the procedure.
Work since
22She returned to work with the employer in June 2014 on light duties and from August that year, she worked full time.
23On her return, she was not doing any very heavy lifting or washing, and was just mainly serving customers and doing light duties, pizza making, cutting and things like that. Before the injury, she was mainly in the shop doing the work, and her husband was doing deliveries, and a lot of times they did those jobs together, and hired another person to do the deliveries.[10]
[10] T11
24The plaintiff stopped work in October 2014, prior to giving birth to her son.[11]
[11] T13
25In August 2018, she commenced work at Mercer Superannuation as a consultant. It was a full-time job,[12] and she was fortunate to have office work. She stopped working for Mercer in December 2019. Her parents had come over to help look after her son, but they returned to Sri Lanka and she did not have anyone to help her with her son. She stopped work temporarily to look after him.
[12] She later said she was working three days a week until 2020
26In August 2020, when her son started school, she was able to start working again, this time with Vision Super in customer service, where she stayed until September 2021.
27She then changed to her current employer, Netwealth, where she works in a customer service role from home full time. Her job involves being on the phone, using a headset and typing.
28Her husband has been off work since an injury in April 2020.[13] When the plaintiff first went back to work she was working three days a week. As the family needed money after her husband’s illness, she asked for further hours and started working full time, maybe in May 2020.[14] In between various lockdowns, she has attended the office on occasion.
[13] T16
[14] T16 – some difference in dates to affidavit
29The typing she needs to do in her current role still makes her wrist extremely sore by the end of the day. It aches and gets worse throughout the day. The job is not ideal for her, but she cannot think of anything lighter than this and her family needs her income.
30She is only a young woman and has her whole working life ahead of her, and also a lot of work to do in the future as a mother. Her left wrist restricts her and troubles her a great deal, and it upsets her when she thinks about having to put up with all these problems for the rest of her life.
31Presently, when it gets busy, particularly as she is working in a call centre, her work takes her mind off it, but the hand is painful. There is a lot of talking in the job, with people asking very complex questions about investments. Keyboard work takes up about 70 per cent of the time, when she is taking notes, and talking, and sending emails, updating accounts, while she is working at Net Wealth with existing customers.[15]
[15] T19
32She agreed, as she reported to Dr Rowe in July this year, that she was coping without any restrictions on her work duties.[16]
[16] T23
Pain
33She had pain when she was not working and was just looking after her child, however when she started work, as well as day-to-day work at home, that is when her wrist became increasingly painful. She was doing typing all day and then after work she had to make the dinner and clean the house, and then it became a bit irritable, more irritable and the pain increased.[17]
[17] T14
34As at April 2019,[18] she had pain in her left wrist which came and went. It came on with activity and she had some degree of pain most days. It was a squeezing type of pain starting in the forearm and running to the thumb.
[18] First affidavit
35She agreed this was the situation at that time but would not say most of the time she was pain free. The pain was there when she thought about it, but she could not be thinking about it all the time, especially the whole day with a lot of typing towards the end of the day, when she really felt it. The pain was still there, but when she got busy she tended to not think about it. She does have pain throughout the day, and just would not say it is not there.[19]
[19] T18
36Most of the time, the pain came on in the evening or towards the end of the day. She avoided heavy lifting because it aggravated her left wrist pain. She did not like to ask for help, so she tried as much as possible to manage without help from her husband. Two-handed activities caused her the most difficulty, such as wringing out the clothes.
37If she did grocery shopping or had been lifting, her pain could increase to six or seven out of ten. It was worse in cold weather and, with particular movement, she was aware of the plate.
38If anything, since April 2019, her wrist pain and discomfort has become worse.
39She could not remember telling Dr Rowe in July this year that the wrist pain tended to come and go. It was worse at the end of the day. She did not like to think of it all the time and she had to get on with her life. She had responsibilities, and was not a person who complained all the time, so she did not tend to go “Oh, it’s always painful and like that”, but she cannot remember saying it comes and goes.
40She was aware, however, that when she saw Dr Rowe she was seeing him for her solicitors about her case and that it was important to tell him how her left wrist was. She could not remember the exact words, but she remembered explaining to him about the pain she was having.[20]
[20] T25
41The pain and discomfort in her wrist is generally worse in the cold weather and in the mornings.
42She disagreed she does not have constant pain and that the pain is on and off. It is there all the time, it is just she has to get on with her life and she tends not to think about it that much, but with day-to-day work, everything she is doing increases it, and there are times it becomes “a bit unbearable”.[21]
[21] T23
43She confirmed she did not have swelling in the wrist.[22]
[22] T23
44In re-examination, she described progression of her pain from the start of a working day until the end of the day. Initially, it is not that painful, and she tends not to think about it, it is only about three out of ten and towards the end of the day after work it is about five to six out of ten, and then after her housework, cooking at the end of the day, she takes a painkiller when it gets to about seven to eight out of ten.[23]
[23] T44
Medication
45The plaintiff agreed, as at May 2017, when she saw Dr Fish, she was taking Panadol once a week, but could not remember exactly, as that was a long time ago. She took it when she needed to.[24]
[24] T15
46In 2019, she was taking two Panadol about three to four times a week before she went to sleep.
47For pain relief she now takes Panadol and Nurofen as needed, but tries her best to avoid medication. However, she still ends up taking it most days, usually on work days, because she needs it to get through the day.
48While Dr Rowe noted in July this year that she takes an occasional over-the-counter analgesic, such as Panadol or Nurofen, she agreed she was taking Panadol and Nurofen when the pain was too much for her to bear when asked about the word “occasionally”. She has tried to avoid taking it, and does not want to be living with Panadol every day. She wants to be active with her son, so when she does not want her pain to disturb that, she takes Panadol or Nurofen just to get the relief so that she can get on with her life. She ultimately agreed that she would have said that she took over-the-counter pain relief medication occasionally.[25] She later disagreed with “occasional” and takes medication when she needs to take it.[26]
[25] T26
[26] T42
49She would not say she does not have constant pain, she still has it, but it is with the type of things she is doing it gets worse, and she tends to manage it with Panadol and things like that. Having surgery is not at the top of her “to do” list at the moment.[27]
[27] T42
Fitness
50Pre-injury, she always liked to keep herself fit and did home exercises including push-ups and planks for core strength, but she cannot do those now due to wrist pain. She can walk for exercise but she could not do planks or push-ups, because it was too painful.[28]
[28] T34
51She had been to Sri Lanka in December 2018 and again in 2019. She had been to Mount Buller, which her Facebook page showed to be in September 2019, but had not done any skiing.[29]
[29] T37
Home renovations
52Her husband renovated houses and there had been times since her injury when she had helped him. Physical activity made her wrist worse, but she did not like staying behind when he did all the work, but she did what she could. She felt guilty if she did not help because they did not have family in Australia and they were a team. She put up with as much pain as possible and took Panadol.
53She and her husband renovated one investment property. He finished most of the work after he finished his work day and she could not do a lot of it, so they hired people to do the things that they did not know about it. They sold the house at Berwick after they renovated it. She tried to help him as much as she could because it was a collaborative effort. She was looking after her son full time. She described herself as a very active, very strong person and tried to help as much as she could, and never said no, because she liked trying and doing things.[30]
[30] T22
Her son
54In April 2019, she described being a new mother was not a good experience because of her wrist pain. She continued to have difficulties caring for her son. While he was more independent, it was also harder because he was heavy and then weighed about 20 kilograms. Getting him in and out of the car was difficult. She usually asked him to help, like getting down out of the car himself. She could run around with him, but climbing or playing “horsey” was painful. She had tried to explain to him that she could not do everything. He was very energetic and she usually waited for her husband to come home before they went to the park, because he could help their son up onto the equipment and climb with him on the monkey bars, whereas she had to avoid these activities to protect her wrist.
55She recently deposed that lifting that hurts her wrist a lot is lifting her son in and out of the car. She can do it, but it hurts her wrist a lot. It is something that she has to do regularly as a mother. She continues to find it difficult and painful to play with her son, and has to say “no” a lot to him, which makes her feel very sad.
56She agreed her son is now seven, and that it was simply not true she had to do regularly get him in and out of the car. She is able to play cards and boardgames, do drawing with her son and kick a ball with him, but cannot do activities like on the monkey bars.[31]
[31] T35
Recent treatment
57The plaintiff agreed she did not see her general practitioner for her left wrist pain between June 2016 and late 2020. She disagreed that was because there was not a problem with it, it was just because she was managing. She was managing with over-the-counter Panadol and Nurofen, which she took as and when she needed to take them, that is about it. “I just try to, you know, live my life the best way I can.”[32]
[32] T43
58Her solicitors arranged for her to see surgeon, Mr Miller, in early 2020 and he recommended a further wrist x-ray, which she had in April 2020.
59She spoke to Dr Mendis, who referred her for a left wrist ultrasound, which she had in December 2020. He then referred her to a different surgeon, Mr Berger, whom she saw in May 2021.
60Mr Berger advised she could have surgery to remove the plate because that could be what was causing her problems, but he could not give her any assurances that it would make her situation better, as had been Mr Byrne’s advice.
61Mr Berger also told her it would take some time to recover from the surgery and this worried her, given that she was a working mother. She decided that she would not have the surgery in the foreseeable future.
62For the moment, for the foreseeable future, she did not think she could have the surgery, simply because she could not take time off and look after a child, and did not see herself going through another operation because she does not know what is going to happen if there are complications and she could not have the time off. When it was suggested this was not major surgery, she confirmed her earlier explanation. It was inconvenient for her at the moment because of her husband’s illness. He cannot do anything, and he needed help.[33]
[33] T41
63She has a large scar on her left wrist. Her wrist is tender and sore if it is knocked or prodded in that area. She often wears longer sleeves to try and cover the scar. Three photographs of her wrist taken earlier this year were exhibited to her affidavit.
Wrist movement and strength
64She can feel the plate in her wrist whenever she flexes her wrist or thinks about it. She cannot move her wrist to its full range. Moving it in any direction is painful and makes her feel the plate even more, which is an uncomfortable and painful feeling. She feels the pain on the palm side of her wrist. It radiates into her right thumb and also the inside part of her wrist.
65She is unable to flex her wrist the whole way back, but if she tries to, she gets a very uncomfortable and painful feeling in her wrist and feels the plate even more.
66Any time that she has to flex her wrist back, like pushing something, will bring on a lot of pain and discomfort. For example pushing a heavy gate or door or box, or trying to do a push up – even pushing a heavy shopping trolley, can be painful.
67Grip strength in her left hand is now very poor compared to what it was, and she finds it painful and difficult to clench her hands and grip things. It is difficult and painful to carry heavy things like heavy pans of food or boiling water. Many times she has dropped things in that hand and spilled things on the kitchen floor.
68It is difficult and painful for her to open a jar or chop food or use cutlery with her left hand. Turning a stiff doorknob or handle is something else that sticks out in her mind as being very painful. Even though her right arm is her strongest, she also used to do those sorts of things with her left hand.
69She tries not to carry heavy weights in her injured hand, as that brings on worse pain. She does carry things in that hand, but she avoids heavier items if possible. It is also difficult to hold things in her left hand for long periods, and she has to put the object down and rest her hand.
70She agreed that she said it was difficult for her to hold things in her hands for long periods, and she could hold things like her phone, and things like that. When she made that comment in her affidavit, she was referring to things like cooking and big pots and pans that she previously used in Sri Lanka cooking, which she now has to put down because they are heavy, and then she gets pain.[34]
[34] T28
71She always tends to use her right hand a lot, even to carry her handbag. Even shopping when it is heavy things, she uses her right hand, she tends not to use her left hand a lot. She used the word “tend” numerous times. When asked specifically about her handbag, she agreed she tended to carry that in her right hand:
“All the time I usually do the right hand for my hand bag, I just, you know, it’s to do with – I am conscious all the time with my left hand. If I can, all the time, if there is a possibility that I can use my right hand, I always use my right hand, thinking, okay, you know, I tend to not use my left hand that much because of the pain.”[35]
[35] T29-30
72She then qualified that, saying it was the situation with heavier stuff, but then agreed, if her right hand was available, she would use that instead. She explained she could carry her handbag, that was not a problem at all, but if it was a heavier object, or something like that, she does get pain.[36]
[36] T29
73Film was shown of the plaintiff walking in the Melbourne CBD on 12 May 2021 to work in Collins Street. She carried her handbag in her left hand for about nine minutes. She agreed she did not transfer it to her right hand. It is a very light object, and she can carry it, and it is not a problem. She does use her left hand when shopping and tends to use it for lighter items, and the heavier items, like milk cartons, she tends to use her right.[37]
[37] T32
74She agreed, when there is a possibility to use her right hand for heavy jobs, she does.[38] She disagreed that she was in constant pain carrying her handbag in her left hand because it was light. It was not causing her a lot of pain because it was not a heavy object.[39]
[38] T32
[39] T33
Sleep
75Her left wrist continues to wake her up at night, particularly after a long day of typing at work. This happens about two or three times a night. In the early part of the night, it occurs because her wrist is aching after using it during the day. Later during the night, it seems to happen if she rolls onto it accidentally or has it in a bad position.
Housework
76Pre-injury, she used to be an extremely proud housewife and took great pride in a clean and tidy house. It is a big thing in her culture for a wife to keep a house like that. She now has a lot of difficulty doing two-handed cleaning jobs, as her left wrist just does not work the way it used to. She cannot scrub or dust with her left hand and she is slower when she does things. As she does not have a lot of time as a working mother anyway, the house does not look anywhere near as clean or tidy as it used to.
77It makes her sad when she sees dust in the house or mould in the bathroom which would not be there if she could clean the way she used to. She feels like she is not being a good mother or wife.
78She has difficulty with tasks like dusting when she has done everything else at the end of the day, and tends not to do activities like that, as she does not want to exhaust herself.[40]
[40] T38
Cooking
79The plaintiff was shown Facebook photographs of her cooking during lockdown that she posted. She made much more intricate meals before she hurt her wrist.[41] She agreed, chopping food as a right-handed person, she would use her right hand.[42]
[41] T40
[42] T40
Taxation summary
| Financial year | Taxable income |
| 2013/2014 | $42,689 |
| 2014/2015 | $39,520 |
| 2016/2017 | $16,880 |
| 2017/2018 | $12,668 |
| 2018/2019 | $42,232 |
| 2019/2020 | $31,031 |
| 2020/2021 | $45,813 |
Lay evidence
80The plaintiff’s husband, Mahamarakkalage Rumesh Nandika Stembo, swore an affidavit on 8 November 2021. He confirmed that the plaintiff’s affidavits are true and correct.
81He is a qualified chef, but in Australia has been working in different industries including construction since arriving in 2016.
82Since that time, he has returned to Sri Lanka regularly to see family and, on one of those trips, he met the plaintiff. They married there and she came to be with him and start a family in Australia, initially renting in Pakenham, although they recently bought their own house in Clyde North.
83She has always been a hard worker. Even though she had a good education and good qualifications in Sri Lanka, when she came to Australia she was happy to work at Dominos to provide extra income for the family until something better came along.
84He has a back injury for which he may be having surgery, so he is off work presently and is at home most of the time. Thus, more responsibility has lately fallen on the plaintiff.
85They speak about her wrist regularly, and she tells him it is aching or painful, or it is feeling numb. She complains about swelling in her wrist. She works during the day and mostly complains about her problems at night after she has finished work, and tells him that the typing she has to do is very bad for her wrist.
86As her husband, he is able to tell when she is not having a good day with her wrist even if she does not complain to him. He knows the signs well by now. She will be grumpy with him and their son for one thing, and her face will also change. She will say “no” to their son in a snappy way that she cannot play with him. She is like that pretty much every day after work, which is not the situation it was before when she used to play with their son regularly.
87They sometimes speak about their son, and she says that it upsets her that she cannot play with him the way he wants, and she sometimes gets teary in these discussions.
88He sees how she is around the house. She still does her best to cook and clean, but it is not like before when they met. In the early days of their relationship preinjury she would keep the house very clean and did almost all of the cooking and cleaning herself, and the house would usually be spotless. She took a lot of pride in that and would love to have people over to show it off.
89She also cooks smaller and less complicated meals than she did before her injury. She says her wrist gets too sore if she has to cook for too long, and she does not seem to be enjoying cooking anymore. She used to be very happy to be in the kitchen, but now complains about it.
90These days, she is slow at cleaning the house and will only use one hand for tasks that she would normally use two. For example she will try and mop with one hand or dust or wipe with one hand, but she is very slow, and their house is quite dusty and dirty. It never used to be like that.
91He has seen her drop things from her left hand regularly at home. A common example was when she was trying to wash the dishes she would use her right hand to scrub and the left to hold the dish. He has frequently seen or heard her drop the dish from her left hand into the sink and she gets very upset when that happens. Several of their glasses and plates now have cracks in them from her dropping them.
92In the kitchen and around the house she asks him to do many things for her, such as open jars and lids. Before the injury, she had never asked him to do these sorts of things. He sees her take medication for wrist pain in the form of Panadol and Nurofen almost every day.
93Earlier this year, she told him that she was going to see another surgeon. Following that visit, she told him that she was scared of having further surgery because there was no guarantee, and was also worried that if anything happened to her then the family would be in trouble because she was the only one working.
94She has complained about the scars on her wrist many times, saying that they are itchy or sore. She has also told him that she sees other people looking at the scars, and they ask her about them, and she does not like explaining what happened. He has noticed that she often now wears long sleeves that cover her scars and when wearing shorter sleeves, he has seen her put make up on the scars.
95She used to exercise at home a lot to keep fit. He saw her doing push ups and planks every few days, but does not see her doing them anymore, and she has told him that it is too painful for her wrist.
96They are a young family trying to do their best to make a good life in Australia. Her injury has really had a bad effect on her and the family. From his observation, she is a very different person now and has a very different life from how things used to be. He feels very guilty about the pressure she is under to keep working and being a good wife and mother with her wrist problems.
The Plaintiff’s medical evidence – treaters
97The plaintiff presented to Box Hill Hospital via ambulance on 27 February 2014, after tripping over and sustaining an isolated distal radius fracture of the left forearm. The limb was neurovascularly intact and there were no other injuries. She was given analgesia and the arm was placed in a splint.
98She requested private orthopaedic follow up and was referred to Mr Byrne for review the following day.
Dr Mendis, General Practitioner, Parkway Medical Centre
99Dr Mendis reported in May 2021 the plaintiff has been a regular patient of his for various medical problems since 2013.
100Dr Mendis noted the incident injury and the plaintiff’s subsequent treatment. He saw her for the first time on 22 March 2014, asking for a referral for physiotherapy, where she underwent more than twenty sessions over three months. When seen on 17 April of that year, there was still restricted movement.
101Having had physiotherapy, the plaintiff’s condition gradually improved and she was able to return to light duties on 16 June 2014, initially working four hours a week, and then her working hours were gradually increased over the next few months until August 2014. She started working full-time normal duties from 11 August 2014.
102He was advised by the specialist that he would remove the plate later but, in due course, she fell pregnant, and the operation was postponed.
103The plaintiff commenced working at Mercer Superannuation on 4 August 2018, and later changed her work to Patient Superannuation in 2020, working three days a week as an office administrator, where no heavy lifting was involved. She still had pain in the left wrist on and off, which had gradually been increasing since then.
104In February 2021, she attended because the pain was getting worse, so he referred her for an x-ray and ultrasound. She was later referred to a hand surgeon for opinion. At that consultation with the hand surgeon on 2 March 2021, he recommended removing the plate. She was advised by the specialist that the pain was due to the plate rubbing against the tissue, and that there is a chance it might be due to constant friction. She still experiences continuous pain, exacerbated with heavy lifting.
105He noted that the plaintiff is still experiencing pain over the fracture site and is unable to carry her child with her left arm. She complains of pain and discomfort during normal day-to-day living activities and is unable to perform any heavy lifting due to discomfort.
Mr Byrne, orthopaedic surgeon
106Mr Byrne operated at South Eastern Private Hospital on 1 March 2014. The plaintiff underwent an internal fixation of the disc placed distal left radial fracture with a volar locking plate. Intraoperative x-rays revealed satisfactory alignment of the fracture.
107Post discharge, she was reviewed in the Outpatients Department on 19 March 2014 and her surgical wound had healed without complication. She was advised to commence mobilisation of her left wrist with the assistance of physiotherapy.
108On further review on 1 April 2014, her surgical wound had healed. She had regained reasonable palmar flexion and dorsiflexion of the left wrist. She had full pronation of her left forearm, but had quite a marked restriction of supination. She was referred for further x-rays on 7 April 2014, which revealed that the fracture was uniting in acceptable alignment.
109On review on 14 May 2018, there was full pronation of her left wrist and forearm and approximately 20 degrees of supination. Her range of dorsiflexion and palmar flexion of the left wrist was improving, and she was able to make a full fist and her grip strength was improving. She was having physiotherapy and her range of movement was progressively improving, but she had still not returned to work because of limitation of movement of the left wrist.
110On further review on 6 February 2015, she was complaining of discomfort in the left wrist. She advised that she was unable to hold her newborn baby for more than five minutes before developing aching in the left radial styloid.
111On examination, she had excellent movement of the left wrist and good grip strength. The flexion extensor tendons of the thumb and digits were functioning normally, and there was no complication with the surgical wound. She was tender over the volar aspect of the distal radius in the region of the metallic plate. She had regained good supination and pronation of her left forearm.
112Due to complaints of ongoing wrist pain, he recommended she undergo removal of the metalwork to see if it would help her residual symptoms, particularly the aching when holding her baby. She was undecided about proceeding with another operation. He advised her that he could not guarantee the residual ache in her left wrist would improve with the removal of the metalwork, but clinically she was quite tender over the volar aspect of the distal radius in the region of the plate, and he was hopeful that with its removal she may get some improvement in her symptoms.
113The plaintiff was advised to think about her options and that she could proceed with that further surgery if she wished. She was discharged into the care of her general practitioner on 6 February 2015.
114When last seen, Mr Byrne felt that she had made a good functional recovery following the fracture. Her main complaint was ongoing aching in the left wrist, particularly on lifting. When he last saw her, she was on maternity leave and he advised her to make a follow up appointment if she wished to consider removal of the metalwork.
Hampton Park Physiotherapy – Mr Hutchinson
115The plaintiff was first seen on 1 April 2014, having been referred by her general practitioner. She attended once or twice a week until June 2014, and less frequently until 25 August 2014, when she continued to have some functional restriction.
116Mr Hutchinson concluded that the plaintiff’s symptoms were consistent with post fracture and dislocation of the left wrist and distal radioulnar joint stiffness and weakness and associated pain.
117His expectation of treating her was that with physiotherapy and compliance with a graduated exercise program to restore wrist and forearm mobility and strength, her post fracture stiffness would have resolved over the next few months.
Mr Anthony Berger, hand and upper limb specialist
118Mr Berger saw the plaintiff on 2 March 2021.
119The plaintiff advised that she was aware of some discomfort in the wrist, but this had more recently increased significantly. She described pain present at most movements when carrying an object, and she noted pain on the volar aspect of the wrist radiating to her thumb and around the ulnar head. She noticed a tendency to drop things at times and denied any problems with fingers or sensation.
120Examination revealed tenderness over the volar and dorsal aspect of the left wrist.
121X-rays revealed a very distal internal fixation plate on the volar aspect of the radius.
122Surgery was discussed with the plaintiff and he recommended removal of the internal fixation plate to relieve the symptoms and to prevent possible tendon rupture.
123He noted that she presented with a history of having a distal radius fracture treated elsewhere by internal fixation, and she now presented with increasing pain due to the prominence of the internal fixation plate.
124She described ongoing pain in the volar aspect of her wrist around the internal fixation plate used for the distal radius fracture. The concern was that this pain may be caused by potential damage to the flexor tendons and tenosynovitis occurring as a result of the tendons rubbing over the internal fixation plate.
125In his supplementary report of 23 March 2021, he explained that it is not uncommon that over time the flexor tendons will rub over the plate causing pain and at times attrition rupture. This rupture can occur even many years after the surgery and the plate was applied. He noted that the plaintiff was now reporting dropping things and had pain on finger movement. This indicated possible or potential damage to the flexor tendons.
126He believed that the presence of the plate resulted in her current pain and she was at risk of tendon rupturing. He would be most grateful if the insurer would give approval for the removal of the plate.
Investigations
127There was an x-ray of the left wrist on 7 April 2014, following which it was reported that there was an old uniting fracture of the distal shaft of the radius with internal fixation by plate and screws. Ulnar aspect of the fracture was still obvious in the study. Alignment of the fracture was anatomical.
128There was an ultrasound of the left wrist performed on 18 December 2020. It was reported that there was mild tendinosis of ECRL and mild tenosynovitis of FCR. The clinical information set out “pain radiating from the tip of the left thumb to the wrist. Last seven months pain increases on palm movement.”
129There was a further x-ray of the left wrist on 24 April 2020 at the suggestion of Mr Miller. It was reported that this revealed evidence of a healed fracture of the distal radius. It had healed without significant deformity and there was no evidence of arthritic disease.
130There was an ultrasound of the plaintiff’s wrist in October 2020. It found a small volume of fluid within the sheath of the exterior carpi radialis tendon. Mild tenosynovitis of the flexor carpi radialis tendon. All other flexor and extensor tendons. The wrist joint appeared unremarkable without tear or tendinosis. Small joint effusion along the volar aspect of the radio-carpal joint. No Synovitis. Flexor and extensor tendon of the left thumb appeared intact without tear or tendinosis.
Medico-legal evidence
Mr Russell Miller, orthopaedic surgeon
131Mr Miller first saw the plaintiff in February 2020. At that time, the plaintiff was not working.
132She then reported her left wrist was her major problem, with ache, discomfort and pain, worse with repetitive action. It caused difficulty with dexterous and power work, such as opening jars and chopping up food. She had difficulty when undertaking long-term typing. Her symptoms fluctuated, and there had been no pattern towards improvement. It intermittently caused her sleep disturbance.
133She was then taking Panadol and Nurofen.
134She had returned to work at Mercer Superannuation in office-based duties. She discontinued that work in December 2019 for reasons unrelated to the wrist and was not then working, but intended to return to office-based duties in the superannuation field in the near future.
135On examination, there was diffuse tenderness around the wrist. There was a slightly prominent and tender ulnar styloid. There was irritability during wrist movement.
136The plaintiff had suffered injury to the left wrist with a fracture of the distal left radius for which she underwent surgery. There were ongoing symptoms, and up-to-date x‑rays were required to evaluate the likelihood of pathology in the joint. He thought it likely her injury had been complicated by the development of a chronic pain syndrome leading to an overall fair prognosis.
137He thought she had also suffered an adverse mental state reaction with anxiety and depression and probable development of a Chronic Pain Syndrome which would complicate the assessment and management of her condition.
138In his view, the plaintiff would require ongoing conservative treatment including additional measures for pain management and rehabilitation. He thought there was a likelihood that she would ultimately come to further surgery with the removal of the metal ware and possible reconstructive surgery of the distal radial ulnar joint. He considered she was at increased risk of developing arthritic disease, but needed the further imaging to be in a better position to comment.
139He thought the plaintiff would have restrictions with work that involved large amounts of repetitive left arm actions and use of the left hand for power and dexterous work. He thought her injuries had substantially stabilised.
140On re‑examination in July 2021, the plaintiff reported similar symptoms and problems with her left wrist and mental state. She was then occasionally using Panadol and Nurofen, but tried to avoid medications. There were no plans for further surgery.
141Neurologically, there was a patchy area of numbness surrounding the scar, but no other sensory deficit. There was no muscle wasting. There was weakness of finger flexion and wrist flexions on the left side due to pain inhibition.
142The x‑ray in April 2020 revealed a very distal internal fixation plate on the volar aspect of the radius.
143He noted the fracture was now united, and there was no evidence of arthritic disease. He confirmed he thought it was likely the injury and surgery had been complicated by the development of a Chronic Regional Pain Syndrome, and he remained of the view that the prognosis for the wrist was only fair. He confirmed he thought the plaintiff had suffered an adverse mental state reaction. He confirmed his comments about the requirement for further treatment and that it was possible the plaintiff may benefit from surgical intervention for the removal of the metal ware, noting that the risk of developing arthritic disease was low. He confirmed his views as to the plaintiff’s work capacity.
Dr James Rowe, occupational physician
144Dr Rowe examined the plaintiff in July 2021.
145The plaintiff was then working full-time doing office and administrative duties and coping without any restrictions on her work duties.
146She said she still had some left wrist pain which tended to come and go. She was not having any active treatment, but would take an occasional over-the-counter analgesic such as Panadol or Nurofen. Her pain was aggravated by lifting and cold weather, and she had learnt to avoid tasks that aggravated her pain.
147She was now able to manage her activities of daily living and household chores independently, but did have some trouble with heavy lifting, like getting her son in and out of the car, and playing with him at the park. She tried to keep fit, but had to avoid exercises like push-ups and planks.
148On examination, the plaintiff had reduced grip strength of 13 kilograms in the left hand, compared to 26 kilograms in the right hand. Sensation was normal about the left wrist, hand, and fingers, and there was no evidence of wasting of the left forearm. There was some slight loss of range of movement of the left wrist: 10 degrees of extension and 5 degrees of flexion. Radial and ulnar deviation, pronation, and supination movements were all of normal range.
149As a result of her left wrist injury she will require some ongoing restriction on heavy lifting using the left wrist, and he concurred with Mr Miller’s views in this regard.
150He thought the prognosis was reasonably good, noting the surgery was successful and she had been able to return to work, albeit in a different position, but was coping.
151He thought she did not require ongoing treatment apart from an occasional over-the-counter analgesic. It was not likely that further surgery would be suggested, but she had the option to remove the internal fixtures should she so desire. The fracture did not affect the wrist joint itself, and therefore she was at no increased risk of premature deterioration, degeneration, or arthritis in the future.
The Defendant’s medical evidence – treaters
152The complete records of Parkway Medical Centre were tendered, detailing treatment from 26 February 2013 to 11 August 2021.
153There were details of the initial treatment and, in particular, a note on 5 May 2016 that the plaintiff had recovered almost back to normal but the pain still remains on and off.
154The next mention of the left wrist pain was September 2020 when further imaging was requested. The following month, Dr Mendis noted the repeat x-ray indicated the plate and screws were all in normal position. “Now pain, complaints , has pain radiating from the tip of the left thumb back to the wrist which has been ongoing for the last 7 months. Pain increases on thumb movements.”
155In January 2021, there was a referral for specialist opinion. In April 2021, Dr Mendis mentioned the plaintiff had seen the hand specialist on 2 March, who advised the pain was due to the rubbing – “Patient still experience Continuous pain and it exacerbate when she did heavy lifting.” There was a similar note on 4 May.
The Defendant’s medico-legal evidence
Dr Bruce Love, orthopaedic surgeon
156Dr Love examined the plaintiff in May 2014, two months after the wrist surgery when she was still off work. He provided a supplementary in May 2014 addressing her ability to do alternative duties.
Dr Peter Boys, consultant orthopaedic surgeon
157Dr Boys examined the plaintiff in August 2014.
158He reported the plaintiff experienced some residual dorsal discomfort with continuous use of the left wrist. Strain was described with more sustained use of weights, and she currently operated with a lifting restriction of about 3 kilograms. She related recovery of range of motion with a loss of a few degrees of supination remaining at this point. She related some local discomfort with rotation associated with the distal radioulnar joint, and related no specific mechanical symptoms. She related no problems with her hand or fingers, which remained flexible with preserved grip.
159She was then unrestricted with routine day-to-day activities at home, and did heavier tasks using her dominant right hand. She exercised some care with lifting.
160He thought she had experienced a good recovery of range of motion with intensive physiotherapy, and that her condition was now at a point where she could perform further mobilisation of the wrist without the aid of physiotherapists through a self‑directed range of motion exercises. He thought she was then fit to proceed to self-management of her complaint.
161He thought her radial fracture had clinically united with good recovery of movement.
162He thought the plaintiff could now return to pre-injury hours and duties and could return to work in the pizza place through the return-to-work plan as devised. There might be restrictions on lifting to 15 kilograms required, but she would be able to do those tasks using a two-handed lift with predominant use of the dominant right arm.
163He then thought the time-frame was indeterminate, and that the plaintiff may experience symptoms which limit forceful use or heavy lifting involving the left wrist in the long term.
Dr David Fish, consultant occupational and environmental physician
164Dr Fish examined the plaintiff in May 2017.
165The plaintiff then complained of pain over the distal radius radiating into the thumb. She said she had trouble lifting anything greater than 3 kilograms. The pain was sharp and occurred with frequent use. She said her wrist gave way at times. She had noticed no paraesthesia, numbness, or other sensory change.
166Functionally she said she was limited by the amount of squeezing she could do with the left hand. She could no longer do push-ups, and she felt her handgrip was weaker. She thought her range of motion was near normal.
167She was then taking Panadol about once a week for left wrist pain.
168At home she was independent in her personal activities of daily living. She found occasionally carrying heavy items in her left hand caused some pain, and she had trouble lifting heavy pots.
169There was a full range of pronation and supination in both the left wrist and elbow. There was no sensory loss other than loss of strength index testing, and the results were extremely variable and were not reliable sufficiently for the results to be used for impairment purposes.
170In summary, he thought the plaintiff had recovered well from the fractured left distal radius. She had some minor residual pain problems, but her functional capacity was quite good. He concluded she was suffering from the residual effects of a fracture of the left distal radius, treated surgically, and allowed 0 per cent left upper extremity impairment, and 1 per cent for the scarring.
171The Medical Panel confirmed Dr Fish’s AMA assessment by a decision of November 2017.
Summary of surveillance
172In total there were 197 hours and 18 minutes of surveillance in 2014, 2019 and 2021. The plaintiff was seen for 112 hours and 19 minutes and there was about 15 minutes of film.
Claim documents
173The plaintiff submitted a Claim Form on 28 February 2014, setting out that she had dislocated her left wrist and fractured it on 27 February 2014 in the incident.
174By letter dated 10 September 2014, she was advised by Allianz they had decided that from 29 September 2014 she was no longer entitled to weekly payments and medical and like expenses following an examination by Dr Boys on 7 August 2014. Allianz advised that payments were to cease because she was no longer incapacitated for work and the medical and like expenses she was claiming were no longer reasonable and/or necessary.
Overview
175It is not in issue that the plaintiff suffered a compensable injury in the incident – a fracture of the left distal radius/colles fracture to the left wrist.
Credit
176Counsel for the plaintiff submitted the plaintiff ought to be regarded as a highly credible and reliable witness, who was very happy to make concessions where appropriate. In particular, she volunteered information beyond what was being asked by the cross-examiner, like having gone to Sri Lanka twice.[43]
[43] T51
177It was submitted there was no damage done to the plaintiff’s credit in the course of cross-examination or by the film. The defendant was making “a mountain out of a molehill” in terms of what the plaintiff was shown carrying in the film.[44]
[44] T51
178The plaintiff is a stoic,[45] “who clearly has a lot on her plate in terms of family obligations, as well as work responsibilities, added to by her husband’s illness, and she is admirably doing her best, and has been doing so for several years now to get on with her life.”[46]
[45]Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181, Haden Engineering Pty Ltd v McKinnon (supra) and Sutton v Laminex Group Pty Ltd (2011) 31 VR 100
[46] T52
179Counsel for the defendant, however, submitted the plaintiff was somewhat reluctant to make concessions and was very keen to emphasise her difficulties with the left wrist injury.[47]
[47] T46
180Further, the impression sought to be given by the plaintiff’s recent affidavit was inconsistent with the recent medical evidence from Mr Miller and Dr Rowe and the Court should be cautious accepting what she has recently deposed to.[48]
[48] T46
181It was submitted the film showed the plaintiff had overstated her level of difficulty as she in fact used her left hand only to carry her handbag when her right hand was available.[49]
[49] T47
182In my view, the plaintiff did not go so far as to say she never used her left hand when her right was available. In any event, her handbag which she was shown carrying in her left hand for about 9 minutes was not heavy.
183The plaintiff was subject to extensive surveillance, having been observed over the 2014, 2019 and 2021 for 112 hours. The short, innocuous film that was shown did not damage her credit.
184I found the plaintiff to be somewhat of a stoic who has got on with her life and battled on with left wrist pain which had increased in recent years due to the prominence of the plate.
185As Nettle JA commented in Dwyer v CalcoTimbers Pty Ltd No 2,[50] he suspected:
“… but for the way the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well have not disputed his claim … But it would be unfortunate and, in my view, wrongheaded if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[50] [2008] VSCA 260 at paragraph [4]
Pain
186The evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain (both in court and to doctors).[51]
[51]Haden Engineering Pty Ltd v McKinnon (supra) at paragraph [11]
187In her April 2019 affidavit, the plaintiff deposed that her left wrist pain comes and goes,” comes on with activity and she had some degree of pain most days. By November 2021, wrist pain and discomfort had become worse.
188The last medico-legal examination arranged by the defendant was with Dr Fish in 2017. Medico-legal examinations arranged by the plaintiff’s solicitors took place earlier this year.
189When seen by Dr Rowe, while she described a recent increase in left wrist pain, Dr Rowe reported that the plaintiff said she still has some wrist pain that “comes and goes”. She told Mr Miller she experienced ache, discomfort and pain worse with activity.
190Treating general practitioner, Dr Mendis, noted on 4 May this year – “Patient still experience continuous pain and it exacerbate when she did heavy lifting.”
191Counsel for the plaintiff submitted the plaintiff was not a lady to carry on, and her understanding of what is intermittent or occasional might be different – “When you looked at her evidence as a whole, her pain is always there, although she could sometimes distract herself when she was very busy at work. It got worse through the day, citing her description of the increase from 3 out of 10 to 7 to 8 out of 10. Given that she is working full time, that is quite a significant amount of pain in a week.”[52]
[52] T55
192Counsel for the defendant submitted the plaintiff’s situation as described by Dr Rowe and Mr Miller in mid-2021 was accurate, and continues to be so, in terms of the level and frequency of pain, and therefore the plaintiff is taking only occasional pain relief.[53]
[53] T25
193While the plaintiff’s condition was manageable after the surgery, I accept that in recent years, there has been a significant increase in wrist pain caused by the rubbing of the plate, as Mr Berger explained on recent examination. Further, the plaintiff’s wrist pain increases with activity, particularly with any significant load on the wrist.
Restrictions
194The plaintiff has difficulty with a range of left wrist movements, in particular flexion when she particularly feels the plate which Mr Berger found was in a very distal position with prominence over the flexor tendons. Her left grip is weaker than the right as recently found by Dr Rowe, and at times, she drops things from her left hand. This was explained by Mr Berger as possible or potential damage to the flexor tendons. She has difficulty carrying heavier items in her left hand.
Treatment
195The plaintiff has been under the care of Dr Mendis since the incident. After initial treatment, when seen in May 2016, he noted that now the plaintiff had recovered almost back to normal “but the pain still remains on and off”.
196I accept, however, that from the time of her return to work in 2018, the plaintiff has had increasing left wrist pain as a result of her typing duties and she started to see Dr Mendis again for wrist pain from September 2020.
197The plaintiff underwent surgery performed by Mr Byrne in 2014 and has been recently referred for further specialist opinion to hand surgeon, Mr Berger.
198Like Mr Byrne, Mr Berger, hand surgeon, has suggested removal of the plate. Further, he was concerned about the possibility of tendon rupture if the plate remained. While the plaintiff is not prepared to have this procedure, her reluctance is understandable given neither surgeon has guaranteed the success of the procedure and the plaintiff is now the sole earner for her family and has to also care for her husband and seven-year-old son. I do not accept that her attitude to surgery suggests any problem with her wrist is not significant.
199Otherwise however, Mr Miller and Dr Rowe thought the fracture did not affect the wrist joint, therefore, the plaintiff was at no risk of premature deterioration, degeneration or arthritis.[54]
[54] T50
200The plaintiff has had no physiotherapy since August 2014.
201She tries to avoid taking medication, taking only the occasional over-the-counter medication when required.
Other consequences
202While she is able to work full time without formal restrictions as Dr Rowe opined, the plaintiff experiences significant left wrist pain as a result of her typing duties that account for 70 per cent of her current job. Her wrist aches and gets worse during the day. She must, however, continue to work these hours to support the family while her husband is unable to work. Her wrist pain has gradually increased in recent times as her work hours have increased.
203While she presently works in a sedentary occupation and her chosen field is financial services, she would be unable to work in any more physical role given her left wrist issues.[55]
[55] Abbas v Transport Accident Commission [2015] VSCA 217
204She is unable to do the heavier housework or cooking without experiencing an increase in left wrist pain. Doing these tasks at the end of a workday, when her wrist is aching from typing, is particularly difficult but there is no one else to help her do them.
205She was limited in her ability to help her husband with the house renovation.
206The plaintiff is limited in her ability to play more vigorous games with her active seven-year-old son.[56]
[56] T54
207Her evidence of ongoing sleep disturbance due to wrist pain was unchallenged.[57]
[57] T56
208There is a minor restriction in terms of exercise with an inability to do planks or push ups.[58]
[58] T48
209The plaintiff is still a relatively young woman, now aged thirty-seven. She has had over seven years of left wrist pain which is likely to continue into the foreseeable future.
210In Stijepic v One Force Group Aust Pty Ltd,[59] Ashley JA and Beach AJA discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.
[59] (Supra) at paragraph [43]
211The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, they considered it is relevant to look at the likely period for which those consequences would be experienced. It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.
212Taking into account all the evidence, I am satisfied that the consequences of the plaintiff’s left wrist impairment are serious and permanent.
213Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering.
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