Kauss v Jobwire Employment Services Pty Ltd
[2009] VCC 107
•18 February 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES - COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-08-03261
| YVONNE KAUSS | Plaintiff |
| v | |
| JOBWIRE EMPLOYMENT SERVICES PTY LTD | First Defendant |
| and | |
| AUSTRALIAN AIR EXPRESS | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6 February 2009 |
| DATE OF JUDGMENT: | 18 February 2009 |
| CASE MAY BE CITED AS: | Kauss v Jobwire Employment Services Pty Ltd & Anor. |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0107 |
REASONS FOR JUDGMENT
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Catchwords: Serious injury application – s.134AB Accident Compensation Act 1985 – injury to right hand and wrist in the course of employment – pain and suffering application only – whether consequences to the plaintiff achieve the “very considerable” level when compared to other injuries in the range.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P F O’Dwyer SC with | Slater & Gordon |
| Mr D J N Purcell | ||
| For the Defendants | Mr P B Jens with | Lander & Rogers |
| Ms C Boyle | ||
| HIS HONOUR: |
Preliminary
1 The plaintiff injured her right hand and wrist in a fall during the course of her employment on 18 October 2004. Surgical repair of the little finger on the right hand was successful but the plaintiff has suffered ongoing problems in the wrist.
2 After treatment, her wrist improved to the point where the plaintiff was able to return to full-time clerical employment, albeit not using a keyboard in the same manner as before injury. However, she complains that over the last two years there has been a gradual deterioration in the wrist with increasing pain and a reduction in a range of activities.
3 This is an application for leave to bring proceedings pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of the plaintiff’s employment on 18 October 2004.
4 Mr O’Dwyer identified the body function said to be lost or impaired as the right arm. The application is thus brought under sub-section (a) of the definition of “serious injury” contained in s.134AB(37) of the Act. Leave is sought in respect of a claim for damages for pain and suffering only.
5 In order to succeed, the plaintiff must prove, the onus being upon her, that the consequences of the loss or impairment of the body function are at least “very considerable” and more than “significant or marked”. I must consider the consequences to this particular plaintiff, viewed objectively, arising from injury. I must also compare the impairment arising from injury in this application with other cases in the range of possible impairments or losses of the body function of the arm.
6 The plaintiff was the only witness called to give evidence and be cross- examined, although the plaintiff’s solicitor was called to give evidence on a short administrative point. In addition, medical reports and affidavit material sworn by the plaintiff was tendered in evidence. I have read all the tendered material.
7 Mr Jens outlined the defendants’ position in response to the application as follows:
•
When compared to other cases in the range of impairments, the impairment in this case was at the very lower end of the range.
•
The consequences to the plaintiff did not achieve the “very considerable” level.
Relevant Background
8 The plaintiff is aged fifty six years, is married and right hand dominant.
9 She commenced working in approximately 1968 and has worked in a variety of employment positions, more recently in clerical work. The first defendant is an employment agency and employed the plaintiff from approximately 2003/4 and she was directed to various workplaces, working principally as a data entry clerk.
10 Many years before the injury, the plaintiff played a range of sports, including ten pin bowling, basketball and hockey. She was not engaged actively in sporting activities before injury.
11 In 2002, the plaintiff had an arthroscopy to her right knee as a result of an old sporting injury. Problems continued with the knee over a short period and the plaintiff was referred to Mr Tran, who advised her that there was the prospect of bilateral knee replacement within a decade or so. Despite this dire prediction, the plaintiff gave evidence, which I accept, that after the arthroscopy, her knee continued to improve. She states, and I accept, that she has few if any symptoms in the knee and it does not restrict her in any way in performing her current employment duties, nor her recreational and domestic activities.
12 Further, in approximately 2003, the plaintiff developed problems in her left shoulder for which she had physiotherapy and cortisone injections to the shoulder. In 2004, she was referred to Mr Paxinos, orthopaedic surgeon, by her general practitioner. When she saw Mr Paxinos in early 2004, she gave a history of six to seven months of pain in the shoulder. It was apparently diagnosed as a “frozen shoulder”. The plaintiff accepted in cross examination that the problem with the shoulder limited its use and range of movement and caused sleep difficulties, and that upon sudden movements or overhead activities caused severe pain in the shoulder. She had trouble moving her arm up her back. She took painkilling medication, including Panadol for the shoulder and for the knee. In 2004, Mr Paxinos performed hydrodilatation by injecting into the shoulder. Again, she stated in evidence, and I accept, that the problem with the shoulder eased, and now she suffers little problem and has made a good recovery. Again, I accept that at the present time she is not restricted in any activities because of her left shoulder, and has not had any medical treatment since approximately 2004.
13 Shortly before her injury in October 2004, the plaintiff saw a specialist, Mr Simon Woods, who undertook a “lap band” procedure which was abdominal surgery designed to enable the plaintiff to lose weight. At that time, she carried significant weight and was advised to reduce it, particularly to ease the problem in her knees. The plaintiff stated, and I accept, that the surgery was uneventful and that it achieved the purpose for which it was undertaken. She lost weight, and had no ongoing problems or difficulties resulting from the surgery to the present time.
14 On 18 October 2004, the plaintiff was assigned data entry work at Australian Air Express and worked between 4.00 pm and 8.00 pm. These hours enabled her to look after her grandson during the day. I accept that the plaintiff worked these reduced hours not because of any pre-existing injury or condition, but rather to suit her domestic arrangements.
The Injury and its Consequences
15 On the first day of her employment at Australian Air Express, the plaintiff tripped over a speed hump in the dark, fell and injured her right little finger and right wrist. She was assessed by Dr Peter Giles, general practitioner, and was treated by him until February 2007. He referred her to Mr John Crock, plastic surgeon, for the treatment of a fracture to the right little finger. On 20 October 2004, Mr Crock operated on the finger with reduction of the fracture, held by two “K” wires.
16 The surgery was successful and the plaintiff returned to work, working approximately the same hours and undertaking the same duties on 25 October 2004. The plaintiff has had little ongoing significant pain or disability to the finger. With the assistance of Mr Anderson, hand therapist,[1] she regained almost full movement of the finger.
[1] PCB 52
17 However, the plaintiff continued to suffer pain in her right wrist in the region of the scaphoid. On 8 February 2005, Mr Crock undertook an arthroscopy of the wrist which showed “generalised wrist arthritis with fraying of the carpal ligaments and widespread synovitis and inflammation. No specific ligament tears”.[2]
[2] PCB 32
18 Despite this procedure, and because of continuing pain and restriction in the wrist, the plaintiff was referred to Dr Stephen Hall, rheumatologist. An MRI examination undertaken on 21 April 2005 showed degenerative change at the scapholunate joint and a ganglion cyst. Further MRI examination demonstrated prominent diffuse tenosynovitis over the extensor tendons at the wrist.[3] Dr Hall concluded that the plaintiff was suffering from inflammatory arthritis which had been precipitated by her fall at work. He commenced treatment with Methotrexate in June 2005 and while this provided the plaintiff with some initial improvement, by March 2006 that improvement had ceased.[4] At that time Dr Hall found the plaintiff’s wrist to be restricted in motion although not swollen. A further MRI scan did not again show synovitis but showed some degenerative change at the scaphotrapezium/trapezoid joint. Dr Hall thought the plaintiff was suffering osteoarthritic change at this joint, while noting that the tenosynovitis had resolved. He thought the plaintiff would continue suffering persistent pain because of the osteoarthritis.
[3] PCB 26
[4] PCB 26
19 In August 2006, Dr Hall communicated with Mr Crock.[5] Because of the diffuse pain he considered that there was some further problem in the wrist which had not been determined by radiological investigation and raised the possibility of a wrist fusion.
[5] PCB 50
20 In a letter to the treating general practitioner in November 2006,[6] Mr Crock expressed reluctance about undertaking a fusion. He noted that a bone scan was negative and that the plaintiff’s “anatomy looked adequate”. He considered a fusion a “fairly drastic solution”. He said there may be some relief available by performing a neurectomy. On 30 October 2006 he performed this procedure, also known as a wrist denervation.
[6] PCB 49
21 Following the procedure, the plaintiff was again referred to Mr Anderson for hand therapy[7] and to Dr Blombery, physician in vascular diseases. Mr Anderson treated her between November 2006 and February 2007 and at the end of that period he noted[8] that the flexion and extension of the right wrist was within normal limits as was her grip strength. He noted that the plaintiff complained of some difficulty opening jars and taps but was not reporting any difficulty with computer use, although she had not typed for long periods. At that point Mr Anderson said that the plaintiff’s pain had been significantly reduced without any pain at night. He did not foresee any need for further intervention and thought the plaintiff’s condition would continue to improve.
[7] PCB 52
[8] PCB 52
22 The plaintiff was examined by Dr Blombery in December 2006. He noted numbness and tingling at the base of the right hand and over the inner aspect of the thumb.[9] He thought she was suffering from neuropathic pain which was related to the fall in October 2004. He commenced her on a new range of medication, including Pregabalin and an oral steroid, Prednisolone.
[9] PCB 55
23 He wrote to Mr Crock in February 2007[10] noting that the plaintiff had an excellent response to Lyrica (Pregabalin) and Prednisolone with an 80 per cent reduction in pain. He noted that the plaintiff was coping very well and he proposed to reduce the dose of medication.
[10] PCB 46
24 As stated, the plaintiff had resumed employment on a part-time basis with the first defendant shortly after the initial surgery to the little finger in October 2004. This employment continued until approximately the middle of 2005 when it was terminated for reasons unrelated to her wrist injury. She was then unemployed until she commenced work with Bytecraft Systems in March 2007, following the successful treatment by Mr Crock and Dr Blombery. Her position is described as that of a payroll officer and involves a range of general clerical duties. She is able to cope with these full-time duties save that repetitive use of her right wrist leads to pain. This is particularly so when she does a lot of data entry and stapling.[11] She has continued in that employment to the present time, and there is no evidence that she intends to cease work or reduce employment hours.
[11] PCB 19
25 Had the plaintiff’s application been assessed at this stage, that is, early 2007, the application would likely have failed. The treatment the plaintiff was receiving at that time was successful in reducing pain, she had regained considerable movement and strength in the wrist, and had resumed full-time employment albeit with some restriction. However, the plaintiff gave evidence that there has been a significant worsening of her symptoms from the time she commenced full-time employment through to the present.
26 In her affidavits sworn April 2008[12] and January 2009, the plaintiff refers to a range of consequences as a result of her right wrist injury. She takes ‘over the counter medication’ of up to eight Panadol per day and two to three Nurofen per day. She rubs Deep Heat onto the wrist. She claims it is difficult to interact with her five grandchildren as she used to. Any heavy or repetitive use of the wrist causes pain. She used to enjoy knitting but has had to give this up. She says her sleep is affected. However, in the report of 15 December 2008,[13] Dr Blombery noted that the plaintiff was generally not kept awake from sleep by wrist pain.
[12] PCB 17
[13] PCB 58
27 She says that the heavier aspects of her domestic duties cause difficulty, particularly vacuuming, sweeping floors, wiping benches, cleaning windows and cleaning the bath. She receives assistance in these tasks. Even picking up plates can cause pain and ironing is difficult. She was requested by her children to go ten pin bowling, an activity she previously enjoyed, but was unable to do so.
28 She says that her wrist feels stiff[14] and suffers weakness and loss of grip strength. At an earlier time, the taps in her household were changed to make them easier to operate. She still regularly drives a car, in fact drives to work each day and back, but is only able to do so with power steering.
[14] PCB 23
29 Her husband swore an affidavit confirming these difficulties.[15]
[15] PCB 25-26
30 When the plaintiff gave evidence she was asked by Mr O’Dwyer as to the state of the pain in her wrist at the present time.[16] She said it was there most of the time and that she was never pain-free. She said it was worse at night, particularly after work but better in the mornings. She described it as a throbbing pain affecting the inside of her wrist.
[16] T7-8
31 Despite the claimed increased symptoms, the plaintiff has not received any treatment since February 2007. She was referred to Dr Blombery in December 2008[17] for a medico-legal report. I will refer to the conclusion in this report shortly. According to Mr Jens, this is a matter of significance and I should conclude that whatever the plaintiff’s level of pain at the present time, it is not sufficient for her to seek treatment from any doctor. During her evidence, I asked the plaintiff why she had not sought treatment.[18] She explained that she thought the only other avenue open to her for treatment was a wrist fusion and that she was most reluctant to undergo that radical surgery. I do note, however, that under the care of Dr Blombery, the plaintiff was successfully treated with a range of medications. While the lack of treatment is a matter to be taken into account in assessing the consequences to the plaintiff as a result of injury, it is not determinative: (see Dwyer v Calco Timbers Pty Ltd (No. 2).[19]
[17] PCB 58
[18] T33-4
[19] [2008] VSCA 260, at para 24
Medical Opinions
32 The insurer arranged for the plaintiff to be examined by a number of consultant practitioners. Dr Kostos examined her in 2005 and 2006[20] and accepted that she suffered some form of rheumatoid arthritis in the right wrist. He concluded,[21] somewhat unusually, that there was no evidence to indicate trauma had precipitated the arthritic process. He thought it difficult to suggest that employment had been a significant contributing factor. He is the only doctor to so conclude.
[20] DCB 14-20
[21] DCB 19
33 The plaintiff was examined by Dr Warren Kemp, rheumatologist, in June 2006. He agreed she suffered inflammatory arthritis of a rheumatoid type. He thought the plaintiff then unfit for data entry work and that it was likely she would suffer some permanent physical impairment of the wrist.
34 The plaintiff was examined by Dr Mutton, occupational physician, in December 2006. This report was written shortly after the denervation procedure undertaken by Mr Crock, and is not of assistance.
35 The plaintiff was examined by Mr Brendan Dooley, orthopaedic surgeon, in May 2007.[22] He thought she was suffering from traumatic synovitis to the wrist, from which she had made a good recovery and that it was probable that she would not develop osteoarthritic changes in the wrist. He thought her prognosis was reasonably good.
[22] DCB 35-38
36 I do not find the opinions of these doctors of particular assistance. Save for the opinion of Mr Dooley, they all pre-date the period in which the plaintiff experienced significant recovery following the denervation procedure undertaken by Mr Crock, and the treatment by Dr Blombery.
37 Of significance, there are two reports recently obtained on behalf of the plaintiff. The first is a report from Dr Blombery of 15 December 2008.[23] He noted the plaintiff continued to suffer features of neuropathic or myofascial pain, related to nerve pathways. He thought the plaintiff’s prognosis was poor and thought the only available treatment was a wrist fusion which he noted she was reluctant to undergo. He thought it likely she would suffer further deterioration in pain level. As earlier referred to, this opinion was obtained not in the course of treatment, but for the purpose of this application.
[23] PCB 58-60
38 The plaintiff was examined by Mr Murray Stapleton, hand surgeon, in October 2008. He obtained a history that the plaintiff’s wrist was painful at rest,[24] and he thought that the osteoarthritis shown in the bone scan of September 2006 would now have progressed. The plaintiff told him that she had a good range of movement of the wrist, but that it “felt stiff”. She told Mr Stapleton she had difficulty lifting heavier weights with the right hand. On examination he noted pronation and supination of the wrist was normal. He thought the plaintiff had suffered ligamentous damage in the original fall which had led to arthritis in the wrist. He thought the prognosis was poor and that the arthritis would be progressive, eventually possibly leading to a wrist fusion.
[24] PCB 62
Legal Principles
39 Mr Jens submitted the principles of Sumbul v Melbourne All Toya Wreckers Pty Ltd[25] had application to the present proceeding. At paragraph 24, Chernov JA said:
“…If one accepts, as her Honour did, that the appellant is physically able to return to alternative employment, then, unless there was some other evidence that showed that he experienced significant pain or that he otherwise significantly suffered physically from the injury, it would ordinarily be difficult to conclude that the pain and suffering consequences of it are ‘at least very considerable’. In my view, there was no such evidence before her Honour.”
[25] [2006] VSCA 292
40 Given the plaintiff has returned to full-time employment which requires the regular use of both hands, although not to the same extent as the plaintiff was able to previously undertake, particularly keyboard use, Mr Jens says that for this reason the plaintiff does not attain the “very considerable” level. However, in Sumble his Honour provides a specific caveat –
“unless there was some other evidence that showed that he experienced significant pain or that he otherwise significantly suffered physically from the injury . . . .“
41 There was surveillance film, and other issues as to the plaintiff’s credibility in Sumble which are not present in this application. It was considered that the plaintiff had a functional capacity significantly greater than that displayed to the doctors.
42 As stated, I am satisfied that the plaintiff does have ongoing pain and that it is increasing. I accept that the plaintiff’s return to full-time duties is a matter to be taken into account. However I see the facts of this case as somewhat different to Sumble, and conclude the plaintiff’s ability to work is not, of itself, determinative of the application.
Submissions on behalf of the Defendants
43 Mr Jens urges that:
•
The plaintiff made a very good recovery as a result of the various procedures and medication prescribed to the point that she has been able to resume full-time employment in a clerical capacity. He contrasted this to the position at the time of the injury when she was working part-time only. I note, however, that in addition to the part-time employment, the plaintiff was looking after her grandson.
•
The plaintiff receives no current medical treatment of any type, and has not done so for approximately two years. If her condition had deteriorated as she says why then had she not sought treatment?
•
While the plaintiff does take medication, it is not prescription medication, and there has been no return to any doctor seeking stronger or alternative medication.
•
The plaintiff undertakes a range of duties in the course of her employment and using both hands. She drives to and from work each day and performs a range of domestic activities.
•
I should consider the injury in this case and its consequences with other injuries and consequences in the range of injuries to the wrist. He submits that the case is at the very lower end, and the consequences to the plaintiff do not reach the very considerable level. He points out that the plaintiff was not participating in active sport and the reduction in her domestic and recreational activities has not been substantial.
Submissions of the Plaintiff
44 On behalf of the plaintiff, Mr O’Dwyer submits that:
•
By early 2007, and in accordance with the various medical opinions, the plaintiff had made a good recovery from her injuries. He says, however, that the critical issue is what has transpired since that time.
•
The plaintiff was a credible witness and that she suffers constant throbbing pain particularly after strenuous activities involving the wrist.
•
The plaintiff takes large doses of pain relieving medication which she purchases over the counter.
•
The plaintiff suffers a restriction in a range of activities particularly involving her grandchildren and the domestic activities she previously enjoyed.
•
While the plaintiff can work full-time, it is not the data entry work she performed before October 2004 and I should accept the plaintiff’s evidence and that of medical practitioners that she could not work full- time as a keyboard operator.
•
The arthritic condition in her wrists is degenerative and the prospects are that it will worsen with time with the possibility of a wrist fusion.
Conclusions
45 I have not found this is a straightforward application to determine. There is force in the arguments put both by Mr Jens and Mr O’Dwyer.
46 I accept that the plaintiff made a good recovery from a wrist injury by early 2007 enabling her to cease medical treatment and resume full-time employment.
47 I found the plaintiff to be a credible witness and accept that there has been a deterioration in her pain levels from that time through to the present. Although it is somewhat unusual that this increase in pain has not led her to return to any of her treating doctors, I accept her explanation that this is more because she does not believe that short of a wrist fusion, there is any particular form of treatment on offer. I consider her approach to be reasonable.
48 I accept that the plaintiff suffers a restriction in a range of domestic and work activities, although it is clear that there are many things that she is able to do using both hands.
49 The medical opinions which appear of most significance are the recent reports of Dr Blombery and Mr Stapleton. Both point to a poor prognosis for the plaintiff with the arthritic process in her wrist likely to continue giving rise to worsening pain and the possibility of a fusion.
50 Whilst I accept that the injury to her right wrist and the consequences which have ensued lie towards the lower end of the range of injuries than at the very top, nonetheless, I consider that it is a matter of particular significance that her condition has deteriorated and that this will continue. According to the most recent report of Dr Blombery, there is no further treatment on offer save for the prospect of a wrist fusion which would be major surgery. Looking into the future then, the plaintiff, who is now aged fifty six, faces increased pain and restriction, rather than any resolution. Further, I accept that she suffers pain as she states and that it is constant and requires the ingestion of a considerable quantity of medication.
51 On balance, particularly given the degenerative nature of the condition and the pain it causes, I am satisfied that the consequences to the plaintiff do achieve the “very considerable” level as the legislation requires.
52 I propose to grant leave to the plaintiff to issue proceedings at common law and will make the consequent orders.
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