Kosijer v Venture DMG Pty Ltd
[2012] VCC 346
•23 April 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
Case No. CI-10-06142
| MILKA KOSIJER | Plaintiff |
| V | |
| VENTURE DMG PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 February and 1 March 2012 | |
DATE OF JUDGMENT: | 23 April 2012 | |
CASE MAY BE CITED AS: | Kosijer v Venture DMG Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 346 | |
REASONS FOR JUDGMENT
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SUBJECT - ACCIDENT COMPENSATION
CATCHWORDS – Impairment to the right wrist - consequential impairment to the left elbow - pain and suffering – loss of earning capacity
LEGISLATION CITED - Accident Compensation Act 1985, s.134AB(16)(b)
CASES CITED - Barwon Spinners & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) VR 602; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69.
JUDGMENT - Leave granted in relation to pain and suffering. Application in relation to loss of earning capacity dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J B Richards SC with Ms N Wolski | Zaparas Lawyers |
| For the Defendant | Ms R N Annesley | Hall & Wilcox |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the defendant from about May 2005 to May 2008.
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by Section 134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of serious injury to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is principally the right upper limb.
Outline of Section 134AB
(i) Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages;
(ii) The impairment of the body function must be permanent;
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity;
(iv) By subsection (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described at the date of the hearing as being “at least very considerable” and more than “significant” or “marked”;
(v) I 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;
(vi) If there be a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter;
(vii) Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
(viii) Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;
(ix) Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(x) I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica (2006) VR 602 in reaching my conclusions;
(xi) Finally, I must determine whether the impairment meets the statutory requirements established by the Act, namely whether it is permanent and at least very considerable.
5 The plaintiff relied upon two affidavits and gave viva voce evidence. Her general practitioner, Dr Thornton was required to attend for cross examination. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material
The Plaintiff’s Evidence
6 The plaintiff is aged forty three, having been born in Croatia in 1969. She finished secondary school in 1988 and married shortly thereafter.
7 In cross examination, the plaintiff confirmed that she had clerical training as part of secondary school with four years’ study in accounting with a mixture of administration, accounting, bookkeeping and cash.
8 When war broke out in 1991, the plaintiff and her husband moved to Bosnia as refugees. They stayed there for about six months, then returned to Croatia, but subsequently had to leave for Serbia in 1995.
9 In 1997, the plaintiff undertook clerical work in the personnel management office of a Belgrade factory. There were no computer duties in this position. The plaintiff explained the job was a bit like working in the taxation office, liaising with other officers, answering the phone and carrying out general office type duties.
10 The plaintiff then worked in a fast food outlet for about two years. Thereafter, she was employed as a process worker in a shoe factory for about two to three years before moving to Australia to live in 2002.
11 When the plaintiff first arrived in Australia, she completed over five hundred hours of English language courses as a condition of her visa. She is able to read an English newspaper.
12 In October 2002, the plaintiff found work as a cleaner at Sara Lee in Noble Park, where she worked for a few months. She then worked for about two or three years for ESP, a labour hire company, working mainly at a packaging centre in Hallam.
13 In May 2005, the plaintiff commenced work with the defendant. Her main job was to assemble a car part known as a cowl grill – the rubber lining for windscreens through which water jets provide water to clean the outside of the windscreen.
14 The plaintiff had to manually work a rubber piece into clips on the plastic frame of the windscreen. This task required her to put pressure on her right thumb, index and middle fingers.
15 On average, the plaintiff completed an order of five hundred left sided frames in about two and a half to three hours, and an average of five hundred right sided frames in about five or six hours.
16 Prior to injury, the plaintiff was earning approximately $640 gross per week working with the defendant.
17 Towards the end of 2006, the plaintiff developed some pain in her right palm, thumb and the next two fingers, with discomfort spreading to her wrist and elbow. She did not go to the doctor straight away because the pain came and went. At times, her hand felt icy and at other times, it felt hot. The pain gradually worsened, and she ultimately attended her general practitioner, Dr Bogetic, in October 2006.
18 Dr Bogetic referred the plaintiff for nerve conduction studies in October 2006 and an ultrasound the following month.
19 In cross examination, the plaintiff agreed she complained to Dr Bogetic of “pins and needles” in November 2006, a feeling she experienced particularly at night. When she came home from work mid afternoon, she could not do any of her housework as the pain did not go. She took some over the counter tablets, but her pain worsened.
20 The plaintiff was then referred to Mr Kosanovic, a hand specialist, whom she saw in December 2006. He suggested surgery, but the plaintiff did not understand what type of surgery and what would be the result thereof. As the plaintiff “did not get any answers” from Mr Kasanovic, she did not go ahead with the surgery. Mr Kosanovic also sent the plaintiff for physiotherapy with Mr Phillips.
21 The defendant’s premises closed down for the Christmas break for three to four weeks in 2006. During that time, the plaintiff had four treatments with Mr Phillips which improved her pain. The plaintiff agreed that her symptoms largely settled at that point.
22 Mr Phillips suggested the plaintiff should get a medical certificate for modified duties or the symptoms in her right hand would return.
23 The plaintiff deposed Dr Bogetic would not give her such a certificate. She told the plaintiff this was not a WorkCover matter and she was not sure that the certificate “would work” even if it was a WorkCover matter.
24 In cross examination, the plaintiff confirmed she had attended Dr Bogetic for an anxiety attack in February 2007, having earlier gone to Dandenong Hospital and had an ECG. “Of course” she then told Dr Bogetic about her right wrist pain and “about the situation and about everything that she did.”
25 The plaintiff continued in her normal duties with the defendant, but in about the middle of 2007 her symptoms started to worsen. The plaintiff’s neighbour’s sister suggested she see Dr Thornton as he was good at treating the type of problem suffered by the plaintiff.
26 The plaintiff first attended Dr Thornton in September 2007. In cross examination, the plaintiff said she did not think there was a significant gap between the time she last saw Dr Bogetic and when she commenced treatment with Dr Thornton. In that time however, the plaintiff self treated, undertaking the exercises suggested by Mr Phillips and taking over the counter medication.
27 Dr Thornton gave the plaintiff a certificate for modified duties. However, the plaintiff did not make a WorkCover claim at that time, as she did not understand how serious her condition was going to be. The defendant promised to provide her with different duties, but that did not occur.
28 In cross examination, the plaintiff confirmed the reason she did not make a claim earlier. She had no idea about the compensation process and she was hoping her condition would settle, however it became more serious. The pain definitely never stopped. She has never been pain free and her condition fluctuated.
29 The modified duties certificate provided by Dr Thornton was ineffective because the plaintiff was told she would have to try to work with her left hand and she continued working in the same position.
30 The plaintiff worked on, and gradually developed a feeling of swelling and also a burning feeling in her right wrist and thumb and two next fingers. Putting ice on her hand, as instructed, by Mr Phillips helped a bit.
31 Over the 2007 Christmas break, although she was not working, the plaintiff definitely had pain.
32 In early 2008, Dr Thornton gave the plaintiff a further certificate for modified duties. Her job was then changed, but her work still required constant forceful use of her hands.
33 The plaintiff continued to have problems with her new duties. She worked without losing any time but she always wore a wrist support. She could not recall if she was getting any prescription medication at that time.
34 At the beginning of April 2008, the defendant’s WorkCover coordinator and the plaintiff’s supervisor suggested the plaintiff submit a WorkCover claim, which they did.
35 In April 2008, the plaintiff resumed physiotherapy with Mr Phillips twice a week, but her right hand symptoms worsened, and on 27 May, Dr Thornton put her off work.
36 Dr Thornton then referred the plaintiff to Mr Tham, a hand specialist, whom she saw in June 2008. The plaintiff attended him twice in relation to her right wrist in 2008 and once for her left elbow pain in 2009.
37 In cross examination, the plaintiff confirmed the symptoms as reported by Mr Tham, but disagreed she told him her symptoms had resolved. She did tell him she had problems moving her hand. She disagreed her symptoms and pain had improved significantly as she was still on pain killers.
38 The plaintiff agreed that in June 2008 she was doing well with physiotherapy. She may then have been ready to go back to work at that stage but she still felt the pain and was having treatment.
39 There was some improvement in the plaintiff’s right wrist symptoms by July 2008 and she agreed she was certified fit for alternate duties, but she then thought that certification was given later in the year. She agreed that in July 2008, she was hoping for a recovery. She then had less pain but disagreed that by October she was pain free.
40 In late 2008, after further rest, the plaintiff’s right hand pain eased, and Dr Thornton certified her fit to work four hours a day on light duties. The defendant could not find any suitable work, but told the plaintiff there was work for six hours a day. The plaintiff then saw Dr Thornton and he agreed to certify her fit for those hours, but the defendant still could not find the plaintiff a job.
41 The plaintiff confirmed the Job Fast report, completed after she was interviewed in November 2008, accurately described her level of activity at that time. She agreed that most days she was doing her housework and shopping. She enjoyed taking walks and she was probably going out once or twice a week. She no longer does so as she does not enjoy anything especially when her hand gets swollen walking.
42 The plaintiff continued physiotherapy until early 2009. She was then given exercises, which she continued to do and she was told by Mr Phillips she could come back for further treatment if her pain worsened.
43 In early 2009, Counselling Appraisal, to whom the plaintiff had been referred by WorkCover to try to help her find alternative work, suggested she attend a personal care assistant’s course. The plaintiff commenced this course at Chisholm TAFE in February 2009 on a full time basis.
44 The plaintiff contemplated the aged care course because she knew she could not continue with her occupation and she thought it would be better for her if she was not working in a factory. She was happy to undertake the course with a view to pursuing a job in that field. She “believed in a true recovery” and she thought she could do it. She wanted to fully recover but thought it would be a good job for her when she did so.
45 In the middle of 2009 whilst undertaking the course, the plaintiff developed left elbow pain, not as a result of a specific incident. She over used her left hand to protect her right. She tried to live normally during that time because she believed in recovery and a return to work.
46 The plaintiff saw Dr Baldwin, Dr Thornton’s partner and he referred her back to Mr Tham. Dr Baldwin also arranged for an x‑ray and ultrasound of the plaintiff’s left elbow in August 2009.
47 In late 2009, Dr Thornton referred the plaintiff to Dr Patrick, a rheumatologist, whom she saw in December. He gave her an injection into her left elbow, which improved the pain.
48 The plaintiff completed the course in December 2009, although she had some problems with the practical part of the course, particularly moving residents, which worsened her right hand pain.
49 The plaintiff was keen to undertake work and Dr Thornton was encouraging in this regard. The plaintiff had four weeks of a placement at a Berwick aged care facility as part of the course. Because the Berwick facility was satisfied with her performance, the plaintiff was asked to leave her résumé with it but she was never contacted in relation to future work.
50 The plaintiff has not applied for any other job. She has not left her résumé anywhere else because she started to have problems with her left elbow.
51 The plaintiff agreed Dr Thornton, as of October 2009, was certifying her fit for work for six hours a day, five days a week, with lifting restrictions and no gripping with her right hand or repetitive work.
52 The plaintiff has had no further offers of suitable employment from the defendant.
53 The job interview process was put on hold by Job Fast in April 2010 because the plaintiff went to Croatia. The plaintiff has not been contacted by Job Fast since her return to Australia. She had not applied for any jobs on her return because she still had left elbow problems and she was awaiting diagnosis and surgery. Since the February 2011 operation, the plaintiff has not applied for any jobs.
54 In cross examination, the plaintiff agreed she had no difficulty sitting, standing or walking. While doing the aged care course in 2009, she continued to do household chores but she never did any gardening.
55 When the plaintiff swore her first affidavit in August 2010, she was seeing Dr Thornton every month. He prescribed medication, and the plaintiff took Panadeine Forte two to three times a week for her right wrist pain and two Endep tablets a night. She also used Voltaren gel on her right wrist.
56 The plaintiff deposed that her pain was worse in the right wrist. It centred on the inside of the wrist towards the little finger side of the hand and was like a burning pain in that area. The discomfort spread into her right hand, where she had stiffness in the fingers, particularly the thumb and the next two fingers. She also had pain in her right palm under the thumb. If she put any physical stress on her right hand, such as prolonged gripping, she had a feeling of swelling in the thumb and next two fingers and her hand usually looked red/ blue.
57 The plaintiff had some relief from discomfort if she put her hand in cold water, which she did at least once most days.
58 The plaintiff’s right hand was sensitive to heat. She could not have the water too hot if washing the dishes. Her hand was also sensitive to pressure, and she suffered increased pain if her hand was squeezed or knocked.
59 The plaintiff also had a lack of fine control in her fingers. It was difficult to perform tasks such as turning the newspaper pages. She found any rotation of her hand, such as when turning a doorknob, was particularly painful.
60 The plaintiff wore a brace at times on her right thumb, fingers and wrist if she had to use her hand for some domestic chores. She favoured her dominant right hand where she could. She could still drive a car, but she used mainly the force of her left hand to turn the wheel, and took her right hand off the wheel when she could rest it.
61 If the plaintiff gripped something for a minute or two, her hand became increasingly uncomfortable, and when on the phone she usually used her left hand. If she had to carry anything weighing more than one or two kilograms, she used her left hand or hung the item over her shoulder. She had to get help with shopping if buying more than a few items.
62 The plaintiff’s right hand pain was not as bad in the morning, although her hand was stiff. Her pain gradually worsened during the day. In the afternoon and evening she had the worst pain, and the level thereof usually depended on how much she used her hand during the day.
63 The plaintiff continued to have left elbow pain, worse if gripping something firmly with the left hand. She had to put up with it to avoid using her right hand. The discomfort in her left elbow was not as bad as in the right wrist.
64 When trying to sleep, the plaintiff had to be careful not to put pressure on her right hand or twist it. She tried to lie on her left side with her right hand across in front of her. About once a week she woke with right wrist and hand pain.
65 In the mornings, the plaintiff’s right hand and wrist were stiff, and she usually washed her hand with cold water to free it up and then do exercises as shown by Mr Phillips, using small barbells to flex her wrist and elbows. That exercise increased the plaintiff’s pain. however, she was told it would strengthen her wrist and elbow.
66 The plaintiff still did most of the cooking. She had help from her husband with lifting full heavy cooking dishes. He had to cut the cabbage and other firm vegetables. He had to open cans or tight jars when a firm grip was required, because the plaintiff’s right hand grip felt weaker, and occasionally things seemed to slip through her fingers if she was not concentrating.
67 The plaintiff could put clothes in the washing machine and hang out small things on the line, but her husband did the larger items. She still did some vacuuming and mopping, but mainly using her left arm and with her husband’s help. The plaintiff’s husband and sons cleaned the shower and toilet if there was any scrubbing required. In examination in chief, the plaintiff added that the fact her husband and sons help with the housework makes her feel worthless.
68 In cross examination, the plaintiff agreed she does the majority of household chores which sometimes she is able to do and sometimes not. If she vacuums, she uses her left hand. She could do the dusting and she does the ironing. She does meal preparation on her own. The grocery shopping is harder and she needs help and she does it in little bits. If she holds things in her right hand for longer periods she experiences pain, but she could carry a shopping bag in her right hand from the car to the house.
69 In re-examination, the plaintiff said she was not able to do the cooking and housework like she would like to. She tries to do the easiest meals, just like soup, because she could not do anything else because of the pressure on her hand and the increase in pain when she uses it. She has to choose what must be done and then push herself and she asks for help with everything. The more she uses her hands, the more painful they become.
70 The plaintiff has socialised less since her injury. She now only socialised if she was obliged to, whereas before she attended the Serbian Community Centre every couple of months to see entertainers and go to dinner dances. She also used to go to friends’ homes and host friends every month or so.
71 Questions about the plaintiff’s hand upset her. It was hard to appear cheerful with her ongoing wrist and hand pain, and she now only went out several times a year.
72 In cross examination, the plaintiff confirmed that she does not go to the Serbian centre much at all, maybe once a year. She and her husband cannot afford to spend the money and she does not feel like going out. The plaintiff is not interested in dancing.
73 The plaintiff sometimes socialises with her friends, maybe once a month at their homes to have a coffee. Straight after she lifts her best friend’s grandchild, the plaintiff has discomfort.
74 In re examination, the plaintiff explained that she does not enjoy social activity because she has “changed inside”. She pushes herself. She tries to appear happy, so people will not ask what is the matter with her. She is always in discomfort. The pain comes and goes and sometimes it is more severe. The plaintiff does not know when to expect more pain and she still depends on some medication and massage.
75 Since the injury, the plaintiff had become more anxious and easily upset, and found it more difficult to control her moods. Her husband is generally supportive, but the plaintiff feels guilty she is not as good company as she would like to be, and she has become depressed at times. She had increasing difficulty organising herself, and it takes her longer to do things.
76 In a further affidavit sworn in July 2011 the plaintiff deposed, in addition to her right limb problems, one evening in February 2007 she developed shortness of breath and chest pain. She was taken to Dandenong Hospital, where she was held overnight, but tests did not reveal any abnormality.
77 Since then, the plaintiff has had occasional shortness of breath which she found very scary. She had been advised by Dr Thornton that this was due to her anxiety, however, he seemed unconcerned about her problem.
78 The plaintiff described an incident in Easter 2011 when her son and husband became involved in a physical altercation with some other people and the police attended. Later that night, the plaintiff had further problems with her breathing. Dr Thornton later organised a further stress test, which was normal.
79 The plaintiff remained anxious about her general safety and health, which had been the situation since she developed her limb pain.
80 Since the plaintiff swore her first affidavit, her left elbow pain has increased. Dr Patrick organised an MRI in July 2010, and the plaintiff also returned to see Mr Tham, who discovered a lump on the plaintiff’s left elbow and referred her to Dandenong Hospital for surgery.
81 The plaintiff underwent surgery in February 2011. A lipoma was removed and a cubital tunnel release was performed (“the operation”).
82 The lipoma was not tender and painful in itself. The pain was not just in the plaintiff’s elbow; it came from her elbow and resulted in her experiencing numbness in her little finger and ring finger.
83 The operation removed some of the discomfort the plaintiff was having in her left middle finger and the next finger, but she continues to have pain and a feeling of swelling in the left elbow.
84 Dr Thornton referred the plaintiff to Mr Hunt, an orthopaedic surgeon, with respect to her right wrist. She saw him in September 2010 and he arranged an MRI scan of her right wrist and hand.
85 The plaintiff’s worst pain remains in her right wrist. In January 2011, she attended Mr Phillips because of worse right sided pain. She has paid for the physiotherapy treatment herself, as WorkCover ceased funding. The treatment provided temporary relief, however the plaintiff cannot not afford to pay for more sessions.
86 The plaintiff continues to have right wrist and hand pain, and some discomfort all the time. She has increased pain with use of her right hand. She continues to use her right wrist support when doing some home duties, but is careful not to use too much pressure. She gets frustrated and annoyed at this situation, but tries not to complain. She feels like she has to put on a mask all the time.
87 The plaintiff feels embarrassed about the person she has become. She feels guilty she cannot help her husband and sons more, with her husband having to work nearly every day as a tiler.
88 The plaintiff continues to see Dr Thornton every three months. She takes Panadeine Forte several times a month, and Voltaren Rapid two or three times a week for her wrist and hand pain. Her pain seems to worsen during the day.
89 In examination in chief, the plaintiff confirmed that she now takes Panadeine Forte every day.
90 The plaintiff also takes 150 milligrams of Effexor. Recently, she has found it more difficult to sleep, and believes she has had more bad dreams. She has also found it harder to relax, and feels more on edge. In cross examination, the plaintiff agreed she started to have bad dreams after she visited Croatia in early 2010.
91 The plaintiff cannot think of any employment she could do, as if she uses her right hand too forcefully or for more than a few minutes at a time, she gets much worse pain.
92 In examination in chief, the plaintiff said that if she tried, maybe she could work two or three, up to four hours, every second day, but she was not sure whether she could do so continually. When she does the housework, she does so at her own pace. She stops and changes position and takes tablets. The plaintiff could not work more than four hours every second day because of all the discomfort and the pain she always has. If she tries to do more with her right hand, she feels more pain. If she cannot finish any housework, she just puts it aside and asks for help from her family. At the end of the day the pain gets worse.
93 The plaintiff feels it is “unbelievable” and it is not fair that she has been put off work and it is “angering” her. Of course, she enjoyed her job because finally, after three years working through an agency, she had a settled job in the one place. She enjoyed her work up to the point when she tried to complain about her pain. It meant a lot to her to have a job in the workforce, having come to Australia to start a new life. She wanted to support her family here. Her parents are overseas and “something like this happens, so how are you going to feel?”
94 In cross examination, the plaintiff said that she has not even thought about any further retraining. She cannot afford to pay for it. If someone gave her support for retraining in office work and support to find a suitable job, she could see how she went. She never thought she was not going to try. She thought she would be capable of using a photocopier and was prepared to try some job training in administration, but “how could she go to someone’s office and say, give me something to do?”
DVD surveillance
95 There was twenty seven minutes of film taken of the plaintiff on 16 February and 24 February 2011 and a further six minutes taken on 15 February 2012.
96 The plaintiff recognised herself on the first date. She agreed she could generally open her car door with her right hand. She could hold her keys in her hand and collect her mail and had no difficulty doing those things as she walked back into her house.
97 Later that day, the plaintiff was shown playing with her friend’s grandchild, guiding her down the path. She opened her arms, waving happily at the year old child, welcoming her. The plaintiff agreed she picked the child up using both her hands. When the plaintiff did so, she was pressing the child, actually supporting her against her body, cupping her hands underneath her. The child wanted to play with the plaintiff although the child’s grandmother was nearby. At that stage, the plaintiff’s pain was not that bad. The child was the plaintiff’s only joy so she visited her every now and then.
98 On 24 February, the plaintiff was shown at the chemist, wandering around looking at different things. She stayed there for about fifteen minutes waiting for a prescription. She walked around collecting a number of items and nursing them in her left hand. The plaintiff explained it was not too comfortable doing so but she had to buy the items and that was the easiest way for her to handle things.
99 The plaintiff thought that maybe she went to Target later that day and bought a number of bathroom items which were not heavy or a problem for her and she nursed them in her left arm. She then carried one or two shopping bags from the top of the lift into the car.
100 The plaintiff was shown on 15 February 2012 reversing her car out of her driveway using both hands. She was shown filling up her car with petrol with her right hand, but she then thought she was using both hands, pressing the trigger with the right hand. She then went and collected two or three bags of shopping and walked out of Woolworths. She was definitely sure the bags were not heavy.
101 The plaintiff disagreed that the film showed her doing her normal activities. She was not going to the shop every day because she did not have money to spend. She did not need to go every day. She was only buying one or two things, nothing else.
The Plaintiff’s Medical Evidence
102 Dr Thornton has been the plaintiff’s general practitioner since September 2007. He reported that prior to then, she had been attending other doctors for longstanding problems with her right wrist, noting an EMG in 2006.
103 Dr Thornton thought the plaintiff exhibited all the signs and symptoms of a diffuse tenosynovitis aggravated by repetitive duties, especially gripping.
104 Dr Thornton reported that by April 2008 it was obvious the plaintiff’s condition had deteriorated. She had been given unsuitable duties at work and she was quite upset. He then certified her fit only for light alternative duties and encouraged her to continue physiotherapy with Mr Phillips.
105 In June 2008, with only slight improvement with alternative duties and physiotherapy, Dr Thornton referred the plaintiff to Mr Tham, hand surgeon. who agreed with him that the plaintiff had diffuse tenosynovitis without any specific tendon being involved and he also felt, despite normal nerve conduction studies, the plaintiff suffered from carpal tunnel syndrome.
106 Dr Thornton reported it was agreed those conditions were of long standing and certainly work related, and the plaintiff should respond in time to physiotherapy and appropriate rest and avoidance of aggravating symptoms.
107 Since mid 2008, Dr Thornton has felt the plaintiff was fit for light alternative duties, but no work offer had been made.
108 Dr Thornton noted in December 2009 the plaintiff had completed the aged care course which she had approached with enthusiasm and hope. He then thought it was clear the plaintiff would probably never be employable in assembly type work, and he considered she had a permanent incapacity for her former work. In his view, the plaintiff was also disabled in most activities away from work, and she was therefore becoming depressed. Dr Thornton thought the plaintiff’s new qualification was appropriate and did offer hope for future gainful employment. When Dr Thornton saw the plaintiff at the end of 2009, he considered she needed ongoing physiotherapy and medication and also anti-depressants.
109 In December 2009, the plaintiff complained of bilateral upper limb pains. She was weepy and depressed. She saw Dr Patrick who injected the common extensor attachment of her left elbow and advised an exercise routine to help her stretch the tendon and to avoid heavy repetitive use of both arms.
110 Dr Thornton reported again in February 2011, advising he continued to see the plaintiff on a regular basis. She remained considerably disabled, with pain at both upper limbs, especially the right, and had developed overuse symptoms of pain and loss of function in the left. Surgery was then pending.
111 In his last report in February 2012 following surgery by Mr Tham, Dr Thornton noted the plaintiff was a little improved. Peripheral finger numbness had improved but left elbow pain remained. Dr Thornton noted Dr Patrick considered the plaintiff suffered a significant myofascial pain syndrome and that further local injections and/or surgery were not appropriate and medication and hand therapy seemed to be the best option.
112 Dr Thornton thought the plaintiff’s injuries were wholly work related with no prior injury or disease contribution. He diagnosed bilateral wrist, forearm, elbow tenosynovitis (RSI) and myofascial pain syndrome. He noted he had certified the plaintiff as fit to resume light duties for some three years now, but no offer of work had been made. He considered she could resume unrepetitive light duties on reduced hours initially, but thought she was unfit for all pre injury employment and in all likelihood, would remain so indefinitely.
113 In his view, analgesics, anti depressants and anti inflammatory medication, should continue, and physiotherapy and hand therapy would also be beneficial. He considered the prognosis for pre injury duties was poor, and for lighter duties, it was only fair.
114 In his most recent report dated 28 February 2012, Dr Thornton confirmed the plaintiff was fit to resume light unrepetitive duties. Initially, he thought she should resume at two to three hours per shift on three days a week, building up to twenty hours per week for the longer term. He noted it was important that those duties restrictions be dependent upon the plaintiff’s response and progress. Dr Thornton confirmed this view in evidence in chief.
115 In cross examination, Dr Thornton confirmed that he did not have any material from Mr Kosanovic, the hand surgeon to whom he had referred the plaintiff.
116 Dr Thornton confirmed the normal ECG, and the flare up in late May 2008 when he gave the plaintiff a certificate to be off work totally for the first time. He disagreed that as of July 2008 her symptoms had resolved. He thought at that time, her symptoms were improving.
117 There was some pressure from the plaintiff to increase her certificates to six hours a week as if she did not increase her hours, she was not going to get any work. However, the six hour job was not available, as the defendant reneged on the arrangement.
118 Dr Thornton explained that continually providing the plaintiff with six hour certificates was an oversight. He knows in retrospect that she certainly was not fit to work six hours a day, and he only certified her as such as she had requested those hours initially and he had inadvertently continued to certify her in these terms. The certificates had been the same since August 2008, as the plaintiff had not been offered any further work.
119 Dr Thornton agreed that he had never changed the plaintiff’s certification or mentioned she had a capacity for four hours work in any of his reports but six hour certification was definitely a mistake, and his view had definitely changed.
120 Dr Thornton confirmed he completed a questionnaire for Job-Fast in October 2009 in which he set out the plaintiff had a capacity for thirty hours’ work depending on what she was doing, with a trial of that work. He explained that he probably made those comments in line with the WorkCover certificates, but he now realises that in the last year or two this is not the correct position.
121 Dr Thornton and the plaintiff hoped the aged care course would give her some future, as she was very dejected and depressed. The plaintiff approached the course with quite a lot of enthusiasm.
122 Dr Thornton thought the plaintiff’s capacity for aged work depended on what job she did. He considered the hands on work required in some aged care positions may well be too difficult, but it was worth a try.
123 Dr Thornton confirmed the plaintiff’s complaint of left elbow pain for the previous four months when examined in October 2009.
124 The operation relieved some of the left elbow symptoms, but certainly not all of them. The pain was not localised. It was a diffuse pain in the whole of the left forearm, similar to that experienced on the right. The left elbow pain seemed to be getting worse, because the plaintiff was favouring her right sided original injury and putting more pressure on the left, and flaring up the lipoma as well as the myofascial syndrome on that side.
125 Dr Thornton disagreed with Mr Tham’s view that the plaintiff’s left elbow pain was localised to the lipoma. However, Dr Thornton did not think it was true epichondylitis, because it was not isolated to the epicondyle, but he felt the plaintiff had diffuse myofascial syndrome of the left forearm.
126 Dr Thornton agreed the plaintiff had a good result from Dr Patrick’s injection in January 2010.
127 There was a new referral to physiotherapy around that time, when simple household chores were a problem for the plaintiff. Quite frequently, the plaintiff had flare ups. Most of her household chores were affected as was driving and carrying things.
128 Dr Thornton agreed the plaintiff had complained of bad dreams since returning from Croatia in mid 2010.
129 Dr Thornton thought the plaintiff was not exaggerating her pain in the slightest. He always felt she was a very genuine honest person in that regard and she did try to get on with her everyday life, however, her pain just played up all the time.
130 Dr Thornton agreed there was no firm diagnosis. In the absence of nerve conduction studies, the ultrasound was normal, and Mr Tham and Dr Patrick both agreed that the plaintiff had a diffuse myofascial syndrome. He disagreed with Dr Tham’s view that the plaintiff’s symptoms were far in excess of what you would expect.
131 Dr Thornton thought the lipoma was coincidental. Because the plaintiff had fibromyalgia, that condition flared up the lipoma. While she had some initial relief after the operation, in time the other pains returned.
132 Since that time, the plaintiff seemed to have worse pains. Even everyday activities seemed to make things worse, as they had from the outset. Dr Thornton has prescribed anti depressants because the plaintiff has become more depressed over the last twelve months. Because of her bilateral forearm pain, she had a lot of difficulty with household chores, and needed a lot of help from her family. The plaintiff also had some chest problems.
133 Dr Thornton last saw the plaintiff in January 2012.
134 If he had his time over again, Dr Thornton would have changed the plaintiff’s certificates a couple of years ago. Clearly, the times that she had come to see him with severe pain, and having to have surgery on the left elbow, and seeing several different consultants, the plaintiff would not have been able to work six hours a day.
135 Since April 2011, the plaintiff’s presenting complaint has been both arms.
136 Having seen the surveillance film, Dr Thornton confirmed it did not alter his opinion in any way. The plaintiff did not hold the child by the hand as the child was likely to wrench and jerk the plaintiff’s arm. The plaintiff never pushed the trolley as that would have been hard on her wrists. She never carried any heavy bags, and carrying even a couple of little things appeared to be awkward.
137 Dr Thornton did not know how painful it was for the plaintiff to do things, and she had reported pain with many activities when she had seen him. The fact that she had not come to him after engaging in the sort of activities shown on film was probably because she thought she was having trouble with everything she did and there was not much point in coming along and telling him every time something hurt. She came to see him for flare ups, but not every time she had one. She had certainly told him about them later. If the plaintiff only saw him once a month, Dr Thornton did not think she was going to tell him everything that had happened.
138 Mr Tham, hand surgeon, reported in July 2010, having first consulted the plaintiff in June 2008.
139 Following examination, Mr Tham felt the plaintiff’s clinical signs were non specific, though there was some evidence of right carpal tunnel syndrome. He assigned her symptoms to be due to diffuse but non specific tenosynovitis, and he prescribed a conservative management plan and discharged her from his clinic.
140 Mr Tham noted the median nerve provocative tests for carpal tunnel syndrome were weakly positive, with symptoms of numbness to the thumb, index and long fingers. There was no evidence of carpal instability. He noted the previous normal nerve conduction study and ultrasound in late 2006.
141 On examination, there was diffuse tenderness over the dorsum of the right wrist and both the radial carpal and mid carpal joints and extending proximally to the radial metaphysis region. There was mild tenderness on the palmar aspect of the wrist and palm and in the area of the anatomical snuff box.
142 Although discharged, the plaintiff returned in October 2008. The plaintiff reported her symptoms of pain had resolved but she lacked dexterity in her right hand. He noted examination of the right wrist was quite unremarkable, and he suggested she return to normal duties.
143 The plaintiff returned in October 2009 complaining of pain over the medial aspect of the left elbow which she had noticed in July. There was no history of trauma. The pain was associated with occasional numbness of her left little and ring finger. A lipoma was noted on examination, and the swelling was slightly tender. There was no evidence of cubital tunnel syndrome.
144 An ultrasound showed the swelling had features of a lipoma and x‑rays were normal.
145 Mr Tham noted the plaintiff’s left elbow discomfort was localised to the area of the lipoma, and as there was no clinical evidence of infection he elected to treat it symptomatically.
146 Mr Tham noted the plaintiff developed right hand, elbow and wrist discomfort during work in 2008 and she developed left elbow discomfort in July 2009 without any specific trauma. There were also clinical signs of mild right carpal tunnel syndrome.
147 Mr Tham noted no firm diagnosis had been made due to the diffuse nature of the plaintiff’s symptoms in her right hand. He thought her left elbow discomfort could be localised to an area of lipoma.
148 Noting the plaintiff had attributed her symptoms to the repetitive nature of her work and not volunteered any other cause, he thought it difficult to associate development of diffuse pain to the work of a process worker. In Mr Tham’s view, because of the non specific nature of the plaintiff’s symptoms and the difficulty of apportioning blame to the duties of a process worker, he was unable to apportion her symptoms to her work.
149 Mr Tham diagnosed non specific right wrist and elbow pain, mild right carpal tunnel syndrome, and a painful lipoma, left elbow.
150 He did not believe that the symptoms of left elbow pain due to the lipoma would restrict the plaintiff’s ability to continue work as a process worker. He thought no further treatment was necessary.
151 Mr Tham concluded that without a specific diagnosis made as to the cause of the plaintiff’s right wrist symptoms and elbow pain it was difficult to provide an opinion on prognosis. He suggested a return to normal duties and that the plaintiff’s symptoms be monitored accordingly.
152 Mr Tham has not reported since July 2010 where he detailed an examination with the plaintiff in September 2009. He operated on the plaintiff’s left elbow in February 2011.
153 Dr Patrick, rheumatologist, first saw the plaintiff in December 2009 on referral from Dr Thornton in relation to her left elbow condition. Her symptoms were then more related to left elbow pain, which she told him had troubled her on and off for some years, with an increased intensity over the prior six months. Dr Patrick noted those left sided symptoms were in the plaintiff’s consideration related to compensatory increased left arm use because of her right wrist problems.
154 Clinical examination did not reveal significant other inflammatory synovitis. Range of left elbow movement was normal, and the right elbow was intact. The plaintiff was tender over the left elbow diffusely lateral and medial aspects, compared to the right. She seemed more tender over the lateral epicondyle right side. This was worse with restricted wrist dorsiflexion.
155 Dr Patrick could not exclude on clinical grounds a component of right?(left) extensor tendonitis. The common extensor attachment was injected with corticosteroid in December 2009. Dr Patrick did not feel that treatment was required for the medial aspect symptoms, and he suggested an exercise program.
156 Dr Patrick reviewed the plaintiff in February 2010. He noted although there was some response to the lateral epicondylar left elbow pain, there was numbness and paraesthesia on the medial aspect of the elbow into the left hand, possibly suggestive of ulnar nerve compression. Further studies were taken in this regard, and there was no significant abnormality of the left ulnar nerve shown.
157 There were ongoing diffuse symptoms in both sides of the left elbow, and there was tenderness throughout the muscle group distal to the elbow and in the proximal arm.
158 These symptoms persisted on assessment on 9 June 2010. Dr Patrick’s emphasis was on management of a developing myofascial soft tissue pain problem, and an MRI was to be undertaken to assess the left elbow.
159 On review in August 2010, Dr Patrick noted the MRI of the left elbow showed mild tendinopathy change only at the origin of the common extensor origin. There was a normal appearance of the ulnar nerve in keeping with the normal nerve conduction studies. The elbow joint itself was intact with no evidence of inflammatory change or effusion. There was normal appearance of muscle and collateral ligaments.
160 Dr Patrick last saw the plaintiff in September 2011. He noted unfortunately post surgery her diffuse elbow pain persisted. There was constant discomfort, worse with general function.
161 Clinical assessment at that time was of a normal range of left elbow movement with significant myofascial muscular tenderness throughout the left arm. Dr Patrick clearly felt now that a myofascial pain issue was the predominant pathology. He noted the plaintiff had been changed from Endep to Effexor. She was following a hand therapist’s exercise routine and self managed reconditioning program. He did not feel any other further rheumatological management would assist the plaintiff.
162 In Dr Patrick’s view the development of a left epicondylitis would have been work related. He thought the subsequent myofascial pain issue was unrelated directly to work, and perhaps had been compounded by recovery from surgical management considered because of unrelenting symptoms.
163 Dr Patrick felt the plaintiff was capable of light non repetitive function with the left arm. She was not fit for her pre injury job. He felt a detailed assessment of functional capability would require a rehabilitation provider assessment.
164 Dr Patrick suggested an ongoing reconditioning physical program, mostly self managed, medication to help with muscle relaxation and perhaps a functional capacity assessment and rehabilitation would be other forms of treatment to be considered.
165 Dr Patrick thought the plaintiff’s prognosis was poor, with ongoing symptoms over many years and a lack of response to medical and surgical management.
166 Mr Hunt, orthopaedic surgeon, saw the plaintiff in September 2010 on referral from Dr Thornton. At that stage, the plaintiff described pain in her right wrist centred towards the ulnar border, with radiation to the little and ring fingers. She told Mr Hunt she had also developed trouble with her left elbow.
167 On examination, the plaintiff had evidence of subcutaneous nodules over the ulnar border of her right wrist and forearm and over the medial aspect of her left elbow. There was a small nodule over the lateral aspect of her left elbow. The nodule over the medial aspect of the left elbow was exquisitely tender to touch, as was the cubital tunnel in that area.
168 Review of range of motion of the elbow, wrists and hands, revealed a good pain free range of motion of the shoulders and elbows. Movement of the right wrist was full but painful with extremes of flexion, extension and ulnar deviation. There was no swelling around the wrist or hand or any evidence of wasting of muscle.
169 The plaintiff was tender over the flexor carpi ulnaris tendon in particular, and tender to palpation over the ulnar styloid also. Ulnar deviation reproduced pain symptoms along the ulnar side of the right wrist.
170 Neurologically, the plaintiff’s hand was intact. She had reduced power in key grip on the right side compared to the left. She had a negative Tinel’s test over the cubital tunnel and carpal tunnel of her right upper limb. On the left side, the plaintiff had a positive Tinel’s test over the cubital tunnel, and exquisite tenderness in that location, but also some tingling along the ulnar side of the right forearm. Tinel’s test over the left wrist was negative.
171 Mr Hunt noted the MRI of the left elbow of July 2010 demonstrated evidence of mild tendinopathy along the common extensor tendon. No abnormality was seen, in particular, it was difficult to see the clinical evidence of subcutaneous nodules. He also noted the MRI of the right wrist and hand in October 2010.
172 Mr Hunt re examined the plaintiff after the MRI to investigate her right wrist symptoms further.
173 Mr Hunt explained to the plaintiff in particular the distal radial ulnar joints did not show any abnormality on the MRI. He noted the plaintiff was obviously concerned that the image had not been beneficial in terms of returning a diagnosis. He told her it was difficult to formulate a diagnosis and prescribe effective management without a clear working diagnosis, and he did not have anything further to offer her with treatment.
174 Mr Hunt thought the plaintiff’s right wrist condition was work related and consistent with the stated cause. He diagnosed right wrist pain, ulnar sided, with clinical features of an irritable wrist joint, carpal tunnel syndrome and confirmed on nerve conduction studies in October 2006. He also diagnosed tennis elbow, or left lateral epicondylitis, and subcutaneous nodules involving both upper limbs.
175 Mr Hunt noted that the multi factorial nature of the plaintiff’s presentation made it difficult for her to continue her pre injury employment or any alternative employment at the present time, and therefore he did not think she had a current work capacity for either her pre injury or alternative duties. He noted that she was to see Mr Tham about her left elbow.
176 Mr Hunt thought the plaintiff was limited in terms of what she could do with her right dominant hand in terms of housework and daily activities. In regard to her economic capacity in terms of future employment, he noted she had been financially disadvantaged as a result of her injuries as she was no longer able to work.
Medico Legal
177 Mr Flanc, vascular and general surgeon, examined the plaintiff in March 2011.
178 The plaintiff’s symptoms at that time in her right hand and wrist had not improved. She still had some tingling of the right thumb, index and middle fingers, and pain over the ulnar side of the wrist, and did not have any night symptoms. She noted that repetitive and heavy use aggravated her symptoms.
179 The plaintiff reported considerable improvement in her left elbow symptoms. She still had some pain when she changed the car gears. She was able to cook and perform most household tasks, except for vacuuming. She could not carry heavy shopping.
180 On examination, there were multiple lipomas in both arms. There was no wasting of the hands, the plaintiff was able to make a full fist, and there was no weakness.
181 In terms of the right wrist, dorsiflexion was slightly limited on the right, but other movements were not restricted. There was no tenderness or swelling, and no crepitus. Sensation in the hand and forearm were normal.
182 Mr Flanc considered the symptoms affecting the plaintiff’s right thumb, index and middle fingers were consistent with a right carpal tunnel syndrome in which the median nerve becomes compressed as it passed from the forearm into the hand. In Mr Flanc’s opinion, that was the most likely diagnosis, and he agreed with Mr Tham, who also considered that diagnosis, even though the nerve conduction study initially performed was normal.
183 Mr Flanc noted that these symptoms had in fact subsided since the plaintiff stopped work, but still appeared when the hand was stressed by repeated and heavy activity.
184 In Mr Flanc’s view, although the relationship of carpal tunnel syndrome to repetitive use of the hand is a little controversial, he thought that was the most likely diagnosis, and it had indeed been significantly influenced by the repetitive nature of the plaintiff’s work, involving forceful pushing of rubber held between the right thumb, index and middle fingers.
185 Mr Flanc noted the pain around the plaintiff’s right wrist, and especially the ulnar side of her wrist, was of uncertain origin. He thought one possible diagnosis was a tenosynovitis of the tendons around the wrist due to the repetitive work, although at the time of his examination, there was no evidence of a specific tenosynovitis involving any of the tendons in the form of either swelling along a tendon or crepitus. He noted, however, Mr Tham’s view that the plaintiff’s symptoms were due to a diffuse but non specific tenosynovitis, even though there were no abnormal findings.
186 Mr Flanc also noted Dr Blombery’s view. He commented that whether one regarded a chronic pain syndrome as organic as suggested by Dr Blombery was controversial, and depended on whether you were a pain specialist. His understanding was that there were no specific tests which identified the condition, and that the diagnosis was made on clinical judgment.
187 Irrespective of those opinions, Mr Flanc noted the plaintiff still had pain in the wrists, especially over the ulnar side of the wrists, noting that Mr Hunt had arranged for further investigations, which Mr Flanc noted he would be happy to see.
188 Irrespective of that, Mr Flanc considered the consistency of the plaintiff’s symptoms and the fact that they were aggravated by repetitive use suggested there was some form of soft tissue condition around the wrist which had developed as a result of work in 2006.
189 Mr Flanc commented that the plaintiff’s left elbow pain developed in 2009 after the cessation of work, and in his opinion it was not related to her employment. He doubted whether the plaintiff’s symptoms could be explained on the basis of a psychological disturbance.
190 In his opinion the plaintiff’s condition had stabilised, and her prognosis was probably poor in terms of a return to heavy duties. He thought her disability was mild at present, but it was likely that there would be flare ups with exposure to repetitive and heavy use of the right hand.
191 Mr Flanc thought the plaintiff was not fit for heavy and repetitive duties and would not be able to do her old job. He thought she would not be able to work in high care if it involved heavy lifting or moving of patients. He considered she may be able to do the job if she could be restricted to light duties and administrative duties, but he had some doubts whether that would be possible.
192 Mr Flanc noted the plaintiff had some accounting experience and she was moderately computer literate. He noted the plaintiff was uncertain whether she could cope with a return to some sort of clerical work with retraining, but he thought it was reasonable for her to have a comprehensive vocational assessment and attempt to identify some office activities which she could do at least on a part time basis.
193 In a supplementary report dated 28 February 2012, Mr Flanc noted that the plaintiff’s experience in office duties and moderate computer literacy could be updated and retrained into a part time office occupation, perhaps starting at three hours per day on alternate days. He considered that her work in those circumstances should be divided between keyboard work and light alternative duties such as photocopying and filing, for fear of aggravating her symptoms. Mr Flanc thought it possible that the plaintiff could increase on those hours, but he doubted whether she would be able to cope with more than fifteen hours a week.
194 The plaintiff was examined by Dr Blombery, consultant physician in vascular disease, initially in March 2010 and more recently in June 2011.
195 Following the initial examination, Dr Blomberry noted other practitioners had mentioned the plaintiff suffering from tenosynovitis but he found little evidence of that condition on imaging and examination. He thought the plaintiff had a pain syndrome in the affected area caused by repetitive movements of the hand and wrist.
196 On re examination, since first being seen, the plaintiff reported having ongoing pain in the right hand extending to the wrist, present intermittently. He noted the February operation to the left elbow, but did not really comment on that issue.
197 On examination, the fingers on the plaintiff’s right hand were redder than those on the left. She was a little tender on pressure over the right wrist. There was some tenderness medially over the scar of the ulnar nerve neurolysis of the left elbow. There was a full range of movement of all joints, and power grip on the right was eighteen kilograms versus twenty eight on the left.
198 Dr Blombery noted the plaintiff continued to have ongoing pain in the right wrist, hand and arm. He thought she had some features of carpal tunnel compression to the median nerve, although he noted the studies did not support that diagnosis. However, Dr Blomberry considered the numbness in the fingers of the right hand that the plaintiff had in the past would be consistent with that diagnosis.
199 Dr Blombery thought the pain in the various aspects in the right arm appeared to be in the nature of possibly a myofascial pain syndrome or non specific pain syndrome in the affected area where there was sensitisation of pain nerve pathways – the process of central sensitisation. He thought that micro injuries to muscles and joints and ligaments had precipitated development of the pain syndrome.
200 Dr Blomberry considered the prognosis for recovery was relatively poor, noting the plaintiff’s symptoms had been present for almost six years and were essentially stable. He thought there would be no significant change in development in the foreseeable future.
201 Dr Blombery thought the plaintiff’s employment was a significant contributing factor to her injury, having been told by her of a lot of repetitive small movements of the wrist and hands while putting parts together at work.
202 Dr Blombery diagnosed non specific pain syndrome affecting the right arm and with a component of carpal tunnel compression to the median nerve. In his opinion, the plaintiff had no capacity for her pre injury employment. He noted she had done the aged course, and that she may be able to do some part time work not involving any heavy or repetitive duties, using mainly the left arm. He thought she was going to require ongoing treatment with analgesic medication.
203 Dr Blomberry considered that the plaintiff had a non specific pain syndrome in the affected area caused by micro injuries to the muscles and joints and ligaments in the affected area, precipitating sensitisation of pain nerve pathways. In addition he thought there may be a component of carpal tunnel compression of the median nerve.
204 In his opinion, all the pain restrictions, disability and incapacity arose from the organic injury.
205 Dr Blomberry last reported in February 2012. Assessing the plaintiff overall, he thought she may be able to do up to ten to twenty hours per week of light duties using predominantly the left hand.
Investigations
206 The plaintiff was sent for nerve conduction studies by Dr Bogetic in relation to bilateral hand symptoms and carpal tunnel syndrome. The study of 26 October 2006 was normal.
207 An ultrasound of the plaintiff’s right wrist, organised by Dr Bogetic in November 2006, was reported to be within normal limits.
208 Dr Patrick organised a nerve conduction study on 24 February 2010. It was reported the study was mildly abnormal. Regarding the left ulnar nerve, conduction velocity was normal in both the forearm segment and across the elbow. However, conduction velocity dropped across the elbow to the lower limits of normal. The amplitude was maintained.
209 It was reported those findings would lend some support to extremely mild ulnar nerve lesion at around the elbow on the left side.
210 There was an MRI of the left elbow was organised by Dr Patrick in July 2010 to investigate “persistent pain? tendinopathy? and ulnar nerve irritation.” It was reported there was mild tendinopathy at the origin of the common extensor tendon, no other abnormality, normal appearing ulnar nerve.
211 An MRI of the right wrist was performed in October 2010. It was reported that there were two discrete abnormalities in the subcutaneous fat. Their appearance was non specific.
Defendant’s Medico Legal Evidence
212 Dr Baynes, occupational physician, examined the plaintiff in August 2008. The plaintiff then advised she had no pain in her right wrist or forearm. She advised after repetitive activity her hand did feel weak and somewhat tight. She advised movement of the elbow, hand and wrists were good and pain free, and she denied any pins and needles or numbness. She did advise some soreness over the anterior aspect of the wrist on the medial side.
213 Examination of the right elbow revealed normal range of movement which was pain free. There was no tenderness. Tests for medial and lateral epicondylitis were normal. There was a normal pain free range of movement of the right wrist. There was some tenderness over the anterior wrist over the ulnar side. There was increased pain with forceful flexion of the fourth and fifth fingers as well as abduction of the fifth finger. Neurological examination was normal, and tests for De Quervain’s syndrome were negative. No investigations were available.
214 Dr Baynes thought the plaintiff was suffering from a chronic pain syndrome associated with chronic left? (right) wrist pain, mainly over the anterior ulnar side of the wrist, which he thought was most likely associated with a tendinosis of the flexor tendons in the forearm. He noted the plaintiff had advised of intermittent symptoms since April 2006 which tended to wax and wane over the past two years. He thought her current condition dated back to April 2006.
215 Dr Baynes did not believe the plaintiff was fit for pre injury duties, and that such a return was likely to aggravate her present condition. He thought she was fit for alternative duties where there was no repetitive forceful gripping across the right wrist. He considered she should not be involved with repetitive forceful gripping with the right hand, and should rotate her work tasks. He believed the plaintiff was fit for pre injury hours.
216 Dr Baynes suggested decreasing physiotherapy and continuing with a home based exercise program and regular iceing after finishing work.
217 Dr Rowe, specialist occupational physician, examined the plaintiff in February 2010. The plaintiff told him she had continued to suffer with intermittent pain in the right arm and hand, and the previous year she had developed pain in the left elbow.
218 The plaintiff’s complaints at that time were right wrist pain above the ulnar border of the wrist and about the base of the hyperthenar eminence, and she told him there was sometimes swelling. She did not have pain using her hand. The pain occurred afterwards.
219 Examination of the right hand showed a grip strength of fifteen kilograms on the right and twenty four on the left. There was a normal range of right wrist movement without pain. There was a vague change in sensation about the thumb and first two fingers, but the plaintiff could oppose the thumb and fifth finger with good strength, thus there was no real sign of carpal tunnel syndrome in the right hand. Dr Rowe also noted the plaintiff had multiple lipomas about the forearms and hands.
220 Dr Rowe thought the plaintiff seemed to have some sort of occupational overuse or weakness in the right arm which had arisen out of work. He noted the diagnosis was difficult, as the symptoms were now intermittent and were related to activity.
221 Dr Rowe thought if the plaintiff had a tendonitis in the past that she had recovered from it, and her present complaints and symptoms were no longer related to work. He noted the plaintiff may be anxious and tense, and that could be contributing to her symptomatology. He thought it unwise for her to return to her pre injury duties using her hands in a forceful and repetitive manner. He considered very infrequent treatment at that time with some analgesics and attending the GP could continue for another six months.
222 In Dr Rowe’s view, the plaintiff had a current work capacity and was certainly fit for alternative work and was currently seeking same. He noted she had retrained as a personal carer, and if she could find work in that field there was no reason why she could not return to it. He also noted she had some training in accountancy in her home country and with further education she may be able to do some sort of office work.
223 Dr Rowe thought the plaintiff could go back to work immediately, maybe starting part time, if she could find suitable employment. He thought the jobs suggested by the vocational assessor were all within her capacity, and she could start part time, say twenty hours a week, and then increase her hours. He thought the plaintiff had to avoid rapid repetitive movements using the right arm and hand, noting the difference in grip strength. In his view, there were no other factors contributing to the plaintiff’s injury and condition, although he thought she was quite anxious and tense, and if that was a major part of her claim she should be examined by a psychiatrist.
224 Dr Fraser, rheumatologist, examined the plaintiff on two occasions, initially in October 2010 and more recently in November 2011.
225 Following the first examination he was not convinced there was any ongoing work related injury.
226 The plaintiff reported on re examination that there had not been much change since she had last seen him, except that she had had surgery in February. The numbness in the left ring and little fingers had resolved post operatively. However, she continued to have pain and tenderness at the medial aspect of the left elbow, although less prominent after surgery. It fluctuated in severity, being worse after any strenuous physical activity.
227 The plaintiff also reported continuing difficulty with the right hand function, describing swelling and discolouration, worse after activity. She also said in general there was discomfort and weakness in the right hand, and she sometimes wore a support on the right wrist when doing housework.
228 On examination, there was tenderness in the medial aspect of the left elbow, and resisted palmar flexion of the hand was said to reproduce elbow pain. There was no swelling or tenderness at the lateral epicondyle, and movements of the elbow were not restricted or painful.
229 Right elbow movements were also full and pain free, and there was no swelling or tenderness medially or laterally. There was slight tenderness of the ulnar aspect of the right wrist, but movements were not restricted, although the plaintiff complained of some discomfort at the extremes of flexion. There was no swelling. Finklestein’s test for De Quervain’s tenosynovitis was negative, and the finger joints were normal.
230 The left wrist was not swollen or tender, and movements were full and pain free, and the plaintiff could form full fists with good grip strength. There were no features of reflex sympathetic dystrophy.
231 Dr Fraser confirmed his earlier opinion that he did not consider the plaintiff’s current symptoms and/or signs were in any way work related. In fact, he was not convinced there was any organic basis for them.
232 Noting Dr Patrick’s findings of left lateral epicondylitis and Mr Tham’s comments about non specific tenosynovitis, Dr Fraser commented he could not find any evidence of tenosynovitis, and he was not convinced that the tenderness of the medial epicondyle was due to epicondylitis. Also there were no features to suggest a right carpal tunnel syndrome or any ongoing left ulnar neuropathy.
233 Dr Fraser commented that the plaintiff seemed to be preoccupied with the multiple lipomas, and, as he pointed out in his last report, they are not usually painful, and, as when he last saw the plaintiff, there was some overreaction on physical examination.
234 Dr Fraser thought if the plaintiff did sustain any soft tissue injury in the course of work, he believed it had long since resolved and there was no resultant incapacity.
235 In his opinion, the plaintiff was fit for her pre injury duties or for any work for which she was otherwise suited. He noted, however, non organic factors were likely to be an impediment in respect of the plaintiff’s rehabilitation for the foreseeable future. He thought she certainly did not require any further treatment for any putative work related injuries.
Claim Documentation
236 The plaintiff submitted a claim for compensation dated 16 April 2008 in which she set out she first noticed her injury/ condition, which was described as right wrist pain, in April 2006.
Video Surveillance
237 There was 27 minutes of surveillance taken on 16 and 24 February 2011.
238 On the first date at 10.57, the plaintiff was shown shutting the front door of the car with the right hand and carrying some letters in her right hand from the letter box.
239 At 13.01, the plaintiff was shown playing with a small child on the footpath. She engaged in that activity until 13.15. At 13.04, she picked up the child and cradled her with her left hand and put her right hand under the child and held her for about two minutes.
240 The rest of the time the child was guided by the plaintiff along the street or ran to her when the plaintiff was squatting down with her arms extended.
241 On 24 February, the plaintiff was initially shown 11.56 at the chemist, where she stayed until 12.14 waiting for a prescription.
242 Until 12.47, the plaintiff walked around a shopping centre, at times with her bag in her left hand. She was shown carrying a toilet brush holder and a mall bathroom rubbish bin which she had purchased.
243 There was seven minutes and thirty nine seconds of video taken on 15 February 2012. It commenced at 12.04 with the plaintiff reversing her car out of her driveway. At 12.07 she was shown walking outside some shops. At 12.10 she attended a petrol station where she filled her car. Her arms were somewhat obscured but she seemed to use her right hand to put in the petrol.
244 At 12.20, the plaintiff was shown walking around a shopping centre with her handbag over her left shoulder. At 12.33, she was shown holding a couple of light bags and she left Big W at 12.39.
Vocational Evidence
245 There was an offer of suitable employment on 1 October 2008, at which time the plaintiff was certified fit to undertake modified light duties and avoid repetitive forceful gripping with the right wrist, and to lift no more than four to five kilograms, with restrictions on flexion and extension.
246 It was proposed that the plaintiff start work four hours a day on 6 October 2008, gradually increasing to eight hours a day by 19 December 2008.
247 There were a number of subsequent return to work plans.
248 Job-Fast carried out an NES vocational assessment in November 2008 in which in order of priority, the following were identified as suitable employment options: aged care ($750 gross per week) or home care worker ($750 gross per week) childcare worker ($650 gross per week), and retail assistant ($650 gross per week).
249 When the plaintiff was interviewed for this assessment, she reported that she experienced pain in her right wrist depending on what she was doing. She reported during day to day life she generally did not experience wrist pain. However, when performing some movements she experienced five minutes of pain where she felt a sharp pulsating pain in her inner wrist. She reported that generally occurred when performing tasks such as writing, collecting plates, and washing.
250 The plaintiff noted she had developed strategies to compensate for that, and could manage to avoid experiencing pain in her wrist by favouring her left hand and being careful. She reported she had experienced some problems with cooking, cleaning, and personal care. However, she used strategies such as favouring her left hand. She did not experience too much trouble driving, as the car was automatic.
251 The plaintiff reported she had access to a computer at home, and had basic internet and computer operation skills.
252 An NES job seeker plan was completed in November 2009. In January 2010, a report as to vocational outcomes confirmed the suitability of the roles of aged care assistant, home care worker and customer order clerk.
253 The author of that plan noted that the plaintiff was very motivated to return to work within aged care, but had expressed concern over her ability to communicate effectively within the workplace. It was noted that she needed further assistance in English before taking on further training.
Overview
254 The plaintiff’s application relates principally to her right wrist. A claimed consequence of the impairment in relation thereto is injury to the left elbow resulting from over use to compensate for right wrist difficulties.
255 The plaintiff’s claim for compensation for right wrist injury was accepted and she received weekly payments and also impairment benefits pursuant to Section 98C of the Act.
256 There is not a real dispute as to the occurrence of an injury at work but there is a lack of uniformity as to the diagnosis of the right wrist condition and dispute as to whether there is a continuing organically based work contribution to that condition.
257 Whilst it is the impairment not the injury that is the relevant consideration, little has been found on various investigations of the right wrist.
258 The defendant relied on medico legal examiners Dr Fraser and Dr Rowe who thought if there was an initial soft tissue injury or tendonitis it had resolved. However Dr Rowe also thought the plaintiff seemed to have some sort of occupational overuse or weakness in the right arm that was work related. Further, reliance was placed on Dr Baynes diagnosis of a chronic pain syndrome most likely associated with a tendinosis of the flexor tendons in the forearm.
259 However, I am of the view, supported by the plaintiff’s treaters and confirmed by the need for ongoing treatment and her description of pain, that the plaintiff’s right wrist condition has not resolved. I also accept that this condition is organically based, Dr Fraser being the only examiner who held a contrary view.
260 Dr Thornton, who was cross examined, remained firmly of the view that the plaintiff’s condition of tenosynovitis, myofascial pain syndrome and right carpal tunnel syndrome, related to her work duties continued to give her problems with pain and restriction. Throughout the time he has treated the plaintiff, he found her to be genuine in her complaints of right wrist pain and tenderness.
261 Hand surgeon Mr Tham largely shared Dr Thornton’s diagnosis although it is unclear from his report as to whether he attributed the plaintiff’s wrist condition to her work as a process worker.
262 Mr Hunt, treating orthopaedic surgeon, found the plaintiff had right wrist pain with features of an irritable joint and carpal tunnel syndrome, although mistakenly stating that the latter was confirmed on the October 2006 study.
263 Medico legal examiners relied upon by the plaintiff held similar views. Mr Flanc thought carpal tunnel syndrome was the most likely diagnosis. Whilst not finding a specific tenosynovitis, he accepted there was some form of soft tissue organically based wrist condition. Dr Blomberry found a non specific pain syndrome in the right wrist.
Consequences
264 I accept that as a consequence of the plaintiff’s right wrist condition, she has developed problems in her left elbow which as Dr Thornton explained resulted from over use of that limb.
265 However the nature and extent of that left elbow condition is not clear.
266 Of significance, I have no up to date opinion in this regard from operating surgeon Mr Tham. When he last reported following examination in September 2009, Mr Tham thought the left elbow problem was localised to a lipoma, which would not cause significant problems. He did not believe that the symptoms of left elbow pain would restrict the plaintiff’s ability to continue work as a process worker and at that stage, he thought no further treatment was necessary.
267 This proved not to be the case as Mr Tham operated on the plaintiff’s left elbow in February 2011. Details of that operation and Mr Tham’s views as to the plaintiff’s condition thereafter have not been provided.
268 Following examination in September 2011, Dr Patrick thought the plaintiff’s left sided problems insofar as they were myofascial pain were unrelated directly to work and that the mild left epicondylitis would have been work related. Mr Hunt diagnosed left lateral epicondylitis.
269 Medico legal examiners did not concentrate on the plaintiff’s left elbow condition, focussing more on the right wrist. Mr Flanc simply found the left elbow problem was not work related as it had not happened at work.
270 When considering the nature and extent of the left elbow condition, I prefer the evidence of the hand specialist and treating rheumatologist to that of the treating general practitioner. Whilst I accept the plaintiff has some continuing discomfort in the left elbow, it is not a condition, which following surgery, interferes significantly with her work and daily activities.
271 The narrative test requires that the consequences of the plaintiff’s right wrist impairment when judged by comparison with other cases in the range of possible impairments, may be fairly described as being more than significant or marked and as being at least very considerable.
272 The test requires a judgment based on an evaluation of all the evidence. The relevant consideration is the impairment, not injury.
273 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph [12]:
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
274 Whilst the surveillance film taken of the plaintiff in February 2011 and 2012 showed she lived her life in a fairly unrestricted manner, shopping and visiting friends, it did not show a level of activity inconsistent with her evidence as to pain and disability. She was not shown lifting anything heavy or engaging in prolonged activity involving the use of either upper limb.
275 Further, no doctor who has examined the plaintiff was of the view she was deliberately exaggerating her condition or that there were any inconsistencies on examination.
276 I accept that the plaintiff was a genuine witness who gave a credible account of her pain and restriction relating to her right wrist and the onset of her left elbow problems.
277 Whilst the initial treatment the plaintiff received was minimal and she had periods where with treatment and rest of her conditions settled somewhat, there was a gradual deterioration confirmed by Dr Thornton leading to the plaintiff ceasing work in May 2008.
278 I accept the plaintiff’s explanation that she did not put in a claim for compensation until April 2008 as she did not appreciate the seriousness of her condition until that time, having to stop work the following month.
279 I accept that as a result of her repetitive work duties, the plaintiff has had persisting complaints of right wrist pain and restriction of movement. The plaintiff has pain in her dominant arm whenever she uses it to any extent.
280 The plaintiff still does some cooking and house work but she does so in pain, wearing a wrist support. She largely requires the assistance of her husband, particularly with heavier chores. The plaintiff also continues to experience difficulty with fine movements of her right hand.
281 As a result of over use of her left arm to compensate for this condition, she has developed problems with her left elbow as discussed above.
282 The plaintiff has undergone a range of treatment for both her right wrist and in more recent times, her left elbow. She had physiotherapy treatment until early 2009. She then self managed with exercises until early 2011 when she re‑attended the physiotherapist with increasing right wrist pain. Treatment form that time was limited as she had to pay for it herself.
283 Medication intake has fluctuated but at present, the plaintiff takes Panadeine Forte daily. In recent times, treatment has been more focussed on the left elbow with the injection in late 2009 and surgery in February 2011.
Work Capacity
284 The plaintiff is now aged forty three. She completed secondary school in Belgrade and her spoken English is quite good. She has some clerical experience in her home country but her work in Australia has always been of a manual nature, requiring the use of both hands, and she has had no particular training, save for the recent aged care course. The plaintiff undertook that study as she thought that work would be better for her than working in a factory.
285 After the onset of her right wrist pain in 2006, the plaintiff persisted with her work duties with difficulty. She was first certified fit for light duties in late 2007 but her job was not altered until a second certification in early 2008. Her job at that time however still involved the use of her right wrist. She worked in that role until she was certified unfit for all duties in late May 2008.
286 The first certification for light duties after that date was for four hours a day five days a week. However when the plaintiff was advised by the defendant there was only work available on the basis of a six hour day, she requested Dr Thornton provide certification in these terms which he continued to do until recently.
287 In his viva voce evidence, Dr Thornton explained that such continuing certification was an oversight on his part and that the plaintiff had a capacity for only four days work of five hours per day given her complaints of severe pain and the need for elbow surgery and referral to specialists.
288 The preponderance of medical evidence is that the plaintiff is no longer fit for her pre injury duties or manual work involving the use of both hands. Of recent examiners, Dr Fraser is alone in his view that the plaintiff has an unrestricted work capacity.
289 As the plaintiff’s right wrist problems have persisted for some six years without significant improvement, I am satisfied that her impairment is permanent.
290 Taking into account the interference to the plaintiff’s employment capacity resulting from the pain and restriction in her right wrist, particularly her ability to engage in her pre injury duties, I am satisfied the consequences to the plaintiff of her right wrist impairment may be fairly described as being more than significant or marked and as being at least very considerable.
Loss of Earning Capacity
291 Having satisfied the narrative requirements to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, she has a loss of earning capacity of forty per cent or more – s.134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii).
292 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
293 The former must be calculated by reference to the six year period specified in s.134AB(38)(f).
294 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
295 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
296 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.
297 I am therefore required to determine a “without injury” earnings figure, and submissions were made by counsel in this respect - see Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at para 70.
298 The plaintiff’s present earnings from personal exertion are nil.
299 There was no real dispute as to the appropriate without earnings figure and no submissions were made in this regard. The parties agreed the appropriate figure was based on the plaintiff’s earnings at the time of injury namely $640 gross per week, sixty per cent of which is $384.
300 Whilst there were a range of figures relied upon by the defendant which were all somewhat outdated, those set out ion the Job Fast document of late 2008 would be most fairly reflect what the plaintiff could earn at present in suitable employment. Gross weekly wage figures were $750 for an aged care assistant/ home care worker and $650 for a retail worker.
301 Medical opinion varies as to the hours the plaintiff is capable of working.
302 Dr Blomberry agreed with Dr Thornton that the plaintiff could work twenty hours per week using predominantly her left hand. Mr Flanc thought her capacity, with retraining, was no more than fifteen hours per week over three days a week divided between various office tasks.
303 When Mr Tham last reported following the September 2009 examination, he thought the plaintiff was capable of normal duties and that her left elbow condition should not stop her doing so. I infer by reason of the lack of a more up to date report from Mr Tham, his view on this issue would not be of assistance to the plaintiff.
304 Dr Patrick’s opinion having last seen the plaintiff in September 2011 was not dissimilar to Mr Tham’s view. He thought the plaintiff was fit for light non repetitive work using the left hand.
305 Mr Hunt is alone in his view that the plaintiff has no work capacity.
306 In terms of the defendant’s medical evidence, in October 2008, Dr Baynes thought the plaintiff was not fit for her pre injury duties. He considered she was fit for alternative duties on pre injury hours where there was no repetitive forceful gripping of the right hand and she was able to rotate her duties. In early 2010, Dr Rowe thought the plaintiff was fit for alternate duties in aged care or office work, starting part time twenty hours per week and increasing.
307 Dr Fraser is the only recent examiner of the view the plaintiff is fit for her pre injury duties. However he considered that non organic factors were likely to affect her rehabilitation
308 I accept that the plaintiff does have a capacity for suitable employment. Appropriate restrictions on her duties include no repetitive or heavy manual work involving the use of her hands. As the plaintiff agreed she has no difficulty sitting, standing or walking.
309 The plaintiff has not attempted to work since May 2008. Duties in terms of the late 2008 certificate for six hours per day were not offered to her by the defendant. That certification has never been changed. The plaintiff has not reported nor has Dr Thornton noted any significant change in the condition of the plaintiff’s right wrist since that time.
310 However, the plaintiff says that she could now only work up to four hours per day every second day but beyond those hours she would have too much pain and discomfort.
311 In cross examination, the plaintiff said that she was prepared to try office work if she was provided with retraining. She agreed that she would be prepared to try some on job training but her concern was who would offer her a job.
312 The plaintiff was able to successfully complete the aged care course in 2009 which involved theory and practical work, including a four week placement in an aged care facility in Berwick. On this basis, I accept that she is a suitable candidate for further retraining in clerical or similar work.
313 Whilst she developed left elbow problems during the aged course in 2009, I accept that that condition has largely settled following surgery. The plaintiff has not attempted work in the aged care field since that time.
314 The plaintiff has not attended Job Fast since April 2010 when she went to Croatia. She has not applied for any work after the February 2011 surgery, despite her admission that the surgery helped her condition.
315 Mr Tham’s current view as to the plaintiff’s work capacity is not available. Dr Patrick who saw the plaintiff relatively recently thought post surgery, the plaintiff was fit for light work involving her left hand, not putting any restriction on the hours worked. Dr Blueberry’s suggestion of twenty hours work per week also involved use of the left hand.
316 Although Dr Thornton is the plaintiff’s treating general practitioner and sees her regularly, I prefer the expert evidence as to the plaintiff’s current work capacity and the involvement of the left elbow in this regard.
317 I am therefore not satisfied that the plaintiff has the capacity to work twenty hours per week on a permanent basis.
318 In my view, those hours represent the plaintiff’s minimum capacity at the present time. I do not accept that in the future she would not be capable of increasing her hours further, albeit not necessarily to full time.
319 Using the somewhat dated wage figures set out in the Job Fast document of $750 per week, ($19.70 per hour) if the plaintiff worked as little as twenty five hours per week she would earn $493 per week. Working twenty hours per week as certified by Dr Thornton, she would earn $394 per week.
320 Therefore the plaintiff cannot establish that she will suffer the requisite loss of forty per cent on a permanent basis.
321 Accordingly I dismiss the application in relation of loss of earning capacity and I grant leave to the plaintiff to bring proceedings for damages in relation to the impairment to the right wrist.
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