Kothe v VWA
[2024] VCC 292
•19 March 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-01031
| STEPHANIE KOTHE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 March 2024 | |
DATE OF JUDGMENT: | 19 March 2024 | |
CASE MAY BE CITED AS: | Kothe v VWA | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 292 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering – credit – injury to the wrist – impairment consequences
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:TTB SMS Pty Ltd v Reading [2020] VSCA 203; Johns v Oaktech Ltd [2020] VSCA 10; Popal v Transport Accident Commission [2023] VSCA 222
Judgment: Proceeding dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Macnab SC with Mr C Sidebottom | Slater & Gordon Ltd |
| For the Defendant | Mr L Howe | Wisewould Mahony |
HIS HONOUR:
Introduction
1According to my Associates, the Revolver Upstairs nightclub (“Revolver”) is a Chapel Street institution.
2Apparently big-name DJs such as “Fred again…” have performed at Revolver, although I again defer to my Associates for any further description of Fred again…
3Another DJ to perform at Revolver is the artist known as “WISER.”.
4“WISER.” is the stage or professional name for Ms Stephanie Kothe, the plaintiff in this proceeding (“the plaintiff’). I shall return to discuss the relevance of her DJ performances.
5The plaintiff is currently 33 years of age, married and lives with her husband in Melbourne. In September 2013, she commenced work for Cotton On, as a retail assistant and later as a manager.
6In the course of her employment with Cotton On, the plaintiff suffered an injury to her right hand/wrist, including on 21 December 2016, when lifting items.
7On 3 January 2017, the plaintiff attended a general practitioner at Medical One - Victoria Gardens, was issued with a medical certificate and then had several days off work for right hand/wrist pain. She lodged a WorkCover claim which was accepted and commenced physiotherapy at a clinic in Port Melbourne.
8By 10 February 2017, the plaintiff had been referred for an MRI scan of her right wrist, which concluded that there was tendon damage.[1]
[1]Amended Plaintiff’s Court Book (“APCB”) 31.
9On 16 February 2017, Dr Brian McLaughlin at the Victoria Gardens clinic referred her to a hand surgeon, Dr Jill Tomlinson.[2]
[2] APCB 36.
10Dr Tomlinson examined the plaintiff on 20 February 2017 and referred her for hand therapy at Action Rehab. Dr Tomlinson wrote back to Dr McLaughlin and expressed an optimistic prognosis that hand therapy management would fix the problem, but if it did not, then surgery may be an option.[3]
[3] APCB 117.
11After a period of conservative treatment, the plaintiff was referred to a different hand surgeon, Mr James Thomas. He saw her for the first time on 31 March 2017, and thought there was some mild clinical subluxation of the ECU tendon. He arranged for cortisone injections.[4]
[4]APCB 38 and 39.
12The plaintiff was reviewed by Mr Thomas with the results of a recent MRI[5] on 17 July 2017. He thought that there were significant ongoing issues with the ECU tendon, that conservative treatment had failed and recommended a wrist arthroscopy.[6]
[5] APCB 32.
[6]APCB 40.
13On 4 August 2017, the plaintiff underwent a right wrist arthroscopy and debridement with ECU tenosynovectomy and stabilisation.[7]
[7]APCB 41.
14After the surgery, the plaintiff was again referred for hand therapy with Ms Jo Campbell-Smith.
15On 9 May 2018, Ms Campbell-Smith described the plaintiff’s rehabilitation as slow and noted left wrist pain due to overuse.[8]
[8]APCB 43.
16On 15 June 2018, Mr Thomas recorded the plaintiff as having ongoing pain in the right wrist and that she was also developing similar symptoms on the left. He said there would unlikely be an easy surgical solution for the bilateral wrist pain and that the plaintiff would benefit from assessment by a pain management physician.[9]
[9]APCB 42.
17In June 2018, the plaintiff resigned her employment with Cotton On and commenced part-time running a tattoo studio she had set up with her husband.
18Also during 2018, the plaintiff commenced DJ work and to build up the stage name “WISER.”. Since then, the plaintiff has performed several times at Revolver. She has also travelled throughout Australia and overseas performing as a DJ.
19By January 2020, Dr Amanda Fairweather at Port Melbourne Medical had referred the plaintiff to a pain physician Dr Ilonka Meyer, who wrote to Dr Fairweather and said the plaintiff had regained a significant amount of movement in the right wrist but still had intermittent pain. Dr Meyer recorded that the plaintiff had struggled in her own tattoo parlour because of pain and was again looking for work. She said to Dr Fairweather that she was going to arrange occupational therapy and to commence her on a low dose of Gabapentin, on a trial basis.[10]
[10] APCB 44-45.
20By letter dated 5 February 2020 (and updated on 28 February 2020), Dr Fairweather described the plaintiff’s right wrist and left thumb pain as a direct consequence of her workplace duties and activities. She said the limit of the plaintiff’s physical capacity was 15 hours per week and up to 3 hours of DJing on top of that.[11]
[11] APCB 49.
21On 24 March 2020, the plaintiff underwent an occupational therapy assessment with Ms Cathy Mellor. Ms Mellor sought funding approval for a further 6 x 40-minute occupational therapy assessments. She recorded a persisting pain condition of the right wrist that impacted on a range of activities and described a goal of self-management pain strategies and of returning the plaintiff to work.[12]
[12] APCB 46.
22By 14 April 2020, the plaintiff was attending physiotherapy at Pain Specialists Australia. She was recorded by that clinic as having about a 75% range of movement of the right wrist and reduced grip strength. A request was made for funding for 12 physiotherapy sessions.[13]
[13] APCB 48.
23Dr Fairweather provided a report dated 2 October 2020 to the plaintiff’s solicitors. In that report, she repeated earlier comments about the onset of the wrist and thumb pain, as well as the treatment provided. She said the impact on the plaintiff had been “quite significant”.[14]
[14] APCB 50-51.
24On 13 April 2022, the plaintiff was examined by Dr Jessica Fairley, visiting medical officer, rheumatology unit at the Alfred Hospital,[15] for a possible diagnosis of fibromyalgia. Dr Fairley reported back to Dr Fairweather and set out a range of presenting problems but that “her back pain is her main concern at the moment and this has been going on around two years”. [16] It was reported that the plaintiff was using Endone for back pain that was 2-3/10 most of the time and a bad episode was 4-5/10. Dr Fairley recorded that “[s]he does have to modify her activity to manage this and it impacts on her quality of life and ability to stand for long periods as part of her DJ set”.[17]
[15] Defendant’s Amended Court Book (“DACB”) 207.
[16]Ibid.
[17] DACB 207.
25In her oral evidence, the plaintiff accepted that Dr Fairley had accurately recorded her situation at that presentation.[18]
[18] Transcript (“T”) 34, Line (“L”) 22.
26Dr Fairley reported that she had a long discussion with the plaintiff about her chronic pain and the main issue of central sensitivity contributing to chronic persistent lower back pain and her chronic right wrist pain. She said the plaintiff would meet the diagnostic criteria for fibromyalgia.[19]
[19] DACB 208.
27The second and final opinion from Dr Fairley was a letter to Dr Fairweather dated 19 October 2022[20] in which she described a review with the plaintiff for her fibromyalgia, chronic back and chronic right wrist pain. She described the plaintiff using the opiate painkiller Tapentadol on an as needs basis, which was a big improvement from daily Endone. She described slow improvement and recommended home based exercises. There was no plan for further review.
[20] DACB 209.
28Dr Fairweather next reported on 6 April 2023,[21] this time in support of an application by the plaintiff to obtain a disability support pension. By then, one of the issues in this proceeding had emerged, namely the cause of the plaintiff’s ongoing impairment consequences. In her report, Dr Fairweather described conditions affecting the plaintiff’s neck, low back, anxiety and chronic pain syndrome/fibromyalgia/chronic fatigue syndrome, as contributing to the limitations for work and the application for the pension.[22]
[21] APCB 53.
[22] APCB 54-55.
29In an affidavit sworn 11 October 2022,[23] the plaintiff had described how, in 2020, she had developed some low back pain and discomfort. She said she had been diagnosed with a bulging disc and had been referred to Dr Neels du Toit who had arranged a number of steroid injections into her low back. The plaintiff said in that affidavit that she still had “some grumbling back pain off and on”.[24]
[23] APCB 6.
[24] APCB 12.
30The low back condition is unrelated to the right wrist injury. There is no report from Dr du Toit as to the onset of the pain, its consequences to the plaintiff or of the treatment he has provided.
31There is in evidence a referral letter from Dr Fairweather to Dr du Toit dated 10 January 2024.[25] Dr Fairweather described “severe lumbar disc bulges associated with chronic severe lower back pain, associated with neurological changes, worsening with steroid injection, and not responding to three years of conservative treatments… [t]his impacts her ability to work and quality of life, and she is now on a Disability Support Pension due to this”.[26]
[25] DACB 117.
[26] DACB 117.
32The reports from Dr Fairweather and Dr Fairley suggest that the plaintiff has a low back problem that is more than grumbling back pain.
33The last word from Dr Fairweather is in a report to the plaintiff’s solicitors dated 21 January 2024,[27] which dealt only with the right wrist and left thumb conditions. Dr Fairweather said “Symptoms: Pain, limitation of function, brought on by repetitive movements and prolonged movements, especially heavy lifting and fine motor skills”. She said that the plaintiff “had maximised her treatment of this issue and is unlikely to improve within the next 2 years”.[28]
[27] APCB 122.
[28]Ibid.
34Dr Fairweather’s report of 21 January 2024 must be read in the context of her referral letter to Dr du Toit prepared just 11 days earlier on 10 January 2024. When read together, issues arise as to whether it is the injury relied on, or the unrelated low back condition, or both, that is the cause of ongoing impairment consequences.
This proceeding
35Against that introduction, this is a serious injury application brought pursuant to s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).
36Specifically, the plaintiff claimed to have suffered a serious injury by reason of the pain and suffering consequences of her right wrist/hand injury. There was some reliance on persisting left thumb pain as an overuse consequence from the injury to the right dominant hand and wrist but, in opening, her senior counsel said that the application was “really about the right… dominant upper limb”.[29]
[29] T 2, L 5-6.
37The plaintiff swore three affidavits in support of her serious injury application. In addition, she tendered documents from her amended Court book, including medical reports and an affidavit from a friend of hers, Mr Daniel Abel.
38The defendant tendered medical reports and relevant documents from its amended Court book.
39In addition, the defendant played in Court and tendered a short video of the plaintiff performing as a DJ at a club on the Gold Coast. The video of the plaintiff performing as a DJ by itself was not destructive of her claim for serious injury. On one view, it neither proved nor disproved that she had a serious injury. However, it showed her moving her right wrist and hand without any apparent restriction and engaging in the sort of vigorous performance that might be associated with a performance by a DJ.
40Further, the defendant tendered a video in which the plaintiff had been interviewed about performing as “WISER.” and the enjoyment that she got from DJing.
41The plaintiff was required for cross-examination. I have considered all the tendered evidence, together with the transcript of her oral evidence. I shall refer to the relevant evidence to the extent necessary to provide my reasons.
Contentions
42Before briefly setting out the parties’ contentions, I have set out the history as to the onset of the right wrist injury, the subsequent treatment, the onset of back pain/fibromyalgia, and the relevant medical evidence from treating health practitioners, to provide context to the respective contentions and the issues for resolution.
43The onset of a compensable right wrist injury with a need for surgery and some level of ongoing conservative treatment is not in dispute. Whether the accepted right wrist injury produced a “very considerable” pain and suffering consequence is in dispute.
44In that context, the parties each provided their reasons for and against a finding of “serious injury”.
Plaintiff’s contentions
45The plaintiff contended that she had an accepted right wrist injury, for which she had undergone surgery and had been left with consequences that were “very considerable”.
46The plaintiff submitted that, because of the wrist injury, she had to use a smaller DJ deck and had modified how she went about a range of day-to-day activities, such as housework and lifting items with her right hand. In combination with some ongoing pain and need for medication, together with restriction for activities that were a passion of hers, such as drawing and tattooing, she submitted that she had proven a “very considerable” pain and suffering consequence.
47Senior counsel for plaintiff accepted that she had played down her description of her low back condition in her affidavit evidence.[30] But it was submitted that her evidence of her wrist symptoms should be accepted, considering the objective evidence of surgery and ongoing consequences. She accepted that there may be some overlap between the use of her stronger pain medication for the wrist and the low back,[31] but the whole of the evidence supported a conclusion of a “very considerable” pain and suffering consequence from the right wrist/hand injury.
[30] T 63, L 11.
[31] T 61, L 21-23.
Defendant’s contentions
48The defendant accepted that there had been an initial compensable injury to the right wrist/hand. But it said that the plaintiff had not demonstrated a “very considerable” consequence.
49First, the defendant submitted that the plaintiff’s credit had been impugned and she was an unreliable witness, including for her description of ongoing symptoms in her right wrist/hand.
50Second, the defendant contended that there was a disentangling that needed to occur. The defendant highlighted the evidence that showed the plaintiff’s low back condition impacted her ability to engage in daily activity and required her to use strong painkillers.
51Third, the defendant contended that when the Court followed the objective clinical course in the medico-legal material relied upon by it, then at its highest, by mid-2018, the plaintiff had a mildly restricted range of motion in the right wrist but otherwise a “relatively good” result.
52Fourth, the defendant submitted that during 2018, at a time when the plaintiff had a relatively good result, she commenced the DJ activity, taking it to a level where she is now known locally and internationally. Even if she now used a smaller deck because of some ongoing impairment in the right wrist/hand, the fact remained that it did not amount to much of a consequence because she is able to perform. The defendant said that if the plaintiff was now unable to pursue drawing, writing and other artistic pursuits, then that was as much a psychological reaction, and the DJ performances had filled her creative void such that the other artistic pursuits fall away.
53Finally, the defendant submitted that when considered by reference to the range of impairments and impairment consequences, including not just those that come before the courts, the plaintiff had simply failed to establish a “very considerable” pain and suffering consequence.[32]
[32]TTB SMS v Reading [2020] VSCA 203
Credit
54It is impossible to move to consider the relevant evidence without saying something about the credit of the plaintiff.
55I must consider the whole of the evidence, but as has been said many times, the credit of the plaintiff is often critically important to the result of the proceeding.[33] That is perhaps even more so when assessing the “seriousness” of an injury where pain levels can be difficult to objectively assess.
[33] Johns v Oaktech Ltd [2020] VSCA 10.
56The defendant submitted that the plaintiff’s credit had been impugned in three main ways.
57First, she had downplayed the low back condition.
58Second, she had said in her evidence that there was a significant psychological reaction (sadness) because of her wrist injury, yet that was at odds with the tendered video interview where she described the pleasure performing as a DJ gave her.
59Third, she had failed to provide any medico-legal examiner with a history of her unrelated fibromyalgia condition. To withhold such information went against her credibility.
60Relevant to credit, but also broadly to the assessment of impairment consequences, the defendant also noted the lack of an affidavit from the plaintiff’s husband,[34] and that the lay affidavit from Mr Abel[35] was limited and so vague as to be of little assistance.
[34] T 57, L 20-23.
[35] APCB 25.
61Pausing, I agree that the affidavit from Mr Abel is of little use to resolve the factual disputes in this proceeding. I also consider this is the type of proceeding where the Court could have expected an affidavit from the plaintiff’s husband to be provided and an adverse inference can be drawn from the failure to provide such evidence.[36]
[36] Popal v Transport Accident Commission [2023] VSCA 222 at [72] (“Popal”).
62As mentioned, the plaintiff accepted that her affidavit evidence had downplayed the extent of her back problem. Implicit in that concession was an acceptance that her credit had, to an extent, been impugned. But her senior counsel said it was not a “hanging offence” and, while it was “clearly a factor in the mix”,[37] when the consequences from the wrist injury were objectively analysed, the plaintiff had a “serious injury” despite her credit being impugned.
[37] T 63, L 16-19.
63In my view, the plaintiff presented in the witness box as a forthright but likeable person. But that cannot hide the fact that her affidavit evidence did not properly deal with her back condition, or her fibromyalgia. The difficulty caused for her by the successful challenge to her credit is that much of her case turns on an acceptance of subjective complaints of wrist pain as the cause of ongoing impairment consequences.
64She was challenged during cross-examination about downplaying her back and fibromyalgia. She was asked to respond to that suggestion and said “[y]eah, because in comparison to my wrist it’s not as important or as bad”.[38] She said she did not feel the need to speak much about her back in her affidavits because she knew all her medical records were “being seen by everyone” and “as this was about my wrist, I spoke mostly about my wrist”.[39] She also said she would currently describe her back as “pretty good” and elaborated that it is “really good at the moment” but “when it’s been hurting, it has been hurting a lot more”.[40]
[38] T 35, L 16-17.
[39] T 35, L 21-24.
[40] T 36, L 13-19.
65It emerged during her oral evidence that the plaintiff has again been referred to Dr du Toit for her low back pain and was due to see him “next week”.[41]
[41] T 26, L 18-21.
66The plaintiff may have a genuine belief that her description of her low back as a grumbling problem that is “pretty good” was an accurate one. However, to accept that description would ignore the evidence from Dr Fairweather and Dr Fairley about the low back and the fact that there is no evidence from Dr du Toit. Objectively, the plaintiff has a low back condition that impacts her daily activity, has required some sort of injections and the prescription of strong painkillers. Objectively, it could not be described as “pretty good”.
67An assessment of her claimed wrist consequences must be seen in the context of the objective evidence about her back and the unreliability of her evidence about her back problem. It also means that her description of pain from the wrist injury must be carefully scrutinised because I consider her to be a likeable, but unreliable, witness.
The plaintiff’s affidavit evidence
68As mentioned, the plaintiff swore three affidavits setting out the impairment consequences from her right wrist injury.
69In her first affidavit sworn 11 October 2022,[42] she described how she was then working as a DJ about once a week, as well as then helping out in a tattoo studio. She described ongoing pain and stiffness in the right wrist and near the base of her right thumb every day. She said most of the time she had a dull nagging ache. However, the pain does fluctuate throughout the day and from day to day, depending on how much she used the right hand. She described the lack of strength in the right hand and wrist and a tendency to drop things regularly. She also described left thumb pain.
[42]APCB 6.
70She said:
“38.As I am naturally right hand dominant, my right hand and wrist certainly are much more bothersome. The problems that I experience in my right hand and wrist are quite frustrating and interfere with a range of everyday activities. Tasks that involve fine manipulative movements involving my right hand and wrist, or tasks that involve lots of gripping, pinching, lifting, pushing or pulling can be quite uncomfortable for me. For instance, I now find writing, using a mouse or typing for extended periods aggravates my pain. Doing up buttons and zips and turning taps can be uncomfortable for me also. Even using my right hand to repeatedly turn pages when reading a magazine or book can aggravate my pain. I also notice that lifting heavy pots and pans or baskets of washing also tends to cause an escalation in my pain.
39.The persistence of my symptoms and the impact that they have had on my lifestyle, have also affected my mood quite noticeably. I have struggled with frequent mood swings and feelings of despondency and despair. I get frustrated when my pain flares up in my right hand and wrist and I tend to become irritable and grumpy when my pain levels flare up.
40.In order to manage my pain, I continue to use a combination of Ibuprofen and Panadol. I typically take these medications on an as needs basis but would do so on average a couple of times per week.
41.I remain under the care of my general practitioner, Dr Amanda Fairweather, who I see in Port Melbourne on average once per month. Since April 2022, I have also been attending for remedial massage and physiotherapy in South Melbourne every one or two weeks. Prior to that I had been attending Telehealth sessions with a physiotherapist, Jazmin Cruz at Pain Specialists Australia. Up until recently I had also been undertaking some kaiser training for my back injury and my wrist problems. I had been attending there once or twice per week to work on strengthening exercises.
42.As a result of the persisting pain in my right hand, wrist and thumb my household domestic activities have been heavily impacted. At home, I now struggle with the heavier cleaning tasks such as vacuuming, mopping and cleaning the bathrooms. Activities that involve scrubbing and pushing and pulling with my right hand and arm are difficult for me to perform. I now rely heavily on my husband to help with those activities. I also find cooking quite problematic these days and I struggle with baking, stirring and cutting vegies.
43.Prior to my injury, I was always quite an artistic person. I have enjoyed drawing, painting and crafts since a very young age and I continued to enjoy each of these activities as an adult. I used to enjoy spending my spare time making jewellery and sewing, undertaking gold leafing and making items out of clothes. As a result of my work injuries, I now rarely undertake any of these activities due to the pain and discomfort they cause with my right hand, wrist and thumb.
44.My wrist and hand pain has also adversely impacted on my sex life. I have difficulty supporting my own body weight due to the weakness in my right hand and wrist during intimacy. The pain in my wrist and hand also limits other intimate activities and the impact on this aspect of my life has been upsetting.
45.Before my work injury, I had aspirations of becoming a tattoo artist myself in the future. My husband and several of my friends work in the industry and I had hoped to one day make a career out of it as well. Unfortunately, due to the weakness and ongoing pain in my right hand I would not be able to undertake tattoo work anymore. I could not operate the tattoo machine and draw for hours at a time as is required. I find this terribly frustrating and upsetting and I have now been forced to explore other career options instead.”[43]
[43]APCB 15-17.
71Next, in a further affidavit sworn 7 September 2023,[44] the plaintiff updated her situation, including that by then she had completed a Certificate III in Community Services and had completed 120 hours of practical training. She described how she had considered a career in community services or youth work but the pain in her right wrist and thumb had escalated during her work placement. She otherwise said she continued to experience the symptoms from her earlier affidavit as already set out.
[44]APCB 19.
72In the second affidavit, the plaintiff described the grumbling problems in her low back, but that recently her back had not been too bad and had not been causing her too many problems. Regarding the right wrist, she said:
“14.The problems with my right wrist, thumb and hand continue to cause significant restrictions on my day to day activities. Activities that involve lots of gripping, pinching and fine motor movements with my right hand continue to cause me discomfort. Similarly, tasks that involve heavy lifting, pushing, pulling and grasping with my right hand are uncomfortable for me. I continue to experience difficulties at home performing domestic chores such as cooking and cleaning. I find that using a mouse, keyboard and computer for extended periods tends to aggravate my pain as does everyday tasks such as making the bed, lifting washing baskets and opening jars and turning taps. My social and recreational activities remain heavily impacted as set out in my earlier affidavit.
15.Since my earlier affidavit, my main social and recreational outlet has remained my DJ activities. I love music and find that performing as a DJ helps take my mind off my pain and the problems that I have struggled with since my work injury. Over the past 12 months, I have continued to DJ and promote events at various nightclubs around Melbourne. I do so on average once or twice a fortnight. I usually get paid between $250 and $450 per night when I perform.
16.Typically, when I perform as a DJ, my sets only go for between 1 and 1.5 hours. I find this is about as much as I can do before my right wrist, thumb and hand start to really ache. Despite the discomfort that I feel, I enjoy being a DJ, as I get a buzz out of seeing people dancing to the music that I play. Over time, my profile as a DJ has grown, and this has also resulted in me being invited to play a handful of gigs at clubs both interstate and overseas over the past 12 months. Generally when I do travel to perform, I go away with a friend or family member as I struggle handling my luggage myself whilst away. Whilst my DJ activities have been good for my mental health, and do help provide me with a small income, it is still more of a hobby rather than any realistic career option for me as it is something that I mainly only get to do on weekends.”[45]
[45]APCB 22-23.
73Then, in a third affidavit sworn 27 February 2024,[46] the plaintiff described that her wrist condition had remained “much the same”. She said she continued to experience pain and stiffness in the right wrist, thumb and hand each day.
[46]APCB 109.
74Regarding her DJ work, the plaintiff said:
“5.Since my second affidavit, I have not been able to return to work, although I have continued to maintain my interest in the music scene, and I have continued to perform as a DJ on average about once per week. Most weekends, I will undertake a DJ set at a nightclub around Melbourne, with my set typically lasting between 60 and 90 minutes. Over the past six months I have performed at a variety of clubs such as My Aeon, Subclub and Revolver. In or about November 2023, I also secured a DJ gig on the Gold Coast, but that is the only interstate or overseas booking that I have had since my second affidavit.
6.Whilst I continue to enjoy performing, and I find that it is good for my mental health, my DJ activities remain very much a hobby for me. I remain limited in how much I can perform due to my injuries, and I find that by the end of a set my right wrist, hand and thumb typically ache more. Despite this, I would rather put up with this discomfort than give up my music involvement as it is my main outlet since my workplace injuries.”[47]
[47]APCB 110.
75The plaintiff otherwise described her symptoms and restrictions as described in her earlier affidavits. She said:
“10.My symptoms otherwise remain as described in paragraphs 35 to 39 of my first affidavit. The level of my pain and discomfort does vary from day to day but I find that the more I try and use my right hand, the more my symptoms tend to flare up. The persistence of my symptoms, and the lack of improvement in my condition has continued to have a detrimental effect of my mental health and I remain quite moody, irritable, depressed and anxious.
11.In order to help with my pain, I continue to use both Panadol and Nurofen a couple of times most days. In late 2023 I ceased using CBD oil but I still take Tapentadol from time to time to help manage more significant flare ups of pain. I still take this medication about once a week. At night, I still use Valium periodically to help with my anxiety levels and to also help me get to sleep if my right wrist, hand and thumb are throbbing.
12.My general practitioner remains Dr Amanda Fairweather, and I consult her on average every one or two months. I also attend a physiotherapist, Yomi Navaratne, every two or three weeks for treatment on my right hand, thumb and wrist. I am currently awaiting approval for funding of more sessions with my physiotherapist. Since my second affidavit, I have also commenced using resistance bands to help with my rehabilitation. In late 2023, I began going to a gym to do light resistance and strength training once a week to try and help increase my level of function.
13.I also still consult an osteopath, Vincenzo De Felice, every couple of months, but I see him mainly for maintenance treatment on my back rather than my right hand. Over the past six months my back has been pretty good, although I do still experience some occasional pain and stiffness which the osteo helps with.
14.The injuries to my right thumb, wrist and hand continue to cause tremendous interference with my life. My recreational, domestic and working activities have all suffered greatly. I have lost my ability to explore work as a tattoo artist and I have also suffered significant financial loss due to my work restrictions. My mental health has also plummeted and I feel a shadow of my former self. I remain anxious and concerned about what the future holds for me and I fear that I will have to live with the consequences of my workplace injuries for many years to come.”[48]
[48]APCB 111-112.
Summary of the plaintiff’s affidavit evidence
76In summary, in her affidavits the plaintiff painted a picture, in her words, of “tremendous interference” with her life because of the wrist injury. She said she required the strong painkiller Tapentadol for flare ups, and that she had to modify a range of activities, including her hobby as a DJ. The plaintiff described the effect on her mood from the wrist injury to cause her to feel that she was a “shadow” of her former self. She also touched on the unrelated back injury and described it as “grumbling” problem and generally “pretty good”.
77As I shall come to, as already alluded to in a discussion about her credit, I consider that the cross-examination and the objective evidence cast a doubt on the reliability of her affidavit evidence of impairment consequences from the right wrist injury. In short, I do not accept without scrutiny what she said in her affidavits. In the absence of objective evidence to support her subjective complaints of pain and disability, then I consider such subjective complaints to be unreliable. I do not accept that the wrist injury has caused “tremendous” interference with daily activity. The objective evidence does not support such a conclusion.
Cross-examination
78The plaintiff was cross-examined about what she had said in her affidavits (and to doctors). The point of cross-examination was to suggest she had overstated the consequences from the claimed wrist injury and minimised the consequences from the unrelated back condition.
79For example, she was challenged about whether holding a pen was difficult,[49] to which she responded by estimating that writing a letter or holding a pen for more than five minutes caused her to suffer pain. That description of pain after holding a pen for more than five minutes is a subjective complaint that, in my opinion, is not supported by the objective evidence. As I shall get to, in my view the enthusiastic activity (moving of the arms and hands) seen in the video footage is at odds with her affidavit evidence as set out that even turning the pages of a book can cause wrist pain.
[49]T 19, L 14-15.
80In the context of the credit challenge during cross-examination, the defendant played and tendered video footage from October 2023, which showed the plaintiff performing a DJ set at a nightclub in Queensland.[50] It showed the plaintiff doing movements and gestures consistent with performing as a DJ at a DJ deck, including dancing, and enthusiastically encouraging the nightclub patrons to join in.
[50]Exhibit D1.
81I am conscious that video footage must be considered in time and context, and for what it depicts and whether it has been provided to medical practitioners for comment.
82The video footage showed that the plaintiff can enthusiastically perform as a DJ and that she appeared to get pleasure from that performance. The video did not demonstrate any obvious restriction in the use of the right wrist/hand, or anything that would support a conclusion that she cannot hold a pen for more than five minutes. What was seen in the video footage may well be described as unremarkable, but in the context of some of the restrictions described by the plaintiff, it could equally be said to be remarkable.
83Equally, the video footage also did not show any obvious restriction for performing as a DJ from the low back or fibromyalgia conditions. This suggests that the low back is not a major problem for her, as submitted by her senior counsel.[51] I accept that the video footage did not demonstrate any obvious low back restriction. But that highlights the overall unreliability of the plaintiff’s subjective complaints of pain and impairment, whether from the wrist or one of the unrelated conditions.
[51]T 63, L 19-24.
84The defendant tendered material from Facebook that set out the fact that the plaintiff performs as a DJ on a regular basis and has built up something of a profile as a DJ and that she is happy with how her DJ career is going, which she conceded in her oral evidence.[52]
[52]T 17, L 16-17.
85The defendant also tendered a video interview, extracted from social media, in which the plaintiff was speaking about her performance as a DJ.[53] That evidence is not particularly useful for the resolution of a claim based on a physical injury to the wrist, although the plaintiff appeared in good spirits when interviewed, which the defendant highlighted was at odds with what she had said about her mood in her affidavits. In that sense, it is more evidence of her unreliability.
[53]Exhibit D2.
86In short, during her oral evidence, the plaintiff stuck to her guns about what she had said in her affidavits about the extent of her restrictions from her right wrist/hand injury. However, having considered the whole of the evidence, I conclude that the plaintiff has overstated her true level of impairment from the wrist/hand injury and understated the impairment from the low back condition.
87While the plaintiff may take over-the-counter painkillers from time to time for her wrist/hand, the objective evidence is that the stronger painkillers are now taken for the low back condition. I consider that to be a measure of the severity of the low back condition, as opposed to the right wrist/hand injury.
88The objective evidence from the treating practitioners also tends to the conclusion that the low back and fibromyalgia conditions do impact her daily activities, consistent with the fact that she was granted a disability pension on a letter of recommendation from Dr Fairweather that emphasised those conditions, as well as problems with anxiety.
89The plaintiff had the onus to identify the impairment consequences referable to the injury relied on to the wrist/hand, as opposed to impairment consequences caused by an unrelated condition. I consider that she failed to discharge that evidentiary onus.
90But, before expressing my conclusion on “serious injury”, I must consider the whole of the evidence, even if the plaintiff’s credit has been successfully impugned, and so turning then to the remaining evidence contained in medico-legal reports.
Balance of the medical evidence
Evidence tendered by the plaintiff
Dr Philip Mutton, consultant occupational physician
91The plaintiff tendered a report from Dr Philip Mutton dated 14 December 2022.[54] Dr Mutton set out his history, clinical findings and review of investigations. He recorded the plaintiff noting considerable difficulties with the right wrist which had interfered with her interest in the arts and her wishes to become a tattoo artist. He recorded that she had then transferred her interests into DJ work and music. He described her symptoms then as “intermittent against a background of fairly permanent residual disability”. He opined that the plaintiff could lift no more than 2 kilograms and commented upon the plaintiff’s work placements as part of her Certificate III in Community and Home Services. He said that youth work would be an appropriate strategy for her to adopt.[55]
[54]APCB 60.
[55]APCB 65.
Mr Ash Moaveni, consultant orthopaedic surgeon
92Next, the plaintiff tendered a medical report from Mr Ash Moaveni dated 27 July 2023.[56]
[56]APCB 66.
93Mr Moaveni reviewed relevant material, obtained a history from the plaintiff, and then set out his opinions. He also described the plaintiff’s current symptoms as daily pain and stiffness on the ulnar side of her right wrist and near the base of the right thumb. He recorded the plaintiff as describing the pain as a dull, nagging ache that fluctuated throughout the day, depending on how much she used her right hand, and that any repetitive use of the right hand caused her to experience intense throbbing pain. He also recorded pain and stiffness in the left thumb.[57]
[57]APCB 77.
94Mr Moaveni recorded that the plaintiff was right-handed and that her problems with her right hand and wrist made it difficult for her to do everyday activities. He recorded that she found it uncomfortable to do things that required fine motor skills, such as gripping, pinching, lifting, pushing or pulling.[58]
[58]APCB 79.
95Mr Moaveni was then asked a series of questions. Relevantly, he said:
“3. Please outline my client’s present symptoms and treatment requirements.
Ms Kothe’s present symptoms and treatment requirements have been detailed in the body of the report.
In summary, Ms Kothe continues to experience significant pain, particularly on the ulnar side of her right wrist. She also describes some pain on the base of her thumb. Ms Kothe also noted that she has been getting pain in her left wrist as a result of reliance and overuse.
With regard to treatment requirements, Ms Kothe underwent right wrist arthroscopy and debridement with ECU tenosynovectomy and stabilisation. This was performed by Mr James Thomas at St Vincent’s Private Hospital on 04 August 2017. She currently has ongoing physiotherapy treatment.
4.As a consequence of the physical injury and impairment of my client’s right wrist (excluding any psychological or psychiatric condition) is my client likely to be precluded or restricted in relation to employment or activities involving;
a. bending, lifting, twisting or stooping
b. pushing, pulling or lifting
c. repetitive pushing, pulling or lifting
d. repetitive and or prolonged use of the wrists
e. overhead activities
f. fine and manipulative use of the wrists
g. manual dexterity
and if so:
i. To what extent; and
ii.Is it considered that such incapacity will continue for the foreseeable future?
As a consequence of the physical injury and impairment of Ms Kothe’s right wrist (excluding any psychological or psychiatric condition), she is likely to be precluded or restricted in relation to employment and activities that involve lifting, pushing, pulling, repetitive action, repetitive and prolonged use of the right wrist, overhead activities, fine and manipulative use of the right wrist and manual dexterity. The extent of Ms Kothe’s preclusions or restrictions is significant, and such incapacity will continue for the foreseeable future.
5.As a consequence of the physical injury and impairment of my client’s right wrist (excluding any psychological or psychiatric condition) does she have the capacity to perform her pre-injury duties:
a.If yes, please state whether on a part-time or full-time basis. (If part-time, state the maximum number of hours).
b.If no, do you consider this incapacity to be permanent, ie. likely to last for the foreseeable future?
As a consequence of the physical injury and impairment of Ms Kothe’s right wrist (excluding any psychological or psychiatric condition), she does not have capacity to perform her pre-injury duties. I consider Ms Kothe’s incapacity to be permanent ie., likely to last for the foreseeable future.
6.As a consequence of the physical injury and impairment of my client’s right wrist (excluding any psychological or psychiatric condition) does she have the capacity to perform suitable employment (taking into account her incapacity, age, education, place of residence, skill and work experience):
a.If yes, what suitable employment and please state whether on a part-time or full-time basis. (If part-time, state the maximum number of hours).
b.If no, do you consider this incapacity to be permanent, ie. likely to last for the foreseeable future?
As a consequence of the physical injury and impairment of Ms Kothe’s right wrist (excluding any psychological or psychiatric condition), she does not have capacity to perform suitable employment, taking into account her incapacity, age, education, place of residence, skill and work experience. In coming to this opinion I note that Ms Kothe is currently doing limited DJ work. She noted that she performs approximately once per fortnight. Her sets can last up to one and a half hours. However, there have been times when she has had to finish her set early due to a significant flare up of her right wrist pain. Further, I note that Ms Kothe recently completed her Certificate III in Community Services. Ms Kothe noted that this course generally takes six months to complete, and it took Ms Kothe approximately two years. This was in part due to the Covid-19 restrictions, and in part due to Ms Kothe’s right wrist symptoms. Ms Kothe expressed the hope that one day she would be able to perform youth work, however her current level of wrist pain prevents her from doing this work.
As noted above, Mr Kothe does not have capacity to perform suitable employment on a consistent and reliable basis without the risk of aggravating her right upper extremity symptoms. I consider this incapacity to be permanent ie., likely to last for the foreseeable future.”[59]
[59]APCB 81-83.
96Overall, Mr Moaveni said the prognosis was poor and the plaintiff was likely to continue to experience pain and limitation of movement and strength in her right wrist.
Dr Amanda Sillcock, consultant occupational physician
97Dr SiIlcock examined the plaintiff and provided a report dated 10 August 2023.[60] She also obtained a history, reviewed investigations, conducted a physical examination and answered specific questions. She described the plaintiff as still having significant pain in her right wrist and that she experienced loss of movement in all directions.[61]
[60]APCB 86.
[61]APCB 91.
98She said the plaintiff had restrictions on manual dexterity and prolonged or repetitive use of the wrists. She said the plaintiff was not able to push, pull or lift, especially on a repetitive basis, and that incapacity would continue for the foreseeable future. She also described the plaintiff as not having the capacity for pre-injury duties.[62]
[62]APCB 92.
99Dr Sillcock said:
“Ms Kothe reported many restrictions on daily activities, and these are described in the body of the report above. She has particular difficulty with recreational activities such as drawing and writing, and she can no longer do craft work. She said that she would like to have children but is concerned that she would not be able to manage. I believe that this incapacity will continue for the foreseeable future.”[63]
[63]APCB 93.
100Dr Sillcock provided a supplementary report dated 25 August 2023.[64] For the purpose of that report, she was provided with the reports from Dr Moaveni and Dr Mutton, as well as several other reports obtained by the defendant. Having considered that material, she expressed opinions about work capacity.
[64]APCB 99.
Evidence tendered by the defendant
101As mentioned earlier, the defendant contended that the plaintiff’s wrist injury could best be understood by following the chronology as recorded in the reports from medico-legal consultants that it relied on.
Associate Professor Umberto Boffa
102Associate Professor Boffa examined the plaintiff on 11 July 2017 and 8 February 2018. In a report of 8 February 2018, he described the current status as right ulnar wrist pain with activity and trouble gripping. He said that examination of the right wrist revealed normal contours, range of movement and strength with a new 5-centimetre dorsal scar over the ECU.[65] He also noted the plaintiff had returned to work and to drawing.[66]
[65]DACB 8.
[66]APCB 8.
103Next, Associate Professor Boffa re-examined the plaintiff on 25 July 2018 and provided a further report.[67] He described her current status as intermittent right ulnar wrist pain with activity and that she had a stronger grip than on the last assessment. He recorded that she was sweeping, mopping and vacuuming in short stints and could do some activity but not lift or carry more than 3 kilograms with the right hand. He recorded examination of the right wrist as revealing normal contours and no tenderness over the ulnar scar, and that range of movement was mildly restricted in flexion.[68]
[67]DACB 20.
[68]DACB 22.
104A further report was provided by Associate Professor Boffa on 16 August 2018,[69] in which he was asked to review material that is otherwise not in evidence and so that report is not of much assistance.
[69]DACB 24.
105However, he did re-examine the plaintiff and provide a further report dated 16 January 2019.[70] He recorded the plaintiff was then a co-owner of a tattoo parlour working about 15 hours a week. He recorded the plaintiff as having trouble picking up items with pincer movement and pushing off from a table or floor with the right hand. He otherwise noted she was independent in activities of daily living and was sweeping, mopping and vacuuming in short stints. He again recorded a lifting restriction of 3 kilograms with the right hand. His examination findings were similar to his previous examination. Right grip strength was described as weak with discomfort on resisted wrist extension and flexion.[71]
[70]DACB 26.
[71]DACB 28.
Associate Professor Evange Romas, consultant rheumatologist
106Associate Professor Romas examined the plaintiff on 29 March 2018 and provided a report dated 4 April 2018.[72] He also took a history from the plaintiff and conducted a physical examination. He described no wrist swelling and no joint line tenderness but some discomfort around the ulnar head.[73] He summarised the situation as residual right wrist dysfunction for which a surgical procedure had been performed. He obtained a history of symptoms at that time as intermittent pain in both the right wrist and forearm and residual discomfort around the ulnar head and, in terms of wrist mobility, there was some reduced supination and reduced extension but no swelling and grip, sensation and circulation all seem normal.[74]
[72]DACB 11.
[73]DACB 13.
[74]DACB 12.
Dr Joseph Slesenger, specialist occupational physician
107Dr Slesenger examined the plaintiff and provided a report dated 3 April 2020.[75]
[75]DACB 30.
108He summarised his consultation with the plaintiff by saying there may have been a psychogenic element to her presentation. Nevertheless, he expressed opinions regarding the plaintiff’s work capacity. He said she could increase to 25 hours per week in the tattoo parlour, and he noted her DJ activity. He said the plaintiff had the capacity to return to work in the open job market but with restrictions on pushing, pulling, carrying or lifting over 5 kilograms and no fast repetitive tasks. He also said no prolonged firm gripping, pushing or pulling.[76]
[76]DACB 38.
Mr Thomas Robbins, hand, plastic and reconstructive surgeon
109Mr Robbins examined the plaintiff and provided a report dated 7 February 2023.
110The defendant placed emphasis on Mr Robbins’ report because of his particular expertise as a hand, plastic and reconstructive surgeon.
111Mr Robbins was asked to describe the plaintiff’s presenting condition which he did as follows:
“The worker complains of pain as indicated below. She also complains of tenderness in the ulnar side of her wrist over the ulnar head. The tenderness is not severe. She notes that she is also having pain at the base of her thumb. The worker claims that her wrist is restricted in movement but it was not obvious on examination. The worker spoke a lot about her condition but did not present her history in chronological order seeming to remember things as she went along. My impression was that she was to be overplaying her problem.”[77]
[77]DACB 62.
112He then said that the plaintiff’s symptoms did not seem to be very severe and he did not think the plaintiff would be demonstrably restricted in the use of her hand.
113More relevantly, Mr Robbins said:
“I believe the worker was exaggerating her difficulties. She claims it has altered her relationship with her husband. Her husband does the housework because she gets pain after doing it. She gets pain half an hour later after doing the cleaning. She claims it ‘has changed her life’. I believe there is a functional overlay and/or a deliberate overplay, probably both.”[78]
[78]DACB 63.
114Next, Mr Robbins re-examined the plaintiff on 13 July 2023 and provided a report dated 20 July 2023.[79] In that report, he recorded the plaintiff’s history of ongoing Pilates and remedial massage and continuing to work one and half hours a week as a DJ. He said on examination the hand looked normal with good movement and, if anything, the tenderness was only slight. He then answered specific questions as follows:
[79]DACB 71.
“1. Please obtain an up-to-date history from the worker since the date of your last examination.
The worker claims she cannot clean, use the phone, chop vegetables or do vacuuming because of pain in her wrist. She applied and was accepted in August 2021 for a disability pension because of pain in her right wrist from the injury of 2016 and because of chronic pain in her back and neck. She said this was approved last week. This was on the recommendation, she says, of Dr Neels Du Toit, a neurosurgeon, Ilonka Meyer, a pain specialist, and Amanda Fairweather, her GP.
On examination of her wrist, she has full function but complains of pain at the injury site.
2.Following your re-examination of the worker has there been a change in your opinion regarding the worker’s presenting condition and/or the effect the worker’s injury to her right hand has on her social and occupational functioning? If there has been a change, please provide detailed reasons why.
I found no change on re-examination. There was no evidence of any problem except a complaint of pain. She complains it interferes with living to the extent that she cannot work. Medication includes Panadol and Nurofen two to three times a day, Endone twice weekly, and tapentadol one tablet weekly. She said she saw a psychiatrist for her wrist pain but that was of no help.
3.Please provide your opinion as to whether the worker has recovered from her injury to her right hand. As far as you are able based on the available material, please elaborate on the reasons for your conclusion.
Yes, I believe the Worker has essentially recovered.”[80]
[80]DACB 72-73.
115Mr Robbins provided a supplementary report dated 15 February 2024[81] after he had been provided with the video footage for comment. He said that the plaintiff’s presentation to him and her previously reported limitations were inconsistent with his observation of the video surveillance.[82]
[81] DACB 100.
[82]DACB 101.
116I do not need to either reject or accept all opinions and conclusions in a report from a medical practitioner. While I disagree with Mr Robbins that there is no persisting physical wrist injury, I consider that he is accurate in his observation of the video footage.
Dr Tim Hwang, consultant occupational physician
117Dr Hwang examined the plaintiff and provided a report dated 4 July 2023.[83] He had a history of current symptoms as some background ache at rest that continued to affect the wrist, and that with repetitive movement she felt the pain developing throughout the whole wrist. He took a history that the plaintiff performed a DJ set for one and a half hours, one night at the weekend, but was exhausted after that and spent much of the week resting.[84]
[83]DACB 64.
[84]DACB 66.
118In respect to range of movement, Dr Hwang noted some pain with movement on the right side, but that thumb movements and finger movements were preserved. However, all movements were associated with some discomfort. He could not detect any presence of wasting. He then said that, objectively, her conditions had largely resolved and there was no objective feature to suggest any ongoing pathology that would contribute to significant symptoms or impairment in function. He said the plaintiff appeared to have developed chronic pain symptoms that have become somewhat widespread and amplified.[85]
[85]DACB 68.
119Dr Hwang said that there was no ongoing physical injury that would preclude the plaintiff from work as an administration officer, customer relations or youth worker.[86]
[86]DACB 69.
Summary of medical evidence
120A summary of the medical evidence must first be seen in the context of the adverse credit findings that I have made regarding the reliability of the plaintiff’s evidence.
121Second, when considering impairment consequences, the relevant medical evidence of the ongoing low back condition and/or fibromyalgia condition must be considered, for an assessment of the reliability and the weight to attach to the medical opinions regarding the wrist injury.
122Third, when considered in combination with the material from treating practitioners, the medico-legal evidence leaves no doubt that the plaintiff suffered an injury to the right wrist, with the subsequent surgery.
123Fourth, there is also no doubt that, post-surgery, the plaintiff had ongoing symptoms, that has required conservative treatment, including hand therapy, with some objective ongoing restrictions.
124I consider that the totality of the medical evidence, combined with the other evidence, supports a conclusion that the plaintiff has ongoing, intermittent wrist/hand pain that increases with repetitive activity and requires the occasional use of over-the-counter painkillers. I also consider that the medical evidence supports a conclusion that heavy lifting or repetitive gripping with the right hand is now difficult for the plaintiff, consistent with having a residual range of movement of about 75% of normal wrist movement.
125But I do not accept that the whole of the evidence supports a conclusion that the plaintiff has significant ongoing wrist/hand pain. I do not accept that the plaintiff is precluded from lifting, pushing, or pulling activity with the right hand. Her description of significant restrictions is, in my opinion, inconsistent with the tendered video footage of her performing as a DJ. I do not accept that she takes the stronger painkillers for the claimed injury. The evidence supports a conclusion that any strong medication is now taken for the unrelated back condition.
126Fifth, to the extent that medical practitioners have described the ongoing impairment consequences of the right wrist/hand injury as significant, I consider that to be a conclusion that is not open on the evidence.
127Therefore, I do not accept the ultimate opinions about ongoing impairment consequences, for example, from medical examiners such as Mr Moaveni and Dr Sillcock, as they are opinions expressed on a factual basis that I do not accept, namely significant pain and disability from the wrist injury.
128In that regard, Mr Robbins was correct to express a view that the plaintiff was exaggerating her symptoms, but I consider his overall opinion that there was no problem, apart from a complaint of pain, to be against the weight of the objective evidence.
129I consider that the opinion from Dr Hwang of ongoing pain with movement and discomfort with movement is likely to be closer to the true situation. He also properly identified the more widespread chronic pain symptoms that do not form part of this claim for “serious injury”.
130I also consider that the material from the treating practitioners, and the early medico-legal opinions relied on by the defendant, support a conclusion of a recovery, albeit incomplete, after the initial surgery to a point where, by about mid-2018, there was ongoing intermittent pain and some restriction of movement in the wrist, but equally a recovery to the point where her performance as “WISER.” was able to commence and progress.
131Sixth, and finally, the difficulty in trying to assess the true level of ongoing impairment consequences returns to the fact that the plaintiff has understated the level of impairment from the low back condition. Therefore, to the extent that medical examiners attach impairment consequences to the wrist injury, there is a need to consider the limitation of those conclusions of impairment consequences where the examiners are ignorant of the low back condition and what impairment consequences it might produce.
132Of course, it is the plaintiff who bears the overall evidentiary burden to establish a “serious injury”. That is self-evidently a more difficult burden to discharge where her evidence is unreliable.
Summary – serious or not?
133First, as I have hinted, it cannot be doubted that medical opinions are often only as good as the reliability of the information provided to the medical examiner.[87]
[87] Popal at [87].
134In this proceeding, the medico-legal opinions have been provided largely in ignorance of the plaintiff’s unrelated low back condition or fibromyalgia. Therefore, the medical opinions linking impairment consequences to the right wrist/hand injury need to be considered not only for what the doctors say, but also what they cannot say because of what they were not told.
135Second, the plaintiff is an unreliable witness. Therefore, I do not accept her uncorroborated evidence of subjective complaints of pain.
136The objective evidence is of a right wrist/hand injury, for which she underwent surgery with a reasonable result, such that by mid-2018 she had regained about 75% movement in the right wrist and the reasonable use of the wrist. That is consistent with her decision to commence performing as a DJ, and to look at other avenues of employment. By January 2020, Dr Fairweather recorded that there was intermittent right wrist pain.
137Third, the plaintiff objectively was on a path to improvement until she developed significant low back symptoms that have required specialist referral, injections, and strong painkillers. There is no sound evidentiary basis to explain why that path to improvement ended, or why the plaintiff would now have significant ongoing wrist pain from any persisting organic injury.
138It may be as Dr Fairweather described in April 2023 that the plaintiff’s anxiety is amplifying her perception of impairment, consistent with the opinions from Mr Robbins of functional overlay, or from Dr Hwang of chronic and widespread pain influenced by psychosocial factors.[88] Regardless, that does not assist her to identify ongoing organic impairment consequences.
[88] DACB 68.
139An assessment of what overlap there is between impairment consequences from the injury relied on as opposed to impairments caused by other conditions (the low back, fibromyalgia, or anxiety) is impossible where she has chosen not to provide sufficient, reliable evidence.
140Fourth, the objective evidence is that the plaintiff suffered a right wrist/hand injury, which required referral to a hand surgeon and surgical treatment. I accept she has had an incomplete recovery with some level of restricted movement in the wrist, together with some loss of grip strength and restriction for activity that requires her to lift or carry items with her right hand. I accept that she uses over-the-counter painkillers as needed to manage her pain and that she continues to require occasional conservative treatment, such as physiotherapy. I consider that the objective evidence from the treating practitioners and the reliable evidence from medico-legal examiners supports such a conclusion.
141But I do not accept her subjective complaints of significant wrist pain, or that her daily activity, inability to work (in the context of the loss of pleasurable work activity as a pain and suffering consequence) and restriction for drawing, writing, tattooing, and DJ performances are as a result of her wrist/hand injury. Viewed objectively, if there is restriction for those activities, then the low back, fibromyalgia and anxiety conditions all contribute to such restrictions.
142Fifth, while her recovery may be incomplete, the objective evidence is that she did have a reasonable recovery after the surgery such that she was able to minimise her need for medication, return to engage in a range of pleasurable and social activity, such as performing as “WISER.”, to undertake some domestic activity and to travel interstate and overseas.
143I do not accept that she is so restricted such that holding a pen is difficult after about five minutes. I consider that her wrist injury would still allow her to write, draw and tattoo, even if there might be some increase in symptoms after doing those activities for a period, consistent with how she presented when performing as “WISER.” in the tendered video.
144The unreliability of her evidence, in the context of the reliable objective evidence, means that she may have an ongoing impairment that is not trivial, which may even be capable of being said to be “marked” or “significant”, but in the analysis required using the well-known legal test, in my opinion, it is not “very considerable”.
145Therefore, for the reasons expressed, the plaintiff’s application for a determination of “serious injury” is dismissed.
146I shall invite the parties to provide a minute of the consequential orders, including orders for costs.
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