Lambert v Victorian WorkCover Authority
[2018] VCC 1749
•2 November 2018
| IN THE COUNTY COURT OF VICTORIA AT MILDURA | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-16-04997
| JUNE HEATHER LAMBERT | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | 24 and 25 September 2018 | |
DATE OF JUDGMENT: | 2 November 2018 | |
CASE MAY BE CITED AS: | Lambert v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1749 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – impairment to the right wrist/hand – pain and suffering – loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Richards & Anor v Wylie (2000) 1 VR 79; Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511; Georgopoulos v Silaforts Painting Pty Ltd [2012] VSCA 179; Wesfarmers Ltd v Lloyd [2016] VSCA 41; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment: Applications dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison QC with Mr C S O’Sullivan | Maurice Blackburn |
| For the Defendant | Mr W R Middleton QC with Mr R Kumar | Hall & Wilcox |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for injury suffered by the plaintiff during the course of her employment with Southcorp Wines Pty Ltd (“the employer”) during 2013 and 2014 (“the said period”) and in particular on 5 February 2014 (“the said date”).
2 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s325 (1) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
3 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity.
4 The body function relied upon in this application is the right wrist/hand. The application did not include the elbow.[1]
[1]Transcript (“T”) 8
5 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.
6 The impairment of the body function must be permanent.
7 The plaintiff bears an overall burden of proof upon the balance of probabilities.
8 By s325(1)of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
9 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.
10 Section 325(2)(h) of the Act provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
11 In this application where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
12 Subsections (2) (e) and (f) recite the formula by which loss of earning capacity is to be measured.
13 Subsection (2)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
14 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[2] and Grech v Orica Australia Pty Ltd & Anor[3] in reaching my conclusions.
[2](2005) 14 VR 622
[3](2006) 14 VR 602
15 The plaintiff relied upon three affidavits and gave viva voce evidence. In addition, the parties relied on medical reports and other material tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
16 The plaintiff is presently aged sixty-two, having been born in March 1956. After completing Year 9, she then worked in a variety of unskilled manual jobs.
17 The plaintiff commenced work with the employer in July 2006 in the packing department. In that role, she was required to do a range of duties involved in operating, overseeing and maintaining equipment and supplying and replenishing materials used to label, seal, package and box bottled wine.
18 The plaintiff also did “rework”, fixing mistakes by hand on boxes of bottled wine that had not been correctly packaged. This was very repetitive work. She was also involved in the production run, which involved frequent, often rapid, use of both hands and arms.
19 From about mid-2013, and for about six months, the plaintiff had soreness in her right arm involving the elbow, wrist, and hand. She also had symptoms and pain in her left elbow and arm, but they were not as severe.
20 During February 2014, the plaintiff did a lot of cleaning of plant and equipment, and also worked for extended periods doing rework. Doing that work, she had soreness and pain in her right wrist and hand, which continued and got much worse.
21 In early February 2014, the plaintiff saw a general practitioner, Dr Kumaraswamy. She was then having pain in her right elbow, forearm, wrist and hand, and numbness in her fingers. For some time, she had been struggling to keep going at work because of the worsening pain and symptoms in her right hand and arm.
22 Dr Kumaraswamy arranged for a cervical spine x‑ray and ultrasounds of the plaintiff’s right wrist and elbow. The plaintiff went off work on 10 February 2014. Her WorkCover claim was accepted.[4] She was certified unfit for work, and remained off work for a long period of time.
[4]Claim Form signed 24 February 2014: tennis elbow, right elbow, tenosynovitis right wrist from too much repetitive work cleaning and reworking
23 In early March 2014, Dr Kumaraswamy referred the plaintiff to Mr Kossmann, orthopaedic surgeon, whom she first saw in April 2014. He arranged a number of investigations, and thereafter recommended surgery to her right wrist to repair damage to the nerves.
24 WorkCover would not accept liability for the proposed surgery. In any event, Mr Kossmann operated on the plaintiff’s right wrist on 15 November 2015 (“the surgery”). The plaintiff understood that procedure showed damage to the nerves involving her wrist and hand.
25 The plaintiff seemed to make a good recovery from the surgery. There was some improvement in the severe pain and symptoms that she had been having since February 2014.
26 Carpal tunnel surgery was also contemplated in the left wrist however it did not proceed as after six months rest, off work, the left wrist was better.[5]
[5]T25
27 After the surgery, the plaintiff had other health issues and ultimately returned to work in March 2015.[6] Her return to work thereafter was gradual. She initially did modified restricted duties. She later worked full-time normal duties under a return to work plan prepared by the employer, which included restrictions on lifting, carrying, and repetitive work tasks.
[6]T22
28 When back on full-time hours, the plaintiff worked 38 hours per week in the packaging department, including the bottling line.[7]
[7]T22
29 From about June 2015, and despite those restrictions, often the plaintiff was doing many of her normal tasks which involved repetitive use and movement of her right hand and wrist. Despite the surgery and rest, and restrictions on her work tasks, she continued to have ongoing problems with her right hand, wrist and arm.
30 The plaintiff continued to have ongoing unpredictable symptoms in her right hand, wrist and arm. Her hand lacked strength, and movements of her wrist and hand remained restricted. Frequently, she had episodes of cracking and pain in the wrist, especially on the inner side. She struggled to get good sustained relief from her ongoing pain, flare-ups of pain and symptoms affecting her right wrist and hand. She was unable to return to unrestricted full-time work which she had done for many years with the employer.
31 The plaintiff’s aching soreness and pain in the elbow into the forearm and wrist continued. The severity of her discomfort and pain fluctuated, and was worsened by manual handling tasks, especially those involving repetitive forceful activities.
32 When the plaintiff went to the Medical Panel in July 2015, her wrist was sore as the Panel noted.[8]
[8]T24 - See paragraphs [135-136] of my Judgment
33 In early 2016, the plaintiff’s employment was terminated when she was made redundant. The packing department, including the bottling wines, were closed. Sixty to eighty other workers were also made redundant.[9]
[9]T23
34 The plaintiff could not say whether she could have kept working full time on restricted duties had she not been made redundant. She agreed she stopped work because the department closed. She did not know how her wrist would have gone if she had continued working.[10]
[10]T23
35 In that last year, a lot of the time, the plaintiff and other workers would sit and watch television all night, and they were not working at full capacity. There was not the previous workload.[11]
[11]T24
36 The plaintiff has not returned to work since February 2016.
37 As of June 2016,[12] despite ceasing work, the plaintiff continued to have recurring episodes of soreness and pain in the right wrist, hand, elbow and forearm. Her ability to complete many physical tasks and activities was very restricted. As a result, many household tasks and activities, were then very difficult.
[12]First affidavit
38 Tasks which required a sustained strong grip or involved rapid forceful and repetitive movements of the right hand, wrist, and arm, were very difficult, and caused pain. These included doing the laundry, vacuuming, and other repetitive tasks such as wiping down benches, windows, and other surfaces.
39 The plaintiff’s right hand grip was much reduced, and her hand, wrist and forearm felt weak. Often, and for no apparent reason, she dropped things. At other times, she struggled to make and sustain a strong grip with her right hand.
40 The plaintiff’s many manual work tasks were now very restricted because of her hand, wrist, forearm and elbow problems. She was no longer capable of working doing factory labouring work or work involving the operation of plant and equipment. She was no longer capable of earning the gross annual income she had previously earned with the employer as follows:
· 30 June 2011 - $58,215.00
· 30 June 2012 - $60,068.00
· 30 June 2013 - $64,658.00
· 30 June 2014 - $64,601.00.
41 As of June 2016, there was always a level of aching discomfort in the plaintiff’s fingers on her right hand, wrist, and forearm, and from time to time, her elbow. The level of pain and discomfort was worsened by simple day to day tasks and activities such as cutting ingredients when preparing a meal, or when doing forceful tasks. Even simple tasks like turning off taps or undoing jar lids was difficult because of the loss of strength in her arm, wrist and hand. Those problems had continued for a long time, and she suspected they would continue for the foreseeable future.
42 The plaintiff had intended to work until normal retirement age to help provide for her retirement. She then remained in receipt of weekly payments.
43 At that stage, the plaintiff and her partner, Alan, had been together for about five years, having met in 2010. They had little in retirement savings. She had planned to work for as long as possible to build up their super and retirement savings. She had now lost the opportunity to do so because of the injuries and the permanent inability to work and earn the gross annual weekly income she had previously enjoyed.
44 The plaintiff swore a second affidavit on 5 September 2017.
45 The plaintiff then continued to have ongoing, unpredictable and frequently similar pain and restrictions involving the use of her right hand and wrist as previously deposed.
46 The plaintiff understood the surgery was successful, but it only provided some incomplete improvement in the significant pain and symptoms she had been having in her wrist and hand for a long time. Despite not having returned to work, those problems continued.
47 The plaintiff still had pain in her right hand, mainly on the right side at the base of the thumb. Generally it was like a dull constant ache, made worse by a variety of physical activities.
48 The plaintiff coped reasonably well with many ordinary simple day-to-day activities, but many domestic tasks and activities continued to be difficult as she had previously deposed. There had been little if any change, particularly improvement in the use, function, and strength of her right wrist and hand.
49 The plaintiff continued to do many domestic household chores, but needed assistance from her partner to do the heavier ones as they caused increasing soreness. Repetitive tasks around the house and in the kitchen were difficult, and she paced herself to complete them.
50 The plaintiff was no longer capable of the work she had done with the employer since at least July 2006. She was no longer capable of tasks involving any repetitive actions or movements and sustained use of the right hand, wrist, and forearm.
51 The plaintiff wanted to keep working with the employer until she was aged sixty-seven but she had lost that opportunity because of the injuries.
52 When her employment was terminated in February 2016, the plaintiff was working full-time but with restrictions on activities involving lifting to no more than 3 kilograms, carrying, and repetitive work tasks. However, in order to complete the work, she often struggled to comply with these restrictions.
53 Weekly payments continued until March 2017. The plaintiff did not receive any vocational retraining.
54 In the past, and outside work, the plaintiff enjoyed home-based handicrafts and gardening. Because of her injuries, she avoided doing gardening and handicraft activities as often as she used to, because those activities involved strong, frequently sustained and repetitive actions and movements of her right hand, wrist, and forearm. Those activities caused progressively worsening pain and discomfort. Whilst she tried to do some gardening and light craftwork, she could no longer enjoy those activities like she did before her injury.
55 The plaintiff understood that work as a retail sales assistant, product quality controller, receptionist, occupational health and safety officer, and welfare social worker, had been identified as being suitable for her. However, she did not have the education, work experience, or training, to work as a receptionist, an OH&S officer, or a welfare social worker.
56 The plaintiff left school when she was fifteen in 1971 and only completed Year 8. She was a poor student. She had always had difficulties with reading, writing, and spelling.
57 Because of her injuries, the plaintiff was not capable of employment involving regular sustained or repetitive physical activities and tasks.
58 Since ceasing work, the plaintiff commenced but had struggled to complete a Certificate IV in Community Services (“the course”). She struggled to understand and complete many aspects of the course. Her computer skills were very limited and her typing is slow.[13]
[13]T54
59 As of September 2017, the plaintiff continued to use medication, particularly when she had flare-ups of her right wrist and hand pain. She usually took Voltaren for pain, but as much as possible she tried to get by without medication. She continued under the care of her general practitioner, Dr Paige, but there was little treatment she could offer her other than prescription medication.
60 The plaintiff swore a third affidavit on 10 September this year.
61 The plaintiff continues to suffer pain and weakness in her right wrist and hand as previously deposed to. The pain goes into her right thumb. These problems are not getting any better over time, despite her not working.
62 While Mr Kossmann advised Dr Crock in November 2017 that the plaintiff had no issues with her carpal tunnel, the pins and needles and pressure on her hand had got better, but the wrist stayed sore from when she went back to work and had continued to be so to this day.[14] The plaintiff disagreed with Dr Horsley’s comment that she responded well to the surgery.[15]
[14]T20
[15]T29
63 Not working, the plaintiff does not have any problems with her right elbow and arm. If she continually does anything for any amount of time, like folding washing, it would play up.[16]
[16]T28
64 The plaintiff agreed that her right elbow had been symptom free from 2017. While she is not working, “yes, probably she would put the elbow completely out of the picture.”[17] At this time, the elbow is no longer a problem.[18]
[17]T29
[18]T30
65 When told Mr Kossmann advised Dr Crock the plaintiff had some mild pain over the extensor tendons of both thumbs, the plaintiff indicated in the witness box that her pain started at the base of her thumb, “on the side of the wrist more.”[19]
[19]T20
66 The plaintiff did not mention her thumbs in her first affidavit and agreed that was because they apparently were not symptomatic at that stage.[20] She also agreed there was no reference to her thumb in the claim form.[21]
[20]T19
[21]T20
67 The plaintiff’s thumbs had become noticeably painful, probably only recently in the last six months. They were not very painful, but painful. She is in pain with her wrist a lot, so it depends on the amount of pain.[22]
[22]T24
68 The plaintiff again confirmed her current pain is from the base of her thumb up to her forearm.[23] That involved her hand because her wrist moved her hand. The individual fingers do not really cause her any problems.[24]
[23]T30
[24]T31
69 This pain was caused by repetitive work on the plaintiff’s return to work. Most of the jobs were repetitive; even on light duties she was still doing fairly repetitive work - loading box makers with empty blank cartons and things like that. Everything she did was repetitive.[25]
[25]T32
70 While a few nights the plaintiff and fellow workers watched television, there was always cleaning, and that was one of the tasks that was heavy and repetitive. She had told doctors all the way along that she started to have this problem but she did not have a specific recollection about those discussions.[26] She could not remember without looking at her diary any particular episode or incident on her return to work that gave rise to symptoms from the base of her thumb.[27]
[26]T32
[27]T32
71 Cleaning work which the plaintiff did on her return to work was very repetitive. She had pain as she described in the witness box as a result of doing that work.[28]
[28]T57
72 When asked what the difference was between her pre and post-surgery problem, the plaintiff did not know. She had had pain in the wrist and finger for ages – “The fingers – this part has probably been more than the wrist lately.”[29]
[29]T33
73 The plaintiff denied that lately the problem and the bigger pain was at the base of the thumb as opposed to the wrist. She was confused. Her hand has been sore for a couple of weeks now. It is probably not sore every day.[30]
[30]T34
74 The plaintiff gets symptoms in her right thumb, not her left – her symptoms are in her wrist or hand.[31]
[31]T35
75 The plaintiff confirmed, in her second affidavit, there was mention of pain at the base of the thumb. She then said that her right thumb was not a problem a year ago. She did not know how to “divide her hand up into pieces.”[32]
[32]T55
76 In re-examination, the plaintiff said she did not know there was any difference between the pain she described in her September 2017 affidavit and the situation six months ago. She was “getting pushed with this thumb business” and she could not remember complaining about her thumbs at all. It has never, ever been the thumb, it has always been her wrist, from the base of her thumb part way up to her elbow.[33]
[33]T56
Consequences
77 The plaintiff gets increased pain and has difficulty with very simple activities, such as stirring food and opening plastic containers. She often drops things out of her right hand because of the weakness.
78 The plaintiff still has problems with housework, even though there has been some success from the surgery and her elbow symptoms are no longer in existence.[34]
[34]T36
79 The plaintiff’s physiotherapist has told her to do things and she paces herself with housework. She cannot completely vacuum the house. She does not really have any issues with her left upper limb, but because she is right handed - “it just does not work to use it”.[35]
[35]T37
80 The plaintiff agreed that she has pain and difficulty doing some things, but still does them as no-one else is going to do them. Despite successful surgery and no longer elbow pain, she disagreed her capacity to do household tasks improved as she has still got pain in her wrist, hand.[36]
[36]T37
81 The plaintiff agreed she used both hands to do the weeding. She was then told by counsel for the defendant that she had been filmed doing this activity.[37]
[37]T50
82 Before her injury, the plaintiff used to do a lot of sewing and knitting and made a lot of her own clothes, including cardigans and jumpers. She believed she was quite good at handicrafts. She would sit and sew for long periods and it was not uncommon for her to spend a whole day doing so at times. She now finds sewing and knitting painful, and her right hand does not have the strength to do these activities for more than very short periods of time. This situation is very frustrating for her.
83 The plaintiff did not know why her interest in handicrafts was not mentioned in her first affidavit. She still does these activities but for less time than before her injury.[38]
[38]T40-41
84 The plaintiff continues to see Dr Thompson. She takes occasional Voltaren for her wrist, but needs to avoid taking it too often because she is worried it will hurt her stomach, having had a lap-band procedure.[39]
[39]9 January 2017 – laparoscopic reversal of banded gastroplasty and repair of hiatus hernia
85 The plaintiff takes at most four Voltaren in a week. She could go a month without taking any.[40] She does not take medication very often because it is bad for her health.[41]
[40]T45
[41]T49
86 The plaintiff last had physiotherapy a long time ago, after the surgery, when the physiotherapist told her she could not do anymore for her. The plaintiff still had pain, but there was basically nothing more that could be done.[42]
[42]T46
87 The plaintiff had an MRI scan of her right wrist on 13 September 2017.
88 The plaintiff saw a surgeon, Mr Crock, earlier this year. He gave her an injection of steroid and anaesthetic into her right wrist. This did not help. Thereafter, she had an unpleasant catching sensation in her wrist and increased pain for about ten days. The catching then stopped and the pain returned to its pre-injection level.
89 Mr Crock gave the plaintiff the injection below her thumb in the back of her right hand near the wrist.[43] It hurt for ten days and then the pain was relieved a bit, but it was like there were two sinews catching. The catching stopped[44] and basically everything went back to how it was before, after a little bit of relief from the injection.[45]
[43]T34
[44]T48
[45]T49
90 The plaintiff did not really get any longstanding relief from the injection. Mr Crock said it would be fixed with this injection but it was never fixed. Accordingly, she was not likely to go back and see him and there was nothing else planned.[46]
[46]T35
91 The plaintiff has not returned to any work and she is now aged sixty-two. She slowly continues to do the course and has completed about six modules of thirteen to fourteen. She funds the course herself and is unsure whether she can afford to continue. When she has to use the computer for homework she can only type very slowly, and for shorter periods, because of wrist pain.
92 The plaintiff has “sort of stopped the course.” She did not think she had done eight modules. The purpose of the course was to try and get some work. She would like to give something back to the community; she had been through a lot in her life and felt she could give something to other people. The course is only very entry level and it did not really give a lot of job potential. She imagined it would be like giving people information about things. She had previously done some volunteer work for Lifeline.[47]
[47]T42
93 The plaintiff has not done a module for a while. She has to pay as she goes. The last three modules cost $800. She agreed she did the course with the intention she might find work, but she was not sure she was capable of work.[48]
[48]T43
94 The plaintiff had started a self-funded real estate course with a view to doing a property manager type job. She was probably not going to finish it. [49]
[49]T44
95 In the immediate future, the plaintiff cannot say what she intends to do regarding work when the case finishes as she has throat surgery coming up.[50]
[50]T44
96 In terms of the jobs suggested by the defendant, the plaintiff did not think she could work as a retail sales assistant because she had never done that job before. They wanted experience and people who could use computers quickly and answer the phone. She did not know whether she could use a new till. She agreed she had told IPAR that she would like to do something in arts and crafts.[51]
[51]T50
97 The plaintiff has a basic computer knowledge, being able to email, use Facebook and the internet. Her daughter helped her with more difficult tasks on the computer. IPAR had never offered the plaintiff a computer course, although it was discussed at some stage. However, at that time, the plaintiff was having throat problems.[52]
[52]T51
98 The plaintiff has had no experience as a receptionist and she would be very slow on the computer. The jobs that she had not said she could not do were because she had done a lot of quality control work at Lindemans. When told that her general practitioner had said she had a suitable capacity for alternative employment full time, the plaintiff said Dr Page did not know much about her wrist, that is why she sent her to “lots of other people.”[53]
[53]T52
99 When asked whether she could do the suggested jobs because of her thumb, the plaintiff did not really answer. She just said that her wrist was sore and that repetitive work made it hurt more. She was unaware whether her thumbs would play up or not.[54]
[54]T53
100 The plaintiff got satisfaction out of her job with the employer and was paid quite well, which was important for the family finances. She misses working and feeling useful. As a result of not working, things are very tight financially for her and her partner, and that is frustrating for her.
Other conditions
101 The plaintiff agreed that in the past she has had problems with her lumbar spine. She could not remember having too much done about it. She has not had any serious problems with her back lately.[55]
[55]T25
102 The plaintiff agreed she had had problems with her knees for some time beginning in 2013, particularly the right knee.[56] She had had two arthroscopies on her right knee, but did not have that surgery suggested on her left because she had not had a good result with the right. The left knee is not as bad, and the right is now average.[57]
[56]T25
[57]T27
103 Because of her knees, the plaintiff would not contemplate a job where she had to stand for long, because of her right knee in particular.[58] She also has a problem sitting with her knees. She did not know how she would go on a return to work with her knee problems.[59]
[58]T27
[59]T28
Financial Year Ending Earnings 30 June 2011 $58,215.00 30 June 2012 $60,680.00 30 June 2013 $64,658.00 30 June 2014 $64,601.00 30 June 2015 $24,081.00 30 June 2016 $87,093.00 30 June 2017 $38,953.00
The Plaintiff’s medical evidence
General practitioners
Dr Kumaraswamy
104 Dr Kumaraswamy reported in September 2014 before the surgery. He thought there was injury to the plaintiff’s right wrist and elbow with tenosynovitis. Regarding employment, he would not recommend pre-injury duties until Mr Kossmann had completed his investigations. Dr Kumaraswamy thought the plaintiff would need treatment to maintain daily activities.
Dr Paige Thompson
105 Dr Thompson reported in March 2017, having recently taken over the care of the plaintiff and seen her twice at that stage.
106 Noting the history of the syndrome and subsequent surgery, Dr Thompson reported that recently the plaintiff continues to complain of symptoms consistent with bilateral De Quervain’s tenosynovitis and intermittent bilateral elbow tenosynovitis. She had no reason to believe these injuries were not consistent with the stated cause.
107 Dr Thompson thought the plaintiff has a capacity for work, but would need to avoid repetitive activities of the wrist and elbow exceeding three kilograms, and also heavy lifting and carrying.
108 Dr Thompson noted these types of injuries often take a long time to recover, and the plaintiff will likely need to be careful with the type of activities she performs to avoid a flare-up.
109 Dr Thompson thought treatment has been appropriate thus far. In her view, the plaintiff should continue with recommended exercises and supportive braces, activity pacing, and psychological support.
110 In July 2017, Dr Thompson advised restriction of ADLs include the need for activity pacing at home so the plaintiff avoids repetitive activities of the right wrist and hand, avoidance of heavy lifting and carrying. She thought the plaintiff had a capacity for suitable alternative employment, considering the right elbow and wrist tenosynovitis. The plaintiff would need to find suitable employment to work within her current restrictions and the type of roles she could perform.
111 Dr Thompson reported again in July 2018. She noted the plaintiff then reported bilateral tenderness at the base of both wrists and thumbs. The pain is worsened by activity, repetitive work and carrying weights. The plaintiff was also experiencing intermittent bilateral elbow tenderness. Further, she continues to report right wrist pains, indicating the painful area being the radial side and into the thumb. Examination was consistent with tenderness over those areas.
112 The plaintiff also reported intermittent pain up into the elbow, which she managed with a self-management program and activity pacing.
113 The plaintiff said the injury occurred at work and was aggravated by the repetitive nature of her work. Currently, her symptoms are aggravated by repetitive movements of the hands and lifting while completing her activities of daily living.
114 Dr Thompson noted the plaintiff found her symptoms were worsening by repetitive movements, thus they discussed activity pacing while doing these activities. The plaintiff avoids lifting more than 3 kilograms. Given these activities continue to aggravate her symptoms, Dr Thompson thought it is likely the plaintiff needs to continue these restrictions as part of her management. Dr Thompson did not see that situation changing soon.
115 Dr Thompson considered the plaintiff had a capacity for suitable work which would need to avoid repetitive movements and involve lifting up to 3 kilograms to start with. Given the plaintiff had not worked for some time, a graded approach to return to work would seem the most appropriate, starting a few hours each day and increasing from there as symptoms allow. Using this approach within a suitable role, Dr Thompson thought the plaintiff could build up to full-time equivalent.
116 Given the duration of her symptoms, Dr Thompson considered it likely the plaintiff’s condition will remain unchanged. She thought a self-management program and activity pacing seemed the most appropriate treatment and was helpful to the plaintiff.
117 The plaintiff had had an MRI scan in 2017, after which Dr Thompson recommended she consult with a hand surgeon. The plaintiff had chosen not to do this. Dr Thompson could not comment if there was anything surgically to be done as that was outside of her expertise.
118 Dr Thompson noted the plaintiff’s right knee injury appeared to have been prior to her involvement, not something she could recall having discussed with the plaintiff.
Tiffany Brooks, psychologist
119 Tiffany Brooks advised the plaintiff’s general practitioner in April 2017 that the plaintiff then presented with symptoms of major depressive disorder.
Mr Thomas Kossmann, orthopaedic surgeon
120 In a report to the Conciliation Service in September 2014, Mr Kossmann advised the diagnosis was pain at the insertion of the extensor tendon in the right tennis elbow, Carpal Tunnel Syndrome (“the syndrome”) on the right side verified by nerve conduction studies and pain over the sulcus ulnaris bilaterally.
121 In Mr Kossmann’s opinion, there was a direct relationship between the plaintiff’s syndrome on the right side and her employment as a picker/packer. Her medical condition and incapacity had been caused by the syndrome on the right and the pain issues she had in the right forearm, as well as over both sulcus ulnaris.
122 Mr Kossmann then thought the plaintiff had no work capacity as she had not been treated accordingly, in particular, for the syndrome. He thought she was then 100 per cent incapacitated. He advised she should undergo decompression of the syndrome on the right as quickly as possible, otherwise she might have permanent nerve damage.
123 Mr Kossmann reported to the Conciliation Service in March 2015.
124 Mr Kossmann then detailed the plaintiff’s wrist complaints, having first been seen her in April 2014 leading to surgery performed by him in November 2014.
125 Mr Kossmann noted the plaintiff was very happy with the result of the surgery and post-operatively she did not have any pain issues.
126 Mr Kossmann disagreed with Mr Stapleton’s view that the syndrome is consistent with the plaintiff’s age and that the majority of sufferers are women of menopausal age. He noted it was interesting that Mr Stapleton was prepared to accept the tennis elbow probably was related to work but the syndrome was not.
127 Mr Kossmann advised the Conciliation Service that he was of the opinion the plaintiff’s employment was the causing factor for the development of the syndrome and his view that CGU was liable for the surgery and also the treatment of the right tennis elbow.
128 Mr Kossmann reviewed the plaintiff in August 2016. In a letter to her general practitioner, he noted that the surgery was successful and the strength in the plaintiff’s right wrist had improved.
129 Mr Kossmann advised that the plaintiff then had some pain over the extensor tendon of the right thumb. On clinical examination, pain issues were not too severe and Mr Kossmann recommended a wait-and-see approach.
130 Furthermore, Mr Kossmann noted he had performed a right knee arthroscopy on 7 June 2016 and the plaintiff reports about strengthening of her right knee. He thought she suffered from severe osteoarthritis of the knee, also with tears of the medial lateral meniscus.
131 Despite performing the salvage operation, Mr Kossmann considered the plaintiff will require a total knee replacement at some time in her life, but he noted her condition seemed to have improved and her right knee condition did not then require any further treatment.
132 The plaintiff told Mr Kossmann she had a fall two weeks earlier (August 2016) on her left knee with significant pain issues and difficulty mobilising. She had an MRI scan in February 2016, which showed a tear in the medial meniscus, as well as some degenerative changes. He thought her symptoms did not warrant a knee arthroscopy at that stage, and he would take a wait-and-see approach.
Medico-legal examiners
133 The Medical Panel, comprising Dr Andrew Newman-Morris, Dr Peter Gates, and Dr Drnda, saw the plaintiff on 19 July 2015.
134 The plaintiff told the Panel that she still suffered from pain in the lateral forearm and wrist but otherwise her symptoms had largely resolved.
135 The Panel concluded the plaintiff had mild right lateral tenosynovitis at the wrist, mild right lateral epicondylitis, and mild electrophysiological right carpal tunnel syndrome, but without clinical signs of that condition following surgery.
136 In the Panel’s opinion, the plaintiff’s employment was in fact a significant contributing factor to the syndrome and aggravation thereof, and the release was an appropriate medical service for that injury or condition.
137 The Panel disagreed with Mr Stapleton’s view that the syndrome is never related to work, because in its experience, it can be related to work in certain circumstances.
Mr Bruce Love, orthopaedic surgeon
138 Mr Love examined the plaintiff in May 2017.
139 On examination, there was no altered sensation in the plaintiff’s right hand. There was some non-specific tenderness of the tendons of abductor pollicis longus and extensor pollicis brevis and some non-specific tenderness in the forearm, both of those being in the right arm.
140 Mr Love noted that now that the plaintiff had not worked for more than a year, she had minimal symptoms. When she was resting her arm, she was pain free. She reported some pain when performing cooking tasks, and stated that when she is at home with her partner she will sometimes ask him to assist with certain household tasks because of forearm discomfort. In summary, the plaintiff presently has minimal symptoms in the right wrist, the major being discomfort over the radial aspect.
141 Mr Love believed the plaintiff’s symptoms could be related to overuse, in terms of the nature of her work, and she had recovered from the syndrome surgery. The more generalised symptoms in the forearm can reasonably be considered an overuse disorder related to work. Although there was some tenderness on examination, the plaintiff did not have features of obvious De Quervain’s disease.
142 Mr Love thought the plaintiff now has a resolved syndrome and has probable resolution of an overuse disorder of the right forearm. There may have been evidence of De Quervain’s in the past but not at the present time, and the same would apply to what may have been considered lateral epicondylitis. He thought it more appropriate to consider the plaintiff has a generalised overuse disorder of the right arm as a consequence of the nature of her work.
143 Mr Love considered the plaintiff’s right hand, right wrist and right elbow injuries can reasonably considered to be as a result of her employment with the employer. Presently, she has minor restrictions, particularly now she has been away from her former employment for more than a year.
144 Mr Love was not of the opinion the plaintiff has a realistic capacity for returning to her former occupation. She had advised she had started the course which may give her alternative employment prospects. Such work would not involve the repetitive use of the right arm. Mr Love’s prognosis was such that the plaintiff’s condition is largely resolved and he does not anticipate future deterioration.
145 Mr Love re-examined the plaintiff in June 2018.
146 The plaintiff then complained of persistent pain on the radial aspect of the right wrist and that driving a car will often result in the clicking of the wrist. She described the pain as being immediately lateral to the right wrist. There was no other relevant history or current symptoms. She had had elbow pain in the past, but that was no longer of concern to her.
147 On examination, there was tenderness in the region of the first carpometacarpal joint of the right hand. There was an absence of tenderness over the distal radius in the region of the abductor tendons of the thumb. There was no restriction of motion. Finkelstein’s test was negative.
148 Mr Love examined the September 2007 MRI scan and noted there were no specific diagnostic features from his observation.
149 Mr Love concluded the site of discomfort that the plaintiff described was the site at which one could consider a diagnosis of De Quervain’s disease.
150 While the ultrasound might have supported that diagnosis, clinical examination did not. While there were symptoms at the region, there were no supporting physical signs to support the diagnosis. He noted the syndrome had been successfully treated.
151 Mr Love therefore concluded the plaintiff is best considered to have a chronic wrist strain where precise pathology cannot be confidently identified, but it is reasonable to accept the nature of the work she was doing as a process operator contributed to the symptoms, but the contribution to those symptoms, now three years have passed, is minimal.
152 In view of the imprecise nature of the pathology, Mr Love thought it not surprising the cortisone injection did not bring benefit.
153 The plaintiff advised Mr Love her right knee had recovered and was no longer a concern to her.
154 Mr Love thought the plaintiff’s right upper limb had an imprecise pathology, but the pain had been consistent since onset following surgery in 2014. He thought the precise cause of these symptoms must be considered the process operation work, but as the plaintiff has not worked since 2015, the contribution of that work must be considered to be diminishing.
155 Mr Love thought the plaintiff does not have the capacity to work as a process operator and any work that involves repetitive use of the right upper limb, even at the lowest level of intensity, is not within her capacity. She said even driving a motor vehicle aggravated these symptoms.
156 In Mr Love’s view, the plaintiff’s right knee was not providing any restriction.
157 Mr Love considered ongoing treatment, in the absence of a specific pathological diagnosis will be by way of symptomatic treatment only, but being the provision of analgesics, such as Voltaren or other anti-inflammatories.
158 Mr Love thought the plaintiff’s prognosis was guarded in view of the persistence of symptoms now over an extended period of time of more than three years.
159 Mr Love concluded the plaintiff is unlikely to work again. She is close to the usual retirement age and in his view, she would not have capacity to work a significant number of hours in a consistent, reliable and permanent manner.
160 The plaintiff was examined by Mr Damon Thomas, plastic and reconstructive surgeon, in mid-2008.
161 The plaintiff told Mr Thomas that after the surgery the numbness or paraesthesia improved; however, she had ongoing problems with pain and dropped things.
162 The plaintiff also complained of elbow pain consistent with lateral epicondylitis, but she felt she no longer had pain from this.
163 Mr Thomas noted that he did not have any details of this, but he was under the impression that the plaintiff had been investigated for concomitant first carpometacarpal joint arthritis, and had a targeted steroid injection with no real benefit.
164 Mr Thomas diagnosed a right carpal tunnel syndrome with subsequent surgery. There was a residual impairment with regards to chronic pain, reduced strength, and reduced dexterity in her hand. Although not documented, Mr Thomas suspected the plaintiff had an element of first carpometacarpal joint degenerative arthritis, as she said some of her pain was localised to the base of her thumb, and she had seen a doctor who had trialled a steroid injection in the area.
165 Mr Thomas noted occupational carpal tunnel syndrome is a controversial work-related diagnosis. In his opinion the plaintiff’s employment had at least exacerbated her condition. Whether it caused it was controversial. He was suspicious of the element of degenerative arthritis. Although this would not have been directly independently caused by her occupation, utilising repetitive tasks and lifting, it would have exacerbated any underlying arthritic process that may be present or have developed with time.
166 Mr Thomas thought the plaintiff was only able to undertake light tasks with her right hand, which would be non-physical non-manual roles, and clerical in nature. She could undertake normal hours as long as tasks could be found which would not physically load or aggravate her right hand, and he thought there was a permanent restriction in her capacity to use the right hand.
167 Mr Thomas thought the plaintiff was restricted to light tasks with the right hand and arm, such as clerical, non-physical, and non-repetitive work, and she could undertake normal hours without restriction. The difficulty here was the plaintiff’s age of sixty-two. She has no skills apart from physical repetitive work, and therefore realistically her work capacity for further employment is limited.
168 With regard to the syndrome, Mr Thomas thought the plaintiff would have a degree of permanent impairment with regard to long-term pain and weakness and reduced dexterity in the hand. He considered further surgery or treatment was not required and would not achieve anything.
169 Mr Thomas was unclear whether the plaintiff had an element of the arthritis. If she did, it was presumably mild, and, apart from the already-done steroid injection, he would not normally advocate anything else interventional. If this was present with time, she may require a surgical procedure to the joint. However, this would need to be specifically reviewed, and how her symptoms have changed or progressed with time.
Dr Robyn Horsley, occupational physician
170 Dr Horsley examined the plaintiff in August 2018.
171 In terms of past medical history, Dr Horsley noted Mr Kossmann’s 2016 report detailing a right knee arthroscopy in June and problems with a left knee meniscal tear, in February 2016.
172 Dr Horsley took a detailed history of the plaintiff’s work duties with the employer, her subsequent right elbow, and forearm, wrist and hand problems, referral to Mr Kossmann and surgery in 2014. Thereafter, the plaintiff’s wrist was managed conservatively with investigations of her wrist and right elbow. She was made redundant on 12 February 2016.
173 Over more recent times in discussion with the plaintiff, Mr Kossmann referred her to another orthopaedic surgeon, Mr Crock, who assessed her in February 2018 and arranged for a steroid and local anaesthetic injection into the De Quervain’s tendons of the right wrist with little benefit.
174 The plaintiff told Dr Horsley she had had a good response to the surgery. She continued to experience intermittent discomfort into her right elbow and wrist. She was primarily pain free in the right elbow but activities like cake mixing and cooking could exacerbate her right elbow. She had noticed a reduction in overall strength. She relied on her partner to cut up vegetables and she dropped things at times.
175 When the plaintiff experienced right elbow discomfort, it could be 5-6/10, and if doing a repetitive activity for an extended time, the discomfort could last from days to a week. She could not remember the last time she had discomfort in her elbow at night, but believed it was in 2017.
176 The plaintiff described intermittent right wrist discomfort that could be 10/10, which was short and acute, with pain lasting a few seconds a couple of times a month, depending on the angle in which she used her wrist.
177 Dr Horsley found a good range of right wrist movement although there was there was tenderness on palpation. There was no swelling. The plaintiff had 30 kilograms of force on the right and 28 kilograms on the left.
178 Following examination, Dr Horsley thought the plaintiff continued to present with ongoing clinical signs suggestive of De Quervain’s Syndrome at the right wrist. She also saw radiological evidence of pathology in that area, citing the 13 September 2007 MRI scan. She noted the injection with little benefit in February 2018. There was no clinical evidence of lateral epicondylitis.
179 Dr Horsley thought the plaintiff obtained a good response to the surgery and had no major residual sequelae. Her right lateral epicondylitis had been symptom free since 2017 and clinically there were no signs on examination.
180 Dr Horsley believed the events described in 2013 and 2014 and the clinical presentation were consistent. She thought work had been a significant contributing factor.
181 Dr Horsley concluded that the plaintiff does have a persistent disability related to her right wrist which required the following work restrictions.
· avoidance of repetitive over reaching
· avoidance of repetitive pushing and pulling
· avoidance of repetitive activities involving the right wrist
· avoidance of prolonged static grip
· avoidance of working in awkward and confined spaces with the right wrist.
182 Dr Horsley also noted the plaintiff’s functional tolerances were affected by her right knee and shortness of breath, with a walking tolerance of about forty minutes because of shortness of breath and static standing tolerance of ten minutes.
183 Under “history”, not “current symptoms”, Dr Horsley reported that the plaintiff currently does not have swelling giving way or locking sensation in either knee. There is more disability on the right than the left. The plaintiff experiences chronic discomfort at a level of 1 to 2 out of 10 that is exacerbated with activity and can go as high as 10/10. Walking is not prevented by her right knee. She can stand still for ten minutes, squat and kneel with difficulty and has greater difficulty with stairs and hills going up than descending. On the left, she experiences intermittent discomfort 1 to 2 out of 10 for short periods, depending on her level of activity.
184 Dr Horsley thought the plaintiff’s primary disability related to the right wrist, noting that the bilateral knee condition was not compensable.
185 Dr Horsley thought the plaintiff would have difficulty returning to her former role as a process worker in view of her ongoing right wrist disability. She agreed with the treaters’ assessment that the plaintiff should not be lifting greater than 3 kilograms on the right and should avoid repetitive activities involving her wrists.
186 Dr Horsley noted the plaintiff had now been out of work for two years and was aged sixty-two. She did not believe the plaintiff had the physical capacity to return to process work in a vineyard, or to cleaning or room-attendant work, because of a persistent right wrist disability.
187 Dr Horsley thought the plaintiff, in theory, has the capacity for work within those restrictions, but her considerable literacy issues prevent her from moving into a more sedentary administrative-type role. Commendably, the plaintiff was working through the course with the hope of working in the advocacy arena in the court system on completion. With no experience and aged sixty-two, the plaintiff was aware that the course was entry level and that she may not be able to gain work. Dr Horsley thought this however, may lead to some voluntary work which would be in the plaintiff’s best interests.
Investigations
188 A nerve conduction study and EMG were carried out in July 2014. It was reported there was electrophysiological evidence of mild medial neuropathy at the right wrist, consistent with the syndrome. There was no evidence of median neuropathy on the left and there was no evidence of ulnar neuropathy on either side.
189 There was an ultrasound of the right elbow in February 2014. It was reported there was prominent thickening of the common extensor origin in the lateral epicondyle, which was heterogeneously hypoechoic with a speck of calcification. The appearance was in keeping with tenosynovitis of the common extensor origin (tennis elbow). No associated tear was identified and the common flexor origin was normal.
190 There was an ultrasound of the right wrist in February 2014. It was reported there was thickening of the extensor pollicis brevis tendon sheaths, with a small amount of fluid noted. Fluid was also noted in the sheath of the abductor pollicis longus. Similarly, there was thickening of the extensor pollicis longus sheath, with a small amount of fluid also noted. Other tendons were unremarkable. There was a small amount of joint effusion. Narrowing of the right median nerve from 2.8 millimetres to 1.6 millimetres was consistent with the syndrome.
191 There was an MRI scan of the right wrist in September 2017. No evidence of tenosynovitis or De Quervain’s tenosynovitis was identified.
Dr Amanda Sillcock, occupational physician
192 Dr Sillcock first examined the plaintiff in July 2015.
193 The plaintiff then said she had had some improvement but now had different symptoms. She did not have any pins and needles in her hands but tended to drop things, especially things that were reasonably heavy. Her wrist felt as if it would crack in the middle and she had had pain over the medial side of the right wrist over the last few weeks. Her medial epicondyle was also a bit sore, having been aching for the last couple of days, and then it recovered, depending on what she was doing. It was worse with repetitive work. She was now sleeping well, whereas it was keeping her awake before.
194 The plaintiff was doing her pre-injury duties but said she will be losing her job later this year or early next year as the bottling plant is moving to South Australia.
195 The plaintiff reported no difficulty with things like driving. She tended to drop things. She did not have any particular difficulty opening jars and did not have any trouble with self-care. She could manage housework but had tried to modify things so that they were lighter and easier. She could manage cooking now, whereas she had trouble chopping vegetables at times but stirring things for a long period could cause pain. She did not have any trouble hanging out the washing. When shopping, she used her left hand more than her right.
196 The plaintiff did not normally do sport or exercise and did not have any particular hobbies or interests.
197 On examination, the plaintiff’s right wrist was not tender and had a normal range of movement. Phalen’s and Tinel’s tests for the syndrome were negative. There was slight pain over the De Quervain’s tendons on restricted thumb movement.
198 Dr Sillcock noted the plaintiff was then doing her pre-injury duties but Dr Sillcock had some concerns about the repetitive nature of them. It did however appear the plaintiff was likely to be made redundant and would need to find alternate work, preferably something that is less repetitive in nature. She did have a capacity for work and she was working full time.
199 Dr Sillcock re-examined the plaintiff in June 2017.
200 On re-examination, the plaintiff reported continuing pain in the right hand, mainly along the radial side of the wrist and base of thumb but there is also a little pain on the ulnar side. Her left arm had been a little sore recently and her right elbow occasionally hurt if she did too much. She was not dropping things as much as she did before but she had difficulty with things like childproof lids. She was sleeping better now, particularly since her WorkCover payments stopped in March and she no longer had to deal with the insurer. Counselling had helped her manage her chronic pain.
201 The plaintiff reported there had not been much change in her daily activities. She could manage her housework but had trouble opening jars, especially ones with childproof lids.
202 Since last seen, the plaintiff had had a little physiotherapy that had helped her grip a bit. She wore a wrist brace when it was sore and used it when working.
203 On examination, the plaintiff’s right wrist was not tender and she had a normal range of movement. Tests for the syndrome were negative, and the De Quervain’s tenosynovitis test was mildly positive. Both elbows were slightly tender over the medial epicondyles but there was a full range of movement and no pain on resisted movement.
204 Dr Sillcock noted the plaintiff had quite mild symptoms in her right wrist and elbow and had made a good recovery from the surgery. She considered there to be an organic basis for the plaintiff’s injuries.
205 Dr Sillcock recommended the plaintiff permanently avoided repetitive work with her right hand. She thought the plaintiff could work full time provided she had suitable work that did not require repetitive use of the right hand. She did not think the plaintiff required any further treatment or surgery. She considered her condition stable and unlikely to change significantly in the foreseeable future.
Plaintiff’s vocational evidence
206 Ms Katrine Green, psychologist, carried out a vocational assessment in July 2018.
207 The plaintiff told Ms Green of the onset of symptoms during repetitive work, leading to the surgery in November 2014. Further, during her return to work on light duties, the plaintiff attended full-time hours which she was working at the time she ceased work in February 2016.
208 The plaintiff advised she was part-way through the course, which she had selected as she would like to help people.
209 The plaintiff stated, pre-injury, her main recreational interests were aqua aerobics and ten-pin bowling, both of which she no longer did.
210 The plaintiff advised she has problems with her knees, but did not submit a claim. She had asthma, and in 2018, developed a throat problem which required two operations.
211 The plaintiff reported she experiences wrist pain on most days, sometimes more than other days and varying in intensity. Her wrist clicks, and can be very painful, including throbbing and aching. Her pain could last for days. Her right thumb was painful occasionally. Her right elbow improved and was painful every two or three months, at which time the pain can continue for one or two days. She thought her symptoms had stabilised. Her right upper limb ached more at night. She was fearful of arthritis.
212 The plaintiff said she also had pain in the right knee that was sore most of the time, and had been so for a few years. She had intermittent pain in the right and left foot arch. Her medication included Voltaren and Nexium.
213 The plaintiff reported a standing tolerance of thirty minutes, with her knee being the issue. She bended carefully due to her knee. Her squatting posture was not normal. Her right hand grip was not bad, but not as good.
214 Ms Green noted the plaintiff experiences non-compensatory symptoms in her right knee and both feet.
215 There is reduced physical tolerance relating to the right upper limb with lifting, which is restricted to light household items and the like; weakened right hand grip and limitations using a computer or keyboard. The plaintiff has to self-pace household activities.
216 Ms Green noted that it appeared, due to her right upper limb injury, chronic pain and the impact on her employment, social and domestic lifestyle, the plaintiff has developed emotional and psychological symptoms representative of low mood.
217 Ms Green reported there was a sense that the plaintiff would like to work as she is certainly motivated and she is completing vocational education she hopes will lead to vocational redirection. However, the plaintiff presented as being despondent about her employment prospects given her injury and its impact, and she was worried about the employment opportunities in the local area. Further, she did not have ideas as to how she would utilise her current studies upon completion. Given her age, work history and transferable skills, that was a valid concern, however to her credit she was trying to increase her chances of re-employment.
218 Ms Green then went on to analyse the plaintiff’s suitability for the suggested occupations of process worker, container filler and packager, hand packer, forklift driver, courier delivery driver, housekeeper, room attendant, kitchen hand, store person, order picker, assembler, retail sales assistant, call centre information clerk and school crossing supervisor.
219 Having regard to the medical opinions, the analysis of the occupations and the physical demands of the core duties, Ms Green concluded that due to the plaintiff’s dominant right upper limb injury and current physical capacity, she is unable to perform the inherent duties of her previous occupation or the inherent duties of any suitable employment within the foreseeable future.
Paul Hartley, vocational assessor
220 Paul Hartley provided a rehabilitation report in July 2017.
221 In that report, Mr Hartley concluded that the roles of retail sales assistant, product quality control, receptionist, OH&S officer and welfare/social worker not be considered suitable employment for the plaintiff. He thought she had no capacity to fill the inherent requirements of any of those job designations.
222 Therefore, having considered and discussed the plaintiff’s work-related right upper limb injuries and level of incapacity, medical opinion, or education skills and experience, her age, her residential location and the occupational rehabilitation services provided, with an inability to return to her pre-injury forms of employment and the absence of successful completion of comprehensive retraining to address the educational deficits of her lifetime and then appropriate vocational retraining, Mr Hartley was not able to put forward any employment options within the plaintiff’s restricted residual functional capacity for which he would believe she would be able to fulfil the inherent requirements.
223 Given the plaintiff’s age, persistent injury symptoms and educational deficits, Mr Hartley believed, on the balance of probabilities, the plaintiff’s work disenfranchisement was likely to persist into the foreseeable future.
224 Flexi Personnel provided an earnings report in July 2018 in relation to the suggested jobs.
The Defendant’s lay evidence
Gregory Loeckenhoff
225 Mr Loeckenhoff swore an affidavit on 22 September 2017. He is employed as an OH&S coordinator at SuniTAFE in Mildura, having had that job since February 2016.
226 Mr Loeckenhoff was the employer’s health and safety environment coordinator responsible for coordinating and monitoring the plaintiff’s return to work.
227 The plaintiff was provided with modified duties when she returned to work in about March 2015 under a signed Return to Work Plan. Initially, she worked five hours a day for two weeks, then increased to full time, eight hours a day, from around April 2015.
228 From that time, the plaintiff continued working full time with restrictions as outlined in the various return to work plans, until she was made redundant in February 2016.
229 The modified duties were provided to ensure the plaintiff did not aggravate her right upper limb injury involving the wrist, elbow and arm. The duties adhered to the medical certificates provided. The duties she was performing were primarily dry end operator duties, which were not heavy, difficult or repetitive. They involved mainly monitoring the lines to ensure they were functioning properly. She also did some light cleaning.
230 The plaintiff’s duties were properly described in her return to work plans and the Job Analysis Report – Return to Work Plans 16 March to 18 September 2015 signed by the plaintiff, and the Job Analysis Report dated 30 July 2015.[60]
[60]Exhibits to his affidavit
231 The plaintiff made no complaint of pain or discomfort in the right wrist, elbow or hand during the course of her return to work from approximately March 2015 to February 2016. At the time the plaintiff was made redundant in early February 2016, she did not mention she was experiencing any pain or discomfort in the right wrist or elbow.
Defendant’s medico-legal evidence
Mr Murray Stapleton, plastic and hand surgeon
232 Mr Stapleton examined the plaintiff initially on 10 November 2014 and re-examined her on 17 August 2017. He provided a supplementary report the following month.
233 In terms of a history of the condition, it was reported that on 5 February 2014, the plaintiff was packing bottles and repetitive activities were becoming, increasingly, a problem for her, when she developed pain in the outer aspect of the right elbow. Other duties aggravated her pain and she developed, at the time, pins and needles, mainly in the right middle, ring and little fingers.
234 The plaintiff described pain in the outer aspect of her right elbow with activity. Pins and needles had disappeared since the surgery.
235 On examination, the plaintiff was tender over the right lateral epicondyle. Phalen’s test on the left was positive for the syndrome.
236 The plaintiff was referred by her general practitioner to Mr Kossmann. Mr Stapleton was surprised, because of the length of time the plaintiff had had tennis elbow, that she had not been sent for an ultrasound-guided cortisone injection, which he recommended be provided for the plaintiff then.
237 Mr Stapleton thought the plaintiff’s incapacity resulted from her tennis elbow but not her carpal tunnel problem, and she needed the injection. With regard to right elbow epicondylitis, it was the plaintiff’s dominant hand, and, given the unusual manoeuvres required of that hand, he considered employment should be regarded as a significant contributing factor. He thought that the plaintiff’s employment had not contributed by way of cause, nor by way of aggravation, to her carpal tunnel condition, and she would have had it whether she worked for the employer or not.
238 Mr Stapleton then considered the plaintiff was not capable of returning to work until the result of the cortisone injection was to hand. Her incapacity still resulted from her tennis elbow but not her carpal tunnel. Whilst surgery for carpal tunnel was appropriate, in his view CGU should not accept liability for it.
239 On re‑examination in 2017, Mr Stapleton noted the injury history, surgery performed in November 2014, and in March 2015, a gradual return to work program doing lighter duties. The plaintiff never returned to normal duties, and she and others in the factory were made redundant in February 2016.
240 Mr Stapleton noted, as a result of the surgery, the ache and pins and needles and numbness had ceased. He thought the plaintiff now had discomfort on the outer aspect of the right wrist, suggesting an underlying right De Quervain’s tenosynovitis. Her left wrist was sore now and again.
241 On questioning, the plaintiff said her right elbow was sore over the last few days, but Mr Stapleton could find no evidence of tennis elbow on examination. Finklestein’s test for De Quervain’s tenosynovitis was slightly positive, and the test for carpal tunnel on either side was negative.
242 The plaintiff had no tenderness or swelling over the basal joint of the right thumb, but Mr Stapleton believed an MRI of the right hand should now be done to absolutely clear the origin and site of her discomfort.
243 With no evidence of tennis elbow on the right, Mr Stapleton noted the plaintiff was slightly tender on the medial epicondyle of the left, suggesting a degree of golfer’s elbow. He thought she was not suffering from lateral epicondylitis. He could find no evidence that the plaintiff had been injured at the workplace, and he thought her employment was not a significant contributing factor.
244 Before suggesting whether the plaintiff was capable of pre-injury duties and hours, Mr Stapleton suggested an MRI of her right wrist was now mandatory.
245 Mr Stapleton noted the plaintiff was now studying, and clearly wanted to get back to work as a community service worker. If there were suitable duties, he could not see why she could not do them full time. He thought an MRI scan was well worth considering before he assessed the employment options identified in the March 2016 IPAR report.
246 Mr Stapleton thought the plaintiff’s prognosis depended on whether she had De Quervain’s tenosynovitis, which would be amenable to an injection or surgery. Given that she had not worked for 18 months, there would have been ample time for any aggravation of that condition to have settled. He did not consider the plaintiff had lost any body function related to her occupation. He suggested a referral to Dr Kostos would be valuable.
247 In a supplementary report of September 2017, Mr Stapleton advised that there was no evidence on the recent MRI to suggest the plaintiff had De Quervain’s tenosynovitis. He thought the tear in the torn ulnar attachment of the triangular fibrocartilaginous ligament was probably a degenerate problem.
Dr John Lange, occupational physician
248 Dr Lange examined the plaintiff in December 2016.
249 Dr Lange noted the plaintiff in February 2014 was doing repetitive work and was also required to lift various boxes of bottles, which could weigh up to 18 kilograms.
250 Following the surgery, the plaintiff’s symptoms settled, and she returned to alternate duties in March 2015 with the restriction of initially no lifting over one kilogram, and ending up with no lifting over three kilograms and no repetitive work.
251 The plaintiff stated she developed discomfort over the back of her thumb and lateral aspect of the wrist around May 2015. She had physiotherapy. She saw Mr Kossmann, who did not recommend any further surgery. She had not been investigated, and had no injection into that area.
252 The plaintiff was then only seeing a general practitioner and took no medication in relation to wrist pain.
253 The plaintiff described over the last 12 months her symptoms had improved since she ceased work. Her current problem was discomfort over the dorsum of the thumb and lateral aspect of the right wrist. (He noted that in a report there was a history of some right elbow problem, and the plaintiff stated that this had settled.) The plaintiff had no symptoms from her carpal tunnel, and that had settled completely.
254 Noting the plaintiff’s ongoing complaints, on physical examination, Dr Lange found no abnormality, with no soft-tissue swelling, no crepitus, and no evidence of De Quervain’s tenosynovitis. The plaintiff had not been investigated or offered any injection, which Dr Lange thought was unusual if she had had significant ongoing symptoms of De Quervain’s. In his opinion, the plaintiff had no ongoing problems related to a work-related right carpal tunnel. He did not think she had ongoing De Quervain’s, and could not fully explain her ongoing symptoms of pain over the lateral aspect of her wrist and proximal forearm.
255 In Dr Lange’s view, the plaintiff did not have a diagnosable medical condition. He thought there was no clinical evidence of De Quervain’s, but noted there had not been investigations. The plaintiff had recovered from her previous surgery, and did not even mention elbow problems until he asked her about it. In his view, the plaintiff had no ongoing work-related condition.
256 Dr Lange thought the plaintiff now had a capacity to return to full-time normal duties, including pre-injury duties. The syndrome had settled. She had previously suffered from right elbow pain that had settled. He was unable to identify a work-related cause for her right wrist problem, and there were no signs on examination.
257 Dr Lange noted one of the main factors affecting the plaintiff’s return to work was that she was retrenched, and she did not have a position to return to. She was then sixty which made it difficult to get work.
Dr Tony Kostos, rheumatologist
258 Dr Kostos examined the plaintiff in April 2018.
259 The plaintiff gave him a history of the pins and needles and subsequent surgery, with resolution of the paraesthesia and numbness, but ongoing pain in her wrists and hands, more so on the right.
260 The plaintiff had physiotherapy and she was provided with a splint. She had some further investigations, but she claimed the cause of her problems could not be established.
261 Nothing more was done until early 2018, when the plaintiff saw Mr Crock, orthopaedic surgeon, but he could not clarify the cause of her problems. He gave her a corticosteroid injection somewhere in the region of the radial aspect of the right wrist, without any benefit, and the plaintiff was to see him again in three months.
262 Dr Kostos noted that currently the plaintiff’s main problem is pain in her wrist and hand, but she only had minor pain on the left side. She did not have paraesthesia or numbness in either hand. Pain was mainly over the radial aspect of the right wrist, and generally aggravated by activity associated with a weakness of grip.
263 Specifically, the plaintiff did not have any problems with her neck, right shoulder, or right elbow. She was then taking Voltaren, 25 milligrams a day, and occasionally used a splint.
264 Dr Kostos noted the plaintiff had had lap-band surgery about 20 years ago, and had the band replaced last year. Associated with that was some gastro-oesophageal reflux, requiring medication. The plaintiff also had problems with both knees, and Mr Kossmann undertook two arthroscopies on her right knee, one in 2015 and one about six months later, without any benefit. She still had ongoing problems in both knees; right greater than left. There was probably a family history of arthritis.
265 On examination, the plaintiff’s right elbow showed a full range of pain-free movement. She did not have any lateral or medial epicondyle tenderness. Her left wrist had a full range of pain-free movement. Right wrist extension was slightly reduced with discomfort, but her other movements were full and pain-free. Finklestein’s test for De Quervain’s tenosynovitis was negative bilaterally, as was Phalen’s test and Tinel’s test for carpal tunnel. There was some osteoarthritic change at the bases of both thumbs. Neurologically, her grip strengths were 20 on the right, and 18 on the left. Reflexes and sensation to pinprick were normal.
266 Basically, the plaintiff had primary generalised osteoarthritis affecting the hands and thumbs, and there was clinical involvement of the right wrist in particular. Dr Kostos could not demonstrate reduction of grip strength or any ongoing sensory findings in relation to her carpal tunnel.
267 Dr Kostos thought the cause of the plaintiff’s pain in her right wrist and hand was osteoarthritis, as was quite evident from examination. She does not have lateral epicondyle tenderness, and therefore cannot have lateral epicondylitis. If it was there before, it had resolved.
268 Noting the arthritis, Dr Kostos thought the plaintiff’s work could have resulted in a symptomatic exacerbation at the time, but she has not worked for many years, so there is no ongoing work-related exacerbation. He thought “we were seeing the natural history of the condition” and would expect some activities at home also result in exacerbation of her symptoms. In his view, the plaintiff’s employment does not materially contribute to any injury.
269 Having reviewed the jobs suggested in July 2015, Dr Kostos noted the plaintiff had not worked for approximately three years, and as a result there was little likelihood she would be able to return to work on a regular basis. If a return was contemplated, then clearly that would have to involve restricted use of the hands, which would be difficult, given the plaintiff’s age and the previous nature of her employment.
270 For the reasons cited, Dr Kostos thought the jobs suggested by IPAR in March 2016 were unrealistic. The plaintiff’s prognosis was for ongoing problems related to osteoarthritis, and he thought she should be referred to a rheumatologist for further assessment.
271 Dr Kostos considered the plaintiff did not have any loss of body function or impairment resulting from a compensable work-related injury, and thought that her problems related to constitutional osteoarthritis.
Overview
272 The plaintiff’s initial claim for injury to her right elbow, tennis elbow and tenosynovitis of the right wrist was accepted. Later, the insurer refused to fund carpal tunnel surgery based on Mr Stapleton’s view that this condition was not work related. However, the Medical Panel, in mid-2015, came to a different view.
273 I do not accept Mr Stapleton’s view that the syndrome can never be related to work. As the Panel concluded, the syndrome can be related to work in certain circumstances. Operating surgeon, Mr Kossmann and a number of other practitioners shared this view.[61] Further, as Mr Kossmann remarked, it was interesting that Mr Stapleton was prepared to accept the plaintiff’s tennis elbow probably related to her work activities but the syndrome did not.
[61]Dr Thompson and Dr Sillcock. The only practitioner who agreed with Mr Stapleton’s view was Dr Kostos.
274 As counsel for the plaintiff indicated in opening, this application did not include any impairment to the right elbow as it was conceded that condition had resolved.[62]
[62]T12
275 The issue for determination therefore is whether the plaintiff continues to suffer from a right wrist condition related to her work with the employer and if so, whether the consequences thereof are serious and permanent as at the date of hearing.
Credit
276 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[63]
“… 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.
… .”
[63](2010) 31 VR 1 at paragraphs [12] and [11]
277 There was no real attack on the plaintiff’s credit and this issue was not really addressed by either counsel.
278 While prepared to acknowledge the surgery was successful, the plaintiff still maintained she had ongoing difficulties with her wrist despite the consensus of medical evidence that her condition has resolved. I have some difficulty in those circumstances accepting she has the level of ongoing disability and restriction she describes.
279 In particular, the plaintiff’s evidence that she drops things because of a weakness in her hand is not explained by the relatively normal grip strength found by both Dr Kostos and Dr Horsley on examination earlier this year.
Pain
280 The evidentiary basis of the pain assessment will ordinarily comprise (inter alia) what the plaintiff says about the pain (both in court and to doctors).[64]
[64]Haden Engineering Pty Ltd v McKinnon (ibid) at paragraph [11]
281 The plaintiff’s initial complaints of pain for which she attended her general practitioner Dr Kumaraswamy in 2014 were right elbow, forearm and wrist pain and numbness in her fingers. The plaintiff agreed she seemed to make a good recovery from the right wrist surgery but had ongoing problems with her hand, wrist and arm thereafter.
282 In her first affidavit sworn in June 2016, the plaintiff described symptoms in her right hand wrist and arm, restricted movement of the wrist and weakness of hand with an aching discomfort in fingers wrist and forearm. Wrist and hand pain continued as at September 2017 when swore her second affidavit in which she described pain mainly in the right side of the right hand and at the base of the thumb.
283 In her most recent affidavit sworn in September 2018, the plaintiff deposed that pain and weakness in right wrist continued, with the pain going into her right thumb. These problems were not getting better over time despite the plaintiff not working.
284 The plaintiff’s affidavit evidence about her pain is relatively straightforward and consistent. The pain has continued despite her having stopped work and it is aggravated by repetitive activity. She presently has predominantly wrist pain and weakness with the pain going into her right thumb.
285 During cross examination, the plaintiff became somewhat confused with counsel’s questions and at one stage seemed to agree that of recent times her main problem had been with her thumb, which was not mentioned in her affidavit; not her wrist, the compensable injury. That was my initial impression of her evidence as I indicated during the hearing.[65] Counsel for the defendant submitted the plaintiff’s complaint was now different, and her evidence as to her injury was inconsistent, now focussing on her thumb, with that pain having only come on about six months ago.[66]
[65]T85
[66]T64
286 However, having read the transcript and examined her evidence closely, I accept as the plaintiff ultimately confirmed this was not what she meant and the problem from the outset has been in relation to her right wrist. Her evidence is that she has had the same pain for ages, she cannot divide her hand into pieces and the problem has never been her thumb. Her wrist has remained sore from the time she went back to work and continued to this day.[67]
[67]T81
287 Counsel for the plaintiff submitted the whole thrust of the plaintiff’s evidence was she had had the same problem in the area described by her from the outset. There was some improvement post-surgery. The plaintiff did repetitive work before and after surgery[68] and that work continued to cause her problems, and “she would predict with a fair degree of confidence if she went back to work she would have the problems again.”[69]
[68]T87; regarding work duties as described in the return to work documents
[69]T83
288 Counsel for the plaintiff relied on a report of a workplace visit in July 2015 when the plaintiff advised that she no longer had the aching in her wrist and sensation of the fingers, but she, however, reported pain in the lateral aspect of the right wrist two weeks before that visit, but then it had settled somewhat.[70]
[70]T88; Job Analysis Report exhibited to Mr Loeckenhoff’s affidavit
289 The plaintiff complaints to medical examiners since 2015 have been in relatively similar terms.
290 In July 2015, when the plaintiff was still working, she told the Medical Panel she had pain in the lateral forearm and wrist but otherwise her symptoms had largely resolved.
291 The Panel concluded the plaintiff was suffering from mild right lateral tenosynovitis, right later epicondylitis and right carpal tunnel syndrome but without current clinical signs post-surgery.
292 When Mr Kossmann saw the plaintiff in 2016, post surgery, she complained of some pain over extensor tendon of right thumb. He thought her pain issues were not too severe, surgery had been successful and her strength improved.
293 In December 2016, the plaintiff reported to Dr Lange discomfort over the base of the thumb and lateral aspect of the wrist. He did not think she had De Quervain’s and could not fully explain her pain complaints. He thought she did not have a diagnosable medical condition. Whilst he thought her complaints sounded like De Quervain’s, there was no clinical evidence of that condition.
294 When the plaintiff most recently saw Dr Sillcock in July 2017, she still had pain in right hand mainly on the radial side of wrist and base of thumb, her elbows were slightly tender but had full range of movement. De Quervain’s was mildly positive and her right wrist had a normal range of movement.
295 On that examination, Dr Sillcock described the plaintiff as having quite mild symptoms in the right wrist and elbow.
296 When the plaintiff last saw Mr Stapleton in August 2017, she complained of discomfort in the outer aspect of the right wrist suggesting De Quervain’s.
297 In April 2018, the plaintiff told Dr Kostos April 2018 her main problem was her right wrist and hand. He then diagnosed osteoarthritis of the wrists and hands.
298 In July 2018, Dr Thompson noted the plaintiff still reported the same right wrist pain but also, intermittent pain up to the elbow and bilateral tenderness base of both wrists and thumbs.
299 In June 2018 when the plaintiff saw Mr Love, her only complaint was persistent pain radial aspect of the wrist, with the site of discomfort where De Quervain’s would be considered.
300 However, Mr Love thought Dr Quervain’s was not supported clinically. The syndrome had been treated successfully. He considered the plaintiff had a chronic wrist strain, the precise pathology of which cannot be identified and to which the work contribution is now minimal.
301 The plaintiff simply told Mr Thomas in mid 2018 of ongoing pain and problems dropping things. He thought her elbow problem had resolved and he was suspicious of some element of degenerative arthritis in first carpometacarpal joint which he thought was mild. He considered there was a residual impairment with regards to chronic pain, reduced strength, and reduced dexterity in her hand.
302 The plaintiff told Dr Horsley in August 2018 she had intermittent discomfort into right elbow and wrist which could be acute in short spurts. She was primarily pain free in elbow.
303 Dr Horsley thought the plaintiff had a persisting disability related to her right wrist and that there was no major residual sequelae to surgery. Dr Horsley found very little difference in grip strength, with 28 kilograms of force on the left side and 30 kilograms on the right.[71]
[71]T65
304 In summary, medical examiners have found it difficult to attach a precise diagnosis to the plaintiff’s wrist condition, with Mr Love simply describing it as a chronic wrist strain.
305 Whilst counsel for the defendant submitted the plaintiff had failed to identify an injury, as required in Richards & Anor v Wylie,[72] I accept that there is no requirement for the plaintiff to identify a specific diagnosis.[73]
[72](2001) 1 VR 79
[73]T74-75; See Georgopoulos v Silaforts Painting Pty Ltd [2012] VSCA 179 and per Osborn JA in Wesfarmers Ltd v Lloyd [2016] VSCA 41 at paragraph [22]; T77
306 Whilst the syndrome has resolved post surgery, as counsel for the plaintiff conceded,[74] and there are no ongoing elbow complaints, I accept the plaintiff continues to have some minor ongoing problems in her right wrist and hand but given her absence from the workplace for such a long time, I consider any work connection is minimal, as Mr Love opined.
[74]T80
307 Given the length of time the plaintiff has not been working, in my view, any significant wrist problems are more likely related to arthritis as Dr Kostos and, to a lesser extent, Dr Thomas, opined.
Treatment
308 Having undergone successful carpal tunnel release surgery, the plaintiff has had limited treatment thereafter.
309 Whilst she says she went back to Mr Kossmann in mid 2015 with further problems on her return to work, when he last reported in August 2016, Mr Kossmann simply stated the surgery was successful and the plaintiff’s strength in her right wrist had improved.
310 The plaintiff now takes little painkilling medication with only the occasional Voltaren.
311 The plaintiff last had physiotherapy years ago after the surgery and did not persist with this treatment as she found it of little benefit.[75]
[75]T72
312 The plaintiff’s most recent treatment has been the referral to orthopaedic surgeon, Mr Crock, who gave her an injection into her wrist. There is no report from that practitioner why that procedure was undertaken or the result thereof.[76] Dr Thomas thought this procedure may have been in relation to degenerative arthritis of the first carpometacarpal joint.
[76]T68
313 Recent investigations for De Quervain’s did not confirm the plaintiff was suffering from that condition as some practitioners suspected.
Consequences
314 In all her affidavits, the plaintiff described problems with a range of household tasks due to her wrist pain and weakness.
315 However, whilst she is unable to do heavier jobs, and sometimes seeks assistance, the plaintiff can still do a range of tasks at home, including light gardening, as she was filmed undertaking.[77]
[77]T73
316 In her more recent affidavits, the plaintiff mentioned she previously enjoyed handicrafts but is now unable to do so to the same level as pre injury; however, an interest in handicrafts did not feature in a number of earlier histories to examiners.[78]
[78]In 2015, the plaintiff told Dr Sillcock she did not have any particular hobbies or interests. The plaintiff did not mention handicrafts to Ms Green earlier this year
Work
317 The plaintiff agreed she seemed to make a good recovery on this right wrist surgery, but had ongoing problems with her hand, wrist and arm. She deposed she was unable to return to unrestricted duties; however, her viva voce evidence seemed to indicate that at times she was doing relatively heavy work, involving rework and cleaning duties, and at other times she was sitting around watching television. Whatever duties the plaintiff was performing, they were on a full-time basis and she did not need time off work or significant medication.
318 In terms of formal restrictions, at the time the plaintiff’s employment was terminated, there was a 3-kilogram lifting limit and she was to avoid repetitive and sustained arm movements.
319 There is no evidence at the time the plaintiff was made redundant that she was not able to continue working in that role had her employment not been terminated.
320 In cross-examination, when asked whether she would have kept working if she had not been made redundant, the plaintiff did not really respond. As counsel for the defendant submitted, the reality was the plaintiff was back doing full-time duties when made redundant.[79]
[79]T74
321 Mr Loeckenhoff deposed that the plaintiff had made no complaint to the employer of any problems with her duties on her return to work leading up to the time her employment was terminated in February 2016.
322 There is no medical evidence of a deterioration in the plaintiff’s wrist/hand condition at the end of 2015 and thereafter.
323 The plaintiff told the Medical Panel in July 2015 that she had returned to normal pre-injury duties in March 2015 and that she was able to manage her employment tasks without restriction.
324 However, the plaintiff maintains that since ceasing work, she has had ongoing difficulty with heavier tasks because of her wrist, and she now cannot return to old job which she had been doing with the employer since July 2006 or any physical work because of this condition. Further, her ability to undertake other duties is limited because of her age and lack of work experience. There were, however, a number jobs the plaintiff did not say she could not do, mentioning her experience of quality control at Lindemans.[80]
[80]See paragraph [99] of my Judgment
325 The plaintiff would also have difficulty returning to the workforce in a job involving prolonged sitting and standing because of her knee problems.[81]
[81]T27-T28
Medical opinion regarding work capacity
326 Whilst the plaintiff considers herself to be totally incapacitated as a result of her wrist injury, a view shared by the vocational assessors,[82] there is very little medical support for this view.
[82]Ms Green and Mr Hartley
327 Mr Love is the only practitioner who considered the plaintiff is unlikely to work again, simply commenting that this is the case because of her age and her inability to work a significant number of hours in a consistent and reliable manner. He does not explain this conclusion in light of his finding that the plaintiff now has minor restrictions and any work contribution to her present condition is minimal.
328 As counsel for the defendant submitted, Mr Love cannot find anything organically amiss at the present time and just says the plaintiff should not go back to work. This statement is illogical and Mr Love failed to demonstrate any path of reasoning.[83] Mr Love’s view was just speculation, not supported by anything that was in his report. It was submitted, it was straightforward – there was a resolution of the compensable condition.[84]
[83]T62
[84]T67
329 Treating general practitioner, Dr Thompson, as recently as July 2018, thought the plaintiff could build up to full-time duties on a gradual basis with a 3-kilogram lifting limit. She did not comment on how the plaintiff’s knee would affect her work capacity.
330 Occupational physician, Dr Sillcock, reported in July 2017 that the plaintiff should avoid repetitive work with the right hand but was fit for full-time suitable work.
331 In August 2018, Dr Horsley imposed a number of restrictions due to the plaintiff’s wrist, including a 3-kilogram lifting limit. She also thought the plaintiff’s work capacity was affected by her problems with shortness of breath and her knee condition.
332 In mid-2018, Dr Thomas thought the plaintiff was fit for light, non-physical full-time work; however, her realistic work capacity was limited, given her age, work history and her inability to do repetitive work.
333 Earlier, in December 2016, Dr Lange thought the plaintiff had a capacity for full-time normal duties.
334 Mr Stapleton, in August 2017, simply could not see why the plaintiff could not do full-time community services if suitable duties were available.
335 In April 2018, Dr Kostos thought the plaintiff had no work capacity due to her arthritis.
336 Taking into account all the evidence, I am not satisfied that the plaintiff is totally incapacitated as she now claims or that, as at the date of hearing, there are employment consequences that could be described as “serious” as a result of her work injury.
337 Clearly, the plaintiff had the capacity to work full-time hours, albeit with some modification of her duties at times, until her employment was terminated in February 2016, along with many other workers in her section.
338 In the absence of any medical or other evidence of a deterioration in the plaintiff’s wrist condition in early 2016 or thereafter, I do not accept that had her employment not been terminated, she would have been unable to continue working for the employer until she was sixty-five. Significantly, the medical evidence is totally contrary to any suggestion of deterioration in her wrist condition, with the preponderance of medical opinion that the plaintiff’s work-related condition has in fact resolved.
339 Taking into account all the evidence, I am not satisfied the pain and suffering consequences claimed by the plaintiff satisfy the statutory test of seriousness. Accordingly, that application is dismissed.
Loss of earning capacity
340 The plaintiff’s loss of earning capacity application was put on the basis of total incapacity and counsel did not address the Court specifically on the 40 per cent loss which the plaintiff must establish to obtain leave.
341 For the reasons I have stated above, I am not satisfied the plaintiff has suffered the requisite 40 per cent loss on the basis of any present work-related wrist condition.
342 Further, in addition to any claimed problem with her wrist, the plaintiff also has significant knee problems which affect her capacity for employment, as she herself conceded.[85] The plaintiff reported problems in this regard to Ms Green and Dr Horsley earlier this year. There are also other conditions such as the throat surgery and other comorbidities[86] that have affected her capacity to return to work.[87]
[85]T73
[86]Shortness of breath noted by Dr Horsley in August 2018
[87]T74
343 In these circumstances, taking into account all the evidence, I am not satisfied the plaintiff has suffered a 40 per cent loss of earning capacity as a result of any work-related wrist injury.
344 Accordingly, the application in relation to loss of earning capacity is also dismissed.
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