Lawn v Visy Packaging Pty Ltd
[2014] VCC 324
•26 March 2014
| IN THE COUNTY COURT OF VICTORIA AT WODONGA CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-04642
| DAVID ARNOLD LAWN | Plaintiff |
| v | |
| VISY PACKAGING PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Wodonga | |
DATE OF HEARING: | 11 and 12 March 2014 | |
DATE OF JUDGMENT: | 26 March 2014 | |
CASE MAY BE CITED AS: | Lawn v Visy Packaging Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 324 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – bilateral carpal tunnel – pain and suffering
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Ansett Australia Ltd v Taylor [2006] VSCA 171; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Giuliano v Red Robin Pty Ltd & Anor [2008] VCC 1805; Wright v Mount Edisar [2006] VCC 410
Judgment: Leave granted to the plaintiff to bring proceedings for damages for pain and suffering
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti SC with Mr R Morrow | Nevin Lenne & Gross |
| For the Defendant | Ms K Galpin with Mr D Oldfield | Wisewould Mahony Lawyers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of his employment with the defendant in early 2007 and in particular on 5 March 2007 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is the upper limbs.
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 ss(38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, 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 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
11 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
12 The plaintiff relied upon two affidavits and gave viva voce evidence. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
13 The plaintiff is presently aged fifty two, having been born in March 1962.
14 The plaintiff attended high school to Year 10. Thereafter, he worked as a labourer and a trade’s assistant. He worked for eight months as a builder and then moved to North East Victoria when he was about twenty. He did odd jobs in the building trade for about eighteen months and in 1984, commenced employment with the predecessor of the defendant, Gadsden’s.
15 Prior to suffering injury to his wrists, the plaintiff was very fit and active. For many years he had been a passionate golfer and he was a member at Thurgoona and Howlong, where he played competition golf from the age of thirty two. At the time of injury, he was playing social golf at least monthly.
16 Another pastime the plaintiff previously enjoyed was woodwork, making items of furniture, using power and other tools, working after hours. Prior to injury, he had plans to branch out into creating metal artwork and had made a mirror and commenced making gates. The plaintiff had always been good with his hands and was somewhat arty, and working at home was his main recreation.
17 Prior to his injury, the plaintiff and his wife had moved to a new home where they had established a garden with beds and lawn. That had involved many hours of work. The plaintiff had also commenced building retaining walls around the garden.
18 Inside the house, the plaintiff did a lot of the housework and cooking, as his wife had a mental illness. He was unrestricted in those duties.
19 The plaintiff regularly travelled up to ten hours or more to visit relatives interstate and it was nothing for him to drive for that long.
20 The defendant operates a business manufacturing pet food cans. Initially the plaintiff worked on the production line and packing and then graduated to line operator, where he spent a number of years as a forklift operator.
21 In 2005, the plaintiff became an office worker and at the end of 2006, when his job was terminated, he was offered work as a forklift driver on the afternoon shift. Until that time, he had had no injuries, pain or incapacity in either wrist.
22 In 2007, the rotations on the line involved two weeks of shifts performing process work. One of the tasks that resulted in injury to the plaintiff’s wrists was lifting packets containing the top and bottom of pet food cans. The sleeves contained 180 can ends and he had to lift each up and onto a conveyor. He also had to do that movement throughout an 8-hour shift from a pallet up onto the conveyor. That had to be done 720 times a shift, as about 200,000 cans were manufactured for each shift. The plaintiff was also required to lift a pack of 100 whole body cans up and into a hopper which involved the same lifting motion.
23 After eight weeks of this work, the plaintiff began to feel his right arm becoming numb. In early March 2007, he started feeling pins and needles and numbness in his right arm, which became permanent. He reported this condition but he was required to continue working.
24 The plaintiff then started to develop similar symptoms in his left wrist. He reported these symptoms and was sent to the defendant’s doctor, Dr Andrews, in Wodonga. The plaintiff had previously seen him on 6 March 2007 in relation to his right wrist.
25 The plaintiff was referred to neurologist, Dr Brooder, who performed nerve conduction studies on both wrists. Dr Andrews then referred the plaintiff to Mr McCarten, hand surgeon, whom he saw in May 2007.
26 The plaintiff continued to have ongoing symptoms and performed normal duties. The pain in both wrists had become constant and worse at night and when he was resting. He woke several times during the night and had to shake his wrists and forearms to ease the numbness.
27 Mr McCarten advised the plaintiff needed surgery by way of a carpal tunnel release. The plaintiff elected to have the left done first in June 2007 as he was right handed. He was working until then on normal duties.
28 After the surgery, the plaintiff had three weeks off. He then did light duties for a month before going back on normal duties.
29 The surgery did not provide any significant relief and the plaintiff continued to have constant tingling in the left hand and pins and needles. For a time, he did not wake at night but the symptoms gradually returned. Mr McCarten advised the plaintiff needed to give it time, but over time, the symptoms worsened.
30 The plaintiff remained on light duties and was trained to perform purchasing tasks which he did for about a month before being transferred to logistics, where he stayed for a year.
31 All those symptoms in both wrists persisted but the plaintiff was determined to do everything possible to keep his job. He cut back his life otherwise to try and maximise that situation.
32 Although Mr McCarten wanted to operate on the right wrist, as surgery on the left had been unsuccessful, the plaintiff put it off as long as possible. At Dr Pattison’s request, the plaintiff had further nerve conduction studies in July 2008 organised by Dr Brooder. The plaintiff was told that the investigation showed problems in both hands and both wrists.
33 About after twelve months working in logistics, the plaintiff was transferred back to full-time forklift duties at the end of 2009 or early 2010. The aching in his wrists gradually worsened and he had a permanent numb feeling.
34 The plaintiff was able to do some things around the house after the surgery and before December 2012. He tried to plant a few vegetables. He did not use a leaf blower as Dr Berry recorded. He was unable to finish the front retaining wall on the garden and required the help of mates to do so.[3] He denied the garden was now very established and it was not completely finished. He does the watering and a bit of planting.[4]
[3]Transcript (“T”) 21
[4]T22
35 Throughout 2012, the plaintiff continued to have difficulties, particularly towards the end of a shift doing forklift driving. At night, his symptoms worsened significantly.
36 In December 2012, the plaintiff had a month off work because of problems with his hands. He also had some neck and left shoulder pain at that time. It settled over the next few weeks. The plaintiff told Dr Kim he was having problems with his hands again and they were getting really bad and he was also getting issues with his neck and shoulder.[5]
[5]T14
37 There was no further claim at this stage and the plaintiff was asked for a certificate to restart his claim. The plaintiff agreed he told Dr Kim that Mr McCarten wanted him to proceed with further surgery but the plaintiff did not want to do so. The plaintiff agreed he discussed some options including further physiotherapy with Dr Kim.[6]
[6]T18
38 The plaintiff has not taken medication for his arm pain for some time.[7] Recently he has had trouble with diverticulitis. Before then he had not sought medication because Panadol and other similar medication did not do any good and apparently those medications had side effects so he had been warned off taking them.[8]
[7]T22
[8]T37
39 From December 2012 to February 2013, the plaintiff had some physiotherapy which had helped his pain, numbness and pins and needles.
40 In early 2013, the plaintiff was transferred to a job doing half forklift and half office duties. There was no heavy lifting and the plaintiff had a permanent lifting limit of 3 kilograms. There were no alternative duties or light duties available.
41 The injuries to the plaintiff’s wrists had affected virtually every aspect of his life from recreation through to domestic tasks.
42 For a time, the plaintiff tried to play golf, having his last round in early 2012. He entered a midweek competition. He wore a wrist band but after playing, he suffered severe wrist and forearm pain.
43 The plaintiff denied he had ceased playing golf in 2011 because of a burning sensation in his elbows. He agreed he had a problem in this regard but it was not the reason he stopped playing golf.[9]
[9]T25
44 The plaintiff ceased golf because he just could not control the ball as the club was slipping due to weakness in his hands. He enjoyed playing golf to get away from things to be with his mates and because he liked sport and competition.[10]
[10]T39
45 The sensation in both wrists is now permanent and is a combination of numbness, tingling and pins and needles which radiate from his fingers into his left and right wrists. If he attempted any significant activity with his hands, the aching and sensation travelled from his wrists up into his arms. He avoided long trips and rarely visited his family, declining a Christmas invitation to stay with his sister. In the last two years, he had not visited family in Broken Hill or Adelaide. This situation is disappointing him.
46 The plaintiff’s woodwork hobby had been severely disrupted and he now avoided making furniture. He tried to keep going but he could not because of the vibration of the tools and the pain caused to his wrists. Outside the house, a lot of the garden was uncompleted, including retaining walls. The plaintiff had to ask for help from his friends in this and other handyman tasks, being forced to rely on others.
47 The plaintiff had tried playing basketball with his daughter on the backyard hoop but after fifteen to twenty minutes, his wrist pain became intense. His inability to play with her caused them both disappointment.
48 The plaintiff’s wife now mowed the lawn. The plaintiff attempted to do so after the injury but the vibrations were too much for him. He continued to do light gardening and weeding and watering. He now avoided other activities in and around the house that he used to do unrestricted.
49 The plaintiff had lost strength in both hands and had trouble cutting up meat with a knife and usually used his left hand. His writing was poor and he had lost grip of a pen. He constantly dropped things from both hands. He had difficulty with daily tasks such as threading ribbon through lace for his wife, doing up and undoing knots or handling small items. Even larger tasks such as mopping brought on intense pain in his wrists. He was worried about the future and avoided stress on his wrists.
50 In his recent affidavit sworn in February 2014, the plaintiff set out he continues to suffer pain in his both wrists which occasionally travels up his arms. He also has tingling and shocks through each hand. These problems are all worsened by activity.
51 After fifteen minutes, when the plaintiff recently tried to dig in his garden, the pain was severe.[11] The following day it was even more intense and he wore a brace. The plaintiff generally wears a brace each night after work and sleeps in it. However, it is annoying in the heat and he has to take it off in the morning.
[11]T38
52 At the end of 2013, the plaintiff’s work was changed to full-time forklift driving.
53 During that year, the plaintiff had been forced to take some time off work for unrelated conditions, including kidney stones, appendicitis and low back pain. These had all essentially eventually resolved. He was prescribed Panadeine Forte for his back.[12]
[12]T22
54 As another forklift driver left at the end of 2013, the plaintiff was told if he was unable to do it full time he may not have another job. The defendant’s doctor approved a transfer to that work but advised the plaintiff was permanently restricted from returning to work on the line. He was not to do any work requiring repetitive lifting or anything where he had to do a lot with his hands on line.[13]
[13]T40
55 The plaintiff finds full-time forklift work is harder on his wrists than working half time in that role. He has continuing issues of pain.[14] Presently, by the end of the week, he suffers more wrist pain. Despite that situation, he tries to avoid taking analgesic medication because he has previously had a ruptured bowel and needs to avoid developing constipation.
[14]T26
56 Driving a forklift is different to driving a car. The plaintiff is not required to use both hands at once and he is able to rest one hand whilst using the other. Because of his problems driving a car, the plaintiff has not driven interstate to visit relatives for a couple of years. A drive to Queensland in early 2011 gave him particular problems. [15]
[15]T29
57 As a result of his wrist injuries, the plaintiff has been unable to return to golf or woodworking. About six months ago, he tried to use a grinder but he could not hold it properly due to wrist pain and it fell and almost cut his leg. These restrictions cause him great frustration.
58 The plaintiff continues to do light activities such as watering and planting but because of the episode of severe pain when digging, he avoids heavier gardening. He continues to have problems with basic activities such as cutting up his meat and vegetables.
59 The plaintiff remains worried about his future employment. Although coping with forklift driving, there are tasks with which he has difficulty. About once a shift he is required to lift picture frames onto a pallet. Fortunately, the truck drivers normally do that for him but if they are unavailable he gets a forklift driver to help.
60 As a result of his injury, the plaintiff no longer has the capacity to perform a whole range of recreational and different employment tasks which he once enjoyed.
61 Although surgery has been suggested to the plaintiff by a number of specialists, he has not discussed surgery with his doctor. He had only discussed the need for ongoing physiotherapy with him.
62 The first surgery actually made the plaintiff’s left wrist worse. The doctor who did that surgery also suggested that procedure would fix his wrist.[16] The plaintiff did not want to undergo surgery by a QBE doctor or a specialist of his own choice.[17] He does not trust a further procedure – it never worked the first time and he did not believe it would work again.[18]
[16]T30
[17]T33
[18]T36
63 The plaintiff denied his refusal to undergo further surgery was because his pain was not so severe.[19]
[19]T36
Compensation documents
64 The plaintiff lodged a WorkCover claim on 2 April 2007 in which he described:
“Straining right arm and wrist lifting tin plate two ends on 5 March 2007.”
65 He was then working 38 hours a week earning $24 an hour, with average weekly earnings of $922 and eight hours overtime at $388.
66 There was further Claim for Compensation signed by the plaintiff on 30 May 2007 with the same details.
67 By letter dated 25 February 2013, QBE advised the plaintiff that liability had been accepted in accordance with s98C for bilateral carpal tunnel syndrome at wrists. Liability was rejected for injuries to both hands and both arms.
Treaters
68 Dr Kim, the plaintiff’s general practitioner from Lavington Clinic, reported in May and June 2013.
69 Dr Kim noted a diagnosis of bilateral carpal tunnel syndrome which, according to the plaintiff’s history and the nature of his duties, was work related.
70 The plaintiff continued to experience severe pain and reduced power of both hands and wrists and he was not able to perform usual activities. Treatment was rest and anti-inflammatory medication, Arthrexin.
71 Dr Kim considered the plaintiff was fit for work with no heavy lifting beyond 3 kilograms with both hands, limited forklift driving and advised to do office duties. If treatment with rest, light duties and analgesics was not sufficient to relieve symptoms, Dr Kim thought surgical review should be sought following physiotherapy.
72 Dr Kim thought the prognosis varied. The plaintiff had had left carpel tunnel surgery with no success and it would be hard to predict his prognosis currently. He thought the pain appeared to be chronic in nature despite surgery in 2008 but it was likely the pain would persist for the foreseeable future.
73 Dr Brenda Pattison from Lavington Clinic reported in June 2012 that the plaintiff had been attending there for over twenty years and that he had seen Dr Andrews for the bulk of the treatment but saw her twice in March and May 2007.
74 The plaintiff underwent a left endoscopic carpal tunnel release on 7 June 2007 at Albury Wodonga Private Hospital.
75 The plaintiff was first seen by Mr McCarten, hand surgeon, in May 2007 on referral from Dr Andrews.
76 As of 2012, Mr McCarten believed the current diagnosis was one of bilateral carpal tunnel syndrome and the plaintiff’s prognosis should be good if treated adequately, which he believed would be surgical decompression. He thought the plaintiff’s current condition was consistent with his work and obviously it had deteriorated recently, with a worsening over the last three years since 2009.
77 Mr McCarten had little doubt the claimed injuries related to the duties the plaintiff undertook as a forklift driver, with heavy manual labour and vibration being experienced in his hands as a result of his work. He thought the injury was stable and unlikely to change by more than 3 per cent in next twelve months, assuming there was no surgery.
78 The plaintiff was undergoing physiotherapy from Jenny Graetz in 2013. In February that year, she advised Dr Kim that the plaintiff’s hands continued to be a problem and she suggested a further nerve conduction study.
Investigations
79 Following a nerve conduction study in March 2007, it was reported the changes defined for median nerve conduction were consistent with mild to moderate distal abnormality bilaterally at the level of the wrists, with the changes slightly more marked on the right side.
80 A further nerve conduction test was organised by Dr Brooder. It was noted, compared with the previous study undertaken in March 2007, distal median nerve conduction had improved bilaterally. The changes defined for median nerve conduction were consistent with a mild distal abnormality bilaterally at the level of the wrists. Left median nerve conduction across the elbow and through the forearm was normal.
Medico-legal evidence
81 Mr Damien Ireland, hand surgeon, examined the plaintiff in October 2013.
82 Mr Ireland diagnosed bilateral median nerve dysfunction following carpal tunnel release on the left for carpal tunnel syndrome and un-operated carpal tunnel syndrome on the right. He thought the plaintiff had a permanent impairment of both hands due to bilateral median nerve dysfunction.
83 Mr Ireland noted the plaintiff was significantly curtailed in hobbies of furniture making and woodwork and he was no longer able to play golf, and that was a permanent situation.
84 Mr Ireland thought the injury was likely to preclude the plaintiff in relation to employment or activities that involved gripping, heavy and forceful movements of the hand or arm, fine and dexterous movements of the injured arm, constant repetitive work, manual labour other than with a 10-kilogram lifting restriction, gripping or holding in excess of 10 kilograms.
85 Mr Ireland thought the plaintiff was capable of continuing his work as a forklift driver in which he had been employed with the same company for the last thirty years. The plaintiff was also able to engage in office work and line work with which he was familiar.
86 Mr Ireland did not comment on the need for further surgery.
87 Dr Neil Berry, senior consultant surgeon, examined the plaintiff on behalf of QBE in June 2013.
88 Dr Berry noted the plaintiff had a history of developing bilateral carpal tunnel syndrome proven on nerve conduction studies. The symptoms had continued and had not been relieved by endoscopic approach to carpal tunnel release.
89 On examination, Dr Berry thought the plaintiff had clinical signs of carpal tunnel syndrome and he considered he should be on his current light duties and he required active surgical intervention. Given that the endoscopic approach did not work, Dr Berry thought the plaintiff should probably have bilateral open carpal tunnel release. He noted review some six months after surgery would give a better idea of his long-term prognosis.
90 Dr Berry thought the plaintiff had bilateral carpal tunnel syndrome caused by the nature and conditions of his work, which was heavy and repetitive. He considered the plaintiff’s present condition was a continuation and deterioration of the condition that arose in 2007.
91 Dr Berry thought the plaintiff could carry out modified pre-injury duties, with the only restriction being heavy lifting with a lifting limit of 3 kilograms and avoidance of vibration when handling tools. A return to pre-injury duties depended on when the plaintiff underwent surgery.
92 Dr Karna, rheumatologist, examined the plaintiff on behalf of QBE in February 2013 for the purposes of an AMA assessment.
93 Dr Karna thought the plaintiff had bilateral carpal tunnel syndrome, with the left having been operated on, albeit with residual motor and sensory symptoms, and similar symptoms on the right. In his view, the condition had stabilised.
94 Dr Karna noted clinical examination findings confirmed carpal tunnel provocation manoeuvres were positive with a slight weakness in sensory disturbance in the median nerve distribution.
The Defendant’s medical evidence
Medico-legal evidence
95 Dr Karna provided a further report to QBE in August 2013.
96 Dr Karna advised he thought the plaintiff was constitutionally prone to developing carpal tunnel syndrome symptomatology. Within that context, Dr Karna accepted, however, the nature of his work involving gripping, repetitive flexion and extension of the wrists and perhaps on the forklift, some vibration had represented an aggravating influence in terms of symptoms. That is to say, whilst at some point he may ultimately have developed carpal tunnel syndrome anyway on constitutional grounds, the time and onset of the plaintiff’s symptoms was in relation to activities he did at work and his symptoms had remained in continuity since.
97 Thus, in direct response to QBE’s question, Dr Karna advised that the employment had not been a cause but had been an aggravating factor in terms of the plaintiff’s carpal tunnel symptomatology.
98 Dr Baker, occupational physician, examined the plaintiff in August 2013.
99 Dr Baker thought the plaintiff was suffering bilateral carpal tunnel syndrome, the right being worse. He considered the present condition was a continuation of the condition from 2007. However, his professional view would be he did not consider the condition was caused through work and that it was principally of a constitutional nature and he would suggest the symptoms had become more noticeable again now because of the plaintiff’s weight gain.
100 Dr Baker noted if the plaintiff did not have decompression of the median nerve, then there was a possibility of permanent damage. He advised the plaintiff to seek advice from his doctor, as surgery could resolve his condition and then he could return to golf.
101 Dr Baker did not consider forklift driving would have any impact on the plaintiff’s condition – it would not have caused it or could not aggravate it. He did not anticipate any flare up of symptoms if the plaintiff worked as a forklift driver without restrictions.
102 Mr Murray Stapleton, plastic surgeon, examined the plaintiff in November 2013.
103 Mr Stapleton thought the plaintiff’s presenting conditions related still to an ongoing problem of a degree of median nerve compression which was, in his opinion, not work related, by cause or by aggravation.
104 Mr Stapleton noted more and more studies and literature confirmed that for so many years carpal tunnel syndrome had been erroneously regarded as an injury.
105 Mr Stapleton could detect no functional component or psychological reaction to the plaintiff’s condition. As stated, he believed him to be thoroughly genuine.
106 While diagnosing carpal tunnel syndrome, Mr Stapleton thought there was no evidence that it was an injury. Having been forwarded Mr Ireland’s view, Mr Stapleton said he did not have a problem with manual work giving rise to symptoms of carpal tunnel, but to draw a conclusion that that had caused the problem was not supported by current knowledge of carpal tunnel syndrome. The aggravation of the symptoms, in his view, was quite different from the aggravation of the pathological process.
Dr Kim’s clinical notes
107 On 24 February 2011, Dr Kim noted the –
“… right elbow burning pain, likely overuse pain, see physio and non steroidal anti inflammatories.”
108 On 16 September 2011, Dr Kim noted:
“Right elbow, typical of golfer’s elbow discussed, or less likely ulnar nerve impingement. Had left carpal tunnel surgery, not greatly better, not keen for surgery. Try some Voltaren gel and bracelet.”
109 On 4 December 2012, Dr Kim noted, in a long consultation:
“CTS bilateral. Surgery did not go well. Still recovering. Now right hand CTS not keen for surgery but Dr McCarten wants surgery. Plaintiff spoke to lawyer about legal action. Previously work doctor generated certificate and plaintiff once claimed WorkCover in 2009 but no certificate doctor could see. The plaintiff wanted relief. Options for physio, cortisone injection and surgery all done. Not keen on any of them now. He will see independent doctor end of January. Currently under legal action. Not keen for cortisone.”
110 On 11 December 2012, it was noted by Dr Kim:
“Pain still the same. Work was providing light duties but he had to use both hands so unable to perform duties according to him. There would not be any light duties, so unfit for four weeks. See physio.”
111 On 14 May 2012, Dr Kim noted:
“Bilateral CTR by Dr McCarten, right hand getting worse but not keen for further surgery.”
Overview
112 It is accepted that the plaintiff suffered a compensable injury which has been diagnosed as bilateral carpal tunnel syndrome as a result of his employment duties in 2007.
113 I am mindful of the fact that the defendant accepted liability for the payment of weekly payments and medical expenses. This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor,[20] such admission should ordinarily be regarded as very significant:
“... albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”
[20][2006] VSCA 171
114 No such explanation has been forthcoming in the present case.
115 Whilst there was some suggestion on the defendant’s behalf that any work involvement in the plaintiff’s current upper limb symptoms had ceased, I do not accept this is the case.
116 Dr Karna, Mr Ireland and Mr McCarten found the 2007 incident continued to contribute to the plaintiff’s condition. Dr Baker came to a similar conclusion, having noted the plaintiff’s claim had been accepted, but then went on to say that he did not think the condition had been caused by work. Mr Stapleton is alone in the more extreme view that carpal tunnel syndrome is not an injury and is constitutional in nature.
117 I do not accept the plaintiff recovered from the 2007 injury. Clearly, there was an aggravation of his condition in December 2012 and at that time, a small problem with his shoulder and neck which quickly resolved. Whilst the plaintiff gave this history to medico-legal examiners, it is interesting to note that he only complained of upper limb pain when seeing his treating doctor during that time.
118 I accept that prior to December 2012, although he did not complain to his doctor in this regard, the plaintiff had ongoing bilateral upper limb pain for which he continued to take over-the-counter painkilling medication.
119 There is no suggestion of any pre-existing problems with either wrist prior to work in 2007.
120 Further, there is no suggestion that the plaintiff’s wrist condition is not significantly organically based.
121 Counsel for the defendant conceded that the plaintiff is permitted to claim bilateral impairment in a case where bilateral injury is suffered due to a work process where the plaintiff engages in manual work.[21]
[21]Wright v Mount Edisar (2006] VCC 410 per Judge Anderson; Giuliano v Red Robin Pty Ltd & Anor [2008] VCC 1805 per Judge Misso
Credit
122 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[22]
“… 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.”
[22](2010) 31 VR 1 at paragraph [12]
123 I found the plaintiff to be a truthful witness who did not exaggerate the extent of his symptoms. Mr Ireland noted the plaintiff was an honest reporter. Mr Stapleton thought he was thoroughly genuine.
124 The plaintiff’s evidence about his pain and restrictions and the effect of his upper limb condition on his daily activities was not challenged.
125 There was no surveillance film or any other evidence challenging the genuineness of the plaintiff’s complaints or restrictions. Further, no treating medical examiner suggested any exaggeration or embellishment on examination.
126 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.[23]
[23]Per Maxwell P in Haden Engineering v McKinnon (supra) at paragraph [11]
127 I accept that the plaintiff continues to suffer pain in both wrists which occasionally travels up to his arms. He has tingling and shocks through each hand. All these symptoms are worsened by activity.
128 The plaintiff has also lost strength in his hands, causing him to drop things and giving him difficulty with activities as basic as cutting up his food. He therefore avoids putting stress on his hands.
129 The plaintiff underwent a left carpal tunnel release, which provided no relief and, in fact, worsened his condition. At various times, he has undergone physiotherapy treatment for both hands and investigations have been organised. The plaintiff’s general practitioner believes the plaintiff requires ongoing physiotherapy.
130 Whilst there has been a recent suggestion of surgery, the plaintiff does not wish to pursue that course, given the unsuccessful result in relation to his left wrist.
131 Counsel for the defendant submitted work was not a serious consequence, as the plaintiff continued to work full time as a forklift driver. Further, the plaintiff had only three weeks off after the incident and then a month on light duties. It was submitted a further month off in December 2012 was due to neck and shoulder complaints, as well as problems with his hands.
132 I do not accept this submission. Dr Kim thought the bilateral upper limb pain had significantly limited the plaintiff’s work capacity.[24] Whilst the plaintiff is able to work full-time as a forklift driver, that is on the basis of no manual or line work. He experiences pain whilst working and, at times, he requires help from other drivers with heavy lifting.
[24]T49
133 Significant restrictions have been placed on the plaintiff’s work duties by medical examiners. Dr Berry thought he could carry out modified pre-injury duties with a 3-kilogram lifting limit and avoidance of vibration when handling tools. Mr Ireland imposed a 10-kilogram limit.
134 The plaintiff has problems with extended driving in his car, having to hold both hands up most of the time, a situation different to forklift driving, when he can rest his hands. Therefore, he has not been able to travel long distances to visit his relatives, as was previously the case.
135 A range of other activities have been significantly affected by the plaintiff’s wrist condition.
136 As Mr Ireland noted, there was interference with activities and problems with grip. The plaintiff’s impaired sensation limited activity requiring fine and dextrous movements, and he is not able to engage in activities that involve constant repetitive use of the hands. Tasks such as mopping cause extreme pain in the plaintiff’s hands.
137 The plaintiff is no longer able to play golf, having last played in 2011. I accept he stopped playing because of weakness and an inability to hold his clubs, rather than a suggestion of an elbow problem, which was mentioned in passing by Dr Kim, during 2011. The plaintiff was obviously a golfer of some standing, having at one stage had a handicap of nine. He can no longer play basketball in the backyard with his daughter.
138 Significantly, the plaintiff has been unable to return to any woodworking activities to any extent, having on one occasion tried to use a grinder which he dropped and almost cut his leg.
139 The plaintiff, obviously a keen gardener and landscaper, was not able to finish his gardening project at home and required the assistance of friends. He is now only able to do light mowing and weeding.
140 The plaintiff has continuing problems with sleep due to pain in his arms. As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[25]
“It is, in my view, a matter of great significance for a person to be denied, seemingly for the rest of his life, the ability to enjoy uninterrupted sleep. … [The plaintiff] often experiences multiple painful awakenings in the course of a single night. As … counsel submitted, that is properly to be regarded as constituting a very considerable diminution in … [the plaintiff’s] enjoyment of life, to say nothing of the effect which sleep deprivation must have on his ability to enjoy the activities of daily life.”
[25](supra) at paragraph [45]
141 As the plaintiff’s condition has persisted now for seven years without any improvement, despite surgery in 2008, I accept that the condition is permanent.
142 I make this finding also taking into account the plaintiff’s understandable reluctance to have further surgery, given the previous bad result, despite the optimistic outcome anticipated by a number of medical practitioners.
143 I find that the consequences to the plaintiff’s bilateral arm impairment are “serious”, in terms of the statutory test.
144 Accordingly, I grant the plaintiff leave to bring proceedings for damages for pain and suffering.
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