Manilardi v Venture DMG Pty Ltd
[2014] VCC 941
•27 June 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-04514
| ROLANDO MANILARDI | Plaintiff |
| v | |
| VENTURE DMG PTY LTD | Defendant |
---
JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 May 2014 | |
DATE OF JUDGMENT: | 27 June 2014 | |
CASE MAY BE CITED AS: | Manilardi v Venture DMG Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 941 | |
REASONS FOR JUDGMENT
---
Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – plaintiff injured in course of employment over time – injury to both hands, right more than left – identification of relevant injury – causation – consequences to 73-year-old plaintiff – leave sought in respect of pain and suffering only – leave refused
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Mobilio v Balliotis [1998] 3 VR 833; Lu v Mediterranean Shoes Pty Ltd & Ors (2000) 1 VR 511; Peak Engineering v McKenzie (2000) 1 VR 511
Judgment: Application for leave to bring proceedings for pain and suffering damages dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C O’Sullivan | Zaparas Lawyers |
| For the Defendant | Mr C Miles | Wisewould Mahony |
HIS HONOUR:
Introduction
1 The plaintiff, Rolando Manilardi, is a 73-year-old long-term employee of Venture DMG Pty Ltd. He was born in Italy during the Second World War and moved with his family to Argentina at a young age, learning toolmaking and working in that trade for some twenty years before moving to Australia with his wife and two children in 1978. He has an excellent work record in Australia, spending initially two years with a toolmaking firm in Springvale and then commencing with the predecessor of the current defendant in July 1983.
2 When the current defendant took over the business where the plaintiff was employed in about July 2005, the tool room was closed and the plaintiff was moved to an area where he performed assembly work involving automotive parts. The plaintiff claims it was during the performance of this work that he first developed pain in both hands thought to be attributable to the repetitive nature of his duties.
3 The plaintiff continued to work until 2011, by which time the symptoms, particularly in his right hand and arm, had worsened and he was unable to continue his employment.
4 The plaintiff seeks leave of the court pursuant to the provisions of s134AB(16)(b) to bring proceedings for damages for pain and suffering only in respect of the injuries sustained during the course of his employment with the defendant. In order to do so he must satisfy the court that he suffers a serious injury as defined in s134AB(37) of the Act. The plaintiff relies upon paragraph (a) of the serious injury definition and identifies both hands, or alternatively the right hand and/or the left hand as the body function said to be relevantly lost or impaired.
5 The defendant takes issue with the plaintiff’s claim, challenging both the question of causation of injury and the extent of consequences suffered by the plaintiff as the principal areas of disagreement.
The evidence
6 The plaintiff relied upon two affidavits sworn in October 2012 and April 2014 in support of his application. He was required for cross-examination, but otherwise the evidence consisted of medical reports and further documentary evidence tendered by each party. There was no surveillance material put to the plaintiff, and credit was not an issue in this application.
7 It is appropriate to set out in summary form the plaintiff’s evidence relied upon in his affidavits. The first affidavit, sworn 31 October 2012, forms part of Exhibit A. From that affidavit I regarded the following matters as being relevant to the proceeding:
· The plaintiff commenced working for DMG as a toolmaker in July 1983. That business was taken over by the named defendant in about July 2005.
· Subsequent to that date the toolmaking area was contracted out and the plaintiff was moved to work in the assembly area, and performed essentially repetitive and forceful hand movements assembling parts associated with windscreen-wiper assemblies. This was full-time work, and approximately twelve parts per hour were assembled.
· After commencing this work the plaintiff developed pain in his hands, and saw Dr de Menezes, who informed him that he had carpal-tunnel syndrome and arthritis.
· In 2010 the plaintiff lodged an unrelated WorkCover claim concerning hearing loss.
· In 2011 the plaintiff developed worse pain under the base of his right thumb, spreading into the wrist and lower forearm, and numbness in the right fingers. Similar symptoms developed in the left hand and forearm within months.
· In late May 2011 the plaintiff attended “the employer’s doctor”, Dr Nash, and underwent diagnostic treatment, and received an injection from a plastic surgeon Mr Ross into the right wrist.
· In October 2011 Dr Nash gave the plaintiff a certificate for restricted duties, but apparently no duties were available, and the plaintiff ceased work.
· The plaintiff underwent cardiac bypass surgery in 2000 and had a pacemaker inserted in 2004. Whilst away from work after October 2011 this pacemaker was changed in February 2012.
· Despite a work offer in April 2012, the plaintiff has not returned to work and continues to have pain in the right wrist and under the right thumb. The plaintiff is dominantly right-handed.
· Symptoms in the left hand are less.
· The symptoms in the right hand limit the functionality of the plaintiff in relation to lifting and performing activities involving gripping. The hand causes discomfort at night, and the plaintiff wakes several times every night because of right hand and wrist discomfort. Movement causes an increase in pain.
· The plaintiff lives with his wife and performs domestic activities including lawn mowing, which takes longer than prior to sustaining injury. He is unable to use a shovel because of a weakness of grip. His adult son does the heavy work at home for him.
· The plaintiff no longer goes fishing, which he used to do about once per month prior to sustaining injury, and has lost general interest in other activities.
8 In a further affidavit sworn on 22 April 2014 just prior to the hearing, the plaintiff deposed to the following matters:
· Pain continued in both wrists and hands, the right more than the left.
· The plaintiff was not taking any medication, being concerned at the risks of side-effects.
· The plaintiff had been told of the possibility of operative treatment, but was concerned by the risks of surgery.
· The plaintiff confirmed he was still driving, but with pain. He no longer goes fishing, and gardening is limited to up to half an hour before resting.
· Dr de Menezes remains his treating general practitioner.
9 The plaintiff was cross-examined. The following matters were elicited during cross-examination:
· The plaintiff could not recall suffering injury to his right wrist or thumb in 2002 whilst working as a toolmaker, but did recall an x‑ray requested by Dr de Menezes.[1]
[1]Transcript (“T”) 22, Line (“L”) 1 to L21, and Exhibit 1
· The plaintiff had no wrist problems whilst working as a toolmaker.[2]
[2]T24, L2–9
· The plaintiff had seen Dr de Menezes regularly for treatment for his heart after 2005 but did not consult him complaining of anything to do with wrists or hands between 2005 and 2011.[3]
[3]T26, L11–18
· The plaintiff first attended Dr Nash on 31 May 2011.
· The plaintiff told Dr Nash that the pain in the wrists and paraesthesia of the hands and fingers had occurred over the last couple of months. The plaintiff agreed in fact that was the case.[4]
[4]T27, L1–9
· On referral from Dr Nash, the plaintiff’s right wrist was injected by Mr Ross in September 2011 on one occasion only.[5]
[5]T28, L11–18
· The plaintiff ceased work with the defendant in December 2011.[6]
[6]T29, L11
· The plaintiff had heart problems since 2000 and had a pacemaker put in in 2004.[7]
[7]T30, L10–12
· The plaintiff had a replacement pacemaker inserted whilst off work in February 2012.[8]
[8]T32, L2–4
· Dr Nash certified the plaintiff had a capacity to return to work on graduated hours to a job sitting in a gatehouse as a security guard in June 2012.[9]
[9]T33, L5–14
· At present, the major problem is on the right side much more than the left.[10]
[10]T35, L1–2
· In relation to sleep disturbance there were two different pains, with pain in the upper part of the arm disturbing the sleep, and the wrist and fingers becoming numb.[11]
[11]T36, L15–30
· The plaintiff was not prescribed medications, nor did he take any natural remedies to assist with sleeping.[12]
[12]T37, L26–T38, L7
· The plaintiff still manages to dress himself, do gardening, and mow the lawn, but now does it in stages.[13]
[13]T39, L11–16
· The plaintiff ceased fishing about three years ago.[14]
[14]T40, L23–27
· Apart from one injection in the wrist in September 2011, and x‑rays taken at that time, there has been no further active treatment or investigation.[15]
[15]T43, L24–31
· The plaintiff sees a cardiologist once a year or more frequently if necessary. He underwent an echocardiogram in August 2013.[16]
[16]T44, L8–20
· The plaintiff was taking seven different medications in relation to the cardiac condition.[17]
· The plaintiff also took medication for an enlarged prostate, and saw a urologist from time to time for that problem.[18]
· The plaintiff travelled overseas to America for a family get-together in May/June 2013.[19]
[17]T44, L22–28
[18]T45, L16–26
[19]T46, L19–30
10 In re‑examination I noted the following matters:
· After actually ceasing work in October 2011 the plaintiff sat in the defendant’s canteen for two months until he ceased attending work at all.[20]
[20]T48, L19–23
· The plaintiff was driving, but only when he needed to, such as going around the town, the supermarket, picking up the girls or the grandchildren at school.[21]
[21]T49, L8–14
· After having the injection in September 2011, the night waking stopped only for a couple of weeks.[22]
[22]T49, L19–20
· When doing the lawn mowing the plaintiff worked in stages, stopping every half an hour.[23]
[23]T49, L25–30
· The plaintiff would get his son to do heavy work around the home sometimes, but not all the time. Using a screwdriver twisting caused “a needle in the wrist”.[24]
[24]T50, L10–17
· The plaintiff cannot play with his grandchildren, particularly with batting or ball games.[25]
[25]T51, L1–11
· At present the pain is in the wrist and the arm, “everywhere in the bone, everywhere, you don’t know where it comes from”.[26]
· The only treatment offered was an operation which the plaintiff did not intend to have.[27]
· The plaintiff denied he was living an active life, stating that he could only do dancing.[28]
[26]T51, L12–14
[27]T51, L26–29
[28]T52, L3–6
11 The parties each tendered documentary evidence from their respective court books which was accepted as Exhibit A on behalf of the plaintiff and Exhibit 2 on behalf of the defendant. The defendant had also tendered as Exhibit 1 clinical notes from Dr De Menezes’ records dating from 7 May 2002 to 24 May 2005. These notes included an x‑ray report of the right hand and wrist dated 24 May 2002 which had earlier been addressed in cross-examination of the plaintiff.
12 The plaintiff’s medical evidence comprised three reports from Dr Nash, the general practitioner, together with a report of nerve-conduction studies undertaken by Dr Henryk Kranz, neurologist, in August 2011. A report was also tendered from Mr David Ross, plastic surgeon, to whom the plaintiff had been referred in the latter part of 2011. A Medical Panel opinion dated 11 April 2013 was tendered, and medico-legal opinions provided by Mr Charles Flanc, vascular and general surgeon, in February 2013 and March 2014. Further opinion was provided by Mr Chris Haw, hand and orthopaedic surgeon. This report was also obtained in March 2014. Additional documents relied upon by the plaintiff consisted of an x‑ray report requested by Dr Nash in July 2011, extracts of clinical records from both Dr Nash and Dr De Menezes in 2011, documents relating to the WorkCover claim made on 16 August 2011, and compensation documents relating to the plaintiff’s entitlement to statutory benefits.
13 The defendant relied upon medical opinions most recently from Mr Damian Ireland, hand surgeon, obtained in 2014, Mr Murray Stapleton, plastic and hand surgeon, obtained in 2013 and 2014, and earlier reports from Professor Vernon Marshall, plastic surgeon, in 2011, Mr Kendall Francis, general surgeon, in 2012, and Associate Professor Geoffrey Littlejohn, rheumatologist, also in 2012.
Analysis
14 In my view, there are three issues to be determined in this application. Firstly, what is the nature of the injury or condition affecting the plaintiff’s wrists and hands (especially the right wrist and hand)? Secondly, does an ongoing causal relationship exist between the consequences flowing from the relevant injuries? Finally, can those consequences be fairly described as satisfying the standard necessary to constitute a serious injury within the meaning of the Act?
15 I am able to be satisfied that the plaintiff does suffer bilateral carpal-tunnel syndrome. This diagnosis is accepted by all doctors to a greater or lesser extent. Additionally, on the basis of the opinion from Professor Littlejohn, I am satisfied that the plaintiff suffers a separate and distinct condition of degenerative osteoarthritis affecting the thumb and adjacent joint structures of both hands. This opinion is consistent with the presumptive diagnosis referred to by the treating general practitioner in his report dated 25 October 2011.[29]
[29]Exhibit A, p33
16 The treating surgeon, Mr Ross, makes a very similar diagnosis:
“Mr Manilardi appears to have bilateral hand symptoms as a result of his median nerve compression in both hands with his right worse than the left, and also osteoarthritic changes within the wrists and hands of his left hand being more severely affected than his right.”
17 Accepting, as I do, a dual diagnosis of carpal-tunnel syndrome and osteoarthritis affecting both hands, to what extent can I be satisfied that the conditions are relatively work-related? I am mindful of the analysis of the concepts of both injury and the consequences relevant for the determination of a serious injury application that was undertaken by the Court of Appeal in Grech v Orica Australia Pty Ltd[30] per Ashley JA at [55]–[57]. In particular I note the passage:
“[I]t cannot be doubted that compensable injury may be sustained which does not have present consequences yielding an entitlement to compensation. Indeed, an injury may never have such consequences. Again, it is quite possible — it will be a matter for determination according to the evidence in the particular case — that each of two or more compensable injuries is a legally sufficient cause of the same consequences.”[31]
[30](2006) 14 VR 602
[31]Ibid at [57]
18 In the present case I note the Medical Panel opinion referring to an “accepted bilateral carpal-tunnel syndrome injury”.[32] Additionally the treating surgeon, Mr Ross, provides an opinion supporting a relationship between the plaintiff’s employment and the carpal-tunnel syndrome:
“Both of these conditions I would expect are age-related but no doubt the nerve compression symptoms would be exacerbated by repetitive or heavy hand use as is likely to occur in his current employment, full-time working on an assembly line.”
[32]Exhibit A, p37
19 Mr Flanc provides some further support, although he agrees that the relationship between carpal-tunnel syndrome and repetitive and heavy use of the hands is “a little controversial because many patients develop this condition outside the work situation”.[33] Mr Haw also gives support for an aggravation by the nature of the work, although he accepts that the carpal-tunnel syndrome will have a constitutional basis.[34] Professor Littlejohn again provides some support in relation to the carpal-tunnel syndrome, stating:
“The carpal-tunnel syndrome is consistent with the type of activities that he was performing in the workplace, and I think it reasonable to suggest that his work activity has been involved in the course of this disorder.”[35]
[33]Exhibit A, p49
[34]Exhibit A, p52
[35]Exhibit 2, p21
20 However, Dr Littlejohn expresses a contrary opinion in relation to the osteoarthritis, stating:
“The osteoarthritis is likely to slowly progress over time as this is an idiopathic constitutional disorder. ... As stated above, I do not think the osteoarthritis relates to work activity.”[36]
[36]Exhibit 2, p21
21 The recent opinions provided to the defendant by Messrs, Stapleton and Ireland are strongly opposed to any causal relationship between the carpal-tunnel syndrome and the plaintiff’s work activity with the defendant. Mr Stapleton states:
“Carpal-tunnel syndrome is a genetically predetermined problem and it is not caused or related to injury, nor is it caused, nor is the pathology aggravated, by repetitive duties.”[37]
[37]Exhibit 2, p30
22 Mr Ireland does not support an ongoing work relationship between either the carpal-tunnel syndrome or the bilateral osteoarthritis.[38]
[38]Exhibit 2, pp37 and 38
23 Finally in relation to causation I refer to the comment made by Dr Nash, the treating general practitioner, in his most recent report dated 29 April 2014. He stated:
“In summary Rolando attended me for management of symptoms of osteoarthritis of hands and bilateral carpal-tunnel syndrome. In my opinion these conditions are constitutional in nature, and, although the symptoms were temporarily increased by his duties, those duties had no bearing on the development or progression of the underlying conditions.”[39]
[39]Exhibit A, p34.2
24 In some applications of this type, the accuracy of the lay evidence can assist the court in coming to a positive conclusion in terms of the weight to be attached to the medical opinion.[40] In the present case I note from Exhibit 1 evidence confirming that the plaintiff underwent an x‑ray examination of the right hand and wrist on 24 May 2002 enabling the radiologist to comment “Mild osteoarthritic changes are also seen at the first metacarpal joint.” The clinical notes from Dr de Menezes contain the following note taken on 17 May 2002: “painful right MPJ and right thumb”, and refer also to the x‑ray request performed a week later. I have previously referred to the plaintiff being cross-examined about these entries and his rejection of the proposition that it strongly suggested that he was having difficulties with his right hand and thumb in 2002.
[40] Mobilio v Balliotis [1998] 3 VR 833 at 836 per Brooking JA.
25 I am not satisfied that there was any conscious attempt to mislead me as to the circumstances or the time at which symptoms commenced, but I am not persuaded that Mr Manilardi’s evidence given both in affidavit and before me during the hearing strikes me as being particularly accurate as to dates, especially compared to the notes tendered from his treating doctor, which strongly suggest the occurrence of right-hand symptoms three years before the plaintiff changed the nature of his work from toolmaking to assembly.
26 A further problem confronts the plaintiff in distinguishing between the osteoarthritic condition and the carpal-tunnel syndrome in terms of the production of symptoms which give rise to the adverse consequences suffered by him. The decision in Lu v Mediterranean Shoes Pty Ltd & Ors[41] is strong authority for the proposition that aggregation of injuries arising out of different incidents is impermissible. On one view it is hypothetically arguable that the development of the arthritic changes in the wrist may have made the occurrence of carpal-tunnel syndrome more likely. There is, however, no compelling evidence to persuade me that this has in fact been the case with the plaintiff. Indeed, such medical opinion is set out by Mr Ireland in his report to the defendant’s solicitors of 2 April 2014, agreeing that there is a strong association between basal thumb joint osteoarthritis and carpal-tunnel syndrome. He nevertheless in the same report expresses the opinion that the development or indeed the aggravation of the osteoarthritis is unrelated to the plaintiff’s employment.[42]
[41](2000) 1 VR 511
[42]Exhibit 2, p37
27 In the final analysis of this application I find it unnecessary to determine a causal relationship between the claimed injuries and the production of consequences. The reason for this is that an analysis of the consequences, even without causal attribution, fails to satisfy me that the plaintiff has indeed suffered a serious injury. In short, my reasons are as follows:
· The only activity lost to the plaintiff as a result of the consequences affecting both hands is that of fishing. Prior to sustaining injury his evidence is that he went fishing on about a three-weekly basis. He takes no medication for his condition, but admits to taking something in the order of seven different types of medication for a cardiac condition.
· He receives no treatment for the bilateral hand condition, but regularly consults a doctor in relation to his cardiac condition.
· He has had one injection into his hand by Mr Ross in 2011, but otherwise no active treatment.
· He has not had physiotherapy.
· The plaintiff has the concurrent cardiac condition which required him to undergo surgery for the replacement of a pacemaker in February 2012. There is scant evidence given by the plaintiff in his affidavit and no medical evidence to enable me to form a view as to how this condition impacts on the plaintiff’s day to day life.
· The plaintiff is of an advanced age, being 73 years of age when the application was heard before me. He managed to work in full-time employment until October 2011 when aged 71.
· He manages to continue to drive and perform household activities save for heavier activities where his son provides assistance. He is still able to mow the lawn and attend to gardening, albeit requiring rest breaks.
Conclusion
28 The legislation permitting a grant of leave requires a court making an assessment to perform a comparison of the severity of consequences suffered by a particular plaintiff with a range of possible or other impairments or losses in order to conclude whether or not the consequences suffered by the plaintiff can fairly be judged as at least very considerable and more than significant or marked. This necessitates findings relating to facts and questions of degree and value judgment. The plaintiff carries the burden of proof.
29 Having considered the evidence and arguments as put before me in this case, I am left in a somewhat unsatisfactory position. I have referred to the difficulty of separating the extent to which the plaintiff’s bilateral hand symptoms or indeed right hand symptoms result from the accepted carpal tunnel syndrome or the unrelated arthritic condition. I am also concerned by the lack of evidence in relation to the concurrent cardiac condition suffered by the plaintiff. In the recent decision given by the Court of Appeal in Peak Engineering v McKenzie[43] I note the comment:
“[W]here two different injuries are concurrently producing pain and suffering consequences for the applicant, it will ordinarily be necessary to make findings about all of the pain and suffering consequences which are operative at the date of the trial. This would seem to be an essential pre-condition to the task of deciding which of the pain and suffering consequences are attributable to which injury.”[44]
[43][2014] VSCA 67
[44]Ibid at [24] per Maxwell P
30 In Mr Manilardi’s case it is not so much the question of pain being produced but rather the effect which the cardiac condition has on his activities of daily living. The evidence simply leaves me in a vacuum as to what role the cardiac condition plays in the plaintiff’s day to day life.
31 In any event, even if the cardiac condition were to play no part, I am not satisfied that the level of pain or discomfort suffered by the plaintiff and the loss of his ability to go fishing with the frequency as previously described is sufficient to satisfy me that a person of the plaintiff’s age and stage of life has suffered consequences from a compensable injury that can fairly be described as at least very considerable and more than significant or marked. This is a conclusion based on the totality of the consequences notwithstanding the comments I have made about the difficulty of ascribing a cause to the symptoms affecting the plaintiff’s hands and wrists.
32 The plaintiff has not made out his application. The originating motion will be dismissed. I will hear the parties in relation to formal orders and costs.
- - -
0
3
0