McKeever v Flair 500 Pty Ltd and VWA

[2009] VCC 292

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION

SERIOUS INJURY

Case No. CI-07-03247

LINDA McKEEVER	Plaintiff
v
FLAIR 500 PTY LTD	First Defendant
and
VICTORIAN WORKCOVER AUTHORITY	Second Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	25, 26 February 2009
DATE OF JUDGMENT:	6 March 2009
CASE MAY BE CITED AS:	McKeever v Flair 500 Pty Ltd & VWA
MEDIUM NEUTRAL CITATION:	[2009] VCC 0292

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Application pursuant to s.134AB(16)(b) Accident Compensation Act 1985 – injury to the right upper limb – bilateral upper limbs – pain and suffering only.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Mighell SC and	Maurice Blackburn
Mr D Purcell
For the Defendants	Mr I Gourlay	Minter Ellison
HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the first defendant from May 2003.

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 s.134AB(37) of the Act. There “serious” is defined relevantly as meaning:

“(a) permanent serious impairment or loss of a body function.

4          The impairment of body function relied upon in this case is predominantly the right upper limb, and to a lesser extent the bilateral upper limbs. The claim for psychiatric impairment was withdrawn during the hearing.

5          The plaintiff relied upon one affidavit and she was cross examined.

6          In addition, both parties relied on medical reports and other medical material which was tendered in evidence. I have read all the tendered material.

Outline of s.134AB

(i)         Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages;

(ii)        The impairment of the body function must be permanent in the sense that it is likely to last into the foreseeable future;

(iii)       The plaintiff bears an overall burden of proof upon the balance of probabilities;

(iv) By subsection (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”;

(v)        I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders;

(vi)       Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;

(vii)      I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 in reaching my conclusions.

The Plaintiff’s Evidence

7          The plaintiff is currently aged thirty nine, having been born on 14 July 1969.

8          She attended school until Year 9 and thereafter did some factory work and worked as a sewing machinist/upholstery cutter. From 1998, the plaintiff worked at Ford as an upholstery cutter until she moved to Benalla in 1997.

9          On 11 March 2003, the plaintiff commenced employment with the first defendant as an upholstery cutter. Prior to this employment the plaintiff had not had any problems with either upper limb.

10        As part of her duties with the first defendant the plaintiff was required to spread out and cut material for lounge suites. Whilst doing this work in about May 2003 she developed tingling, pins and needles and numbness in both hands, worse on the right.

11        In June 2003, the plaintiff attended her general practitioner, Dr Skinner, at the Andrew Place Medical Clinic (“the Clinic”). He referred the plaintiff to Dr Ebringer, rheumatologist, who carried out a nerve conduction study which confirmed bilateral carpal tunnel syndrome.

12        The plaintiff was given cortisone injections in both wrists without relief and she ceased work on 19 August 2003.

13        On 16 December 2003, the plaintiff was referred to Mr Bennett, hand surgeon, who carried out a right carpal tunnel release on 18 December 2003 (“the first operation”).

14        Initially the plaintiff had some relief after the first operation but such relief was short-lived. She experienced stiffness in her right hand following the first operation and she then underwent hand therapy.

15        The plaintiff ultimately underwent left carpal tunnel release surgery performed by Mr Bennett on 25 March 2004 (“the second operation”).

16        In or about July 2004, the plaintiff was certified fit for a return to work and she initially returned to work on part time light duties. By early October 2004, she returned to full time work on light duties.

17        At the end of October 2004, the plaintiff was forced to cease use of large scissors which she had attempted to do unsuccessfully. She continued modified duties until she was made redundant on 11 March 2005.

18        In August 2005, the plaintiff commenced treatment with Dr Rayner at the Clinic. Because of persistent pain, predominantly in her right hand, in October 2005, the plaintiff was referred to Dr Lim, pain specialist. Further nerve conduction studies were carried out on 23 November 2005.

19        The plaintiff undertook an intensive pain management course at Olympia Private Hospital for three months in early 2006. During that period she also had psychological treatment and she was prescribed Endep.

20        In April 2006, the plaintiff was referred to a musculoskeletal physician, Dr Brzozek, who prescribed Lyrica. During November 2006, the plaintiff underwent chiropractic treatment. In January 2007, the plaintiff was referred to Dr Traum for laser/acupuncture treatment.

21        In September 2007, the plaintiff commenced employment with European Eyewear, initially working 4 hours per day answering the phone and sending out invoices. She increased her workload to 5 hours per day in April 2008. This job does not require the repetitive or prolonged use of her hands.

22        The plaintiff was cross examined at length as to the improvement in her condition noted by her general practitioner and also Mr Bennett after both operations. The plaintiff denied there was a complete resolution of her problems after either operation and said that she continued to have problems thereafter. After the first operation her right hand did feel better but then it just “returned to feeling worse”. The locking of her middle finger ceased. The pins and needles have continued.

23        Since the operations, the plaintiff sometimes has shooting pain up into her arms into her shoulders and neck. From August 2006 she also has had lower back pain.

24        The plaintiff has never been completely free of symptoms in her right wrist. The main pain is in her right wrist where there is numbness and tingling throughout the hand and into her ring and middle fingers. She has lost strength in both hands and has difficulty carrying things. The pain in her right wrist and hand is severe at times, and up to four times a night she is woken by the feeling of tingling.

25        Pain can be brought on by just grabbing or lifting something. Her hands swell to the point where she struggles to get her rings off.

26        The plaintiff presently takes three to four Panamax, Panadol or Advil at a time, depending on her level of pain. In early 2007, she stopped taking Endep and Lyrica because of the side-effects. The drugs made her feel “horrible” and “like she did not want to do anything”.

27        If the plaintiff spends more than 10 minutes or so on the computer the pain in her hands increases. She is unable to engage in repetitive lifting or manual tasks.

28        The plaintiff has ongoing problems doing her housework. She can still do most tasks but paces herself and sometimes does not do the very heavy tasks, such as vacuuming, mopping or doing heavy cleaning in the bathroom. If she does too much her hands “just want to hang” and she does not have the strength to continue.

29        The plaintiff used to enjoy sewing and craftwork but no longer does so. Her relatives no longer give her clothes to repair or alter as she is unable to sew because of hand pain. She can no longer draw or paint or make things. The plaintiff continues to enjoy attending the football.

30        The plaintiff still does cooking at home although she cooks less frequently and uses smaller utensils and leaves the chopping tasks to her husband. The plaintiff can do the shopping and does a “big shop” every two or three weeks but her husband helps her.

31        As the plaintiff cannot hold her right arm in a fixed position for too long, driving is difficult, as are some personal care tasks, such as shampooing her hair and doing up her bra. Her sex life has been affected.

The Plaintiff’s Medical Evidence

32        The plaintiff first presented to Dr Skinner at the Clinic on 28 August 2003 complaining of painful hands and worsening paresthesia at night for about three months. She also complained that her middle two fingers curled up and were difficult to straighten. Referrals were made to Dr Ebringer and Mr Bennett.

33        Notes from the Clinic upon which both parties relied were tendered by the plaintiff.

34        Notes of attendances on 16 February 2004, 24 March 2004, 21 April 2004 and 19 May 2004 detailed a gradual improvement in the plaintiff’s right hand to the stage where it was pretty much to normal.

35        On 16 June 2004, the plaintiff complained of some thenar pain in the left after raking leaves on the weekend. On 21 June 2004, the plaintiff was certified fit for modified duties not involving lifting heavy rolls of fabric.

36        The plaintiff complained of pain and problems at work and at home on 31 July, 18 November, 2 December and 14 December 2004.

37        Between January and March 2005, the plaintiff reported pain and swelling in her right wrist and difficulties with work duties. Her condition had not changed in June 2005, and on 7 July 2005, she reported ongoing hand swelling and pain.

38        On 5 August 2005, the plaintiff was still getting symptoms of numbness in her right hand. She had had pain in her right elbow for several months, it was hard to close her hands and she had limited movement in her right shoulder and elbow. On 1 September 2005, it was noted she could not sleep and was kept awake by pain. She was taking Advil. Her condition was unchanged on 31 October 2005.

39        In February 2006, the plaintiff was undergoing physiotherapy and hydrotherapy and was being prescribed Lyrica. In May 2006, her arms were the same.

40        On 2 November 2006, the plaintiff reported a “wormy feeling in the middle three fingers on both hands, on and off for several months. Sometimes finger on phone or keyboard gets spasm in it”.

41        In January 2007, the plaintiff had seen an acupuncturist three times and she was marginally better. On 19 April 2007, she was a bit sore. On 17 May 2007, her hand, shoulders, neck, back and stomach were sore. On 18 June 2007, her arms and hands were much the same. The plaintiff was having a bit more sleep with Aropax. She woke less.

42        Dr Ebringer first saw the plaintiff on referral from Dr Skinner in September 2003. Musculoskeletal examination demonstrated tendonitis in the volar aspects of the forearm and a positive Phalen’s test at both wrists after a few seconds of pressure. He diagnosed bilateral carpal tunnel syndrome, worse on the right, and arranged for a corticosteroid injection and the commencement of Vioxx.

43        After the injections, Dr Ebringer noted there had been really no improvement and he changed the plaintiff’s medication to Mobic.

44        Mr Timothy Bennett, hand, plastic and reconstructive surgeon, first saw the plaintiff on 16 December 2003. She gave a seven-month history of bilateral carpal tunnel syndromes, worse on the right than the left. She had daytime paresthesia while driving and holding the phone and nocturnal deadness. She was mildly weak in grip, and nerve conduction studies confirmed the presence of moderate bilateral carpal tunnel syndrome.

45        Mr Bennett performed a right carpal tunnel release on 18 December 2003. He noted that although the plaintiff had a very good response in terms of her sensory symptoms, her wound was quite sensitive and she became very stiff. When reviewed after hand therapy on 20 January 2004, he noted the plaintiff was much improved with a full range of motion. Her left side was not giving her too much problem and it was elected to leave surgery on her left wrist for three months or so whilst she continued intensive hand therapy on her right.

46        On review on 12 March 2004, Mr Bennett noted the plaintiff’s left side was deteriorating rapidly. On 25 March 2004, he performed a left carpal tunnel release from which he noted the plaintiff had an immediate and very good response. Stiffness was not such a problem on this occasion as the plaintiff was more aggressive in her hand therapy.

47        When Mr Bennett saw the plaintiff on 27 April 2004, he noted she was happy with her progress, although she was still on light restricted duties not using vibratory tools or heavy fabric scissors. She still had weakness of grip and some difficulty with sensitivity in the wound.

48        When he saw the plaintiff on 28 October 2004, Mr Bennett noted she was doing very well and had begun using scissors again. However, that work became too painful, and when he saw her on 23 December 2004, it was decided to revert the plaintiff back to duties without using scissors.

49        Mr Bennett noted that the difficulties the plaintiff was having with heavy gripping duties, and vibratory tool duties were not uncommon in her situation. Further, in his view certainly there was some weakness contributed to by the plaintiff’s underlying syndrome as well as surgery and that does not always return completely to normal. Mr Bennett thought, given the time that had elapsed since the operations, retraining in alternative duties would be the ideal way forward.

50        The plaintiff failed to attend a review organised with Mr Bennett in March 2005.

51        Dr Tay from the Clinic reported in September 2005 that the plaintiff had suffered bilateral carpal tunnel syndrome and post-operative pain syndrome consistent with work. He thought that the plaintiff would have to seek work in an area which did not involve putting pressure on her hands.

52        Dr Tay noted the plaintiff’s hands initially settled after the operations but despite a gradual return to work, she was unable to tolerate vibratory cutting tools, with pain returning to both hands, especially when using the large cutting machine.

53        Dr Rayner has looked after the plaintiff at the Clinic since 5 August 2005. When Dr Rayner commenced treating her, the plaintiff complained that her hands continued to go numb, there was pain going to her right elbow and she had difficulty closing her hands.

54        Dr Rayner referred the plaintiff to Dr Lim, a rehabilitation consultant, who arranged for her attendance at a pain clinic. Dr Rayner referred the plaintiff to Dr Brzozek, who suggested an antidepressant and Lyrica. Dr Rayner noted that the plaintiff had five visits to a chiropractor in November 2006, the plaintiff ceased taking Lyrica in November 2006, the plaintiff attended Dr Traum, acupuncturist, with only marginal improvement between January and April 2007 and the plaintiff starting Aropax in June 2007, which improved her sleep and mood.

55        Dr Rayner noted the plaintiff had obtained a job at her fiancé’s family company, and although tired, she coped with it. The last time the plaintiff was seen in relation to her problem was in December 2007, when she requested pain relief for the longstanding pain in her hands and arms and she was prescribed Panadol Osteo and Voltaren.

56        Dr Rayner considered that the plaintiff’s pain was chronic and future medical treatment would depend on her ability to carry on despite her pain. A prescription for Voltaren and Panadol Osteo was written on 17 January 2008.

57        Dr Brzozek of the Brighton Spinal Group first saw the plaintiff on 20 April 2006 and again on 20 July 2006. The plaintiff told him of her bilateral carpal tunnel problem and that her pain did not subside after the operations. It subsequently spread to involve the upper chest, upper back, shoulder girdles and even lower back.

58        On examination, the plaintiff displayed a full cervical range of movement. He examined her whole body for the typical fibromyalgic tender points and these revealed tenderness consistent with a diagnosis of generalised fibromyalgia.

59        Dr Brzozek thought the plaintiff had signs and symptoms consistent with that condition which he described as a generalised pain amplification syndrome involving central sensitisation of neural pathways rendering the plaintiff to a lowered threshold for pain and also rendering her to experience pain to normally non painful stimuli, such as deep pressure and brushing certain body tissues.

60        He recommended the introduction of Endep, a low-dose tricyclic antidepressant for pain and sleep restoration, but not for depression. He encouraged water-based exercises and suggested the plaintiff remain active. He indicated to her that fibromyalgia often settles or burns out after three to four years. He reiterated a focus on function and normal socialisation rather than focussing on her pain, and he encouraged her to continue with Dr Lim.

61        On re-examination on 20 July 2006, Dr Brzozek formed the impression that the plaintiff was suffering from moderate depression which was likely secondary to her chronic fibromyalgia pain syndrome. He recommended she cease Endep and commence a stronger mainstream antidepressant.

62        Dr Peter Blombery, consultant physician in vascular disease, examined the plaintiff on 21 August 2008.

63        On examination, Dr Blombery noted the plaintiff was slightly tender diffusely over both hands and there was some tenderness over the extensor insertion at the elbows, over the upper arm and around the shoulder girdle. There was a subjective reduction in sensation on both sides in the index, middle, ring and little fingers. There was equal hand grip and a full range of movement of all joints and reflexes which were intact and symmetrical.

64        Dr Blombery noted, despite the operations, there had not been very much change in the plaintiff’s symptoms of numbness. He thought her heavy and repetitive work had caused her carpal tunnel compression of the median nerve.

65        Separately from that, Dr Blombery felt the plaintiff also had a component of an overuse injury or localised fibromyalgia affecting both arms. She had more diffuse pain extending up to the shoulder girdles but with little in the way of major abnormality in the affected tendon or other areas. He thought this could also be due to fibromyalgia which had been diagnosed by other doctors.

66        Dr Blombery diagnosed bilateral carpal tunnel compression of the median nerves and fibromyalgia affecting both arms, neck and upper back, which he thought was an organic injury in relation to which the plaintiff’s employment was a significant contributing factor.

67        He thought the plaintiff had a markedly reduced capacity for work and would certainly not be able to do her old job but she could do light work, such as invoicing. He considered it would be unlikely that the plaintiff could work more than 5 hours per week. He thought it would be very difficult for her to find work on the open labour market. He considered her prognosis for recovery was poor as her symptoms had been present since 2003.

68        Mr Michael Flaim, general surgeon, examined the plaintiff on 11 September 2008. At that time she complained of residual numbness, particularly at night, recurrent sharp pains in both wrists experienced on the volar aspect with radiation into the palms, pain with forceful gripping and a sense of weakness in both hands.

69        On examination, there were no non-organic signs and there was no overreaction to examination. There was no wasting of the thenar musculature and Phalen’s test and Tinel’s signs were negative on both sides. The plaintiff’s grip strength was 14 kilograms on the right and 18 kilograms on the left.

70        Mr Flaim diagnosed carpal tunnel syndrome but did not mention fibromyalgia. He thought the plaintiff had a permanent incapacity for heavier aspects of manual work and could not do very highly repetitive keying.

71        Having seen the November 2005 nerve conduction study, Mr Flaim concluded there was a persistent problem relating to the median nerves. In his view, that certainly was not severe enough to require consideration of re-exploration and most likely indicated a persistence of the plaintiff’s neuronal damage consequent on a period of compression with a degree of irreversible change.

72        The plaintiff attended Mr Steven Marchese, psychologist, on two occasions in July and October 2004. He thought many of the symptoms the plaintiff was experiencing were consistent with an adjustment disorder and should resolve with the resolution of her situation. He noted the plaintiff was also feeling unsupported and insecure regarding her duties on her return to work.

Investigations

73        A nerve conduction study on 28 August 2003 revealed electrophysiological evidence of moderate right and mild left carpal tunnel syndrome.

74        Nerve conduction studies carried out on 23 November 2005 showed there was electrophysiological evidence for median neuropathy at both wrists. The findings were consistent with very mild bilateral carpal tunnel syndrome.

75        An ultrasound of both shoulders on 30 March 2006 was normal.

The Defendant’s Medical Evidence

76        Mr Buzzard, general surgeon, re examined the plaintiff on 28 August 2008, having seen her initially on 2 October 2003.

77        On re examination, the plaintiff complained of numbness of both hands coming on at night and when she wakes up in the night – a problem since June/July 2003.

78        The plaintiff had pain in both arms and her neck involving the whole of both upper extremities. This pain came on in or about late 2003. She told Mr Buzzard that because of her arm and neck pain she saw a doctor who diagnosed fibromyalgia. She also complained of pain in both calves present since late 2003.

79        On examination, there was a full range of movement of the plaintiff’s cervical spine. Both arms were equally and normally developed by measurement. Tinel’s sign was equivocal bilaterally. There was no evidence of any wasting of the thenar musculature. The plaintiff claimed diminished sensation in the whole of both hands and fingers, including the dorsal and palmar aspects.

80        Mr Buzzard noted that the plaintiff’s operations had been unsuccessful in terms of relief of her symptoms and she now had pain effectively involving the whole of the arms and legs which he could not explain in terms of carpal tunnel syndrome. He thought there was a functional as against physical problem. He could not find any evidence of any focal tenderness to support a diagnosis of fibromyalgia. He noted that the numbness of the plaintiff’s hands followed a glove and stocking distribution and that itself was indicative of a functional, as against physical, problem. Insofar as further treatment was concerned, he thought the plaintiff needed some assessment by a consultant psychologist or psychiatrist, but that she did not need any physical treatment. He did not think the plaintiff had any physical problem in relation to employment and he could not see why she could not do her current job full time.

81        Mr Buzzard thought the plaintiff’s bilateral carpal tunnel syndrome was not work-related and that she no longer had the condition.

82        Having been forwarded the November 2005 EMG study which noted very mild bilateral carpal tunnel syndrome, Mr Buzzard conceded this could be a partial explanation for the plaintiff’s complaints of numbness in her hands but would not explain her other widespread pain. He thought there may be some scar tissue causing continuing pressure on the median nerves at the wrists.

83        Correspondence from Dr Lim to Dr Rayner dated 26 October 2005 was tendered by the defendant.

84        Dr Lim thought there was a significant pain/amplification component to the plaintiff’s condition due to the development of central sensitisation (central nervous system pain pathway sensitisation) a scientifically proven organic change in her pain system that not only makes her primed to suffer from chronic pain but also prone to suffer from flares of pain independent of any other factors.

85        Mr Nye, neurosurgeon, re examined the plaintiff on 14 September 2005, having previously examined her in 2004.

86        On re examination, Mr Nye found a mild global weakness affecting both upper limbs, a little more marked on the right than the left, which he suspected to be functional. He considered there had been a partial incapacity consequent upon the initial condition; however, he noted the plaintiff was able to work in light duties until she was retrenched.

87        In his view, restrictions necessary for any further employment position would include exclusion of forceful repeated use of the hands, working in a cold environment and use of vibrating machinery.

88        Dr Roy Karna, rheumatologist, examined the plaintiff on 5 April 2006. He noted the onset of symptoms were predominantly in the right hand involving the right, third and fourth fingers, and that with the passage of time the focus of the plaintiff’s discomfort had become more global arm pain, including proximal neck, shoulder, pectoral and upper back type pain.

89        On examination, there was no thenar muscle bulk diminution. The plaintiff had normal sensation in the left, but on the right alluded to some diminished sensation in the third and fourth fingers of the right hand. There was slightly weakened pincer grip on the right but not the left. General grip strength was normal on the right but not the left. The plaintiff complained of tenderness to touch on the forearm muscles, upper arm muscle and neck and shoulder girdle regions, more so on the right than the left. Upper limb reflexes were preserved, as were neck movements. Range of wrist movement was normal bilaterally and carpal tunnel provocation testing was negative bilaterally.

90        Dr Karna accepted the notion that the plaintiff had some residual sensory symptomology and weakness on the right side which could be attributed to her right sided carpal tunnel lesion and the surgery thereof.

91        Dr Lange, occupational physician, examined the plaintiff in July 2004 and in February 2005. He found it difficult to explain the plaintiff’s persisting symptoms on the basis of the initial bilateral carpal tunnel condition. In his view, if the plaintiff had hypothyroidism it would explain her symptoms and her ongoing condition may well be due to this problem rather than a work-related problem. In his view, the plaintiff was capable of full time duties not involving the use of vibratory machinery.

92        Mr David Marshall examined the plaintiff in April 2006 for the purposes of an AMA assessment. He found no evidence of any nerve entrapment or underlying injury in the right hand, nor left hand.

93  

94        A psychological assessment summary was carried out at Olympia Private Hospital on 20 December 2005 by Ms Carmen Steger, clinical psychologist, before the plaintiff commenced the pain management program.

95        Dr Stephen Stern, psychiatrist, examined the plaintiff in May 2006, at which time he thought she was suffering from an adjustment disorder with mixed anxiety and depressed mood due to her work injuries. From a psychiatric viewpoint alone he considered the plaintiff was fit for work.

96        The plaintiff was re examined by Dr Serry, psychiatrist, in September 2008, having seen her earlier in 2005. She told him she had been essentially much the same, with ongoing intermittent pain in her right hand and arm, reduced grip strength and nocturnal numbness. She also experienced some pain in her shoulders, neck and back.

97        On examination, the plaintiff demonstrated a normal range of affect but reported some underlying depressive themes. She was not clinically anxious but more frustrated with her condition. Dr Serry found there was no abnormality of thought stream, form or content. There were no psychotic features and cognitive assessment revealed some subjective complaints but no gross abnormality, and insight was retained.

98        Dr Serry considered, from a psychological point of view, the plaintiff had experienced mild symptoms of anxiety and depression in association with chronic pain and limitations. She had a diagnosable psychiatric injury, namely a chronic adjustment disorder with anxiety and depression. He thought that given medical opinion that the work relationship had ceased in relation to her physical injury, then by extension that relationship would now be considered to have ceased in relation to the psychiatric injury. He thought from a psychiatric perspective the plaintiff had a current work capacity and noted she was working 25 hours a day in alternate duties.

Video Surveillance

99        The defendant tendered video surveillance of the plaintiff taken on 8, 12 and 14 February 2008 and 14 July and 8 December 2008. Approximately 30 minutes of film was taken over these dates.

100       The plaintiff was shown walking and driving. She was also shown sitting talking to other parents whilst waiting to collect her son from school. Whilst seated she was shown to touch her hair with her hands and to gesture freely with her hands whilst talking.

Findings

101       It is not in dispute that the plaintiff suffered a compensable injury during the course of her employment. Counsel for the defendant indicated reliance was not placed on Mr Buzzard’s view to the contrary. Other issues of causation which were foreshadowed in opening were not pursued.

102       It is accepted that the plaintiff’s condition originally was a bilateral carpal tunnel syndrome which was treated surgically. There was some issue as to whether the current diagnosis of fibromyalgia related to that initial condition. However, counsel for the defendants conceded that it did seem that there is a degree of symptoms complained of by the plaintiff which refer in some way to the original condition.

103       Counsel for the defendants also raised the question of a functional component to the plaintiff’s claim. Mr Buzzard, who last saw the plaintiff in 2008, considered the plaintiff’s condition was functional and had no physical basis. However, having been forwarded the November 2005 nerve conduction studies, he was prepared to admit that the “very mild bilateral carpal tunnel” shown on the EMG could be a partial explanation for the plaintiff’s complaints of numbness and that there may be some scar tissue causing continuing pressure on the median nerves at the wrists. Further, Mr Nye suspected the presence of a functional component to the plaintiff’s presentation when he examined her in 2005.

104       In any event, counsel for the defendants conceded that there probably was a physical injury which can account for the plaintiff’s ongoing condition and any accompanying psychiatric element is probably understandable and expected.

105       Ultimately counsel for the defendants indicated the issue in this case was one of range – did the plaintiff’s impairment to her right upper limb satisfy the statutory test of seriousness?

106       As counsel for the plaintiff submitted, the main focus was on the injury to the plaintiff’s right upper limb, although in the alternative the application was also brought in relation to upper bilateral limb impairment.

107       It was submitted by counsel for the defendants that essentially the bilateral carpal tunnel syndrome had resolved and any present impairment relating thereto was not serious.

108       Whilst it appears from the general practitioner’s notes and also the report of treating surgeon, Mr Bennett, who last saw the plaintiff in late 2004, that the plaintiff had significantly improved after surgery, it is obvious from the general practitioner’s notes that such recovery was not complete.

109 The plaintiff continued to experience problems, particularly until her employment was terminated in early 2005 and thereafter, last attending in December 2007 for arm pain. She was last prescribed Voltaren and other medication in January 2008.

110       Further, no doctor at the Clinic at any stage certified the plaintiff fit for a return to full time unrestricted duties.

111       The most recent investigation, the November 2005 EMG nerve conduction study showed very mild bilateral carpal tunnel syndrome.

112 On examination in April 2006, Dr Karna found “residual sensory

symptomology and weakness on the right side. . . attributable to her right-
sided carpal tunnel lesion and surgery thereof”.

113       Mr Bennett, on his last examination in late 2004, found some weakness contributed to by the underlying carpal tunnel syndrome and surgery.

114       Mr Flaim found residual problems and Dr Blombery noted the operations had not resulted in very much change in the plaintiff’s symptoms of numbness.

115       Mr Buzzard seems to have changed his view slightly, having received the EMG study.

116       The reports of Mr Marshall, Mr Nye and Dr Lange are now somewhat dated and these examiners did not have the benefit of 2005 study.

117       Based on the most recent medical opinion and the plaintiff’s evidence, I accept that she continues to suffer from carpal tunnel syndrome particularly on the right.

118       In addition to bilateral carpal tunnel syndrome, I accept that the plaintiff has developed some sort of fibromyalgia as a consequence of that syndrome.

119       Dr Brzozek, the plaintiff’s treating musculo skeletal physician, in 2006, diagnosed generalised fibromyalgia, having found tenderness in the typical fibromyalgia points on examination.

120       Whilst not using the word “fibromyalgia”, Dr Lim described the plaintiff’s condition as “central sensitization” (central nervous system pain pathway sensitization).

121       Dr Blombery diagnosed fibromyalgia, which he described as an organic disorder of pain nerve pathways where there was non specific sensitization of pain nerve pathways.

122       The plaintiff’s treating general practitioner, Dr Rayner, thought the pain amplification was a sequelae of the initial carpal tunnel condition.

The Plaintiff’s Credit

123       There is no evidence from medical practitioners that the plaintiff is attempting to exaggerate or embellish her symptoms.

124       Whilst her credit was attacked in terms of the history given by her as to her level of complaint following the operations, I do not accept that her credit generally was successfully attacked.

125       Further, the video surveillance of the plaintiff taken in February, July and December 2008 was not inconsistent with her oral evidence, her affidavit evidence and her presentation to doctors.

126       I find the plaintiff to be a credible witness and I accept her evidence as to her level of pain and disability.

Impairment Consequences

127       I accept that the plaintiff has suffered fluctuating but persistent chronic right arm pain for five years.

128       I accept that the plaintiff has continued to suffer from ongoing symptoms, particularly in her right hand in the form of reduced grip strength, increased pain with cold, sleep disturbance and pain at night, swelling, pain, numbness, tingling and twitching, particularly in the ring and middle fingers and shooting pains up the arms. I accept her evidence that she has never been completely free of symptoms.

129       The plaintiff has undergone a range of treatments, including injections, two partially successful bilateral carpal tunnel releases, chiropractic and laser treatment, physiotherapy and a three-month pain management program.

130       In her general practitioner’s view the plaintiff’s pain is chronic and she requires ongoing medication in the form of Panamax and Panadol. She had taken stronger medication, including Endep and Lyrica, but had to cease taking that medication because of significant side-effects.

131       Given the chronic nature of the plaintiff’s condition and her failure to respond in any significant way to treatment, I accept that the plaintiff’s present situation is likely to continue into the foreseeable future.

132       Because of her ongoing right arm pain, the plaintiff has limited use of her right dominant hand which interferes with her ability to write and use a keyboard for prolonged periods.

133       The plaintiff no longer has the capacity to perform unrestricted manual work involving the use of both hands – a finding supported by all medical practitioners save for Mr Buzzard.

134       The plaintiff’s ability to cook is affected, in that she cooks less frequently and is unable to use large cooking utensils. Her ability to do her housework has been affected, in that she paces vacuuming, mopping and heavy cleaning work and at times does not do these jobs.

135       The plaintiff has had to give up craft work, including drawing and painting, and is not able to sew and do repairs and alterations as she previously enjoyed because of right hand pain.

136       The plaintiff has also experienced interference with her sex life because of her arm condition. Her ability to undertake personal grooming, such as washing her hair or getting dressed is affected and she is unable to drive for prolonged periods of time.

137       Whilst the plaintiff does work 5 hours a day and she still enjoys some activities, taking into account all the evidence, I accept that the impairment to her right upper limb is both permanent and serious.

138       Having made that finding, I am not required to consider the issue of bilateral upper limb impairment.

139       Accordingly, I grant the plaintiff leave to bring proceedings for damages for pain and suffering.

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