Mills v Victorian WorkCover Authority
[2013] VCC 520
•10 May 2013
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-05061
| CHERRYL JEAN MILLS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 26 April 2013 | |
DATE OF JUDGMENT: | 10 May 2013 | |
CASE MAY BE CITED AS: | Mills v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 520 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – carpal tunnel syndrome to both hands – application for pain and suffering only – whether the consequences to the plaintiff are “very considerable”
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell SC with Mr D Purcell | Slater & Gordon |
| For the Defendant | Mr A Moulds SC with Mr R Kumar | Hall & Wilcox |
HER HONOUR:
Preliminary
1 The plaintiff commenced work with K R Castlemaine Foods Pty Ltd (“the employer”) packing smallgoods in May 2006. In 2007, she commenced to suffer symptoms in her hands and wrists, and subsequently carpal tunnel syndrome was diagnosed. She had surgery to the right wrist, which was not successful in relieving the symptoms. She claims she still suffers symptoms in both wrists, which impair her capacity to undertake housework, gardening and a range of other recreational and domestic activities.
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of the plaintiff’s employment over the period 2006 and 2007. The body function said to be lost or impaired is the right and left wrists or hands; alternatively, either the right or the left wrist or hand. The application is thus brought under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act and leave is sought in respect of pain and suffering only.
3 The plaintiff was the only witness called to give evidence and be cross-examined. In addition, two affidavits of the plaintiff and various medical and radiological reports were tendered into evidence. I have read all the tendered material. I shall not refer to all of this material in the course of this judgment, but rather those reports and opinions which appear to me to be of most relevance in determining the issues in dispute. I shall not refer to all of the evidence of the plaintiff, but rather those parts of her evidence which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature is well known and it is unnecessary for me to re-visit the various relevant sections.
Relevant background
4 The plaintiff is currently fifty-six years of age, is single and has two adult children and four grandchildren. She completed Year 9 at school and then engaged in various jobs including factory work, housekeeping and cleaning. She worked on a full-time basis generally, with time off to raise her children.
5 In May 2006, she commenced work with the employer, packing smallgoods. She was able to engage in a full range of domestic duties, and sewing was her main hobby. She made clothes for herself and her family. She also enjoyed gardening and was involved with her family, in particular her grandchildren.
6 Generally speaking, before May 2006, the plaintiff was in good health and claimed to have no problems with pain or restriction in her wrists or hands. However, in the course of cross-examination, it transpired that in January 2005, prior to the commencement of her work with the employer, she had nerve conduction studies undertaken to her feet and to her hands. Initially, the plaintiff denied that her hands were the subject of studies,[1] but eventually admitted this to be the case.[2] Further, the plaintiff initially denied that she had any symptoms in her hands in 2005 but rather the investigation was that the doctor was “checking me right through. He checked me for everything.”[3] Eventually, the plaintiff conceded that she was suffering from numbness and pins and needles in her hands and fingers in 2005.[4] I found the plaintiff’s evidence in this regard unsatisfactory.
[1]Transcript (“T”) 14, L17
[2]T15, L11
[3]T15, L13
[4]T17, L10
The injury and its consequences
7 According to her affidavit, in early 2007, the plaintiff noticed tingling in her wrists and hands while carrying out her work duties. Eventually, she went to a general practitioner, Dr Dewhurst, of Bendigo, and presented on 15 August 2007 with complaints of tingling and numbness to both hands and wrists. Subsequently, she was seen by her usual general practitioner, Dr Neville. Those doctors diagnosed carpal tunnel syndrome to both hands, worse on the right side. The general practitioner injected the area with cortisone which did not provide lasting relief.
8 In September 2007, the plaintiff was referred to Mr Huw Williams, orthopaedic surgeon, of Bendigo. He examined both wrists and performed a number of clinical tests and determined the plaintiff was suffering median nerve compression to both hands. He said there was positive provocation test for carpal tunnel syndrome to both wrists. He planned to perform surgery to both wrists, and surgery to the right wrist was carried out on 16 October 2007. Initially, the plaintiff had good relief from symptoms in her right wrist but by November 2007, she was complaining of diffuse ache and stiffness over the right hand and into the fingers, although the problem with the fingers had improved. According to the her affidavit,[5] she was told by Mr Williams that as the surgery to her right hand not been successful, the left carpal tunnel release would be placed on hold.
[5]Plaintiff’s Court Book (“PCB”) 8
9 In April 2009, the plaintiff returned to modified work duties. She was required to do packing work and said that she could not cope with the work. Although, according to her affidavit,[6] she said that she remained off work until March 2010 when she secured employment as a cleaner at the Bendigo Hospital, in fact the plaintiff obtained employment in 2009 at a Subway food outlet working six hours a day preparing food and serving customers. In addition, she did work at a nursing home, two half days per week. All in all, she accepted she worked full time in these jobs for over year, the work at the nursing home including cleaning rooms, mopping, dusting and cleaning the bathroom.[7]
[6]PCB 9
[7]Note the plaintiff did make reference to this employment in the history provided to Dr Karna, DCB 11
10 The plaintiff said that the pain and tingling in both wrists continued, and in January 2008, she was referred back to Mr Williams. A report to the insurer at that time[8] referred to there being “other factors” involved in the plaintiff’s presentation, including stress, anxiety and depression. It is noted that the plaintiff had been suffering depression before she commenced work with the employer.
[8]Defendant’s Court Book (“DCB”) 78
11 Mr Williams again reviewed the plaintiff in February 2008[9] and in a report of that examination, noted that the symptoms in her right hand were settling well and with good relief from paraesthesia in the fingers of the right hand. The report further noted the range of motion in her right wrist was near to normal. At the time, the plaintiff said her left wrist was asymptomatic. Mr Williams provided the plaintiff with a certificate for a return to work on lighter duties.
[9]DCB 79
12 Mr Williams reviewed the plaintiff again on 1 April 2008. According to that report,[10] he said the plaintiff’s right hand was functioning quite well and there was no plan to undertake surgery to the left hand as she had minimal symptoms.
[10]DCB 80
13 The plaintiff was referred back to Mr Williams in February 2009 because of ongoing symptoms. He arranged further nerve conduction studies. According to a report the general practitioner, Dr Neville, of April 2009,[11] Mr Williams reported that investigations showed the plaintiff had a small ganglion on her left wrist and the nerve conduction studies of that wrist showed a very mild carpal tunnel syndrome which he said did not warrant surgical decompression.
[11]DCB 81
14 In his report of 16 March 2009,[12] Mr Williams noted that the plaintiff’s recovery from surgery to the right wrist was prolonged and the prospect of treatment uncertain.
[12]PCB 21
15 The plaintiff commenced work at the Bendigo Hospital in March 2010. She has not disclosed to that employer the problems with her wrists. She has worked 48 hours per fortnight. She says she has been reluctant to leave that employment as she has pressing financial needs and helps support her two children and grandchildren. She has recently resigned from the hospital and plans to move to Perth shortly to be with her two children.
16 In about 2010, she went to the Tri Star Medical Clinical in Bendigo and was treated by Dr Yediapalli. Dr Neville had left the district. That doctor also left, and she has been treated to date by Dr Buttar. According to the clinical notes of Dr Yediapalli,[13] his treatment has focussed on osteoarthritis which has affected the plaintiff’s knees. She has also suffered pain in her neck. She has been prescribed a range of medications for these problems, including Jurnista, a powerful pain-relieving medication. Over the course of Dr Yediapalli’s treatment from December 2011 until March 2012, there is only passing reference to her carpal tunnel problems. According to the clinical notes of Dr Buttar, who has treated the plaintiff since October 2012, she has consulted that practitioner on several occasions because of complaints of carpal tunnel symptoms in both hands. Those notes refer to ECG studies which showed an inconclusive result for carpal tunnel.
[13]DCB 83-86
17 At the present time, the plaintiff has been treated with physiotherapy by Mr Jordan Lees from the beginning of this year. She takes Celebrex, 400 milligrams per day, which she says is only prescribed for her wrists. She also takes Panadol and Nurofen. She receives antidepressant medication for a pre-existing problem. In November 2012, she was hospitalised with a heart condition, atrial fibrillation, and has been prescribed medication to manage that condition.
18 Currently, she wears hand splints all the time, save when she is at work, as the Bendigo Hospital is not aware of her condition. She says she has constant pain in both wrists which is a “pinching” like feeling and with strong stabbing pain. She has difficulty gripping items and has purchased an automatic car so that she does not have to change gears. She says she has difficulty doing her housework and lifting anything other than light weights. She has difficulty with pots and pans. She has been unable to resume her interest in sewing and is restricted in what she can do in the garden. She finds the problems with her wrists interfere with her sleep and she has trouble getting comfortable at night. The intensity of the symptoms fluctuates, and according to her first affidavit,[14] there is a “pinching like feeling, particularly in my thumbs”.
[14]PCB 11
Medical opinions
19 The plaintiff has been examined in April 2012 and December 2012 by Mr Murray Stapleton, plastic and hand surgeon, at the request of her solicitors. He obtained a history of the onset of the problems in the plaintiff’s wrists, but was not told of the initial symptoms in 2005. In the most recent examination, he noted sensory loss in the tips of the thumb, index and middle fingers of both hands and that the clinical test for carpal tunnel, Phalen’s test, was “very strongly positive” on the left side and less so, but still positive, on the right side. He diagnosed bilateral carpal tunnel syndrome which he said would get worse with time. He suggested that nerve conduction studies be undertaken and that the plaintiff would need further decompression surgery to the right wrist, and decompression surgery to the left wrist. He said that work which required repetitive pushing, pulling or lifting should be avoided and that the plaintiff’s capacity for fine manipulative use of the hands was diminished. He said the condition affected the plaintiff’s social, domestic and recreational activities.
20 After Mr Stapleton’s second report, further nerve conductions studies were carried out by Professor Steven Collins. In a brief report of 12 January 2013,[15] Mr Stapleton said, “I have no need to alter anything that I submitted previously.” There is no further detail analysing those studies, or comparing them to Mr Stapleton’s physical examination.
[15]PCB 28
21 On behalf of the defendant, the plaintiff was examined by Dr Roy Karna, rheumatologist, in December 2009. He examined nerve conduction studies carried out shortly after the surgery which he said showed a very mild left carpal tunnel syndrome and noted the ganglion to her left wrist. He assessed the plaintiff as having continuing bilateral mild sensory carpal tunnel syndromes. He also noted osteoarthritis involving both hands which, he said, was constitutional and unrelated to the plaintiff’s work.
22 The plaintiff was examined on behalf of the defendant by Mr Damian Ireland, specialist hand surgeon, in September 2012 and February 2013. In the first report, the plaintiff complained to Mr Ireland of pain in the left hand at the base of the thumb and in the carpal tunnel region. The complaints of pain were the same in the right hand and wrist. He did not receive a history of the earlier carpal tunnel problems in 2005. He found clinical tests were positive for carpal tunnel in the right wrist and there was also tenderness over the right and left thumbs. He noted radiology of August 2007 revealed mild osteoarthritis in the thumb of the left hand. He concluded that the plaintiff had bilateral thumb joint osteoarthritis and some persisting symptoms of bilateral median nerve compression. He concluded:
“The prognosis for further improvement is poor. It is my opinion that the current symptom complex is more related to basal thumb joint osteoarthritis than to median nerve compression neuropathy. I doubt that either of these conditions requires any invasive treatment presently. However, baseline investigations including radiographs of the thumbs would be appropriate together with current EMG and nerve conduction tests, particularly on the right, to compare with the preoperative study on the left.”[16]
[16]DCB 22
23 In his second report, he had available EMG and nerve conduction studies undertaken by Professor Collins on 23 January 2013 in addition to those conducted in February 2009. On examination, the plaintiff complained of numbness affecting all of the fingers of both hands. She also complained of bilateral thumb pain, along the base of the thumb joint. On this occasion, the clinical tests including Tinel’s sign and Phalen’s test were both negative. He noted mild crepitus at the base of the thumb joint. He said:
“I have read the recent EMG and nerve conduction tests which are essentially normal and preclude the diagnosis of carpal tunnel syndrome … I viewed x‑ray images of the wrists and thumbs dated 20 March 2012. On the left side, this revealed mild scaphoid-trapezium-trapezoid joint arthritis with joint narrowing. The basal thumb joint appeared normal. There was no evidence of excessive osteophyte formation. On the right side, there were minimal arthritic changes at the scaphoid-trapezium-trapezoid joint and there was minor osteophyte formation between the bases of the first and second metacarpals indicating minimal osteoarthritis at the basal thumb joint.”[17]
[17]DCB 29
24 Mr Ireland concluded that the plaintiff’s bilateral carpal tunnel syndrome had resolved. He said the prognosis was generally good, as he said there was no evidence of neuropathy involving the median nerve on the recent studies. He said there was no need for further treatment. He said the plaintiff was able to work more hours at her current employment and noted that her current contract restricted the hours she could work.
Conclusions
25 For the defendant, Mr Moulds said there were two significant credit issues confronting the plaintiff. The first was her failure to disclose symptoms in 2005 and the tests which were undertaken, and the second was that she had failed in her affidavits to disclose her employment at Subway and the nursing home for approximately a year in 2010. In relation to the latter issue, I am satisfied the plaintiff was not actively concealing that employment as it is referred to in the histories taken by a number of doctors. As stated, I was unimpressed with her evidence in relation to her prior problems. I am satisfied she did suffer symptoms of carpal tunnel which required investigation in 2005 and that she has intentionally failed to disclose those.
26 Mr Moulds submitted that the reports of Mr Williams after the surgery led to the conclusion that despite the complaints of the plaintiff, there was little in the way of carpal tunnel symptoms in the right hand, and none in the left. Further, of more recent times there had been few complaints to the plaintiff’s treating general practitioners since 2011, despite regularly attending for unrelated issues. Of most significance, according to Mr Moulds, was the final report of Mr Ireland, an acknowledged expert in the area. Relying upon nerve conduction and EMG studies of January 2013, he concluded that there was no work-related carpal tunnel syndrome in either wrist and that the plaintiff was suffering from mild constitutional symptoms of arthritis. That opinion, he said, fitted well with the opinions of Mr Williams and the lack of complaint of recent times. If there was any component of bilateral carpal tunnel syndrome, he said it was mild and not sufficient to reach the “very considerable” level.
27 On behalf of the plaintiff, Mr Purcell submitted that essentially the plaintiff was an honest witness doing her best to answer questions responsively. He said that she failed to mention the symptoms in 2005 because she thought she was referred for problems with her feet. He noted that Dr Neville, the treating general practitioner, and Mr Williams, the surgeon, accepted the plaintiff suffered from symptoms of carpal tunnel syndrome and that those symptoms had waxed and waned over the years. He referred to the evidence of the plaintiff in evidence-in-chief where she said that she suffered numbness in all of the fingers of both hands, and to the front and back of the hands. The pain was not confined to the area of the thumb. He said these complaints of pain by the plaintiff were not significantly challenged in cross-examination.
28 He submitted that the opinions of Dr Neville, Mr Williams and Mr Stapleton all accepted the plaintiff suffered carpal tunnel syndrome and that, in particular, Mr Stapleton made an assessment upon clinical examination. Such was the disability created by the symptoms, that the plaintiff was required to wear splints on a fairly constant basis. Mr Purcell said the plaintiff was a stoic person, not given to complaining regularly to doctors, and determined to remain at work despite significant difficulties.
29 Aside from the splints, the problems in the plaintiff’s wrists required medication, particularly Celebrex, and physiotherapy. The plaintiff has been recommended treatment by a hand therapist, but has been unable to afford the same.
30 I had the opportunity to assess the plaintiff in the course of her cross-examination. Generally, she was responsive to the questions put and I am satisfied made a reasonable attempt to give accurate answers. I was unimpressed with her attempt to conceal the earlier symptoms and investigations. To some extent, the plaintiff’s credibility is affected.
31 A significant aspect of the application is whether to accept the opinion on the one hand of some of the plaintiff’s treating doctors and the consultant, Mr Stapleton, or on the other hand, the opinions of Dr Karna, but more significantly, that of Mr Ireland. I accept both Messrs Stapleton and Ireland are experts in the area and well qualified to give expert opinion. Mr Stapleton has no doubt the plaintiff suffers bilateral carpal tunnel syndrome despite the recent EMG and nerve conduction studies. Mr Ireland, on the other hand, says that the plaintiff no longer suffers carpal tunnel but rather has symptoms of mild osteoarthritis in the hands and thumbs and that this is the source of her complaints.
32 It is never easy to determine which of the expert opinions to accept without either doctor being called to be cross-examined. A determination has to be made upon the strength of the medical reports.
33 On balance, I prefer the opinion of Mr Ireland. His report after the recent EMG and nerve conduction studies is extensive. While in his first report, he found some clinical tests were positive for carpal tunnel, he was persuaded by the recent radiology that there is no carpal tunnel syndrome. That opinion is consistent with the failure of the surgery undertaken by Mr Williams and further consistent with Mr Williams’ reports over 2008 and 2009 that the plaintiff had minimal symptoms in her left wrist, insufficient to warrant surgical intervention. Further, since 2011, the plaintiff has made few complaints to her treating general practitioners of problems in the wrists.
34 I accept the plaintiff does have continuing symptoms in both hands, but they are more related to the underlying osteoarthritic condition, which is constitutional in nature and not work related, than to any carpal tunnel problem. If the plaintiff does suffer carpal tunnel syndrome in either wrist, I am of the view the symptoms are modest and not sufficient to achieve the “very considerable” level as the legislation requires.
35 Accordingly, the plaintiff’s application fails.
36 I shall make consequent orders.
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