Naik v Victorian WorkCover Authority
[2018] VCC 117
•22 February 2018
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-01649
| STACEY ANN NAIK | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 9 February 2018 | |
DATE OF JUDGMENT: | 22 February 2018 | |
CASE MAY BE CITED AS: | Naik v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 117 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – impairment of right upper extremity – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Transport Accident Corporation & Anor v Dennis [1998] 1 VR 702; Sumbul v Melbourne All Toya Wreckers Pty [2006] VSCA 292; Sabo v George Weston Foods [2009] VSCA 242; Richards v Wylie (2001) 1 VR 79
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Purcell SC with Mr S Jurica | Slater and Gordon Lawyers |
| For the Defendant | Mr W R Middleton QC with Ms F Spencer | IDP 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 her employment with Scott Petroleum (“the employer”) in 2012 (“the said period”).
2 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 injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
3 The body function relied upon in this case is the right upper extremity, involving the right forearm and index finger.
4 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.
5 The impairment of the body function must be permanent.
6 The plaintiff bears an overall burden of proof upon the balance of probabilities.
7 By s134AB(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”.
8 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.
9 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
10 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.
[1] (2005) 14 VR 622
[2] (2006) 14 VR 602
11 The plaintiff relied upon two affidavits and gave viva voce evidence. She also relied on an affidavit sworn by her husband, Nirav Kumar, on 18 January 2018. In addition, the parties relied on medical reports and other material tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
12 The plaintiff is presently aged thirty-four, having been born in July 1983. She is married, with two young children. She is right-handed.
13 Having completed Year 12, the plaintiff obtained a number of qualifications, principally in business administration, and also a Diploma in Floristry.
14 Since leaving school, the plaintiff has worked for various employers, generally in administration-type roles. She started work with the employer in about May 2011 as a full-time administration assistant.
15 The plaintiff’s work with the employer was very busy and quite physically demanding, and she was required to repetitively perform high-volume tasks in short timeframes, relying heavily upon her right hand and arm. One such task was the completion of payrolls for the two hundred employees every Tuesday. The job involved repetitive printing, cutting with a heavy, old guillotine, folding, stapling, putting payslips into envelopes, stamps onto envelopes, and then also doing data entry.[3]
[3]Transcript (“T”)10
16 The plaintiff started to experience pain over time, which led her to see a doctor and report her injury in January 2012 and lodge a claim in April that year.
17 The plaintiff initially consulted her general practitioner, Dr McCallum, and is now under the care of Dr Peddi at Tristar Medical Group.
18 The plaintiff has had hand therapy with Laura Shorney, occupational therapist, since April 2012 on a continuing basis every three or so weeks.
19 The plaintiff had a cortisone injection in the top of her right wrist on 29 May 2012. That injection, organised by Dr McCallum, gave her slight improvement.[4]
[4]T11
20 The plaintiff was referred to an orthopaedic surgeon, Mr Csongvay, who recommended conservative treatment following examinations in 2012 and 2013.
Work post injury
21 After the cortisone injection in April 2012, the plaintiff had roughly a month off work. She then returned to work in August or the end of July 2012 and continued to perform modified full-time duties until 30 May 2014, when she changed jobs and went to Cervus Equipment.[5]
[5]T15
22 The plaintiff disagreed that the modified duties she performed on her return to work were basically her pre-injury duties. When it was suggested there had just been a little of “tweaking” of her duties, the plaintiff described her duties as “similar”.[6]
[6]T17
23 The plaintiff was doing payrolls, answering the telephone, doing data processing and computer work. She was given less data entry and more time to do it so she could take more breaks. The employer provided a machine that took away most of the manual work the plaintiff had been required to carry out when doing the pays.[7]
[7]T16
24 The plaintiff was struggling with the modified duties after her injury on her return to work; however, she needed the money and wanted to stay actively employed, as she was young and had her future ahead. She could not sit at home and not keep active.[8]
[8]T37
25 The plaintiff left the employer at the end of May 2014 as it was being taken over by Caltex and she was not going to have a job. If her job had remained, she would have stayed there.[9]
[9]T17
26 In September 2016, the plaintiff commenced work with Omni Health Care (“Omni”).
27 As of November 2016, the plaintiff sometimes had flare-ups which required her to take a day off work to rest her hand to enable her to continue at work. She tried to avoid taking sick days, but some days attending work just did not feel possible. She also generally found that her injury flared up with prolonged periods of typing and computer work generally. Her concentration seemed to affected a bit when she experienced pain in her finger at work.
28 Omni is aware of the plaintiff’s injury and makes some allowances for her. Someone else handwrites the minutes of the monthly meetings because of the plaintiff’s problems with prolonged writing. The plaintiff is also allowed to have extra breaks. If this was not the case, she would not be able to do her job effectively. She has probably taken about two or three days off work at Omni because of her injury. She had one day off for a flare up and the other two days for doctors’ appointments.[10]
[10]T38
29 The plaintiff intends to return to work towards the end of March following maternity leave. Her job at Omni is administration and payroll, so similar but not identical to her work with the employer. She works from 9.00am until 5.15pm Monday to Friday. She agreed it is an administrative clerical, two-handed vocation.[11]
[11]T17
30 The plaintiff agreed that when she stopped work for maternity leave last year, she was coping with her job, and anticipates going back after her leave finishes.[12]
[12]T32
Current treatment
31 The plaintiff continues to see Ms Shorney every three weeks. Hand therapy consists of massage and ultrasound. Ms Shorney wants the plaintiff to get an ultrasound at home so she can self manage a bit better.[13] The treatment gives the plaintiff flexibility and reduces pain, swelling and discolouration.
[13]T33
32 By the end of the three-week period, the plaintiff’s symptoms are painful, and there is swelling and visible discolouration. It hurts to move her finger and it constantly throbs.
33 The plaintiff’s finger was very painful whilst giving evidence because she had missed her three-weekly appointment because of the Court case. The throbbing, constant pain, was partly in her hand and in the index finger, and into the knuckle, “sort of drawing a line back to the wrist”.[14]
[14]T34
34 In the witness box, the plaintiff turned the pages of the Court Book with her left hand, saying she would struggle if she used her right hand.[15]
[15]T18
35 When her pain is this bad, the plaintiff puts her hand under hot or cold water and uses a heat pack. [16]
[16]T35
36 Every day, the plaintiff does regular hand exercises at home which Ms Shorney has shown her. These involve mirror imaging, massage and weight exercises to get the strength back, as well as flexion and pushing her hand to the extremities. No other treatment has been suggested.[17]
[17]T37
37 The plaintiff takes about one or two Panadol a day, depending on her level of pain. Whilst she was pregnant, and now that she is breastfeeding, the plaintiff avoids using Voltaren Gel on her right hand, on medical advice.
Pain
38 In her first affidavit sworn in November 2016, the plaintiff described ongoing pain and discomfort in the right hand, particularly around her right index finger. She also had swelling and discolouration in her hand. The pain was constant; however, it increased with activity, and her hand was always very stiff and sore.
39 The pain remains roughly the same. The worst pain now is in the right index finger. It is a constant, throbbing, aching pain, and there is tightness nearly all the time in that finger. The pain now runs from the wrist to most of the index finger.[18]
[18]T9
40 Over the last four or five years, this pain has been constant, with some days better than others. The plaintiff’s condition has fluctuated since April 2013.[19] If she does any hard work or lifting or gripping, it will flare up. To try and avoid that, she tries to use her left hand or asks someone else to do things for her.[20]
[19]T33
[20]T35
41 In cross-examination, the plaintiff indicated the initial site of pain was the area running from the right elbow down to her wrist on the thumb side. She agreed, as Mr Csongvay and Ms Shorney reported, that the pain in her forearm has now gone “within reason”. It now flares up occasionally but she could not say with what frequency.[21]
[21]T26
42 The plaintiff generally feels weak in her finger and right hand, and usually her finger feels stiff. She agreed that in July 2012, her right grip strength had returned to normal but it had deteriorated since, due to her work duties.[22]
[22]T14
43 Often the plaintiff has discolouration in the finger and it is a purple kind of colour, which also often comes with swelling. She now feels the extreme in temperatures in her right index finger in hot or cold weather, and the symptoms in the right hand become worse when she uses her hand.
44 The plaintiff denied that when she saw Mr Ireland in August 2017, that there was no swelling or deformity as he reported.[23] She disagreed there was no obvious swelling of the right compared to the left hand and that there was no temperature or colour difference between her two hands.[24]
[23]T28
[24]T29
45 During the examination, Mr Ireland sat one side of his desk and the plaintiff sat on the other. He never actually touched her.[25] She could not remember him asking her to move her fingers, wrists and elbows, but knew positively he did not put his hand on hers to test the range of movement.[26]
[25]T29
[26]T30
46 The plaintiff could recall swelling and tenderness on that examination. She had driven to Melbourne, and just before she arrived, her hand swelled up and discoloured and she had pain, so she knew definitely at that appointment she would have had pain and swelling. That is what always happens after she has driven to Melbourne.[27]
[27]T30
Sleep
47 In her first affidavit, the plaintiff described how her hand often throbbed at night, which caused her to wake multiple times during the night. In her most recent affidavit, she described how, pre-injury, her sleep was really good. She now still wakes up a few times at night, often because her right hand is throbbing. That wakes her, and her sleep is broken. She feels a lot more restless in her sleep due to right hand pain.
Activities
48 In her first affidavit, the plaintiff described in detail her ongoing difficulties performing numerous tasks involving the use of her right hand and therefore relying much more heavily on her left.
49 Prior to her injury, the plaintiff considered herself to be a very active and energetic person. Since, she has had to slow down and really consider whether she can actually do a task or not. She finds it incredibly frustrating and feels sad about her various limitations, and she also struggles with her reduced independence, as being independent was important to her.
50 The plaintiff confirmed the restrictions resulting from her hand injury continue. She agreed that it was not that she did not do these various activities, but she had some difficulty doing them, and some were more difficult than others.[28]
[28]T18
51 Carrying shopping bags for any length of time in the plaintiff’s right hand was painful, and she tried to minimise the distance over which she had to walk to carry groceries, and generally, found she had reduced strength in her right hand
52 The plaintiff shops alone at times.[29] She can carry shopping bags in both hands “within limitation”, but would carry the heaviest in her left. She sometimes has pain when carrying a bag in her right hand or when she puts it down later.[30] The more she carries, the greater her pain.[31]
[29]T18
[30]T21
[31]T19
53 As of November 2016, the plaintiff had problems putting on certain clothes, and had particular difficulty doing up buttons, and tried to avoid clothes with a lot of buttons where possible.
54 The plaintiff still has difficulty doing up her shoelaces due to right-hand pain and her difficulty with fine movements. She now generally wears slip-on type shoes which she finds easy to put on. She also finds it hard putting on and taking off her bra, which takes a lot longer to do due to her right hand pain. She struggles with these tasks but she does them when she has to.[32]
[32]T19
55 The plaintiff loved gardening before her injury, and that was part of the reason she did the floristry course.
56 After the injury, the plaintiff has found it very difficult to garden, and she required assistance in this regard. It used to upset her watching someone else do this activity which had previously given her a lot of enjoyment.
57 The family had since moved to a different house, which required less maintenance as a result of the plaintiff’s injury. They even installed synthetic grass so she did not have to mow the lawn.[33] She cannot prune anymore and has not used secateurs since her injury because of the pain.[34]
[33]T19
[34]T20
Children
58 In her first affidavit, the plaintiff described problems caring for her little girl, Ava, which she was worried would increase in the future. The plaintiff found it difficult dressing her and opening certain food packages for her. It was getting harder to lift her and hold her, as she was getting bigger; however, the plaintiff then tried to put more weight in her left hand.
59 The plaintiff continues to have these difficulties, but now also has a baby, Heidi, aged four months. The plaintiff is unable to use a capsule to carry Heidi in and out of the car because of right-hand pain and problems clicking the buttons.
60 The plaintiff has to lift and change the children; it is a necessity.[35]
[35]T36
61 Because of her injury, the plaintiff does not do as much craft with Ava, aged two-and-a-half, as she would like to, and does not tend to teach her things in general like gardening. That upsets the plaintiff because she wanted to share her knowledge of things with her daughter.
62 The plaintiff denied a lot of her social activities had been curtailed by the arrival of her two children. These activities had been affected slightly, but not fully. The plaintiff still engages with family and friends. She denied having children had no impact on her ability to go ten-pin bowling or playing minigolf, and she confirmed she tries to avoid those activities because of her pain.[36]
[36]T25
63 As of November 2016, the plaintiff struggled with repetitive household tasks such as vacuuming, scrubbing and mopping, and she therefore either did that work in small amounts or her husband did it.
64 The plaintiff agreed she effectively runs the house. She vacuums occasionally; however, does not do the scrubbing or mopping, which her husband does. However, she has done these activities “within reason” in the last five years, having done so since Christmas and when she has to.[37]
[37]T22
65 The plaintiff’s husband, who is a chef, does a lot of the cooking now, but did not before. However, the plaintiff can cook. She gets pain chopping vegetables, but has to do it. She puts up with the pain when she has to.[38] She can open jars and bottles, but does so with difficulty.[39]
[38]T23
[39]T23
66 The plaintiff’s husband does the heavier housework now, whereas she did it before her injury.
67 As of November 2016, the plaintiff found that after driving for a long period, her hand started to swell up and became discoloured. She therefore tried to limit long drives, and her husband usually took her on any long trips she needed to do.
68 The plaintiff has driven an automatic car to Melbourne for doctors’ appointments a few times in the last year, but when she and her husband go to Melbourne for social outings, he drives.[40]
[40]T22
69 Prior to her injury, the plaintiff and her husband loved camping, and went about every one or two months, usually for the weekend. She now tried to avoid this activity, as she found it hard setting up and packing up with her right-hand pain.
70 The plaintiff last went camping in the bush about a year ago for one night.[41]
[41]T24
71 Before her injury, the plaintiff went to the gym about three times a week. She also went bike riding, usually every weekend. She now avoided doing these activities due to the pain and loss of strength in her right hand.
72 The plaintiff has not gone to the gym since her injury. She had tried bike riding but had given up.[42] The problem with bike riding is the grip strength, the need to press the brakes and the vibration of the handlebars. It is dangerous for her to ride a bike.[43]
[42]T23
[43]T24
73 Before her injury, once in a while the plaintiff went ten-pin bowling socially and played minigolf; however, since, she has found these activities difficult, and avoids them because of her right hand pain.
74 When it was put to the plaintiff that there were activities mentioned in her husband’s affidavit but not in her affidavits, such as windsurfing and playing outdoor cricket, the plaintiff explained she did not include them “because there is only so much you can put in an affidavit”.[44] She might not have mentioned things because she had not done them for such a long time and did not remember.[45]
[44]T24
[45]T25
75 As of November 2016, the plaintiff found it difficult to hold the scissors to groom her dog and hold her down to wash her, and had to pay someone to do this. She also struggled to take the dog for walks on the leash, and although she used her left hand, the dog often changed direction, which meant the plaintiff invariably needed to change hands.
76 The plaintiff now walks the dog on a lead, but struggles. She does it occasionally, but can do it.[46]
[46]T23
77 The plaintiff now generally finds it harder to do fine motor skills with her right hand, and feels like she has lost her pinch, finer touch, and movements. She now finds it hard to grip things, or carry things with her right hand as she is right handed. She now finds it hard doing the finer things like doing up buttons, and even simple things like taking the plastic seal off a bottle of milk.
78 Now, generally, the plaintiff finds it hard to open doors and do simple things like just pressing a remote on a key or putting coins in a meter box. She generally now tries to use the left hand doing these sort of things.
79 The plaintiff occasionally writes with her right hand and used to write a lot before her injury. Now, when she has to write, she still does so with her right hand.[47]
[47]T18
80 Since her injury, the plaintiff has also found it difficult using a mobile phone, even just holding it and typing on the phone. Now, she tries to use her left hand more, but finds this a bit more awkward.
81 Before her injury, the plaintiff enjoyed doing long-stitch needle work about once every couple of weeks; however, since, she has avoided doing this activity as she just finds it too hard doing the finer things with her right hand and also the pain in her right index finger.
82 As of November 2016, the plaintiff often found it hard to brush and straighten her hair, particularly if it had a lot of knots in it. She usually tried to use the straightener with her left hand; however, that made it very awkward and took a lot longer than it used to.
83 Now, the plaintiff generally showers herself mostly with her left hand, as she finds that easier. She also finds it hard just doing the simple things like using and opening the lids of shampoo and conditioner with the right hand, and she also finds it a bit harder to wipe her bottom after going to the toilet.
Lay evidence
84 The plaintiff’s husband, Nick, swore an affidavit on 18 January 2018. They started going out in September 2010, and married in February 2012.
85 The plaintiff has always been a fit and healthy person during their relationship, apart from a thyroid issue. From the time they met until she suffered her hand injury, they were very active and looking for adventure.
86 Since the injury, the plaintiff has continued to complain of right-hand pain, mostly around the right index finger. He often sees that finger becomes purple and swollen.
87 Nick tries to take the plaintiff to the doctor when he can. She regularly attends the hand therapist and does her exercises at home. He sees her take tablets each day, either Panadol or Nurofen, for hand pain.
88 Pre injury, he and the plaintiff enjoyed camping, riding bikes together, going to the snow a couple of times each winter for a weekend and occasionally going windsurfing. The plaintiff also played outdoor and backyard cricket and they enjoying ten-pin bowling and minigolf about once a month. However, since her injury, the plaintiff did not do many sporting things due to her hand pain.
89 Before her injury, the plaintiff loved gardening, usually every second day, and working around the house often. Before injury, she undertook a floristry course because of her love of flower arranging, and hoped to turn that into a business after completing her diploma.
90 About a year after the plaintiff’s injury, they moved to a house that required little house or yard maintenance because of her hand injury, and they now have synthetic grass that does not need mowing, and a very small garden bed.
91 Before her injury, the plaintiff did a lot of housework. Now, he has to help her, due to her right-hand pain, regularly assisting with cleaning and cooking and small tasks like opening bottles or chopping up ingredients.
92 The plaintiff now wakes most nights due to hand pain or not being able to get comfortable with her hand, and he often sees her hand is swollen in the morning.
93 Before the plaintiff’s injury, they enjoyed doing lots of things together, as they had a lot of common interests, but now he generally does his own thing because she finds it hard doing things with him.
94 Nick sometimes helps the plaintiff dress. She has told him that because of hand pain, she hardly does needlework, painting, or making things that she previously enjoyed.
95 Pre-injury, they used to go to the gym together, usually every second day, but now, the plaintiff does not go because of her hand pain.
96 Nick has observed the plaintiff having difficulty with fine hand movements. She now uses an electric toothbrush with her left hand because of right arm pain.
97 Nick has seen that the plaintiff finds it hard writing or drawing with her right hand, especially when showing their eldest daughter how to draw.
98 Since the plaintiff’s injury, Nick has done most of the shopping, as she has difficulty carrying groceries with her right hand. Before her injury, the plaintiff used to groom the dog, but now gets someone else to do it for her, as she finds the task too difficult because of her hand pain.
99 The plaintiff’s ability to care for their two little girls has been affected by her injury. She struggles to bathe and dress them, and is restricted in her ability to play with them.
100 Since the plaintiff’s injury, his relationship with her has suffered. Before, doing activities together was a major part of their relationship, and that had now been taken away.
The Plaintiff’s medical evidence
Investigations
101 An ultrasound of the plaintiff’s right forearm was carried out at Dr McCallum’s request on 28 May 2012.
102 It was reported there was no ultrasound abnormality at the site of proximal tenderness overlying brachioradialis. There was no established role for autologous blood injection in the treatment of presumed muscle injury and no appointment had been arranged for the intervention at that site.
103 Location of symptoms at the crossover thumb muscles and extensor carpi radialis was consistent with the clinical diagnosis of Intersection Syndrome. Although no ultrasound abnormalities were identified, a trial of ultrasound-directed steroid injection would seem reasonable.
104 This procedure was carried out on 29 May 2012.
105 There was an x-ray of the plaintiff’s cervical spine in July 2013. Thereafter, it was reported the findings were normal appearances with no significant arthropathy, disc space narrowing or plain film evidence to suggest likely neurological compromise. If radiculopathy was suspect, a further MRI was suggested.
106 There was a right-sided nerve conduction study carried out on 7 September 2012. There was no electrophysiological evidence of right Carpal Tunnel Syndrome or of a right ulnar neuropathy at the elbow or wrist.
107 Nerve conduction studies and an EMG were carried out by Associate Professor Kiers on 14 March 2014.
108 There was a normal nerve conduction study of the upper limbs bilaterally. There was no electrophysiological evidence of Carpal Tunnel Syndrome on either side, or of a left ulnar neuropathy at the left elbow. It was noted there had essentially been no change compared with the previous right-sided study performed on 7 September 2012.
Treaters
109 The plaintiff saw Dr McCallum at Sebastopol Family Medical Practice on 16 April 2012. She referred the plaintiff to the surgeon, Mr Csongvay, in July 2012.
110 In that referral letter, Dr McCallum advised that the plaintiff was on WorkCover suffering from extensor tendinitis of the right hand and that in her role as a payroll and administration officer, data entry was a considerable part of her job.
111 The plaintiff had seen hand therapist, Ms Shorney, had a wrist splint and had been given exercises. The steroid injection was of benefit.
112 As of July 2012, a trial of modified duties had failed, so the plaintiff was now on alternative duties to limit repetitive movements.
113 There were a number of reports from Tristar Medical Group in Sebastopol dating from 11 July 2012, the most recent in July 2017. The plaintiff’s current medical practitioner at that clinic is Dr Vani Peddi, who started to see her when Dr McCallum had ceased practise temporarily.
114 In a report of September 2013, Dr Peddi noted that the plaintiff was started on Panadeine Forte to ease the severity of her pain so she could sleep a bit better with less pain.
115 In a report of March 2014, Dr Peddi noted the plaintiff presented that month complaining of pain, and discomfort being severe, more than just a niggle in the left arm, particularly a pins and needle sensation running down to her pinkie and ring fingers on the inside forearm. These symptoms had arisen the previous day while performing data entry at her employment. Dr Peddi thought it reasonable to link these complaints to the plaintiff’s right arm/hand injury.
116 The plaintiff was then still suffering pain/discomfort which had been affecting her sleep. Dr Peddi then organised nerve conduction tests to investigate the plaintiff’s left and right arm symptoms further.
117 In her most recent report, Dr Peddi noted the plaintiff had been diagnosed with Severe Intersection Syndrome and, later, Mild Complex Regional Pain Syndrome (“CRPS”) affecting her right hand and, particularly, her right index finger, having tendonitis.
118 Dr Peddi highly recommended the plaintiff continue with weekly hand therapy which was keeping her pain at a tolerable level and reducing the symptoms she experienced when she did not have frequent sessions.
119 As per the Medical Panel’s decision, and Dr Peddi’s experience with CRPS Syndrome, Dr Peddi thought patients like the plaintiff never fully recover from this injury, noting she had adjusted her life considerably to this impairment and therefore, became frustrated at times when she could not perform tasks that others could easily. However, the plaintiff was determined to move forward with her life and not let her long-term injury affect her future, but it would always be there.
120 In terms of work in the future, Dr Peddi thought the plaintiff had a life of potential with her work having different options available to her in the future. However, they were now limited. She thought the plaintiff appeared to be coping appropriately with her current work environment being non-repetitive, and her mood had also increased, with her work being less stressful, both mentally and physically, therefore helping her injury each day.
121 Dr Peddi thought the plaintiff seemed to, since the initial injury, have less strength in her dominant right hand compared to the left, which still remained. This, itself, could make a significant difference in anyone’s daily living and mindset.
122 Dr Peddi thought the plaintiff presented as a patient who was determined to continue trying her best in any workplace with the knowledge and skillset she had to make a living for herself and family, all while accepting her restrictions and injury, which she will carry a requirement for the rest of her life. Dr Peddi believed the plaintiff was prepared to, and open to, adjusting to life within injury to her right hand/index finger.
123 Ms Laura Shorney, physiotherapist, at Newington, has seen the plaintiff since 2012 and has reported on numerous occasions thereafter. The initial referral was by Dr McCallum for an overuse problem in the right hand which was related to work with the employer.
124 Ms Shorney carried out testing of the plaintiff’s grip strength over the time she has treated her. In September 2012, it was 23 kilograms on the right and 25 kilograms on the left. Right grip strength significantly decreased the following month. It was fairly good at 20 kilograms the next month and 18 kilograms in March 2013, when the left was 24 kilograms. The following month, it was 17 to 18 kilograms on the right.
125 In August 2013, Ms Shorney thought there were indicators the plaintiff’s pain was caused by CRPS, noting Mr Csongvay had recently diagnosed that condition.
126 As of November 2016, Ms Shorney thought most of the plaintiff’s problems had now resolved. The problem that could flare up with some activities was the tendinitis in the index finger extensors, but she noted that had improved considerably since the plaintiff had changed jobs.
127 In that report, Ms Shorney also noted the plaintiff had had a few overuse tendon muscle problems in her right wrist, hand and arm, which had included Intersection Syndrome, EIP-EDC to the index finger tendinitis and ECR tendinitis.
128 Further, Ms Shorney noted the plaintiff had demonstrated stress in the past when an employer was less than understanding about her condition and pushed her to do things she could not, and should not, do. There was also some anxiety when she was pregnant worrying about how she would cope looking after her baby.
129 In her 23 May 2017 report, Ms Shorney advised she had continued to see the plaintiff every three weeks for treatment to her right index finger.
130 Ms Shorney noted the original diagnosis was tendinitis of the long finger extensor tendon and Intersection Syndrome. As this settled, the plaintiff was left with a localised Mild CRPS in the index finger.
131 Ms Shorney advised, while the plaintiff was somewhat better, she still suffered from flare-ups of symptoms which include swelling, discolouration and soreness.
132 Having missed a treatment a few months ago, the plaintiff found her finger flared up at the time. When next seen, there was some crepitus with movement of the finger and increased discolouration and soreness. Hand strength was about the same, with grip on the right at 15 kilograms, compared to the left at 24 kilograms.
133 In her most recent report of January 2018, Ms Shorney again stated most of the plaintiff’s problems had now resolved. The problem that still flares up regularly is the tendonitis to the extensor tendons of the index finger. This has improved since the plaintiff changed jobs, but still bothers her. She has some pain-related activities, both at work and at home. She avoids heavier work and has difficulty with some motor tasks, and pain with activities as simple as brushing her hair.
134 Ms Shorney thought because of the CRPS component of the plaintiff’s problem, and the fact that it has been so persistent, that the injury would be present for the foreseeable future, and that the plaintiff will most likely always need to be aware of it and mindful of the activities that she does now and how she uses her hand.
135 Ms Shorney advised that the component of treatment that helps the plaintiff that she currently cannot do as part of her home program is ultrasound. Ms Shorney advised that they were trying to get an ultrasound machine funded by CGU so that the plaintiff could do that at home independently and be discharged from hand therapy.
136 The plaintiff was referred to orthopaedic surgeon, Mr Csongvay, by Ms Shorney in September 2012.
137 Mr Csongvay wrote to Ms Shorney in September 2012. He advised he thought the plaintiff started off with Severe Intersection Syndrome in the right forearm, and noted it, fortunately, now responded to steroid treatment and hand therapy.
138 On initial examination, Mr Csongvay found the plaintiff had near full range of active motion in the right wrist and did not have any swelling.
139 Mr Csongvay believed the plaintiff was making an excellent recovery from the soft tissue injury to her right forearm and wrist, but still required ongoing therapy. He thought with this type of inflammatory soft tissue condition, she may take up to a year to fully recover and he recommended that considering she was making good progress, and she had appropriate modifications at work, the plaintiff could continue on modified duties until she had full resolution of her symptoms, which may take a further two to three months.
140 Mr Csongvay reviewed the plaintiff in April 2013, at which time she had noticed significant improvement in her forearm discomfort, but continued to have irritability, particularly involving her right index finger. The plaintiff felt, at times, the finger went blotchy and swelled, particularly after repetitive exercise.
141 On examination that day, the plaintiff had some mild swelling of the whole right index finger, but she did not have any discolouration. She had some restriction flexing the finger.
142 At that stage, Mr Csongvay considered there was a possibility the plaintiff had a Mild CRPS affecting her right hand and, in particular, the right index finger. He thought she required hand therapy support and needed to focus on strengthening her right hand.
143 Mr Csongvay believed it would be important for the plaintiff to avoid repetitive pinching and grasping activities involving the right hand and, in particular, the right index finger, to avoid further aggravation of symptoms. He did not believe there was any specific treatment and there was no specific test to make a clear diagnosis of the condition.
144 In January 2014, the Medical Panel, comprising Associate Professor Romas, rheumatologist, and Mr Miron Goldwasser, orthopaedic surgeon, were asked to decide what was the plaintiff’s degree of permanent impairment resulting from the accepted injuries.
145 The Panel found the plaintiff had a 12 per cent whole person impairment resulting from the accepted right lower arm, right wrist and right index finger injury.
146 In the Reasons for Opinion, the Panel noted it was accepted the plaintiff had suffered an injury to her right lower arm, right wrist, right hand and right index finger, with a designated injury date of 3 April 2012.[48]
[48]Whilst the Reasons were tendered, they were not referred to in addresses. They were commented upon by Dr Kostos in his most recent report.
Medico-legal evidence
147 Dr Peter Blombery, vascular surgeon, examined the plaintiff on 17 November 2016.
148 The plaintiff then complained of ongoing pain in the right hand and right index finger, which she rated as 3 to 4 out of 10. Sometimes she had pain in the forearm, but not as much as previously. She advised the right hand became hot and cold, swelled and went purple, but there was no excessive sweating. The pain could be 6 out of 10 in winter. She no longer developed numbness and paraesthesia in that area. She was occasionally kept away from sleep if the pain was severe. She had also become somewhat depressed by her limitations, and gained 20 kilograms or more.
149 The plaintiff advised Dr Blombery her medications included Panadol, two or three per day, occasionally Voltaren tablets or gel, and medication for an underactive thyroid gland.
150 The plaintiff told Dr Blombery she left the employer in May 2014. The following months, she began work with Cervus Equipment doing human resources and payroll, a job that was a lot easier, and she was working full time.
151 In September 2016, the plaintiff obtained a job with a healthcare group doing payroll and administration and, again, she was able to cope with that reasonably. She was off work from May 2015 to January 2016, when she had a child, but continued in that employ.
152 The plaintiff described difficulty cutting vegetables, and her husband had to do a lot of the heavier housework. She could not garden. She had difficulty wearing certain clothes. She could not carry her baby for excessive periods of time, and found it difficult to lift groceries, brush her hair, and drive long distances. She went shopping with her husband unless she was buying only a small number of items. She could no longer walk the dog. She could no longer cycle, camp or go to the gym.
153 On examination, in the right arm there was only minimal tenderness over the radial side of the proximal forearm. There was no difference in temperature or colour between the arms. There was some limitation of flexion of the right index finger. The plaintiff could almost fully extend the finger, with all joints being about five degrees less than full extension. There was a full range of movement of all other fingers and of the wrist, and there was no wasting of the forearm.
154 Dr Blombery noted the plaintiff’s increasing pain in her forearm with a lot of heavy and repetitive use of her arms in data entry. There was a diagnosis of intersection syndrome, which is thought to be caused by inflammation where the muscle bellies of the extensor pollicis brevis and abductor pollicis longus cross the tendons of the extensor pollicis brevis and the abductor pollicis longus, resulting in pain and swelling in the distal dorsal radial forearm.
155 Treatment is with hand therapy, as well as the use of a splint, anti-inflammatories, steroid injection, and sometimes surgery. Dr Blombery noted the plaintiff’s symptoms seemed to improve with treatment, but she was left with ongoing discomfort, particularly in the right index finger.
156 Further, the plaintiff also noted changes in temperature and colour of the finger that was also seen by her surgeon. This combination of repetitive ongoing pain, together with autonomic disturbance, in Dr Blombery’s view, was diagnostic of CRPS Type 1, previously known as sympathetic dystrophy.
157 There were no changes in temperature or colour when Dr Blombery examined the plaintiff, and therefore she filled only the basic criteria of the International Association for the Study of Pain for the diagnosis of CRPS Type 1.
158 Dr Blombery considered the plaintiff’s symptoms were under reasonable control and she should continue medication and certainly avoid any job which involved heavy and repetitive use of the wrist and forearm in the future. He thought she was coping with her current work activities reasonably without excessive pain.
159 Dr Blombery diagnosed intersection syndrome of the right forearm, complicated by CRPS Type 1, a condition which had stabilised.
160 Dr Blombery thought the plaintiff would be restricted in all terms of activities requiring the use of her arm such as pushing, pulling, and lifting. Her prognosis for recovery was relatively poor, and she was going to remain at her current level of disability into the future.
161 Dr Blombery re‑examined the plaintiff on 30 November 2017, at which time she advised her symptoms were unchanged.
162 The plaintiff was then on maternity leave. She was having continuing difficulty with household and recreational activities, and remained on Panadol.
163 The plaintiff complained of pain in the right hand, radiating into the index finger, which was constant and worse with use. There was swelling in the index finger, and discolouration to purple. She rated the pain overall as 5 out of 10, and was occasionally kept awake from sleep by pain. There were no temperature changes, and there was not very much excessive sweating in the hand. There was no numbness and there was no significant pain in the forearm now.
164 On examination, there was no difference in temperature or colour between the two index fingers, but some limitation of movement of the right index finger.
165 Dr Blombery thought the plaintiff continued to have features of mild CRPS affecting the right index finger, and fulfilled the basic criteria for that diagnosis. He confirmed his views as to further treatment and prognosis, and the fact that all the plaintiff’s current disability was a consequence of the development of intersection syndrome, consistent with the heavy work she was doing with the employer, and complicated by CRPS Type 1 affecting primarily the index finger.
166 Dr Blombery thought it was likely the plaintiff would be able to do her pre-injury duties on a part-time basis, or duties involving less repetitive use of the arm on a more full-time basis. He thought she had significant pain and suffering as a consequence of the injury, and that her current treatment was sufficient.
167 Dr Richard Sullivan, pain specialist, examined the plaintiff in June 2017.
168 On examination, the plaintiff reported her current pain levels as 4 out of 10. Dr Sullivan noted obvious discolouration of the right hand compared to the left. The plaintiff had reduced grip strength in the right hand, and she had a reduced range of phalangeal and metacarpophalangeal extension of the second digit, and limitations in terms of the range of flexion and abduction of the first digit of the right hand. There was no obvious sensory loss, and no cutaneous hypersensitivity.
169 Dr Sullivan thought the plaintiff suffers a chronic pain condition affecting her right upper limb, specifically in the right hand. That occurred during the course of work with the employer. He noted she had been previously diagnosed with a soft tissue injury of the right upper limb. He expected that would have largely resolved, but she has a persisting and aggravatable chronic pain problem of the right hand.
170 Dr Sullivan thought that the plaintiff does not meet the full diagnostic criteria as per the International Association for the Study of Pain for the diagnosis of CRPS, but she certainly appears to have symptomatology consistent with CRPS Type 1, and he considered she would be on the spectrum, though, as stated, fell short of a full diagnostic criteria.
171 Dr Sullivan believed the plaintiff’s chronic pain condition had stabilised. It could be aggravated through overuse, though once rested, the pain-flare settles spontaneously. Ongoing treatment from a physiotherapist and use of analgesic medication was required.
172 Dr Sullivan thought, as consequence of the injury, the plaintiff was precluded or restricted in activities involving repetitive pushing, pulling, lifting, and overhead activities if they involved repetitive use of her right upper limb.
173 The plaintiff reported she was unable to perform activities such as gardening and repetitive heavy housework, and activities requiring fine dexterity skills in dressing. Dr Sullivan thought the plaintiff was also unlikely to be able to undertake recreational activity that would require strenuous or repetitive use of her right upper limb.
174 Dr Sullivan commented, to be fair, right at this point in time, the amount of pain and suffering, as long as the plaintiff is not expected to exceed her functional capacity, is fairly low.
175 On balance, Dr Sullivan would say there is modest to moderate increased risk of the plaintiff developing long-term degenerative pathology in the joints of her upper limb.
176 Dr Sullivan provided a supplementary report, having been forwarded Mr Ireland’s report of 1 August 2017.
177 Dr Sullivan confirmed the plaintiff’s symptoms reported acceptably meet the accepted International Association for the study of pain definition for CRPS in terms of pseudomotor and sensory changes, as well as movement dystonia and oedema. However, on examination missed out by one clinical sign out of three.
178 As such, Mr Ireland’s report in no way changed Dr Sullivan’s opinion. He believed the plaintiff had a chronic pain condition which was a regional pain problem leading directly to the reported injury. It does not meet the full diagnostic criteria, as the plaintiff did not have obvious swelling, sweating, change in hair or nail growth, or cutaneous hypersensitivity. She did, however, have positive signs, insofar as there was obvious discolouration of the right hand compared to the left, and there was reduced motor function in terms of reduced grip strength. There was also a reduced range of movement of the phalangeal and metacarpophalangeal joints on the right compared to the left. As such, he would describe her as borderline in terms of the diagnosis of CRPS Type 1.
The Defendant’s medical evidence
179 The plaintiff was examined by rheumatologist, Dr Tony Kostos, three times, initially in July 2012 and most recently in May 2014.
180 On the last examination, Dr Kostos could not find any abnormalities in relation to the plaintiff’s right index finger. Neurologically, she had some slight weakness of the intrinsic muscle strength on the left, and decreased pinprick sensation over the ulnar nerve innervated areas of the left hand. There was no evidence of intersection syndrome on either forearm; a full range of pain-free elbow movement, and no localising abnormalities, apart from weakly positive Tinel’s test over both ulnar nerves, left greater than right.
181 Dr Kostos reported that on both previous occasions he had seen the plaintiff, he had noted that she had been diagnosed and treated for intersection syndrome of the right forearm that had resolved. The plaintiff had since then presented with a Medical Panel Opinion that she had ongoing intersection syndrome on either forearm also her right index finger, although not giving any specific details of that condition.
182 Dr Kostos found the Panel’s Opinion difficult to understand, because he had seen the plaintiff twice without any evidence of intersection syndrome, and Dr Karna also did not note it; therefore, the plaintiff had not had intersection syndrome in July 2012, March 2013, September 2013 and May 2014, yet the Panel found it in December 2013, and he could not understand how this could be the case.
183 It appeared to Dr Kostos the symptoms the plaintiff developed in the left hand related to ulnar nerve irritability, despite nerve conduction studies being normal, although that was a well-recognised situation.
184 On the basis of information provided to him on the last examination, Dr Kostos could only assume that the left ulnar nerve neuropathy had resulted from the plaintiff’s sleeping position at night, with her left elbow bent. He did not know of any duties involving leaning on her left elbow or pressure on her left elbow at the workstation; therefore, he did not believe those symptoms could be materially contributed to by the plaintiff’s employment. The only treatment for that condition was being asked to avoid moving her elbow at night.
185 Dr Kostos did not understand what physiotherapy to the plaintiff’s right side was actually doing, and he was not sure it was providing any ongoing benefit, and it could be phased out over the next three weeks.
186 In terms of the future, Dr Kostos thought it advisable for the plaintiff to intersperse data entry duties with other duties so she is not on a keyboard all day, noting that conditions such as intersection syndrome are notorious for recurring.
187 Dr Neil Berry, senior consultant surgeon, examined the plaintiff on 9 July 2015.
188 The plaintiff then felt her symptoms had improved slightly since she was not doing as much fast and repetitive work; however, she still needed hand therapy about every three weeks. The pain affected the dorsum of the right index finger and extended up the dorsum of the hands, and at times, when severe, into the forearm. When the pain was severe she said her finger was swollen and discoloured.
189 On examination, there was normal shoulder and elbow function. Examination of the wrist and hand revealed there was subtle discolouration of the dorsum of the index finger and the back of the hand in line with the extensor tendon to that finger. There was no swelling and no deformity. There was a full range of wrist movement. There was normal movement of the thumb, middle, ring, and little fingers, and some limitation of movement to the last 10 degrees of extension at the metacarpophalangeal joint, and the plaintiff lacked the last 10 degrees of flexion at the interphalangeal joints and metacarpophalangeal joints when making a fist. There was no sensory deficit, no temperature changes, and no other abnormality.
190 Dr Berry thought the plaintiff presented with a strange variation on what could only be described as an overuse syndrome. It had been described as an intersection syndrome; however, that affected the radial surface of the wrist, whereas De Quervain’s affected the extensors of the thumb. In this case, the plaintiff in fact has problems relating to the dorsum of the index finger and the extensor tendon to that finger, although there is no obvious involvement of the extensor muscles in the forearm.
191 Given the changes in colour and the episodic swelling, Dr Berry thought it more reasonable than not to assume the plaintiff had developed a very localised CRPS. He thought she should be reviewed by a hand surgeon and should be considered for pain management. Dr Berry considered if hand therapy was ceased, the plaintiff would be in great difficulty and she therefore cannot be discharged to self-management.
192 Dr Berry thought the injury had never settled from its onset, and therefore the work-related component cannot be considered to have settled, and is a continuing overuse problem.
193 Mr Damian Ireland, hand surgeon, examined the plaintiff on 26 July 2017.
194 The plaintiff then complained of constant pain in the right hand, which she located diffusely around the second ray extending from the middle of the second metacarpal dorsally to include the metacarpophalangeal joint and the base of the index finger.
195 The plaintiff rated her pain at the time of interview at 4 out of 10, claiming it was only 2 before she drove from Ballarat that day. She stated the same area swelled and turned purple/red approximately once a month, and those findings continued until she had hand therapy, which settled the swelling, discolouration and pain.
196 The plaintiff reported the symptoms between flare-ups were apparently minimal. She also complained of diminished grip strength due to pain to the index finger. She no longer had any pain in the elbow or over the intersection area just proximal to the radial side of the wrist.
197 The plaintiff advised she attended to all normal activities of daily living but had difficulty with household chores and some elements of dressing. She was not able to do gardening, and she drove her automatic without apparent difficulty.
198 On examination of the right upper limb, there was no obvious swelling or deformity. There was no obvious swelling compared with the left hand. There was no temperature or colour difference between the two hands, and no difference between nail and hair growth in comparing the two hands. There was generalised tenderness around the second ray on the dorsal aspect of the second metacarpal extending to the proximal phalanx of the index finger on the radial side.
199 Active flexion and extension of the index finger was limited by pain; however, passive movement of each joint individually was complete and was pain free. With passive pain-free movement, Mr Ireland was able to test the collateral ligaments of the metacarpophalangeal joint and the proximal interphalangeal joint, and these were normal.
200 There was no swelling or tenderness over the first dorsal extensor compartment tendons. There was no crepitus, swelling or tenderness over the intersection area. The sensory branch of the radial nerve was non-tender on the radial side of the distal forearm, and percussion of the nerve did not elicit a Tinel’s sign.
201 There was a full range of pain-free motion of the right elbow. In the palm of the hand, the provocative tests for carpal tunnel syndrome were negative, and there was no evidence of flexor tenosynovitis or basal thumb-joint pathology.
202 Mr Ireland was currently unable to make a diagnosis of any significant physical problem affecting the plaintiff’s right upper extremity. She may indeed have had intersection syndrome initially, based on the hand therapist’s observations; however, that had not been verified by any of the many physicians she had seen.
203 Apart from diffuse nondescript pain, Mr Ireland thought there was no subjective evidence currently of a CRPS, and there was certainly no objective evidence on physical examination, although he conceded a mild degree of CRPS in late 2012 and early 2013.
204 Mr Ireland noted all imaging tests and EMG and nerve-conduction tests to date had failed to show any abnormalities. In the absence of a physical diagnosis, he was not able to accurately prognosticate, and did not believe the plaintiff required any further treatment.
205 Mr Ireland commented that the plaintiff appeared completely genuine and there was no evidence of functional overlay. He was not able to offer a satisfactory explanation, however, for the discrepancy between the severity of the subjective symptoms and the absence of corresponding objective physical symptoms.
Overview
206 There is no dispute the plaintiff suffered a compensable injury as a consequence of her work duties with the employer in 2012. Her claim for weekly payments was accepted and hand therapy continues to be funded by the defendant.[49]
[49]T4
207 However, as counsel for the plaintiff indicated in opening, the issue seems to be what is the nature of the plaintiff’s present condition and the extent of the consequences thereof, not that there was no intersection syndrome suffered in the first place.[50]
[50]T3
208 I accept the general tenor of the medical evidence currently is that the intersection syndrome has resolved.[51] However, there is an issue as to whether the plaintiff suffers any, and if so what, continuing right hand/finger problem as a result of her work duties.
[51]T7
209 Counsel for the plaintiff submitted the initial diagnosis was an intersection syndrome complicated by the subsequent development of CRPS – with the features thereof rather than a full-blown syndrome.[52]
[52]T2
210 Counsel for the defendant submitted, at best, those practitioners who diagnose CRPS describe it as mild. Further, there was difficulty identifying an injury – the first requirement specified by the Court in Richards v Wylie.[53]
[53](2001) 1 VR 79; T46
211 In this regard, counsel for the defendant emphasised the change in the location of the plaintiff’s pain, initially in her right forearm, and now into her right index finger, where it was submitted there are now no obvious symptoms.[54]
[54]T39
212 Whilst counsel for the defendant submitted no one had really addressed this change in the plaintiff’s symptoms, no medical practitioner has suggested that the plaintiff’s present finger problem could not have followed the intersection syndrome.[55]
[55]T39
213 Counsel for the plaintiff submitted, save for perhaps Mr Ireland, it was not controversial that the intersection syndrome went on to become either a full-blown CPRS or an organic condition with many signs of it, if not totally fulfilling that diagnostic criteria. It was quite clear that condition had waxed and waned over time. For example grip strength had been better at some times than others.[56]
[56]T45
214 In support of the diagnosis of CRPS, counsel for the plaintiff relied on the findings of a number of examiners.
215 In April 2013, surgeon, Mr Csongvay, found swelling and some restriction of finger movement, and considered there was a possibility the plaintiff had a mild CRPS.
216 In July 2015, Dr Berry found subtle discolouration of the index finger when he saw the plaintiff. Given the change in colour and the episodic swelling, he thought she was developing a very localised CRPS affecting her right hand, particularly the right index finger, and thought she should be reviewed by a hand surgeon and possibly have pain management.[57]
[57]T47
217 In her 2017 report, Ms Shorney confirmed the plaintiff suffered ongoing flare-ups which included swelling, discolouration and soreness, and diagnosed a localised mild CRPS in the index finger, a diagnosis she confirmed in January this year.
218 In June 2017, Dr Sullivan found obvious discolouration, reduced motor function in terms of grip strength, reduced movement of right finger, and described it as borderline CRPS. He confirmed this opinion, having been provided with Mr Ireland’s report.[58]
[58]T48
219 Counsel for the plaintiff submitted whether the diagnosis was of full-blown CRPS or something close was “semantics”. At the end of the day, Dr Sullivan thought there was an organic condition.[59]
[59]T48
220 In addition to some features that are consistent with CRPS, Dr Sullivan also diagnosed an organically-based chronic pain condition which he described as a maladaptive pathophysiological process of the central and peripheral nervous system.
221 Counsel for the plaintiff did not refer to Dr Blombery’s diagnosis of CRPS in addresses.
222 Counsel for the plaintiff submitted that Mr Ireland found no evidence of CRPS on the basis that there had been no florid signs since about 2012 or 2013, which was wrong, given Dr Berry, and also Mr Sullivan had later found discolouration.[60] Further, it was submitted that CRPS was a condition that is notorious for waxing and waning.[61]
[60]T2
[61]T3
223 It was also submitted, just because Mr Ireland did not explain the plaintiff’s condition or put a label on it, does not mean there is not an injury. Further, his report “needed to be seen in light of the imperfect assumptions he made about the objective signs of CRPS not having been present since 2012-13”.[62]
[62]T3
224 Counsel for the defendant submitted that this analysis of Mr Ireland’s opinion was flawed. It was submitted the Court could not do better than Mr Ireland’s opinion. He is a very experienced specialist who elicited no symptomatology or signs consistent with the condition or any other condition. He is the most recent examiner and stands alone, and is thorough in his clinical examination.[63]
[63]T6
225 It was submitted that whatever Ms Shorney, hand therapist, said, had to be measured against the opinion of this specialist hand surgeon.[64]
[64]T6
226 Counsel for the defendant was critical of Dr Blombery’s examination and his subsequent finding of CRPS. He found normal finger movement, as did the orthopaedic surgeon, Mr Csongvay, and also Mr Ireland. Counsel posed the question as to how Dr Blombery could say, medically on that examination and on the symptom report, that the plaintiff had filled the basic criteria of CRPS. It was submitted that was “beyond medical science comprehension”.[65]
[65]T40
227 Criticism in similar terms was also made of Dr Blombery’s second examination and findings.[66]
[66]T42
228 I accept the plaintiff is presently suffering an organically-based finger/hand condition. Whilst a precise diagnosis is not required to satisfy the serious injury criteria, features of CRPS have been found on a number of occasions by examiners since 2012, and continue to be complained of by the plaintiff.
229 I accept that the features of CRPS are not always present and the absence thereof when the plaintiff was examined by Mr Ireland in July 2017 does not mean the condition is not apparent at other times.
230 It does not appear from Mr Ireland’s report that he was aware of Dr Berry’s examination findings in 2015 or those of Dr Sullivan in 2017 when completing his report. Mr Ireland also does not appear to be aware of Ms Shorney’s examination findings.
231 I also accept that the plaintiff’s work injury continues to contribute to her present condition, there being no other explanation offered by any medical practitioner and Mr Ireland’s view as the plaintiff’s genuineness.
Range
232 Having found a compensable injury, the next consideration is whether the consequences of any impairment relating thereto are “serious” and permanent as at the date of the hearing.
233 Whilst counsel for the defendant conceded the consequences might be significant, it was submitted they do not reach the very considerable level in accordance with the authorities.[67]
[67]Transport Accident Commission & Anor v Dennis [1998] 1 VR 702; Sumbul v Melbourne All Toya Wreckers PtyLtd [2006] VSCA 292; Sabo v George Weston Foods [2009] VSCA 242
234 The plaintiff has returned to work and would have stayed with the employer if her job was available, albeit with some “tweaking” of her duties. She has since had alternative employment with which she copes.[68]
[68]T39
235 Further, it was submitted the plaintiff still engages actively in a range of activities, although she might do them with difficulty. On that basis, in terms of range, any impairment fell short.[69]
[69]T43
236 Counsel for the plaintiff submitted that the plaintiff clearly had a serious injury and there was really no challenge to her level of symptoms – “Of course, she is getting on with things, but she has to and has no choice.”[70]
[70]T47
Credit
237 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[71]
“… 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 I found the plaintiff to be a truthful witness who did not overstate the level of her pain and disability.”
[71](2010) 31 VR 1 at paragraph [12]
238 Counsel for the defendant did not raise any particular issue as to the plaintiff’s credit.
239 Counsel for the plaintiff submitted an examination of all the material did not disclose a real credit issue. There is no real debate that there is a problem affecting the plaintiff’s hand, and it was submitted she gave evidence in a straightforward way, making appropriate concessions.[72]
[72]T49
240 In my view, the plaintiff was a credible, truthful witness who did not overstate the level of her pain, restriction and disability. She was prepared to make appropriate concessions, particularly in relation to the improvement in her right forearm pain in recent times.
Pain
241 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[73]
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
… .”
[73](supra) at paragraph [11]
242 I accept that initially the plaintiff’s pain involved her right forearm, but in more recent times is more localised to the right index finger.
243 The plaintiff continues to complain of a constant throbbing, aching pain in the right index finger, running from her wrist.[74] There is tightness in that area nearly all the time. Further, on occasion, there is swelling and discolouration, as noted by a number of examiners.
[74]T34
244 The plaintiff has described her pain in similar terms to recent examiners.
245 There is no suggestion by any practitioner of there being a functional component of the plaintiff’s presentation. To the contrary, Mr Ireland thought she was a genuine individual.
246 The plaintiff is still a relatively young woman, now aged only thirty-four.[75]
[75]T45
247 In Stijepic v One Force Group Aust Pty Ltd,[76] Ashley JA and Beach AJA, discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.
[76][2009] VSCA 181 at paragraph [43]
248 The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, it was relevant to look at the likely period for which those consequences would be experienced. It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.
Treatment
249 Having initially attended her general practitioner, the plaintiff was then referred for specialist treatment to an orthopaedic surgeon, Mr Csongvay, in 2012, who suggested conservative treatment.
250 The plaintiff continues to have hand therapy on a three-weekly basis, funded by the defendant. If for some reason the plaintiff misses a treatment, her pain and restrictions increase and she then prefers then to use her left hand as she did in the witness box when changing the pages of the court book.[77]
[77]T46
251 In addition, the plaintiff does exercises at home daily.
252 Whilst not to the upper level of painkilling medication, the plaintiff continues to require Panadol and Nurofen for pain relief. Except when pregnant or breastfeeding, she also uses Voltaren gel.
253 The plaintiff has undergone all treatment that has been suggested with no treatment available, other than hand therapy, massage and over-the-counter painkillers that her family situation allows.[78]
[78]T46
254 Whilst there has been improvement with Ms Shorney’s hand therapy at various times, hand therapy is still required on an ongoing basis and continues to be funded by the defendant.[79]
[79]T46
Consequences
255 I am satisfied, as a result of her right hand/index finger injury, the plaintiff is restricted in her ability to use her dominant hand for fine motor movements, lacking manual dexterity. She also has reduced grip strength.[80]
[80]Confirmed by Dr Peddi in July 2017 and Ms Shorney- May 2017 report
256 Counsel for the plaintiff relied on the consequences described in some detail by the plaintiff in her first affidavit, submitting just about any simple daily activity that requires her to use her right hand is difficult or causes pain.[81] She has remained unfit for activities involving forceful or repetitive use of the hand, and she has modified both work and leisure activities.[82]
[81]T47
[82]T48; a restriction noted by Dr Berry and other examiners
257 I accept that as a result of her ongoing right finger pain and restriction, the plaintiff has difficulty with housework and looking after her two young children.
258 Counsel for the defendant relied on the plaintiff’s answer in cross examination that by necessity said she had to do activities with the children,[83] submitting that would militate against the consequences being very considerable and indicated a significant level of functionality.[84]
[83]T43
[84]T44
259 However, as counsel for the plaintiff responded, having to do things out of necessity, “surely must detract from the pleasure that one gets from an activity such as interacting with children”.[85]
[85]T46
260 The plaintiff can obviously continue to do various activities with her children and also housework and cooking as she freely admitted, but she does so with pain and, at times, has to pace herself to successfully complete the activities which she is required to undertake.
261 Fine motor tasks requiring manual dexterity such as washing and drying her hair, dressing, tying up her shoelaces, opening bottles and writing cause the plaintiff.
262 The plaintiff’s sleep is interrupted by hand pain as her husband confirmed.
263 The plaintiff’s ability to garden, an activity she previously enjoyed, has been significantly affected with her being able to do very little now. She was clearly had a special interest in this activity having obtained a floristry diploma pre incident and her husband’s evidence that she hoped to turn that interest into a business. However, she can no longer do the fine hand movements involved in this activity or general gardening activities, such as pruning.
264 The plaintiff no longer attends the gym which she enjoyed doing two to three times per week pre incident. She also no longer goes bike riding, and her ability to enjoy camping is limited.
265 Counsel for the defendant submitted that there was little interference with the plaintiff’s work as a result of her injury. The plaintiff had only had one day off work in recent times and had been in full-time work since the injury, indicating a level of functionality.[86]
[86]T44
266 Whilst the plaintiff has been able to continue working full time with very limited absences from work, she is able to do so with a sympathetic employer who does not require her to do excessive data entry and gives her appropriate breaks.
267 I am satisfied that the plaintiff’s index finger/hand condition is permanent, having not resolved despite conservative treatment for six years. No practitioner in recent times, including Mr Ireland, considered the condition is going to resolve.[87]
[87]T45
268 Taking into account all the evidence, I am satisfied the plaintiff has a serious impairment of the right hand/index finger and I grant leave to bring proceedings for damages for pain and suffering.
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