O'Brien v Hertz Australia Pty Ltd
[2019] VCC 109
•14 February 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-00266
| STEPHEN MICHAEL O'BRIEN | Plaintiff |
| v | |
| HERTZ AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 and 20 June 2018 | |
DATE OF JUDGMENT: | 14 February 2019 | |
CASE MAY BE CITED AS: | O'Brien v Hertz Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 109 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – bilateral elbow impairments – pain and suffering
Legislation Cited: Accident Compensation Act 1985, s134AB(16)
Cases Cited:Meadows v Lichmore Pty Ltd [2013] VSCA 201; Peak Engineering & Anor v McKenzie [2014] VSCA 67
Judgment: Leave granted to the plaintiff to issue proceedings at common law for pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Stanley with Mr I Allen | Shine Lawyers |
| For the Defendant | Mr M Clarke | Wisewould Mahony |
HIS HONOUR:
1 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injuries suffered in the course of the plaintiff’s employment with the defendant from approximately 1999 until November 2013, due to the repetitive nature of the plaintiff’s employment. The body function said to be lost or impaired is the use of the left and right elbows.
2 The application is brought pursuant to 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 damages only.
3 The statutory scheme which regulates this claim is well known and will not be revisited here.
Background facts
4 The plaintiff was born in May 1957 and is aged sixty-one years. He is married with two adult children and lives with his wife. Between 1975 and 1992, he worked in the United Kingdom as a shipping and forwarding agent, and also with British Telecom.
5 In September 1992, he migrated to Australia and worked, first, with the Department of Justice, doing administrative work and preparing tenders. He also worked with Coles.
6 On or about 12 July 1999, the plaintiff commenced working with Hertz Australia Pty Ltd (“the defendant”) as a reservation sales agent. He worked in a call centre approximately thirty hours per week.
7 The plaintiff described his duties generally thus:
“7. My duties entailed the booking of rental vehicles for customers and depending on the particular day, I might take anything from 60 to 90 calls in a day with my workload gradually increasing over the years to about 2009 when I was taking about 100 calls a day. It was necessary to record the information conveyed in each call on the computer and I was repeatedly operating the computer with both hands and using a keyboard mouse. I wore a headset and telephone attached thereto. I was required to access reference folders weighing approximately 1kg positioned on a shelf above head height and was required to access these folders about 30 to 50 times a day. There was significant strain placed upon my upper limbs in these activities.”[1]
[1]Exhibit A, plaintiff’s affidavit sworn 26 September 2017 at Plaintiff’s Court Book (“PCB”) 8
8 In or about March 2012, the plaintiff gradually developed symptoms of pain in his right and left elbows, although worse on the right side. Dr Damian Greene took a history as follows:
“He gave a history that over the previous 3-4 months he had felt initially pain in his right elbow followed by pain in his left elbow.
He believed this to be related to his use of keyboard and computer mouse at work as it improved on his days off and his left elbow pain worsened as he compensated for his right elbow pain by using his left arm more and more in his work duties.
I carried out an ultrasound of his right elbow which showed a lateral epicondylitis with a partial tendon tear.
His ultrasound of left elbow showed a similar picture of lateral epicondylitis with tendon tear.
Hence his diagnosis of bilateral lateral epicondylitis with tendon tea.
I advised some rest initially from his work as his work was continuing to aggravate the pain.
I also started him on antiinflammatories and referred him for physio.
His pain improved on resting from work and I then cleared him to return to work with regular rest breaks from the aggravating computer use.
He returned in June 2012 with worsening pain in his elbows which he said was occurring due to his work.
Repeat ultrasound showed an enlarged tear in his right elbow.
I referred him for bilateral steroidal injections with appropriate rest following each injection to ensure best outcome.
I continued him on the previous work restrictions of regular rest periods over the following 9 months.
He coped with the pain by engaging in self physio, antiinflammatories and time off when necessary.
He returned in March 2013 complaining of worsening right elbow pain over the previous 6 weeks which he believed was partly due to his new work station since his job moving to a new building.
I advised him to discuss his work station with his employer and to continue to have regular rest breaks.
He continued to work his normal work hours with regular breaks and coped with the pain with self physio, anti-inflammatories and time off when necessary.
I reviewed him again in October 2013.
He was experiencing significantly worsening pain in both elbows with decreased power in both hands secondary to pain.
We ultrasounded his elbows which showed no improvement in his injury and recommended I further physio.
He said he would take annual leave to try to rest his injury.
He returned in November 2013 and reported that while his pain and movement had improved with rest during his 2 weeks annual leave, again computer use was aggravating his pain and hand movements since returning to work.
He was continuing with physio and self physio.
He felt he had no option at this stage than to commence a workcover claim, a process which he previously was reluctant to start, and informed me he would look into long service leave so he could give his elbows a sufficient time to improve.
He returned to me in January 2014 with decreased elbow pain and improved movement secondary to rest as he had taken long service from November 2013.
I advised specialist review so as to get an opinion re long term management I referred him to Dr. Arora, Rheumatologist.
I reviewed him in February 2014 following his review with Dr. Arora.
As recommended by Dr. Arora, I referred him for further steroidal injections in both elbows.
At his most recent review, the patient had these injections carried out and we now await the outcome over time of these procedures.
He is continuing his long service leave as he was finding his rest from work hugely beneficial in terms of pain and movement of his arms/hands, though my understanding is that this leave will soon expire.
… There is, in my opinion, a clear relationship between his injury and his employment for the following reasons:
a. As described by the patient at his first visit, the recurrent use of the computer at work over the previous months caused initial right epicondylitis with compensatory use of his left arm at work then causing secon[d]ary left epicondylitis
b. The obvious improvements in both pain and movement that occur when he is off work
c. The patient[’]s dependency on having regular breaks from computer use at work to allow him to work his full hour days
d. The specialist opinion of Dr. Arora, Rheumatologist, that it is not unreasonable to relate the pathology to his work
e. The worsening of his condition when he changed to a new work station in his new building.”[2]
[2]Exhibit C at PCB 20-21
9 Dr Greene took up the narrative of the plaintiff’s treatment in the third report, dated 20 July 2016:
“When his long service leave expired, I declared him fit to return to work on modified duties on 14/2/2014 involving avoiding any repetitive hand movements, allowing regular breaks from keyboard use, avoiding stretching movements where possible and avoiding any pronation/supination movements against resistance. Breaks should be every 60-90 minutes and be of 15 minutes duration to allow exercises and adequate rest.
This was based on the advice of Dr. Arora.
His employer advised him that he could only return to work if it was on full duties and hours.
Thereafter there remained this impasse where he could not return to work on the modified duties prescribed due to his employers insistence as detailed.
His condition has remained static since with ongoing pain and limitation of movement evident in both elbows, forearms and hands when using them manually in the normal everyday uses of daily living for any extended period without rest breaks.
I have recently referred him to the pain and rehabilitation specialist Dr Steven Jensen as after over 2 years of this work impasse, he has decided to look at alternative employment options and Dr Jensen’s expertise may assist him in this regard also.
Due to his inability to work during this time he has developed an adjustment disorder with mixed anxiety and depressive symptoms as a result of the injury and this accepted claim entails him having ongoing psychological therapy with Dr. Michelle Morris.”[3]
[3]Exhibit C at PCB 28
10 The contention that the plaintiff must have a full clearance to return to work with the defendant was confirmed in the affidavit of Brendan John Saville, sworn 7 May 2018, on behalf of the defendant.[4]
[4]Exhibit 1 at Defendant’s Court Book (“DCB”) 5, 58, D60 and D62
11 Dr Greene reported again on 24 March 2017. He stated as follows:
“He sought treatment from me on 24/3/17 and remains fit to work modified duties.
He is capable of manual computer work for which he was previously gainfully employed with the restrictions as outlined on his initial return to work of avoiding any repetitive hand movements, allowing regular breaks from keyboard use, avoiding stretching movements where possible and avoiding any pronation/supination movements against resistance.
Breaks should be every 60-90 minutes and be of 15 minutes duration to allow exercises and adequate rest.
…
He takes anti-inflammatories and continues with physio when necessary.
He does is own self physio daily.
He continues under the care of Dr. Steven Jensen, Pain and Rehabilitation Specialist who has trialled and continues to trial various approaches to improve his condition.
…
With the ongoing pain and limitation of movement evident in both elbows, forearms and hands when using them manually, his normal everyday activities of daily living are greatly affected.
This includes simple tasks such as dressing eg tieing (sic) buttons, food preparation eg cooking, and home chores eg hoovering, writing etc.
Any activity that entails hand use for an extended period requires rest breaks and even with those breaks, he still suffers pain secondary to hand use.
Also his adjustment disorder causes him not to enjoy his everyday pursuits like he did pre-injury and causes him to be lethargic due to poor sleep etc and more socially reclusive avoiding social interaction and pursuing his hobbies etc.
This also has had an effect on his marriage.
The injury is stable.”[5]
[5]Exhibit C at PCB 33-34
12 In his last report dated 13 June 2018, Dr Greene stated:
“His condition has failed to improve with ongoing pain and limitation of movement evident in both elbows, forearms and hands when using them manually in the normal everyday uses of daily living for any extended period without rest breaks.
…
He had a recent ultrasound of his bilateral epicondylitis and tendon tears which showed the injury to be static in appearance and therefore no better in appearance since 2013.
The radiologist Dr Stephen Fasulakis, Diagnostic Care, Milleara reviewed his treatments and recommended a trial of dry needling for symptom management.
He continues to have a capacity to work modified duties in his previous work role but does not have a capacity for full pre-injury duties.
He will never regain capacities for full pre-injury duties, in my opinion, due to failure of any treatments in the last 5 years to cure his injury and the opinion of multiple specialists including Dr Aora, Dr Jensen, Dr Fasulakis and his physio that there are no curative treatments, only treatments that improve symptoms and function. …
His disability due to his physical injury of bilateral epicondylitis is permanent in my opinion.
… .”[6]
[6]Exhibit C at PCB 37-38
The issues
13 Defence counsel has identified the issues as follows:
(i) Whether a compensable injury has been caused to the plaintiff;
(ii) Whether the plaintiff continues to suffer from bilateral tennis elbow;
(iii) Whether the plaintiff is suffering a Chronic Pain Syndrome such that disentanglement is required in accordance with the Court of Appeal decision of Meadows v Lichmore;[7]
[7][2013] VSCA 201
(iv) Whether there is a substantial organic basis to the paragraph (a) injury; and
(v) Whether any demonstrable compensable injury meets the relevant statutory threshold.[8]
[8]T14, L3-31
14 Further, in final addresses, defence counsel raised the issue of a co-existing neck injury and knee injury, the consequences of which need to be disentangled from the consequences that flow from the compensable injuries. See Peak Engineering & Anor v McKenzie.[9]
[9][2014] VSCA 67
The Plaintiff’s evidence – consequences
(a) Pain
15 Plaintiff’s affidavit, 26 September 2017:[10]
“The more I use either or both of my arms, hands and wrists, the more intense my symptoms become.”
[10]PCB 11
16 Plaintiff’s second affidavit, 19 June 2018:[11]
“I continue to experience horrible pain in both my elbows. The pain comes on whenever I use my arms. I best describe it as a throbbing, burning sensation. It is usually centred about my elbow joint but does not spread down the inside of my forearms to my hands frequently. It is worse on my left side than on my right side.
If I have been using my arms a lot I will suffer spasms of sharp pain which pulse down my arm. These flare ups can last anywhere from a few seconds to an hour.
My elbows are very tender. If I bump my elbow or someone brushes past me in a shopping centre I suffer increased pain.
[11]PCB 12A
17 Transcript 39, Line 16:
Q:“Would the descriptions you’ve given in this affidavit, ‘horrible’, would that be overstating it?---
A:No.”
18 Transcript 39, Line 15:
Q:“In paragraph 3 of your affidavit, you say, ‘If I’ve been using my arms a lot, I’ll suffer spasms of sharp pain which pulse down my arm’?---
A:That’s correct.”
19 Transcript 40, Line 9:
Q: “How often do you have the spasms?---
A: Every day.”
20 Mr Steven Jensen, 3 May 2017:[12]
“He described in terms of hot/burning and tender.
…
At review on 27 February 2017 he was now rating his pain level as 7/10.”
[12]PCB 62
21 Mr David Kennedy, 26 April 2017:[13]
“Bilateral aching and pain over the outer aspect of the elbow joints, with an average pain level of 6/10, extending into the upper outer forearms.”
[13]PCB 68
22 Dr Clayton Thomas, 21 May 2018:[14]
“He reported any activity with the arms caused pain.”
[14]PCB 80
23 Mr Murray Stapleton, 19 December 2013:[15]
“He is careful not to bump the elbow joint on either side.”
[15]DCB 77
(b) Impediment to functional use of the arms
24 Plaintiff’s affidavit, 26 September 2017:[16]
“I had to limit my lifting, my use of hand movements.”
[16]PCB 11
25 Plaintiff’s second affidavit, 19 June 2018:[17]
“If I have been using my arms a lot I will suffer spasms of sharp pain which pulse down my arm.
…
Even doing the dishes can be beyond me as I find the pincer style grip needed handle plates or cutlery causes pain.”
[17]PCB 12A
26 Transcript 36, Line 1:
Q: “I suggest there’s no pain with basic movements of the arm?---
A:Ah, it depends on the actual movement, what I’m actually doing with the movements of the arm.”
27 Transcript 36, Line 18:
Q: “When do you experience the horrible pain?---
A:When I actually do something physical that, ah, with the use of the arms.
Q:What do you do that’s physical, Mr O’Brien?---
A:Well, anything, you know, that, ah, for instance it could be anything. Picking up a cup, a plate, anything heavy. I – I get it driving because my arms are stretched out.”
28 Dr Damien Greene, 13 June 2018:[18]
“His condition has failed to improve with ongoing pain and limitation of movement evident in both elbows, forearms and hands when using them manually in the normal everyday uses of daily living for any extended period without rest breaks.”
[18]PCB 37
29 Mr David Kennedy, 26 April 2017:[19]
“Weakness in both forearms, wrists and hands and he tends to drop objects. Reduced gripping and grasping strength in both hands.”
[19]PCB 68
30 Dr Peter Mangos, 3 September 2014:[20]
“He still has bilateral aching of the elbows laterally, mainly worse on the right hand side associated with a good deal of weakness with a tendency to drop objects. … He finds it difficult to grip hard, to reach for an object with either hand and to use the pincer action of the hand.”
[20]PCB 40
31 Dr Clayton Thomas, 21 May 2018:[21]
“He reported any activity with the arms caused pain. Picking heavy objects was problematic for him.
…
There is quite a clear ongoing disability here. He has had quite a significant degree of pain and suffering.”
[21]PCB 80-81
(c) Interference with sleep
32 Plaintiff’s second affidavit, 19 June 2018:[22]
“Sleeping is hard going as every time I turn over in the night I am awoken by pain. My natural sleeping position is on my side and I still find it hard to get used to sleeping on my back. As a result I get very broken sleep and often wake feeling unrefreshed and grumpy.”
[22]PCB 12B
33 Transcript 40, Line 24:
Q:“He notes, at defendant’s court book 109, that you sleep satisfactorily. Is that accurate?”---
A:No, I haven’t slept, um – I haven’t had – since the injury, that’s incorrect.”
34 Transcript 41, Line 10:
“I wake up through pain.”
35 Transcript 51, Line 11:
Q:“How often are you woken up with that pain?---
A:Uh, say once, twice during the night.”
(d) Interference with domestic activities
36 Plaintiff’s second affidavit, 19 June 2018:[23]
“Around the house I try to do what I can but of late that doesn’t seem to be much. I find it really hard to vacuum and mop. Even doing the dishes can be beyond me as I find the pincer style grip needed (sic) handle plates or cutlery causes pain. I feel so bad for my wife because she now seems to be doing everything.
…
In the kitchen I find that undoing jars and tins hurts as does taking a pot off the stove. It seems that if I need a forced grip the strain travels to my elbows.”
[23]PCB 12B
37 Dr Damien Greene, 13 June 2018:[24]
“His normal everyday activities of daily living are greatly affected. This includes simple tasks such as dressing eg tying buttons, food preparation eg cooking, and home chores eg hoovering, writing etc. Any activity that entails hand use for an extended period requires rest breaks and even with those breaks, he still suffers pain secondary to hand use.
[24]PCB 38
38 Suresh Takyar, physiotherapist, 9 January 2015:[25]
“He stated that he can perform certain light tasks in the home but cannot accomplish heavier duties like vacuuming, cleaning the house and maintenance of the garden.”
[25]PCB 51
39 Dr David Kennedy, 26 April 2017:[26]
“He is restricted with everyday activities that are stressful or repetitive as this causes pain and numbness.”
[26]PCB 68
40 Mr Russell Miller, 26 June 2017:[27]
“He has difficulty with heavier domestic and gardening activities. His wife undertakes the domestic duties.”
[27]PCB 77
41 Dr Clayton Thomas, 21 May 2018:[28]
“Picking heavy objects was problematic for him … his wife does most of the domestic chores.
…
His ability to function recreationally and domestically has also been impacted on.”
[28]PCB 80
(e) Interference with gardening
42 Plaintiff’s affidavit, 26 September 2017:[29]
“I had to limit my lifting, my use of hand movements, my work in the garden.”
[29]PCB 11
43 Plaintiff’s second affidavit, 19 June 2018:[30]
“I potter in the garden in short stints but I can’t do the heavy aspects. I take regular breaks when mowing the lawn. This saddens me as I love being outdoors and my garden was once my refuge – I would spend Saturdays in the warmer months from dawn to dusk weeding, feeding, pruning and planting.”
[30]PCB 12B
44 Suresh Takyar, physiotherapist, 9 January 2015:[31]
“He stated that he can perform certain light tasks in the home but cannot accomplish heavier duties like vacuuming, cleaning the house and maintenance of the garden.”
[31]PCB 51
45 Mr Russell Miller, 26 June 2017:[32]
“He has difficulty with heavier domestic and gardening activities.”
[32]PCB 77
(f) Interference with work
46 Plaintiff’s second affidavit, 19 June 2018:[33]
“I miss the order that work brings to your life. I am not good at relaxing. I need to keep busy. I am like a clock in that sense – useless if not working. I miss the pride that work brings. When I was at Hertz I enjoyed helping the customers and was always keen to improve my benchmark/feedback scores. I also miss the company of my colleagues. I enjoyed having chats over morning tea or a laugh at a funny customer request – it’s lonely doing nothing.”
[33]PCB 12C
47 Dr Damien Greene, 13 June 2018:[34]
“He will never regain capacities for full pre-injury duties in my opinion due to failure of any treatments in the last 5 years to cure his injury and the opinion of multiple specialists including Dr Arora, Dr Jensen, Dr Fasulakis and his physio that there are no curative treatments, only treatments that improve symptoms and function…
His disability due to his physical injury of bilateral lateral epicondylitis is permanent in my opinion.”
[34]PCB 37
48 Suresh Takyar, physiotherapist, 9 January 2015:[35]
“Mr O’Brien cannot perform repetitive movements of his fingers and perform the data entry tasks without appropriate rest breaks.”
[35]PCB 53
49 Steven Jensen, 3 May 2017:[36]
“I would accept that he would be compromised in his lifting and grasping tasks of heavy objects such as reaching above head height to retrieve various folders with any weight.”
[36]PCB 64
50 Dr Peter Mangos, 3 September 2014:[37]
“This man is now totally incapacitated with regards to performance of his usual work or work of a similar nature.”
[37]PCB 41
51 Dr David Kennedy, 26 April 2017:[38]
“Mr O’Brien may require specific re-training as part of his rehabilitation to enable him to resume a modified return to work programme, but not performing his pre-injury occupational duties at a call centre as these duties, on the balance of probabilities, would result in further aggravation of the chronic bilateral elbow pain.”
[38]PCB 70
52 Mr Russell Miller, 26 June 2017:[39]
“In terms of the elbows he will have difficulty with work that involves repetitive arm actions and lifting of weights more than 5kg. He could not therefore return to his pre-injury duties as they were described to me.”
[39]PCB 77
53 Dr Philip Mutton, occupational physician, 29 November 2017:[40]
“He needs to avoid forceful gripping…He needs to lift with palms up rather than palms down. He need to limit lifting to 1 kg and perhaps up to 2 kg. He should avoid repetitions and that would be no more than one to two per hour … He would not be able to do production work, such as container filling or package filling or machine operation”
(sic)
[40]DCB 111
54 Mr Ian Jones, 18 December 2017:[41]
“Mr O’Brien is fit to return to full time employment at work which does not require repeated gripping and twisting using his right or left arms and hands. A limit of 3 kg would be appropriate.”
[41]DCB 120
55 Dr Clayton Thomas, 21 May 2018:[42]
“The primary objective here is to facilitate some form of meaningful and appropriate work duties without aggravating his condition.
…
The type of work that he could perform would be one in which minimal typing and keyboarding is required. Working in reception or as a concierge, for instance, would be possible viable options for him. He has now been quite limited in the scope of options that are now possible for him. He is also at the age of 60 and relatively hampered in view of his ongoing symptom complex for being competitive on the open workforce.”
[42]PCB 81
56 The plaintiff’s second affidavit, 19 June 2018:[43]
“It was a real kick in the guts when Hertz effectively got rid of me. As can be seen from Mr Saville’s Affidavit, in the period from November 2013 to August 2014 I was keen to return to work. Dr Greene was also keen for me to return but certified me as requiring slightly modified duties with breaks. However this was not good enough for Hertz who kept telling me that I needed a ‘full clearance’. Yet in May 2014 even when I managed to get Dr Greene to give me a full clearance, Hertz changed the goal posts and refused to have me back. I was upset that after 15 years they could be so dismissive.”
[43]PCB 12C
57 Affidavit of Brendan Saville, 7 May 2018:[44]
“[Notes from meeting 28 March 2014:[45]] Tash confirmed that as previously discussed Steve must have a full clearance to Return to Work and that there were no roles available on modified duties at this stage in reservations or within the business.”
[44]DCB 5
[45]DCB 60
58 Plaintiff’s second affidavit, 19 June 2018:[46]
“I have tried to find work as I hope I refuse to accept that I am ready for the employment scrapheap but it’s incredibly hard. At 61, my age alone puts me to the back of the queue, let alone with my injury. Last year I had the assistance of Nabenet, an employment provider provided by WorkCover. Together we applied for around 15 jobs but nothing came of them. Nabenet stopped assisting me in about late October 2017 when WorkCover stopped funding them.”
[46]PCB 12C
59 The plaintiff was diagnosed with osteoarthritis in his right knee for which he was prescribed Mobic in June 2017, and he takes one table every three, four or five weeks. Further, he treats the knee by walking, by maintaining approximately 10,000 steps every day.[47] Further, he concedes he has daily pain in the knee and as a consequence, he has difficulties running and had some difficulty going up and down stairs. He has slight problems with kneeling on the knee.[48]
[47]T29, L9-31
[48]T30, L18-25
60 Further, the plaintiff had an MRI scan of his cervical spine in 2014 and he still suffers daily pain in his neck; however, he is receiving no treatment for his neck and is not seeing any specialists. Further, the pain in the neck does not stop him from doing anything. He states he just puts up with the pain.[49]
[49]T30, L26 – T31, L12
Medical evidence
61 The treating general practitioner, Dr Damien Greene, has reported on 19 February 2014, 29 September 2015, 20 July 2016, 24 March 2017 and 13 June 2018.[50] It is clear from the material referred to above that he supports the plaintiff’s claim that a physical injury is a substantial cause of his impairment to the left and right arms.
[50]Exhibit C
62 The plaintiff also tendered in evidence eleven separate radiological investigations.[51] In essence, they consisted of ultrasounds of the right and left elbows taken in April 2012, July 2012, October 2012, October 2013 and March 2018. The first ultrasound of the right elbow revealed:
“Changes of calcific tendonosis of the common extensor tendon on the lateral aspect of the elbow with a partial thickness tear … .”[52]
[51]Exhibit B
[52]Exhibit B at PCB 17
63 The first ultrasound of the left elbow recorded:
“Changes of lateral epicondylitis with a partial thickness tear … .”[53]
[53]Exhibit B at PCB 18
64 The second right elbow ultrasound recorded:
“Approximately 0.4 cm diameter common extensor origin partial thickness tear on a background of lateral epicondylitis … .”[54]
[54]Exhibit B at PCB 18a
65 The second ultrasound of the left elbow revealed:
“Small partial thickness deep fibre tear of the common extensor origin tendon at the lateral epicondyle. Similar or slightly smaller in size compared to the previous examination dated 19/4/2012.”[55]
[55]Exhibit B at PCB 18b
66 The third right elbow ultrasound revealed:
“Persistent common extensor origin tendon tendinopathy and associated partial thickness tear not yet healed.”[56]
[56]Exhibit B at PCB 18c
67 The third left elbow ultrasound recorded:
“Findings are in keeping with persistent and chronic tendinopathic change of the common extensor insertion into the lateral epicondyle. The small partial thickness tear is unchanged compared with the previous study.”[57]
[57]Exhibit B at PCB 18d
68 The fourth ultrasound of the right elbow recorded:
“No significant increased vascularity is seen in the right common extensor tendon at the lateral epicondyle.
There remains a small partial tear measuring 3.4 x 2.6mm.
(Previously the tear measured 6 x 1.6mm.)”[58]
[58]Exhibit B at PCB 18f
69 The fourth ultrasound of the left elbow recorded:
“Approximately 0.5cm diameter left common extensor origin partial thickness tear on a background of lateral epicondylitis.”[59]
[59]Exhibit B at PCB 18e
70 The final bilateral ultrasound of 21 March 2018 recorded:
“Clinical details:
Long history of epicondylitis and tendon tear.
…
Conclusion:
Bilateral common extensor origin tendinosis with partial tear identified and which would be amenable to dry needling with peritendinous deposition of corticosteroid and local anaesthetic as a trial of symptom management, if you are in clinical agreement.”[60]
[60]Exhibit B at PCB 19
71 The plaintiff was referred to consultant rheumatologist, Dr Ramesh Arora, who reported on 20 January 2014, 5 February 2014, 24 February 2014, 17 December 2014 and undated.[61]
[61]Exhibit E
72 In the first report, Dr Arora took a history of bilateral elbow pain associated with tenderness since March 2012. The symptoms progressed gradually. He discontinued work on resumption. The symptoms recurred. Investigations revealed, and a diagnosis was made, of bilateral common extensor tears of the elbow regions. Further, he needed to be referred to formal physiotherapy for his elbows and he should use elbow splints whenever he is working at home or at work.[62]
[62]Exhibit E at PCB 42-43
73 In her second report dated 5 February 2014, Dr Arora stated:
“… It is not unreasonable for such work to be associated with such symptoms and documented pathology however it is equally impossible to attribute this chronic pathology purely to work related activities of the above type without any specific injury recalled accounting for the partial tears of the concerned areas.”[63]
[63]Exhibit E at PCB 44
74 In her third report, Dr Arora noted mild features of right tennis elbow, and she advised him to continue physiotherapy and using elbow splints. She also remarked that there was evidence of left ankle and foot osteoarthritis and bilateral knee osteoarthritis. Apparently the only invasive treatment was cortisone injections for his elbows.[64]
[64]Exhibit E at PCB 46
75 In her fourth report, Dr Arora stated that the plaintiff could resume his work initially on light duties, followed by a gradual increase in the number of hours. He was advised to avoid strenuous lifting and he would need regular review by a physiotherapist. He was advised to continue pain relief and anti-inflammatories, as and when required.[65]
[65]Exhibit E at PCB 48
76 In her final undated report, Dr Arora stated:
“… This gentleman does not want to explore surgical options and has failed medical options with respect to physiotherapy and injections and continues to report a fluctuating bilateral elbow pain. I note that he has been out of work for quite some time. Surprisingly he continues to have good muscle strength and preserved muscle tone with no evidence of wasting on either side. He reports that the left side is worse at the present.
…
In my opinion I do not see how such minimal damage could be accounting for such prolonged symptoms in spite of medications. The bone scan does not show any prolific inflammatory disease on the left elbow region at all. I believe I excluded any systemic inflammatory cause and hence I have not arranged another review for him.”[66]
[66]Exhibit E at PCB 49
77 The treating physiotherapist, Suresh Takyar, reported on 9 January 2015.[67]
[67]Exhibit F
78 It was the physiotherapist’s opinion that the plaintiff was suffering from pain in both elbows, resulting from a tear in the common extensor tendon of both elbows, with epicondylitis. It was his further opinion that the length of the tear seemed to have increased due to the repetitive nature of his work.[68]
[68]Exhibit F at PCB 53
79 Similarly, the treating physiotherapist, Richard McGlynn, reported on 3 September 2015.[69] His diagnosis was one of bilateral lateral epicondylitis with a tear to the extensor tendon insertion of the right elbow. Also in 2015, Mr McGlynn treated the plaintiff for neck pain, with ongoing advice on a suitable upper-limb stretching and strengthening plan.[70]
[69]Exhibit G
[70]Exhibit G at PCB 60
80 Dr Greene also referred the plaintiff to musculoskeletal pain management physician, Dr Steven Jensen, who reported on 3 May 2017.[71] On examination, Dr Jensen noted:
“It was noted he had a full range of motion through his wrist, fingers and elbow. Provocation tests specifically looking for signs of lateral epicondylosis (tennis elbow) failed to reveal any reproduction of pain. There was tenderness over the common extensor origin of both elbows extending into the dorsal forearm muscles … .”[72]
[71]Exhibit H
[72]Exhibit H at PCB 62
81 Further diagnostic imaging revealed:
“… recurrent ultrasound examination of his left and right elbows that confirmed changes consistent with common extensor origin tendinopathy.”[73]
[73]Exhibit H at PCB 63
82 It was Dr Jensen’s opinion that:
“… he was suffering from mild bilateral lateral epicondylosis (tennis elbow) on a background of poor shoulder girdle biomechanics and neuromuscular control that was contributing to dysfunction in his upper limbs.”[74]
[74]Exhibit H at PCB 63"
83 Dr Jensen was also of the opinion that the plaintiff’s morbid obesity would be a significant constitutional contributing factor to his tendinopathy. At review on 5 September 2016, it was noted his symptoms had not changed a great deal. He still had difficulty with repetitive hand use and lifting of heavy weights, as well as everyday activity, such as gardening. At that stage, the prognosis was guarded, in that his elbow problems had been quite chronic, without significant change, despite various conservative measures.
84 As to work relationship, Dr Jensen referred to the Medical Panel opinion and the history of the work duties contained therein. Dr Jensen stated:
“… I would agree that this would constitute some level of repetitive manual handling with both upper limbs and, therefore, accepting that history, I would conclude that, on the balance of probabilities, there may well have been a material contribution to his lateral elbow symptoms as a result of his employment.”[75]
[75]Exhibit H at PCB 64
85 The plaintiff also tendered in evidence the Certificate of Opinion from the Medical Panel, dated 18 October 2015.[76] The Panel consisted of four medical practitioners, being a psychiatrist, a general practitioner, rheumatologist and orthopaedic surgeon. The Panel concluded that the plaintiff was suffering from bilateral lateral epicondylitis, with no psychiatric or abnormal psychological condition. Further, the Panel was of the opinion that the employment was a significant contributing factor to the exacerbation of the alleged bilateral tendonitis and bilateral chronic elbow pain injuries.[77]
[76]Exhibit M at PCB 84-92
[77]Exhibit M at PCB 84
86 The plaintiff was also examined by sports and industrial physician, Dr David Kennedy, who reported on 28 April 2017. After conducting an examination and examining the diagnostic studies, Dr Kennedy considered as follows:
“… as a consequence of his repetitive work activities, [he] developed bilateral lateral epicondylitis and common extensor tenosynovitis and common extensor tendon tearing, which has resulted in bilateral chronic elbow pain, extending into the forearm, with restrictions in relation to the functioning of both upper extremities, particularly with repetitive activities under load or stress. The injuries sustained are work related and started in March 2012 and there are no obvious discrepancies between Mr O’Brien’s current symptom presentation and the clinical findings on examination.
The employment was the contributing factor to the injuries sustained to the lateral aspect of the elbow region, extending into the posterolateral aspect of the forearms.”[78]
[78]Exhibit J at PCB 70
87 Dr Kennedy further reported:
“The ongoing problems involving the upper extremities at the elbow joints, extending into the forearms, wrists and hands has had a profound effect upon activities of daily living and his ability to perform normal physical activities and these restrictions are likely to persist for the foreseeable future.”[79]
[79]Exhibit J at PCB 70
88 The plaintiff was also examined by Mr Russell Miller, orthopaedic surgeon, who reported on 26 June 2017 and 12 June 2018.[80] Examination of the elbows revealed:
“… symmetrical findings with tenderness in the region of the lateral epicondyle. There was a full range of motion in the elbow. The elbow was stable. Provocation test[s] were moderately positive for tennis elbow on the left and right sides.”[81]
[80]Exhibit K
[81]Exhibit K at PCB 75
89 Mr Miller personally reviewed the radiological files referred to above and took a history of the plaintiff’s work description. He considered he had clinical and radiological features of tennis elbows or lateral epicondylitis, and the prognosis was only fair. It was also his opinion the plaintiff had developed an adverse mental-state reaction, with problems with anxiety and depression and probably development of a Chronic Pain Syndrome, which would complicate the assessment and management of his condition.[82] He regarded the current clinical status in relation to the elbows as being significantly work related.[83]
[82]Exhibit K at PCB 76
[83]Exhibit K at PCB 77
90 In his second report, Mr Miller recorded that the plaintiff was not currently taking any medications and had had physiotherapy in the past, but it was not ongoing. He was not using antidepressant medication, was seeing a psychologist once a month. Examination of the neck, shoulders and elbows and wrists was the same as before. Except for the elbows, the other body areas were unremarkable. Otherwise, his opinion remained the same as before.
91 Finally, the plaintiff was examined by pain-management specialist, Dr Clayton Thomas, who reported on 21 May 2018.[84] Dr Thomas noted the most recent ultrasound on 29 March 2018, concluding:
“… Bilateral common extensor original tendonosis with partial tear identified. The body of the report indicated to the left elbow, ‘a partial tear measuring 7 x 2 mm with features of mild tenderness’. To the right elbow, partial tear of the common extensor tendon insertion with heterogeneous appearances and mild hyperaemia”[85]
[84]Exhibit L
[85]Exhibit L at PCB 81
92 Further, Dr Clayton stated:
“… I would accept that the work on a keyboard, taking up to 100 phone calls per day, doing necessary typing in someone who may otherwise have been predisposed to this syndrome has led to the onset of his pain complex.” [86]
[86]Exhibit L at PCB 81
93 Further:
“… He has developed bilateral elbow problems and anything that involves prolonged typing, static postures of his elbows, is likely to lead to an aggravation of this condition.”[87]
[87]Exhibit L at PCB 81
94 Further:
“There is quite a clear ongoing residual disability here. He has had quite a significant degree of pain and suffering. His ability to function recreationally and domestically has also been impacted on. This applies to both the left and the right elbows equally but as mentioned above, his right upper limb is the dominant one and therefore, more problematic for him.”[88]
[88]Exhibit L at PCB 81-82
The Defendant’s medical evidence
95 The plaintiff was examined by plastic surgeon, Mr Murray Stapleton, who reported on 19 December 2013 and 18 February 2014.[89] In his first report, Mr Stapleton recorded:
“He has had ultrasounds which confirm that he has chronic lateral epicondylitis (tennis elbows). It is noted that he has tears at the common extensor origin of both elbow joints.”[90]
[89]Exhibit 3
[90]Exhibit 3 at DCB 76
96 Mr Stapleton took a history that:
“… The pain was of slow onset and equally shared with his right and left side. The pain on both sides became gradually worse with time.”[91]
[91]Exhibit 3 at DCB 76
97 Further, Mr Stapleton noted:
“He has had ultrasound-guided cortisone injections into the outer aspect of both elbows, which produced ‘slight help’. He was sent to a Physiotherapist to give him exercises which, if anything, that, in my opinion, is counter-productive. There is no point in exercising a tendon which is degenerate. Strengthening of muscles that work on the degenerative tendons clearly make the problem worse.”[92]
[92]Exhibit 3 at DCB 77
98 On examination, Mr Stapleton noted:
“He is tender over the outer aspect of both elbow joints. The elbows on either side have no restricted movement.
I note the reason for this examination is for me to provide assistance to make a decision about the worker’s claim for compensation. Since there is not acute injury here, and since his problem is equally shared on the right and the left hand side, this
This is a degenerate problem; it is not caused by an injury and he would suffer from the condition, in my view, whether he worked or whether he did not. I note that for 14 years his work position has involved telephone reservations and computer keyboarding. Those duties would not be regarded as risky or injurious.”[93]
[93]Exhibit 3 at DCB 78
99 Nonetheless, the diagnosis was one of “chronic bilateral tennis elbows”[94] and the treatment required was “rest and avoidance of activities which are uncomfortable”.[95] The treatment recommended was:
“… another bilateral ultrasound-guided cortisone injection. If he continues to have the problem, then he is a candidate for surgery on both sides.”[96]
[94]Exhibit 3 at DCB 78
[95]Exhibit 3 at DCB 78
[96]Exhibit 3 at DCB 78
100 In Mr Stapleton’s view:
“… the bilateral extensor tendon tears and epicondylitis did not arise in the course of his employment on or around 5 March 2012.”[97]
[97]Exhibit 3 at DCB 78
101 The defendant also had the plaintiff examined by Dr Roy Karna, rheumatologist, who reported on 5 November 2014.[98] On examination, he considered:
“The tenderness in the elbow region was diffuse, and not specifically at the lateral epicondyle, but in the extensor muscle belly and was quite variable.”[99]
[98]Exhibit 4
[99]Exhibit 4 at DCB 84
102 Dr Karna considered that the reports of ultrasounds to that time were:
“… effectively unchanged and suggest minor tendinopathy and arguably partial tears, however one makes note of the fact that there is significant intra-observer variation in assessing ultrasounds in relation to tendon injuries.”[100]
[100]Exhibit 4 at DCB 84
103 It was Dr Karna’s opinion that undue importance had been placed on ultrasound findings because the diagnosis of lateral epicondylitis is a clinical one and “not necessarily”[101] a radiological one. In any event, he did not consider there was any evidence of ongoing epicondylitis with either elbow at that particular stage and he was, therefore, capable of returning to unrestricted pre-injury duties.[102] I note that Dr Karna did not report on the tears and whether they would be producing symptoms. As to work relationship, he stated:
“… Hypothetically the nature of work could have caused a mild right lateral epicondylitis lesion. There is no evidence of any extra-curricular activities contributing nor any pre-injury pathology.”[103]
[101]Exhibit 4 at DCB 85
[102]Exhibit 4 at DCB 85
[103]Exhibit 4 at DCB 85
104 The plaintiff was also examined by forensic psychologist, Dr Alan Jager, who reported on 7 May 2015.[104] He considered the plaintiff had:
“… an extensive history of anxiety over many years, treated in the last few years by a psychologist.”[105]
[104]Exhibit 5
[105]Exhibit 5 at DCB 90
105 Dr Jager considered that the plaintiff “feels anxious all of the time, and had reduced enjoyment, sleep, energy, and mildly reduced concentration”.[106] At interview he thought the plaintiff had negative thought content, and was dejected and anxious. Thus, the diagnosis was one of a Chronic Pain Disorder associated with psychological factors on the background of a Generalised Anxiety Disorder. The anxiety had caused no incapacity for employment and no medications taken.[107]
[106]Exhibit 5 at DCB 90
[107]Exhibit 5 at DCB 90
106 Orthopaedic surgeon, Dr Peter Boys, examined the plaintiff on behalf of the defendant and reported on 7 April 2016. On examination, he considered he was a man “in no distress” and there was tenderness with firm palpation over the common extensor region of the left elbow and, to a lesser degree, on the right side. Examination findings were otherwise completely normal.[108] He considered the plaintiff was suffering symptoms associated with bilateral lateral humeral epicondylitis, but did not think there was any interference with his ability to work; however:
“… It would be anticipated that Mr O’Brien would suffer intermittent strain symptoms referable to both elbows in the course of routine work and domestic activities.”[109]
[108]Exhibit 6 at DCB 95
[109]Exhibit 6 at DCB 98
107 Dr Boys had the ultrasound examinations of the right and left elbows in April 2012, but did not comment on the partial thickness tears revealed therein.
108 Occupational physician, Dr David Elder, reported to the defendant on 27 September 2016.[110] He recited that the Medical Panel had concluded the worker suffered from a bilateral lateral epicondylitis. It would appear that the physical examination was essentially normal, but on viewing the ultrasound scans of both elbows in October 2013, they had shown “very small CEO tears”.[111] There was no comment as to whether these tears were producing symptoms. In any event, it was his opinion that there were no ongoing clinical signs of epicondylitis.[112]
[110]Exhibit 7
[111]Exhibit 7 at DCB 104
[112]Exhibit 7 at DCB 104
109 Occupational physician, Dr Philip Mutton, reported to the defendant on 14 November 2017 and 20 May 2018.[113] Dr Mutton noted the plaintiff was undergoing a rehabilitation program at a gymnasium since April 2017 and was attending twice per week. On examination, Dr Mutton noted:
“He presented as well. He was overweight. He was quite cooperative. Examination of the neck was unremarkable with full range of movement. There was full range of movement in each shoulder. He did have a hunched posture. There were similar findings in the left and right elbows. There was no tenderness over the medial aspect of the elbow or over the ulnar nerve but there was mild tenderness over the lateral epicondyle. He claims this was worse with both forced wrist extension against resistance and forced wrist palmar flexion against resistance.”[114]
[113]Exhibit 8
[114]Exhibit 8 at DCB 110
110 Dr Mutton noted the ultrasounds in 2012 and 2013 revealing bilateral epicondylitis and bilateral tears. Although not inclined to give a formal diagnosis, Dr Mutton states:
“On the basis of his complaints of pain with activity, he needs to avoid forceful gripping with the upper limbs. Both upper limbs are equally affected by his accounts. He needs to lift with palms up rather than palms down. He needs to limit lifting to 1kg and perhaps up to 2kg. he should avoid repetitions and that would be no more than one to two per hour. Within those restrictions he can work full-time. In fact he is hoping to work full-time in appropriate duties if they can be found.”[115]
[115]Exhibit 8 at DCB 111
111 In his second report dated 20 May 2018, Dr Mutton viewed a DVD of a worker performing a job at the new premises. On viewing that DVD, Dr Mutton thought that the plaintiff could perform the work shown.
112 Orthopaedic surgeon, Mr Ian Jones, reported to the defendant on 18 December 2017. Mr Jones took an extensive history of the onset of complaints, the treatment received and pathology diagnosed, which was not controversial. Clinical assessment of his cervical spine was said to be normal, with a full range of movement. Examination of the left elbow displayed subjective tenderness over the lateral epicondyle and the power of grip in his left hand reportedly reproduced some lateral epicondyle pain, with the examination of the right elbow apparently relatively normal. It was Mr Jones’ opinion that the plaintiff presented “with a history, clinical symptoms, signs and x-ray evidence of bilateral epicondylitis of the elbow joints”. Further, “there are no functional symptoms or signs in this patient’s presentation. I am unable to comment on any psychological reaction suffered by the patient.”[116]
[116]Exhibit 8 at DCB 120
113 As to fitness for work, he considered the plaintiff was –
“… fit to return to full time employment at work which does not require repeated gripping or gripping and twisting using his right or left arms and hands. A lift limit of 3 kg would be appropriate. [The plaintiff] would be most suitable to resume clerical employment and I believe he would be able to return to work at his former job with Hertz, excluding the requirement to lift heavy files, as this may have the capacity to exacerbate his elbow pain symptoms.”[117]
[117]Exhibit 8 at DCB 120
114 The defendant also had the plaintiff examined by a rheumatologist, Dr Tony Kostos, who reported on 17 May 2018.[118] He took a history from the plaintiff that ultrasounds had “revealed tears in both his arms and a diagnosis of tennis elbows on both sides was made”.[119] I note that Dr Kostos was in receipt of the ultrasounds of 2012, 2013 and March 2018. At present, he was suffering constant pain in the elbows which was currently worse on the left side. There was no complaint of any pain in his neck, shoulders or other limbs. He was not taking any medication. The examination was apparently normal, although neck movements were slightly restricted but were not associated with any discomfort and his shoulders showed a full range of pain-free movements.
[118]Exhibit 10
[119]Exhibit 10, DCB 122
115 Dr Kostos then recorded the full gamut of the ultrasound findings from 2012 until 2018.[120] There was no specific comment by him on the findings contained therein relating to the tears, the lateral epicondylitis, the tendon tendinopathy, or the bilateral common extensor origin tendinosis. The diagnosis was one of “Chronic Pain Syndrome” and further, Dr Kostos recorded “there is not one aspect of his history or examination that is consistent with lateral epicondylitis”. Further, he recorded:
“It is quite apparent that there were significant psychological and social factors already present at the time this man’s symptoms began and he had reduced his hours after three years due to ‘stress’.”[121]
[120]Exhibit 10, DCB 123-124
[121]Exhibit 10, DCB 124
Analysis
116 The gradual onset of symptoms whilst performing work duties and the temporary recovery thereof when ceasing those duties lend support, in my opinion, to the opinions expressed above which relate the bilateral elbow pain to the work duties thus described, on the background of an individual predisposed to suffering those complaints.
117 The chronicity of the symptoms complained of is consistent with the ongoing findings on ultrasound investigations from 2012 until 2018 of at least bilateral common extensor original tendinosis with partial tears which would be amenable to physical treatment.
118 I consider that there is no other cause that has been revealed which would produce those symptoms as stated by Dr Karna above.
119 The plaintiff, in my view, was honest and straightforward under cross-examination and I accept that he pursued all available efforts available to him to return to work with restrictions.
120 I accept that there are minimal findings with respect to the neck or shoulders and that there is virtually no ongoing treatment with respect to any other pathology.
121 I consider that there is a significant organic basis for the plaintiff’s ongoing symptoms and, accordingly, there is either no need for disentanglement or, if I am wrong in that regard, I consider that the lack of ongoing impairment with respect to any other body function is such that the plaintiff has discharged the onus in any event.[122]
[122]See in particular paragraphs [104], [108], [111], Exhibit 10, DCB 124
122 Having accepted the plaintiff as a witness of truth, he has demonstrated, in my view, that the consequences of the bilateral elbow condition, the pathology of which has been described above, is such that it meets the “very considerable” test, and leave will be granted to issue proceedings at common law for pain and suffering damages.[123]
[123]See in particular affidavit sworn 26 September 2017, paragraph [21], and affidavit sworn 19 June 2018, paragraphs [2]-[17] – exhibit A
123 I will hear the parties as to any further orders.
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