Pape v Royal Automotive Club of Victoria Ltd
[2023] VCC 393
•10 March 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-21-00214
| MELISSA PAPE | Plaintiff |
| v | |
| ROYAL AUTOMOTIVE CLUB OF VICTORIA LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 March 2023 | |
DATE OF JUDGMENT: | 10 March 2023 | |
CASE MAY BE CITED AS: | Pape v Royal Automotive Club of Victoria Ltd | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 393 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – work injury – injury to the left wrist – pre-existing left knee injury – whether left wrist injury affects recovery of left knee injury – whether consequences due to left wrist or left knee injury
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited:Duke v VWA [2021] VCC 1599; TTB SMS v Reading [2020] VSCA 203
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms S Bailey | Arnold Thomas & Becker |
| For the Defendant | Mr B McKenzie | Sparke Helmore |
HIS HONOUR:
1Melissa Pape claims that her left wrist injury is a serious injury within the meaning of s335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”). It is not in dispute that she sustained the injury at work, that it forced her off work for a short period, or that it ultimately required surgery. What is in doubt is whether the impairment consequences of that injury rise to the level required in the Act to be considered a serious injury.
2Primarily, based on the clinical assessment and opinion of the medical panel, and recorded in its reasons for opinion, but also from my weighing of the impairment consequences she has deposed to in her affidavit material, I find that Ms Pape cannot satisfy her burden. Accordingly, her claim must fail.
3Factual background. Large parts of the background factual material are non-contentious. This is because the parties in this matter referred medical questions to the medical panel to be answered. With that referral, the parties sent an agreed joint statement, dated 9 October 2021, in respect of both claims which she brought at that time. Namely, a left knee claim and also the current left wrist claim.
4The left knee claim is not currently pressed in respect of a serious injury determination before me. However, impairment consequences, such as limitation of movement, for example, remain relevant to the overall impairment consequences claimed in respect of the left wrist. For this reason, I adopt paragraphs 1 to 20 of the joint statement, and they do not need repeating here.
5Broadly, the factual background is that Ms Pape was employed as a part-time bar attendant and served before the defendant. She sustained injury to her left knee in 2013 and put in a WorkCover claim which was accepted. She was off work for a short period and then returned to work.
6She developed left wrist pain in early 2018 and, ultimately, put in a WorkCover claim in October 2018. That was accepted. She went on to modified duties and, ultimately, after an ultrasound injection into the left wrist did not alleviate her symptoms, she had surgery performed by Associate Professor Eugene Ek in September 2019. Since that time, she has moved house and changed jobs. She presently works full time as a receptionist and services worker for Saltwater Properties. She is right-handed.
7The medical material. The medical material is of limited use in this matter. The plaintiff's reports of Associate Professor Ek detail a situation up to and immediately after surgery. Mr Ek's reports are now some three years old. They do not deal with the stabilised condition the Court is required to assess as of this day.
8The defendant's material of Associate Professor Bruce Love and Dr David Barton deal largely with the left knee and are from 2014. They are largely irrelevant, other than for isolating in time the effect of the left knee injury. The report from Dr Peter Dixon is from 2019 and does not deal with the stabilised post-surgical position. I put it to one side.
9The report of Mr Damien Ireland, hand surgeon, is dated 8 December 2020.[1] He notes improvement since surgery. He recorded ongoing pain two to three times a week and a decrease in dexterity. He noted ongoing limitation of her ability to kayak, which she put at two times per year, and her ability to sew. He recorded that she could do all activities of daily living but had difficulty with household chores, such as with screw top jars, making the beds and vacuuming. He noted there was no swelling or wasting about the left wrist.
[1] Defendant’s Court Book (“DCB”) 46 – 51
10On clinical testing he recorded that she was negative for DeQuervain Syndrome, negative for Carpal Tunnel Syndrome and did not have tendinitis. She was on no ongoing treatment regime, and she took no medication in respect of ongoing pain. I recall that Dr Terrence Saxby's report was in relation to the left knee and was largely irrelevant.[2]
[2] DCB 52 – 29
11The medical panel opinion and the reasons for opinion provided in February 2022 are largely confirmatory of Mr Ireland's report. The medical panel reasons, I consider, are very useful because it was a report which drew on the expertise of three independent medical practitioners, included a thorough in-person examination, was based on a detailed history taking, and is the most temporal in time to this Court's assessment.
12Drawing on the material set out above, I find the plaintiff has sustained a left wrist injury related to her work. That injury is the development of the complex ganglion at the left wrist, requiring surgical excision. That injury required treatment with a steroid injection and then a surgical incision to remove.
13The treatment regime, to a large extent, resolved the tingling and numbness. The surgical scars have healed uneventfully. I find there is no left wrist joint instability or signs of nerve disfunction. Wrist and finger strength in the left hand are normal. I accept the medical panel finding that structurally she has a normally functioning left wrist.
14Something must now be said about the plaintiff's evidence. The plaintiff was called, adopted her affidavits and was permitted to give limited evidence regarding her participation in pilates and physiotherapy classes. This was because she had sought an adjournment upon the hearing - on the morning of the trial, to obtain lay evidence of these classes. But this application was denied on the basis that she be allowed to provide additional short viva voce evidence on this topic.
15It was submitted by the defendant that the plaintiff's evidence was significantly embellished. I agree with that submission for the following reasons. First, the plaintiff tried to draw in her pilates and physiotherapy sessions as being (a), compromised by her left wrist injury; and (b), as being in some way related to treatment for ongoing left wrist problems. A review of the clinical notes does not support either claim.
16The notes record as a historical fact that she has had a left wrist WorkCover injury, but not that it is a cause of the ongoing treatment or that any exercise is for treatment of the left wrist. In fact, many exercises involved and require bilateral arm and hand use. This suggests, clearly, no modification of the exercises were required, let alone that the exercises were for the left wrist.
17Further, she has been having this pilates and physiotherapy treatment for some years. It is not mentioned in the first affidavit, the reporting of history taken by the medical panel or the second affidavit. It also runs counter to the sworn evidence in her affidavits, and recorded also by the medical panel as having no ongoing treatment regime.
18Second, the consequences as to her kayaking were not fully explained. On first reading of her affidavit, it could be thought that she couldn't kayak because of her left wrist, and that this was a regular pastime. In cross-examination, however, she conceded her left knee significantly reduced her capacity to kayak well prior to 2018, and further that it was only one to two times per year, anyway.
19Similarly with her swimming. It was ultimately wrung out of her that it was her left knee that stopped her swimming in the ocean and not her left wrist. No such distinction was made in the affidavit.
20More tellingly in the affidavit material, filed in the left knee case, she deposed to not being able to rock climb because of her left knee. In this case, concerning her left wrist, her affidavit made no mention of the left knee impacting on her rock-climbing and left the strong impression that he left wrist was what stopped her. It was a false impression.
21Most telling was the way she concluded her second affidavit in this proceeding which notes, and I quote, 'I continue to suffer from discomfort in my left knee'. It was a clear attempt to play down the left knee injury. Yet in re-examination she described the left knee as having pain a few times per month that was 'unbearable', an eight to nine out of ten and involving hours of pain. This seems inconsistent with the description of the pain in the left knee simply as 'discomfort'.
22All of this indicates a significant attempt to downplay the impact of the left knee, to then bolster the impairment consequences of the left wrist. This was unimpressive and led me to seriously question the evidence being given as to the left wrist and as to whether it was accurate.
23Similarly, she deposed to being unable to do vacuuming because of the left wrist, yet she had told Dr Barton that this was because of her left knee.[3] It had to be wrung from her in cross-examination that she hired a cleaner as a result of her left knee injury.[4] This was evidence of the lack of candour in her evidence.
[3] DCB 70
[4] DCB 76, at paragraph [43]
24As to her pain, she has consistently said in her affidavits that the pain in her left wrist was occasional and intermittent.[5] The same was recorded in the medical panel's history, yet in re-examination she said that the left wrist pain starts on waking up and is constant until the night. This is an inconsistency of substantial significance.
[5] PCB 34
25She also sought to introduce new matters as consequences relating to her left wrist into the case during cross-examination. For example, she gave evidence that driving was difficult, that her holiday to Adelaide was hard because she couldn't wind the camper trailer up, and walking her dogs was impacted by her left wrist. None of this was in her affidavit material. It was unclear why not.
26Overall, I did find that the plaintiff sought to substantially play down the effect of the left knee injury so as to play up the left wrist injury consequences. I find that her evidence was significantly embellished and exaggerated as to the impairment consequences associated with the left wrist. I do not accept her evidence where it conflicts with the history and recordings taken by the medical panel.
27Ms Pape told the medical panel, and I find, that as at February 2022 she has intermittent left wrist pain but no tingling and no Carpal Tunnel Syndrome. The left wrist pain, I find, is not always present, and on the intermittent occasions that it is, the pain is mild in severity, being two to three out of ten, with ten being the worst. She has no pathological swelling about the left wrist or forearm. I find that she does not need any treatment for her left wrist pain and she does not take any medication for it on an ongoing basis, save for the occasional painkiller.
28Consistent with the medical panel opinion, I find that the ongoing residual left wrist symptoms are a permanent condition likely to persist for the foreseeable future. I accept the history she provided to the medical panel that her work is not affected by her left wrist injuries. I accept the history provided to the medical panel, and it is consistent with her affidavit material, that she cannot lift heavy pots or kettles about the kitchen with her left hand. I find this is a minor inconvenience as she still has the ability to move pots and kettles that are an average weight, consistent with the medical panel opinion of her largely intact occupational capacity.
29I do find that her ability to sew has been affected as she deposed. It is a factor I weigh in the consideration of the matter overall.
30I find, consistent with the medical panel, that she has the ability to return to a full range of her occupational duties. This includes her ability to work in restaurants or as a bar attendant. To the extent that the plaintiff suggested such would be difficult for her, I note she accepted that she could return to work in a café where carrying dishes was possible, so long as it was not over a long distance.
31I accept that she perhaps has some minor reduction in her dexterity, as recorded by Mr Ireland, but I do not consider that it is as significant as the plaintiff makes out. This is because of my finding that she has embellished her consequences. In the medical reporting of both Mr Ireland and the medical panel, that overall she has normal function in the left wrist and no underlying pathological issue to explain such loss of dexterity.[6]
[6] DCB 16
32Having set those matters out, I turn to consider what the plaintiff has retained by way of function after the left wrist injury. As I have found, she can work full time in a full range of occupations. She has retained the ability almost normally and to do all her normal activities of daily living. To the extent she is limited in household chores, I consider this to be a reasonably minor impediment, given that she is right-hand dominant and that this claimed injury is to the non-dominant left wrist. This is in accordance with the impairments to her ability to blow dry her hair, for example, and cut her nails using her right hand.
33She is reasonably pain free during most of the week, and on the intermittent occasions that she does sustain pain, she rates this at a very low level and only occasionally does she take any medication to deal with this pain. This is in contrast to medication that she takes for her left knee pain and the treatment regime she is constantly undergoing to manage that. I consider this means she is only suffering from reasonably minor intermittent discomfort associated with the left wrist injury. I record my finding that she has no ongoing treatment for the left wrist injury.
34I accept that the left wrist makes it difficult to go kayaking but this is an activity she did only two or so times per year and so this is not a consequence of great moment for her in the way and ability to do a weekly sporting activity might be. She further indicated to the medical panel that swimming and rock climbing were activities she could not do because of her left knee injury. While I accept that her left wrist injury may be a limitation in her being able to engage in these hobbies, I find that her enjoyment of these hobbies was already substantially foreclosed by her left knee injury. And the plaintiff herself notes this in her initial affidavit.[7] These impacts, then, are of no moment.
[7] Plaintiff’s Court Book (“PCB”) 35, at paragraph [37]
35To the extent that the plaintiff says she is not able to apply for jobs she would like to have, I prefer the medical panel opinion that the full range of occupational roles is available to her. To the extent that the plaintiff says she is not able to do things like make her bed daily, I consider this to be inconsistent with the medical panel opinion as to the range of occupational tasks she is able to complete in their findings on examination. I consider, in particular, this is an example of her embellishment.
36I consider she is able to do such tasks and is able to do the vast majority of household tasks unimpeded by the left wrist injury. I accept her evidence that she is not able to cook as freely as she used to, however, I consider she retains the ability to perform work in the kitchen largely as she has done in the past, given the medical panel's findings and also Mr Ireland's report.
37I do not accept her ability to read books, hold a phone or iPad is impacted by her left wrist injury. I consider that is inconsistent with the medical opinions. I reject her evidence on these points for the reasons set out above. I do not accept her ability to work as an optometrist is impacted by her left wrist injury. I consider this is inconsistent with the medical opinions and I reject her evidence on these points.
38I have read and considered the decision in Duke v VWA [2021] VCC 1599. It is materially different to the matter before me and I would not follow it. However, I also note it must be read in light of the Court of Appeal authority in TTB SMS v Reading [2020] VSCA 203. That sets out the guiding principles for the Court in the position it is in today.
39The plaintiff also deposes as to her intention to start a family and her fears of not being able to hold or care for a baby safely without help. I acknowledge the significance of these concerns, however, I am bound to assess the plaintiff and her consequences as I find them today, which are in circumstances where she does not yet have such parental responsibilities. Accordingly, I cannot find that these are consequences arising at the present time for the purposes of this application. I do, however, accept that as a result of her concerns she has gone to a support group, but this is not a consequence of great significance and does not appear to be an ongoing situation.
40In summation, then, I find that while there are impairment consequences of the left wrist injury, they are minor and do not rise to the level necessary to satisfy the tests set out in the Act. I will therefore deny the application.
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