Pendlebury v Victorian WorkCover Authority
[2023] VCC 1556
•6 September 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-23-00161
| BEAU PENDLEBURY | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 and 29 August 2023 | |
DATE OF JUDGMENT: | 6 September 2023 | |
CASE MAY BE CITED AS: | Pendlebury v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1556 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – Carpal tunnel – Pain and suffering
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Church v Echuca Regional Health (2008) 20 VR 566; TTB SMS Pty Ltd v Reading [2020] VSCA 203
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin SC with Mr G Pierorazio | Arnold Thomas and Becker |
| For the Defendant | Mr R Stanley | Lander and Rogers |
HIS HONOUR:
Introduction
1This is an application for serious injury brought pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”).
2Specifically, the plaintiff claims to have suffered a serious physical injury pursuant to s325(a) of the Act, by way of an injury to his right dominant wrist/hand.
3The proceeding was conducted in the “usual manner”. The plaintiff tendered a court book that included three affidavits sworn by him, together with other relevant documents. The defendant similarly tendered a court book, as well as surveillance and TikTok video material and other clinical records. The plaintiff gave oral evidence. I have considered the evidence, together with the transcript of the plaintiff’s oral evidence, and the parties’ submissions. The legal principles are otherwise well-known and not in dispute.
4The dispute is a narrow but important one: namely, whether the plaintiff’s pain and suffering consequences meet the “very considerable” test, noting that the plaintiff seeks leave to commence a proceeding for pain and suffering damages.
5The plaintiff’s background and circumstances of injury are not in dispute. He is now 43 years of age and lives with his partner and her children in Warrnambool. He is right-handed. He was raised and educated in Horsham. He has a history in manual-type employment.
6In approximately early May 2019, the plaintiff commenced employment with JBS Australia Pty Ltd (“the employer”) at an abattoir. Within several weeks of commencing that employment, he developed symptoms in his right wrist/hand, leading to a diagnosis of carpal tunnel syndrome. Ultimately, he came to a right carpal tunnel decompression surgery on 16 January 2020.
7The plaintiff is currently engaged in full-time employment. Since the right carpal tunnel, he has complained of symptoms in the left wrist/hand, which do not form part of the proceeding before the Court. He has no treatment for the right carpal tunnel condition. The thrust of his evidence, to which I shall return, was that he is now capable of most activity, but repetitive use of his right-hand caused pain and related symptoms.
8The defendant accepted that the plaintiff suffered injury with the employer, namely a work-related right carpal tunnel syndrome, for which he required surgery. The defendant disputed that the plaintiff had suffered a “serious injury”. In short, it submitted that the plaintiff had a good result from surgery, with little or no ongoing impairment consequences. In addition, the defendant raised as an issue the credit of the plaintiff.
Medical evidence
The plaintiff’s treating medical evidence
9The medical evidence in this proceeding is relatively limited.
Dr Touraj Oveisi
10The plaintiff was treated by a general practitioner, Dr Touraj Oveisi, at the Deer Park Medical Centre. In a report dated 28 July 2020,[1] Dr Oveisi described how he first saw the plaintiff on 10 June 2019 for bilateral hand pain, more severe on the right-hand side, with numbness in the thumb, index, and middle fingers. He recorded a referral to a neurologist and then to a neurosurgeon, Mr Alex Adamides, for right carpal tunnel surgery. Dr Oveisi described the plaintiff having an uneventful recovery from the right-hand surgery. He said there had been no investigation of the plaintiff’s condition after March 2020, and that he expected the plaintiff to have a full recovery in his right hand. He noted the plaintiff was cleared for full duties without any restrictions from 18 March 2020.
[1]Amended Plaintiff Court Book (“PCB”) page 101.
Mr Alex Adamides
11Mr Adamides first consulted with the plaintiff on 16 October 2019.[2] He performed the right carpal tunnel surgery on 16 January 2020.[3]
[2]PCB 93.
[3]PCB 95.
12In a letter to Dr Oveisi dated 13 February 2020,[4] Mr Adamides said the plaintiff had a “severe carpal tunnel syndrome on the right for which he had decompressive surgery which was uneventful”. Mr Adamides said, “[h]is symptoms in the index finger and thumb have significantly improved and he no longer experiences significant pain and the numbness has resolved although he still has some numbness at the tip of his middle finger. I expect that will settle with time”.[5]
[4] PCB 97.
[5]Ibid.
13Mr Adamides provided a comprehensive report to the plaintiff’s solicitors dated 8 June 2021 that summarised his treatment of the plaintiff.[6] He recorded his post-surgical review and improvement in the plaintiff’s condition. He described how, at the last review on 12 March 2020, the plaintiff had continued to show improvement and had “almost complete resolution of his symptoms”.[7] He reported that the plaintiff had gone back to modified duties and was managing well and was keen to go back to full duties. He also noted left-sided symptoms which were not severe. Mr Adamides described the plaintiff’s prognosis as good and said in his report that the plaintiff “should be able to go back to his premorbid work and leisure activities”.[8]
[6]PCB 98.
[7]PCB 99.
[8]Ibid.
14That is the extent of the relevant treating material. Self-evidently, it is limited, and now out of date. It described the carpal tunnel condition, surgery, and an anticipated good prognosis.
The medico-legal material
15The medico-legal material was also limited.
Dr Sachin Khullar
16Dr Sachin Khullar is a sport and exercise medicine physician who examined the plaintiff on 17 December 2021 and produced a report dated 18 December 2021 “only to evaluate the degree of permanent impairment”.[9] In that capacity, Dr Khullar took a history from the plaintiff, a sequence of injury and ongoing concerns. He also conducted a clinical examination. He recorded that the plaintiff reported decreased sensation in both hands. He also recorded on clinical examination that “[n]o weakness was noted on strength testing of his wrist, thumb and fingers in both hands. No motor and sensory weakness was noted in both the upper extremities proximal to the hands.”[10]
[9]PCB 113.
[10]PCB 117.
17Dr Khullar conducted grip-strength assessment by Jamar dynamometer and recorded the results of that in his report. As best as I can interpret those examination results, they revealed a mild loss of grip strength.[11] Dr Khullar went on to comment on why he did not include grip-strength weakness in the impairment assessment and said that it was because “on manual testing, no weakness was noted”.[12]
[11]PCB 118.
[12]PCB 119.
18Dr Khullar’s report provided some limited support for the proposition advanced on behalf of the plaintiff of some reduction in grip strength, but it needs to be considered in the context of the totality of the report and the limitation of the opinions expressed by Dr Khullar as of 17 December 2021 for the purposes of an impairment assessment and a consideration of “serious injury” as at today.
Dr Robyn Horsley
19The final and most recent medical evidence is contained in a report from Dr Robyn Horsley, occupational physician, who conducted a Zoom examination of the plaintiff on 4 April 2023 and produced a report of that date.[13]
[13]PCB 105.
20Obviously, the nature of the Zoom examination limited Dr Horsley’s ability to conduct a physical examination or to conduct any useful assessment of the plaintiff’s grip strength.
21Dr Horsley took a history of the injury, treatment, and symptoms. In respect to symptoms, she recorded that:[14]
“Mr Pendlebury stated when he attempts repetitive heavy manual activities, he experiences increasing numbness and pain in the right hand. However, if he avoids such activities, he can still experience occasional numbness into the thumb, index finger, and middle finger of the right hand, but rarely pain.
He has no symptoms on the left side. He has no neck or right shoulder symptoms.
The altered sensation in the right hand can occur up to a couple of times per day, depending upon his level of activity. When he stops the activity, the symptoms resolve. The last time he had severe numbness in his right hand was January 2022, when it lasted for two to three weeks. At the time, he was working at the Terang Rural Store. He experienced chronic discomfort with the numbness, and it was treated with a cortisone injection. He has had no major issues since then.
His functional tolerances include normal sitting, dynamic standing, and static standing tolerances. He states that he is still cautious about driving. His comfortable driving period is 45 minutes in a manual car. He then can experience symptoms on the left side, with the repetitive changing of gears. He can experience altered sensation in his right thumb, index finger, and middle finger if he does off road four-wheel-driving for any extended period of time.”
[14]PCB 109.
22As mentioned, Dr Horsley could not conduct a physical examination over Zoom. She said that the plaintiff experienced residual symptoms, “but they are low grade”.[15]
[15]PCB 110.
23Dr Horsley went on to say that the plaintiff was fit to work full-time but that the following work restrictions should be considered:[16]
“• Avoidance of repetitive forceful gripping of the left and right hand;
• Avoidance of repetitive exposure to tools with a vibratory component;
• Avoidance of prolonged grip involving the left and right hand;
• Avoidance of repetitive flexion and extension of the left and right wrist.”
[16]Ibid.
24Dr Horsley recorded that the plaintiff had then commenced work with a company called Steamatic and that he had a capacity for suitable employment.[17]
[17]PCB 110.
Summary of medical evidence
25That is the extent of the medical evidence.
26First, it revealed that the plaintiff had a severe right side carpal tunnel syndrome for which he required decompressive surgery.
27Second, the treating practitioners described a good result from the carpal tunnel surgery and close to a complete recovery from symptoms in the right wrist and hand by March 2020.
28Third, the plaintiff has no documented treatment for the right wrist/hand since March 2020, but he has had treatment for the left wrist.
29Fourth, consistent with the medical evidence, I accept that the plaintiff could be described as stoic. He worked on with symptoms until he had surgery. He has continued to look for work, including utilising the help of specialist job seeking agencies and looking for work at times when he has had other personal difficulties. I accept he is not a man afraid of hard work.
30Fifth, consistent with my comment in the previous paragraph, the plaintiff has continued to seek and obtain manual type employment, including his current role with Steamatic, but in doing so he has not required any active treatment, apart from over-the counter pain killers.
31Sixth, taken at its highest, there is some support in Dr Khullar’s report for a mild loss of grip strength in the plaintiff’s right hand as of December 2021. But I consider the evidence of that to be equivocal and it does not suggest there was a significant problem with grip strength as of December 2021.
32Seventh, Dr Horsley’s evidence is the only recent medical report and really the only report dealing with any claimed ongoing impairment consequences. Her evidence supports a conclusion that the plaintiff has ongoing symptoms that are essentially activity-related. As she noted, if the plaintiff avoided aggravating activities, he could still experience occasional numbness in the thumb, index finger, and middle finger of the right hand, but rarely pain. Dr Horsley’s evidence supports a conclusion that repetitive use of the right hand may provoke some mild symptoms and may have some interference for repetitive, gripping type activity.
33Eighth, and finally on this topic, there is no suggestion in the medical reports of any need for ongoing treatment for any right wrist/hand symptoms.
34In the context of the conclusions regarding the medical evidence, I next consider what the plaintiff has said about his impairment and impairment consequences. But in doing so, I record the fact that the medical evidence is limited, supports a conclusion of a good result from surgery and is not compelling for a finding of a “very considerable” consequence.
The plaintiff’s evidence
35The plaintiff swore three affidavits and gave oral evidence.
36In his first affidavit, sworn 12 August 2022,[18] he described his background, employment with the defendant, and development of symptoms. He described the surgery and resigning from his work with the employer. He then described how he subsequently obtained work at a rural store in Terang, which caused increasing symptoms in the left wrist, requiring a cortisone injection.[19] He went on to say that he left the job at the Terang Cooperative because he could not cope. He then described other health conditions, and then set out the ongoing symptoms in his right hand. He said as follows:[20]
[18]PCB 11.
[19]I note that Dr Horsley refers to an injection in the right wrist, which appears to be an error – PCB 110.
[20]PCB 14-15, paragraphs [25]-[38].
“I continue to suffer from ongoing symptoms in my right hand with pain particularly in my thumb and index finger. My right hand feels weak and I suffer from a loss of grip as a result of which I tend to drop things. In addition, I suffer from similar symptoms in my left hand, in particular my thumb and index finger.
The pain affects my ability to sleep from time to time.
I find that when I am driving, I continually need to re-position my hands as I develop numbness and pain in both hands.
Simple things such as picking up coins on a flat surface can be problematic and I need to slide them to the edge in order to be able to pick up same. Even picking up thin pieces of paper from a desk and buttoning and unbuttoning shirts can be frustrating, as can using a knife when eating.
Currently my general practitioner in Warrnambool is Dr Singh at the King Street Medical Clinic.
I do not want to rely on painkillers as when I was put on strong painkillers initially, I became addicted and this led to consumption of other drugs such as ice, and I do not want to go down that path again. I have tried various creams and gels in the past but they do not help. A hot shower however does help relieve the symptoms.
Around the home I find that I have to perform chores in moderation. For example, I might mow the lawns only a small section at the time, first the front yard and then the back yard although sometimes a neighbour helps me out. I have probably only washed the car once in 3 years and rely on a car wash or otherwise my partner washes the car for me.
Not only has the injury had an impact on my ability to get back to work, it has had a significant impact on my day to day activities.
Before the injury, I used to play and coach competition volleyball, something I have not been able to resume because of the symptoms in my hands.
I also own a dirt bike which I would take out regularly, but now find that after being on the bike for more than about 10 minutes, I need to stop due to increasing symptoms.
I own a 4-wheeldrive, a Prado, and in the past used to drive this regularly, sometimes taking the kids camping, all over the State and indeed on one occasion, drove all the way up to Cairns. There is little chance of being able to do that now and if I attempt that, it would take me a whole lot longer as I would have to keep stopping to rest. In the event of a flat tyre or a breakdown, I would have difficulty performing a recovery or changing a tyre.
I am restricted in terms of what I can do with my children. For example, I used to enjoy playing the guitar, and my son also plays the guitar now. I have had to give up playing the guitar because my fingers won’t work properly.
Similarly, my son, who is high end autistic and extremely intelligent, is into computers. I am restricted in terms of helping him with this activity as using a screwdriver and picking up screws when working on computer components is difficult and frustrating.
I consider that I have been seriously injured as a result of my injury due to my past loss of wages, my future loss of earning capacity and effects of the injury on my lifestyle and enjoyment of life and I request that my application for serious injury be granted.”
37Pausing, as can be seen from his first affidavit, the plaintiff described significant ongoing symptoms in the right wrist/hand, such that he had been unable to continue in employment.
38But it transpired during his oral evidence that the plaintiff was in fact working when he swore the first affidavit. That is a segue to the issue of the plaintiff’s credit, to which I shall return.
39In his second affidavit, sworn 13 June 2023,[21] the plaintiff was more expansive about his work history before commencing with the employer and what he had done after suffering injury. He set out his current employment with the company known as Steamatic. He described that work as follows:[22]
“After that job, about 2-3 months ago I commenced work with Steamatic, a disaster recovery team. Effectively, my job is to go out to people’s homes which have been affected by water damage, burst pipes and the like. I perform this work in a team of 2. We perform moisture readings and set up fans for drying out of flooring and carpets. I earn just over $900 per week. Although it is fairly light work, it can be difficult because of my injuries.
Indeed, if I overdo things, I tend to suffer from severe pain in my hands and a loss of feeling and sensation and have difficulty holding onto things.”
[21]PCB 17.
[22]PCB 19, paragraphs [16]-[17].
40In the second affidavit, he again described ongoing difficulty for tasks such as driving and using his hands/arms to build things and cut timber and the like.
41The plaintiff then swore a third affidavit on 18 August 2023.[23] That affidavit also expanded upon his work with Steamatic. He said as follows:[24]
“l feel very fortunate to have been able to finally procure a job where I am able to work within my restrictions given the issues with my hands. The work is not overbearing and is shared between myself and another worker, Patrick, who is much younger than me, about 21 years of age. Having said that, l find that if I am performing a particular task which is difficult for me, I can switch jobs with Patrick. For example, when we are performing remediation work, this might include stripping plaster and sanding back the timber using a sander. I can generally manage this task for short periods of time without aggravating my symptoms and have indeed modified my own sander to make it easier. When it becomes too much for me, I tell Patrick that my hands are getting sore and ask him to take over for me and I go onto perform another task. Patrick is aware of the issue with my hands and is happy to help.
At the end of the day when I am performing a more physical job such as remediation work, my hands are effectively stuffed and really sore, the left hand more so than the right.
Outside of work, because of my injury, I do not get up to a lot. As I have previously deposed, I have only gone fishing once, maybe twice in the last 2 years since relocating to Warrnambool. Sometimes I go for a bit of a walk and in this regard, my doctor has informed me that I have virtually no Vitamin D and I need to get outdoors and get some sun. Otherwise, I tend to spend a lot of my time at home.”
[23]PCB 22.
[24]PCB 23, paragraphs [6]-[8].
42The plaintiff also tendered and relied on an affidavit from his partner Ms Renae Jerram, sworn by her on 18 August 2023.[25] She set out her observations of the plaintiff and his injuries as follows:[26]
“I regularly observe the difficulties Beau has with his hands. His left appears to be worse than his right.
He drops things from his hands frequently. Sometimes his hand goes numb and when this happens I see that he does not realise when he drops things. For example he has dropped his wallet from his hand before and not known as he could not feel his hand.
When Beau sleeps at night I find that he sleeps with his arms hanging out of the bed. He is not able to lie on his left side and because of this, is tossing and turning all night. I don’t believe he sleeps much and wakes several times throughout the night because of the pain in his hands.
He often struggles with putting his shoes on and I help him out.
I find that he is not able to hold items in his hand for long, I see him swapping his hands constantly.
We take it in turns to mow the lawn because he is not able to mow the whole lawn. He finds the vibration makes his hands go numb. He sometimes does small parts of it then I will do the remainder. Our neighbour is also helpful and is aware of Beau’s injuries so usually helps to mow our lawn.
Around the house he sometimes helps me with the cooking. I usually do most of the cooking though because I do not want him to aggravate his injuries or be in pain. Sometimes when he cuts things the knife moves around and he has dropped it before too. This scares me. I normally tell him to rest when he asks if I need help. I am worried that if he helps at home he will be in pain and will then struggle at work the next day.”
[25]PCB 90.
[26]PCB 91, paragraphs [9]-[15].
The cross-examination and credit
43The plaintiff was cross-examined about the contents of his affidavits. In short, it was put to him that he had exaggerated in several respects.
44First, he was cross-examined about the assertion in his first affidavit that he was not working. In the end, he accepted that the affidavit was sworn on a Friday, probably after he had finished work for the day at a local tyre centre where he was then employed as a tyre fitter.[27] He was cross-examined on the basis that he had exaggerated his incapacity for work in his first affidavit, which he said was incorrect.[28] When asked why he had omitted relevant employment from his first affidavit, he responded “I don’t know”.[29]
[27]Transcript (“T”) page 16, Lines (“L”) 16-29.
[28]T 17, L 15-17.
[29]T 18, L 4.
45Next, the plaintiff was cross-examined about his psychiatric health. It transpired that he had given an abridged version of his pre-injury psychiatric health in his affidavits and had omitted some relevant matters to do with his recent psychiatric health, including hospitalisation, but ultimately nothing much turned on that.
46The plaintiff was also cross-examined about two motorcycle accidents that occurred within a short period of time in July 2021. He was cross-examined about the ambiguous nature of his first affidavit when describing those accidents. At the end of the day, again not much turns on the evidence about the motorcycle accidents. There is no objective evidence of any real ongoing consequences from those accidents.
47The plaintiff was cross-examined about his level of day-to-day activity. He was cross-examined about restrictions he has for using both hands, but in particular the right hand. He was cross-examined about matters such as whether using a combination of a clenched fist and a closed hand to carry something would be difficult because of his weak grip strength, and he agreed that was correct.[30]
[30]T 43, L 24-30.
48The thrust of the cross-examination was that he would avoid, or have difficulty, using his right hand to grip or carry items, to which he broadly agreed. That was then the trigger for the defendant to play covert video surveillance obtained of the plaintiff.[31] The defendant obtained the surveillance at various times on 27 December 2022. Much of the video was unremarkable and showed the plaintiff relaxing at the Lake Pertobe playground in Warrnambool. He was seen to drive a car to and from Lake Pertobe. He was also seen to lift an esky into a car, using both hands to grip and lift the esky.
[31]Exhibit D1.
49The defendant also tendered and played several short videos apparently obtained from the plaintiff’s partner’s TikTok account.[32] Those videos again were relatively unremarkable, but did show the plaintiff on a camping trip, holding his stepdaughter, and peeling potatoes.
[32]Exhibit D2.
50Video surveillance must, of course, be seen for both its time and context.[33] In this proceeding, it is relevant that the video surveillance is relatively short and has not been provided to any medical practitioner for comment. In my view, the video surveillance neither proved nor disproved that the plaintiff had ongoing right-hand symptoms. What it did demonstrate was that when under covert surveillance he was able to engage in ordinary and mundane daily activity.
[33]Church v Echuca Regional Health (2008) 20 VR 566.
51The video surveillance and the cross-examination were relied upon by the defendant both for the purposes of credit, and also in respect to the submission that the plaintiff simply did not have a “very considerable” pain and suffering consequence.
52As has been said many times, the credit of the plaintiff is a relevant consideration in a determination of the seriousness of an injury and the extent of “pain and suffering” consequences.
53In this proceeding, I found the plaintiff to be a somewhat belligerent and defensive witness, but I suspect that might be part of his personality. Doing the best I can, he appeared to give evidence in a relatively straightforward manner, and in the manner that he considered appropriate. Overall, in the witness box he came across as a reasonable witness.
54But equally, there is no doubt that the evidence in his first affidavit is false where he said he was off work at that time. That much was acknowledged by his senior counsel in closing address, leading to the appropriate concession that there had been some impact on his credit.
55There was an attempt to explain away the inaccurate evidence in the first affidavit based on evidence in re-examination that it had been prepared on instructions to lawyers at a time when he was not working, there had then been a delay in executing it, and so that explained the error when plaintiff said he was not working.[34] But as I indicated to his counsel, that might be an excuse, but it is hardly a satisfactory explanation. At the end of the day, he swore a document to be true and correct, when it was not. There is no evidence that he did not read it or understand it before swearing it. The only conclusion is that he swore a document that was false.
[34] T 67, L 4-14.
56In my view, the credit attack on the plaintiff was successful to the point where the overall assessment of the seriousness of his claimed impairment consequences must be viewed through the lens of the unreliability of aspects of his evidence.
57However, as I shall explain, ultimately not much turns on this.
Serious or not?
58The assessment of pain and suffering consequences involves a value judgment informed by my conclusions in respect to the credit of the plaintiff, and by reference to the evidence that I accept of impairment and impairment consequences. In considering whether the plaintiff has demonstrated a “very considerable” impairment consequence, I must consider the range of possible injuries and impairment consequences, and not just those that come before the courts. In that regard, the defendant referred in detail in final submission to the Court of Appeal decision in TTB SMS Pty Ltd v Reading.[35] The defendant submitted that some comparison could be made between the claimed injury in that case and the one in the current proceeding.
[35][2020] VSCA 203.
59In final submission, counsel for the plaintiff made much of the pre-employment documents created by the employer. Those documents demonstrated that, before commencing employment, the plaintiff passed a medical and was considered suitable for the manual work at the meatworks. Grip-strength testing was apparently conducted, although the method of that testing is not set out. It described him as having good grip strength on both the left and right, and able to grip 65 kilograms on the left and 75 on the right. It was recorded that the plaintiff was “[a]s strong and fit a candidate as we ever really see. Suitable for heavy and repetitive roles.”[36]
[36]PCB 144.
60There are then entries in the employer’s onsite medical clinic, including entries in March 2020 in which the plaintiff described no symptoms at all in his right wrist, but in the context of wanting to get back on knives, to get back on full pay. The consultant, however, noted that there was wincing upon bracelet testing, and grip strength in the right hand was positive; and on that basis it was said he needed to remain on light duties.[37]
[37]PCB 142.
61The plaintiff next referred in submission to the continuing reduction in grip strength as recorded by Dr Khullar. It was submitted on his behalf that he was a man who was hard-working and keen to remain in work, as evidenced by the fact that he worked on with symptoms through until having the surgery on 16 January 2020. The Court was urged to accept his evidence of ongoing symptoms. The Court was urged to accept that heavy manual work either caused or increased symptoms, and so the plaintiff was in a pattern now where he was still able to engage in some day-to-day activity, avoided other activity, and had a flare-up of pain with his work.
62On the other hand, the defendant referred to what the plaintiff retained as a pointer against serious injury. It noted there was no ongoing treatment. It noted only the use of over-the-counter medication. The plaintiff had been able to return to some form of manual work. The video surveillance showed him able to engage in ordinary day-to-day activity, including carrying moderately heavy items, driving, using a motorbike, camping, and engaging with his family.
Consideration
63For the reasons that follow, some of which repeat earlier conclusions from the factual findings already expressed, I consider that the plaintiff has failed to demonstrate a “very considerable” impairment consequence.
64First, the medical evidence supports the conclusion that the plaintiff did suffer a right carpal tunnel injury with the employer for which he underwent surgery in January 2020.
65Second, there is force in the submissions on his behalf that he is a man who has been well-motivated to continue in employment and worked on with symptoms with the employer up to having surgery.
66Third, the medical evidence tends to the conclusion that the right carpal tunnel surgery was largely successful. The treating surgeon and the treating general practitioner expressed a positive prognosis and opined that the plaintiff had the capacity to return to full work duties.
67Fourth, the plaintiff does not appear to have had any treatment for the right wrist since March 2020. Any recent treatment has been for the left wrist.
68Fifth, aspects of the plaintiff’s evidence were clearly wrong, and there is an unreliability to his evidence that must be considered.
69Sixth, of course I must consider the whole of the evidence. I accept the objective evidence in Dr Khullar’s report of mild grip strength in December 2021. There is no up-to-date testing of grip strength.
70Seventh, the only recent medical report is that of Dr Horsley. There are limitations with her opinions, as they were based on a Zoom examination, and, in a proceeding where the plaintiff placed emphasis on a loss of grip strength, then obviously the limitation to Dr Horsley’s opinion where a physical examination was not possible is obvious.
71Dr Horsley’s evidence does not assist the plaintiff on the issue of the objective assessment of his current grip strength. In fact, she did not obtain a history of reduced grip strength from the plaintiff. Rather, her evidence is of symptoms commencing if the plaintiff attempts repetitive heavy activities.[38]
[38] PCB 109.
72Dr Horsley’s report must be considered in light of the unreliability of some of the plaintiff’s evidence, but, taken at its highest, in my opinion, does not tend towards a conclusion of a “very considerable” pain and suffering consequences.
73Eighth, I accept the plaintiff may have some symptoms with repetitive heavy activity, but I consider that the impairment consequences to him are minimal.
74There is no suggestion that he requires time off work in his current full-time employment. As mentioned, he has no treatment, and any use of medication is limited. Both he and his partner gave evidence that the left wrist was in fact worse than the right, which of course is not relied on. The video surveillance demonstrated him to be able to engage in ordinary day-to-day activity and to enjoy pleasurable activities with his family. I conclude there has been no real interference with his social, domestic, or recreational activities.
75The evidence, at its highest and making an allowance for the unreliability of some of his evidence, is that currently repetitive heavy work causes some symptoms in the right wrist/hand, but those symptoms can be eased by ceasing such activity.
76Overall, considering the onset of symptoms, surgery, and impairment consequences, the plaintiff has a condition which might be capable of being described as “significant” or even “marked” but, in my view, does not meet the test of “very considerable”.
77For those reasons, the proceeding is dismissed.
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