Petrovic v Catalyst Recruitment Systems Pty Ltd
[2010] VCC 1729
•29 November 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-07-00314
| MILADINKA PETROVIC | Plaintiff |
| v | |
| CATALYST RECRUITMENT SYSTEMS PTY LTD | First Defendant |
| ARNOTT’S BISCUITS PTY LTD | Second Defendant |
| CGU WORKERS COMPENSATION (VIC) LIMITED | Third Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8 and 9 November 2010 |
| DATE OF JUDGMENT: | 29 November 2010 |
| CASE MAY BE CITED AS: | Petrovic v Catalyst Recruitment Systems Pty Ltd & Ors |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1729 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – – Accident Compensation Act 1985 – injury to the right wrist – pain and suffering – loss of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie SC with | Drakulic Lawyers |
| Mr D Connell | ||
| For the Defendants | Mr J Ruskin QC with | Lander & Rogers |
| Ms D E Galbally | ||
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of her employment with the first and second defendants from 2001 until July 2002 (“the period of employment”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s.134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is the right wrist.
Outline of Section 134AB
(i) Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages;
(ii) The impairment of the body function must be permanent;
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity;
(iv) By subsection (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”;
(v) I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders;
(vi) Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter;
(vii) Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
(viii) Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;
(ix) Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(x) I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 in reaching my conclusions.
5 The plaintiff relied upon three affidavits and gave viva voce evidence. She was cross-examined. The plaintiff also relied on an affidavit from her husband, Goulb Petrovic, sworn 8 August 2008, and her daughters, Dajana Petrovic and Sladjana Kocic, sworn 29 October 2010 and 31 October 2010 respectively.
6 In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
7 The plaintiff is presently aged forty three, having been born in Bosnia on 18 November 1967. She is married with two children. The plaintiff migrated to Australia in 1996 and that year she did some part time cleaning work with her husband.
8 In June 1997, the plaintiff commenced work with Arnott’s Biscuits Pty Ltd (“Arnott’s”) packing biscuits. In September 1998, her employment in that capacity was taken over by the first defendant, an employment recruitment service, and through that company she was re-employed by Arnott’s, the second defendant and she did the same work on a sub-contracting basis.
9 In August 2000, the plaintiff started to feel pain in her left elbow and forearm. On 25 August 2000, she reported suffering injury, and an Incident Form was completed. This was not a long lasting problem and the plaintiff continued working.
10 Because of the fast manipulative work the plaintiff was required to perform, in August 2001, she developed pain in the back of her right wrist and pins and needles and weakness of her right hand. There was also some swelling of the back of her hand and wrist.
11 The plaintiff saw a work doctor and was given about a week off work and had some physiotherapy treatment. She then returned to work on lighter duties for a while, and after some improvement, returned to normal work. However, her problem did not go away and she saw Dr Lim in September 2001.
12 Dr Lim gave the plaintiff anti-inflammatory medication and also suggested physiotherapy. The plaintiff paid for these medical and like expenses herself as she was not aware of her WorkCover rights at that time.
13 The plaintiff continued working on normal duties throughout 2001 and also in early 2002. However, her condition worsened and became particularly bad in July 2002. She then developed increasing pain and aching, along with swelling in her right wrist and hand.
14 The plaintiff was struggling at work and used her left upper limb to compensate for her disability. She requested help from other workers, but the speed of the line was too fast and she was not able to keep up.
15 The pain and swelling in the plaintiff’s right hand became worse and she ceased work on 17 July 2002. She enquired about lighter duties but none were available. It was impractical that she undertake such duties, because she was really only capable of doing some tasks with her left hand.
16 In cross-examination, the plaintiff said she loved her job, but it was not easy with the boss, and also the conveyor belt was going too fast. The plaintiff was on contract and not permanent, and that was one problem. They would not give her light duties after she was injured. She liked the job until she was injured. She denied having told Dr Strauss she was not happy at the job.
17 In re examination, the plaintiff confirmed that she liked her job. She liked work but after, she injured herself and then she could not get any lighter work, “that is when she had trouble.” The company was good, the money was reasonable and she knew a lot of people who were working there. She liked handling biscuits. The workers were allowed to take biscuits home, and it was also much cheaper to purchase them.
18 On 18 July 2002, the plaintiff filled out a Claim Form. Four days later she consulted Dr Lim. At that time, her wrist was painful with swelling on the back of her hand, and her wrist and hand regions were tender.
19 On 2 August 2002, the plaintiff received a redundancy payout and her employment was terminated. Arnott’s ceased trading around that time.
20 The plaintiff continued under Dr Lim’s care. Any type of use of her right hand and wrist caused an increase in her pain and swelling. The plaintiff was required to “cradle” her wrist to prevent spontaneous use and she developed some pain going up her arm, affecting her shoulder girdle.
21 Because of persisting problems, the plaintiff was referred to Mr Leung. A bone and CT scan of her right wrist were arranged and undertaken on 24 September 2002.
22 The plaintiff continued to have aching discomfort in the back of her right hand and also her wrist. Symptoms were worse with use or with gripping action. She was provided with a splint, which helped with pain to some degree. However, the pain tended to be worse in the morning after sleeping overnight without the splint.
23 The plaintiff had difficulty with fine dexterous movements of her hand and difficulty, for example, doing up buttons and driving a car with gripping the steering wheel. She became increasingly upset about her disability and inability to work, but her wrist prevented her from doing so.
24 The plaintiff was eventually referred to a specialist hand surgeon, Mr Tham, whom she first saw on 6 December 2002. The plaintiff advised Mr Tham that her problems arose as a result of the repetitive nature of her work in about the middle of 2002.
25 An ultrasound was arranged by Mr Tham on 12 December 2002, following which the plaintiff was advised of a problem associated with the swelling in her wrist.
26 Thereafter, the plaintiff continued with conservative treatment in the form of medications, creams and splinting, but was not improving. She did not have any meaningful use of her right hand and wrist, and any everyday type of use provoked a worsening in the pain and swelling.
27 Mr Tham operated on 22 May 2003 carrying out a procedure which he described to the plaintiff involved an excision of the swelling lump from her right wrist. She was also diagnosed as having a benign ganglion cyst and the extracted contents were sent for examination (“the first surgery”).
28 Following the first surgery, the plaintiff’s arm was elevated and she was not able to move it or use it for some time. She was given oral antibiotics. For a short time she felt a bit better, but eventually her symptoms returned and they came on in quite a pronounced way with pain and recurrent swelling.
29 A further splint was fitted and the plaintiff was referred to a hand therapy program, along with physiotherapy.
30 The plaintiff’s progress was very slow. The physiotherapy treatment was problematic, because it caused pain, and after having treatment twice a week for a while, the plaintiff only attended once a week. Further, in general, the exercises which she was given were also painful to carry out.
31 Despite this therapy, the plaintiff’s discomfort and pain continued and she had loss of movement following the first surgery. She found, at that stage, she needed to use two hands to simply lift a glass of water and also her shoulder continued to be sore.
32 The plaintiff continued under Dr Lim’s conservative care, but because of recurrent pain and swelling, a further right ultrasound was carried out on 18 August 2003 and the plaintiff was informed that possibly she had a recurrence of a ganglion.
33 The plaintiff returned to see Mr Tham, who organised an MRI scan of her right wrist on 29 September 2003. Thereafter, she was informed that a ganglion was not confirmed, but she still had some abnormal pathology associated with the right wrist region.
34 Mr Tham advised the plaintiff to continue with hand therapy and conservative treatment. The plaintiff also had a TENS machine from the physiotherapist. However, overall she was not improving. She still had aching pain and discomfort in the wrist and the back of the hand.
35 The plaintiff’s pain was significant more often than not and extended to her hand, and her symptoms were worse with ordinary simple use. She continued with her wrist support.
36 The swelling also continued, particularly in the web spaces of the plaintiff’s fingers. Since the first surgery, she also developed a disturbed sensation with some tingling and a cold sensation, particularly in her last three fingers, and she also had soreness over the surgery site. There was still a problem of pain going up her arm towards her shoulder. She was having trouble sleeping and analgesics were not really helping.
37 Mr Tham suggested an injection of steroid and anaesthetic. This proposed treatment gave the plaintiff concern and she obtained a second opinion from Mr Crock, who advised her the injection was worth trying.
38 On 5 December 2003, Mr Tham administered a steroid and anaesthetic injection into the plaintiff’s wrist. The procedure decreased the swelling and pain for a few weeks. The plaintiff continued with mobilisation exercises and physiotherapy and she was referred to the Victorian Rehabilitation Centre, (“VRC”) but no progress was made.
39 In April 2004, the plaintiff was referred to the Endeavour Hills Physiotherapy Centre, where she had further treatment. She was still then taking anti- inflammatory medication, but was having an adverse reaction in terms of stomach upset, and she could only take tablets infrequently. The physiotherapy treatment aggravated her pain and she was unable to continue beyond July 2004.
40 The plaintiff had further x-rays on 27 July 2004 and generally continued under Dr Lim’s care.
41 As the plaintiff’s condition was not improving, a second opinion was sought from Mr Ireland, who provided her with three options: namely conservative treatment and splinting, a repeat operation to remove the recurrent swelling or a major operation involving separation of her bones to try and reduce her pain. The plaintiff opted for continued conservative treatment, as she was very apprehensive about surgical options.
42 The plaintiff was prescribed Valium to help her sleep and this was eventually changed to Temazepam. She persisted with anti-inflammatories and put up with stomach upset because these tablets gave her temporary relief. She continued to wear the splint, as it was the main help she received, and gave her some protection from inadvertent knocks.
43 The plaintiff’s condition however, was not improving, and on 12 January 2005, she had a further ultrasound. At that time she still required home help. Just lifting a pot of food at home caused her right hand to become quite painful in January 2005.
44 As it became apparent to the plaintiff that conservative treatment was not helping, she then had a further appointment with Mr Tham, who recommended a second operation in August 2006. However, the plaintiff was uncertain whether or not to undergo this procedure and she continued conservative treatment.
45 The plaintiff attended an English language course through 2007, as a result of which her spoken English improved, although it is still inadequate and she requires an interpreter in most circumstances. The plaintiff’s literacy and written English is still very poor.
46 In cross-examination, the plaintiff said that following the English course she could read a little bit, but there were words she cannot understand. Counsel for the defendants asked the plaintiff questions in English which she was able to understand and answer to a limited extent.
47 The plaintiff was referred to Epworth Rehabilitation Centre (“Epworth”) in June 2007 and underwent initial assessment. Following a further assessment in July, it was recommended she was suitable for a pain management course (“the course”).
48 The plaintiff commenced the course on 21 August 2007, and was discharged on 22 February 2008.
49 The plaintiff benefitted from the course and for a time following discharge. She experienced a lesser level of pain and succeeded in having, on average, two reasonably good days each week. She had less flare-ups and in general felt less worried and stressed by her disabilities. She was able to reduce her medication intake and learned to pace herself and attempt tasks slowly.
50 In the course, the plaintiff was taught relaxation techniques, to walk regularly and do some stretching exercises. She used heat packs and performed exercises slowly when she felt better and more able to tolerate movement of her wrist and arm. She was told how to cope with her pain.
51 However, the benefits received from the course have not been fully sustained.
52 The plaintiff did not believe she was able to carry five kilograms at the end of the course. Her ability to carry things depended on the position she was in and for how long she had to carry the particular weight.
53 The plaintiff agreed that she is quite anxious and depressed because of her restrictions. Even brushing her teeth, she suddenly feels pain and distress.
54 Whilst being more active after the course, even though she tried to do extra things, when she exerted herself. The plaintiff experienced increased pain at night, in particular. She was also using tablets like Voltaren. She had good and bad days. She agreed that she had about two pain free days a week, and at other times there were flare-ups.
55 As of August 2006, when the plaintiff swore her first affidavit, she had ongoing pain and restriction of movement in her right wrist, the back of her right hand and into her fingers. She had recurrent swelling at the back of her hand and in the web space of her fingers. She had a reduced range of movement in her hand and symptoms going from her hand up to her shoulder from time to time.
56 The main difference in her condition from her first affidavit sworn in 2006 and that of May 2008 was that at that later date her pain was generally intermittent, although mostly on a daily basis, and mostly it came and went on many occasions during the course of the day.
57 As at May 2008, the plaintiff deposed that she still had occasions when she had reasonable days with low pain levels and sometimes a hardly noticeable pain. That often occurred when she used her right lower limb as little as possible.
58 As of that date, the plaintiff continued to attend Catalyst Recruitment Service Pty Ltd (“CRS”) although she had no particular direction in securing employment. It was then her hope to work, although she did not know what sort of work she could do. She had been unable to use her right arm in any physical capacity and even some light use of her arm provoked increased problems. The plaintiff knew she could not do manual work. She found it hard to accept that she would have to live with pain and disability.
59 The plaintiff had also had, and was still then having, reactions to the use of drugs, mainly in the form of reflux, and the use of her Valium made her feel dizzy and drowsy.
60 In May 2008, Dr Lim referred the plaintiff back to Mr Ireland. He arranged for an MRI scan on 5 July 2008 and referred the plaintiff back to Mr Tham, as Mr Ireland no longer operated.
61 Based on the MRI findings and the plaintiff’s ongoing symptoms, Mr Tham suggested an arthroscopic assessment of the plaintiff’s right wrist. She was reluctant to undergo further surgery, as the first surgery did not bring her any relief, and she found the experience quite traumatic. However, she began to consider the procedure, as constant pain and symptoms had dominated her life since the injury and she was sick and tired of taking numerous painkillers.
62 With her family’s support, the plaintiff underwent further surgery on 6 August 2009 (“the second surgery”) in an effort to give her some quality of life and reduce her pain.
Consequences
63 Since suffering injury, the plaintiff had been virtually housebound and unable to undertake even basic housework, whereas previously she was houseproud and enjoyed cooking and doing things for her family, a responsibility that has now fallen largely on her daughters, who now have to take care of the household, rather than do their homework.
64 In the lead up to the second surgery, the plaintiff had been feeling extremely low and suffering from anxiety, to the point where she was having trouble eating or sleeping. At night when she could not sleep, her husband sat up with her for hours, even though he had to get up early for work. The plaintiff felt miserable and felt of no use to anyone, and she was also avoiding friends.
65 In these circumstances, despite her fear and reluctance, the plaintiff underwent the second surgery following which Mr Tham told her he found inflammation and scarring.
66 After the second surgery, the plaintiff was in very bad shape. She was experiencing strong pain and required her family’s assistance to do basic activities such as bathe and dress her. She tried to do everything with the left hand, but found she could not.
67 Following the second surgery, the plaintiff’s index fingers have become very stiff, and the pain is much worse.
68 Despite the second surgery, the pain in her wrist and hand did not decrease, but in fact increased. The plaintiff was prescribed very strong painkilling medication, but it caused her stomach problems, so she had to stop taking it and use Voltaren Gel instead. She also returned to physiotherapy treatment twice weekly and used a TENS machine and had occasional hot wax treatment. On 5 January 2010, Dr Lim arranged an ultrasound of the plaintiff’s right wrist.
Current Pain and Restriction
69 The plaintiff continues to suffer constant right arm, wrist and hand pain, which increases with any activity using her lower limb. The pain can be described as a dull ache, which is worse towards the end of the day. At the times she notices pain, stiffness and tingling going down into her right index and middle fingers. She also experiences some swelling on the back of her right hand, together with stiffness and tingling in her right index and middle fingers.
70 The plaintiff tries to avoid lifting and repetitive tasks using her right hand. Her right wrist movement is restricted and her strength is weak. She has problems bending her wrist and gets pain when doing so. She has also lost feeling in her right hand and tends to drop things. Because of the limited usefulness of her right hand, she tends to use her left hand.
71 The plaintiff takes Panadol or Nurofen and Brufen, and she uses Voltaren Gel and heat packs. She stopped taking Voltaren three months ago as Mr Tham advised her that it was upsetting her stomach.
72 Occasionally the plaintiff tries to go without taking any painkillers.
73 The plaintiff remains under the care of Dr Lim and continues to attend physiotherapy once a week. When the plaintiff goes out, she wears a splint to protect her wrist as she is worried she will knock it.
74 In cross-examination, the plaintiff said that she started wearing the splint before the first surgery. For example, if she is dusting or doing something in particular, she always wears it because it is a good support. It was very hard to say whether she wore it every day or the frequency with which she wore it, because some days when she puts gel on she has to take it off, or she will remove it when it is hot, or when she is doing something with water.
75 The plaintiff has had a number of splints over the years. She wears a bandage under one particular splint because it causes a rash. The plaintiff does not wear a splint when she is sitting at home watching television, but when she starts to do something, then she has to put it back on. If she goes out, it is much easier to wear the splint, particularly when her arm hangs down. It could hurt a lot more without the splint, but even sometimes there are times when she does not have it on when she goes out.
76 The plaintiff has had five or six splints over the years, some of which are more comfortable than others. She does not look at which splint she wears when she has a medical appointment.
77 The WorkCover printout set out a $60 appliance was provided on December 2003 and there was a payment of $12.50 on 7 December 2004. The plaintiff denied that she had only been provided with one splint by the defendants. She was given a splint before the first surgery and then another thereafter. Very often she wears the bandage only.
78 The plaintiff’s self esteem has suffered as a result of her injury and her mood remains low. She feels worse when at home alone in pain during the day, while everyone else is at work, and she is unable to do things for herself.
79 The worst moment in her life was when Mr Tham told her that there was nothing else that could be done, and that she would have to learn to live with the pain.
80 The plaintiff continues to have difficulty with domestic work and depends on family members to undertake these tasks. She cannot do vacuuming or clean the bathroom. She has difficulty with cooking and cannot do tasks such as cutting vegetables using a knife. She tries to use her left hand as much as possible and hates having to rely on her family to do the home duties she used to really enjoy.
81 The plaintiff is unable to use her right arm in any physical capacity, such as performing manual process work. She does not think she would be able to undertake even light work, due to ongoing pain and symptoms.
82 As part of her rehabilitation program, in 2008, the plaintiff studied English at the Narre Warren Community Learning Centre, where she obtained three certificates, the last in December 2008. It was recommended by Epworth she continue with further English school, to develop her skills to help her explore possible work options in a clerical capacity. However, in February 2009, the plaintiff was advised by the insurer that English classes would no longer be funded.
83 Since sustaining the injury, the plaintiff has not stopped trying to find treatment that would resolve her pain. However, her pain has persisted and it is especially upsetting and concerning that despite undergoing two operations, her pain has actually increased.
84 The plaintiff would like to get back to work and explained it is very hard to be at home because everybody else is working. When she did the course, she tried many tasks and some days she could not do them. The plaintiff had no confidence to do office work. She has not looked for any work, explaining that she could not go and tell an employer that she could not do work, and only was only able to do some things. She tried various tasks at home and if she sees she cannot do little things, how could she then go somewhere and offer her services, when she cannot do things at home?.
The Plaintiff’s Lay Evidence
85 The plaintiff’s husband, Goulb Petrovic, swore an affidavit on 8 May 2008.
86 Prior to suffering injury, the plaintiff was in very good health, very active and she enjoyed her life.
87 After the injury, there was a dramatic change in her demeanour. She began to feel depressed and had a constantly lowered mood and she became negative in her thinking and developed low self esteem.
88 The plaintiff is deeply frustrated about her lack of improvement and she has become short tempered, argumentative and frustrated with the continuing restrictions because of her wrist and arm pain.
89 Since the injury, the plaintiff has struggled with domestic tasks. She performs them slowly and in a piecemeal fashion. She is restricted in household activities because of hand pain. She is unable to perform any heavy housework, which he now does. She continues to do some cleaning, but the two girls share most of the cleaning, including the vacuuming and the cleaning of the toilet and shower.
90 The plaintiff has lost interest in friends and avoids socialising. She has little interest in her appearance. Their social and recreational life is now almost non existent. She occasionally goes for walks, but otherwise stays at home. She used to attend dinner dances and go to see Serbian entertainers, but now the plaintiff only attends functions on a rare occasion.
91 The plaintiff’s irritability and frustration related to her injuries has had a significant impact on the family’s life.
92 Dajana Petrovic, one of the plaintiff’s daughters, swore an affidavit on 29 October 2010. Ms Petrovic confirmed the plaintiff’s pre-injury active lifestyle and health.
93 Before suffering injury, Ms Petrovic and her sister spent a lot of time with the plaintiff going for walks, playing sport and the plaintiff would take them out shopping or to the movies. The plaintiff was very house proud, and in particular she enjoyed cooking for the family. Further, the plaintiff enjoyed her job and she worked hard and looked forward to spending time with the people with whom she worked.
94 Since the work injury, the plaintiff suffered with her daily pain level, with constant right arm and hand pain, which increased with any movement. She tried not to show her pain around Ms Petrovic and her sister, but the pain was that severe that the plaintiff could not hide it. She has often come home to find the plaintiff sitting alone crying in pain.
95 Over the years, the plaintiff has tried many doctors and treatments and strong painkillers, but the latter has caused her severe stomach pain and upset. Despite two operations, the plaintiff’s condition has not improved and the medical advice that she would have to live with the symptoms has devastated her, and she felt like giving up after the second surgery.
96 Since the injury, the plaintiff is a completely different person. She is negative in her thinking and self esteem. She cannot stand relying on others and feels like an invalid. Whereas before the injury she liked socialising and going out, she now tries to be on her own as much as possible and does not want to be a burden on others.
97 Since suffering injury, the plaintiff has struggled with domestic tasks. Ms Petrovic has to prepare dinner, clean the house and buy groceries. The plaintiff tries to do some lighter housework and cooking, mainly with her left hand, when she can, but she does it slowly and in a piecemeal fashion and Ms Petrovic’s father does the heavier housework.
98 The family can no longer rely on the plaintiff for many things. It is difficult to plan their lives around the plaintiff’s needs, but she needs the help and support.
99 The plaintiff’s other daughter, Sladjana Kocic, swore an affidavit on 31 October 2010.
100 Ms Kocic confirmed the plaintiff’s evidence and the evidence of her father and sister as to the plaintiff’s pre accident health and level of energy, her houseproud nature and enjoyment of family life pre-injury and the changes in that situation thereafter.
The Plaintiff’s Treating Doctors
101 Dr Lim saw the plaintiff on 22 July 2002, when she complained of a painful wrist since 16 July 2001. The plaintiff’s right wrist was swollen and very tender to touch and there was the suspicion of a ganglion.
102 The plaintiff had similar pain on 19 September 2001. She was given anti- inflammatory treatment and wore a wrist splint for work. However, she did not take any time off.
103 Dr Lim referred the plaintiff to Mr Leung, hand specialist, who arranged investigations which were normal. The swelling and pain in the plaintiff’s wrist persisted despite rest and splinting and she also developed pain in the shoulder girdle.
104 The plaintiff was unable to do any work without a flare-up of her right wrist, and swelling and pain.
105 She was referred to Mr Tham, who requested an ultrasound on 12 December 2002. Following the first surgery on 22 May 2003, the plaintiff told Dr Lim she felt better for a month, but the pain and swelling recurred soon after and she was referred back to Mr Tham. He carried out further investigations and recommended a steroid injection which the plaintiff underwent on 5 December 2003. After that injection, the swelling decreased and made the pain bearable for a short time, but she did not use her right hand.
106 The plaintiff was referred for multidisciplinary assessment at the VRC in 2004.
107 Dr Lim reported, in January 2005, that there had been no improvement in the plaintiff’s wrist. She was depressed because of her condition and her dependence on her family to do daily chores. There was an incident on 22 January when she picked up a pot of food and nearly dropped it because her hand stiffened.
108 At that stage, the plaintiff was still attending Mr Tham, and Dr Lim thought the plaintiff was unable to return to her pre injury duties.
109 Dr Lim reported, in July 2007, that the plaintiff was not able to do much at home and she wore a wrist support if she had to do light work around the house.
110 As at June 2008, Dr Lim reported the plaintiff’s right wrist was still giving her considerable pain and discomfort. She was not able to use her hand for any length of time. She wore her wrist support most of the day and relied on her family to do housework.
111 In Dr Lim’s view, the plaintiff would be unable to undertake the roles of cashier, packer or food process worker at any stage in the future, given the repetitive nature of the manual work required with her hand.
112 Dr Lim noted the ultrasound performed on 20 June 2008 which showed bone irregularity with a small spur formation dorsal aspect scapho lunate joint after which Mr Ireland suggested a diagnostic arthroscopy.
113 The plaintiff saw Mr Tham with unchanged debilitating symptoms and she underwent the second surgery on 6 August 2009.
114 The plaintiff had significant pain after the second surgery. She was reluctant to move her hand and she had a general hand mobilisation program to minimise stiffness.
115 The plaintiff was wearing a wrist splint every day for a couple of months after this surgery. Physiotherapy aggravated her condition. She did not find any improvement after the second surgery. She had swelling on the dorsum of her right hand and shooting pains up her fingers.
116 Repeat ultrasound showed thickening of the scapholunate joint.
117 On 20 September 2010, Dr Lim advised CGU Insurance (“CGU”) the plaintiff suffered from tendonitis of the right wrist, an injury sustained at work. She had advised the plaintiff to use a TENS machine to reduce pain and discomfort, and noted that anti-inflammatory analgesics had given the plaintiff side effects.
118 Dr Lim last reported on 22 October 2010, when she advised the plaintiff had persistent pain in her right hand and wrist. The plaintiff complained of tingling and a hot sensation in her right hand after use and was still unable to do much at home and relied on the family. The plaintiff also noticed she was not able to hold the steering wheel for long periods. Voltaren helped her with pain relief but it caused her abdominal pain.
119 The plaintiff did exercises, took a variety of analgesics and anti-inflammatory medication. She remained very anxious and depressed.
120 The plaintiff stopped physiotherapy treatment in January 2010 and three weeks later her wrist pain worsened and she resumed treatment. She had treatment with the TENS machine and managed to increase the range of movement in the wrist. Dr Lim reported that in the last couple of months the plaintiff complained of recurrent pain in her left iliac fossa. The plaintiff had been very anxious about the upcoming hearing. She went for a functional capacity evaluation on 15 September 2010, and since then she had had more pain in her wrist.
121 Dr Lim considered the plaintiff to be totally incapacitated for suitable employment by reason of her physical injury.
122 Mr Leung, Plastic and Reconstructive Surgeon, saw the plaintiff in October 2002 on referral from Dr Lim on 9 September 2002.
123 Mr Leung reported to Dr Lim that on examination, there was no tumour probable in the region. There was tenderness at the base of the third metacarpal.
124 Mr Leung organised an x-ray and ultrasound and both were reported as normal. He could not explain the plaintiff’s pain on clinical grounds. Further investigations, including a bone scan and CT scan, were also normal.
125 Mr Leung advised he had asked the plaintiff to come back and see him when the tumour recurred, which could well be a small ganglion.
126 The plaintiff was referred by Dr Lim to Mr Crock, plastic and reconstructive surgeon.
127 The plaintiff returned to see Mr Crock for a second opinion, after the steroid injection in 2003. He suggested further investigation to explore aspects of her wrist pain.
128 Mr Crock noted that at that stage, the plaintiff’s pain was burning and she had some referral to the shoulder. He was worried she may have an element of Regional Pain Syndrome. He noted she was also a European lady on a WorkCare claim and that had specific implications as well.
129 Mr Crock advised Dr Lim, since the plaintiff’s last visit to him in 2003, she had complied with his request to return to her original surgeon, but she had also seen Mr Ireland. Mr Crock thought that multiple opinions were contrary and confusing and he recommended the plaintiff stick to the one surgeon, having told her that Mr Tham was one of the best wrist surgeons in Australia and she should continue to see him.
130 The plaintiff first consulted Mr Tham on 6 December 2002 on referral from Dr Lim. The plaintiff then presented with a five or six months’ history of pain arising from the dorsum of her right wrist. He noted there was no associated history of trauma. She told him her symptoms were likely to be related to the repetitive nature of her work. She also presented with a history of intermittent swelling over the dorsum of her right hand and wrist, associated with use.
131 Mr Tham organised an ultrasound which showed a hypoechoic nodule in the area of the scapholunate ligament. His pre-operative diagnosis was “painful right dorsal wrist over scapholunate joint (?) ganglion cyst”.
132 Because of that finding, and the plaintiff’s significant symptoms, surgery was performed on 22 May 2003, at which time a cyst like structure was excised, and also areas of mucinous degeneration from the distal portion of the scapholunate interossei ligament.
133 Following the first surgery, the plaintiff’s progress was slow and she required prolonged hand therapy. An ultrasound showed features suspicious of a recurrent ganglion. However, an MRI scan performed on 29 September 2003 failed to confirm that finding.
134 Because of the conflicting reports, Mr Tham elected to treat the plaintiff conservatively with hand therapy, anti-inflammatory medication, cortisone injections and the TENS machine.
135 As of April 2005, Mr Tham thought the plaintiff’s symptoms persisted despite surgery. He did not feel then that the plaintiff was capable of returning to work as a process worker. He noted as the current right hand symptoms were said to be precipitated by any use, including holding objects and placing the wrist in forced extension or day-to-day activities. In such circumstances, it was unlikely the plaintiff was capable of performing useful function with the right hand.
136 On review on 16 December 2005 following a cortisone injection earlier that month, the plaintiff advised that her symptoms had improved by about twenty per cent. Clinically, she continued to suffer with pain over the dorsal scapholunate joint and Mr Tham elected to continue to treat the plaintiff conservatively.
137 In that report, Mr Tham commented that the plaintiff’s employment had not caused the development of the ganglion; however, it would appear her symptoms would have been exacerbated by work.
138 As of 16 December 2005, Mr Tham thought the plaintiff’s symptoms did not allow her return to normal duties. He noted they were constant but worsened by activity and her level of incapacity at that time was related to the initial diagnosis. He thought as the problem had been long term, it was likely to be permanent. He considered the plaintiff was partially incapacitated.
139 Following that examination, Mr Tham reviewed the plaintiff on a number of occasions and she underwent continuing hand therapy without successful resolution of her symptoms.
140 A further MRI scan in July 2008 suggested a tear involving the proximal portion of the scapholunate interossei ligament. There was no evidence of recurrence of a ganglion cyst. However, clinical examination failed to detect any carpal instability.
141 Because of persisting right dorsum pain, on 6 August 2009, Mr Tham performed an arthroscopic synovectomy of dorsal synovial fold open extensor tenosynovectomy (“the second surgery”).
142 Mr Tham found mild synovitis over the dorsal aspect of the distal radius, which was excised. The extensor tendons were then explored and he thought there was certainly mild to moderate extensor tenosynovitis corresponding to the site of previous surgery and a tenosynovectomy was performed.
143 Following the second surgery, the plaintiff continued to suffer with significant pain and stiffness in her fingers and Mr Tham arranged for her to attend a gentle hand mobilisation program.
144 Despite arthroscopic and surgical findings, Mr Tham could not be certain to what extent the findings caused the plaintiff’s symptoms and he could not account for ongoing pain and was not certain of the diagnosis.
145 He noted the diagnosis of an occult scapholunate ganglion was initially made and that had been successfully excised. Follow up investigations failed to detect any recurrence of a ganglion cyst. The plaintiff’s symptoms continued with pain over the dorsum of her right wrist and there was no clinical evidence of Complex Regional Pain Syndrome.
146 Mr Tham was uncertain as to the cause of the plaintiff’s ongoing pain. He did not expect any further improvement. On the balance of probabilities, excluding psychological or psychiatric consequences, he considered the symptoms of ongoing pain involving the right wrist had affected the plaintiff’s ability to undertake pre-injury or alternative employment to a significant extent.
147 On 18 June 2010, Mr Tham reported that there continued to be pain and swelling over the dorsum of the right wrist and the symptoms were constant, and surgery had not significantly improved the symptoms of pain.
148 In his view, the continued symptoms would affect the function of the plaintiff’s right hand with day-to-day activities at home and work. He was not aware of any non work related factors and noted the symptoms would be longstanding.
149 Mr Tham did not consider the plaintiff was totally incapacitated. He thought it would be suitable to perform a functional capacity evaluation and a vocational assessment. He did not think any other management strategies would be of any benefit.
150 Dr Lim referred the plaintiff to Mr Bajayo, physiotherapist, at Endeavour Hills Physiotherapy where she was first assessed on 14 April 2004. Over eight sessions, the plaintiff underwent mobilisation, massage, electrotherapy and exercises.
151 Mr Bajayo thought the plaintiff at that stage had the capacity to return to work where there was minimal requirement of repetitive work and specifically no tasks involving repetitive wrist flexion and extension .
152 Mr Ireland wrote to Dr Lim in July 2004, having recently examined the plaintiff.
153 Mr Ireland thought it possible the plaintiff had a recurrent cyst and there was a fifteen per cent recurrence rate in spite of the very best attempts to prevent it. In his view, it might not be a ganglion but could be simply irritation of the scapholunate ligament, the source of the initial ganglion cyst. At that stage, he suggested that further surgery to debride the scapholunate ligament or remove a recurrent ganglion would be the only recourse to addressing the plaintiff’s pain.
154 Mr Ireland advised Dr Lim he would strongly recommend the plaintiff continue under Mr Tham’s care.
155 Mr Ireland saw the plaintiff again in 2008.
156 On examination, there was no swelling or deformity. There was a full range of motion at the right wrist. The plaintiff was tender over the scapholunate ligament and stressing the scapholunate ligament reduced this pain without any evidence of instability.
157 Mr Ireland stated the question of diagnosis remained - was that a recurrent interscapular ganglion cyst that may have been burrowed deeply in the scapholunate joint, was this chronic scapholunate degeneration without any x-ray abnormalities, or was this nerve pain involving the posterior anterior nerve?
158 At that stage, Mr Ireland had arranged MRI imaging, including motion views of both wrists, but these failed to reveal any abnormality.
159 In May 2008, Mr Ireland thought the plaintiff suffered from chronic right wrist pain of unknown origin. He noted the possible causes for the recurrence of pain were the three offered earlier, or also chronic learned pain pattern, or Chronic Pain Syndrome.
160 Mr Ireland thought there was a discrepancy between the severity of the subjective symptoms and their chronicity and the presence of major objective clinical findings. He thought there may be some amplification of her symptoms, due to a component of Chronic Pain Syndrome.
161 Mr Ireland thought the plaintiff would be suited for many forms of employment that did not aggravate her right wrist symptoms. He considered that she would be unsuited to do work requiring repetitive movement to the right wrist, or heavy work requiring lifting over two kilograms. He thought that would make her suited to quality control work, security work and office and clerical work.
162 The plaintiff consulted with Mr Ireland on 10 September 2008, seeking advice as to surgery. He noted the MRI scan failed to show a recurrent ganglion and it suggested changes to the scapholunate ligament which were not apparent clinically.
163 He advised the plaintiff the next step was a diagnostic arthroscopy.
164 Mr Ireland thought the plaintiff’s symptoms were genuine and he had no doubt she suffered from the symptoms. He recommended the plaintiff undergo further surgery by Mr Tham.
165 Mr Ireland thought that none of the positions of cashier, packer or food process worker were appropriate for the plaintiff. He considered she needed to wear her supporting wrist splint whenever she was engaged in power gripping. He thought the requirement to wear the splint would make her unsuited to food handling and the symptoms would not allow her to work as a picker/packer.
166 Mr Ireland believed it would be appropriate for Mr Tham to pursue the management regime suggested, provided the plaintiff agreed, and then based on his findings and recommendations for further treatment, a more informed opinion could be made as to the plaintiff’s ability to return to work.
167 As September 2008, Mr Ireland thought the plaintiff would only be suited to work enabling her to use her splint fulltime and which did not involve repetitious movements of the wrist or power gripping. Her ability to lift would be restricted to loads not exceeding two kilograms. She would be able to do various types of machine operator work, quality control work, or light clerical work.
Medico-Legal Examinations
168 Mr Strangward, general and orthopaedic surgeon, examined the plaintiff on 15 August 2002, 10 July 2003 and 14 November 2003.
169 On initial examination, he thought the plaintiff’s current problems of aching and discomfort in her wrist seemed out of all proportion to any underlying physical abnormality, although he was sure there was a problem, which appeared to be work-related.
170 Mr Strangward thought the plaintiff seemed to have developed some degree of tenosynovitis with the extensor tendons of the right hand and possibly a small ganglion of the wrist of the right hand and any problems seemed to be related to excessive repetitive activity.
171 Mr Strangward re-examined the plaintiff on 10 July 2003 after the first surgery. He was hopeful at that time that over the next six weeks considerable improvement would occur and the plaintiff may be able to return to light duties.
172 On the last examination on 18 November 2003, Mr Strangward’s overall impression was the plaintiff was not using her right wrist to any extent and that she was having significant problems.
173 In his view, there was relatively little clinically, but some positive findings were present with perhaps very slight fullness on the dorsum of the hand, slight crepitus in the right wrist and some loss of the movement of the right wrist, albeit due to discomfort.
174 He thought there was relatively little functional overlay, but the chronicity of the plaintiff’s symptoms probably compounded the matter a little. He did not think that she required further treatment.
175 Mr Strangward thought the plaintiff was incapable of her previous work, but maybe capable of some light non repetitive duties, such as telephone answering or similar, but noted that although she spoke English, she could have difficulties with such a job. He thought there were no real behavioural signs on clinical examination and considered the plaintiff was having chronic pain with scar tissue and limited movement of her wrist.
176 He thought if the plaintiff’s symptoms persisted over three months, and there was no sign of her returning to work, then a review by a surgeon such as Mr Ireland, who concentrated on the wrist and hand area with significant wrist surgery, just might be helpful.
177 The plaintiff relied upon examinations carried out by Dr Gary Davison, occupational physician, on 29 July 2004, 18 January 2005 but not his 15 March 2007 examination. Dr Davison also provided a supplementary report in relation to employment options on 24 April 2008.
178 On the initial examination, measurements of the plaintiff’s upper limb girths were consistent with modest disuse of the dominant right upper limb. Muscle strength in that limb was generally less than the non dominant left limb.
179 On inspection of the right wrist, there was no obvious significant soft tissue swelling. Palpation and also translation of the right radio carpal joint reproduced typical pain and translation of the other carpal joints did not do so.
180 On initial examination, Dr Davison thought the plaintiff presented with chronic pain localised to the dorsum of the right wrist, following surgical incision of a scapholunate ganglion. He thought the cause of the pain was not clinically evident, and that further investigation may be undertaken and it was likely that Mr Tham’s next step at that stage would be to perform an arthroscopy at the joint in order to determine the cause of the plaintiff’s pain.
181 Dr Davison thought the plaintiff’s condition was unusual and it was very difficult to prognosticate accurately. He noted, given the plaintiff’s original injury was accepted as being work related and liability for surgery was accepted, then the plaintiff’s continuing ongoing symptoms remained employment related. He thought there did not appear to be any behavioural factors impacting upon her presentation.
182 At that time, Dr Davison thought the plaintiff had a capacity for suitable duties, subject to unrestricted use of the left upper limb and minimal use of the right hand only while wearing a wrist support for gentle steadying purposes only. Dr Davison also thought the plaintiff may well require further surgical investigation and liability should be accepted. He did not observe any behavioural factors impacting upon her presentation.
183 On re-examination in January 2005, the plaintiff reported the symptoms were largely unchallenged, complaining of right wrist pain and swelling, “pins and needles” over the dorsum of the wrist, and right shoulder pain which had not resolved.
184 Treatment then consisted of a wrist support and occasional anti-inflammatory medication, and the plaintiff was not having any physiotherapy.
185 Examination findings were virtually identical to before. Grip strength was thought to be quite reasonable but not completely normal and there was some restriction of wrist movement.
186 Dr Davison noted ultrasound examination suggested the cause of pain was possible persisting inflammation of the scapholunate joint.
187 Dr Davison thought the plaintiff had a capacity for suitable duties, subject to a four kilogram manual handling limit, using both hands.
188 On 11 October 2005, the Medical Panel decided the plaintiff had an 18 per cent whole person permanent impairment, resulting from the accepted right wrist injury, pursuant to s.98.
189 Dr Horsley, occupational health and rehabilitation physician, examined the plaintiff on 3 September 2007. The plaintiff complained to her of continuing to experience right hand disability exacerbated by movement and activity.
190 On examination, there was no evidence of Complex Regional Pain Syndrome. There was no change in colour, no swelling and no increase in sweatiness. There was a mild reduction in range of motion. Dorsiflexion was reduced in the last five to ten degrees. Palmar flexion was reduced in the last five to ten degrees and radial and ulnar deviation was approximately half the normal range.
191 Tone, reflex and temperature sensation were normal. There was a reduction in power with ten kilograms’ force on the right compared to sixteen kilograms on the left.
192 Dr Horsley diagnosed a scapholunate ganglion, which was initially treated conservatively and excised surgically and she thought the plaintiff had developed a Chronic Pain Syndrome. At that stage, she thought the plaintiff would require further rehabilitation and some cognitive behavioural counselling. She considered that the plaintiff would also need to be actively encouraged to progressively increase her activities and she should continue with English classes.
193 Dr Horsley thought the plaintiff had no realistic capacity for work. However, the plaintiff’s involvement in a multi-disciplinary approach to her rehabilitation would improve her quality of life and hopefully reintegrate her back into her activities of daily living.
194 Dr Horsley thought the plaintiff’s work had been a significant contributing factor to her condition on the basis of repetitive activity.
195 Dr Horsley considered that the plaintiff was permanently unfit for her previous role as a process worker in a role with fast repetitive fine manipulative tasks. She then thought the plaintiff did not have any realistic work capacity, but ultimately, with a good response to a multi-disciplinary approach to her rehabilitation and a significant improvement in English, in theory she had a partial capacity for work in suitable duties, with a minimal manual component, possibly in some sort of customer service role.
196 Dr Horsley thought the following work restrictions should apply - avoidance of fine manipulative tasks involving the right hand; prolonged static grip involving the right hand; repetitive palmar flexion and dorsiflexion of the right hand; repetitive ulnar and radial deviation of the right hand; lifting items greater than five to eight kilograms on a permanent basis; and lifting items up to five kilograms on a repetitive basis.
197 Dr Horsley was unable to separate the part of the plaintiff’s pain and suffering and incapacity caused by her physical injury compared to that caused by her psychological injury, and deferred to psychiatric opinion in this regard.
198 On assessment, it appeared to Dr Horsley that the plaintiff was suffering from an Adjustment Disorder with a depressive component, but Dr Horsley relied on psychiatric opinion in that regard.
199 Mr Philip Slattery, hand surgeon, examined the plaintiff on 30 August 2007, on behalf of her solicitors.
200 On examination, the plaintiff was slightly tender over the dorsum of the right wrist, but there was no evidence of swelling. She had a full range of movement and carpal tunnel tests were normal. Grip strength on the right measured 26 kilograms and on the left, 36 kilograms.
201 Mr Slattery commented that it was difficult to explain the plaintiff’s ongoing pain. In his view, the possibilities included a recurrent ganglion which had not been detected in the MRI scan and ultrasound, or she could also have a neuroma of the posterior interossei nerve.
202 Mr Slattery thought it reasonable to state the plaintiff’s employment had been a contributing factor, in that her symptoms would have been aggravated by her employment, but one could not say whether they were caused by it.
203 Having had symptoms for four years, he thought it reasonable to state the plaintiff’s condition had stabilised and would not significantly improve or deteriorate.
204 In Mr Slattery’s opinion, it was worthwhile doing further wrist surgery. He thought the plaintiff should have a further exploration with a view to excising a recurrent ganglion or excising a neuroma of the posterior interossei nerve. He noted a successful outcome could not be guaranteed and the plaintiff’s reluctance to have a further operation was understandable. He thought it was to be anticipated with surgery her condition would be improved and should not be made worse, although there was always a possibility.
205 In Mr Slattery’s view, the plaintiff was partially incapacitated and she was fit for manual work. However, her job prospects were limited by lack of training and English. Nevertheless, in his opinion, the plaintiff could do light manual repetitive work but it would be prudent to restrict her lifting to say one to two kilograms, using the right hand, and it would be helpful for to have a graduated return to the workforce.
206 He considered the plaintiff had a capacity for fulltime work of that nature but to facilitate her return to the workforce, it would be wise to do it on a graduated basis over some months, and it would help to obtain the services of a rehabilitation provider.
207 Mr Slattery thought it difficult to quantify the contribution from psychological factors, but in his opinion, the plaintiff’s symptoms appeared to be attributable to a physical injury rather than a psychological condition.
208 Mr Brearley examined the plaintiff on 24 February 2010.
209 The plaintiff told him that when resting her right wrist and hand completely, she had no discomfort or pain. However, when she used it for anything at all, virtually she developed swelling over the back of the hand and wrist, and pain. The pain radiated through the whole of the hand and fingers and all surfaces, but mainly on the dorsum. Because of the limited usefulness of the right hand, the plaintiff has to do most tasks with her left hand.
210 She told Mr Brearley that when she is home, she does not use the wrist support, but she uses it when she goes out, lest she knocked the wrist. She avoids all repetitive tasks and lifting using the right hand.
211 On examination, the plaintiff gave no impression of exaggerating her symptoms, nor did she appear depressed. Mr Brearley noted there was some tenderness just proximal to the scar. Wrist joint movements were within normal range, apart from slight restriction of full flexion. Sensation throughout the hand was normal, and the finger and thumb movements were normal.
212 In Mr Brearley’s view, the organic injury was a scapholunate ganglion of the right wrist, which was excised at the operation. The plaintiff had ongoing pain post-operatively, the cause of which was not established either by MRI scan, examination or arthroscopy. He noted there was no suggestion of a Complex Regional Pain Syndrome.
213 Noting the arthroscopy did not establish any obvious cause for her pain, Mr Brearley thought the diagnosis and reason for the plaintiff’s pain was not clear.
214 Mr Brearley considered the plaintiff’s employment certainly was a significant contributing factor to her injury, with work involving rapid and repetitive use of both hands and arms, which would be responsible for the development of her ganglion. Since developing that pathology, she had had ongoing pain.
215 Mr Brearley considered the plaintiff’s employment remained a contributing factor to her present condition, and had the injury to her wrist not occurred, there was no likelihood she would be having any wrist problems at all.
216 He considered, for practical purposes, her condition had stabilised and there was no likelihood of any surgery in the future.
217 Mr Brearley considered the plaintiff was not fit for pre-injury employment nor for any other manual labour or process work. He noted she had no computer or office skills and her language skills were good, but far from perfect. She would not be able to do any light work involving use of the right hand because of ongoing pain and significant symptoms.
218 Theoretically, in his view, the plaintiff could possibly do some so called light work for two hours a day, three days a week, in which there was no excessive use of the right hand and she would have to have her arm in a splint. However, he noted, of course, there was no realistic possibility at all any employer knowing of her incapacity and ongoing symptoms, limited education and work experience as a process worker, would offer her paid employment. Therefore, in his view, the plaintiff had no current work capacity.
219 Mr Brearley concluded that the plaintiff was a well motivated person and her inability to work was the result of her organic wrist injury.
220 Dr Kostos, in his report of 5 November 2010, commented on the vocational assessment report dated 21 September 2010.
221 He concluded the plaintiff had had two operations on her wrist and had restrictions of wrist movement and she could not undertake work where repetitive use of her right hand was required. Therefore, if that condition was met, she may be able to undertake the duties of process worker, assembler, machine operator, food process worker, product examiner, receptionist and sales assistant, but if not, she may struggle in a number of areas.
Investigations
222 An ultrasound of the right wrist organised by Mr Leung, a plastic surgeon, on 10 September 2002, was within normal limits.
223 An x ray, ultra sound, CT scan and bone scan of the plaintiff’s right wrist organised by Mr Leung in September/October 2002 were all within normal limits.
224 On 12 December 2002, Mr Tham organised an ultrasound of the right wrist. It was concluded there was the presence of a small hypoechoic nodule superficial to the scapholunate ligament confirmed. It was noted the appearance was not that of a typical ganglion cyst.
225 Histopathology carried out on 22 May 2003 showed a benign ganglion cyst from the right wrist.
226 A right wrist ultrasound organised by Dr Lim on 18 August 2003 showed features suspicious of recurrence of scapholunate ganglion.
227 An MRI scan of the right wrist was organised by Mr Tham on 29 September 2003. There did not appear to be recurrence of the previous excised ganglion. The significance of the marrow oedema within the proximal pole of the scaphoid was uncertain. However, it was most likely mechanical in nature.
228 An ultrasound of the right wrist organised by Dr Lim on 12 January 2005 showed synovial thickening involving the posterior aspect of the scapholunate joint. There was a bony irregularity of the joint margin suggesting previous surgery. There was no evidence of a recurrent ganglion.
229 An ultrasound of the right wrist organised by Dr Lim on 21 June 2006 showed no recurrent dorsal scapholunate ganglion and a small trace of fluid in the ECRL tendon sheet.
230 An ultrasound of the right wrist organised by Dr Lim on 20 June 2008 showed bone irregularity with small spur formation, dorsal aspect, scapholunate joint. The ligament was intact and there was no recurrent ganglion.
231 An MRI scan of the right wrist organised by Dr Ireland and carried out on 3 July 2008 showed a full thickness tear of the proximal band scapholunate ligament. There was no evidence of recurrence of ganglion in relation to the dorsal band. A ganglion or synovial cyst was seen superficial to the wrist joint capsule overlying the volar aspect of the radioscaphoid joint radially. There was a non-specific erosion of the dorsal aspect proximal scaphoid pole and non-specific pisi form subchondral cyst in the context of normal articular cartilage and absence of synovitis. There was T2 hyperintensity in the median nerve as it passed through the carpal tunnel, most likely relating to the magic angle artefact rather than oedema.
232 An ultrasound scan of the right wrist and hand organised by Dr Lim on 5 January 2010 showed thickening and heterogeneity of the scapholunate ligament, minor synovitis of the finger extensions. No other soft tissue abnormality was demonstrated.
Other Documentation
233 An incident report was completed on 28 August 2000, where the plaintiff set out having injured her left elbow, forearm and hand whilst packing biscuits into plastic trays, with an incident having occurred on 25 August 2000.
234 The plaintiff lodged a Claim for Compensation on 25 July 2002, claiming she had suffered injury to her hand and wrist as the line was full of boxes and it was too fast. She did not insert the date of injury or the time she stopped work.
235 By letter dated 22 August 2002, CGU advised the plaintiff it had accepted her claim for weekly payments in relation to an injury suffered on 22 August 2001.
236 By letter dated 17 October 2005, CGU advised the plaintiff that she was entitled to compensation for non-economic loss in the sum of $28,350 in relation to a right wrist injury suffered on 22 August 2001.
Vocational Evidence
237 Flexi Personnel provided an employment assessment of the plaintiff on 13 May 2008, having interviewed her and being provided with various documents, including Mr Slattery’s medical report.
238 Having looked at these reports, Ms Kaye Angel from Flexi Personnel concluded the plaintiff was not capable of returning to her pre injury vocation and her impairments were permanent. She considered the plaintiff had very limited saleable transferrable skills and that she would have great difficulty in finding suitable alternative employment, because of her limited work capacity due to her injuries and likely poor productive work capacity, and the likely aggravation of her physical injuries resulting in high absenteeism and lost production.
The Defendants’ Medical Evidence
239 Mr Frank Ham, plastic surgeon, examined the plaintiff on 14 July 2005 for the purposes of carrying out an impairment assessment.
240 On examination, the plaintiff complained of pain in the right wrist on movement, especially flexion. There was some cold intolerance producing pain in the wrist. The plaintiff considered there was a lump over the dorsum which had arisen since the first surgery, and there were “pins and needles” on the dorsum of the hand and also on the volar aspect which was of glove distribution.
241 Mr Ham could detect no paresthesia gently tapping on the scar or nearby, and there was no evidence of involvement of a branch of the superficial radial nerve. He could find no clinical evidence of any recurrence of the ganglion or other lump on the dorsum of the wrist.
242 Using a dynamometer, the plaintiff’s right hand grip was considerably weaker than the left, but Mr Ham noted the readings were variable, to such a point that he considered the test to be invalid.
243 Mr Ham concluded that the plaintiff had no clinical or radiological evidence of recurrence of the ganglion on the right wrist. She had no involvement of the branches of the superficial radial nerve, and there was minimal reduction in nerve movement.
244 Mr Ham noted the plaintiff complained of paresthesia which was of glove distribution, which did not follow normal anatomical arrangement of the nerves. He believed she had some discomfort on flexion which may be due to scarring on the dorsum, due to the removal of the ganglion. Although the wearing of the fixed splint apparently decreased her pain, he considered she should wear it only intermittently. He allowed a whole person impairment of one per cent, relating to a minor restriction in flexion and extension.
245 Dr Kostos, rheumatologist, examined the plaintiff on 12 January 2005, 15 May 2006, 30 July 2007 and 22 September 2010. During 2008 he also provided supplementary reports as to the suitability of jobs suggested for the plaintiff.
246 On initial examination, the plaintiff described constant pain in the dorsum of her right wrist, extending onto the dorsum of the right hand, associated with restriction of wrist flexion. She claimed also to have some swelling on the dorsum of her right hand.
247 The plaintiff had restriction of wrist flexion with a marked pain response, but her other movements were pain free. There was local tenderness on the dorsum of her wrist but not on the dorsum of her hand, and no swelling was noted.
248 Neurologically, her grip strengths were 12 on the right and 25 on the left and her reflexes and sensation were normal.
249 It appeared to Dr Kostos that the plaintiff was diagnosed as having a ganglion arising from the region of her scapholunate joint. He noted the operation report from Mr Tham dated 22 May 2003, and commented that of significance, Mr Tham did not note any tear of the ligament, and also noted there were multiple areas of mucinous degeneration, which were excised.
250 Therefore, Dr Kostos thought it would appear as if the plaintiff developed a ganglion during work, but in all likelihood it was a degenerative problem and in the absence of any history or accident, in his view, it was clear the plaintiff’s employment was not a significant or materially contributing factor to the development of that condition.
251 In other words, in Dr Kostos’s view, the ganglion would have developed irrespective of what the plaintiff was doing. At that stage, Dr Kostos thought there was no need for the plaintiff to be taking Voltaren. He did not believe there was any need for further surgery.
252 Although the plaintiff did have some restriction of movement, he noted her pain response was quite marked, but he thought it would seem to be greater than it would normally be expected to be the case in these sorts of situations.
253 By virtue of her presentation, Dr Kostos considered there seemed little likelihood the plaintiff could continue to work in any physical capacity, but he thought obviously she could undertake some light inspection duties and therefore, was not totally incapacitated for employment. He thought she had a permanent impairment as a result of having surgery, but that had not been materially contributed to by her work, and the prognosis was poor.
254 On re-examination on 15 May 2006, there had not been any significant change in the plaintiff’s condition and she made similar complaints of pain and also at that stage, there were some problems with her right shoulder.
255 Once again, the plaintiff displayed restriction of wrist flexion, but that was only associated with minor discomfort, and she also noted discomfort with wrist extension but not with other movement. There was some local tenderness on the dorsum of the right wrist over the incision site.
256 There was not any evidence of tenosynovitis, nor any tenderness over the dorsum of the hand. Neurologically, grip strength was 13 on the right and 22 on the left, and the plaintiff’s reflexes and sensation to pinprick were normal.
257 Dr Kostos confirmed his earlier views as to causation, noting that the main difference on re-examination was that wrist flexion produced some minor discomfort, compared to the marked pain response the plaintiff had previously.
258 He noted the recent ultrasound failed to identify any recurrence of the ganglion and the mild thickening noted over the posterior aspect of the joint in all likelihood had resulted from the previous surgery to the area.
259 He thought there was certainly no basis for any repeat surgery. Thus, all there was was a non-verifiable complaint of pain in the wrist, following the successful incision of a ganglion, and there was no evidence to suggest the plaintiff had tenosynovitis. He confirmed his views that the plaintiff did not require any further treatment and that she had a capacity for inspection duties.
260 On re-examination on 30 July 2007, there had not been any change in the plaintiff’s condition. On examination, she still had some restriction of right wrist flexion with discomfort. There was also a little discomfort in extension, although movement seemed to be preserved. Her other movements were full and pain free. She had diffuse tenderness to palpation over the dorsum of the wrist. He noted her hands were consistent with normal use, and her grip strengths were 11 on the right and 18 on the left.
261 Dr Kostos concluded he had not seen anything to change his previous opinions. He was left with a situation where the plaintiff had little residual stiffness of wrist movement related to her surgery, but otherwise all that could be said was that she had non-verifiable complaints of pain, the origin of which was unclear.
262 Having been provided with a vocational assessment, Dr Kostos thought it quite apparent the plaintiff was not totally incapacitated for work, but there were limitations due to her limited English. He noted as a general principle, obviously she would need to undertake activities which involved limited use of her right arm, because she would go off work if she felt that there had been any aggravation of her symptoms. He confirmed her prognosis was poor.
263 On the last examination on 22 September 2010, Dr Kostos noted the further treatment undertaken by the plaintiff since the 2007 examination, including the course and the second surgery. The plaintiff told him that following that surgery, her pain deteriorated. She still had ongoing wrist pain which extended down into her hand and even at times, her right index and middle fingers, a pain she had never had before.
264 Overall, the plaintiff’s condition was worse since the previous review. She described intermittent right wrist pain extending down into her right hand and the distribution noted. She was occasionally woken at night by pain but was generally comfortable at rest. Her pain was aggravated by any activity. Her wrist movements were restricted and her grip was weak.
265 On examination, there was some restriction of movement in all directions of her right wrist with discomfort predominantly in flexion. She had minor tenderness noted in the region of the inferior radial ulnar joint. Her hands were consistent with normal use. Neurologically, her grip strengths were 18 on the right and 23 on the left and her reflexes were normal.
266 Dr Kostos noted further investigations, including an MRI scan, suggested the plaintiff may have had a tear of the scapholunate joint. However, he noted that Mr Tham reported in February 2010 that her scapholunate ligament was intact and therefore the MRI scan was wrong.
267 Dr Kostos confirmed his earlier views about causation and his view the plaintiff’s problem was constitutional. He noted, however, as a result of the two operations, the plaintiff now had restrictions in wrist movement. This, together with the surgical scar, were the only objective abnormalities she had on examination.
268 Dr Kostos did not believe there were any significant non organic components to the plaintiff’s presentation, but commented that obviously those could not be assessed with certainty. He thought there was no point continuing with Voltaren Gel and physiotherapy was not going to help at all.
269 As a result of the two operations, he concluded the plaintiff had restriction of the right wrist and therefore could not undertake any work where continuous use of the right hand was needed.
270 Dr Kostos had earlier commented, in April 2008, that on physical grounds alone, the plaintiff would be able to cope with work as a process worker and despatch clerk, as long as she was able to work at her own pace and rotate between the positions.
271 Having been advised she would be unable to rotate her duties, he believed a position of despatch clerk, purely as administrative office work, would appear to be the most suitable, followed by the first position of despatch clerk. However, he thought, given her restricted wrist movement, the plaintiff may struggle to work fulltime as a process worker.
272 The plaintiff relied on a very recent report from Dr Kostos as to the plaintiff’s unsuitability for work involving repetitive use of her right hand.
273 Mr Murray Stapleton, plastic and hand surgeon, examined the plaintiff on a number of two occasions, namely 12 August 2004 and 4 April 2007.
274 Mr Stapleton was of the view that the ganglion excised from the plaintiff’s right hand was a degenerative problem and there was no evidence that she suffered an acute injury at work and that this was a condition which affected so many in the community.
275 Mr Stapleton also pointed out that a recurrence that the plaintiff presented with in August 2004 was not in any way due to poor surgery in the first operation, but that this condition always had approximately a thirty per cent chance of recurrence.
276 In terms of the plaintiff’s history, he noted the plaintiff was a packer and sorter of biscuits and that she did not report an injury.
277 In Mr Stapleton’s view, her condition was not associated with repetitive movement and he believed she would have had a problem whether she worked or not.
278 Mr Stapleton’s initial examination findings were brief, noting a transverse scar over the dorsa of the right wrist, which was settling well, and no underlying swelling. He could find no evidence of recurrence of the ganglion, noting the plaintiff was slightly tender over the surgical scar and she had a very good range of movement of the right wrist.
279 The plaintiff said that if a light job was offered, she would consider it. She had good and bad days and that the previous week she had had no pain, but the plaintiff said that the present week was allegedly a bad week. She noticed pain most on flexion of the wrist and also supination and pronation. The plaintiff agreed there was no swelling on re examination.
280 Movements of the right wrist were as follows: flexion and extension 80 degrees, radial deviation 5 degrees, and ulnar deviation 20 degrees.
281 Mr Stapleton’s impression was that the plaintiff’s current presentation was inexplicable. She had had a simple dorsal wrist ganglion excised five years ago and had not worked since, and had allegedly worn a splint all the time.
282 Mr Stapleton noted that given Mr Tham had not seen fit to investigate the wrist further with an MRI scan, Mr Stapleton believed Mr Tham would have had the same opinion as himself.
283 Therefore, whether the plaintiff had a work capacity or not, Mr Stapleton could not really tell. He noted if he accepted the plaintiff was genuine, then she would be capable of working with a wrist splint on, performing duties mainly with the left hand. If she was not genuine, then she was capable of unrestricted normal duties.
284 Given his suspicion about the plaintiff, he could not therefore confidently suggest what suitable employment alternatives existed. He noted her condition by her own admission therefore had not stabilised.
285 Mr Stapleton concluded he could not predict the prognosis for he had great concerns, firstly, that this was in the first instance regarded as an injury, and secondly, that the problem had not long since disappeared.
286 When Dr Davison last examined the plaintiff on 15 March 2007, he reported that nothing had changed.
287 Dr Davison noted the wrist support worn by the plaintiff appeared to be in remarkably good condition, which suggested irregular use.
288 The plaintiff reported she experienced intermittent pain over the dorsum of the right wrist, the main site of pain being where the operation was performed. The plaintiff told him her pain was intermittent, there being some days when she did not have any pain. The plaintiff told him her physical capacities had not altered.
289 Inspection of the right hand and forearm did not reveal any evidence of skin fading, which suggested that the wrist support was not worn often. Measurements of the upper limb were consistent with the right hand dominant usage pattern.
290 On inspection of the right wrist, the plaintiff complained of some discomfort on gentle palpation of that area. There was no evidence of skin discolouration or alteration in sweat pattern. There were no trophic changes and specifically, there was no evidence of muscle wasting of the intrinsic muscles, neither in the right hand nor in the thenar or hypothenar eminences.
291 The range of motion of the right wrist was unrestricted and translation of the wrist joint did not reproduce typical pain.
292 Dr Davison confirmed there had been no recurrence of the ganglion and the cause of the plaintiff’s current ongoing symptoms was not clinically obvious. He was not convinced there was any ongoing organic cause, and he suspected the plaintiff had developed some illness behaviour.
293 Noting no recurrence had been evidenced by numerous ultrasound examinations after the first surgery, and given the plaintiff had been off work for five years, he believed it would be reasonable to accept any symptomatic exacerbation had long ceased. As a result, he concluded the plaintiff’s employment no longer materially contributed to any incapacity reported by her.
294 Dr Davison thought there was no objective evidence to suggest significant ongoing disuse of the dominant right upper limb, with no evidence of muscle wasting.
295 Dr Davison considered the plaintiff had a capacity for suitable duties with restrictions as to frequent and forceful repetitive use of the right upper limb and a manual handling restriction of up to five kilograms using both hands.
296 Dr Davison thought given the wrist support allowed unrestricted movement of the thumb and fingers, the use of a splint could allow the plaintiff to undertake her pre-injury duties.
297 Dr Davison questioned the continued use of anti-inflammatory medication in the absence of any verifiable inflammatory processes in the plaintiff’s
298 He recommended a report be obtained from Mr Tham and that he be specifically requested to address the issue of current work elatedness of the plaintiff’s symptoms, given the main issue was symptomatic exacerbation by work activities, and the plaintiff had not done any work for five years.
299 In his August 2008 report, Dr Davison advised that he considered the jobs of despatch clerk, process worker and despatch clerk/office administration, would be suitable for the plaintiff to safely undertake.
300 Dr Nigel Strauss, psychiatrist, examined the plaintiff on 31 October 2007.
301 The plaintiff told him that she started work for the second defendant in 1997. She said that she had to work very fast and she was not happy there, but she could not leave the job because she spoke no English. If she had spoken English she could have applied for other jobs. She said that she simply put up with the job that was very fast and that in 2001, she first developed problems.
302 The plaintiff told Dr Strauss that she would like to work, that she worried about her future and health and sometimes she cried, but not often. She said sometimes she did not sleep well because of pain or because she was worried.
303 The plaintiff was wearing the wrist support on examination.
304 On mental state examination, there was no evidence of any psychosis, delusions or thought disorder. The plaintiff’s memory and concentration were excellent and she was oriented in time, place and person. Her insight seemed limited and she was preoccupied with her alleged condition, although she gave a reasonably clear account of her high level of anxiety. She was not particularly depressed or anxious.
305 Taking into account the plaintiff’s history, Dr Strauss suggested her motivation to return to work was limited. He believed she was using her alleged pain as a way of avoiding returning to the workforce. He thought she may have a pain disorder; or in other words, psychologically based pain which was genuine, or she may be exaggerating her pain. It was impossible for him to know. Even if she was genuine, he considered that her condition was quite mild.
306 Dr Strauss did not believe the plaintiff needed to attend a pain management program or have rehabilitation, as such treatment simply reinforced her illness behaviour.
307 He did not believe the plaintiff was suffering from a work related psychiatric condition or incapacity. He thought she may have a pain disorder associated with psychological factors, but there was also a possibility she was deliberately and consciously over exaggerating the pain. If she did have a pain disorder, in his view, it was not work related. He suspected the plaintiff would continue to complain of pain indefinitely as a way of justifying her circumstances.
The Defendants’ Lay Evidence
308 Ms Angela Alexopoulos, the first defendant’s WorkCover claims coordinator, swore an affidavit on 7 May 2008. Exhibited thereto was a vocational assessment conducted by the defendants dated 2 July 2003, which identified the jobs of sales assistant and general process worker as suitable vocational options for the plaintiff.
309 Ms Alexopoulos referred to Mr Slattery’s views in his report of 3 September 2007, where he set out the plaintiff was partially incapacitated and fit for light manual work, restricting her lifting to one to two kilograms using her right hand. He also advised that it would have been helpful at that time to have a graduated return to work.
310 In Ms Alexopoulos’ view the jobs of despatch clerk and process worker met the above restrictions. Also exhibited to her affidavit was a job description in relation to those positions.
Medical Certificates
311 A Certificate of Capacity was completed by Dr Lim on 17 July 2002, in which the plaintiff was certified unfit for any duties for four days thereafter, as the result of a right wrist injury.
312 The plaintiff is presently certified as unfit for any duties by Dr Limas a result of a right wrist injury tendonitis.
Surveillance Evidence
313 The defendants tendered ten separate DVDs of the plaintiff’s activities over a three year period, from 22 September 2007 until 8 October 2010 on the following dates:
• 22 February and 8 March 2007 – 5.21 minutes ƒ 31 January 2008 - 8.5 minutes ƒ 20 February and 9 March 2008 – 16.12 minutes ƒ 3 April and 7 April 2008 -11.1 minutes ƒ 10 June 2008 – 55 seconds ƒ 30 October 2008 – 1.06 minutes ƒ 9 July 2010 – 8.21 minutes ƒ 2 September 2010 – 14.20 minutes ƒ 8 October 2010 – 20.45 minutes. 314 During these films the plaintiff was shown in her front garden, driving, walking, shopping and browsing at the supermarket and shopping centres On one occasion she wore a bandage..
315 The plaintiff used her left arm to carry small bags of shopping, her umbrella and her handbag. Occasionally she used her right hand to put a small piece of fruit in her shopping basket.
316 The plaintiff used her right hand when opening and shutting her car door. She also used her right hand when browsing though greeting cards in a shop, as she explained she could not use her left hand to do so.
317 In cross-examination, when it was put to the plaintiff she was seen driving and turning the steering wheel, she said that she could do all those things, but she did feel pain. She said it was very hard to explain how she felt doing the things shown on the film.
318 In the 10 June 2008 film, the plaintiff was seen holding her right hand in a guarded/protected fashion, not moving it as she went to the letterbox at home. The plaintiff said it was possible she was in pain and explained that she tries to do everything. Even her doctor suggested that she do that, but when she feels she is getting pain, “then she sort of eases off”.
319 The plaintiff is limited in her range of movement, in particular when she bends her wrist, and that when she really feels the pain, but she just keeps going. When she sees doctors, she has tried to manage, to demonstrate whatever movement she was capable of at that time. Every time she went to a doctor, she describes how she felt and had never said she could not do things.
320 The plaintiff regularly goes for walks and normally walks as she was shown in the video, but some days she wears the splint and some days she does not. The plaintiff agreed she liked walking.
321 The plaintiff goes shopping alone to buy bread and milk, or sometimes to just go and have a look around, and possibly buy something for herself. Sometimes she goes out shopping with her husband but sometimes has to come home because she does not feel good.
Vocational Evidence
322 NES Vocational Assessment carried out an assessment of suitable duties for the plaintiff on 15 September 2010.
323 In that assessment the following jobs were identified – process worker; assembly – light; machine operator; food process worker; product examiner; receptionist and sales assistant.
Overview
324 I accept that the plaintiff suffered a compensable injury to her right wrist as a result of the repetitive nature of her duties whilst working for the first defendant and second defendants in 2001 and 2002.
325 The preponderance of medical evidence is that the plaintiff’s wrist condition initially diagnosed as a ganglion, is work related, whether caused by the repetitive nature of the plaintiff’s duties or aggravated by them. Dr Kostas and Mr Stapleton stand alone in their view that such a condition is constitutional.
326 Dr Davison is the only medical practitioner who considers that the plaintiff no longer suffers any wrist problems, whether work related or degenerative in nature.
327 It is agreed that the injury was initially diagnosed as a painful right scapholunate ganglion which was surgically excised in May 2003.
328 Whilst there is no clear diagnosis of the plaintiff’s present condition, as was conceded by counsel for the defendants, “ the lack of a precise diagnosis might not be fatal to the plaintiff providing the doctor can link as a cause, “Humphries” type consequences.”
329 Although some comments have been made by doctors about the disparity between the severity of the plaintiff’s symptoms and their chronicity, and the presence of major objective findings, I am satisfied that there is an organic injury which has required surgery on two occasions and has resulted in continuing pain and restriction of movement of the plaintiff’s dominant right hand.
330 Whilst no recurrence of the ganglion has been identified on the recent investigations, a number of other diagnoses have been made.
331 Dr Lim considered that the plaintiff suffers from tendinitis of the right wrist. Whilst Mr Tham was not certain of the diagnosis and could not account for the plaintiff’s ongoing pain, he has found continuing symptoms after the second surgery, with pain over the dorsum of the right wrist. Mr Tham advised Dr Lim on 14 August 2009 that he found mild to moderate extensive tenosynovitis corresponding to the original surgery site.
332 Although unable to make a specific diagnosis, Mr Ireland thought the plaintiff was genuine and he had no doubt that she suffered from the symptoms of which she complained. On examination before the second surgery, he thought possible causes for her continuing symptoms were degenerative articular changes at the radiocarpal joint and scapholunate degenerative change, undetected by current imaging studies. He later added a possible chronic pain syndrome to this list.
333 Mr Slattery, in 2007, considered it possible that there was a recurrent ganglion not detected on testing, or that the plaintiff could also have a neuroma of the posterios interosseous nerve.
334 Whilst Dr Kostos did not make a specific diagnosis he thought the plaintiff had a permanent impairment as a result of having wrist surgery.
335 On examination, a reduction of right grip strength has been consistently found by examiners. Further, at times the plaintiff has been restricted in her right wrist movement or has experienced pain in relation thereto, particularly when flexing her wrist.
336 On examination in 2005, Mr Ham thought discomfort on flexion may be due to scarring on the dorsum on the removal of the ganglion. Mr Kostos recently commented that as a result of the two operations, the plaintiff now has restriction of wrist movement.
337 Taking into account all the medical evidence and the plaintiff’s continuing complaints, I am satisfied the plaintiff’s wrist condition, although difficult to explain, is organically based.
338 Whilst mention has been made of a Chronic Pain Syndrome or illness behaviour by Dr Davison, Dr Horsley and briefly by Mr Ireland, Dr Kostos, who has examined the plaintiff on four occasions, most recently this year, specifically excluded a significant non organic functional component from the plaintiff’s presentation. Mr Slattery thought the plaintiff’s symptoms appeared to be attributable to a physical injury rather than a psychological condition.
339 Having accepted that the plaintiff has suffered a compensable injury to her wrist, the issue for consideration is whether, at the date of hearing, the impairment relating thereto is “serious and permanent”.
340 I found the plaintiff to be a credible witness who did not overstate or exaggerate her symptoms. I consider she answered questions truthfully and, in my view, there was nothing shown on any of the ten DVDs of surveillance film, taken from 2007 to the present date, to alter my view.
341 Counsel for the defendants submitted that the surveillance film showed a very considerable ease of gross and fine movements of the right wrist with the plaintiff opening and shutting car doors and the boot, grabbing and turning the steering wheel and fiddling with her purse and the greeting cards. It was submitted the plaintiff’s wrist and fingers moved with ease, save for the June 2008 film at the letterbox. Further the plaintiff was shown swinging her arms when walking and she did not wear a splint.
342 It was submitted that the plaintiff’s level of complaint did not marry with what was shown on the film.
343 In my view, however, the plaintiff was not seen consistently using her right hand in the manner one would expect of a right hand dominant person. She was not seen at any time during the films using her right hand to any extent. Whenever she was required to carry anything, whether an umbrella, handbag or a few bags of shopping, she did so with her left hand. On three occasions, when she went shopping with her husband, he in fact unpacked all the shopping into the car boot, whilst she sat in the car.
344 Clearly, the plaintiff still uses her right hand, as was shown by her opening the car door and the boot and looking at cards at a newsagent, but it is not her case that she has no use of that hand at all. She uses her left hand predominantly and cannot do heavy or repetitive tasks with her right hand. She was not shown on the film at any stage engaging in any such activity and in fact when shown on film on 10 June 2008, she was protecting her right hand when she was at the letterbox.
345 I accept that the plaintiff wears a splint on occasion whilst doing household tasks such as dusting, using the splint for support. I accept that the plaintiff has had a number of splints since her wrist condition was first diagnosed, and that the use of a splint provides her with some relief and support.
346 The plaintiff’s restrictions caused by her wrist injury were confirmed by family members whose evidence was not challenged.
347 The plaintiff continues to require painkilling medication for her wrist pain but is unable to take heavier medication because of resultant stomach upset.
348 The plaintiff is a woman with little education and limited English, albeit having obtained some competency in that regard following the completion of English courses in 2007 and 2008.
349 The only work the plaintiff has ever undertaken is manual work she did whilst working for the first and second defendants. She enjoyed that work until she suffered injury and had to cease working when light duties were not made available to her.
350 I accept that as a result of her wrist condition, this right hand dominant woman is no longer able to do manual work which involves any level of repetition or lifting.
351 This view was shared by all the medical practitioners who have examined the plaintiff most recently after the second surgery.
352 Dr Kostos thought the plaintiff could not undertake any work where continuous use of the right wrist was needed. Mr Brearley considered the plaintiff was not fit for her pre injury work or any manual labour and that there was a theoretical possibility of work for two hours a day, three days a week in so called light work with no excessive use of the right hand and her arm in a splint. Dr Lim considered the plaintiff to be totally incapacitated. Mr Tham, whilst of the view that the plaintiff was not totally incapacitated, thought her hand injury alone would affect her ability to undertake pre injury work or suitable employment to a significant extent
353 It matters not, in my view, that the plaintiff has not sought employment in the eight years since her employment was terminated with the first and second defendants, as I accept that she has been unable to attempt such work because of her wrist condition given her inability to perform even simple household tasks without experiencing pain.
354 I consider the plaintiff’s inability to engage in manual work involving her dominant right hand is a serious consequence
355 I am satisfied that the loss of earning capacity consequence of the plaintiff’s injury is, when judged by a comparison with other cases in the range of possible losses of body function, fairly described as being more than significant or marked and as being at least very considerable.
356 Given the duration of the plaintiff’s symptoms and the lack of improvement in her wrist condition, in my view her impairment is permanent.
357 Further, to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a)
at the date of the hearing, she has a loss of earning capacity of forty per cent or more – s.134AB(38)(e)(i); and also
(b)
after the date of hearing, the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii).
358 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and (ii) “after injury” earnings. 359 The former must be calculated by reference to the six year period specified in s.134AB(38)(f).
360 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
361 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
362 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein.
363 I am therefore required to determine a “without injury” earnings figure.
364 No submissions were made by counsel as to a figure in this respect.
365 The plaintiff’s current earnings from personal exertion are nil.
366 In the three years prior to injury, the plaintiff earned between $28,000 and $32,000 gross per annum, earning the higher figure in the last two years. There were no comparable employee wages available for the three years after the injury, nor were submissions made by counsel as to figures in this later period.
367 The plaintiff’s case was put essentially on a total loss basis. Counsel for the defendants did not suggest figures.
368 With this limited evidence available, in my view, a figure which most fairly reflects the plaintiff’s “without injury” earnings is $34,000.
369 The plaintiff must establish therefore that she has a permanent loss of earning capacity of forty per cent or more – namely that she cannot earn more than $20,400 on a permanent basis.
370 The plaintiff is not fit to work in the suggested jobs of process worker, machine operator, food process worker and product examiner, which require use of both hands. The plaintiff, with limited English skills, is not trained and has no experience in receptionist or sales work and any computer work with her hands would be a problem.
371 Even working on the limited basis suggested by Mr Brearley, the plaintiff would still suffer the requisite economic loss.
372 Taking all the evidence into account, I am not satisfied that the plaintiff has a capacity for suitable employment, taking into account the matters as set out in s.5 of the Act.
373 Accordingly I am satisfied the plaintiff has established that she has a loss of earning capacity of forty per cent or more within the meaning of s.134AB(38)(e) of the Act.
374 I am also required to consider issues of retraining and rehabilitation pursuant to subsection (g).
375 In light of my findings as to the plaintiff’s impairment and her incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by her which would alter the situation that she has a permanent loss of earning capacity of forty per cent or more.
376 As rehabilitation and retraining have nothing to offer the plaintiff in terms of her capacity for employment, the plaintiff has satisfied the requirements of s.134AB(38)(g).
377 If a worker satisfies the test laid down by the Act in relation to loss of earning capacity, then he or she is at large to make a claim for damages, i.e. both for pain and suffering and loss of earning capacity: See Forrest J in Acir v Frosster Pty Ltd [2009] VSC 454 (7 October 2009), at paragraph 147, and Advanced Wire & Cable Pty Ltd & VWA v Abdulle [2009] VSCA 170.
378 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for loss of earning capacity and pain and suffering.
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