Puhovac v VWA
[2024] VCC 1591
•14 October 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-24-00111
| Mira Puhovac | Plaintiff |
| v | |
| Victorian Workcover Authority | Defendant |
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JUDGE: | CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 October 2024 | |
DATE OF JUDGMENT: | 14 October 2024 | |
CASE MAY BE CITED AS: | Puhovac v VWA | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1591 | |
REASONS FOR JUDGMENT – EX TEMPORE
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – bilateral carpal tunnel syndrome – whether impairment to body function – whether injury to each wrist meets the test – whether pain caused by non-work related injuries - pain and suffering – credibility
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited:Grech v Orica Australia [2006] 14 VR 602; Lakic v Galvanising Services & Anor [2001] VCC (23 Nov 2001); Baltruschaitis v G & K O’Connor Pty Ltd, [2001] VCC (16 May 2001); Sabanovic v Atco Controls Proprietary Limited [2009] VSCA 143; Tavendale v The Age Co Ltd [2009] VCC 642; Lu v Mediterranean Shoes Proprietary Limited [2000] VSCA 65; Lexa v TAC [2019] VSCA 123; Carbone v Toyota Motor Corporation Australia [2017] VSCA 249; VWA v Brassington [2021] VSCA 236; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1;
Judgment: The plaintiff is granted leave to pursue a common law claim for pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C O’Sullivan | Drakulic Lawyers |
| For the Defendant | Mr D. Churilov | Russell Kennedy |
HER HONOUR:
1The plaintiff seeks leave pursuant to s.335 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“The Act”) for leave to bring common law proceedings for pain and suffering damages only. These are my reasons for the decision I have reached.
2The plaintiff alleges that she was injured during the course of her employment as a personal care attendant with Merakis Aged Care.
3The law in relation to the test she must meet is not in dispute in this case. Ms Puhovac must prove that she has a permanent impairment or a loss of a body function, the consequences of which, when judged by comparison with other cases in the range of possible impairments or losses of body functions may fairly be described as more than significant or marked, and as at least being very considerable.
4The plaintiff relies on bilateral carpal tunnel syndrome as the injury. She says that if the court determines that a bilateral carpal tunnel syndrome is not one body function, that the injury to each wrist meets the relevant test.
5The issues for determination in this case are;
(a) whether the plaintiff is entitled to rely on bilateral injuries;
(b) whether the cause of the plaintiff's pain is carpal tunnel syndrome, which the defendant accepts is work related, or whether there is contribution from non-work related injuries, for example, De Quervain's tenosynovitis and/or osteoarthritis at the base of the thumb, and;
(c) whether the consequences for the plaintiff meet the test of at least very considerable.
6Turning now to consider the question of whether bilateral carpal tunnel is an impairment to a body function.
7The plaintiff submits that bilateral carpal tunnel is the exception to the requirement that impairments to different body parts cannot be aggregated, and says that the authorities have accepted the bilateral carpal tunnel syndrome is a loss or impairment to a single body function.
8The plaintiff relies on the decision of Grech v Orica Australia [2006] 14 VR 602 (“Grech”) at paragraph 48, as well as earlier decisions in this court, in Lakic v Galvanising Services[1], a decision of November 2001 and Baltruschaitis v G & K O'Connor Proprietary Limited, of 16 May 2001, as well as Sabanovic v Atco Controls Proprietary Limited (“Sabanovic”),[2] a Court of Appeal decision of 2009.
[1] [2001] VCC (23 Nov 2001)
[2] [2009] VSCA 143
9In Grech the worker suffered bilateral carpal tunnel syndrome and he had developed the syndrome prior to 20 October 1999, and had then continued using his wrists and hands with the same employer after that period of time. The trial judge had proceeded on the basis that the worker's claim must fail because his injury was referable or could be linked to employment prior to October 1999. And the importance of that date related to the introduction of the legislation.
10The issue which the Court of Appeal was concerned in that case was whether the worker, although having sustained an ongoing injury prior to October 1999, may nevertheless show that he had an injury which entitled him to compensation which was sustained after the date. In that case the Court of Appeal found that the trial judge had not adequately addressed the question of whether, on or after the relevant date, the worker had suffered a compensable injury that constituted a serious injury.
11Although the injury was bilateral carpal tunnel syndrome the court did not turn its mind to the question of whether the injury itself constituted a serious injury, nor did it consider the issue of whether bilateral carpal tunnel syndrome could constitute a loss or impairment of a single body function.
12In Sabanovic the plaintiff also suffered bilateral carpal tunnel syndrome. The trial judge dismissed her application for serious injury on the basis that she did not satisfy the test. The appeal proceeded on the basis that the trial judge had given insufficient weight to medical opinions and nerve conduction tests, and too much weight to video evidence. The appeal was dismissed.
13It appears that both the trial judge and the Court of Appeal proceeded on the assumption that bilateral carpal tunnel syndrome could be treated as a single body function, but there was no discussion of this proposition, and it was not the basis for the appeal.
14In Tavendale v The Age Co Ltd[3] (“Tavendale”) the worker suffered a work related injury to his left knee. Because of this injury he alleged he had favoured his right knee, overloading it and suffering injury to that knee. It was submitted in that case that the injuries bilaterally to his knees impaired one body function, and that as a result the injuries to both knees could be aggregated for the purposes of considering the question of serious injury.
[3] [2009] VCC 642
15The trial judge in that case held that the injury to the right knee could be considered a consequence of the injury to the left knee. He considered it was appropriate to regard the function of both the left and right lower limbs as involving one body function. Therefore, the consequences of the incapacity to both knees was assessed when considering the plaintiff's impairment.
16In Lu v Mediterranean Shoes Proprietary Limited [2000] VSCA 65 (“Lu”) the court held that an injury to, for example, an elbow and a shoulder, could result in an impairment or loss of the body function of an arm. However, an injury to the shoulder and an injury to the elbow could only be aggregated where the injuries resulted from one event or incident. If injuries were the result of separate events, each giving rise to a cause of action for damages, each injury had to be considered separately for the purposes of determining whether any resulting impairment met the definition.
17The only relevant impairment is the loss of a body function that results from the defendant's wrongful act or conduct. The Court of Appeal held that the right shoulder and the right elbow comprised two separate body functions and could not be relevantly aggregated. The fact that those two injuries had an effect on the worker’s right arm did not mean that the arm was the relevant body function. A body function that is indirectly affected by two separate injuries to two body functions is not ordinarily “impaired” by those two injuries for the purposes of the Act. That is, the body function of the elbow and the separate body function of the shoulder cannot be aggregated for the purposes of establishing impairment of the body function of the arm. An injury to the toe and an injury to the knee might both affect the body function of the leg, but could not be said to be impairments to the one body function.
18The defendant says, in this case, that if bilateral carpal tunnel syndrome ever was, on the authorities, able to be treated as a single body function, that position has now been overturned by the Court of Appeal in Lexa v TAC [2019] VSCA 123 (“Lexa”).
19In Lexa the plaintiff had suffered an injury to a number of body parts, including both shoulders and his spine. Counsel for the plaintiff at first instance conceded that aggregation was necessary as the medical material did not divide the various consequences, and the shoulders were to be dealt with in globo.
20The trial judge found that the authorities said to support the proposition that injuries to both shoulders could be aggregated if they arose out of the one incident, did not in fact support that proposition. Those authorities, she found, allowed for aggregation where there was a work process injury, and where the affected body function had been held to be “manual dexterity”.
21I assume, although it is not set out in that decision, that the authorities that the judge is referring to are those County Court authorities from 2001, Lakic v Galvanising Services, and Baltruschaitis v G & K O'Connor Proprietary Limited. Her Honour held it was impermissible to aggregate the plaintiff's shoulder injuries.
22On appeal, the Court of Appeal said that under Lu it might, in some circumstances, be permissible to aggregate the effects of injuries on two body parts arising from a single incident, but the impairment must be to the one body function. The body function, the court held, denotes a physical act or operation, not an applied activity.
23In Lexa the worker submitted that the bilateral injury to shoulders might give rise to, for example, the loss of a body function in the form of an inability to lift an object with both hands. That, the court held, was not a single body function, but the coordinated exercise of a number of body functions.
24The court distinguished the circumstances in Tavendale, where injury to one knee was found by the judge to have caused the injury to the other knee. In Lexa neither injury was claimed to be the product of the other. The court held that bilateral shoulder injuries had not given rise to the loss of a single body function.
25In Carbone v Toyota Motor Corporation Australia[4] the court also considered that each shoulder injury gave rise to an impairment to a different body function, though in that case the shoulder injuries also arose from different incidents.
[4] [2017] VSCA 249
26I am not able to find any higher court authority since Lexa that upholds the notion that bilateral carpal tunnel syndrome is an impairment to a single body function. The cases that are said to stand for that proposition on examination do not grapple with the issue of whether the impairment is to a single body function, but turn on other issues.
27Old decisions of this court that bilateral carpal tunnel represents an impairment to a single body function, being manual dexterity, are of questionable utility in light of Lexa. Taking the analogy of the Court of Appeal in Lexa, that lifting something over the shoulders with both arms requires the coordination of multiple body functions, it is difficult to understand how it could be said that the impairment caused by bilateral carpal tunnel syndrome is to a single body function. It is difficult to understand how manual dexterity comprises a single body function, as opposed to a series of coordinated and distinct body functions.
28However, even if “manual dexterity” could be described as a single body function, it is difficult to understand how it could be said that bilateral manual dexterity is a single body function.
29The more recent authorities that have allowed for aggregation of injuries, for example, Brassington[5], involved aggregations of injuries to the same limb; in that case, knee and ankle, or a circumstance where an injury to one limb caused an injury to another, for example, Tavendale.
[5] VWA v Brassington [2021] VSCA 236 (“Brassington”)
30It is not said in this case by the plaintiff, or in any of the medical material, that by reason of the development of carpal tunnel syndrome in her right arm the plaintiff over-relied on her left arm and thus developed carpal tunnel syndrome in that arm. It is possible, though not certain, that a causal relationship like this might distinguish a bilateral injury from the Court of Appeal reasoning in Lexa. It would depend on a careful analysis of the particular circumstances of such a case.
31I do not accept that Grech is authority for the proposition that bilateral carpal tunnel syndrome is an impairment to one body function. It is likely that the decision in Lexa would apply equally to cases involving carpal tunnel syndrome, and therefore an impairment to one, or both of each lower limb must meet the test, and reliance cannot be placed on aggregation of the injuries.
32There is nothing that I am aware of that makes carpal tunnel a particular category of injury, other than the fact that a number of now very old County Court authorities treated it as such, and that treatment was not challenged, but also not addressed, by the Court of Appeal.
33This causes me to doubt whether a bilateral carpal tunnel syndrome could ever now be treated as a single body function. It is more likely that the better view is that an impairment to each of the right and left arm would need to be separately assessed to determine whether the test was met.
34However, in the circumstances of this case, if I am wrong in my approach to the treatment of bilateral carpal tunnel syndrome, it makes no difference, as I am satisfied that Ms Puhovac meets the test for each hand, assessed separately.
Background
35Ms Puhovac was born in Bosnia in 1965, and is currently aged 59. She completed her secondary schooling and then worked for a period of time as a retail sales assistant before moving to Germany and then to Australia in 1998.
36She had a period of depression and was unable to work between 1999 and 2012, which she says she has since overcome. She says she had no injuries to her hands, wrists or fingers, and there is no material before me to suggest that there was any pre-existing injury. At the time of being employed by Merakis she says she was fit and well.
37In April 2012 she completed her Aged Care Certificate III, and then she started work with the employer in May. Her pre-injury employment was, I think on the evidence, 65 hours a fortnight. There was some discrepancy in the evidence about when she moved to 70 hours a fortnight. It seems from her oral evidence that that happened after she returned to work post injury.
38She was permanent part-time , working four days a week, including Saturday and Sunday. She says the employment involved heavy and repetitive manual handling and all personal care tasks, including dressing and undressing, washing, showering, toileting, transfers and feeding. She had to roll elderly residents, make beds and do light laundry and cleaning.
39In 2015 she says she started getting pain and numbness and pins and needles in her hands. The onset was slow. It started in the right hand. She was diagnosed with bilateral carpal tunnel syndrome by Dr Yang Yeap.
40Between 2015 and 2017 she says her condition worsened, particularly in the right hand, but she was the sole breadwinner and had a dependent daughter and said she had no option but to continue to work. She felt that the symptoms in her hands were better when she was not working.
41In September 2017 she went to her general practitioner and had an ultrasound and nerve conduction test which confirmed the diagnosis. She says that in January 2018 her symptoms deteriorated. She was struggling at work. I will deal with the medical history in further detail below.
42Aside from some periods of time off work, notably after the carpal tunnel release surgery, she has otherwise continued working, notwithstanding pain. And indeed, in about October or November 2023 she started a second job in another aged care home run by Benetas, as a casual personal care attendant. That position was made permanent in February or March 2024.
Medical treatment
43On 24 January 2018, Ms Puhovac made a WorkCover claim in relation to the carpal tunnel syndrome, which was accepted on 21 February 2018. She was off work for a few days, and then returned on modified duties.
44A year later, on 19 March 2019, she was referred to hand surgeon Richard Large. In April of that year she had a right carpal tunnel release with Dr Large. She says that she had some temporary relief but no long-term benefit in relation to her pain, although the release did resolve symptoms of numbness and pins and needles.
45She says that between 2019 and 2022, pain and discomfort in both hands increased. She had an ultrasound guided injection into the right hand in 2021. In early 2022 she experienced increased symptoms and was referred to Dr Jasinarachchi, who recommended a carpal tunnel release of the left hand.
46She was worried about this because she felt the past release surgery had not helped, and instead she had a steroid injection in March 2022.
47In February 2023, ultrasound confirmed a persisting carpal tunnel in both hands, and she had further bilateral steroid injections on 21 February 2023.
Consequences
48Ms Puhovac says that she has the following consequences as a result of the carpal tunnel syndrome. Difficulty lifting, pushing, pulling, handling buttons, opening jars, undertaking activities that require fine motor skills. She says she drops things, she is in constant pain which fluctuates in severity. Her ability to care and interact and play with her grandchildren has been affected. In particular, she has a six year old granddaughter who lives with her, and she cannot pick her up, or push her on the swing without pain. She says her daughters live with her and help her by doing most of the housework, in particular, the heavy lifting of pots and pans, and so on.
49She says her sleep is disturbed in quality and quantity. And I will deal with this further in due course. She has medication which helps, but she nevertheless often wakes during the night with both pain and numbness in her hands. She says she wakes about five times a night, and what wakes her is always pain in her forearms.
50She says she cannot drive long distances, that after about 20 minutes of driving she is in pain in her arms and has to shake them out. She becomes frustrated, she feels down and anxious because of the pain. She enjoys her employment, notwithstanding these difficulties, but she is worried about her capacity to continue if her hands deteriorate. And there are several tasks that create a lot of strain, in particular, rolling of residents, washing and toileting, pushing in wheelchairs, and tub chairs, and she notices increased pain in her hands at the ends of her shift, which causes her to be tired and sore, and wanting to give her hands a rest. She took two weeks of long service leave in order to give her hands a rest. She says that the experience of pain significantly reduces her enjoyment of the job.
51She has added an additional workplace to her pre-injury hours, and does two shifts at Benetas of five hours each. She describes this work as much easier. It involves less manual handling, more sitting and supervision, and she wants to undertake more of this type of work.
52There is medical evidence that she is likely to need further surgery. She is very uncertain about this, but she does plan to have further steroid injections in the future which provide short-term relief.
53And I note the affidavits filed in support of her claims, her claim by her daughter and a friend, the friend noted that Ms Puhovac is often in visible pain at work but that she excels at her job. And that the friend will take on additional tasks to try to reduce Ms Puhovac's workload.
54The daughter notes that prior to her injuries her mother used to be more social, but goes out less now, and used to do much more around the house than she currently is able to.
55Ms Puhovac, in relation to medication, takes two Panadeine Forte every night and takes Nurofen and Panadol every morning.
56In relation to her employment, Ms Puhovac returned to work in August 2018 on modified duties. By November 2018 she was back to pre-injury hours and duties. She said in her evidence that at one stage she was doing 65 hours a fortnight, but added an additional afternoon shift which increased her hours to 70 a fortnight, and that the afternoon shift is generally an easier shift that puts less demand on her hands.
57It appears from the evidence that she added that additional shift after the injury. She obtained additional work with Benetas, as alluded to before, and does five hours a week with them over two days. These are afternoon shifts which she says are much easier, and this is the sort of work she would like to do more of, and move into, as it is less physically demanding. She hopes that she can eventually transition to that sort of work entirely.
58At the beginning of her employment with Benetas, and more recently, she says about two weeks ago, she asked whether there were more of those afternoon shifts available and there were no shifts, no additional shifts open. She says until she can transition fully to this type of work, or these shifts, she does not want to leave the Merakis employment because she needs the money. And she also said she loves her job and she enjoys it, but being in pain all the time decreases that enjoyment.
59Turning now to consider what injuries were caused by the work, there is no dispute that the plaintiff has bilateral carpal tunnel syndrome which has been confirmed on ultrasound and by nerve conduction studies. She relies on her diagnosis with carpal tunnel syndrome, and its acceptance by the defendant that it was caused by work.
60The defendant says the plaintiff has failed to disentangle those consequences caused by the carpal tunnel syndrome from those consequences caused by other non-work related conditions, and relies on the opinion of Associate Professor Behan, who diagnosed arthritic changes to the CMC joints and tenosynovitis in both wrists. Behan identified the source of some of the plaintiff's pain as the base of the right thumb and the left thumb. And he says this pain might be of an arthritic nature, which might explain the persistent pain even after the carpal tunnel release.
61The defendant submits that any pain the plaintiff has deriving from arthritic change, or tenosynovitis is non-compensable, as Associate Professor Behan has not diagnosed either of those conditions as being work related.
62And the defendant also relies on Dr Griffiths, who also diagnoses osteoarthritis and De Quervain's tenosynovitis. He notes that the osteoarthritis might not be work related change, though it could be aggravated by work related forceful gripping activity. And he notes that De Quervain's can also be aggravated by forceful grippingactivity. He considers that her pain is probably due to mild De Quervain's tenosynovitis rather than to the carpal tunnel syndrome, but accepts that the pins and needles and numbness is caused by the carpal tunnel syndrome.
63He does not accept that the carpal tunnel syndrome is caused by work, and that the presence of bilateral carpal tunnel syndrome in a right handed person is suggestive of an intrinsic tendency to develop the condition. He does not consider that the tasks involved in being a personal care attendant require any more gripping activity than that which is required in the ordinary person's life, as "most people have to make beds, dress themselves, lift or carry objects at home, and so on."
64This seems to miss the point that most people are not undertaking those activities for 35 hours a week, and it is the repetitive nature of the activities that may cause the development of carpal tunnel syndrome and other conditions, not simply doing those tasks in the course of daily life. In any event, the defendant accepts that the plaintiff does have a bilateral carpal tunnel syndrome that is work related.
65Given Dr Griffiths' view that osteoarthritis and De Quervain's tenosynovitis could be aggravated by her work, and the plaintiff's evidence about what is involved with her work, which in my view does include forceful gripping activity, I am satisfied that the carpal tunnel syndrome and aggravation to her osteoarthritis, and De Quervain's tenosynovitis are work related.
66I note that Dr Behan's opinion proceeds along the basis that the cause of the pain in her right arm might result from osteoarthritis or tenosynovitis because she has had a carpal tunnel release.
67He accepts that the pins and needles in the left arm relate to the carpal tunnel syndrome. This opinion does not appear to grapple with the fact that clinically on nerve conduction studies and electrophysiologic studies there is abnormal sensory latency in the right arm consistent with median nerve entrapment in the carpal tunnel.
68On his own clinical examination he diagnoses carpal tunnel in the right, as well as left hand. So that appears to me to support the proposition that the surgery did not resolve the carpal tunnel syndrome on the right, and support the proposition that ongoing pain in the right hand may well be carpal tunnel related.
69I am therefore satisfied that the injury to the right and left upper limbs were each caused by work, and that injury is the development of carpal tunnel syndrome, and aggravation of osteoarthritis and De Quervain's tenosynovitis.
Assessment
70As President Maxwell said in Haden Engineering Pty Ltd v McKinnon,[6] the weight to be attached to the plaintiff's account of the pain experience will, of course, depend on assessment of the plaintiff's credibility. Ms Puhovac was an honest and credible witness. She made no attempt to exaggerate her symptoms. I have no difficulty in accepting her evidence as to the consequences she has experienced, and her degree of pain.
[6] (2010) 31 VR 1
71When asked whether there was a difference in the degree of pain in each hand, she said, "sometimes I think it is, but I don't think - some days, you know - but I would say it's the same."
72The idea that from time to time one limb is worse than the other is reflected in the medical reports which across various dates note either the right or the left as being the predominant cause of her pain. For example, Dr Griffiths records her as having more problems on the right, as does Behan, although he notes the clinical findings show the left is more impaired, and this is possibly reflective of the plaintiff's greater use of her dominant hand. But in other reports the left is noted as being more painful.
73However, overall she was unable to say that one is always, or predominantly, worse than the other. Nevertheless, because I consider that the body functions that are affected are the function of the upper limb caused by carpal tunnel syndrome in the right arm and the function of the upper limb caused by carpal tunnel syndrome in the left arm, and I do not accept that I can consider both limbs together, I must make an assessment of the consequences for Ms Puhovac that derive from each limb.
74I note that much of the medical material is significantly out-of-date, and therefore of limited utility in assessing the plaintiff's present condition. This reflects the fact that despite the submissions of the defendant that there is a non-compensable component of the plaintiff's pain, there is not a great deal of dispute about the injury Ms Puhovac suffers.
75I note that since the right carpal tunnel release her condition appears to have been largely unchanged. Nerve conduction studies have confirmed prolonged median motor and distal sensory latencies bilaterally, with electrophysical evidence of bilateral median neuropathies at the wrist, compatible with a diagnosis of carpal tunnel syndrome in each hand. On examination by Dr Slesenger, the plaintiff was also noted to have global weakness in each of her upper limbs.
Pain
76Looking at the injury to the right hand, the plaintiff has had a carpal tunnel release surgery on 18 April 2018. This resolved the numbness and feeling of pins and needles, but did not resolve her pain. She was off work until August 2018, and then undertook a return to work program on light duties.
77After about three months she had returned to work and had resumed pre-injury hours and duties. She had a steroid guided injection into that wrist on 13 April 2021, and 21 February 2023.
78The plaintiff has not had surgical release of the carpal tunnel syndrome on the left hand, but she had steroid injections into the left hand on 3 March 2022 and 21 February 2023.
79The plaintiff has been consistent in her evidence that after her right carpal tunnel release her symptoms of pins and needles resolved in that arm, but the pain has remained. That pain is significant. She describes it as unremitting, although variable. Her pain is worse in each hand when she uses her hands a lot, and better when she is able to rest. She has pain coming from her index, middle and ring fingers that shoots up through her wrist and up her arm. This is pain that she experiences in each limb.
80When asked what she can and cannot do because of pain she was forthright. She said, "I do everything. I do everything, but I have difficulty." She can, for example, pick things up, but finds holding the position for a period of time causes pain. She was asked if she could pick up a bag of groceries. She said, "Yes, I do", but that it caused pain. When asked how long she could pick up a bag of groceries before experiencing pain, she said, "Sometimes I put on the ground, sometimes manage to go to my car. It depends how heavy it is, but I have difficulty, and I do that."
81I take from this, that depending on numerous factors, such as the heaviness of the grocery bag and the distance to her car, she may be able to carry the bag all the way, or she may have to put it on the ground for a rest.
82I consider answers like this to be a testament to Ms Puhovac's credibility as a witness. She did not give a pat answer such as, "I can only hold an item for five minutes" or "I cannot lift more than five kilograms", but rather gave honest answers, doing the best she could to describe the situation she encounters, and the pain they cause. She said, "I'm pushing person in big tub chair, 120 kilos, am doing this. Of course, in my job it's difficult, and make me pain. Can I take a cup of tea? Yes, I can take it. I don't have a disability, disabled person, but I have a difficulty. I have pain, and I still do it. I didn't say I'm not doing, I am doing it, and I have pain and I try to go with that." She said she has to work and she tries to push as much as she can.
83She was shown video surveillance footage of her undertaking various activities, including getting in and out of a car, going through a shopping centre with her sister and looking at items of clothing, and carrying bags.
84It is fair to describe Ms Puhovac as being somewhat bemused by the video surveillance footage. She agreed without hesitation that she could undertake all those tasks. When asked, "You didn't see yourself on that video, the whole video you just watched, when you were using your hands, both hands, you did not see yourself in any noticeable pain, did you?" She replied, "My pain is not visual. My pain is here", and gestured to her arms. She said, "I'm not grinding my teeth, and I'm in pain. I have pain in my arms." I take it to mean that her pain is not reflected in her visual countenance.
85It was put to her that the pain did not stop her from performing the motions she was shown on the video. She said, "This is the way of living. I have to do it. No-one's gonna open the door for me." I did not consider any of the video footage undermined the plaintiff's credibility. It did not show her undertaking tasks she said she could not perform, and she had been candid about her ability to undertake tasks of daily living. The fact that she continues to work, and work increased hours while having such a diagnosis, is evidence that she is prepared to put up with pain and to do tasks, albeit that they cause her pain.
86In relation to some activities, I accept that the consequences of pain in one hand would not necessarily cause a limitation if the task was able to be carried out by one hand. So, for example, if she had difficulty picking up fine objects with one hand, and could undertake that task with the other, that would not be a consequence I could be satisfied was made out to meet the test simply because of the presence of pain in one hand.
87However, there are other activities that require two hands, such that pain in one hand will cause a difficulty, even if pain was absent in the other. Even if only one limb was affected, actions that require two hands would still be impacted to a very similar degree to the impact of pain in each hand.
88So, for example, in relation to pushing her granddaughter on a swing, she says, "It's not I can't do it, I'm trying to limit myself to save myself to work. Do less, and less work at home. I can, I can try, but it affects me. It's giving me more and more pain. The more I do, more pain. I'm just trying not to, where I can cut - and I can cut where I can. I can't not to work - I can choose not to take my daughter to the playground."
89The difficulty the plaintiff has lifting, or pushing her granddaughter because of pain in both hands, applies equally if she had pain in only one hand. It would not be possible to safely lift a six year old using only one hand. Nor could one push a six year old on a swing, effectively, using only one hand.
90Similarly, even if only the left, or only the right arm was affected, the difficulty with driving would still apply. She can drive her car, but after 20 minutes she gets pain and she has to shake out her arm. She said driving for 20 to 25 minutes, "I know it's numb and it's pain, but it's something what I can handle. After that I can't. I have to shake my arms and all this because I can't handle it, the long drive." Because she is right hand dominant it is likely that she will do more things with her right hand and arm.
Sleep
91She says she wakes about five times a night because of pain in one arm or another. The defendant notes that in August 2023 her general practitioner, Dr Nadir Nahem, has made a note that she is sleeping well. In 2024 her general practitioner informed her of the need for a good sleep routine in the context of prescribing her weight loss medication, and later recorded her as following a good sleep routine. In 2020 Dr Romas also recorded that on most nights she sleeps okay.
92Ms Puhovac did not remember that history, or giving those instructions on those occasions. She was adamant that she does not have a good sleep routine. She described her sleep as very, very bad. It is likely that from time to time her sleep has been variably affected by pain, however, I am required to assess her as she presents today.
93She said, "Different nights, but if I go to sleep 10 o'clock, and maybe I wake after hour, then in pain half an hour. Then, you know, manage to fall asleep. You're tired, you do this, up and down, right, I don’t know, I actually don't know. I don't recall it, but I know I'm in lots of pain." When asked to give me an idea of how often she is waking, she said, "I wake up at least five times, and it's pain what is wake me up."
94I accept her evidence in relation to her sleep. I am satisfied that the pain in each arm wakes her on multiple occasions each night. Even if only half her nightly wakings are caused by either the right or the Left arm, she is still being woken on average two and a half times a night due to pain in each hand.
95She describes her sleep as very, very painful and says she cannot sleep without tablets. She takes Panadol and Nurofen every morning. She takes two Panadeine Forte tablets every night. She says usually she takes these before sleep, but sometimes after work when she will take one at 4 pm, and then another six hours later at 10 pm. She says they make her drowsy and that is why she does not take them in the morning.
96When she does not work she tries not to take Panadeine Forte as she knows this medication is not good to take every day. I understand that after a day at work the pain in her right hand, and her left hand, has increased and requires Panadeine Forte to manage. The fact that she is still waking multiple times each night with breakthrough pain, despite having Panadeine Forte onboard, indicates to me that the degree of pain is significant.
Prognosis
97Associate Professor Behan considers that the CMC joint arthritic changes and tenosynovitis will precipitate further surgical intervention and not just steroid injections, which are a stopgap measure. There is a prospect, at least, that her continued work and use of her hands will continue to aggravate the underlying condition to the point where further surgery is required.
98There is also a prospect that notwithstanding her current reluctance she will eventually progress to surgical intervention for the carpal tunnel syndrome in her left hand, if the pins and needles and numbness and pain reach a point where it is no longer bearable.
99The defendant submits that the injury claimed has had no impact on her work as Ms Puhovac has increased her hours. The plaintiff gave an entirely plausible explanation for her increase in workload. She has taken additional shifts with Benetas as these are the sorts of shifts she would like to transition to, afternoon shifts, with more supervisory role, more sitting and chatting with residents and responding to buzzers, and less manual labour in the way of pushing, pulling, rolling, dressing and toileting.
100She cannot afford to give up her current shifts at Merakis until she has secured permanent shifts of the type she seeks, and can manage. I am satisfied that she seeks this type of work because it is more manageable with her level of pain.
101I accept that notwithstanding that she is able to work more than pre-injury hours, the injury has had an impact on the type of work she will be able to do in the future, and has caused her to look for alternative work. This is a consequence to be weighed with all the other consequences.
102I am also satisfied that undertaking the sort of work she does, which is quite heavy manual labour, causes an increase in the pain in both her limbs. The sort of work she has to do, rolling patients, dressing and toileting, pushing in wheelchairs and tub chairs, using hoists and lifting machines, aggravates and increases the level of pain in each hand. These are tasks that require the use of both hands such that even if one hand was entirely unaffected, the painful hand would still render the task more difficult.
103For example, she described having to push heavy patients in tub chairs, and says where she can she avoids this task, but sometimes she uses her body weight to push, and demonstrated pushing a tub chair using the front of her chest. This is a task that would remain as difficult with pain in one hand, because it would not be possible to use only an unaffected hand to push.
104I accept that working while having constant pain impacts on her enjoyment of her work. I accept that this is a consequence that would flow, regardless of whether the pain was in one, or both hands.
105I accept, based on the clinical evidence, that the plaintiff has symptomatic carpal tunnel syndrome and radiologically identified osteoarthritis in both hands, and her evidence of the degree of pain she experiences, combined with her evidence about the hours she works, and the sorts of tasks involved in her work, that this plaintiff could fairly be described as a stoic plaintiff. There would be many people who come before this court with similar diagnoses who would not continue to work in these circumstances, and these are cases that I am mindful of when I consider the range of possible impairments that come before the court.
106I do not penalise this plaintiff because she is more willing to endure pain and remain more active than another plaintiff might be.
107The presence of daily pain requiring prescription analgesia, and the multiple nightly wakings, are significant factors that tend towards a finding that she has sustained a serious injury. The fact that the injury she has suffered includes both limbs, while potentially increasing her overall level of pain, does not mean that the consequences she experiences arising because of her injury in both limbs, can simply be halved when assessing the consequences for her of impairment to a single limb.
108I am satisfied that given the degree of pain and restriction caused by each limb, even if only one limb was painful, she would still be taking Panadeine Forte every night. She would still be waking multiple times, although potentially slightly fewer times per night. And she would still have the limitations on her work capacity. She would still get less enjoyment from her work and would continue to have restrictions on driving, caring for her granddaughter, and undertaking some activities of daily living, particularly those that require both hands, so that she could not simply undertake them with the hypothetically unaffected limb.
109I note that the plaintiff, to her credit, has managed to maintain a social life that includes going on yearly visits to her mother in Bosnia. Though she describes this as less than it previously was. I do not think her maintenance of social activities undermines her evidence about the impact of her injury.
110When looking at what this plaintiff says about her pain: that it is unremitting; that it is very, very bad; that it impairs her enjoyment of her work; and looking at what she does about her pain: she takes daily medication; she takes nightly prescription medication; she has had multiple guided steroid injections; she has had one operation; she has taken a period of leave in order to give her hands a rest; she has sought alternative employment, notwithstanding her very long service with one employer, to whom she is clearly loyal, to try to manage her pain better, and when compared with the range of comparable cases, I am satisfied that the injury to each limb is objectively serious.
111Accordingly, the plaintiff is granted leave to pursue a common law claim for pain and suffering damages.
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