Reddy v Tudor Plating Pty Ltd
[2010] VCC 1976
•10 December 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-08-03469
| SASHI DHARAN REDDY | Plaintiff |
| v | |
| TUDOR PLATING PTY LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE KINGS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 31 May and 1, 2 and 3 June 2010 |
| DATE OF JUDGMENT: | 10 December 2010 |
| CASE MAY BE CITED AS: | Reddy v Tudor Plating Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1976 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Application under s.134AB Accident Compensation Act 1985 – Serious injury claimed for hand/arm and psychological impairment – leave granted for serious injury to hand/arm for pain and suffering and loss of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison SC with | Ryan Carlisle Thomas |
| Mr M Waugh | ||
| For the Defendant | Mr A Middleton | Wisewould Mahony |
| HER HONOUR: |
1 This is an application brought by the plaintiff for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) to bring common law proceedings to recover damages for an injury suffered by him in the course of his employment with the defendant from October 2003 to July 2004 (“the injury”).
2 The plaintiff seeks leave to bring proceedings for damages for “pain and suffering” and “loss of earning capacity” within the meaning of s.134AB(37) of the Act.
3 The plaintiff brings this application pursuant to clauses (a) and (c) of the definition of “serious injury” to be found in s.134AB(37) of the Act.
4 There, “serious injury” is defined as meaning:
“(a) serious long-term impairment or loss of a body function; or . . . (c) severe long-term mental or severe long-term behavioural disturbance or disorder.”
5 The body function relied upon in this application is:
(a) the serious permanent impairment or loss of body function of the right hand/arm and/or left hand/arm; (b) the severe mental or behavioural disturbance or disorder is that constituted by major depression, anxiety and/or adjustment depression and/or disorder. 6 The following evidence was adduced:
(a)
The plaintiff and Mr Anthony Berger, treating surgeon of the plaintiff, were cross-examined;
(b) The plaintiff tendered the following evidence:
ƒ the Plaintiff’s Court Book, including affidavits of the plaintiff, sworn 8
April 2008, 22 December 2009 and 20 April 2010ƒ an affidavit of Mr Howatt sworn 7 May 2010 ƒ pages 81 to 85 of the Defendant’s Court Book.
(c) The defendant tendered the following evidence:
ƒ pages 1-16, 17-71 of the Defendant’s Court Book ƒ letter from Mr Berger to Mr Damian Ireland dated 31 May 2007 ƒ page 50A of the Plaintiff’s Court Book ƒ Clinical notes of Dr Grokop from 3 October 2003 to 7 July 2004 (page 1
of the Defendant’s Court Book).7 I have read all the tendered material.
Relevant Legal Principles
8 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act.[1]
[1] S.134AB(19)(a) of the Act
9 In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)
“the injury” suffered by him arose out of, or in the course of, or due to the nature of, his employment with the defendant on or after 20 October 1999.[2]
(b)
the impairment or loss of body function and for the mental or behavioural disturbance or disorder both must be permanent, that is, permanent in the sense that it is “likely to continue into the foreseeable future”;[3]
(c) under s.134AB(38)(b) of the Act: [2] S.134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
[3] S.134AB(37) of the Act and Barwon Spinners (op cit) at paragraph [33]
“the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function … mental or behavioural disturbance or disorder, as the case may be, with respect to—
(i) pain and suffering; or
(ii) loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function …or mental or behavioural disturbances or disorders, respectively.”[4]
[4] S.134AB(38)(b) and (d) of the Act
(d) under s.134AB(38)(c) of the Act: “An impairment or loss of a body function … shall not be held to be serious … unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases … fairly described as being more than significant or marked, and as being at least very considerable.”
(e) under s.134AB(38)(d) of the Act: “A mental or behavioural disturbance or disorder shall not be held to be severe … unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases … fairly described as being more than serious to the extent of being severe.”
10 The test for “serious” and “severe” as set out in paragraphs (b), (c) and (d) of s.134AB(38) of the Act is sometimes referred to as the “narrative test”.
11 In addition, in relation to “loss of earning capacity consequences", the plaintiff has a specific burden to establish:[5]
[5] S.134AB(19)(b) and (38)(e) of the Act
(a)
that as at the date of hearing a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s.134AB(38) of the Act;[6] and
(b)
that after the date of hearing the plaintiff will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.[7]
[6] S.134AB(38)(e)(i) of the Act
[7] S.134AB(38)(e)(ii) of the Act
12 In determining the application, the Court:
(a)
must make the assessment of “serious injury” at the time the application is heard;[8]
(b)
notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment;[9]
(c)
must give reasons which are as extensive and complete as the Court will give on the trial of an action and in so doing disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application;
(d)
notes that s.134AB(38)(b) of the Act provides that the consequences of an injury in terms of pain and suffering and loss of earning capacity are to be considered separately. In the event that a worker satisfies sub- paragraph (i) but not sub-paragraph (ii) of s.134AB(38)(b) of the Act, the worker is entitled to have leave to bring proceedings for the recovery of pain and suffering damages only;
(e)
the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) o the definition of serious injury.[10]
[8] S.134AB(38)(j) of the Act
[9] see Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]
[10] S.134AB(38)(h)
The Issues
13 The issues in this application are:
(1) Whether the injury was suffered in the course of the plaintiff’s
employment with the defendant.(2) Whether the plaintiff has a capacity for employment. (3) Whether such consequences satisfy the requirement of the Act to be a
serious injury.
The Plaintiff’s Evidence
14 In his first affidavit, sworn 8 April 2009, the plaintiff deposes that:
•
He was born in Fiji and moved to Canada with his family when he was eleven years old. In Canada he completed up to the equivalent of Year 11. He is now forty-nine years old and married with three daughters, aged nineteen, eighteen and fourteen.
•
He has worked as an electroplater for over twenty years. Additionally, he has worked in hospitality and as a factory worker.
•
In around June 2002, he suffered an injury to his right hand when a truck exhaust pipe fell onto his right wrist. He sought treatment for this injury and ultimately had right carpal tunnel release surgery in around February 2003, from which he had a good result.
•
In around August 2003, he came to Australia with his wife. After a short period, he was employed by the defendant as an electroplater. Prior to commencing his employment with the defendant, the functioning of his hands was not restricted.
•
His work with the defendant was physically demanding. His duties involved the following: repetitive and fine manipulative use of his right hand; pressing a button with his thumb for lengthy periods; use of a hoist to move racks of metal components in and out of different tanks; and to rack and unrack components into stillages. He felt pressure to work quickly and often had to work overtime. This work was more physically demanding than the electroplating work he had done in Canada.
•
In around March 2004, he started to experience problems with his hands. He continued to work and hoped his symptoms would resolve. He took some annual leave in April 2004 and his symptoms settled down. On returning from leave he was required to take on additional hours as one of his co-workers was undergoing surgery. As a result of the additional work, his symptoms worsened. He experienced pain, numbness and pins and needles in both his hands and wrists. He was struggling to perform his duties at work and discussed this with his boss. In around July 2004, he was unable to cope with the pain and discomfort and was certified unfit for work.
•
Nerve conduction studies confirmed that he was suffering from bilateral carpal tunnel syndrome. On 6 January 2005, he underwent right carpal tunnel release surgery, which settled his symptoms. But as time went on his symptoms returned worse than ever. He had a cortisone injection into his right wrist which provided short-term relief. In March 2005, he underwent left carpal tunnel release surgery. He continues to suffer from ongoing problems in his hands and wrists, and struggles to use them for sustained periods.
•
In around October 2005, he suffered a fracture to his left arm whilst playing soccer, which required surgery. The fracture healed and he did not suffer any worsening of his wrist and hand problems as a result of the fracture.
•
He is no longer able to use his hands as he did prior to commencing working with the defendant. Extended use of his hands causes increased pain. He has suffered loss of grip strength, his hands fatigue easily and he finds fine and manipulative tasks cause him pain. At times his pain radiates up his forearm and into his thumbs.
•
As a result of his pain, he has difficulty sleeping at night. He struggles with daily tasks such as shaving, dressing, driving, and chopping food. He used to enjoy playing golf, but now it is too painful and makes his symptoms worse. He still tries to help around the home, but suffers increased pain as a consequence. His ability to play sport with his children is restricted which he finds upsetting and frustrating.
•
He is no longer able to work as an electroplater, despite his extensive experience in the field. He liked working with his hands and it upsets him that his future employment opportunities do not include these types of jobs.
•
He has undergone training to become a Real Estate Agent and managed to find work in this capacity around mid-2006. In his job he struggles to drive for lengthy periods and to write or use the computer for extended periods. If his symptoms deteriorate, he is concerned that he would not be able to continue to work as a Real Estate Agent. If he was unable to undertake this type of work, he is concerned about what his future employment prosects would be.
15 In his second affidavit, sworn on 22 December 2009, the plaintiff deposes that:
•
He has continued to suffer symptoms and the effect of his bilateral carpal tunnel. There has been no improvement in his condition. If anything, it has deteriorated. He has decreased strength in his hands and at times he drops things. He uses braces on his wrists and uses a TENS machine at night.
•
He is currently being prescribed the following medications for his symptoms: Tramadol, Lyrica, Effexor and Seroquel.
•
In approximately June 2006, he started working for Ray White Real Estate in Laverton. After six months, he was approached to work for Stockdale & Leggo in Werribee. His boss at Stockdale & Leggo was aware of his carpel tunnel injuries, and was accommodating. For instance, he was offered the option of taking days off to rest his hands and was flexible in how he completed his work. He struggled with the driving, moving display signs, holding a pen to sign contracts and completing paperwork. He was getting his eldest daughters to help him complete his paperwork when he got home at night. The business was sold in February 2008 and the new managers were not sympathetic towards his injuries, and so he left.
•
He was out of work until July 2008, when he commenced with National Builders as a sales representative. He worked there for eight to ten weeks, but because of the trouble he had physically with the driving and the paperwork, he left. A month later he got a job at Sweeney Real Estate in Werribee, but he ceased his employment in February 2009 because he could not handle the work. He has not worked since and has no income.
•
Since ceasing work his mental health has deteriorated. He has been seeking treatment for this since April 2009. At times he has felt useless, depressed, tearful and suicidal. He has resorted to abusing alcohol.
•
His family life has suffered and he is frustrated and upset that his injuries have changed his whole life.
Investigations
16 In May 2003, Dr H Sadowski of Canada said, in relation to findings and interpretation of investigations:
“These results are compatible with a mild left carpal tunnel syndrome. On the right side the results are improved from the study of November 22, 2002 and median motor latency is now normal. There is only borderline slowing of conduction across the carpal tunnel. The residual discomfort is more likely to be musculoskeletal or soft tissue in origin.”[11]
[11] PCB 74
17 In August 2007, an MRI scan of the plaintiff’s left wrist concluded that there was swelling of the medial nerve in the carpal tunnel, together with a relatively deep position. The nerve was squashed between the flexor pollicis and flexor digitorum tendons. In addition, part of the flexor could be traced to the retinaculum/carpal tunnel roof.
18 In respect to the right wrist, the report said on the right anatomical position of the medial nerve there was greater disruption of the residual carpal tunnel roof consistent with scar and healing post decompression.
The Plaintiff’s Medical Evidence
Mr James Boyle
19 In a report of 17 June 2003 from Mr James Boyle, plastic, reconstructive and hand surgeon in Vancouver, said that he saw the plaintiff four months post his right carpal tunnel release. He said the plaintiff had a repeat nerve conduction study carried out in May 2003 which showed an improvement from his previous study which is borderline slowing of conduction across the carpal tunnel. Therefore, he has no residual carpal tunnel syndrome clinically. He said the plaintiff could return to a graduated return to work program.
Dr Gerry Grokop
20 In August 2009, Dr Gerry Grokop, general practitioner, said that the plaintiff presented to him on 19 May 2004, when he stated that in the past two or three months he had symptoms intermittently of bilateral carpal tunnel syndrome which were now worsening. The plaintiff was reluctant to claim WorkCover as he wished to continue working.
21 X-rays of the right wrist were normal. A bilateral EMG was ordered, which showed the plaintiff had in fact bilateral carpal tunnel syndrome. In July 2004, there was still no improvement in his condition. He was referred to Mr Berger, orthopaedic hand surgeon, and underwent an open right carpal tunnel release operation on 6 January 2005. It was Dr Grokop’s view that the plaintiff had suffered a significant injury to both wrists while working in early 2004. The injury was confirmed as a bilateral carpal tunnel syndrome and he underwent a bilateral carpal tunnel release performed by Mr Berger.
22 The plaintiff still suffers symptoms. He is unable to use his hands to any significant degree, certainly not any sort of manual work, and is limited in the writing and computer use he can perform.
23 Dr Grokop said the plaintiff had a permanent injury to both wrists, worse on the right than the left, which prohibits him from returning to the work he previously did or any similar work. He said the office type work he is capable of is also limited due to the pain and disability suffered with writing or computer use. He considered driving a vehicle with the hands on the steering wheel was also limited.
24 In September 2009, Dr Grokop said the plaintiff had no current work capacity.
Dr Michael Aufgang, General Practitioner
25 On 6 August 2004, Dr Michael Aufgang, the plaintiff’s general practitioner, reported in the absence of Dr G Grokop. He said that the plaintiff had a crush injury to his right hand at work as an electroplater in Canada in June 2002. The plaintiff experienced carpal tunnel syndrome in his right hand and proceeded to surgery in Canada in February 2003, when a plastic surgeon released his right carpal tunnel. He had a prolonged phase of recovery, returned to work in April 2003 and ceased in May 2003, and then resumed in October 2003, once settled in Australia.
26 In 2004, the plaintiff had bilateral symptoms of carpal tunnel syndrome which did not settle with rest. He ceased work in July 2004. It was Dr Aufgang’s view that this was a new injury. His prognosis was guarded, as he considered the plaintiff may need to change the type of work he was doing.
Mr Anthony Berger
27 In December 2007, Mr Anthony Berger, hand and upper limb surgeon, said that he had been treating the plaintiff since November 2004. The plaintiff stated he had had trouble with bilateral carpal tunnel compression since early 2004. He had previous surgery in the right carpal tunnel in 2003 however, his symptoms rapidly recurred.
28 Mr Berger performed surgery in January 2005, a right-sided carpal tunnel release, which revealed continuing compression in the median nerve. Following surgery, the plaintiff’s symptoms improved on the right side and appeared to be settling well.
29 In October 2005, the plaintiff complained of continuing symptoms in the left side and a recurrence of the symptoms in the right side. A cortisone injection into his right carpal tunnel failed to relieve his symptoms.
30 The plaintiff underwent a left endoscopic carpal tunnel release in March 2005 and this appeared to settle his symptoms. He has, however, been troubled by continuing pain in his right wrist and continuing carpal tunnel symptoms. Further surgery has been discussed, including the use of a vascularised radial forearm flap to cover the median nerve and hopefully improve its vascularity. It was Mr Berger’s view that the plaintiff had a permanent problem with the right median nerve following prolonged carpal tunnel compression. He said the plaintiff was left with ongoing median nerve dysfunction and pain. He considered that the plaintiff’s symptoms may have some impact on his employment and recreational activities. He believes his condition is permanent and he will continue with the present level of activity.
31 In March 2009, Mr Berger said the plaintiff has slowly deteriorating pain and increase in sensory symptoms in the right hand that has failed to respond to all forms of conservative management. His sleep has been affected. The increasing pain in the plaintiff’s right hand has caused more problems with the plaintiff’s ability to cope and, as a result, he has become depressed.
32 It was Mr Berger’s view that the plaintiff would be unable to return to any form of employment, that he needs to spend time working on pain management treatments and he said his prognosis was quite poor and the plaintiff was unemployable until his pain is brought under control. He considered he was going to be left with a permanent impairment but it was difficult to predict the level at this point in time.
33 In October 2009, Mr Berger said the plaintiff has been continuing with hand therapy, psychological counselling and pain management at a pain clinic. He said the plaintiff had become seriously depressed. Mr Berger said the plaintiff was not capable of returning to his pre-injury duties. He may be capable of lighter, non-repetitive activities but he believed that the plaintiff’s depression and anxiety would prevent him from returning to any employment.
34 In May 2010, Mr Berger had considered a DVD video which showed a number of activities involved in electroplating. It was his understanding that the activities were repetitive and were performed for nine hours a day during the period of the plaintiff’s employment. It was his view that the activity performed by the plaintiff would be consistent with the activity that would cause the swelling of synovial tissue and then possibly leading onto the development of the plaintiff’s carpal tunnel compression. He said the same argument applies to the problem of employment aggravating the pre-existing carpal tunnel compression.
Cross-Examination of Mr Berger
35 Mr Berger was shown a report of the nerve conduction study of Dr Sadowsky dated May 2003. He said the results would be consistent with carpal tunnel at that time. He said the fact that the test had been done on the left hand does not necessarily mean that the symptoms are there. He said neurologists vary in their practice, and often test both hands. He agreed that Dr Sadowsky’s reports are not excluding completely the possibility of some residual carpal tunnel syndrome.
36 In re-examination, Mr Berger said:
“The electroplating work, as I have seen on video and had described, is consistent with producing the swelling that would lead to carpal tunnel syndrome so I can’t say for certainty that it would never had happened had Mr Reddy been doing any sedentary activity. It may have appeared at an earlier time because of this work. It may have never appeared so I can’t predict.”[12]
[12] T 139
37 Further, Mr Berger said:
“The fact that symptoms are aggravated by being at work with repetitive activities, and they settle down after a period of no work, implies that there is activity that produces – at least at that stage, a temporary swelling of the flexor synovium which is temporarily putting pressure on the nerve. It may also be the positioning of the wrist, if the activity requires a lot of wrist flexion and pinch, that certainly can also put pressure on the median nerve, which is what Phalen’s test is, to detect pressure there.”[13]
[13] T 138
38 Mr Berger agreed that with each surgery there is more throwing down of scar tissue.
Mr David McCombe
39 In a letter dated December 2005, Mr David McCombe, hand, plastic and reconstructive surgeon, said that he had reviewed the plaintiff at the request of Mr Berger. It was his view that the plaintiff’s history was consistent with recurrent carpal tunnel syndrome aggravated by the development of adhesions. He said any further attempt at release of the carpal tunnel is unlikely to be of much benefit unless there can be a minimisation of the risk of further adhesions. He suggested a facial flap to wrap the nerve would be of benefit. He proposed writing to the plaintiff’s WorkCare insurer seeking acceptance of liability.
Mr Hunter J A Fry
40 The plaintiff relied upon medical reports obtained by the defendant’s insurer from Mr Hunter Fry, Mr M Khan and Mr P Battlay. In August 2004, Mr Hunter J A Fry, surgeon, reviewed the plaintiff for the defendant’s insurer. It was his conclusion that the plaintiff had a recurrence of his right carpal tunnel syndrome and a similar disorder on the left side which was a new condition. He said his employment with the defendant was a significant contributing factor to both upper limbs. He had reviewed the report from Dr Boyle, who performed the carpal tunnel surgery while the plaintiff was in Canada. It was his view that certain individuals are predisposed to develop carpal tunnel syndrome and the hand use in intensive repetitive work may assist in bringing on the condition in such individuals. The plaintiff is such a predisposed individual.
Mr M Khan
41 In November 2005, Mr M A Khan, orthopaedic surgeon, provided a report to the insurer for the defendant. He said that the plaintiff had suffered an injury to the right wrist in the year 2000 in Canada, where he underwent a carpal tunnel release with apparently a good result. The nerve conduction study after the operation was normal and the plaintiff returned to work.
42 The plaintiff came to Australia in August 2003. He participated in athletics and played soccer, as well as finding a job in Australia. His repetitive work with the defendant gave rise to his subsequent development of bilateral carpal tunnel syndrome. His right wrist was more affected than the left. He said in accordance with Dr Freilich’s report, there is no improvement in the right median nerve conduction at the wrist, hence the diagnosis of chronic scarring of the median nerve, resulting in impairment of function. It was his view that the plaintiff’s employment with the defendant was a significant contributing factor. He believed that there was likely to be permanent impairment that resulted from or was materially contributed to his injury. He said the nerve conduction studies show there has been permanent damage to the median nerve in the plaintiff’s right palm which has been contributing to the injury. He said that the plaintiff could not use his right hand in fine activities such as letter writing but he said the plaintiff has a capacity for work but was unable to do his pre-injury duties in an alternative work environment. He noted that the plaintiff’s symptoms prevented him from using his right hand in physical activities. He is a right hand dominant person.
Mr Peter Battlay
43 In March 2007, Mr Peter Battlay, orthopaedic surgeon, provided a report to the defendant’s insurer. He said 50 per cent of the plaintiff’s impairment resulted from the plaintiff’s employment with the defendant.
Ms Susie Rotch
44 In June 2009, Ms Susie Rotch, psychologist and psychotherapist, said she commenced treating the plaintiff in April 2009. It was her view that the plaintiff was suffering from a chronic pain condition which had been materially contributed to by his work at Tudor Plating alone. She said he was also suffering a severe reactive depressive condition which appears to arise out of his work with the defendant, as does the chronic pain. She said that the plaintiff will require ongoing assistance to manage his pain in order that he can get control over his life.
45 In October 2009, Ms Rotch said that the plaintiff had become suicidal in July 2009. At that stage his psychological problems had overtaken his chronic pain issues.
Ms Rebecca Hill
46 In October 2009, Dr Rebecca Hill, psychiatrist, provided a report based upon a single assessment performed by a clinician on the consultation and partnership team, Ms Linda Kite. Ms Kite’s assessment was consistent with a diagnosis of an episode of Major Depressive Disorder of significant severity. In terms of prognosis, she said depression varies widely in its response to treatment. Ongoing chronic pain and disability are negative prognostic factors predicting poor and incomplete response to biological and psychological treatments. She expected that the plaintiff’s employability would be limited while significant depressive symptoms persisted. She was unable to indicate the permanency of any disability but she said there was sufficient information to enable her to say there was a reasonable likelihood of incomplete response to treatment and thus an ongoing disability.
Ms Penny McMahon
47 In November 2009, Ms Penny McMahon, occupational therapist, said the plaintiff had been referred to her by Mr Anthony Berger. It was her view that the plaintiff was seriously depressed, required specific treatment for his depression at the Pain Management Clinic and at the Hand Therapy Clinic. She did not believe the plaintiff was capable of returning to his pre-injury duties. She said much of the depression and anxiety is increased by his situation.
Mr Nigel Strauss
48 In December 2009, Dr Nigel Strauss, psychiatrist, provided a medico-legal report to the plaintiff’s solicitor. It was his opinion that the plaintiff had suffered from significant organic problems, that he has been left with chronic pain and paresthesia. He said the plaintiff had been a motivated active individual with a good work record, and a keen family man. He said the plaintiff had not coped well with his physical injuries and he deteriorated psychologically. He did not believe the plaintiff was over exaggerating his problems and he considered that the pain is unconsciously derived from a psychological perspective. He considered the plaintiff’s anxiety and depression were fuelling his perception of pain. He considered the plaintiff had suffered major depression as a consequence of his employment. He said he was a suicidal risk. He did not see any significant change in the foreseeable future. He thought the plaintiff’s psychiatric problems were moderately severe and permanent, and he did not think the plaintiff would be working in the foreseeable future because of physical and psychiatric factors.
The Defendant’s Medical Evidence
Dr Warren Kemp
49 In May 2006, Dr Warren Kemp, rheumatologist and rehabilitation and occupational medicine consultant, reported to the defendant’s insurer. It was his view that the initial right carpal tunnel syndrome could possibly have been related to the stated injury in June 2002 but subsequently he developed bilateral carpal tunnel syndrome which is a common constitutional condition due to relative disproportion of the space available for the median nerves within the carpal tunnels. He said that once the median nerve entrapment had become established, it is likely that there would be some temporary aggravation of symptoms during the course of the plaintiff’s work and at other times. He thought the plaintiff had a capacity for work. He thought he was unfit for heavy manual work due to the healing factor in his left arm and the persistent symptoms in both hands.
Mr Damian Ireland
50 In June 2007, Mr Damian Ireland, hand surgeon, saw the plaintiff at the request of the plaintiff’s surgeon for further opinion. He said that the plaintiff may be one of those individuals who develops intense scar formation after the trauma of surgery and in view of the fact that his EMG and nerve conduction tests are improved since the release, he did not believe any further nerve surgery by itself is likely to help.
Dr Kevin S Fraser
51 In July 2008, Dr Kevin Fraser, rheumatologist, examined the plaintiff at the request of the defendant’s solicitors. It was his view that forceful and repetitive use of the hands may sometimes be an aggravating factor, but he thought it was unlikely in the present case. He considered the plaintiff was exaggerating his symptoms and his disability. He based this on the fact that the plaintiff had started a new job involving driving and computer work, activities which Dr Fraser thought the plaintiff would want to avoid if his symptoms were as disabling as he had described. He considered the plaintiff had bilateral carpal tunnel syndrome. He did not believe there was a causal connection between his symptoms and his duties with the defendant as he had only worked with the defendant for 163 days. He thought he was certainly fit for his present type of work.
52 In August 2009, Dr Fraser considered that the plaintiff’s current symptoms were largely due to non-organic factors. He considered there was no incapacity for work. He thought his presentation was due to non-organic factors.
53 In January 2010, Dr Fraser reviewed a DVD demonstrating the duties of an electroplater with the defendant. It was his view that the activities did not require forceful and rapid repetitive use of the hands, such as might sometimes be considered as aggravating factors in cases of carpal tunnel syndrome.
54 In April 2010, Dr Fraser reiterated his early comments that he did not believe the plaintiff’s duties with the defendant caused his bilateral carpal tunnel condition and the subsequent operations. He did not consider that the employment materially contributed to a permanent aggravation of the plaintiff’s bilateral carpal tunnel syndrome.
Dr Steven Adlard
55 In January 2010, Dr Steven Adlard, psychiatrist, saw the plaintiff at the request of the defendant’s solicitors. He thought the plaintiff had a combination of Major Depressive Disorder, a Chronic Pain Disorder associated with psychological factors, a general medical condition and alcohol abuse. He thought the pre-existing alcohol abuse had been exacerbated by the chronic pain and depressed mood. He said the plaintiff perceived the cause of his psychiatric condition to be his chronic pain in both wrists and hands, and the effect of being unable to work.
56 Dr Adlard did not consider the plaintiff had any current capacity to work as a real estate agent or similar. He said he had some incapacity for domestic and social activities. He considered the plaintiff needed treatment for both his psychiatric condition and alcohol abuse and that his overall condition was likely to improve. He said he needed psychiatric assessment for medication.
Cross-Examination of the Plaintiff
57 In Canada, in May 2003, the plaintiff said he had further nerve conduction tests on both the left and right wrists. He said he had muscular pain in the left wrist, which was different to the pins and needles he had suffered in the right wrist. He said he was favouring the right hand and used his left hand. The left hand slowly started to get sore. In re-examination, he assessed the level of pain in the left hand at 2 to 3 out of 10 and on the right at 3 out of 10. He said he stopped work in May 2003. He returned to work in a graduated fashion and by late June 2003 he was working full-time on unrestricted duties. He said he had mild symptoms when he returned to work. He arrived in Australia on 20 August 2003.
58 He agreed he did not tell Mr Berger, the hand surgeon, that he had suffered any symptoms of left carpal tunnel syndrome when in Canada. He said this was because the symptoms he had in the right hand were different to the symptoms in his left. In the left hand he had no pins and needles. He agreed he was told he had mild left carpal tunnel syndrome in Canada.
59 He agreed that he continued to have symptoms following the operation in Canada to his right wrist and to a lesser extent in his left wrist from the time he left Canada and even when he was working in Australia. He agreed when he first saw Dr Grokop, his general practitioner, he was told to give away the work he was doing. He said he was told in Canada the injury had resolved and he needed to work. He said he worked overtime with the defendant until he ceased working.
60 He said, after the operation in 2005, the symptoms went away at first but returned three or four months later. He agreed that if he performed activities that did not involve much use of his hands, the pain is fine. He said he did not play soccer anymore and he played nine holes of golf when he worked with Sweeneys in 2008. He agreed he did not attend his general practitioner between March 2007 and June 2009 in relation to his wrists as he was seeing Mr Berger, who prescribed Lyrica and cortisone injections.
61 He said that when he worked for Stockdale & Leggo, his daughter assisted him with the computer work and maintaining a database. His daughter was also working at Stockdale & Leggo and once she left he did not have her assistance. He said that he was then required to work six days a week. He also said that when he worked with National Builders he was required to enter data which required three to four hours’ work per day. He was unable to keep up with the work and the employer refused to pay him. He said he worked on for six weeks without pay.
62 In re-examination, he agreed that before the operation on the right wrist he had no symptoms in his left hand. He said he could manage his work and work full-time whilst in Canada. He said the work in Canada with his previous employer was easier, the workplace was modern, there were more hand movements involved in working for the defendant, the hoist was old-fashioned compared with the hoist in Canada, which was hydraulic and automatic and only required a flick of a switch. Further, in Australia, he was working longer hours. He also said that when he played golf with Sweeneys his hands were sore after nine holes.
63 In re-examination, he said he did not think he would be able to stock shelves at a place like Bunnings. He said the pain was at a level 10 when he ceased work in February 2009; it is slowly getting better.
Credit of the Plaintiff
64 The plaintiff impressed me as a truthful witness. He answered all questions in a direct manner. He did not exaggerate the consequences of his injury. The histories given by him to the medical practitioners he saw were consistent.
65 The plaintiff’s work history was indicative of a man with a keen work ethic. He had been working in the electroplating industry in Canada for eighteen years. He obtained employment in Australia soon after arriving. He said he enjoyed his job. He worked overtime, even when in pain. When he was no longer able to work with his hands, he retrained to become a Real Estate Agent. He continued working even when he was not coping, until his work was terminated.
Video Surveillance
66 I note the defendant has admitted that the plaintiff has been subjected to surveillance film taken and video produced. The fact that the video was not shown to the Court enables me to conclude that it would not assist the defendant’s case.
Vocational Assessments
67 A number of vocational assessment reports were conducted by the defendant. Vocational assessment reports dated 5 May 2005, 18 May 2006, and a further report from Work Solutions Australia, a functional capacity evaluation dated 23 June 2005, were relied upon. However, those reports were all undertaken at the time when the plaintiff had either completed his real estate course or was undertaking the course. It was anticipated that the plaintiff would be able to pursue the occupation of Real Estate Agent which would be within his functional capacities and limitations. All reports accepted that the plaintiff could not return to his pre-injury employment.
68 A vocational assessment was conducted by Evidex Pty Ltd in January 2010 at the request of the plaintiff. The plaintiff’s alternative vocational options were explored and it was found he had very few transferable skills for a new occupation with low physical demands. He has limited formal academic education, limited English literacy, very basic experience of administrative duties and no vocational useful computer and keyboard skills. No alternative occupation was found where the usual duties are within the plaintiff’s functional capacity. The plaintiff is fifty-one years of age, and based on the Australian Bureau of Statistics (‘Australian Social Trends 2002’), the likelihood of securing work steadily declines with age, dropping to a 60 per cent success rate for those aged fifty-five years and over. Further occupational rehabilitation and/or retraining in the future is unlikely to lead to suitable paid employment in the open labour market for the plaintiff. The conclusion was that there was no occupation in the open labour market for which the plaintiff is likely to qualify that meets the definition of “suitable employment” and this situation will continue for the foreseeable future.
Analysis of the Evidence
69 In this case, it is common ground that the plaintiff suffered bilateral carpal tunnel syndrome. It is conceded by the plaintiff that he had suffered right carpal tunnel syndrome in previous employment in Canada after a crush injury to that hand on 11 June 2002, which had been treated by surgery in February 2003 with a successful lessening or abatement of symptoms prior to emigrating to Australia and commencing employment with the defendant in October 2003.
70 I must consider what the evidence discloses as to the plaintiff’s prior right carpal tunnel syndrome and determine whether the additional impairment of bilateral carpal tunnel syndrome resulting from his work with the defendant from October 2003 to July 2004 is serious and permanent.
71 The Court of Appeal recently dealt with the question of aggravation cases in Guppy v Victorian WorkCover Authority.[14]
[14] [2010] VSCA 164
72 In that case, the Court consisted of Maxwell P, Nettle JA and Emerton AJA.
73 The Court, at paragraph 19, referred to the decision in Petkovski v Galletti, in which the Appeal Division of the Court held:
“… in relation to broadly equivalent provisions of the Transport Accident Act 1986 (Vic), that where there was an aggravation of a pre-existing condition or injury, the applicant was required to establish what injury was caused by the accident. An analysis had to be made of the extent of impairment of a body function before and after the relevant injury, and the additional impairment had to involve serious long term impairment of body function.”
74 In the footnote to that reference, paragraphs 443-4 in Petkovski of Teague and Southwell JJ, was referred to. It was noted that:
“Their Honours observed that the Transport Accident Act 1986 (Vic) did not affect the long-established principle that a person injured could be compensated for, but only for, such disabilities as were proved to have resulted from the relevant accident. There appeared to be some question in the mind of the learned judge below as to whether Grech v Orica Australia Pty Ltd (2006) 14 VR 602 … rather than Petkovski was the authority that he should follow.”
75 While it was clearly appropriate for the learned trial judge to follow Petkovski, the Court of Appeal held there was no inconsistency between Petkovski and
Grech.
76 It follows that the plaintiff, to reach the threshold of serious injury, is required to establish the aggravation from the employment from October 2003 with the defendant is permanent at the time of hearing in its effect on the bilateral carpal tunnel syndrome and the effects of the aggravation must be serious: Barwon Spinners Pty Ltd v Podolak.[15]
[15] Grech (supra) at paragraphs 56-58
Is there a Compensable Injury?
77 During the period this decision was reserved, the plaintiff had the matter relisted to make application to rely upon orders of the Magistrates’ Court dated 1 October 2010 and a Medical Panel Opinion and Reasons dated 7 September 2010 as giving rise to an issue estoppel. I accept that no issue estoppel arises from the orders of the Magistrates’ Court or from the Medical Panel Opinion. In this application, there was an issue as to the nature of the aggravation injury said to have arisen in the period in which the plaintiff was in the employment of the defendant. Another issue was the disentanglement of psychiatric consequences as opposed to physical consequences. Neither the orders of the Magistrates’ Court, nor the Opinion and Reasons of the Medical Panel provide assistance in determining the aggravation injury relied upon by the plaintiff. In any event, neither the order of the Magistrates’ Court, and the Opinion and Reasons of the Medical Panel, can give rise to an estoppel as to the issues of ‘causation’, ‘disentanglement’ or ‘loss of earning capacity’. None of these issues were determined finally and for all times. The decision of the Court of Appeal in Kozma Engineering Pty Ltd v Pupic[16] did not suggest otherwise.
[16] [2009] VSCA 313
78 Counsel for the defendant submitted that the employment with the defendant was not a significant contributing factor. Counsel relied upon the fact that the plaintiff had suffered a right carpal tunnel syndrome in Canada in June 2002 and the fact that the plaintiff had agreed that he had had pain in the left wrist. The defendant also referred to part of the evidence given in cross-examination of Mr Berger.
79 I find the plaintiff suffered a compensable injury in the course of his employment with the defendant. I accept that the plaintiff’s injury with the defendant is an aggravation and I refer to paragraphs 5, 6 and 8 of the plaintiff’s first affidavit where he deposed he had obtained a good result from his surgery, the functioning of his hands was not restricted and the work he performed with the defendant was physically demanding and involved repetitive and fine manipulation of his right hand. Further, I rely upon the reports of Mr Boyle and Dr Sadowski, both of Canada. Dr Boyle confirmed that there was no residual carpal tunnel syndrome clinically. Dr Sadowski said the residual discomfort is more likely to be musculoskeletal or soft tissue in origin.
80 In addition, I rely upon the plaintiff’s medical evidence of Dr Aufgang, Dr Grokop and Mr Berger, and by implication, Mr McCombe. The former two doctors are treating general practitioners and the latter two are treating hand surgeons. Mr Berger has operated on both wrists and also injected the right wrist. Mr Hunter Fry, Mr Kahn and Mr Battlay (doctors who saw the plaintiff at the request of the defendant) agree that the plaintiff’s condition is work- related. The defendant had the plaintiff examined by two rheumatologists, Dr Kemp and Dr Fraser. Dr Kemp said that the plaintiff’s work with the defendant was likely to have caused a temporary aggravation. Dr Fraser said that his employment was not likely to be a significant factor.
81 I accept that the law allows for multiple causes of the one set of consequences. It is sufficient if the employment with the defendant was a relevant cause. Accordingly, I am satisfied that the plaintiff sustained a compensable injury.
82 The Court, in assessing pain and suffering consequences of a physical injury, must exclude the psychological or psychiatric consequences of the injury.[17]
[17] S.134AB(38)(h)
83 Where, such as in this case, a plaintiff makes a claim based upon a physical injury (a serious injury application under paragraph (a) of the definition of s.134AB(37), a court is required to separate the psychiatric or psychological consequences of an impairment from those that are organically-based: see Barwon Spinners Pty Ltd.
84 The Court must examine the consequences of a physical impairment in the separate context of:
(a) pain and suffering; and (b) loss of earning capacity.
Loss of Earning Capacity
85 The provisions of s.134AB(38) provide a narrative test for determining whether a worker may make a claim for damages of pain and suffering and loss of earning capacity.[18] The subsection then imposes additional tests which must be satisfied in determining whether a worker may make a claim for damages for loss of earning capacity.[19] If a worker satisfies the tests laid down by the Act in relation to loss of earning capacity, then he or she is able to make a claim for damages (that is, both for pain and suffering and loss of earning capacity).[20]
[18] S.134AB(38)(b) and (c)
[19] S.134AB(38)(b), (c), (e), (f) and (g)
[20] Advanced Wire & Cable Pty Ltd & VWA v Abdulle [2009] VSCA 170, at [63]
86 Accordingly, it is appropriate for me to look first at the various tests for loss of earning capacity which must be satisfied by the plaintiff.
87 I shall consider the narrative test first. Section 134AB(38)(b) requires the term “serious”:
“… to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to-
…
(ii) loss of earning capacity- when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively.”
88 Section 134AB(38)(c) then provides:
“An impairment or loss of a body function or a disfigurement shall not be held to be serious for the purposes of subsection (16) unless … the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable.”
89 The plaintiff has sustained an injury to the right hand/arm and left hand/arm. The consequences of that impairment are that he can no longer return to his pre-injury employment, nor can he engage in work involving:
• frequent or sustained use of both hands with or without a degree of force • moderate to heavy manual handling, including lifting, carrying, pushing and pulling. 90 The plaintiff no longer has the capacity to work in other occupations for which he is qualified or has work experience.
91 Before the injury, the plaintiff had been in full-time employment for many years in the same industry.
92 The plaintiff tried to maintain his employment with the defendant before he had to cease due to the pain. He provided a history of working on, despite problems and difficulties. Subsequent to his employment in the electroplating industry, he underwent re-training, undertaking a Real Estate course. He commenced working as a Real Estate Agent and worked with a number of firms but was unable to cope with the physical demands of his duties, such as driving or writing for lengthy periods, lifting and carrying heavy signs and rolling flags. He was unable to enter data on a computer and required the assistance of his daughter with most administrative tasks. His daughter assisted with most written and computer-based work.
93 In February 2008, his duties changed with a new employer, which included more administrative duties. He was forced to resign. He then obtained employment with another real estate company but that role required him to drive for an increasing number of hours per shift with which he was unable to cope. He commenced work with a fourth real estate company but continued to experience difficulties at work and his symptoms gradually worsened. The employer refused to pay him. He worked on without payment.
94 The plaintiff underwent an assessment by Evidex Vocational Assessors in January 2010. The result of that assessment is that no alternative occupation could be found where the duties are within the plaintiff’s functional capacity. The conclusion was he did not meet the definition of “suitable employment” and that this will continue for the foreseeable future.
95 The plaintiff is aged fifty, he has lost the ability to continue to work as an engineering production worker, a job that he enjoyed and in which he had considerable experience.
96 I am satisfied that it is fair to describe the consequences of the plaintiff’s loss of earning capacity as being more than significant or marked and properly regarded as serious when judged by comparison with other cases in the range. The plaintiff therefore satisfies the narrative test.
97 In addition to satisfying the narrative test for loss of earning capacity, the plaintiff must also satisfy the statutory test for loss of earning capacity.
The Statutory Test
98 To obtain leave in relation to loss of earning capacity, the plaintiff must establish that:
(a)
at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s.134AB(38)(e)(i); and
(b)
after the date of hearing, the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii).
99 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”. 100 The former must be calculated by reference to the six-year period specified in s.134AB(38)(f).
101 “Without injury earnings” consist of the gross income (expressed at an annual rate) that the plaintiff 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.
102 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 plaintiff’s earning capacity.
103 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) of s.134AB(38) therein: see Barwon Spinners Pty Ltd & Ors v Podolak.[21]
[21] (2005) 14 VR 622 at paragraph 70
104 In terms of timing, the comparison between “without injury earnings” and “after injury earnings” is not necessarily consistent. The “after injury earnings” are calculated as at the date of trial (s.134AB(38)(e)), whilst the “without injury earnings” are calculated by reference to the six-year period specified in s.134AB(38)(f). So if the hearing to determine the question of serious injury takes place more than three years after the date of injury, it would not necessarily be an equivalent or parallel comparison: see Acir v Frosster Pty Ltd.[22]
[22] [2009] VSC 454 at [157]
105 The plaintiff’s current earnings from personal exertion are nil.
106 I am therefore required to determine a “without injury” earnings figure. The “without injury” earnings for the six-year period specified in s.134AB(38)(f) is as follows:[23]
[23] PCB 243
2004 $30,046 gross
2005 nil $31,226.40 gross received by way of
WorkCover weekly payments2006 nil $29,536.40 gross received by way of
WorkCover weekly payments2007 $28,986 gross
2008 $60,138 gross
2009 $21,385 gross
107 The plaintiff suffered his injury over time up to July 2004. The six-year period before and after July 2004 is July 2001 to July 2007. The plaintiff worked for the defendant from 6 October 2003 to 30 June 2004 and earned $30,046.00 gross for the thirty-eight week period, being the equivalent of $41,115.00 for a fifty-two week period. The defendant submitted that a comparable employee now earns $41,600.
108 The medical evidence was that the plaintiff could not return to his pre-injury employment. In March 2009, he thought he was unemployable until his pain was brought under control. By October 2009, he thought his depression would prevent him from returning to any employment.
109 The plaintiff relies upon the Evidex report which concludes that there is no suitable paid employment in the open market available to the plaintiff, and that this situation will continue for the foreseeable future. The defendant did not rely on any current reports.
110 The plaintiff is required to satisfy me that even if such training and rehabilitation was undertaken, he would still sustain a loss of 40 per cent. The Evidex Report addresses these issues. In summary, it says, in relation to occupational rehabilitation services, that given the nature of the plaintiff’s incapacities, it is questionable whether this would have resulted in a return to suitable employment. In respect to his post-injury retraining (Agent’s Representative’s Certificate for Real Estate), it does not qualify him for employment within his capacity. Ms Henderson of Evidex said that in her opinion, the provision of further occupational rehabilitation and retraining is unlikely to lead to suitable employment in the open market for the plaintiff. She based that opinion on the plaintiff’s limited English literacy, the requirement for extensive retraining to require the plaintiff to qualify for an occupation with low physical demands, his limited capacity to use either or both upper limbs for more than short periods, his age and the fact he has not attempted formal study in over thirty years. Accordingly, I am satisfied that further retraining or rehabilitation would not assist the plaintiff. I am satisfied the plaintiff has satisfied the requirements of s.134AB(38)(g) of the Act.
111 Therefore, I am satisfied the plaintiff satisfies the 40 per cent requirement and has sustained an injury within the meaning of s.134AB.
112 I accept that the consequences of the injury are permanent within the relevant section, that is, for the foreseeable future. There is no medical opinion that any treatment will alter the current course.
113 Accordingly, I find that the plaintiff satisfies the arithmetical formula established by the Act.
114 The above position is reached purely by reference to the plaintiff’s physical condition. No element of the mental component is taken into account in this assessment. Indeed, the mental element is required to be excluded by s.134AB(38)(h) of the Act.
115 Accordingly, I am satisfied that the plaintiff has established that he has the requirements of paragraph (f).
Conclusion
116 Having made these findings, I am satisfied that it is appropriate to make an order granting the plaintiff leave to commence a proceeding at common law seeking damages for pain and suffering and economic loss consequences as a result of his employment with the defendant.
117 Finally, I am satisfied that it is appropriate to make an order granting the plaintiff leave to commence a proceeding at common law against the defendant seeking damages for pain and suffering and loss of earning capacity as a result of his employment with the defendant.
118 I will hear the parties as to the precise form of orders sought and on the issue of costs.
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