Rose v Tully's Corner Produce Store Pty Ltd

[2023] VCC 2362

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-23-00636

DAVID ROSE	Plaintiff
v
TULLY’S CORNER PRODUCE STORE PTY LTD	Defendant

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JUDGE:	HER HONOUR JUDGE TRAN
WHERE HELD:	Melbourne
DATE OF HEARING:	18 September 2023
DATE OF JUDGMENT:	18 December 2023
CASE MAY BE CITED AS:	Rose v Tully’s Corner Produce Store Pty Ltd
MEDIUM NEUTRAL CITATION:	[2023] VCC 2362

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Serious injury – impact of pre-existing degenerative changes and unrelated conditions

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)

Cases Cited:Petkovski v Galletti [1994] 1 VR 436; Bezzina v Phi [2012] VSCA 161; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1

Judgment:                  Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Fitzpatrick with Mr D Nguyen	Slater and Gordon Ltd
For the Defendant	Mr A Middleton	TG Legal + Technology

HER HONOUR:

1On 12 March 2018, David Rose’s left hand and wrist were crushed between a pallet and a steel bin while he was working as a grocery manager at Tully’s Corner Produce Store (“the incident”). An x-ray performed that day revealed some degenerative changes, but no fracture or dislocation.

2Mr Rose says that, in the five-and-a-half years since the incident, he has suffered ongoing pain and restriction in his left arm, hand and wrist. He says the pain is constant, but variable. He says, at times, he suffers sudden nerve pain which can cause him to drop items and that he suffers from tingling and numbness. He underwent surgery to his left hand and wrist on 31 July 2020. He says that this improved the tingling, but the numbness and pain continued.

3Mr Rose has applied, under s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”), for leave to bring proceedings for damages for pain and suffering on the grounds that he has suffered a serious injury, in the form of a permanent serious impairment to his left upper limb (wrist and hand).

4The defendant accepts that Mr Rose injured his left wrist and hand in the incident. However, it contends that this was no more than a soft-tissue injury, which had since resolved. It notes that Mr Rose had pre-existing osteoarthritis in his wrist and a predisposition to degenerative changes in his joints; as well as significant problems in his hips, knees and shoulders.  It submits that Mr Rose bore the onus of establishing the impact of his claimed serious injury in this context. Further, it submits that Mr Rose exaggerated his symptoms, and the consequences of those symptoms, in his evidence. It submits that, if there were any permanent consequences of the incident on 12 March 2018, they did not amount to a serious injury.

5This application raises the following issues for determination:

(a)   To what extent is Mr Rose’s current left hand and wrist condition attributable to the incident, as opposed to pre-existing degenerative changes in his wrist?

(b)   What are the consequences of Mr Rose’s left hand and wrist condition?

(c)   Do the consequences of Mr Rose’s left hand and wrist condition amount to a permanent serious impairment of a body function?

6I will address each of these issues in turn.

To what extent is the current left hand and wrist condition attributable to the incident, as opposed to pre-existing degenerative changes in his wrist?

7As stated by Southwell and Teague JJ in Petkovski v Galletti:[1]

“The accident did not cause the pre-existing condition; at this stage of the process the applicant must establish what injury was caused by the accident; where there is a pre-existing condition, it necessarily follows that an analysis must be made of the extent of impairment of a body function before and after the relevant injury.”

[1] [1994] 1 VR 436 at [44]

8There were pre-existing degenerative changes in Mr Rose’s wrist.[2]  However, aside from some occasional references to tingling in his left hand, there is no indication that Mr Rose suffered any significant pain in his left hand or wrist prior to the incident.[3] Accordingly, I accept that there is a temporal connection between the onset of Mr Rose’s symptoms of pain, tingling and numbness in his left hand and the incident.

[2]        See x-ray performed on 12 March 2018, the day of the incident, at Plaintiff’s Court Book (“PCB”) 55

[3]Affidavit of David Rose, sworn 27 October 2011, paragraph [15] at Defendant’s Court Book (“DCB”) 88; extracts of clinical records of Rosebud Medical Clinic, 15 October 2010: “some parathesia in arms” at DCB 75.

9Of the medical reports which consider the question of causation, I found most assistance from Associate Professor Evange Romas, who was a consultant rheumatologist and Associate Professor of Medicine. He was retained to perform an impairment assessment by the defendant. As he explains:

“[Mr Rose] certainly has abnormal clinical signs of the left hand however these signs relate to crush injury of the left wrist which has produced injury/entrapment of the median nerve in the carpal tunnel and ulnar nerve in the fibro-osseous Gyon’s canal of the wrist. Although there is radiological first CMC osteoarthritis, the basal thumb joint was not injured. There was no bony injury in the left hand. There was possibly soft tissue injury of the left hand. Clearly, the left wrist took the brunt of the injury. I believe it is impractical and unwise to become pedantic. The emergency discharge documentation (12 March 2018) lists ‘soft-tissue injury’ and there was ‘very minimal swelling noted over the third and the fourth and fifth metacarpal bones’ and also ‘mild tenderness on palpation of the third fourth and fifth metacarpals’. The metacarpals are in ‘the hand’. There is no alternative but to accept that [Mr Rose] did sustain a ‘left-hand’ injury. However, the symptoms in the hand now reflect the injury to the median and ulnar sensory nerves in the wrist joint. In my opinion, you therefore do have a liability for ‘Soft tissue injury of the left hand excluding discrete injury of the fingers or left thumb’.”[4]

[4]Report of Associate Professor Romas, dated 31 March 2022 at DCB 26

10Treating plastic and reconstructive surgeon, Dr Neela Janakiramanan, also appears to support a causal link between the incident and Mr Rose’s current symptoms.  She describes his underlying osteoarthritis as “clearly flared up by the initial crushing injury”[5] and explains:

“By definition, osteoarthritis is a degenerative condition. It is likely that [Mr Rose] had arthritis before the injury, but the presence of joint degeneration does not correlate with symptoms – many people have asymptomatic osteoarthritis. The pain in his arthritic joints are temporally related to the workplace injury, and despite years of treatment, the pain has not subsided. At present, the symptoms are stable, but the pain may worsen as time goes by.”[6]

[5]Report of Dr Janakiramanan, dated 20 April 2021 at PCB 62

[6](Ibid) at PCB 63

11Dr Damon Thomas, a medico-legal plastic and reconstructive surgeon retained by the plaintiff, also supports the view that there is a link between the incident and Mr Rose’s current symptoms. In his third report, he explains:

“Overall, in my opinion the cause of the left hand symptoms is by far the majority due to the acute injury in question 12 March 2018 which involved a crush injury to his left hand and wrist from a forklift. Radiological findings at the time of the injury with an X-ray documenting some degenerative change in the distal radial ulnar joint and lunate capitate joint, no acute fracture was noted. Given the radiology report there would appear to have been in part some underlying pre-existing degenerative arthritis. However, he was not symptomatic at all due to this. Therefore, overall, by far the majority of his symptoms currently and into the future with regards to left wrist and hand pain, median and ulnar nerve neuropathy are due to the single episode in question. There may be a very minor contribution from underlying pre-existing degenerative arthritis.”[7]

[7]Supplementary Report of Dr Damon Thomas, dated 4 August 2023 at PCB 75

12Each of these experts provide a balanced opinion which acknowledges the complexity of distinguishing between the role of pre-existing degenerative changes.

13Against this, there is the comment made by treating sports physician Dr Omer Gozubuyuk, who states, in a report to Mr Rose’s GP dated 5 September 2022, that:

“… My thoughts are that he is experiencing common flexor origin tendinopathy with or without cubital tunnel syndrome at the elbow and maybe at carpal tunnels. I believe these are overuse injuries and has no correlation with his injury at work therefore should not fall under W/C.”[8]

[8]Report of Dr Gozubuyuk, dated 5 September 2023 at DCB 23

14On their face, these are preliminary “thoughts”, from a sports physician who saw Mr Rose on only one or two occasions. I prefer the opinions of Dr Janakiramanan, Dr Thomas and Associate Professor Romas.

15Treating pain specialist, Dr Robert Gassin, records, in a report to Mr Rose’s treating GP, that Mr Rose “unfortunately has a predisposition to develop degenerative changes in his peripheral joints”.[9]  This is a general comment only.  In the same report, Dr Gassin refers to Mr Rose’s “work-related injuries”.  I do not find Dr Gassin’s report of assistance in relation to the question of causation.

[9]Report of Dr Gassin, dated 4 May 2022 at PCB 66

16Finally, there is the opinion of medico-legal hand, plastic and reconstruction surgeon, Mr Thomas Robbins. He stands alone in stating that there was “no evidence of any residual problem from the accident described”.[10]  He provides little by way of explanation for this view.  In my view, the opinions of Dr Janakiramanan, Dr Thomas and Associate Professor Romas approach the complexities of causation more realistically and provide a better explanation for the temporal nexus between incident and symptoms.

[10]Report of Mr Robbins, dated 28 November 2022 at DCB 14

17There is a distinct temporal nexus between the incident and the onset of symptoms. There is no evidence that those symptoms have abated, as one would expect if this were no more than a temporary exacerbation of pre-existing osteoarthritis or a soft-tissue injury which resolved. The opinions of Dr Janakiramanan, Dr Thomas and Associate Professor Romas support the existence of a causal link between the incident and Mr Rose’s current symptoms.  I accept that Mr Rose’s current hand and wrist impairment is attributable to the incident.

What are the consequences of Mr Rose’s left hand and wrist condition?

18Mr Rose is left-handed, so this injury is to his dominant arm.

Affidavit evidence

19In his first affidavit, affirmed 21 September 2022, Mr Rose said he continued to have constant pain in his left hand and wrist as well as “nerve” pain down his arm and hand. He said the pain worsened when he was relaxing and that sometimes the nerve pain caused him to drop what he was holding. He said he still had some numbness and tingling in his thumb and ring fingers, and a restricted range of movement in his thumb and wrist, as well as reduced grip strength.

20In terms of treatment, he said that:

(a)   he saw his GP as needed, on average about every two months;

(b)   he sees his hand therapist monthly;

(c)   he took anti-inflammatories as well as six Panadol daily;

(d)   he took two Tramal every couple of weeks;

(e)   he did daily exercises which were taught to him by his therapist;

(f)    he wore a wrist splint throughout the day, particularly on his days off;

(g)   he wore a soft splint on his hand at night; and

(h)   he was in the process of obtaining funding for a wax bath.

21He said that his wrist injury impacted his ability to drive. He said he mostly used his right hand, and suffered a lot of pain when grabbing and pulling deliveries or pushing delivery loads.  He spoke of a loss of dexterity, which made twisting actions (such as twisting a jar open or turning a steering wheel) painful.  He said that, at the end of a work day, he would have a sore hand from writing and his signature had changed.  He struggled with shopping and tried to avoid lifting large amounts with his left hand.

22Mr Rose said he had not done any gardening for about six to eight months because of his difficulty with lifting heavier items with his left hand. He said that the vibrations from the lawnmower would make his nerves play up and his hands to become quite sore.  He said he struggled to do weeding. He said that he used to be very handy and had previously renovated the house but would be unable to do so now. He also said that he used to cook, vacuum and clean, but tried to do as little as possible now. 

23Mr Rose spoke about how his wife and he used to travel a lot and he used to love doing “active activities”, but although he planned to go to Thailand in October 2022, he would “probably spend most of it relaxing rather than doing anything too active”.[11]  He claimed to have always been a “physical guy [and] always played sports which I don’t tend to do now”.[12]  He said he used to play competitive pool once a week and also golf with friends once a month, but said “I don’t think I could play now”.[13]  He said he used to play cricket every year and, when “[he] was younger”, used to play football as part of the local club.[14]

[11]Plaintiff’s first affidavit, affirmed 21 September 2022, paragraph [40] at PCB 42

[12](Ibid) at paragraph [41]

[13]Ibid

[14]Ibid

24He said he used to enjoy watching local and AFL football games, but only went to a quarter of the games he used to attend. He said he worried about going near crowds because of the jostling and tried “to lead with [his] right side”[15] when people tried to shake his hand.

[15](Ibid) at paragraph [42]

25He was working full time but found this mentally draining and was a lot more tired. Mr Rose said he was so tired from working that he did not have energy to do much socially anymore. He said his fine motor skills were affected and it was hard to tie his laces, and it was difficult putting on and off his shoes and clothes. He said he had difficulty sleeping most nights.

26In his further affidavit, sworn 4 August 2023, Mr Rose said that the pain was now 50 per cent worse than when he swore his first affidavit. He spoke of the impact of his injury on his ability to play cricket, pool, renovating his house and sleeping.  He particularly emphasised the impact on his golf and said he had now sold all his clubs. He said, “I absolutely loved golf. It’s a great sport and walking the course was always enjoyable. It was a sport I expected to play for many years”.[16]  He said that he could still manage to play pool, although the firm shots could jar his hand.

[16]Plaintiff’s further affidavit, sworn 4 August 2023, paragraph [9] at PCB 46

27In terms of treatment, he continued to do hand therapy each month. He took an anti-inflammatory each day and Panadol twice a day, mainly when he was working.  He used a wax bath three to four times a week.

28Mr Rose’s wife also provided a corroborative affidavit.

Consideration of evidence

29In assessing the consequences of the injury to Mr Rose’s left wrist and hand, the Court is bound to “look at how they affected [Mr Rose] as he was and would likely have been absent the injuries he sustained [in the incident]”.[17]

[17]        Bezzina v Phi [2012] VSCA 161 at paragraph [23]

30I have formed the view that the affidavits tendered by Mr Rose in this proceeding are unreliable and must be treated with great caution. As I explain further below, it is apparent Mr Rose has some very significant physical impairments outside his left upper limb that restrict his physical activities. The affidavit evidence made light of these physical impairments,[18] and overplayed the impact of his left hand and wrist impairment.

[18]        Plaintiff’s first affidavit (supra) at PCB 36

31Thus, in his first affidavit, affirmed 21 September 2022, Mr Rose states:

“I’ve had two hip replacements in around 2008 and 2011. I had about 5 weeks off after each surgery. I haven’t had significant ongoing problems as a result.

In around 2009, I had a partial left knee replacement. I had about 6 to 8 weeks off work. I haven’t had significant problems since.

I have some right knee pain every now and then, which I believe is arthritic. It is manageable and doesn’t require significant treatment.[19]

[19](Ibid), paragraphs [9]-[11] at PCB 36

32Against this, under cross-examination, Mr Rose admitted that he had ongoing problems with his shoulders, hips, knees and left ankle.[20]

[20]        T10, L30-T11, L3; T11, L7-11, see also T12, L31-T13, L1.

33Under cross-examination he agreed he could not walk long distances because he “had two major hip operations and a major knee operation”.[21]  He admitted taking anti-inflammatory medications such as Voltaren, Tramal and Mobic on a reasonably regular basis prior to the incident.  He said he would “love to play cricket” but “can’t run between wickets”.[22]  More generally, he admitted that his other physical conditions impacted on his ability to perform the activities relied upon in his affidavit.  He also spoke of the “mental” difficulties he had attempting activities.[23]  In his own words “I’m not the man I used to be, yes”.[24]

[21]T17, L8-9

[22]        T19, L7-8

[23]T31, L14-19; see also T12, L28-29.

[24]        T11, L 12-13

34He maintained that the reason that he could not play golf was because he could not control the club with his left hand. However, he accepted he was not able to walk the golf course prior to the incident and required the assistance of a golf cart. This stands in contrast to the evidence in his second affidavit, sworn 4 August 2023 that:

“I absolutely loved golf. It’s a great sport and walking the course was always enjoyable. It was a sport I expected to play for many years. … .”[25] [italics added]

[25]Plaintiff’s second affidavit (supra), paragraph [9] at PCB 46

35He admitted that his role as a delivery driver, which he worked in for at least four years after the incident, involved lifting 15-kilogram boxes. He described his current role as a process worker in a factory as busy and requiring repetitious packing of boxes. Again, this evidence stands in contrast to his affidavit evidence that he struggles with shopping bags.

36He did not provide any adequate explanation why he relied on a reluctance to shake hands in his first affidavit, when customarily people shake hands with their right hand.

37The clinical records of his long-term GP, Dr Guy Williams, reveal:

(a)   repeated prescriptions for Mobic in the years prior to the incident;

(b)   on 8 October 2018, he complained of left ankle swelling, for which an x-ray was requested;

(c)   on 18 March 2022, he had a consultation in relation to a right shoulder rotator cuff injury, and was referred for an x-ray, and a prescription for Tramal was provided;

(d)   on 23 May 2022, he obtained prescriptions for Tramal and Mobic in relation to right shoulder capsulitis;

(e)   on 11 August 2022, he had a consultation in relation to his “Right Total hip replacement”;

(f)    on 14 December 2022, he had a consultation in relation to left hip pain and his prescription for Tramal was increased;

(g)   on 15 December 2022, he had a consultation in relation to his “Right Total hip replacement”;

(h)   on 14 December 2022, he was referred for an x-ray of his left hip and was provided a prescription for Tramal; and

(i)    on 27 March 2023, he had a consultation in relation to his “Left Total knee replacement”.[26]

[26]Extracts of the clinical records of Rosebud Medical Clinic at DCB 55-81

38Dr Williams was not called to give evidence in this proceeding, despite being Mr Rose’s long-term GP.  Mr Rose gave evidence that:

“Well, when you see a doctor, you tell him about your pains that you’re having, and he’s my GP and we talk about everything.”[27]

[27]T16, L29-31

39Dr Williams would have been in a good position to give relevant evidence in relation to the symptoms and consequences of Mr Rose’s hand injury, as well as his other physical conditions. No satisfactory explanation was provided for the failure to provide a report from Dr Williams. I infer that Dr Williams’ evidence would not have assisted Mr Rose.

40Mr Rose’s affidavit evidence was contradicted in significant respects by his oral evidence, by the clinical notes of Dr Williams and by Mr Rose’s earlier affidavit of 27 October 2011, which was sworn by him in relation to an earlier serious injury application. In all the circumstances, I do not accept it as reliable. The affidavit of Mr Rose’s wife, Kerri-Anne Rose, must also be read very carefully  She does not refer anywhere to any of Mr Rose’s other physical conditions. She gives evidence that Mr Rose no longer performs sporting and gardening activities and has interrupted sleep due to pain. On a careful reading, she does not state expressly that the “pain” she is referring to is in Mr Rose’s left hand and wrist. To the extent that this is implicit, I do not accept it.

41In relation to Mr Rose’s oral evidence, at times, his evidence was self-serving. His evidence was also a little performative – for example, at the commencement of his evidence, he carefully cradled his left hand in view of the camera, but this was quickly forgotten once he became absorbed in answering questions. There was an element of exaggeration and pain focus to his delivery. However, he also made frank admissions of the impact of his other physical conditions, and his mental health, on his capacities. His reported symptoms are also accepted by Dr Thomas, Dr Janakiramanan and Associate Professor Romas, although not by Mr Robbins. In considering his oral evidence, I have taken into account the probability that there are some self-serving statements, exaggeration and pain focus in his evidence, but I do not wholly reject it.

42Having considered the evidence as a whole, I find that Mr Rose experiences ongoing and variable symptoms of pain, discomfort, tingling and numbing in his left wrist and hand. He also has some restriction in his wrist movement and loss of grip strength.[28]  These symptoms prevent him playing golf and reduce his capacity to perform activities such as home renovation, particularly involving power tools He is still able to do painting)[29]  His symptoms may also impact on his gardening activities, although “muscle work” of the kind described by his wife in her affidavit, is more likely to be prevented by his other significant physical conditions.  At times, his hand and left wrist symptoms may be sufficient to wake him from his sleep, although, again, the tossing and turning described by his wife is more likely to be attributable to other physical conditions.

[28]        Report of Associate Professor Romas, dated 5 September 2022 at DCB 25

[29]Plaintiff’s further affidavit (supra), paragraph [14] at PCB 47

43I accept that Mr Rose’s symptoms were sufficient to justify hand surgery and that, even after surgery, these symptoms are sufficient to justify monthly hand therapy and are improved by daily wax baths. I accept that Mr Rose feels more comfortable and less anxious about triggering pain when he wears a hand splint, and that it is reasonable for him to do so.

44I accept, on the basis of the evidence of Dr Thomas, that these symptoms are likely to be permanent and, if anything, worsen with time.

45However:

(a)   Mr Rose’s capacity to play golf was already restricted by work commitments and other physical incapacities. Prior to the incident, he played about once per month and was required to use a golf cart. Accordingly, it was not a significant source of exercise for him, although it did have social benefits. However, Mr Rose now plays pool on a weekly basis. This provides him an alternative social and recreational activity of pool, which he is able to play more regularly, and apparently with greater success, than golf;

(b)   I do not accept that his hand impairment has led to any significant increase in medication. I find that he takes anti-inflammatories, such as Mobic and Tramal, for other physical conditions;

(c)   I do not accept it is his left hand and wrist impairment that prevents him playing football or cricket, or other sports. I find that his other pre-existing physical impairments were, and continue to be, sufficient to prevent him engaging in these activities;

(d)   given his ability to work for four years as a delivery driver, I do not accept that his left wrist and hand impairment prevent him driving, although, at times, he may experience pain or discomfort while driving; and

(e)   he has some difficulty with using his left hand for activities such as writing and unscrewing caps or lids. But he is still able to write and perform tasks of self-care; and

(f)    notwithstanding his left hand and wrist symptoms, he was physically able to maintain employment as a courier, including driving and lifting boxes as heavy as 15 kilograms, for at least four years. He is now physically capable of working in a factory thirty-two to forty hours per week in a busy role packing boxes. Given this, I do not accept the reliability of his affidavit evidence of dysfunction. For example, I am not satisfied that he struggles to carry shopping bags.

Do the consequences of Mr Rose’s left hand and wrist condition amount to a permanent serious impairment of a body function?

46The onus is upon Mr Rose to establish that he suffers an impairment of his upper left limb which can fairly be described as “very considerable” and “more than significant or marked”, when judged by comparison with other cases in the range of possible impairments of a body function.

47The ongoing pain and dysfunction in Mr Rose’s dominant hand and wrist may be viewed as significant. The loss of social and recreational activities, such as golf and gardening may also be viewed as significant. However, it is not sufficient that the impairment of Mr Rose’s upper left limb be “significant”, it must be “very considerable”.  In assessing this, it is trite that the Court must take into account, not only what Mr Rose has lost, but also what he retains;[30] it must take into account not only what he says about the pain, but also what he does about the pain; what the medical experts say about the pain; and the objective evidence of the disabling effect of the pain.[31]  In the present case, Mr Rose has retained very significant capacities, including an alternative social and recreational activity in the form of pool playing.  He has demonstrated his capacity to drive and engage in manual activities during his occupation. I have accepted that he is having ongoing hand therapy and using a wax bath and hand splint, but I have not accepted that he is taking any prescription medication for his symptoms. The medical experts (with the exception of Mr Robbins) are largely supportive, but it is apparent from their reports that they are reliant on an acceptance of Mr Rose’s reported symptoms.

[30]        Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 at paragraph [27] (per Ashley JA)

[31]        Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 at [11] (per Maxwell P)

48Having regard to all the matters outlined in these reasons, I am not satisfied that Mr Rose has suffered a serious injury. His application is dismissed.

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