Scanlan v Victorian WorkCover Authority
[2019] VCC 1276
•19 August 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-19-00761
| MELISSA KATE SCANLAN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 August 2019 | |
DATE OF JUDGMENT: | 19 August 2019 | |
CASE MAY BE CITED AS: | Scanlan v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1276 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to cervical spine – referred pain and altered sensation into right arm and hand – whether plaintiff developed carpel tunnel syndrome and whether that was related to neck injury – pain and suffering consequences admitted – whether injury caused reduced work capacity, or whether due to carpal tunnel syndrome – whether 40 per cent loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and CompensationAct 2013, s335(2)(d)
Judgment:Leave granted in respect to pain and suffering and loss of earning capacity.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Ms M S Cameron | Zaparas Lawyers |
| For the Defendant | Mr B R McKenzie | Minter Ellison |
HIS HONOUR:
Preliminary
1 On 16 June 2015, the plaintiff, Ms Scanlan, slipped and fell in the course of her work as a medical receptionist (“the accident”). She suffered an injury to her neck (“the injury”).
2 In the past, she has suffered symptoms to her back and neck from an earlier motor vehicle accident, which gave her problems from time to time, although this did not loom as a significant issue in this application.
3 The injury has led to two cervical fusion operations, the first on 23 November 2015 and the second on 20 July 2017. Although there was initial relief after each procedure, including reduced neck pain and referred symptoms to the right arm and hand, Ms Scanlan claims she continues to suffer ongoing pain and restriction of the neck, right arm and hand. She has had problems in the left arm and hand from time to time, but not to the same level as the right side.
4 After surgery, she returned to part-time work, on reduced hours, but she claims there was an increase in symptoms in 2018, related to the hours she was then working, and upon the advice of her general practitioner, reduced her work hours. She now works six hours per week. She claims a range of consequences as a result of the injury, particularly a significant loss of earning capacity.
The application
5 This is a serious injury application. The body function said to be lost or impaired is the cervical spine. At the outset of the application, Mr McKenzie, for the defendant, quite sensibly, admitted that the pain and suffering consequences met the test as set forth in s325(2)(c) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”). This application is confined to consideration as to whether the plaintiff has suffered a loss of earning capacity in accordance with the statutory test.
6 Again, sensibly, the parties have been able to confine the issues in the application as follows:
(a)Ms Scanlan maintains that as a result of the injury and the consequent pain and restriction in the neck, right arm and right hand, she has been forced to reduce her working pre-injury hours from twenty-four per week to the point, now, where she works about six or so hours per week;
(b)the defendant contends that in about May 2018, the plaintiff had increased her working hours to about eighteen hours per week.[1] This, says the defendant, should be accepted as her post-injury work capacity for the purposes of the formula contained in s325(2)(f)(ii) of the Act. Around that time, she suffered an increase of problems in her right wrist and hand which was diagnosed as carpal tunnel syndrome. It says this is unrelated to the accident. Any reduction in her work hours after this time was not related to the injury, but to the onset of the syndrome. As a result, the injury-related loss of earning capacity did not meet the 40 per cent test as the legislation prescribes.
[1]This would not appear quite accurate given the summary of the plaintiff’s work hours after the second surgery – exhibit C - which would suggest her hours fluctuated after the second surgery and only reached eighteen hours on one or two occasions around the middle of 2018. In any event, given my findings, I will accept the defendant’s submission that eighteen hours per week was the plaintiff’s post-surgery earning capacity at that time.
7 Thus the issues are narrow. It is therefore not necessary for me to analyse all of the evidence – both medical and lay – but, rather, those aspects of the evidence which are related to this loss of earning capacity issue.
8 Ms Scanlan gave brief evidence and was cross-examined. She presented as an honest and responsive witness. Her credibility is enhanced by the fact that she has attempted to return to work, gradually increasing her hours, despite major cervical surgery. There were some differences between evidence in her affidavit and from the witness box, but I did not view that as significant. Generally, I accept Ms Scanlan’s complaints of the circumstances of the injury, the treatment and rehabilitation she has been through, and the effect upon her social, recreational, domestic and employment activities and interests as she claims.
Loss of earning capacity
9 For the purpose of my analysis, I accept Ms Scanlan was working about twenty-four hours per week on average as a medical receptionist prior to the accident. She deposed that, given her three children were growing up, she intended to increase her hours of employment to twenty-eight or so hours per week. Given the conclusions I have come to, I do not have to determine whether she would have increased her hours, and accept twenty-four hours per week as the Ms Scanlan’s pre-injury working capacity.
10 I further accept that in about May 2018, Ms Scanlan was working about eighteen hours a week.
11 A short time after the accident, Ms Scanlan said that her neck pain commenced and gradually became worse. She also had pain, particularly down her right side, spreading into her right arm and hand, with numbness and tingling in the right fingers. Various injections were performed by doctors, which gave only short-term relief. Mr Wilde, orthopaedic surgeon, performed a cervical fusion on 23 November 2015. This resulted in relief in relation to the pins and needles and tingling into her right arm. Her neck pain also improved; however, within several months, she started to get pins and needles down the left arm, and increased neck pain. She returned to see Mr Wilde, who prescribed various medications.
12 Ms Scanlan said the pins-and-needles sensation in her left arm and hand gradually settled, but she again started to develop right arm pain, the same as before the surgery. In the interim, she had returned to some part-time work, but by the end of 2016, ceased work completely because of the increased neck symptoms. In December 2016, she was referred to Dr Gerraty, a neurologist.
13 Ms Scanlan saw a Mr Cunningham, orthopaedic surgeon, who referred her to Mr Chan, another orthopaedic surgeon. He recommended a further fusion operation as the previous fusion graft had not taken. This was performed on 20 July 2017. Again, Ms Scanlan had a reduction in neck pain, and the pins-and-needles sensation in her right arm and hand was reduced.
14 In November 2017, she was involved in a motor vehicle accident, which increased her symptoms, but these eventually settled, and the pain symptoms in her neck and arm returned to the previous level.
15 After the second operation, Ms Scanlan returned to work in October 2017, gradually building her hours up to working six hours per day, three days per week. The medication she was taking at the time was Panadeine Forte, about twenty tablets per month.
16 Because of the ongoing pain and tingling and numbness in her hands, Mr Chan suggested Ms Scanlan undergo nerve-conduction studies, which suggested carpal tunnel syndrome. These were carried out by Dr Lynette Kiers, neurologist. She was then referred to Mr Anthony Berger, hand surgeon, who provided cortisone injections into her right hand. This did not result in any real relief.
17 Ms Scanlan said, in May 2018, she had to reduce her working hours, eventually to three hours per day, three days a week, because of the pain in her hands. She did this on the advice of her general practitioner. She suffered not only pins and needles and numbness, but a throbbing sensation, and had reduced grip in the hand. She said, in the course of cross-examination,[2] that she had had that pain and altered sensation in the hands, predominantly the right hand, since the accident. She said the pain and altered sensation did not just come on when she was told that she may have carpal tunnel syndrome.
[2]Transcript 10, Line 20
18 In addition, over a considerable period, Ms Scanlan has suffered migraines, which she said have worsened since the accident.
19 Ms Scanlan returned to see Dr Gerraty in March 2019, and she said he told her that the proposed carpal tunnel syndrome surgery was unlikely to assist her symptoms.
20 According to her most recent affidavit,[3] Ms Scanlan currently takes Panadeine Forte or Mersyndol for her neck and right arm pain, about three to four nights a week. She takes Panadol and Nurofen during the day. She takes Effexor for anxiety. Over the period from 2017 to the present time, she has had a range of radiological investigations, including x-rays, CT and MRI scans of her neck, and ultrasound investigations of her left and right arms.
[3]Plaintiff’s Court Book (“PCB”) 20
21 In relation to her employment, Ms Scanlan currently works two three-hour shifts per week. Her husband has had periods of unemployment, and she is keen to remain working as long as possible.
22 Ms Scanlan says that after the second surgical procedure, the pins and needles in her right arm and the pain in her neck returned. She says she has consistently had these symptoms from that time to the present. According to the clinical notes of her general practitioner, Dr Vanessa Feakes,[4] Ms Scanlan complained of tingling and pins and needles in both hands, especially the right side, over the period from April to May 2018.
[4]Exhibit D
23 Ms Scanlan currently suffers neck pain – worse on the right side – pins and needles down her right arm from the shoulder into the hand and, more recently, has experienced clawing of the right hand, particularly the thumb and small finger. She says the symptoms are gradually getting worse.
24 Dr Feakes noted that nerve conduction studies of the right arm were performed by Dr Kiers in October 2017 and showed chronic partial denervation in the right C7 innervated muscles, also right median neuropathy at the wrist consistent with carpal tunnel syndrome. In her report of May 2019, Dr Feakes said that she thought the carpal tunnel syndrome was secondary to oedema and inflammation in Ms Scanlan’s wrists after the 2017 surgery. In her report of August 2019,[5] Dr Feakes thought Ms Scanlan could only work six hours per week.
[5]PCB 34
25 The reports of Mr Greg Malham, neurosurgeon, who treated Ms Scanlan on a number of occasions in 2015, are of little assistance given he has not seen her for a considerable period. Likewise, the reports of the treating surgeon, Mr Peter Wilde.
26 Dr Richard Gerraty, neurologist, treated Ms Scanlan, initially in 2016 at the referral of Mr John Cunningham, orthopaedic surgeon. He saw her again in March 2019, and has treated her through to the present time.
27 When Dr Gerraty examined Ms Scanlan in December 2016, he said that one of her most persistent complaints at the time was the “ongoing clumsiness of the right hand”. When he saw her again in March of this year, he noted a new development, that is, some clawing of the right hand, particularly the little finger. There was further numbness and weakness of the hand. He thought that the weakness was more consistent with ulnar neuropathy than median neuropathy, and referred her for nerve conduction studies. These, he said, showed evidence of mild median neuropathy consistent with carpal tunnel syndrome, which he said was stable compared to tests performed in October 2017. He said he did not believe Ms Scanlan would benefit from carpal tunnel surgery. He said he thought it was “highly likely” that these new problems with her right hand were in some way related to spinal cord compression and therefore to her original injury.
28 Dr Gerraty noted a third nerve conduction study on 6 June 2019 which again confirmed the earlier findings of mild carpal tunnel syndrome, and no evidence of ulnar neuropathy. He said:
“… The development of intrinsic hand weakness is a conundrum often seen in spinal cord disease where spinal cord compression or damage can selectively affect the small muscles of the hand despite no problem in the cord at the segmental level expected, T1. In the days before accurate MRI this was thought just to be misdiagnosis and insensitive radiology but we now have to accept that mid-cervical cord pathology can cause T1 myotome wasting.
With respect to her fitness for work, I would say that she is not fit for her pre-injury employment and nor is she fit for alternative duties given the problem she has with her right hand.”[6]
[6]PCB 60
29 In correspondence with the general practitioner in March 2019, Dr Gerraty said:
“In the time since this [carpal tunnel syndrome] was diagnosed and treatment planned, however, she has progressive numbness and weakness in the right hand with some ulnar clawing of the 5th digit and weakness of the intrinsic muscles of the hand more in the ulnar innovated muscles than the median innovated muscles.”[7]
[7]PCB 152
30 Orthopaedic surgeon, Mr John Cunningham’s involvement with Ms Scanlan was in 2017 and his reports are of limited assistance.
31 Mr Patrick Chan, neurosurgeon, performed a second fusion surgery in July 2017. His reports are concerned with Ms Scanlan’s fusion surgery at the C6‑C7 level. He obtained a history that she had ongoing bilateral arm paraesthesia, worse on the right side. Initially he noted that after the surgery, she had no neck pain, and the referred pain down her arms had resolved. By January 2017, although the fusion at C5-C7 remained stable, Ms Scanlan described left arm pain, left outer arm discomfort and neck ache.
32 Mr Chan saw Ms Scanlan again in May and December 2018, where he records her concerns as:
“… right shoulder pain with bilateral hand paraesthesia with a sensation of weakness, especially with prolonged neck posture such as neck flexion when typing during the day. … .”[8]
[8]PCB 82
33 A CT scan showed the fusion graft was solid. He said that Ms Scanlan had bilateral hand paraesthesia which had been confirmed on investigation as bilateral carpal tunnel syndrome and that surgery was planned with a hand surgeon, Mr Anthony Berger.
34 In July 2018, Ms Scanlan was referred to Mr Anthony Berger in relation to her hand sensory symptoms. He said:
“… Ms Scanlan presents with sensory changes in her right hand that are predominantly due to carpal tunnel compression although may be contributed to by a previous cervical spine injury. An MRI scan, not seen by me, has reported nerve root compression of C7 and a small disc prolapse at C5/6. These nerve roots provide sensation to the radial side of the hand in an area similar to the median nerve. Ms Scanlan’s sensory symptoms in her right and to a lesser extent the left hand had been present since her cervical spine injury and have continued. I believe Ms Scanlan has carpal tunnel compression and there may be an element of double crush which is compression / irritation of proximal nerves in the presence of a distal nerve compression.
I believe the sensory symptoms may be contributed to, in some part, by the cervical spine injury but perhaps in a greater part by the carpal tunnel compression. Whilst the carpal tunnel compression is not directly work related, I believe there may be an element of double crush with a proximal contribution to the nerve symptoms occurring as a result of the work related injury. I believe the component of Ms Scanlan’s symptoms related to the carpal tunnel compression is probably the greater of the two.
…
I believe Ms Scanlan would benefit from a right carpal tunnel release. … .”[9]
[9]PCB 85
35 Ms Scanlan was examined by Mr Greg Etherington, spinal surgeon, in May 2017. To that practitioner, she described paraesthesia down both arms, worse on the right. He thought that the distribution of sensation was consistent with radiculopathy, possibly from C7. Again, his report is of limited assistance given he has not examined Ms Scanlan since the second surgery.
36 Ms Scanlan was examined by Mr Mohammed Awad, consultant neurosurgeon, in April 2018 and again in May 2019. In the first report, Ms Scanlan complained of ongoing right arm pain with pins and needles, and with occasional pins and needles into the left arm. The right arm pain and tingling was again reported in the second examination. His report was concerned largely with the neck injury and the consequences arising from that. He diagnosed Ms Scanlan as suffering a traumatic aggravation of cervical spondylosis which had required surgery, together with ongoing persistent nerve root compression causing right arm and hand weakness.[10] He suggested nerve conduction studies to determine where the ongoing compression might be.
[10]PCB 97
37 Ms Scanlan was examined on behalf of the defendant by Mr Thomas Robbins, hand surgeon, in March 2019. He reviewed various investigations, including nerve conduction studies of October 2017, which, he said, confirmed bilateral carpal tunnel syndrome, with evidence of partial denervation of C7, and further studies of June 2018, which he said confirmed bilateral carpal tunnel syndrome. He concluded that she was suffering bilateral carpal tunnel syndrome, the right hand worse than the left, for which she required a surgical release. He thought this was unrelated to the cervical injury.
38 Finally, Ms Scanlan was examined by Professor Jacques Joubert, neurologist, in April 2019. On examination, Ms Scanlan complained of weakness in the right arm, with tingling along the ulnar nerve distribution. He thought there was dysfunction in the ulnar nerve distribution on the right side and global weakness of the right arm, and particularly the right hand. He noted a weakness of adduction of the little finger. He suggested the ulnar nerve symptoms be investigated. His conclusion was somewhat equivocal. He said:
“The cause of the worker’s recent reported increase in symptoms could have a cervical origin or be due to entrapment of the ulnar nerve at the elbow
…
I believe that the worker’s incapacity could result from the claimed injury but this is not yet finally diagnosed. The increased migraines do result from the claimed injury but her current symptoms which are most pressing to her are the right upper limp symptoms and they may be a result of the cervical problems or they may not be, but this is still to be worked out.”[11]
[11]PCB 106 and DCB 50
Conclusion
39 A resolution of this application depends upon whether I accept that sometime in 2018, Ms Scanlan contracted, possibly over a period of time, carpal tunnel syndrome, which led to increased symptoms, and particularly in her right hand, resulting in a reduced work capacity to her current level of about six hours per week. That issue is to be determined by an examination of both her evidence, and that of the various medical practitioners.
40 As stated, I accept Ms Scanlan as a witness of truth. It is clear from the examination findings of, particularly, the treating practitioners, that she has suffered pain, not only in her neck, but down her right arm, with altered sensation, affecting her capacity to use her right hand and arm, over a long period of time, going back to the accident. She has had relief to the right arm and hand symptoms, after each bout of surgery, but those symptoms have returned. I accept her evidence that she had these symptoms, varying from time to time from the fall, and around the time she was advised of the prospect of carpal tunnel syndrome, while there was an aggravation of her symptoms, these were not new or different from those from which she had been suffering for a considerable period. I accept her evidence that the increased work hours over the period 2018, had caused the increase in symptoms.
41 In considering the medical evidence, that which is most persuasive comes from those practitioners who have seen her for longer periods, particularly recently, have had available all relevant radiological investigations, and have had the opportunity to examine her right hand symptoms which, more recently, have worsened. In particular, it is significant that she now has clawing of one or more of the fingers of the right hand.
42 In relation to the reports of the general practitioner, Dr Feakes, while her opinion must be respected, I do not believe she has the requisite expertise to determine the source of the right arm and hand problems.
43 Mr Berger is a respected hand surgeon. His opinion is equivocal as to whether the right arm and hand problems are related to carpal tunnel or her cervical spine injury, or a “double crush”, presumably a combination of both. On balance, he thought the carpal tunnel compression was probably the greater of the two causes of her hand problems.
44 Professor Joubert was similarly equivocal and said the situation required further investigation, although he considered the symptoms appeared to follow the ulnar nerve distribution.
45 On behalf of the defendant, Mr Robbins, another experienced hand surgeon, who examined Ms Scanlan in 2018 and 2019, and having considered the ultrasounds of 2017 and 2018, thought the problems in Ms Scanlan’s right hand were related to carpal tunnel syndrome which was unrelated to the accident.
46 Mr Awad’s opinion is of relevance, as he has seen Ms Scanlan on two occasions of recent and noted clawing.[12] He considered the right hand and arm weakness related to the cervical injury.
[12]PCB 96
47 Finally, Dr Gerraty’s considered opinion, set out in his report of 2 August 2019, was that while Ms Scanlan might be suffering from mild carpal tunnel problems, all of her complaints, both neck, arm and hand, were related to her cervical pathology, and he recommended against carpal tunnel surgery.
48 It is never a simple matter to determine which of the various expert medical opinions to accept without the benefit of cross-examination; however, of all of the practitioners, the reports which I found most informative, accurate and reasoned, were those of Dr Gerraty. He has the significant advantage of being a treating practitioner, having examined Ms Scanlan on one occasion in December 2016 and then on a number of occasions this year. Significantly, he had available to him, all of the relevant radiological investigations, in particular, the ultrasound examinations. He is a neurologist, and thus expert in neural pathways. After the assessment that Ms Scanlan was suffering carpal tunnel syndrome, he said he was concerned about a new development, which was clawing of the fingers. He considered that that was a weakness more consistent with ulnar neuropathy, rather than constriction of the median nerve. He noted that the findings on the ultrasound were of mild carpal tunnel syndrome only.
49 On balance, and combining my assessment of the medical evidence with the evidence of Ms Scanlan, I am of the view that by and large, the symptoms in Ms Scanlan’s right arm and hand are related to the cervical injury and possibly the surgery which followed. It is clear from the histories of the various treating practitioners that Ms Scanlan has had significant symptoms in the neck, and right arm and hand since about the time of the accident, albeit with some waxing and waning. It would appear likely there was an increase in symptoms in 2018, probably related to the hours of work she was undertaking at the time, and that, as a result, her work capacity has been reduced to about six hours per week. In large part, I am satisfied this reduction is related to her cervical injury.
50 There may be an element of altered sensation or dysfunction in the right hand which is related to the mild carpal tunnel compression detected on ultrasound scans, but I am satisfied, particularly given the opinion of Dr Gerraty, that her right hand and arm problems are, if not completely, then largely related to the cervical injury.
51 In these circumstances, the plaintiff’s claim in respect of economic loss succeeds.
52 I shall make consequent orders.
- - -
0
0