Sealey v Victorian WorkCover Authority

[2024] VCC 1207

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
 Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-23-06420

SALLY SEALEY	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HIS HONOUR JUDGE PILLAY
WHERE HELD:	Melbourne
DATE OF HEARING:	23 July 2024
DATE OF JUDGMENT:	14 August 2024
CASE MAY BE CITED AS:	Sealey v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION:	[2024] VCC 1207

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION

Catchwords:              Serious injury application – workplace injury – bilateral wrist injury – whether injuries can be aggregated - where left wrist injury caused or aggravate right wrist injury – whether loss of earning more threshold met

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013

Cases Cited:VWA v Brassington [2021] VSCA 236; Sepe v Club Italia Sporting Club Inc (Ruling) [2023] VSC 191; 324 IR 288; Georgopoulos v Silaforts Painting Pty Ltd (2012) 37 VR 232; Lexa v TAC [2019] VSCA 123

Judgment:                  Application granted

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Y Chen Ms S Fernando	Gordon Legal
For the Defendant	Mr S Scully	Wisewould Mahoney

HIS HONOUR:

1The question to be decided in this case is whether the injury to Ms Sealey’s left wrist results in impairment consequences which are more than significant or marked.

2That simple statement hides a series of questions which form the basis of the contest in Court.  In sequence, those questions are:

1.Did the accepted injury to the left wrist cause or aggravate the injury to the right wrist?

2.If it did, then are the consequences of the resultant impairment to both wrists causative of a loss of earnings of more than 40 per cent?

3.If question 1 was answered in the negative and if the accepted injury to the left wrist did not cause or aggravate the injury to the right wrist, could the separate left and right wrist injuries be aggregated as in impairment of one body function so that the consequences of both separate injuries could be assessed together, as in VWA v Brassington (“Brassington”)?[1]

[1][2021] VSCA 236

3For the reasons which follow, I have answered Questions 1 and 2 in the affirmative.  On this basis, Ms Sealey succeeds in obtaining determinations in respect of pain and suffering and loss of earnings.  Question 3 does not then arise.

Brief facts

4It is possible to go straight to the heart of the matter because so much of the case was agreed or not in contest.

5Ms Sealey was born in July 1977.  She is right hand dominant.  She left school in about 1995 and completed a Bachelor of Social Science degree.  From about 1999 onwards, she worked in human resources and recruitment, loan approvals and also as a NAPLAN marker.  Between 2000 and 2004, Ms Sealey worked with Crestwood Group, which was a lending centre, for about four years as a team leader.  She did a lot of processing of applications work online and via phone. In 2003, she sustained lower back injury and was off work.  She made a WorkCover claim about this time. From 2004 to 2014, she was off work, primarily engaged in home duties.

6Ms Sealey and her husband have three children, the youngest of whom remains at school.  In 2014, she began working at Confoil on placement through the Adecco Recruitment Agency.  She worked around 30 hours per week at Confoil.  It was manual factory work of a repetitive nature that involved the use of both hands.  In 2019, she became a permanent employee directly of Confoil, and remained working about 30 hours per week. 

7Briefly, she began to experience pain in the left wrist in about October 2020.  She saw her treating doctor, Dr Conneley, in November 2020 and had investigations in respect of the left wrist.  She was placed onto light duties work and began wearing a left wrist splint.  Her problems did not abate and she then came under the care of a treating specialist, Mr James Thomas.  He saw her in about March 2021 and ordered further investigations by way of MRI which demonstrated a scapholunate tear and ganglion cyst.  Ultrasound injection was trialled but was unsuccessful and a recommendation for excision of the ganglion was made.  This was rejected by the WorkCover insurer.  Ms Sealey made a WorkCover claim in respect of the left wrist injury which was accepted.

8Around this time, Ms Sealey began complaining of right wrist problems.  This was alleged by her to arise from over-compensating for the problems in the left wrist.  I will return to this point as it is central to the contest between the parties.

9The right wrist then came under the attention of Mr Thomas. After MRI investigations, he diagnosed soft tissue injury with a small ganglion.  An ultrasound guided injection of cortisone failed to lead to any resolution of the problem. 

10Ms Sealey continued seeing hand therapists, Ms Crellin and then Ms Zennaro, and has continued having hand therapy to this day.  She takes Panadol and Nurofen daily and, on occasion, Panadeine Forte.  She was off work from July to November 2021 and then returned to work on light duties.  She ceased work completely in early 2022 and has not worked since.  It is accepted that she remains in receipt of weekly payments of compensation at the rate appropriate for having no current work capacity.

Did the accepted injury to the left wrist cause or aggravate the injury to the right wrist?

11This question must be answered in Ms Sealey’s favour by reason of the following matters.  First, the facts demonstrate that Ms Sealey sustained injury to the left  side initially.  The first complaint of pain and limitation was in respect of the left side.  In her affidavit, Ms Sealey deposed:

“In about late 2020 I noticed soreness in both wrists, more so on my left.

…

My GP told me to go on lighter duties but even then my work still had some manual component and I just tried my best to press on.  My left wrist continued to hurt as I worked and because I began over-compensating with my right hand my right wrist pain also increased.”[2]

[2]Plaintiff’s Court Book (“PCB”) 8, paragraphs 9 and 10

12From this, it is clear that there was some initial pain on both sides.  However, the treating doctor notes make clear that the reason Ms Sealey initially went to a GP, Dr Connelly, was for her left wrist problems.  He recorded at that time “a few weeks worse pain dorsum left wrist – has been going on for a few months … [a]lso occasionally minor symptoms in right wrist with repetative [sic] activities.”[3]  It is relevant to note that, on examination, the treating doctor only examined the left wrist and ordered investigation by x‑ray and ultrasound of only the left wrist.  A left wrist splint was then suggested and light duties arranged on that basis.  All these matters highlight that the injury was to the left side and the right side had only occasional minor symptoms, but these were not of sufficient note for the general practitioner to examine the right wrist or investigate it or treat it.  This emphasises the fact he had suffered a significant left wrist injury. Similarly, when even the light duties work did not result in abatement of the left side injury and symptoms, Ms Sealey was referred to her specialist, Mr J Thomas, who recorded “she presents with a six month history of left dorsal wrist pain.”[4]  At this stage, she had been on light duties and in a left wrist splint for some four months.  Mr J Thomas referred her for an MRI on the left side, which showed a tear in the scapholunate ligament and ganglion cyst.[5]  This all strongly suggests that it was the left side that had sustained injury while the right wrist was quiescent.  That the left wrist was the relevant injury is confirmed by the claim form of 25 March 2021, which describes the injury as “RSI of left wrist”.[6]  That claim was accepted.[7]   This contemporaneous recording reinforces my finding that the left wrist injury was the dominant injury and the progenitor of the right wrist injury as I will set out below.

[3]PCB 226

[4]PCB 60

[5]PCB 55-56

[6]PCB 31

[7]PCB 44

13That right wrist injury really began to make its presence felt around this time in March 2021.  That timing, some five to six months after the left wrist injury presented, strongly suggests that there was some factor in addition to the usual work duties that promoted the right wrist injury.  Ms Sealey’s case is that that cause is the over-compensation or greater stresses and strains it was required to bear in consequence of the left wrist injury.  In contrast, the defendant submits that the right wrist injury simply arose naturally from the work or, at worst, was exacerbated to a minor extent by the over-compensation caused by the left wrist problem.  I reject that argument because the right wrist injury had only an “occasional symptom” in 2020, despite having to do the same work, if not more, as the dominant hand.  It was only after the left wrist was so severe that the right wrist required investigation, splinting and light duties work and the right wrist had to pick up the slack did the real problems emerge.  These facts strongly suggest that the incapacity of the left wrist led directly to a very significant worsening of the right wrist problems, such that from March 2021, Ms Sealey began complaining to doctors of the worsened state of the right wrist.  It is consistent with her claim form lodged on 19 July 2021, some four months after the left wrist claim form, which states “as a result of injury to my left hand, I was performing all tasks with my right hand”.[8]  This contemporaneous recording is of importance.  It bears this importance because it was accepted Ms Sealey was a witness of truth and reliable.[9]  While she is not a medical expert, it is clear from this recording what the sequencing of the contraction of her injuries was and why.  This is also well before any litigious process had commenced and it could not be said that the form was filled out with a litigation strategy in mind.  The recording also reflects the opinion of the treating specialist, Mr J Thomas.[10] 

[8]PCB 35

[9]See also Dr Connoley, PCB 64 and Mr J Thomas, PCB 97

[10]PCB 63

14For these reasons, of the chronological unfolding of the onset of injuries and the circumstances under which they arose, I find that Ms Sealey suffered injury to the left wrist throughout the course of employment and particularly in about October 2020.  That injury led to a reduction in function of the left wrist.  In consequence, to compensate for that reduction in function, Ms Sealey over-compensated by stressing her right wrist, leading it to develop, or at least significantly worsen, the soft tissue injury in the right side. 

15The defendant conceded that if I found the right wrist injury to have been caused by the left wrist injury, then it is consequential and its effects can be attributed to the latter.[11] I proceed on that basis.

[11]Transcript (“T”) 33 Line (“L”) 22-27

16There was some debate as to what level of worsening or aggravation Ms Sealey needed to demonstrate in respect of the right wrist injury.  I consider that the test to be applied is that from Georgopoulos v Silaforts Painting Pty Ltd[12] where it was said at [59]:

“It follows that it is not the character of the injury itself which determines whether it is a serious injury but its consequences.”

The Court went on at 247‑8 [68]:

“The more probable view is that Parliament’s intention was that the relevant concept of injury was to be understood in a broad commonsense way.”

[12](2012) 37 VR 232 (“Georgopolous”)

17Applying those principles, I consider the change wrought on the right side is a consequence of the left wrist injury. That finding permits the impairments to the right hand to be considered in the assessment of the left wrist injury.[13]

[13]Ibid at 246, [58]‑[61], cited with approval in Brassington at paragraph 36

18Having answered the first question, I now turn to the second question.

Does the injury to the left wrist result in a loss of earnings of more than 40 per cent?

19The parties agreed the without injury earning figure per annum is $43,218 gross and the 60 per cent figure is $498.67 gross per week.

20Ms Sealey’s case is that she cannot return to work in any of the four positions the defendant suggests.  I will come to that.

21The starting point is that in December 2023, Ms Sealey’s weekly payments were terminated as it was alleged she had a work capacity.  At conciliation on 10 April 2024, the defendant withdrew the notice of termination and Ms Sealey presently continues on weekly payments beyond 130 weeks on the accepted basis that she has no current work capacity.  Given the time of the insurer’s decision to withdraw the termination notice, after a considerable history of claims management when it had ample time to assess the injury and the issue of capacity and the proximity of the decision to the hearing of this serious injury application, I consider this decision an admission as to Ms Sealey’s incapacity.  That is, she has no current work capacity and that is likely to continue indefinitely.[14]

[14]Sepe v Club Italia Sporting Club Inc (Ruling) [2023] VSC 191; 324 IR 288

22Then turning to each of the suggested jobs.  It was accepted she had no capacity to return to work in her old occupation.

Library assistant

23Ms Sealey’s evidence was that the job suited her, save for the fact that she could not do two particular tasks.  These were the lifting components of handling books such as to checking them in/ out, sorting and shelving. The Kinnect  Report relied on by the defendant details such tasks are required to be performed, but gives no detail on the frequency of those tasks.[15]  However, the other difficulty posed by this job relates to the criteria identified in the Kinnect Report as “repetitive arm, hand and finger movements are required when operating computers, registers and scanners”, similar to the administrative tasks required. Dr Slesenger, an occupational physician relied on by Ms Sealey, did not opine specifically on her ability to perform this role.  He did, however, consider broadly that she could not return to alternative duties.[16]  I take this to include these tasks.  Her long-term hand therapist, whom she sees almost weekly, opines that even light tasks such as brushing her teeth promotes pain in her arm.  It is hard to see that with such sensitivity, there is the ability to perform the inherent tasks of the librarian position which requires frequent repetitive use of the hands.  Most importantly, Ms Sealey’s treating doctor opined that she is unable to return to work at all.[17]  While I do not accept Dr Connoley’s description of her condition as a central nervous sensitisation, he was clearly, and on a fair reading of the whole of his materials, simply opining that she has long-term pain from her wrist injuries that affects her everyday activity. This evidence from her long-term treating doctor is particularly potent and favours Ms Sealey’s case, I find. 

[15]DCB 65

[16]PCB 144

[17]PCB 67

24The defendant specifically relies on Dr Rahgozar, an occupational physician, who has provided three reports.  In his last report, he opined that Ms Sealey had recovered from her injuries and her reports of ongoing pain were the result of a “… non-organic component to her presentation and illness behaviour”.[18]  I reject Dr Rahgozar’s opinion.  He is the only practitioner on both sides with such an opinion.  He is an outlier then.  To the contrary, and importantly, all Ms Sealey’s treating practitioners support an organic basis for injury and her having no current work capacity.[19]

[18]DCB 55

[19]Dr Connoley PCB 67, Mr J Thomas PCB 63

25It was also accepted by the defendant in submissions that Ms Sealey had an organic basis for her injury.  She is recorded by many medical practitioners as being an honest and straightforward person.[20]  No treating doctor or specialist questions the fact that she has an ongoing injury.  I therefore put Dr Rahgozar aside. The defendant also relies on Associate Professor Romas, who opines that while she has an organic condition, it is mild and she can return to work at least 32 hours per week in any of the nominated positions.  On this point, I do not accept his opinion and prefer the reporting of the treating doctor and the evidence of the restrictions in Ms Zennaro’s (Mr Ford’s) reports,[21] the evidence of the occupational physician, Mr Slesenger, who is uniquely placed to opine on this point given his speciality, and accepting Ms Sealey’s evidence of her restrictions. 

[20]Associate Professor E Romas, DCB 36, Mr C Thomas, PCB 97

[21]PCB 78-9, 80-4

26I record that in the short time that I saw Ms Sealey give evidence, she struck me as a straightforward, honest and reliable witness.  The defendant said nothing to gainsay this. The restrictions Ms Sealey gave evidence about were that she was willing and motivated to try for jobs. She gave evidence of applying for a Kmart job recently in customer service and also as a meter reader. This fortitude and stoicism is to be commended and speaks to the positive nature of Ms Sealey in trying to get on with life, and is further evidence why Mr Rahgozar’s assessment is wrong because it could be accepted that a person with a non-organic presentation would adopt a malingering role. She has not. However, while she has applied for jobs, she frankly admitted she may not be able to perform the roles.  Certainly, her treating doctor did not think she could, nor did the expert, Dr Slesenger. Further, the findings of Ms Zennaro also clearly show that the use of the hands in lifting even a light weight, or in a repetitive manner, causes her pain to increase.  The evidence which I accept of Ms Sealey is that keyboard work is limited to some five to ten minutes and then requires a “significant” break, which at times has meant 30 minutes or so. This makes it impossible to see how she can perform office work in a modern environment. This applies not just to librarianship work but also to most office-based roles.  For these reasons, I do not find that she can work as a library assistant.

Customer service representative

27There are two criteria inherent in the job which make it inappropriate, I find.  These are set out in the Kinnect Report:[22]

“Repetitive movements will be required when driving and using a computer;

Use of handheld objects is constant and will involve the use of writing implements, telephones, computers, photocopiers, scanners, calculators and other general office equipment.”

[22]DCB 64

28It will be apparent from the discussion immediately above in respect of the library position, the evidence I accept of Ms Sealey, Dr Connoley, Mr J Thomas, Ms Zennaro and Dr Slesenger in preference to that of Dr Rahgozar and Associate Professor Romas make this job entirely unsuitable.

Information officer

29A critical component of this job is noted as “repetitive arm, hand and finger movements are constant for data entry, word processing tasks and when using the phone”.[23]

[23]DCB 89

30I repeat what was said above as to why this position is unsuitable given it requires repetitive arm and hand movements of a constant nature.

Meter reader

31Two criteria of this job are:

“Repetitive hand and finger movements are occasionally required when recording meter readings into hand held computer or downloading this information into the main computer system.

Driving is frequently required to reach the designated work area.”[24]

[24]DCB 94

32The first criteria is directly contrary to Ms Sealey’s physical capacities which I have set out above and contrary to the medical evidence that I have accepted.  As to driving, Ms Sealey’s evidence is of being able to drive only short distances of around ten to 20 minutes.[25] The Kinnect Report indicates the relevant position requires the ability to drive “… up to or more than 45 minutes each way”. On the evidence I accept from Ms Sealey, she cannot perform the inherent requirements of this position because she cannot drive for the length of time required.

[25]T 61 L 14

33It follows from the above that Ms Sealey has no capacity to return to work for the foreseeable future and earn over the relevant threshold. She succeeds in demonstrating a more than 40 per cent loss of her without injury earnings.

34It was accepted that if I came to that finding, it would follow that a determination in respect of pain and suffering ought also to be made.  I will grant applications under both heads.

35I indicate that if I were wrong in respect of my answer to Question 1 and it fell to decide Question 3, I would have determined against Ms Sealey’s argument. In her submission, Ms Sealey argued that the injuries to the left and right wrist resulted in impairments which could be aggregated in coming to an assessment of whether serious injury consequences had been demonstrated.  To this extent, the submission relied on the exposition of principle in Brassington at [48]‑[49], and also Lexa v TAC (“Lexa”)[26] at [49]‑[51].  Briefly, I do not consider the cases stand for the proposition advanced and apply to the facts of this case. Brassington involved one limb with injuries at two distinct anatomical points caused at the one time.  Here on the facts there are injuries to two different limbs.  Together the left and right wrists do not form one body function which the Workplace Injury Rehabilitation and Compensation Act 2013 requires to be assessed for impairment consequences. Lexa held as much.

[26][2019] VSCA 123

36I will hear parties in respect of costs.

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