Smith, Peter Andrew v Amcor Ltd
[2009] VCC 1459
•29 September 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES – COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-08-05397
| PETER ANDREW SMITH | Plaintiff |
| v | |
| AMCOR LIMITED | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L Bourke |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 11 September 2009 |
| DATE OF JUDGMENT: | 29 September 2009 |
| CASE MAY BE CITED AS: | Smith, Peter Andrew v Amcor Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1459 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the left wrist – pain and suffering only – likelihood of surgery pre compensable injury – whether consequences to the plaintiff are serious.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J D Philbrick SC with | Maurice Blackburn |
| Mr M Belmar | ||
| For the Defendant | Mr R H Smith SC with | Herbert Geer |
| Ms A Ryan | ||
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant on 18 April 2006 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of serious injury to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The impairment of body function relied upon in this case is the left wrist.
5 The plaintiff relied upon one affidavit. In addition, both parties relied on medical reports and other medical material which was tendered in evidence. I have read all the tendered material.
Outline of s.134AB
(i) Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages;
(ii) The impairment of the body function must be permanent;
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities;
(iv) By subsection (38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”;
(v) I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders;
(vi) Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(vii) I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 in reaching my conclusions.
The Plaintiff’s Evidence
6 The plaintiff is presently aged forty, having been born on 13 February 1969 in the United Kingdom.
7 The plaintiff came to Australia in 1992 and worked from 1993 as a sheet metal worker until being made redundant in 1997.
8 Later that year, the plaintiff commenced employment with the defendant in Dandenong. For the first year the plaintiff was a casual employee, and he was then made permanent. He was employed as a machine operator, and has worked continually with the defendant since that time on a rotating shift.
9 The plaintiff has been advised that he suffers from a degenerative condition in his left wrist, which he believed had been aggravated in the course of his employment with the defendant, resulting in the necessity for him to undergo a left wrist fusion in July 2006 (“the surgery”).
10 The plaintiff can recall suffering from pain in his left wrist in November 1997 when emptying a large steel bin at work. He attended his general practitioner and was put off work for about a week. He was sent to an orthopaedic surgeon. X-rays were carried out, and the plaintiff eventually returned to work, performing light duties for a short time, before returning to his normal work.
11 The plaintiff advised that he attended his general practitioner in 1995 with wrist pain, and also earlier in 1997 with the same complaint, but he did not recall those attendances, nor did he believe this condition affected his ability to work.
12 The plaintiff was unsure as to the date of the onset of psoriatic arthritis (“the arthritis”). It started off as just a skin condition and then he started to get “niggly bits in his toes” and he was referred to Dr Harmer, rheumatologist, in 1997. She advised him he was suffering from the arthritis. The arthritis has caused the plaintiff pain, primarily in his feet and right knee. He has continued to be treated by Dr Harmer, whom he sees two or three times a year for follow up and medication.
13 After he returned to work in 1997, the plaintiff continued his heavy duties with the defendant, operating machines. He was able to do this work, which included heavy lifting without difficulty.
14 There were periods when the plaintiff’s left wrist became sore. He could recall in 1999 he went to the factory doctor with wrist pain. He was then referred to Mr Tham, a hand specialist. The plaintiff was advised by Mr Tham that he had Kienbock’s disease (“the disease”) and degeneration in his wrist.
15 After that time, the plaintiff continued to work. He had a further aggravation of his left wrist pain in 2001, and there may have been other flare ups of pain, the dates of which he cannot recall. Other than when there were such flare ups, his wrist was okay and he was able to do his work.
16 On the said date, the plaintiff put his hand into a machine and forcefully attempted to unjam a brick of jammed aluminium cans. In the course of doing so, he experienced a sudden pain in his left wrist (“the incident”).
17 As a result of the incident, the plaintiff experienced sudden pain and swelling in his left wrist. He sought medical treatment and he was eventually referred back to Mr Tham.
18 The plaintiff was advised by Mr Tham that he should undergo the surgery. Following the surgery, the plaintiff was off work for five to six weeks. He then returned to some clerical work in November 2006, and at the end of that month he was certified fit for normal duties for twelve hours a day. The plaintiff now works on average thirty eight hours per week over a four week period.
19 The plaintiff continues to suffer from left wrist pain from time to time, particularly if attempting to lift heavy items or do repetitive work. He cannot bend his wrist, and vibrations into his wrist cause his pain to increase.
20 The plaintiff gets assistance at work doing various tasks such as maintenance on machines and heavy lifting – work he was able to do by himself prior to the said date.
21 The plaintiff is unable to lift with his left hand. He uses his left hand to steady things as a guide. If he uses his left hand too much, he generally gets pain either in the bottom of his thumb or along the tendons in his arm which can last for roughly three to five or seven days.
22 Since November 2006, the plaintiff has attended the Narregate Medical Centre where he sees whichever doctor is available. He continues to take anti-inflammatory medication for both his arthritis and his wrist condition when needed. He may take medication for a number of days when his wrist flares up, and then not for a much longer time when he does not have a flare up.
23 In cross-examination, the plaintiff agreed that on average he only needed to take Naprosyn every six to eight weeks.
24 When asked why there was no note in that clinic’s file of a complaint of wrist pain, the plaintiff said there was nothing else that could be done for it and it was self manageable. He explained he also attended that clinic for non work related issues.
25 Prior to the said date, the plaintiff was able to play golf. He played regularly with fellow workers on private and public courses and had a handicap of seventeen. He had no problems playing golf with his arthritis. Since the incident the plaintiff has been unable to return to playing golf because of his wrist pain. He has attempted to play, but his wrist hurts, particularly if the club hits the ground.
26 Since the incident, the plaintiff has also been restricted in his ability to carry out normal maintenance tasks around the house and engage in lifting which he could do prior to the said date
27 The plaintiff cannot do “normal bits and pieces around the house”. He tried lawn mowing after the incident but he had a lot of problems. Once he started, the vibrations and the force of pushing caused problems with the tendons in the thumb and he could not actually get his hand behind the handle to push. He now relies on his sons to mow the lawns and do other household tasks.
28 The plaintiff has been unable to return to riding a pushbike since the incident. That is very frustrating for him, as he has put on a lot of weight, and he would ideally like to be riding his bike to try to lose weight. The plaintiff presently weighs 150 kilograms. He agreed in cross-examination that he had weighed around 160 kilograms in 1998 and was seeing a dietician at that time but said he did lose a lot of weight after that.
29 As a result of his wrist condition, the plaintiff is also restricted in his ability to play with his youngest child, who is aged six, and he has difficulty picking him up because his wrist is weak.
30 The plaintiff is very worried about his future. Prior to the incident he realised he had a degenerative wrist, but thought, because most of the time it was not painful, that he would be able to avoid undergoing surgery. He is concerned he will need further surgery in the future.
31 The plaintiff agreed that he continued to complain of pain in various parts of his body due to the arthritis and he had also been diagnosed with gout. He thought it was hard to distinguish between gout or arthritis as the cause of his pain as “they were very similar when they attack and can be exquisitely painful”.
32 The plaintiff was cross examined at length about the problems with his left wrist before the said date. The plaintiff did not disagree that he had attended a number of doctors on many occasions because of his wrist condition.
33 The plaintiff agreed that he had been aware of problems with his wrist since an injury at work in 1997 when he banged his left hand or wrist against a steel bin. At that time he was referred to Mr Wuttke and also to an orthotist, and he returned to work eventually on normal duties.
34 In 1998, the plaintiff started to attend the work clinic at Belvedere Medical Clinic (“the Clinic”). The plaintiff agreed he could have been complaining of wrist pain and was taking Voltaren in March 1998. He agreed arthritis “might have kicked in” when he went off Voltaren at that time.
35 Dr Bialylew at the Clinic noted the plaintiff suffered injury at work on 8 October 1999 when he pressed down on his left hand onto the floor whilst cleaning. The plaintiff said that it was from that point when he became aware of what was the actual problem he had with his wrist, namely a fracture of the lunate bone. He had acupuncture and was referred to physiotherapy. He was made aware of the necrosis of the bone and he was told that over the years it would get worse and would cause a flare up.
36 In cross-examination, the plaintiff disagreed he had to be careful about banging his wrist on the side of a table or a door all the way back to 1997. In 1999, he was made aware of the actual problem and the company said they would get an assessor out to see what jobs he could and could not do but it never happened, so he was left to do whatever he wanted.
37 The plaintiff did not agree that he had taken anti-inflammatories pretty well continuously since 1997. He took them just when needed and he had them on hand.
38 The plaintiff was referred to orthopaedic surgeon, Mr Weber, after a specific incident in 2001. He went to the Dandenong Valley Hospital and was put on light duties on his return to work.
39 Before the surgery the pain was constant “all night, throb, throb, throb, and the surgery was to relieve it and it did work”. After the 2006 incident, Mr Tham suggested the surgery to relieve the pain.
40 In re examination, the plaintiff said that before the incident between flare ups he really rarely had a problem at all with his wrist. The only thing that can be done now is to take anti-inflammatories to relieve the pain when it is aggravated. He cannot do anything much at home. Whatever he does is with his right hand. He cannot work on his car any more and it has actually cost him a fortune. Recently he cannot do virtually anything, even changing a radiator hose he cannot reach down and hold it with his left hand.
The Plaintiff’s Medical Evidence
41 The plaintiff attended the Belvedere Park Medical Centre (“the Medical Centre”) on 25 November 1994, complaining of three weeks of pain in the left wrist.
42 The plaintiff’s condition was thought to be due to tendonitis, and Naprosyn was prescribed. The plaintiff re-presented on 25 January 1995 with pain in the left wrist after returning to work for three days, and he was prescribed Voltaren.
43 On attendance at the Medical Centre on 2 February 1995, the plaintiff’s wrist was still painful. On 31 July 1995, he mentioned an ache in the left wrist.
44 On 1 April 1997, the plaintiff presented with both wrists being painful, and he was prescribed Fenac. He returned on 3 April 1997 with continuing pain, and was referred to Dr Harmer, rheumatologist.
45 It was noted that an x-ray ordered on 11 September 1997 showed changes in the left lunate bone consistent with the developmental condition known as Kienbock’s disease.
46 Reference was made to Dr Harmer’s view that this was an incidental finding, and that she considered much of the plaintiff’s trouble with the tenosynovitis and joint pain symptoms could be due to psoriatic arthritis. She noted that was more likely when, over subsequent months, the plaintiff’s knees and back became painful, as well as his shoulders, and he was found to have a Baker’s cyst on his knee.
47 It was noted that the plaintiff had a steroid injection into his right knee in July 1998 with good outcome. Over the next three years the plaintiff was treated with Methotrexate as well as taking Naprosyn. He had further injections of steroid into the joints of his feet, and he had some episodes of gout.
48 A specific incident at work on 3 November 1997 when the plaintiff was emptying a steel bin and twisted his wrist was recorded in the Medical Centre notes. There was a further twisting incident at work on 6 September 2001, and it was noted that the plaintiff banged his left hand at work on 9 May 2003.
49 Dr Barry at the Medical Centre noted that as of June 2005, the plaintiff was coping reasonably well. The plaintiff had times when he experienced pain and stiffness in the left hand, but that never persisted for more than a few days, to the extent that it restricted what the plaintiff could do. At that time, the plaintiff was able to be gainfully employed with little time off work. It was noted the plaintiff would need ongoing treatment for his psoriatic arthropathy, his gout, and his obesity.
50 Dr Barry considered if the plaintiff followed the normal pattern he would show slow progression of the disease (the nature of which was not specified) over time, which was most likely to lead to significant restriction and discomfort eventually.
51 Dr Barry thought at that time it may well be that the plaintiff would need to consider re-training or employment that placed less stress on his hands and feet if his symptoms altered and progressed rapidly. Dr Barry thought the plaintiff’s disease processes seemed to be under control, and any deterioration would be expected to be incremental.
52 Dr Hura from the Medical Centre reported in April 2006 that the plaintiff had injured his wrist in the incident on the said date whilst attempting to remove an aluminium can that was jammed.
53 Following the incident, the plaintiff was referred by Dr Hura to Mr Tham, who performed the surgery on 27 July 2006. Dr Hura noted, as of September 2006, the plaintiff was undergoing rehabilitation with a hand therapist, and having physiotherapy, and he appeared to be making good progress without any complications.
54 In Dr Hura’s view, the trigger to the plaintiff’s deterioration was the incident. Having been told by the plaintiff of the nine year history of wrist pain and the presence of avascular necrosis, it was Dr Hura’s view that the current injury was “an accident waiting to happen”. He thought the incident involved sudden and forceful movement which would have been sufficient to cause the current problem with the plaintiff’s left hand. He did not believe the current injury was related to the repetitive nature of the plaintiff’s employment.
55 The plaintiff has not been seen at the Medical Centre since the end of 2006.
56 The plaintiff attended the Peninsula Health Emergency Department on 4 November 1997 after he had injured his left wrist at work. His wrist was immobilised by means of plaster, and he was given oral analgesia and an x- ray was organised. He was given an appointment to see Mr Wuttke, orthopaedic surgeon, and was discharged.
57 Mr Wuttke saw the plaintiff at the request of Dr Hura in November 1997. At that stage Mr Wuttke thought the long term prospect for the plaintiff’s wrist was not good in view of the advanced avascular necrosis. He thought the plaintiff may well finish up needing wrist surgery for removal of bone fragments, or even a wrist fusion in the more distant future.
58 In December 1997, Mr Wuttke noted there had been considerable improvement in the plaintiff’s wrist, but there was still swelling and discomfort. He suggested the plaintiff try a splint, and stay on light duties for another six weeks.
59 Dr Harmer reported in July 1997. She described the anti-inflammatory therapy prescribed by her and the findings on x-ray of Kienbock’s disease. Dr Harmer next saw the plaintiff in September 2003 when he told her that he had been relatively symptom-free from his arthritis and gout over the last twelve months and had been off all treatment. However, he had developed some swelling of his ankles and Dr Harmer provided treatment for that condition on that date.
60 Dr Bialylew at the work clinic first saw the plaintiff on 24 March 1998 when the plaintiff lacerated his right elbow.
61 On 11 October 1999, the plaintiff presented, stating that on 8 October 1999, while cleaning at work, he had pressed down with his left hand on the floor and experienced a sudden pain in the left wrist. An assessment was made of a sprained wrist, and the plaintiff was advised to continue with Naprosyn which he was already taking at that time because of his arthritis. He was issued with a modified duties certificate. He was given a course of laser acupuncture and was about eighty per cent improved by 21 October 1999.
62 The plaintiff was referred for a left wrist x-ray on 5 November 1999. When reviewed on 12 November 1999, it was noted the plaintiff was about ninety per cent improved, and he was issued a full clearance certificate. In view of the abnormality seen on x-ray, the plaintiff was referred to Mr Tham.
63 Mr Tham first saw the plaintiff on 26 November 1999. He diagnosed avascular necrosis of the lunate associated with collapse and scapholunate ligament disruption. That was associated with early degenerative arthritis of the radial carpal joint. Mr Tham noted the cause for the disease may either be unknown or associated with substantial trauma to the wrist.
64 Mr Tham thought it was likely that there would be progressive collapse of the lunate, resulting in progressively increasing pain and stiffness of the left wrist. He considered the plaintiff would then require either a proximal row carpectomy or wrist fusion. He noted that if the plaintiff’s radial scaphoid joint was inadequate, he may consider a scaphocapitate fusion, excision of the lunate, and interposition with attendant graft. Those options depended on the status of the plaintiff’s wrist. In Mr Tham’s view, it was likely the plaintiff’s symptoms would progress in the medium to long term and would require one of the above procedures.
65 Mr Tham wrote to Dr Bialylew on 26 November 1999. In Mr Tham’s view, the plaintiff certainly had evidence of a left Kienbock’s disease, together with scapholunate disruption. As the plaintiff’s symptoms were currently mild, at that stage Mr Tham did not recommend any treatment. However, he noted it was likely that the plaintiff would subsequently develop increasing pain due to the presence of the disrupted lunate, and when that occurred surgical treatment may be considered. He left it to the plaintiff to contact him when he noticed increasing wrist pain.
66 The plaintiff returned to Mr Tham on 4 May 2006 with increasing wrist pain, which Mr Tham noted appeared to be made worse after the incident.
67 Clinically Mr Tham found there was a markedly swollen left wrist with marked stiffness and tenderness of the mid carpal and radial carpal joints. The follow up x-rays showed further collapse of the lunate with degenerative arthritis of both the radial lunate and lunocapitate joint, and widened scapholunate interval.
68 Post operatively, the plaintiff returned to Mr Tham on 20 April 2007 with concerns regarding pain on the palmar surface of the left wrist, particularly while using a machine, and also exacerbated by using a screwdriver.
69 Mr Tham noted clinically the plaintiff’s left wrist was stable, with some tenderness over the scar and underlying fixation plate. He thought the plaintiff’s follow up x-rays showed evidence of the left wrist fusion with no loosening or breaking of the screws.
70 Mr Tham believed the plaintiff’s wrist condition had slowly deteriorated over time since October 1999 and that the incident was likely to have once again re-exacerbated the plaintiff’s symptoms.
71 In his view, whilst the surgery was successful, and the plaintiff had lost flexibility of the joint, the plaintiff retained the ability to pronate and supinate his forearm and use his finger fully. Mr Tham noted the restrictions would be the inability to perform any task that required flexion or extension of the wrist or radial or ulnar deviation. That implied no forward or backward movement of the wrist or sideways movement. However, the plaintiff retained the ability to twist his forearm.
72 In Mr Tham’s view, the plaintiff had the capacity to return to full time work with those restrictions.
73 On review in April 2009, Mr Tham found there was some tenderness and discomfort over the dorsal wrist fusion plate and noted the plaintiff may require removal of the plate. He considered the wrist had now successfully united, and he did not anticipate any further deterioration in the plaintiff’s symptoms.
74 The plaintiff also received treatment at the McKinley Medical and Industrial Clinic (“McKinley”).
75 Dr Slesenger from McKinley noted the plaintiff first presented on 20 November 2001 having twisted his left wrist at work on 7 September that year. At that stage the plaintiff had seen Dr Barry and also Mr Weber, orthopaedic surgeon.
76 It was noted on 26 September 2001 that the plaintiff had been suffering with Kienbock’s disease pre-dating his injury. He was advised to continue with physiotherapy and anti-inflammatory medication, and told that his symptoms would settle.
77 On 3 October 2001, it was noted the plaintiff’s symptoms had improved with exercise and physiotherapy, and the range of movement in his wrist joint was increasing with less swelling. At that stage it was decided, as the plaintiff still reported experiencing pain, that he go on to light duties with less cleaning, and wear an arm support.
78 On 18 October 2001, it was noted that the plaintiff was doing well. Modified duties had been organised at work, and he was wearing a brace.
79 The defendant’s operations manager advised McKinley later in October 2001 that the plaintiff was having difficulty and complaining of pain, and it seems that he had two days off work. By the beginning of November 2001, it was noted the plaintiff was doing okay. His wrist was improving with minimal pain on palpation, but there was pain on extension.
80 On review on 15 November 2001, it was noted the plaintiff was doing quite well, learning his limitations, basically following normal duties and he was ready to start some cleaning duties.
81 On 30 November 2001, McKinley was advised by the defendant that the plaintiff had had excessive absenteeism and he was claiming he had re- injured his wrist but was refusing to attend McKinley.
82 The plaintiff did attend on 3 December 2001, when it was noted he had had a flare up the previous week rotating the steering wheel of a forklift, but it had settled, and he was to resume almost full duties.
83 The plaintiff was seen on two occasions in 2002 for unrelated matters.
84 The next mention by the plaintiff of a wrist problem was on 29 March 2003 when he stated that a few weeks previously he had knocked his wrist at work and had seen his local doctor, who had given him time off work and prescribed Panadeine Forte and Voltaren. At McKinley, the plaintiff was prescribed Tramal and Digesic. It was noted that the plaintiff’s focus was on returning to alternate shift duties instead of not working.
85 On 2 June 2003, it was noted there was a mild improvement in his hand. The pain was unchanged. The plaintiff was doing very little work at that stage. On 6 June 2003, acupuncture was recommended, and the plaintiff was taking Tramal and Digesic. On 17 and 23 June 2003, the plaintiff was given acupuncture.
86 It was noted the plaintiff was referred to Dr Patrick for a cortisone injection which was carried out in July 2003, and which improved the swelling in the plaintiff’s wrist.
87 On review at McKinley on 19 August 2003, the plaintiff’s left wrist and left hand had a full range of movement, and there was some swelling. It was noted the plaintiff would like to try normal duties. He was seen in February 2004 for an unrelated matter, and there was a reference to a further injury in July 2004.
88 Dr Slesenger thought that the plaintiff’s prognosis must be guarded. The plaintiff had osteoarthritic change, with evidence of avascular necrosis, and in his view, clearly there was a potential for a future flare up, and he would be surprised if it did not recur.
89 The plaintiff was seen at McKinley by Dr DiCarlo in May 2003 with a history of a left hand fracture six years before at work. It was noted that fracture had become complicated, and the plaintiff stated that his current left hand pain and swelling was secondary to avascular necrosis of the left lunate bone.
90 Dr DiCarlo noted the plaintiff had required analgesic medication for pain, and acupuncture had been suggested. The plaintiff had been referred to rheumatologist, Dr Patrick, who had given him a cortisone injection into the affected hand with good results.
91 Dr DiCarlo anticipated that the plaintiff would require a review from Dr Patrick, and there was a possibility the condition may flare up again, as it was chronic. She noted avascular necrosis led to painful arthritis which would require medication and referral once again, may be for an indefinite period. At that stage Dr DiCarlo thought the plaintiff was fit for the modified work he was performing.
92 The plaintiff saw Mr Weber, orthopaedic surgeon, on referral from Dr Kunaratnam in September 2001
93 In Mr Weber’s view, the plaintiff had had an exacerbation of a longstanding problem. With the degree of degenerative changes, he did not advocate doing anything about the scapholunate diastasis. He did not feel arthrodesis would be indicated at that stage. He noted, really, with the degree of changes, one day the plaintiff may very well come to wrist arthrodesis, but that would be entirely guided by his symptoms. He noted, understandably, the plaintiff was not too keen on that idea at the moment. He reported that the plaintiff exacerbated a previous problem two weeks ago, and he expected the plaintiff’s symptoms would improve over the next month or so.
94 On review in November 2001, Mr Weber noted the plaintiff’s symptoms had settled down to the extent they were prior to the last episode. Mr Weber confirmed that the plaintiff would require a wrist arthrodesis in the future, and really the timing of that would be dependent entirely on the plaintiff’s symptoms.
95 Dr Patrick, rheumatologist, saw the plaintiff on 27 June 2003 at the request of Dr DiCarlo. The plaintiff then complained of intermittent exacerbations which usually settled with rest and anti-inflammatory agents.
96 The plaintiff told Dr Patrick that he had injured his hand at work again, six weeks earlier. On examination, there was asymmetric tenderness and swelling involving the left wrist.
97 In Dr Patrick’s view, that finding could well represent an inflammatory worsening of the underlying degenerative wrist problems but he could not completely exclude the related arthritis. Dr Patrick injected the plaintiff’s wrist to help his discomfort. He noted he would arrange for wrist x-rays and that the extent of degenerative problems would help determine future management with the left wrist.
98 Mr Rodney Simm, orthopaedic surgeon, examined the plaintiff for medico- legal purposes on 27 July 2009.
99 The plaintiff told him he was unable to lift heavy objects in his left hand, and repetitive activities were associated with pain extending proximally into the forearm flexor muscles. Pain around the left wrist occurred at the base of the thumb and across the front of the wrist, as well as the dorsum of the wrist. The plaintiff was unable to drive a manual car because of loss of movement, and he was also unable to ride a bicycle.
100 The plaintiff told Mr Simm that, while he does his manual work, he is unable to do maintenance work involving taking machines apart and lifting a doming station which weighs about forty kilograms. He also had difficulty reaching behind the drum of a machine with his left hand to undo nuts with his fingers.
101 On examination, the plaintiff was quite sensitive over the dorsum of the hand. There was a small area of sensory loss, lateral to the scar. The left wrist was arthrodesed in about ten degrees of dorsiflexion, and neutral radial and ulnar deviation. The plaintiff had normal movement of the elbow and fingers and thumb of the left hand. There was slight loss of pronation and supination of the left forearm, particularly supination.
102 Mr Simm diagnosed Kienbock’s disease of the left lunate, treated with an arthrodesis of the left wrist joint. Mr Simm thought this condition was idiopathic.
103 In his view, the incident was responsible for an exacerbation of the plaintiff’s symptoms from the longstanding disease. The increased pain that followed the work injury was the “final straw” that led to Mr Tham recommending an arthrodesis.
104 Following the surgery, in Mr Simm’s view, it was not necessary to impose any medical constraints on the plaintiff’s use of his upper limb, but he noted the plaintiff had residual pain, and common sense indicated he should confine use of that limb to those activities which did not unduly aggravate his pain.
105 In Mr Simm’s view, the plaintiff would not be able to return to unrestricted heavy manual work using his non-dominant left upper limb. He considered the loss of movement of the joint was a significant disability which would restrict the use of his limb for certain activities. Whilst the plaintiff would have quite a strong grip, there was considerable loss of dexterity of the left upper limb for activities that normally required wrist flexion and/or extension. For example, the inability to flex meant the plaintiff was unable to place his fingers on his left shoulder.
106 In terms of the future, Mr Simm thought the prognosis was for the condition to persist as described. In his view, it was not likely to deteriorate now that there had been sound union, and future medical treatment would be confined to symptomatic medication.
107 By letter dated 8 April 2008, the plaintiff’s whole person impairment in relation to his left upper limb was assessed by the defendant at nineteen per cent.
Investigations
108 An x-ray of both hands and wrists was taken on 11 July 1997. There was well developed sclerosis in the left lunate bone, appearances being typical for established Kienbock’s disease. There was no evidence of any underlying inflammatory arthritis.
109 An x-ray of the left wrist was carried out on 4 November 1997. The lunate was deformed, with some sclerosis and cystic change within it. It was noted that it was uncertain whether there was an associated recent fracture within the lunate and that the best means of further evaluation would be a dedicated CT scan of the carpal bone.
110 A left wrist x-ray was carried out on 12 November 1997. The lunate was again noted to be deformed, with areas of sclerosis alternating with cystic change. The lunate was slightly compressed, and several fragments from its posterior aspect lay in the posterior aspect of the carpus. The joint space between the scaphoid and the lunate bone was abnormally widened. Appearances were noted to be rather unusual for a recent fracture, and raised the possibility of osteochondritis in the past associated with scapholunate dissociation.
111 An x-ray of the left wrist was taken on 17 December 1997. It showed the lunate bone was sclerotic and compressed, consistent with either an old united fracture or osteochondritis in the past. There was a large gap present between the scaphoid and lunate bones consistent with carpal bone dissociation.
112 An x-ray of the left wrist taken on 11 March 1998 showed the lunate was sclerotic and slightly fragmented, in keeping with ischemic necrosis.
113 A CT scan of the left wrist was carried out on 20 November 1999. It was concluded there was sclerosis and fragmentation of the lunate, in particular on its dorsal aspect where there was a non united fragment. There was widening of the scapholunate joint consistent with ligamentous disruption. There was early osteoarthritis. Appearances suggested old trauma with secondary avascular necrosis (osteonecrosis).
114 There was a further x-ray of the left wrist taken on 6 September 2001. It was noted there was widening of the bony interval between the scaphoid and the lunate consistent with ligamentous disruption. The lunate was deformed in shape, and displaced anteriorly, with appearances suggestive of a dorsal intercalated segment instability. The increased sclerosis and irregularity of the lunate were also suggestive of some avascular necrosis.
115 An x-ray of the left hand taken on 8 May 2003 showed the lunate carpal bone to be sclerosed and compressed. It was noted appearances were strongly suggestive of avascular necrosis. It was recommended that the patient have a CT scan of the hand to more clearly demonstrate the changes in the lunate.
116 There was an x-ray of the left wrist and scaphoid taken on 20 April 2006. It was concluded there was negative ulnar variant with secondary osteochondritis (avascular necrosis) of the lunate bone. There was widening of the scapholunate joint. It was noted these changes were longstanding. There was no acute scaphoid fracture visible.
117 An x-ray of the left wrist was taken on 21 September 2006. Plate and screws were noted on the dorsal surface of the lower end of the radius extending to the base of the third metacarpal. Some fusion of the carpal bones was noted. At that stage no definite evidence of the fusion of the wrist joint was apparent.
118 A further left wrist x-ray of 14 November 2006 showed there had been an ankylosis of the left wrist. A plate and multiple screws were located dorsally, extending from the distal radius to the base of the third metacarpal. It was noted there was good alignment.
The Defendant’s Medical Evidence
119 The plaintiff was seen by Mr Ian Jones, orthopaedic surgeon, on 26 October 2001 following an incident in September 2001.
120 At that time the plaintiff’s complaints were of restriction of flexion and extension, and also pain in the back of the wrist if he bumped or knocked it. There was some aching in the left wrist joint with excessive use of his hand, and he was wearing a wrist support.
121 Mr Jones thought the plaintiff suffered from avascular necrosis at the left lunate bone, and thought that he was developing early osteoarthritic symptoms.
122 Mr Jones thought the injury four years ago was also relevant in initiating what appeared to have been the development of that condition. He thought the condition was work related and that the plaintiff was fit for duties not requiring extreme use of his non dominant left hand.
123 As of 2001, Mr Jones thought the plaintiff’s prognosis was poor. In the short term, he considered the plaintiff may be able to continue to manage light manipulative work, but slowly, with the progress of time, the plaintiff would develop significant osteoarthritic symptoms in his wrist, to the point where surgical treatment, possibly in the form of an arthrodesis of his left wrist, would be required. In the meantime, he thought that conservative measures were all that were required.
124 Mr Jones re examined the plaintiff in May 2006 after the incident. Mr Jones considered that the incident was a significant aggravating factor, and he suggested the plaintiff rest to see if his condition settled, and an alternative to that would be an arthrodesis. At that stage he thought the plaintiff had no useful capacity in his left hand consequent on his wrist condition.
125 The plaintiff was re examined on 20 October 2006, ten weeks after the surgery.
126 Mr Jones then considered, in the future, it was likely that the plaintiff’s fusion would become solid and he would be left with no pain in the wrist joint. He noted the downside of the surgery, of course, was that the plaintiff had no movement in his wrist joint. He expected the plaintiff should be able to return to physical employment following satisfactory outcome of the surgery. He thought that it was likely to take a further three months before complete and sound union and recovery of hand and finger function was achieved.
127 Mr Jones re-examined the plaintiff on 30 July 2007. At that time the plaintiff continued to experience problems in his left wrist and hand, but was adjusting to having the wrist stiffened. Apart from stiffness and loss of movement, the plaintiff had, on occasion, noted slight cramping in the left fifth finger.
128 The plaintiff told Mr Jones that at work he noted some of the jobs he could formerly perform he now required assistance with, particularly using his left hand to manoeuvre underneath objects in the machine. The plaintiff told him he had tried to play golf, but because of the lack of flexibility in his left wrist he was unable to do so.
129 On examination, there was a full range of movement of the left elbow. Pronation of his forearm was normal. Examination of the left wrist confirmed the arthrodesis to be sound, and the hand was measured to be in a position of some ten degrees of fixed extension.
130 Mr Jones noted the plaintiff’s diagnosis had not changed. He thought the prognosis was good, and that the left wrist condition had been rendered painless, albeit at the expense of not having movement. He did not anticipate any future treatment would be required, and thought it was unlikely that the plate and screws would need to be removed.
131 Mr Jones re examined the plaintiff on 24 November 2008, at which time the plaintiff reported continuing problems in his left wrist, with no change in the symptom levels since last seen.
132 On examination, the left elbow had a full range of movement of flexion and extension, and slight limitation of rotation and supination. There was some slight sensitivity in the scar over the dorsal aspect of the left wrist and hand.
133 Mr Jones thought the short term prognosis was one of slight wrist aching and discomfort, following attempts of demanding physical activity using his left upper limb. He thought the long term prognosis was likely to be of similar symptoms. He did not anticipate any deterioration long term. He considered no other medical specialist assessment was indicated, save for the availability of anti-inflammatory medication. He noted it may be possible that surgical removal of the plate would be required.
134 Mr Jones again examined the plaintiff on 13 July 2009, at which time the plaintiff complained of persisting symptoms of stiffness and pain, but only if he attempted heavy lifting involving his left hand or forcible movement involving his wrist and hand.
135 The plaintiff told Mr Jones that overall his left wrist was much better than the pre fusion state of pain and limited movement in the wrist, and there was a marked lessening of pain since the surgery.
136 The plaintiff confirmed he was having ongoing problems with certain machinery at work, and his capacity to fix his car had been impaired. He also had difficulty driving a manual car.
137 The plaintiff told Mr Jones he was taking anti-inflammatory medication, such as Naprosyn, intermittently, approximately a few per month, with flare ups of wrist symptoms.
138 The plaintiff told Mr Jones that he had seen Mr Tham two or three months ago when he was advised to have the plate and screws removed, although the plaintiff was concerned about this procedure, as it involved a general anaesthetic.
139 Again, on examination, the wrist was in a position of ten degrees of fixed extension. Subjectively there was some slight paresthesia over the skin of the dorsal aspect of the second metacarpal, but otherwise examination was normal. There was a full range of elbow flexion, but supination was slightly limited, and pronation was normal.
140 Mr Jones noted all the plaintiff’s complaints were of low-grade wrist ache with some forearm pain with any attempts at demanding physical activity involving the left wrist, which was otherwise permanently stiff.
141 In a supplementary report dated 3 September 2009, Mr Jones stated that having reviewed the plaintiff’s past history prior to the incident, he believed it was likely the plaintiff would have come to require surgical fusion of his wrist even if the incident at work had not happened. Mr Jones noted that was Mr Wuttke’s view in 1997 and Mr Weber’s view in September 2001.
Overview
142 I accept that the plaintiff suffered a compensable injury in the incident – namely aggravation of avascular necrosis of the lunate associated with collapse and scapho lunate ligament disruption.
143 In this case, where there is a pre existing wrist condition, I must consider what the evidence discloses as to the prior condition of the plaintiff and determine whether the additional impairment resulting from the 2006 incident is serious and permanent.
144 In Petkovski v Galletti [1994] 1 VR 436, the Full Court of the Victorian Supreme Court accepted the proposition that –
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. …”
145 In both Angelatos v Museum of Victoria [1999] 3 VR 157, at 162-163 and at 168, and in RJ Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386, per Chernov JA at para 40, the Court of Appeal accepted that the principles in Petkovski v Galletti (supra) applied equally to serious injury applications under the Act.
146 In accordance with the principles in Grech v Orica Australia Pty Ltd and Anor [2006] VSCA 172, provided the plaintiff establishes that the subject compensable injury in 2006 materially contributes to his impairment and its consequences, and will continue to do so permanently, the role of other injuries does not preclude a court concluding that there is the appropriate causal link between the compensable injury and the consequences relied upon.
147 Whichever approach is followed, the plaintiff, to reach the threshold of serious injury, is required to establish the aggravation from the 2006 incident is permanent at the time of the hearing in its effects on the left wrist and the effects of the aggravation must be serious: Barwon Spinners Pty Ltd v Podolak (supra).
148 It is not disputed that the plaintiff has had problems with his left wrist since about 1995. There have been particular flare ups in 1997, 1999 and 2001 when the plaintiff required extensive treatment. However, between such flare ups the plaintiff had “no problems really at all with his wrist”.
149 Prior to the incident, the plaintiff was working full time without assistance. He was able to play golf and ride a bike and engage freely in activities around the home, including car maintenance.
150 As a consequence of the incident and the resultant surgery, there has been a major change in the plaintiff’s life.
151 The plaintiff has lost dexterity of the left upper limb for activities that normally require wrist flexion and or extension. He still has some pain, particularly in the area of the plate, the base of the thumb and across the wrist, as well as the dorsum of the wrist.
152 Since the incident and resultant surgery, the plaintiff has been unable to play golf, a hobby he previously enjoyed, with a handicap of seventeen despite his arthritis.
153 The plaintiff cannot ride a bike, and whilst weight may have been a problem in the past, he is no longer able to exercise freely to lose weight. He cannot drive a manual car.
154 He cannot do things around the house, in particular tasks requiring fine use of his left hand, such as fixing the car, and has to pay others to do car maintenance which he previously enjoyed. He has difficulty playing with his six year old son.
155 Although he is able to perform full time normal duties, the plaintiff requires assistance with tasks involving his left hand, in particular working under certain types of machines and operating a trimmer – such assistance not being required prior to the incident.
156 Whilst the plaintiff does not require ongoing treatment, save for occasional anti-inflammatories, there does not appear on the medical opinion to be any further treatment that is indicated, save that the metalware may need to be removed at some stage into the future.
157 I accept that in its fused state, as a result of the incident, the consequences to the plaintiff of the impairment to his left wrist when judged by comparison with other cases in the range of possible impairments or losses of body function may be fairly described as being more than “significant” or “marked” and at least as being “very considerable” – s.134AB(38)(c).
158 Further, I accept that viewed objectively, and also judged on an external comparative basis against other possible impairments not necessarily in the same category, the impairment and its consequences are “serious”: see Humphries v Poljak (1992) 2 VR 129, at 170, accepted by the Court of Appeal in Barlow v Hollis [2000] VSCA 26: see in particular Chernov JA, at para 29.
159 The impairment to the left wrist is obviously permanent, in the sense that it is likely to last into the foreseeable future.
160 A further issue arose in this case, namely whether it can be said that the consequences of the compensable injury which I found to be serious can in fact be attributable to the compensable injury, given the opinion of Mr Jones, Mr Tham, Mr Weber and Mr Wuttke, that fusion surgery was likely before the incident.
161 Brief submissions were made by counsel as to which party bore the onus of proof in these circumstances.
162 Counsel for the plaintiff submitted that the common law principles set out in Watts v Rake (1960) 108 CLR 158 applied to serious injury applications. It was submitted that it was upon the defendant to do the disentangling and to show what was the probable course of a pre-existing condition in circumstances of an aggravation.
163 Counsel for the defendant argued the onus rested with the plaintiff, and relied upon what was said by Southwell and Teague JJ in Petkovski v Galletti (supra) at 444:
“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 after the relevant injury.”
164 It was submitted that Watts v Rake (supra) had to be read subject to the exacerbation authorities that deal specifically with serious injury. When the defendant did not cause the condition and there was an exacerbation as a result of a compensable injury, it was submitted the onus lies firmly on the plaintiff to establish the degree of exacerbation – the issue is, to what extent the fusion has been brought forward by the compensable injury
165 Counsel for the plaintiff submitted that it does not make any difference that the fusion surgery would have happened in any event, and pointed out that there is no evidence as to when it would have taken place had the incident not happened.
166 A serious injury application is governed by the gateway provisions of the Act and does not involve the assessment of damages. I have considered the consequences of the compensable injury as required.
167 The issue of the likelihood of surgery in the absence of the compensable injury is a matter for trial and goes to the question of damages.
168 I accept that as a result of the incident, the plaintiff has required a fusion which has consequences that meet the test of seriousness.
169 Accordingly, I find the plaintiff has suffered a serious permanent impairment of his left wrist as a result of the compensable injury, and I grant leave to bring proceedings for pain and suffering damages.
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