Stevenson v Victorian WorkCover Authority
[2016] VCC 3
•22 April 2016
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-14-02469
| HEATHER ANN STEVENSON | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY (ABN 90 296 467 627) | Defendant |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 26 November 2015 | |
DATE OF JUDGMENT: | 22 April 2016 | |
CASE MAY BE CITED AS: | Stevenson v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 3 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the plaintiff’s hands – dermatitis – whether injury resulted in permanent serious impairment or loss of a body function – whether consequences of injury “serious” within the meaning of s134AB(38)(c) – claim for pain and suffering only – plaintiff’s failure to discharge onus of proof – injury to plaintiff’s hands, especially her right hand, not a “serious injury” within the meaning of the Act
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37)(a), s134AB(38)(c)
Judgment: Application for leave to commence common law proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I Fehring with Mr N Bird | Stringer Clark |
| For the Defendant | Mr R Middleton QC with Ms D Manova | Thomson Geer |
HIS HONOUR:
1 This proceeding was commenced by the plaintiff by Originating Motion. The plaintiff seeks leave pursuant to s134AB(16)(b) of the Accident CompensationAct 1985 (“the Act”) to commence a common law proceeding against the defendant and her former employer, claiming damages for pain and suffering only.
2 The plaintiff’s case is that she suffered an injury arising out of or during the course of her employment with Murdoch Community Services Inc (“Murdoch”) where she worked in the laundry between 2001 and 2009. She had been employed in various other positions with the same employer from 1988 onwards but it is her work in the laundry that gives rise to this application.
3 The plaintiff claims to have suffered an injury to both of her hands in the form of bilateral hand dermatitis.
4 For the reasons that follow, this application must be dismissed.
5 Mr R Middleton QC, who appeared with Ms D Manova as counsel for the defendant, told me that the issue in the case for me to decide is whether or not the plaintiff can succeed in proving on the balance of probabilities that she has suffered an injury to her hands which meets the definition of “serious injury”. In summary, he submitted that the evidence shows that the plaintiff cannot establish that her claimed serious injury meets the serious injury threshold as set out in the Act.
6 The plaintiff claims that the injury she sustained has resulted in permanent serious impairment or loss of a body function to her hands within the meaning of s134AB(37)(a) of the Act.
7 The plaintiff bears the onus of proof that the pain and suffering consequences of her injury are “serious” within the meaning of s134AB(38)(c) of the Act. This issue is to be determined having regard to all of the evidence.
8 To make out a “serious injury” within the meaning of s134AB(37)(a) of the Act, the plaintiff must establish, on the balance of probabilities, that she suffered a “permanent serious impairment or loss of a body function”. The determination of whether an injury is “serious” is assessed solely by reference to the consequences to the plaintiff of the relevant impairment or loss. Relevantly, in the circumstances of this case, an impairment is not “serious” unless the pain and suffering consequence is, when judged by a comparison with other cases in the range of possible impairments, “fairly described as being more than significant or marked and as being at least very considerable” within s134AB(38)(c) of the Act.
9 It is necessary, as in every application of this kind, to examine the evidence in order to decide what injury the plaintiff suffered during the course of her employment and, what consequences (if any) were suffered, and continue to be suffered by her.
10 The plaintiff filed and served two affidavits in support of her application. Those affidavits were sworn on 10 February 2014[1] and 27 October 2015.[2] There was no direct challenge to the credit of the plaintiff, although video surveillance of the plaintiff was relied upon. I will deal with this evidence a little later.
[1]PCB 2
[2]PCB 6
11 The plaintiff also relied upon an affidavit from her partner, Colin Rogers, sworn 1 October 2015.[3]
[3]PCB 9
12 In addition, the plaintiff was called for cross-examination and was cross-examined by Mr Middleton.
13 In addition, the plaintiff filed a Court Book containing a number of medical reports. I admitted into evidence as exhibit A the Plaintiff’s Court Book (“PCB”) pages 2 to 19a.
14 I admitted into evidence as exhibit 2, on behalf of the defendant, pages 2 to 13 inclusive from the Defendant’s Court Book (“DCB”).
15 In her first affidavit, the plaintiff deposed that she commenced employment with Murdoch in 1988 as a disability support worker. The plaintiff was employed thereafter by Murdoch in varying capacities and in 2001, she commenced work in the laundry on a permanent basis. She continued in that role until 2009. Her work involved her sorting linen and assisting with laundry work which included washing, drying and stain removal from clothes that were being processed. In this work she used commercial laundry detergents. The plaintiff deposed that prior to her laundry work she had difficulties with dermatitis and had always been careful using hand cream to ensure that her hands were protected.[4] The plaintiff said that in the laundry at Murdoch it was not possible to properly care for her hands given the amount of washing, drying and cleaning that she was required to undertake. She said her hands started to deteriorate and by 2006, they became “much worse” because Murdoch started to use other strong chemical detergents.[5] The plaintiff deposed that from 2006 onwards, she noticed “very significant problems” and she consulted her doctor.
[4]First affidavit at paragraph [2]
[5]First affidavit at paragraph [2]
16 When the plaintiff swore her first affidavit she said she was applying Diprosone, a cortisone, to her hands daily to try to protect them. She also applied Neutrogena hand cream. She said “when my hand becomes infected I will have to apply Lamisil cream to kill off the infection”.[6]
[6]First affidavit at paragraph [4]
17 The plaintiff’s employment was terminated in June 2009. She has had other employment since and does not seek a certificate to claim economic loss.
18 In her first affidavit, the plaintiff deposes that her hands have never healed and are sore, sensitive, cracked and become itchy on a regular basis. She deposed that they are very sensitive and tasks such as opening bottles and writing are difficult. She said hot and cold water will affect her hands and they crack and split. Using traditional taps can be difficult and in consequence she has changed the taps in her home to lever-type taps. She said knitting is difficult because her hands become painful and the wool snags on the scaly skin on her hands. She said she has the same problem putting stockings on. She wakes at night because of pain and itchiness in her hands and her gardening activities are restricted, as is general house cleaning.[7]
[7]First affidavit at paragraphs [6]-[7]
19 The plaintiff said that when she recognised that she could no longer continue with her employment she undertook further study. She enrolled at Ballarat University and completed a Diploma in Community Service Management in 2008 and, an Advanced Diploma in Business Management in 2009. She also completed a Certificate in Training and Assessment in 2010.[8] That she has been able to undertake and complete this further study in order to remain in the workforce is, in my view, very much to her credit. The plaintiff struck me as a person who is very stoic and someone who downplays rather than overstates the problems that she is having with her hands.
[8]First affidavit at paragraph [8]
20 The plaintiff is now fifty-six years of age and her school education took her to Year 10 level. She has played basketball continuously for more than thirty years and at the time of her first affidavit, she continued to do so. She did however miss a number of scheduled games of basketball because of the problems with her hands. She has tried other sports such as lawn bowls but finds that if her hands are cracked at the time, it is too painful for her to participate. The plaintiff deposed in her first affidavit that at times when her hands were cracked, she would have difficulty even washing her hair. The plaintiff has a son who is autistic and she has difficulties explaining her problems and difficulties with her hands to him. At the time she swore her first affidavit, the plaintiff deposed that she would like to participate more in swimming and painting but was prevented from doing so because of problems with her hands. She said the problem “never goes away” and can “flare up”.[9]
[9]First affidavit at paragraph [9]
21 At the time of swearing her second affidavit, the plaintiff said she continued consulting with her general practitioner and that she has ongoing treatment from time to time from her dermatologist, Dr Rajagopalan, on a three to six-monthly basis. He prescribes Lamisil cream, Diprosone, Whitemore’s ointment, and she continues to use Neutrogena hand cream.
22 At the time of swearing her second affidavit, the plaintiff said that she continues to have problems with both hands but particularly with the right hand. She said that it is itchy all of the time and a rash on it never goes away, although it varies in intensity and the size of the rash. She said that she has cracking at least monthly, which may last for a week or more, when she will have to apply extra cream. She said that there had been no significant change or improvement from the time that she swore her first affidavit.[10]
[10]Second affidavit at paragraph [4]
23 The plaintiff gave evidence at the hearing of this matter and, at the outset of that evidence I viewed her hands, together with counsel.[11] It was evident to me that there exists a rash on the plaintiff’s right hand covering most of the palm of the right hand and there was some rash on the left hand. The right hand is the worst affected hand. At the time of the hearing the rash did not have a dried or scaled effect but the rash was most noticeable. The plaintiff gave evidence that at the time of my observation, she was experiencing what she described as a good day. I understood that to mean that at the time I viewed her hand, the itchiness was reduced and the rash was not as florid or as dry or scaled or cracked as it is at some other times when the rash erupts.[12]
[11]Transcript (“T”) 4
[12]T4
24 In her second affidavit, the plaintiff deposed that at night the rash on her right hand is painful and itchy and wakes her up three to four nights a week and she has trouble getting back to sleep when that happens.[13] Activities which require her to grip, especially with her right hand, are difficult and the plaintiff has to approach these activities with care. The plaintiff wears gloves to protect her hands but can only do so for a short time because the consequent sweating and perspiration on the hands will cause the rash to get worse. The plaintiff has an infant granddaughter and she has problems caring for her because of her hands. She said driving a motorcar is difficult and it can be painful gripping the steering wheel, particularly on hot days.[14]
[13]Second affidavit at paragraph [5]
[14]Second affidavit at paragraph [7]
25 Colin Rogers, in his affidavit, generally supports the plaintiff’s evidence in relation to what activities she can and cannot do because of dermatitis in her hands. Generally speaking, the plaintiff has difficulties with routine household chores and gardening and, at times, attending to her own hygiene, notably when showering. Mr Rogers confirms the plaintiff’s problems with sleeping and has seen the plaintiff’s hands badly cracked and bleeding from time to time. Mr Rogers was not called for cross-examination.
26 The plaintiff was cross-examined by Mr Middleton. She said that she had not previously suffered from any condition with her skin prior to commencing employment with Murdoch.[15] Early in her employment she was exposed to petrol.[16] The plaintiff was cross-examined about attending upon her general practitioner in 1987 when she was apparently diagnosed as suffering from tinea in her feet and toes.[17] This evidence does not permit a finding relevant to this application. The plaintiff agreed that many years ago she used to teach swimming and then suffered from cracks in her feet.[18]
[15]T6
[16]T6
[17]T9
[18]T9
27 The plaintiff was adamant in cross-examination that she suffers pain when attempting to open objects such as bottles, and that knitting caused her pain to such an extent that she no longer engages in this hobby.[19] She agreed that when she undertook her further study she was able to use a computer and to complete the study tasks assigned to her by computer.[20] The plaintiff agreed that she is currently employed at the St Arnaud Neighbourhood House where she works a 25-hour week over four days. She agreed this work involves computer work and writing as a necessary part of her work which she is able to do. She agreed she has not had to have time off work because of the problem with her hands.[21]
[19]T12
[20]T13
[21]T14 and T23
28 The plaintiff was shown video surveillance of her taken on 9 April 2014. This video surveillance depicted the plaintiff moving around local shops with her granddaughter. There was footage of her driving a four-wheel-drive vehicle without apparent difficulty and of generally going about her business shopping in the company of her granddaughter without difficulty. She was also taken to a second lot of video surveillance taken on 25 September 2014. This video surveillance depicted the plaintiff mainly seated whilst engaging in a lengthy mobile telephone conversation. The plaintiff is depicted having no difficulty holding the mobile telephone whilst having a cigarette. She said that she never thinks about her actions. She also said “I’ve never said that I don’t use my hands normally”.[22]
[22]T22
29 The plaintiff was asked about her current medication. She said that she takes Panadol for pain nearly every day.[23] She also applies prescribed creams, namely, Lamisil and Diprosone and, she uses Neutrogena.[24]
[23]T22
[24]T24
30 As I said earlier, the plaintiff struck me as a very stoic person determined to get on with her life despite the problem with her hands. Having seen her give her evidence, I have no reason to doubt that what she has said in her affidavits and in her evidence is other than the truth. However, I have formed the overall view that the plaintiff’s injury to her skin and hands is not a “serious injury” within the meaning of the Act.
31 I turn to the medical evidence.
32 The plaintiff was referred to Associate Professor Peter Foley, dermatologist, by her general practitioner in 2008 in 2008. In his brief report, Professor Foley said, inter alia:
“On the day of consultation, she had an eczematous process affecting predominantly the palmar aspects of the fingers and thenar eminences of the hands. She reports that things are currently relatively well controlled with her Advantan and moisturiser.
To this it would appear that Heather Stevenson has a chronic irritant hand dermatitis that is likely to have been initiated in her work environment. Ongoing irritation at work seems to be causing the condition to persist. It is my opinion that Heather’s symptoms will continue if she remains in her current duties with exposure without protection.”[25]
[25]PCB 12
33 The plaintiff was referred by her general practitioner to another dermatologist, Dr Bishakha Rajagopalan, in November 2009. He thought the plaintiff was suffering from either cumulative irritant contact dermatitis or tinea manuum. He ordered skin scrapings which were analysed and in his first report his diagnosis was the plaintiff suffered from tinea manuum in the right hand.[26] His prognosis at that time was as follows:
“She has already had considerable improvement of her right hand with topical antifungal treatment. Tinea manuum can be fairly persistent, but I expect eventual clearing. It is worthwhile avoiding excessive exposure to irritant chemicals at work, by wearing gloves, but this is not the main factor causing her problem. Therefore I would expect her to be able to continue at work, wearing gloves as advised.”[27]
[26]PCB 15
[27]PCB 15
34 Dr Rajagopalan reviewed the plaintiff on 7 December 2010. He took further fungal scrapings which were analysed. By this time his prognosis had changed somewhat as follows:
“Since the last three fungal cultures have been negative, it is likely that she has no active fungal infection. The persistent scaling is suggestive of dermatitis, for which she has been given Advantan fatty ointment. If the fungal infection does not recur, I expect the dermatitis to resolve, provided she avoids irritants at work and at home.”[28]
[28]PCB 16
35 In February 2014, Dr Rajagopalan provided a further report after reviewing the plaintiff. By this time, he had moved away from the diagnosis of contact dermatitis. His report contained the following opinion:
“Given the multiple positive fungal cultures growing E. floccosum from 2009 onwards, I think she has tinea manuum, rather than primary irritant contact dermatitis. It is possible that her work at the laundromat exposed her to clothing contaminated with the organism. It is also possible that frequent immersion in water and bleach at work made her skin susceptible to fungal infection. Moreover, irritation from water and chemicals may exacerbate symptoms due to the fungal infection.
It is likely that further exposure to water and laundry chemicals as in her previous job will exacerbate symptoms due to irritation and drying. As it has proven difficult to eradicate the fungal infection despite topical and oral antifungal treatment, it is worthwhile avoiding work which involves frequent immersion in water, or frequent hand washing and exposure to irritant chemicals. She should be able to do any work which does not involve such exposure.
Her prognosis depends on successful treatment of her fungal infection. As mentioned already, she was initially prescribed a 12 week course of oral Lamisil, of which only six weeks were funded by the insurer. If she fails to respond to this particular oral anti fungal treatment, it may be worth trying oral itraconazole. However, such treatment will be limited by the cost. In the past, she has been unable to tolerate griseofulvin, another antifungal agent, due to side effects. If she is unable to be treated with oral antifungal agents, she would need to use topical antifungal preparations alone. This could potentially be long-term treatment, aimed at control rather than cure.
In her domestic duties, she should avoid excessive washing of hands, and she should wear gloves for doing wet work such as washing dishes etc.”[29]
[29]PCB 17-18
36 Dr Rajagopalan last saw the plaintiff on 8 September this year. In his report dated 16 September 2015, he said, inter alia:
“… She had significant improvement of the scaling on her hand, which was confined to the first interdigital space, between her right thumb and index finger. … .”[30]
[30]PCB 19
37 He went on to say:
“Given the prolonged course and treatment so far, the prognosis is guarded, and she may require prolonged treatment with topical antifungal agents, aimed at control rather than cure. If the condition flares in the future, she may again benefit from oral antifungal treatment, either with further courses of Lamisil, or with Itraconazole. At this stage, I think it best to continue with Whitfield’s appointment and Lamisil cream, to consolidate the benefit of the recent oral Lamisil, and to prevent deterioration of the condition of her hand.”[31]
[31]PCB 19
38 By the time of his most recent reports, it is apparent that the condition with the plaintiff’s hands is confined mostly to the right hand. It is the hand in respect of which the plaintiff now makes most of her complaints.
39 The plaintiff was medically examined by Dr Alan Segal, a dermatologist, on a number of occasions. When he examined her on 18 June 2008, he found she demonstrated “a mild chronic eczematous eruption on the palm of the right hand extending onto the palmar aspects of the right fingers’. A small amount of eczema was noted on the thenar eminence of the left palm.[32] Mr Segal was of the opinion that the plaintiff had developed “a chronic irritant eczematous eruption” that was probably initiated in her work environment.[33]
[32]DCB 2
[33]DCB 2
40 When Mr Segal saw the plaintiff for the second time in July 2009, he found that the condition of her hand had not improved.[34]
[34]DCB 4
41 At a third examination by Dr Segal on 31 March 2014, he opined as follows:
“There is no doubt that the original problem was an irritant dermatitis but it is most likely that a secondary fungal infection that persists to the present time is the current ongoing cause of her irritation. At present I do believe the irritation caused by her workplace initially has subsided long ago and the current eruption on her hand is tinea or fungal in nature. I believe this opinion is held by her current treating dermatologist.”[35]
[35]DCB 7
42 Dr Segal went on to say as follows:
“I do believe her current problem interferes with her enjoyment of life and daily activities as any physical activities with her right hand causes irritation, cracking and pain and there is ongoing itching on her hands that intermittently interferes with her sleep.
I do not believe there is any permanent impairment as the problem should completely resolve once adequate treatment has been given.”[36]
[36]DCB 8
43 Dr Segal saw the plaintiff for the last time on 10 March 2015, at which time his opinion previously expressed had not changed.[37]
[37]DCB 10
44 I find that the plaintiff contracted irritant dermatitis as a result of working in the laundry of Murdoch. This work brought her into contact with fabric and chemicals which caused the irritant dermatitis. I find that she subsequently suffered from a secondary fungal infection, probably tinea manuum that persists to the present time causing ongoing intermittent irritation. The principal site of the dermatitis was on the palm of the plaintiff’s right hand. This persists and there is only minor irritation and ongoing infection in the left hand.
45 I accept that the plaintiff suffers from ongoing itchiness, rash and pain in the affected right hand. I accept that from time to time, the infection in her right hand erupts in such a way that the affected area becomes dry and scaly with cracking, causing the plaintiff to feel uncomfortable and at times in pain. However, I am of the opinion that the ongoing fungal infection is treatable by the application of prescription creams and the plaintiff requires minimal ongoing medical treatment for this injury. In my opinion, based on the evidence, the ongoing infection is troublesome to the plaintiff and best described as a nuisance to her. I am not satisfied on the evidence that the consequences of the ongoing fungal infection to the plaintiff’s right hand can properly be described as a permanent serious impairment or loss of a body function of either hand, especially the right hand. I am not satisfied the plaintiff has suffered a serious injury. The medical opinion seems to be the ongoing problems are caused by a secondary fungal infection, tinea manuum. Although this has persisted for some time, it is hoped it will eventually clear. It cannot be said to be permanent. Further, the most adverse consequences are felt only intermittently.
46 I am not satisfied that the plaintiff has proved on the balance of probabilities that she suffers consequences from an injury to her hands, especially her right hand, that, when judged by a comparison with other cases in the range of possible impairments, could fairly be described as being more than significant or marked or very considerable.
47 For these reasons, the plaintiff has not discharged the onus of proof that she bears, in that the evidence does not show that she suffers a serious injury to her hands, especially the right hand, within the meaning of the Act.
48 The Originating Motion is dismissed.
49 I will hear the parties on the question of costs.
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