Susnjara v Museums Victoria
[2017] VCC 524
•29 March 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-00877
| PAUL SUSNJARA | Plaintiff |
| v | |
| MUSEUMS VICTORIA | Defendant |
---
JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 March 2017 | |
DATE OF JUDGMENT: | 29 March 2017 | |
CASE MAY BE CITED AS: | Susnjara v Museums Victoria | |
| MEDIUM NEUTRAL CITATION: [First revision 3 May 2017] | [2017] VCC 524 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – bilateral carpal tunnel syndrome – pain and suffering only – causation – unrelated conditions - disentanglement
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and s(38)
Cases CitedBarwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Ansett Australia Ltd & Anor v Taylor [2006] VSCA 171; Ifka v Shahin Enterprises Pty Ltd [2014] VSC 8; Bedeux v Transport Accident Commission [2016] VSCA 127; Transport Accident Commission v Florrimell [2013] VSCA 247; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment: Application dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr N Griffin with Mr G Pierorazio | L N Christie & Co |
| For the Defendant | Ms S Cooper | Wisewould Mahony Lawyers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of his employment with the defendant from 2009 to November 2012 (“the said period”).
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 s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The relevant body function is the upper limbs, with the plaintiff’s condition diagnosed as bilateral carpal tunnel syndrome (“BCTS”).
5 By s134AB(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”.
6 Subsection 38(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
7 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[1] and Grech v Orica Australia Pty Ltd & Anor[2] in reaching my conclusions.
[1](2005) 14 VR 622
[2](2006) 14 VR 602
8 The plaintiff relied upon two affidavits and gave viva voce evidence. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
9 Whilst the parties agreed the plaintiff suffers from BCTS, confirmed on a number of investigations, the defendant disputes this syndrome is work related. Further, it was submitted any consequences of the syndrome viewed separately from the plaintiff’s other medical conditions cannot be described as “serious” pursuant to the statutory test.[3]
[3]Peak Engineering Pty Ltd & Anor v McKenzie (2014) VSCA 67
The Plaintiff’s evidence
10 The plaintiff is presently aged sixty-six, having been born in Croatia in March 1951. He is presently in receipt of an Age Pension. He is right handed.
11 The plaintiff came to Australia in 1970, when he was about nineteen, and worked thereafter primarily as a labourer and painter. He has seven children and eleven grandchildren. He has been living alone since his relationship with his partner ended in about August 2012.
12 The plaintiff commenced employment with the defendant on 5 August 1992 as a painter, earning about $1,000 a week. He was employed to work at various sites, including the Melbourne Museum, Science Works and the Immigration Museum.
13 The plaintiff’s work over some twenty years with the defendant was very repetitive and he was overloaded with work. He performed painting duties on his own and had no assistance. He had to do the preparation, including setting out drop sheets. He painted with paint brushes and rollers and had to carry tins of paint, sometimes up and down ladders. When painting, he held the paint tin in his left hand and repeatedly dipped the paintbrush in the tin, which at times was heavy. His left hand did not move much when holding the tin.[4]
[4]Transcript (“T”) 8
14 Whilst at work, the plaintiff experienced pressure and harassment from his supervisor, Tony Dbardeno (“Tony”), who made him do extra work, and the plaintiff had to work long hours to catch up.[5] This situation caused the plaintiff to be depressed and extremely stressed and his drinking increased a lot. He sought professional help in relation thereto and he was prescribed Prozac.[6]
[5]T20
[6]T17
15 As a result of the repetitive nature of his work, the plaintiff began suffering symptoms in both hands. He saw Dr Cheema on 7 April 2011, complaining of pins and needles in both hands, and was referred to a neurologist, Dr Janaka Seneviratne, whom he saw on 13 May 2011.
16 Dr Seneviratne arranged a nerve conduction study, which showed the plaintiff was suffering from BCTS. He recommended the plaintiff use bilateral wrist splints, predominantly at night, and suggested he reduce his workload.
17 The plaintiff complained many times to Tony that he required help and was not coping with his work, but his complaints fell on “deaf ears”.
18 The plaintiff was reviewed by Dr Seneviratne on 12 August 2011 and repeat nerve conduction studies were performed. The plaintiff was advised that if his symptoms did not improve, he would require carpal tunnel release surgery.
19 After a further review on 9 September 2011, an MRI scan was arranged to exclude the possibility of symptoms emanating from the plaintiff’s neck. Dr Seneviratne concluded that symptoms in the plaintiff’s hands were mainly related to BCTS, and strongly recommended release surgery.
20 The plaintiff saw Dr Cheema on 3 and 10 October 2011. He issued the plaintiff with a WorkCover Certificate of Incapacity, stipulating light duties. The plaintiff lodged a Claim for Compensation the following month.
21 Whilst the plaintiff was put on light duties and gave the medical certificate to the defendant, he did not receive any light duties and still had to do his normal full-time work.[7]
[7]T35
22 The plaintiff agreed that in November 2011, he was thinking about going on stress leave and it was possible he was talking about retirement at that stage.[8] However, things turned out a lot better when Tony left.[9]
[8]T18
[9]T19
23 Following a review by Dr Seneviratne in November 2011, there were further nerve conduction studies undertaken and review by a hand surgeon, who recommended consideration of BCTS surgery.
24 The plaintiff was seen again by Dr Cheema on 17 December 2011 and 21 September 2012. He was referred to another neurologist, Dr Symington, who confirmed the diagnosis of BCTS. The plaintiff was referred back to Dr Seneviratne, whom he saw in January 2013, and surgery was again discussed.
25 In the meantime, on 8 November 2012, the plaintiff was made redundant and paid for ten weeks. Putting the redundancy aside, there was no way he would have been able to continue to work, in any event, because of his ongoing symptoms.
26 The plaintiff was having problems with his shoulders at the time he stopped work and had been sent for investigations.[10]
[10]T45
27 The plaintiff agreed he was put on a Disability Support Pension in 2013 when his depression was a major consideration. He was “really cracking up” and he could not think properly.[11]
[11]T24
28 The plaintiff did not agree that his heart disease in 2013 was having quite a significant effect on his ability to do everything. He has been taking tablets and being monitored and he does not have any pain.[12]
[12]T26
29 The plaintiff agreed that in 2013, he described problems with dizziness to his general practitioner. He had also had a problem with shortness of breath.[13]
[13]T21
30 As of 22 October 2015, when he swore his first affidavit, the plaintiff was in receipt of Newstart payments.
31 The plaintiff would then have had difficulty turning up on a consistent basis to do his painting work, because he would have had difficulty using paint brushes and rollers, and also carrying tins of paints, preparing surfaces and setting out drop sheets.
32 Had he not been injured, the plaintiff would have worked as long as possible, probably to the age of seventy, if not more. Despite the repetitive nature of his work, he enjoyed it immensely, having worked for the defendant for some twenty years.
33 As of October 2015, the plaintiff continued to suffer from ongoing bilateral hand symptoms, with the left worse than the right. He suffered from pins and needles in the fingers of both hands, and a sensation of coldness. Symptoms were aggravated by increased hand use.
34 The plaintiff then managed his symptoms with Panadeine Forte; however, this medication gave him constipation and he tried to avoid taking it and, instead, used Panadol Osteo and Nurofen, which were milder.
35 The plaintiff’s hand symptoms regularly woke him during the night and affected his ability to get a good’s night sleep. He wore a sleeve-type brace on both hands to keep his hands still and enable him to get some sleep.
36 Because of his relative inactivity since ceasing work, the plaintiff had then put on about 4 to 5 kilograms.
37 The plaintiff had difficulty making a fist and suffered from weakness in both hands. He had difficulty carrying heavy items with his hands and also opening tight jars and bottles. He often dropped things, such as bottles.
38 Before his injury, the plaintiff used to be very fit and active, despite the long hours he sometimes spent at work.[14]
[14]T28
39 In the past, the plaintiff and his family regularly went water skiing at places like Lake Eppalock and Eildon. They owned a boat and enjoyed water skiing immensely. There was no way that the plaintiff would then have been able to undertake that type of activity with his hand symptoms.
40 The plaintiff probably last went water skiing in about 2008. He sold the boat a long time ago. He agreed his back and shoulder also prevent him from water skiing and he would not dream of doing it now.[15]
[15]T29
41 In the past, the plaintiff also enjoyed fishing, but had not been able to resume that activity since 2012 or so. He would have had difficulty baiting the hook because he lacked fine finger movements. He would also have had difficulty tying knots and casting and reeling. Fishing activities would also hurt his back.[16]
[16]T30
42 Before his injury, the plaintiff and his family enjoyed going camping, attended barbeques and he went swimming, but his hand problems now really restrict these activities.[17]
[17]T27
43 Once the plaintiff and his wife drove to Queensland over about six weeks, camping on the way. Now, because of his hand symptoms, the plaintiff would have great difficulty with equipment, pitching tents and banging in pegs to set up the tents. He would also be restricted in terms of prolonged driving as he suffers from increased hand symptoms when constantly turning the steering wheel.
44 The plaintiff has not really gone camping in recent years. The really big trips stopped a long time ago. He now only camps on his own property with his grandchildren.[18] He is limited in his activities with them. He cannot carry a gas bottle or an Esky and cannot jump up and down off the tractor with his grandchildren. His son helps him with the grandchildren when they stay at the property.[19]
[18]T30
[19]T43
45 In the past, the plaintiff also enjoyed motorbike riding and used it as a means of transport. He owned a Kawasaki GT 1000 for about fifteen years. He kept the bike after he stopped work and did not ride it, save for once or twice a year before giving it to a friend last year.[20]
[20]T32
46 Following the injury, riding the bike was difficult, especially prolonged use of the clutch and brakes, which were both hand operated. The plaintiff really could not ride the motorbike, even to the shops. However, it was better for his back pain to ride a bike than drive.[21]
[21]T31
47 The plaintiff agreed riding a motorbike was a lot harder on his shoulders than driving a car and that one of the key reasons he could not ride the bike any more was his shoulders. However, it was very hard to squeeze the clutch and the brake all the time, especially in the traffic, although it was a bit easier on the open road.[22]
[22]T31
48 As of October 2015, the plaintiff had difficulty using tools such as screwdrivers and pliers, as he had little grip. Fortunately, his sons regularly came over to help him perform routine maintenance and cleaning tasks. He also needed their assistance for tasks such as changing the mattress.
49 The plaintiff lived on an 86-acre property on which, in the past, he used to maintain the grass by using a slasher attached to a tractor. He had difficulty driving a tractor and also difficulty attaching the slasher thereto, thus the grass had remained uncut for a long time.
50 When operating a tractor, the plaintiff’s hands suffer, as do his shoulder and back. A contractor now does the mowing and weeding.[23]
[23]T34
51 Before his injury, the plaintiff also had a nice vegetable patch, about the size of the court room,[24] where he grew all types of vegetables. Post injury, he had problems maintaining it, as he had difficulty digging, ripping out weeds and using a shovel. He had not had a vegetable garden since about 2012 and simply went to the supermarket to buy his vegetables.
[24]T44
52 The plaintiff agreed he no longer had a vegetable garden because he had difficulty bending and crouching and he also had a problem with his back and arms, digging and shovelling. He just did not enjoy gardening much anymore.[25] He stopped gardening because of his hands and shoulders. Digging was hard. He could not rake or use a shovel.[26]
[25]T34
[26]T45
53 In the past, the plaintiff managed to cut firewood using a chainsaw, cutting up the many trees on the property. His son now cuts the wood and the plaintiff has not cut timber on the property for some years. The plaintiff agreed chainsaws were quite heavy to operate, putting stress on his back, wrist and shoulders.[27]
[27]T33
54 The plaintiff’s house is totally neglected due to his inability to maintain it. He started repainting the weatherboard house in about 2012, but it was not, even then, half done. Some of the boards also had to be replaced and he required help from his sons in this regard. These were all the type of activities the plaintiff would have been able to do on his own in the past without any difficulty, but he was now restricted because of his injury.
55 The plaintiff tried to do some painting at home, and kitchen maintenance, and agreed that while doing so, he aggravated his wrist, back and shoulder pain as he reported to his doctor. The house is still unpainted.[28]
[28]T20
56 In the past, the plaintiff enjoyed swimming and was a member of the Ascot Vale Leisure Centre for many years. His hand pain restricted his ability to swim. His shoulder problems prevent him doing freestyle, but he cannot do breaststroke because of his wrists. [29]
[29]T16
57 The plaintiff has difficulty picking up his grandchildren, the youngest of whom is now five years old. This situation was also due in part to his back and shoulder problems.[30]
[30]T33
58 As of October 2015, the plaintiff had not been able to return to the workforce. He had only known painting for the last thirty years or so. There was no way he would be able to go back to that job with his hand symptoms and he did not know what other work would be suitable for him.
59 The plaintiff considered he had been seriously injured as a result of his injury due to his past loss of wages, future loss of earning capacity and the effects of his injury on his lifestyle and enjoyment of life.
60 In his recent affidavit sworn 17 February 2017, the plaintiff confirmed his wrist and hand condition has failed to improve, save that he is no longer working and not as active as he used to be, thus the pain is not aggravated as often. Both hands are about the same at the moment.[31]
[31]T7
61 However, the pain remains, and the plaintiff still takes Panadol Osteo and Nurofen about once or twice a week when the pain is really bad. He takes Panadeine Forte, mainly for his hands. He also has problems with both shoulders. [32]
[32]T10
62 Since the plaintiff stopped work, the pain and tingling in his hands has reduced. He would say it has improved, but when he does not do work it does not hurt as much. If he does, it “goes back to square one”.[33]
[33]T9
63 The plaintiff’s pain is still made worse with activity such as washing the dishes or his car. However, as he lives on his own, he has little choice but to attempt these tasks.
64 In re-examination, the plaintiff explained that his wrists hurt all the time, but the more he does and the harder the task, the more they hurt. If he did a stressful job, he felt pain straight away. He did not have full power in his grip and he felt his hands were half as strong as they used to be.[34] He agreed it was a lot better if he does not stress his hands and is not working.[35]
[34]T41
[35]T35
65 The plaintiff also suffers from symptoms of pain and restriction in his shoulders, neck and back, although he has not been able to return to work or perform the activities he has referred to in his affidavits ever since the injury to his wrists and hands back in 2011.
66 The plaintiff’s ability to sleep at night is still affected, especially if he sleeps with either of his hands beneath his head or pillow.[36] When this happens, he wakes in the morning with a feeling of bad numbness in his hands and needs to give them a shake to get them going.[37] He wears sleeves every night, which keep his hands immobile.[38]
[36]T49
[37]T10
[38]T38
67 The plaintiff also has pain in the shoulders. He loves to sleep on his side but he wakes constantly because his shoulder hurts.[39]
[39]T23
68 The plaintiff’s ability to drive for long periods remains affected by his wrist and hand symptoms, thus he tends to restrict driving to short distances, like to the shops.
69 The plaintiff’s neck is especially annoying when driving. He cannot turn that much to the right, but turning to the left is all right. After driving a long distance, his wrists start to feel numb. He can drive short distances. A long drive is not good for his neck, hands or his back. He cannot sit for more than three hours.[40]
[40]T17
70 Maybe, every month or so, the plaintiff feels that for two or three days, he can hardly move his neck either way and he cannot fix it. He does exercises at the pool, which he finds relaxes his spine.[41]
[41]T11
71 The plaintiff had a week-long holiday with his son in Bali last year. The plaintiff remained fairly much in the hotel and swimming pool. He had some difficulty lifting cases on the trip.
72 These days, the plaintiff tends to spend most of his time simply reading books at home. He remains overweight because of his relative inactivity. He attends the leisure centre for exercise in the pool about once every week or fortnight.
73 It has been suggested by the plaintiff’s doctors he may require surgery to his wrists; however, he is currently not keen on doing so, as the surgical outcome cannot be guaranteed. He had a friend who has undergone this surgery and their condition was worse thereafter. In those circumstances, he would like a second opinion that surgery would help him and make him better.[42]
[42]T6
74 Another reason for not having surgery is financial. If the plaintiff had an operation, he would have to pay someone to look after him as he would not be able to use his hands at all. If he is not working and resting, his hands are a lot better.[43]
[43]T9
75 The plaintiff agreed that his back pain had been quite severe at times, as was noted in the general practitioner’s clinical notes in 2014. Some days are different than others, as have been some years. Last year, he did not have a problem with his back that much, as he was looking after himself.[44]
[44]T13
76 The plaintiff agreed he told Dr Ishani in February this year of “familiar complaints” of shoulder and back pain. They were however not day after day, but quite regular, and he has to look himself.[45]
[45]T14
77 The plaintiff has severe back pain once or twice a year where he can hardly move. He has to lie down for a day or two and attend his chiropractor, maybe four or five times a year. However, his back is normally alright if he looks after it and takes things slowly.[46] He would have back pain if he was moving anything.[47]
[46]T11
[47]T17
78 As a result of his difficulty moving his arms in front of him, the plaintiff has had some needles whilst in hospital. Shoulder surgery is being considered,[48] as his shoulders are still giving him quite significant problems.[49]
[48]T12
[49]T14
79 The plaintiff has not looked for work since swearing his first affidavit. He does not believe he is fit for work, as he has only done painting work and labouring in the past. He loved the variety of his work with the defendant and loved what he was doing, but he did not love the relationship with his supervisor, Tony.[50]
[50]T19
80 The plaintiff would be unable to return to painting work, as it would be hard moving his arm up and down using a roller on the ceiling and walls all day. He cannot lift, firstly, because of his shoulders and then, because of his hands and back. He avoids lifting anything over his head.[51] He can lift on good days, but at other times, he has a hard time lifting. Movement of his arms out to the side is difficult.[52]
[51]T16
[52]T15
81 The plaintiff could not work as a painter now because he could not squat or bend to paint the skirting boards, and could not carry heavy equipment. His shoulders were important, in particular, when sanding, but his wrists were important when using the brush and paint, and operating things, filling holes and preparing walls. He cannot do any task without using his wrists and his shoulders. He agreed his shoulders, alone, would prevent him working as a painter. “In a sense”, he has more pain in the shoulders lately than in his hands.
82 The plaintiff has osteoarthritis-nodes in his hands.[53] There is also a thickening of his palms, he thought was caused by his work. Whilst it is growing, it does not bother him and it does not hurt. Maybe the osteoarthritis in his fingers contributes to him dropping things.[54] Both his fingers and wrists caused this problem. He has difficulty lifting items such as a potful of water, from the stove.[55]
[53]T36
[54]T37
[55]T38
83 The plaintiff has enquired but been told there is no further treatment for his hands. He can go to the doctor and complain every day, but there is nothing they can do.[56]
[56]T39
The Plaintiff’s medical evidence
84 The plaintiff has been attending Goonawarra Medical Centre (“the Medical Centre”) since 2010 where he has seen a number of doctors.
85 The plaintiff saw Dr Cheema on 7 April 2011, complaining of pins and needles in both hands, more severe on the left and worse at night during sleep. A referral was arranged to Dr Seneviratne, neurologist, whom the plaintiff saw in May 2011.
86 Nerve conduction studies were carried out on both hands which disclosed prolonged median motor response. Dr Seneviratne concluded electrodiagnostic tests and examinations were suggestive of BCTS. These findings were confirmed on repeat nerve conduction studies in August 2011.
87 Dr Seneviratne last saw the plaintiff in November 2011, when he was complaining of significant paraesthesia affecting the hands bilaterally, which comes on with task performance, as well as at night time.
88 Repeat nerve conduction tests were carried out, which confirmed earlier findings of BCTS, but it was thought the plaintiff also may have superimposed musculoskeletal aetiology, as well as the neck problem detected on the scan contributing to some of his symptoms.
89 Dr Seneviratne recommended review by a hand surgeon for consideration of surgery, initially on the left, once WorkCover has approved the case.
90 In a report of August 2011 to the plaintiff’s general practitioner, Dr Seneviratne noted that the Carpal Tunnel Syndrome was likely related to the excessive amount of hand usage which was required of the plaintiff’s job as a painter at the museum.
91 Sensory conduction studies organised by Dr Symington in November 2012 confirmed BCTS of mild to moderate severity, more severe on the left.
92 Dr Kodithuwakku from the Medical Centre, in a report of 2014, thought the injuries sustained to the plaintiff’s hands, BCTS, had been substantially contributed to by the nature of his work as a painter with extensive use of his hands over a prolonged period of time.
93 As of the last review in July 2014, the plaintiff was still experiencing pain in both hands and had not proceeded with the suggested surgery. He also complained of persisting back and neck pain and, also, ongoing symptoms of anxiety and depression.
94 Dr Kodithuwakku thought there was sufficient evidence to suggest bullying and harassment at work had been a significant contributing factor to the deterioration of the plaintiff’s mental health and his psychological injury.
95 Dr Kodithuwakku did not have enough information to make an informed decision as to any accident relationship to the plaintiff’s shoulder and neck condition. He thought the plaintiff had a mechanical lower back injury and a background of age-related degenerative changes.
96 Dr Ishani Wijegunawardena, also from the Medical Centre, reported in February 2017.
97 Dr Ishani noted the plaintiff had attended regularly for his ongoing multiple complaints, but had disclosed he was also going to another clinic.
98 The plaintiff had had a cortisone injection to his right shoulder about two months earlier and was awaiting surgery.
99 On the most recent examination in early February 2017, there was limitation of movement in lifting both arms above shoulder level and the plaintiff complained of difficulty with overhead activities.
100 The plaintiff advised his current treatment consisted of analgesic medication for pain, heat therapy, and he was attending physiotherapy. No further treatment or investigations had been carried out by doctors at the Medical Centre in relation to his shoulder.
101 The plaintiff advised he experienced back pain when lifting any weight of more than a few kilograms. Straight leg raising was limited to 60 degrees and spinal movements were also limited by pain and stiffness.
102 Having reviewed the records, Dr Ishani agreed with his partners that the plaintiff most likely had a mechanical back injury on a background of degenerative changes in his lower back.
103 The plaintiff advised he was finding it difficult to turn his head quickly while driving and, on examination, pain was limited to the right side with restricted movement, with no restriction noted on the left.
104 Recent examination confirmed the plaintiff is still experiencing pain in his cervical spine but had adopted measures to minimise aggravating his back pain.
105 The plaintiff had advised he was attending a clinic in Ascot Vale and was on the waiting list for surgical decompression of his carpal tunnel. He described his symptoms as tingling and numbness, pins and needles, with pain and stiffness affecting both hands, more severe in the morning.
106 Dr Ishani noted the injury to the plaintiff’s wrists has been extensively investigated and there was sufficient evidence on file to confirm this injury. He understood the plaintiff worked for the defendant for about ten years as a painter, and he concurred with the opinion of his former colleague that the nature of the plaintiff’s work as a painter could be considered a contributing factor to his ongoing wrist pain.
107 In terms of the plaintiff’s psychological condition, Dr Ishani noted the plaintiff was still seeing Dr Tipirneni, psychiatrist, monthly, and was being prescribed Cymbalta.
108 Dr Ishani also agreed with the view of her predecessor that the bullying, harassment and stresses associated with the plaintiff’s work was a significant contributing factor to the deterioration of his mental health which, despite interventions and treatment, were still ongoing.
109 In view of the plaintiff’s age and current condition, Dr Ishani did not believe he has the capacity to return to his pre-injury employment as a painter. In view of his age, skillset, physical limitations and mental health, she did not believe there was any likelihood of him obtaining alternative meaningful employment in the current labour market.
110 Dr Kouzmin from Rathdowne Village Medical Centre reported in September 2014.
111 The plaintiff first sought Dr Kouzmin’s assistance in July 2012, when he was facing retrenchment, and reported severe harassment and bullying at work, and was requesting help to lodge a WorkCover claim and, possibly, a Disability Support Pension.
112 During the course of his medical evaluation over half a dozen visits, the last being in September 2014, Dr Kouzmin noted the plaintiff had a number of serious medical conditions, physical injuries and psychiatric disabilities that required a management plan.
113 In 2013, Dr Kouzmin considered the plaintiff’s major illness and physical illnesses were coronary artery disease, severe sleep apnoea, chronic lower back pain, chronic neck pain, bilateral shoulder dysfunction, BCTS, Anxiety and Depression.
114 Dr Kouzmin thought the plaintiff’s employment made a significant contribution to his physical and psychiatric problems.
115 Dr Kouzmin noted repetitive use of the hands, shoulders, neck and spine contributed, to a large degree, to the plaintiff’s orthopaedic and neurological problems. She noted the dramatic degree of degenerative disruption of the plaintiff’s supraspinatus tendons was far outside the normal range of age-related degeneration. She thought he had clinical signs of impingement without ultrasound evidence, therefore, surgical rotator decompression may not succeed in relieving his pain.
116 In terms of the BCTS, Dr Kouzmin noted there was pain and tingling in both hands, more pronounced at night, associated with some weakness.
117 Dr Kouzmin thought the BCTS could only improve with median nerve decompression and the outcome of surgery would be uncertain, given the duration of the median nerve compression.
118 Dr Kouzmin then thought the plaintiff’s injuries had stabilised. Given his age and the nature of injuries, it could not be expected he would return to either painting or other types of manual work. Retraining would not be a practical proposition, in her view. For example the plaintiff’s hands are so damaged he would not be able to use computer keys in a commercial setting.
119 The plaintiff continues under the care of psychiatrist, Dr Tipirneni, following a referral from his general practitioner in October 2011.
120 The plaintiff initially presented with lowered mood, sad and anxious with depressive ideas of hopelessness, worthlessness and not able to cope with his work situation and having increasing pain and pins and needles in his hands, and marked social withdrawal and sleep issues. These complaints were in the context of being bullied and harassed by his foreman.
121 Dr Tipirneni’s initial impression was of an Adjustment Disorder of depressive type with some alcohol abuse, and he prescribed Pristiq and continuing Diazepam.
122 Dr Tipirneni most recently reported in April 2016. He then thought the plaintiff had Major Depression, moderate to severe, in partial remission; alcohol dependency, in partial remission, and a Chronic Pain Syndrome.
123 In Dr Tipirneni’s opinion, the plaintiff’s employment significantly contributed towards his physical injuries and also his bullying and harassment.
124 At that stage, the plaintiff was taking 100 milligrams of Pristiq; Mirtazapine, 15 milligrams at night, and Imovane, and continued to receive supportive psychotherapy and relapse and prevention strategies.
125 Dr Tipirneni thought the plaintiff does not have any capacity for work as a painter in the foreseeable future and is unlikely to return to his pre-injury duties as a painter. Based on his comorbidity and current situation, the plaintiff is unlikely to regain any work capacity in the foreseeable future.
Medico-legal evidence
126 Mr Kenneth Brearley, orthopaedic surgeon, examined the plaintiff initially in 2014 and, more recently, last year.
127 The plaintiff advised his work involved the painting of galleries and buildings, being the sole painter of the Melbourne Museum, Science Works and the Immigration Museum. Some of his work was difficult, in particular, painting the gallery ceilings. The buildings were very large and really too big for one person. There were always deadlines and the job was done under some pressure.
128 The plaintiff reported no specific episodes of injury, but the work was of a heavy and repetitive nature and he did sustain injuries to his hands and wrists, both shoulders, his neck and back.
129 The first complaint which took the plaintiff to the doctor was his hand, with pins and needles, and numbness in his fingers, worse on the right.
130 The plaintiff told Mr Brearley he finally ceased work in September 2012, mainly because of harassment; however, he was having difficulty with his painting because of his various symptoms.
131 The plaintiff told Mr Brearley he could now not work as a painter, because he could not use a brush or a roller all day and could not work at or above shoulder height. He also could not squat or bend to paint skirting boards, nor could he carry heavy equipment. He felt he could possibly work as a site manager or supervisor, and had applied for a number of jobs, without success.
132 On examination of the hands and wrists, there was wasting, sensation was normal, movements of the wrists were normal and Tinel’s sign was negative.
133 Mr Brearley diagnosed a complete tear of the supraspinatus tendon of both shoulders, with retraction and degenerative arthropathy of the acromioclavicular joints, BCTS and aggravation of degenerative changes in the distal interphalangeal joints of the second and third fingers of both hands, aggravation of pre-existing changes of cervical spondylosis, degenerative disc disease of the lumbar spine, causing mechanical lumbar pain, and reactive anxiety and depression, which was ongoing.
134 Mr Brearley concluded the plaintiff’s twenty years’ employment with the defendant as the sole painter had significantly contributed to his various injuries. These had stabilised for practical purposes.
135 On re-examination in August 2016, the plaintiff advised his major problem was Carpal Tunnel Syndrome, about equal on both sides. He still had limitation of shoulder movements and continued to be depressed.
136 The plaintiff complained that every night, he had numbness and tingling in both hands and fingers. The fingers felt numb and he wore gloves when he went to bed. Symptoms were worsened by any activity which he might carry out during the day. He advised he would get a referral to St Vincent’s Hospital and be put on a waiting list for release surgery.
137 On examination, the plaintiff had early Dupuytren's contracture of both palms. Sensation was normal throughout the hands and movements of the wrist, and fingers were normal.
138 Mr Brearley considered the plaintiff’s twenty years of employment with the defendant as the sole painter had taken its toll on his general condition and had significantly contributed to problems in his right shoulder, neck, hand, lumbar spine, and psychological injury.
139 Mr Brearley thought the plaintiff was no longer capable of returning to pre-injury employment as a painter and he did not have a current work capacity.
The Defendant’s medico-legal evidence
140 Dr Roy Karna, rheumatologist, first examined the plaintiff in 2014 and re-examined him in February 2016.
141 The plaintiff advised Dr Karna he would paint wall showcases and plinths, and would generally hold the paint tin in his left hand and use his dominant right hand to either use a brush or roller. There was some overhead use of arms required in the context of painting ceilings.
142 In that context, as far back as 2009, the plaintiff started to wake in the morning with tingling in his fingers. There was a progressive worsening of the situation in 2010, and he first sought medical advice in 2011.
143 Following examination, Dr Karna conceded the notion the plaintiff, clinically, had features of BCTS, but believed that was constitutional and not related to his work.
144 The plaintiff had bilateral disease, worse on the non-dominant left hand, and Dr Karna did not believe that the biomechanical stresses involved with the painting, using brushes, rollers and holding paint tins, could be considered to have caused, aggravated, accelerated or even exacerbated the symptomatology relating to Carpal Tunnel Syndrome.
145 Dr Karna thought the plaintiff’s osteoarthritis was not work related and that it was by and large asymptomatic and not requiring any treatment. He was unconvinced, in absolute medical terms, the plaintiff required surgical decompression of his Carpal Tunnel Syndrome as his symptoms were tolerable and, indeed, better since using nocturnal splints. There was no evidence of muscle wasting.
146 After that first examination, Dr Karna concluded the plaintiff had BCTS symptomatology, albeit mild, which apparently had been neuro-physiologically confirmed. He had asymptomatic Heberden’s nodes in his hands, consistent with osteoarthritis.
147 Dr Karna noted the plaintiff’s employment duties involved him painting any one of three museums during exhibitions, as well as doing maintenance painting in between. He would use rollers, paint brushes and fill defects in the wall. There was no use of vibratory machinery.
148 Dr Karna did not believe the BCTS, which was bilateral, affecting the non-dominant left more than the right, had ever been a work-related entity. He did not see the nature of the plaintiff’s work, holding paint tins and using brushes, notwithstanding the repetitive use of the hands, as being a significant biomechanical stress to induce, aggravate, accelerate or exacerbate BCTS. Equally, he did not be believe that the work the plaintiff did had any impact on his osteoarthritis, as the nodes generally occurred in a constitutional familial setting.
149 Dr Karna then thought the plaintiff was capable of suitable alternate employment, but noted, at sixty-three, with seemingly documented shoulder problems, unrestricted painting which may require overhead use of arms may be a problem. That said, if the plaintiff did not have his shoulder injury, Dr Karna believed he could do his pre-injury duties, as he did not see the painting work as being a biomechanical insult which would have had any impact on the Carpal Tunnel Syndrome or the arthritis.
150 Dr Karna thought surgery was reasonable and relevant for BCTS, but suggested that the symptoms were not to the point where surgery was indicated.
151 In his 216 report, Dr Karna noted that his view mirrored that of Mr Ireland, who thought the plaintiff’s work as a painter did not cause BCTS and, in view of the nature of the onset of the symptoms, it seemed improbable that work was a significant contributing factor.
152 On re-examination in February 2016, the plaintiff complained that his left hand continued to be worse than the right. He advised he had problems dropping things and admitted part of the reason for that was his osteoarthritis.
153 Dr Karna noted the plaintiff continued to present with features of BCTS, which he thought would require decompressive surgery, but confirmed his view that those lesions were constitutional.
154 Dr Karna did not think there was any undue abnormal illness behaviour or any significant psychogenic factors to the plaintiff’s presentation.
155 In terms of the plaintiff’s occupational restrictions, Dr Karna noted work which involved sustained forcible grip, coincident flexion extension of the wrists on a sustained ongoing basis, were likely to increase the plaintiff’s symptoms transiently, as would the use of vibratory machines.
156 Dr Karna noted, clearly, the superadded problems of osteoarthritis of the hands, in particular, do affect the plaintiff’s fine manipulative dexterity, but this, too, he believed, was a constitutional disease issue and not related to the plaintiff’s prior work or work places. He thought surgical decompression was required before any return to work was contemplated. He noted, however, he had no neurophysiological confirmation of any worsening of BCTS.
157 Mr Damian Ireland, hand surgeon, examined the plaintiff in April 2015.
158 Mr Ireland noted the plaintiff described an onset of symptoms affecting both hands in 2009. The plaintiff said that work, in fact, eased the pain and he was relatively symptom free at work when working as a painter. Symptoms deteriorated when he stopped work and returned home. Symptoms on the right followed the left approximately ten months later.
159 The plaintiff attributed these symptoms to his work as a painter employed by the defendant, claiming he had to hold a paint can in his left hand for six hours at a time, while painting with his right hand.
160 On examination, the plaintiff complained of symptoms affecting the left hand more severely than the right. He described this as pins and needles extending into the middle and ring fingers and, to a lesser extent, the index and thumb. That was episodic and caused by excessive use of the left hands and eased by rest. He described diminished sensation in all fingers and complained of intense coldness in the hand during winter. He also complained of occasional elbow pain.
161 On examination of the right hand, there was mild Dupuytren’s deposits on the ulnar side of the palm, without any fixed flexion deformities. There were Heberden’s nodes at the distal finger joints, indicative of osteoarthritis. There were similar deposits on the left hand and nodes indicative of osteoarthritis.
162 Mr Ireland diagnosed BCTS and thought the prognosis for any further improvement was poor. He noted the plaintiff’s condition had not stabilised, as the plaintiff intended to undergo surgical treatment if WorkCover gave approval.
163 Notwithstanding the fact the plaintiff intends to undergo surgical treatment, Mr Ireland thought that the residual permanent impairment would change little, if any, following that procedure.
164 Mr Ireland noted there was mild sensory neurological dysfunction in the median nerve distribution of the right hand, and there was minor restriction of motion due to osteoarthritis at the distal joints of the fingers, but that was unrelated to carpal tunnel and was not work related.
165 In Mr Ireland’s opinion, the plaintiff’s work as a painter did not cause BCTS and, in view of the nature of the onset of the symptoms, it seemed improbable that work was a significant contributing factor.
166 Dr Nigel Strauss, psychiatrist, examined the plaintiff in August 2014. This report was directed to the plaintiff’s bullying and harassment psychiatric complaints.
167 Dr Strauss thought the plaintiff had continued to suffer from some anxiety and depression over the last few years because he lost his relationship, and because Dr Strauss suspected he had significant problems with alcohol.
168 Dr Strauss diagnosed a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood and a Substance Abuse Disorder.
169 Dr Strauss believed the plaintiff was probably totally and permanently incapacitated, and he did not believe his work with the defendant, from a psychiatric perspective, was contributing to his incapacity.
170 Dr Ian Dickinson, orthopaedic surgeon, examined the plaintiff in June 2014. As his examination focused on the plaintiff’s spinal complaints of that time, it is of limited assistance in terms of the present application.
171 On examination, the plaintiff complained to Dr Dickinson of pain in the middle of the lower part of the neck, and the middle of the lower back. He had pain in both shoulders, worse on the right.
172 Dr Dickinson believed that the plaintiff had age-related changes in these areas and there was no medical condition related to work. He thought the plaintiff would need to find work which was largely restricted in terms of lifting and also overhead work.
Disability support pension
173 Dr Kouzmin provided a report for Centrelink in 2012.
174 In that report, Dr Kouzmin set out that “Condition 1” that had the most impact was coronary artery disease. “Condition 2” was described as orthopaedic, involving cervical and lumbosacral disc degeneration, disruption of both rotator cuffs, severe BCTS, longstanding osteoarthritis of hands and urinary symptoms.
175 Dr Kouzmin described current symptoms as pain all over the body despite medication, difficulty standing for 10 to 20 minutes, sitting, bending, lifting and handling objects. She noted there was overuse of the body over forty-three years of heavy work as a painter. The prognosis was uncertain, depending on treatment.
176 Dr Tipirneni provided a medical report for Centrelink in November 2013.
177 In that report, Major Depressive Disorder diagnosed in 2011 and currently severe depressive episode was described as the condition with most impact. Dr Tipirneni considered this condition was likely to impact on the plaintiff’s ability to function for in excess of 24 months.
178 “Condition 2” was alcohol dependence which commenced in 2010. Other medical conditions that were generally well managed and caused minimal or limited impact to functioning were severe coronary artery disease and sleep apnoea.
Overview
Causation
179 Counsel for the plaintiff submitted there was a causal relationship between the plaintiff’s painting duties and his BCTS. There has been a payment in respect of both statutory benefits and pursuant to s98C.[57]
[57]T53; settlement of weekly payments after a denial of liability
180 By letter dated 15 April 2015, XChanging advised the plaintiff that liability had been accepted for his BCTS. In that correspondence, it was noted that the plaintiff had been examined by Mr Damien Ireland on 8 April 2015, who found a 7 per cent whole person impairment.
181 This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd & Anor v Taylor,[58] such admission should ordinarily be regarded as very significant:
“… albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct.”
[58][2006] VSCA 171 at paragraph [40]
182 Counsel for the plaintiff relied on the acceptance of s98C as an admission as to the issue of causation (“the admission”).
183 However, in his report, Mr Ireland stated that the plaintiff’s work as a painter did not cause BCTS and, in view of the nature of the onset of the symptoms, it seemed improbable that work was a significant contributing factor.
184 Whilst conceding Mr Ireland’s view did not help the plaintiff, counsel for the plaintiff submitted it was “simply equivocal”.[59]
[59]T55
185 Although Mr Ireland did not say the plaintiff’s work aggravated the syndrome, it was submitted, as the plaintiff had been having specialist treatment from the first onset of symptoms in 2009 and, more particularly, in 2011, after which there were consistent complaints, “it is open perhaps and very much a perhaps” that there was an aggravation by work.[60]
[60]T55
186 Further, Dr Seneviratne, treating neurologist, thought the plaintiff’s BCTS was likely related to the excessive amount of hand usage which was required in his job as a painter at the Museum.[61]
[61]T55 and T56-7
187 Reliance was also placed on the view of Dr Helen Kouzmin who considered the repetitive use of the hands, shoulders, neck and spine had contributed to a large degree to the plaintiff’s orthopaedic and neurological problems.[62]
[62]T58
188 Dr Kodithuwakku from the Medical Centre, in a report of 2014, also thought the injuries sustained to the plaintiff’s hands, BCTS, had been substantially contributed to by the nature of his work as a painter with extensive use of his hands over a prolonged period of time.
189 There is no affidavit evidence before the Court as to why the s98 application was accepted despite Mr Ireland’s view that the BCTS was not work related. It was simply indicated by counsel for the defendant that this claim was accepted following a settlement of the plaintiff’s weekly payments claim at the Magistrates’ Court.[63]
[63]T48
190 Despite the admission in the s98 application in somewhat unusual circumstances, it remains the plaintiff’s task to establish the issues in the case including whether he has suffered a compensable injury.[64]
[64]Ansett Australia Ltd & Anor v Taylor (supra) at paragraph [62]
191 As the Court explained in Ifka v Shahin Enterprises Pty Ltd,[65] questions of the extent to which the acceptance of liability to make a payment might constitute an admission as to the full nature or effect of an injury can be “problematic”.
[65](2014) VSCA 8 at paragraph [57]
192 Counsel for the defendant referred to the decision of the Court of Appeal in Bedeux v Transport Accident Commission[66] but did not address me in relation thereto.
[66][2016] VSCA 127
193 That case was an application pursuant to s93 of the Transport Accident Act involving a journey accident where the plaintiff was employed by Australia Post. It was held an admission by that employer could not constitute an admission by the defendant, unlike a case where the payment was made by the same authority. The Court held the admission of Australia Post was of no evidentiary value. It was an inexpert conclusion, by another organisation, for undisclosed reasons relating to that fact.[67]
[67](Supra) at paragraph [72]
194 In that case, the Court of Appeal explained Transport Accident Commission v Florrimell[68] as having “qualified the views expressed by Ashley JA [in Ansett v Taylor], concerning the weight to be accorded to the acceptance, by an authority, of a claim for statutory benefits, in a subsequent common law proceeding”.[69]
[68]Supra
[69]Bedeux v Transport Accident Commission (supra) at paragraph [71]
195 Counsel for the defendant submitted acceptance of the s98C application should not outweigh the evidence of Mr Ireland and also Dr Karna, who considered there is no causal connection between the plaintiff’s duties and his BCTS.[70]
[70]T49
196 It was also submitted that the medical evidence did not establish a causal link between the plaintiff’s work duties and his BCTS.
197 Dr Karna took the most detailed history of what the plaintiff’s duties involved whilst in the defendant’s employ and that history forms part of his path of reasoning leading to his conclusion there is no causal connection.[71] Noting the onset of symptoms and the bilateral nature of the syndrome, worse on the non-dominant left hand,[72] Dr Karna did not think the biomechanical stresses in the plaintiff’s painting work were such that they, in any significant or material way, would have contributed to his BCTS.
[71]T50
[72]Dr Symington’s nerve conduction study of November 2012
198 It was submitted, in contrast, in his report, Dr Seneviratne simply mentioned excessive hand use and had not done an analysis of the actual duties undertaken by the plaintiff.[73]
[73]T63
199 It was submitted Mr Brearley is not as qualified to give an opinion on hand issues as are Mr Ireland and Dr Karna, as he is a general surgeon and he has not really taken much of a history of the nature of the duties undertaken by the plaintiff.[74]
[74]T50
200 Taking into account all the evidence, I am not satisfied the plaintiff’s work duties are a cause of his BCTS.
201 I do not accept Mr Ireland’s view is in any way “equivocal” and it is unclear why the s98C claim was in fact accepted. Mr Ireland is the expert most qualified to express a view in this area, as he is a practising hand surgeon, and he did not consider the syndrome was work related.
202 Mr Brearley had no real details of the nature of duties undertaken by the plaintiff and simply accepted work caused the plaintiff’s BCTS and other physical problems.
203 Similarly, Dr Seviniratne did not analyse the nature of the plaintiff’s duties or explain how he found they were a cause of his BCTS. Dr Kodithuwakku largely repeated and adopted his view.
204 If it is accepted the plaintiff’s work duties are a cause of his present BCTS, I must consider whether any consequences thereof alone, at the present time, are “serious”.
Credit
205 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[75]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[75](2010) 31 VR 1 at paragraph [12]
206 It was conceded the plaintiff was a very honest, straightforward witness.[76]
[76]T52
Consequences
207 In addition to problems with BCTS, the plaintiff admits to suffering ongoing pain and restriction in his shoulders, neck and lower back.
208 In Peak Engineering & Anor v McKenzie,[77] Maxwell P described the difficulty faced when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury.
[77]Supra
209 In such circumstances:
“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ... at least very considerable’. For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”[78]
[78]At paragraph [1]
210 The President found that the judge was:
(a) bound to identify, and exclude, the continuing consequences for the plaintiff of other injuries (the knee injury); and
(b) when the consequences properly referable to the relevant injury were identified, identified them as “serious”.[79]
[79]At paragraph [2]
211 Counsel for the plaintiff submitted that the consequences relating to the BCTS alone, were serious, while counsel for the defendant submitted that the plaintiff had failed to successfully disentangle and thus not discharged the evidentiary onus.
212 Counsel for the defendant submitted that the plaintiff is unable to do a range of activities because of a combination of wrist, back, neck and shoulder pain. Further, the plaintiff has accepted that he would have difficulty with these activities even if he did not have a problems with his wrists.[80]
[80]T52
Pain
213 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[81]
[81](supra) at paragraph [11]
“… the evidentiary basis of the pain assessment will ordinarily comprise the following:
· (a) what the plaintiff says about the pain (both in court and to doctors);
·(b) what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
·(c) what the doctors say about the extent and intensity of the plaintiff’s pain; and
·(d) what the objective evidence shows about the disabling effect of the pain.”
214 Therefore, the Court must assess the intensity of the pain which the plaintiff experiences.
215 In my view, the plaintiff’s present wrist/hand pain is not of any real severity and he continues to suffer from a number of non work-related conditions which impact significantly on his ability to undertake a range of activities.
216 The plaintiff suffers from pins and needles in his hands and a sense of coldness, with such symptoms being aggravated by use.[82] These symptoms have reduced since he ceased work. Whilst initially his left wrist was most affected, both hands are now the same.
[82]T59
217 The plaintiff is woken during the night and in the morning with a feeling of bad numbness in his hands and needs to give them a shake to get them going.
218 Further, examination has not demonstrated major wrist dysfunction.
219 Whilst noting the plaintiff’s major complaint was BCTS (numbness and worsening of symptoms with activity), Mr Brearley, in August 2016, found sensation was normal throughout both hands, as were movements of the wrist and fingers.
220 Mr Ireland, in April 2015, noted the left symptoms were worse than the right, with episodic pins and needles caused by excessive use of the left hand. The plaintiff complained of diminished sensation in all fingers and feeling of intense coldness in winter.
221 On examination, Mr Ireland thought there was evidence of minor sensory dysfunction on the median nerve distribution of the right hand and that the minor restriction of finger movement was due to osteoarthritis.
222 I accept that the plaintiff has difficulty making a fist and has some weakness in both hands causing difficulty carrying things and opening tight jars, and he often drops things.[83]
[83]T59
223 The plaintiff’s description of pain in other areas of his body is more significant than that relating to his BCTS and affects a range of activities.
224 The plaintiff’s shoulders are still giving him quite significant problems and were investigated whilst he was still at work. Surgery has been suggested and he has undergone cortisone injections.[84] The plaintiff agreed his shoulders, alone, would prevent him working as a painter.[85] “In a sense”, he has got more pain in the shoulders lately than in his hands.[86]
[84]T14
[85]T36
[86]T39
225 Maybe, every month or so, the plaintiff feels that for two or three days that he can hardly move his neck either way and he has difficulty in this regard when driving.[87]
[87]T11
226 The plaintiff has severe back pain, once or twice a year, where he can hardly move. He regularly has back pain and has to look after himself and take things slowly.[88]
[88]T11
227 The plaintiff’s two affidavits make little reference to his ongoing significant psychiatric problems. This condition was described by his treating psychiatrist, Dr Tipirneni, in April last year as Major Depression, moderate to severe, in partial remission, alcohol dependence, in partial remission, and Chronic Pain Syndrome.
228 At that stage, the plaintiff was taking 100 milligrams of Pristiq; Mirtazapine, 15 milligrams at night, and Imovane, and continued to receive supportive psychotherapy and relapse and prevention strategies.
229 Dr Tipirneni considered the plaintiff’s psychiatric condition was one of the reasons he did not have any capacity for work as a painter in the foreseeable future and is unlikely to return to his pre-injury duties as a painter.
230 Whilst medical certification provided by Dr Kouzmin for the plaintiff’s disability support pension application in 2012 referred to severe BCTS, she then listed coronary artery disease as Condition 1. She described Condition 2 as orthopaedic, involving cervical and lumbosacral disc degeneration, disruption of both rotator cuffs, severe BCTS, longstanding osteoarthritis of the hands and urinary symptoms.
231 In his report for Centrelink of November 2013, Dr Tipirneni described Major Depressive Disorder and currently severe depressive episode as the condition with most impact. He considered this was likely to impact on the plaintiff’s ability to function for in excess of 24 months.
232 The plaintiff is not receiving any specific treatment for BCTS. Whilst surgery has been suggested, it seems it will really make little difference to his present symptoms in Mr Ireland’s view.[89]
[89]T61
233 This is not a case where the plaintiff regularly takes strong painkilling medication. He still takes Panadol Osteo and Nurofen about once or twice a week when the pain is really bad. He explained that he takes Panadol Osteo for his pains and Panadeine Forte mainly for his hands, noting he also has problems with both shoulders.[90]
[90]T10
234 Whilst It was submitted there were significant consequences which flowed specifically from the BCTS, lack of grip strength and moderate pain/numbness on activity appear to be the only consequences that can be solely attributed to the plaintiff’s wrist problems.
235 In my view, the plaintiff was not able to clearly distinguish between the pain and suffering consequences referable to his BCTS and those referable to his other orthopaedic and psychiatric conditions.[91]
[91]Peak Engineering Pty Ltd & Anor v McKenzie (supra) at paragraph [62]
236 Counsel for the plaintiff submitted that because of his wrist condition, the plaintiff cannot go back to painting. This is a pain and suffering consequence, in that the plaintiff is deprived of something he really enjoyed and would have done until he was seventy.[92]
[92]T61
237 However, I am not satisfied the plaintiff ceased work in 2012 because of his BCTS, nor am I satisfied that he has not returned to the job because of ongoing wrist problems.
238 There is no mention in the plaintiff’s affidavit as to why he ceased work, save that he appears to have been doing his normal painting duties, with some wrist problems when he was made redundant in November 2012. He did state however, had he not been retrenched, he would not have been able to continue work because of his ongoing wrist symptoms and resultant work restrictions.
239 There is no mention in the Medical Centre clinical notes of increasing wrist problems during 2012, with the focus of treatment during that period on the plaintiff’s mental problems relating to his harassment at work.
240 Mr Brearley noted on examination in 2014 that the plaintiff finally ceased work in September 2012 mainly because of harassment, but he was having much difficulty with his painting because of his “various symptoms” (noting BCTS back and neck pain from 2004 and pain in both shoulders, worse on the right).
241 As the plaintiff agreed, he would have problems with his other physical conditions in carrying out his work. He agreed his shoulders alone would prevent him working as a painter.[93] He would have back pain if he was moving anything.[94]
[93]T36
[94]T17
242 Albeit the only practitioner who expressed this view, if the plaintiff did not have his shoulder injury, Dr Karna believed he could do his pre-injury duties, as he did not see the painting work as being a biomechanical insult which would have had any impact on the plaintiff’s BCTS or the arthritis.
243 Counsel for the plaintiff submitted the plaintiff’s first affidavit set out a range of consequences attributable to the BCTS;[95] however, the plaintiff’s back, neck and shoulder conditions cause him difficulty engaging in these activities.
[95]T59
244 Whilst it was claimed the plaintiff put on weight due to his inactivity resulting from his BCTS, this is not explained.
245 The plaintiff’s sleep is affected by his wrist numbness and shoulder pain. The clinical notes from the Medical Centre indicate the plaintiff had longstanding problems with sleep associated with his depression, and Dr Tipirneni noted the plaintiff suffered from sleep apnea.
246 The plaintiff’s inability to water ski is caused by his range of physical complaints.
247 Whilst difficulties were described with camping, the plaintiff had not done any significant camping for many years, last going when he was married. He still enjoys camping on a limited basis with his grandchildren on his property. His ability to undertake related tasks is affected by all his physical complaints.
248 I accept that that motorbike riding is clearly something that is very demanding of the use of both wrists and the ability to grip;[96] however, the plaintiff conceded one of the key reasons he cannot ride any more is his shoulder problem.
[96]T60
249 The plaintiff’s neck, back and shoulder conditions also affect his ability to perform household tasks and home maintenance and undertake gardening and mowing activities. This is also the case with the plaintiff’s ability to interact with his young grandchildren. The plaintiff’s swimming is also limited because of his shoulder problem.
250 Whilst after driving a long distance the plaintiff’s wrists start to feel numb, a long drive is not good for his neck, his hands or his back, as he cannot sit for more than three hours.[97]
[97]T17
251 In my view, the consequences of any wrist impairment that can be isolated from the plaintiff’s other physical complaints are moderate by comparison with the consequences of other cases in the range of possible impairments.
252 Taking into account all the evidence, I am not satisfied any impairment resulting from the BCTS is “serious”.
253 Accordingly, the application is dismissed.
- - -
2
8
0