Taranto v Art Stretchers Co Pty Ltd
[2018] VCC 1835
•15 November 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-18-01348
| ANGELA TARANTO | Plaintiff |
| v | |
| ART STRETCHERS CO PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 October 2018 | |
DATE OF JUDGMENT: | 15 November 2018 | |
CASE MAY BE CITED AS: | Taranto v Art Stretchers Co Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1835 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to right hand – causation – permanency – consequences “very considerable”
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Ansett v Taylor [2006] VSCA 171; Sednaoui v Amac Corrosion Protection Pty Ltd [2017] VSCA 66; Fokas v Staff Australia Pty Ltd [2013] VSCA 230; Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622; Humphries v Poljak [1992] 2 VR 129; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 (2003) 77 ALJR 1165; Petrovic v Victorian WorkCover Authority [2018] VSCA 243; Dwyer v Calco Timber (No 2) [2008] VSCA 260; Stijepic v One Force Group Australia Pty Ltd & Anor [2009] VSCA 181; Carbone v Toyota Motor Corporation Australia Ltd [2017] VSCA 249.
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell QC with Mr R Paoletti | Slater & Gordon |
| For the Defendant | Ms C Spitaleri | Lander & Rogers |
HER HONOUR:
Preliminary
1 Ms Taranto is a 50 year-old lady who claims to have suffered an injury to her right hand, whilst typing orders and conducting invoicing on a computer during the course of her employment with the defendant. Ms Taranto claims that she has suffered serious pain and suffering consequences as a result of this upper limb impairment.
2 In order for Ms Taranto to be entitled to claim common law damages, she must satisfy me that she suffered this right-hand impairment as a consequence of her employment, that her employment continues to be a cause of her right upper limb impairment, that such impairment is permanent, and that it satisfies paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Accident Compensation Act 1985 (“ACA”).
3 The defendant disputes that Ms Taranto suffered this injury during the course of her employment with the defendant, and submits in the alternative, that any such employment has ceased to be a cause of any ongoing impairment in her right hand. Further, the defendant disputes that such an impairment is permanent or that the consequences can be described as at least “very considerable”.
4 Only Ms Taranto was called to give evidence, and she was cross-examined. Also in evidence were medical reports and other material. I have read these tendered documents together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in this judgment.
5 For the reasons which follow, I am satisfied that Ms Taranto suffered her right-hand injury during the course of her employment with the defendant and that her employment continues to be a cause of her ongoing right hand injury. I am also satisfied that her impairment is permanent. I am not satisfied, however, that the consequences to Ms Taranto can be described as “at least very considerable”.
Ms Taranto’s life before the workplace incident
6 Ms Taranto completed Year 11 at high school, following which she worked for various employers in clerical and administrative roles.
7 In approximately May 2002, Ms Taranto commenced working for the defendant in customer service. She resigned from such employment in October 2003, and worked elsewhere for a short period of time, before subsequently returning to work for the defendant in September or October 2004.
8 Ms Taranto said that prior to suffering her right-hand injury the subject of this claim, she enjoyed cooking “big Italian meals”. There is otherwise very little detail in the tendered material as to how Ms Taranto spent her time away from her employment.
9 Unrelated to her hand injury, Ms Taranto had been the victim of domestic violence by her now deceased husband. On 10 March 2016, Ms Taranto said that she had an argument with her late husband, and that whilst he did not physically assault her on this occasion, she felt sufficiently threatened that she left the family home. On 19 March 2016, Ms Taranto said that her husband threatened her with a knife and that on 24 March 2016, he grabbed her by the throat causing her to fall from the bed to the floor. Ms Taranto denied having landed on her hands in this incident. She subsequently took out an intervention order against her late husband.
10 Ms Taranto’s husband passed away in August 2016. She now lives with her mother, her brother and her brother’s foster child, who is three years of age.
Ms Taranto’s right-hand injury
11 In approximately September or October 2004, Ms Taranto resumed full-time employment with the defendant, working in customer service. She said that her duties involved answering telephone calls, processing orders, invoicing and performing various other administrative tasks. She estimated that she spent about 80 per cent of her day on the computer using the keyboard. In her first affidavit sworn 27 November 2017, Ms Taranto stated that, on 16 March 2016, she woke up and her “right hand was in pain”. She subsequently attended her local medical practice, The Niddrie Clinic, where she consulted general practitioner, Dr Rania Alamudi.
12 The clinical note from this attendance reads as follows:
“patient felt pain in her right wrist on sunday but no obvious injury, she started to feeling it after she work up. She has used aspro to help her with the pain, she mentioned that her job picking up her phone and typing and computer, she is now using compression wrist.”
(sic)
13 On examination, Dr Alamudi noted tenderness in the distal radial bone and limitation in the inversion of the wrist, with clicking, but no deformity in the wrist. Dr Alamudi diagnosed Ms Taranto as suffering a right wrist sprain and arranged for an ultrasound to be performed. She also recommended rest, a heat pack, compression and elevation, and provided a medical certificate for the period 16 March 2016 to 21 March 2016.
14 The ultrasound taken that day was reported as demonstrating right extensor carpi ulnaris tenosynovitis.
15 On 21 March 2016, Ms Taranto again consulted Dr Alamudi, who noted that there had been some improvement following rest and the use of compression on her wrist. At that time, Dr Alamudi recommended that Ms Taranto be placed on light duties from 22 March 2016 until 29 March 2016, due to her wrist problems. In her medical report dated 21 March 2016, Dr Alamudi stated, “as her condition is improving then she can start slowly doing her regular tasks”.
16 Ms Taranto said that she then continued to work with the defendant on full duties, but that her right hand was “in a lot of pain” and that she had to use her left hand wherever possible. Ms Taranto said that she also bought a brace at that time to support her right wrist.
17 At about this time, Ms Taranto also commenced obtaining acupuncture treatment from Dr Alamudi, which she thereafter received on a weekly basis.
18 On or about 29 April 2016, Ms Taranto underwent gynaecological surgery, from which she took about three weeks to recover. She said that she did not subsequently return to work for the defendant, as she believed that her duties would continue to aggravate her right wrist injury.
19 In July 2016, Ms Taranto was referred to physiotherapist, Mr Nando Giovannucci, who noted that Ms Taranto complained of bilateral forearm pain at her first consultation, with her right being worse than her left. On examination, he noted resisted active movement of the wrist extensors, and mild to moderate hypertonicity of the right and left extensor carpi longus on palpation, and tenderness over the left flexor carpi ulnaris.
20 Mr Giovannucci considered Ms Taranto’s employment to be a direct cause of a repetitive strain injury in her bilateral forearms and recommended that she be treated with electrotherapy, laser and a mobilising and strengthening exercise program.
21 On 4 August 2016, Mr Giovannucci reported to Dr Alamudi that Ms Taranto’s progress had been excellent and that she had a full range of pain-free functional mobility. He discharged her from his care at this time.
22 On 12 September 2016, Ms Taranto returned to Mr Giovannucci, complaining of a gradual onset of right and left forearm pain following the cessation of her physiotherapy treatment in early August 2016. At that time, it was noted that she was receiving acupuncture treatment from her general practitioner.
23 In a letter to the Accident Compensation Conciliation Service, dated 9 February 2017, Mr Giovannucci stated that he was continuing to provide Ms Taranto with ongoing physiotherapy treatment as it assisted her in maintaining her health and her ability to undertake necessary activities of daily living.
24 Ms Taranto last consulted Mr Giovannucci on 25 September 2017.
25 During this same period of time, Ms Taranto also obtained treatment from physiotherapist, Wei Yang Liu, at the same physiotherapy clinic as Mr Giovannucci. In his report to the Accident Compensation Conciliation Service dated 16 December 2016, following an examination on 7 July 2016, Mr Liu noted mild to moderate hypertonicity of the right and left extensor carpi radialis longus on palpation. This finding appears to be identical to that contained within the report of Mr Giovannucci, and it is not apparent from either report which physiotherapist conducted the examination on 7 July 2016.
26 Mr Liu diagnosed Ms Taranto as suffering right extensor carpi ulnaris tenosynovitis, which he attributed to computer tasks that she had performed during the course of her employment with the defendant.
27 In approximately April 2016, Ms Taranto was referred to psychologist, Ms Kaylene Evers, in relation to her psychological upset. Ms Taranto said that she was feeling psychologically stressed by her pain and the return-to-work process. Ms Taranto continued to receive such psychological treatment until approximately mid-2017.
28 Ms Taranto said that she had continued to regularly consult Dr Alamudi for acupuncture treatment, until her care was transferred to general practitioner, Dr Stanley Chiang, at the Northcote and Thornbury Medical Centre in late 2016. Ms Taranto said that she has continued to obtain acupuncture treatment from Dr Chiang. I note, however, that in her most recent affidavit, Ms Taranto stated that such treatment was provided by Dr Alamudi.
29 In a report dated 19 February 2017, Dr Chiang confirmed that he had treated Ms Taranto, and that she had a past history of “work-related right hand injury as well as allegedly workplace bullying”. Dr Chiang stated that Ms Taranto continued to suffer from those conditions and said that “postoperatively she doesn't seem to be much better”. I am uncertain as to the basis of this comment, in circumstances where Ms Taranto has not undergone surgery in relation to her right hand injury.
30 In his most recent report dated 30 September 2018, Dr Chiang described Ms Taranto as suffering a right hand injury with “soft-tissue/ligamentous strain and bullying”. Dr Chiang considered Ms Taranto’s prognosis to be fair, and unlikely to further deteriorate, provided she continued to receive conservative treatment, such as medical acupuncture. He concluded his report by stating that Ms Taranto still had ongoing pain that was not as severe as it had been previously.
31 In her first affidavit sworn 27 November 2017, Ms Taranto said that she tried not to take medication for her pain, and instead used Voltaren gel on her right hand and wrist. In her subsequent affidavit sworn 8 October 2018, Ms Taranto said that she “continues” to take Voltaren “almost every day” and usually takes two pills, twice per day. She said that she now rubs Fisiocrem into her wrists and forearms every night.
32 On 23 August 2018, Ms Taranto underwent a further right wrist ultrasound. The flexor and extensor tendons of the wrist were noted as being unremarkable, with no suggestion of tendinosis or tenosynovitis.
33 Ms Taranto said that she continues to experience an ongoing, regular, aching pain in her right wrist and hand, which extends into her right forearm. She said that her right hand and wrist feel a lot weaker than they did prior to suffering her injury. She said that she often wears a brace on her right wrist to help support and protect it.
34 Ms Taranto said that as she is overly reliant on her left hand to compensate for her right sided pain, she also has pain in her left forearm. However, Ms Taranto said that her left sided pain is not as bad as her right sided pain.
35 Ms Taranto said that she experiences pain in her right hand, wrist and forearm and left forearm when she grips things, and that she has difficulty performing tasks such as opening a jar. As a result, she said that her brother assists her with such tasks.
36 Ms Taranto said that she is able to drive a car, but that she experiences some symptoms in her right hand, wrist and forearm and left forearm if she has been holding the steering wheel for a while. She said that she tries to avoid driving long distances where possible.
37 Ms Taranto said that she is limited in her ability to cook due to the symptoms in her right hand, wrist and forearm and left forearm. She said that her mother now does most of the cooking, particularly the harder tasks like chopping vegetables and lifting pots and pans. I note that in her oral evidence, Ms Taranto initially stated that she no longer cooks at all, before later stating that she does cook a little.
38 Ms Taranto said that her mother does most of the household tasks, but that she is able to help with simple tasks such as small loads of washing. She said that her mother now does most of the vacuuming, as she finds that holding a vacuum cleaner with either of her hands causes her an increase in pain.
39 Ms Taranto said that she finds it painful to lift heavy objects in her right hand, such that she now tends to lift things in her left hand. She said that she can still go shopping with her mother and that she uses a trolley to minimise the length of time that she has to hold things.
40 Ms Taranto said that some of her personal care tasks, such as blow drying her hair, remain difficult due to the symptoms in her right hand.
41 Ms Taranto said that she finds it difficult to type on a keyboard and that she can now only send a few small emails, as she struggles to work on a computer for any longer period of time.
42 Ms Taranto also said that she has difficulty sleeping due to the symptoms in her right hand, wrist and forearm and left forearm. She said that she has had some improvement in her sleep in recent times, but that she continues to wake up if she rolls onto her right arm. She said that she often feels sleepy during the day as a result.
43 Ms Taranto said that she has travelled overseas on three occasions in the last three years. She said that she can sometimes lift her medium-sized suitcase, but has also been assisted by people who can see that she is wearing a brace. She stated that she was “restricted in the activities” she could undertake on her holidays, and that she mostly tried to relax and enjoy the warm weather and atmosphere.
44 Ms Taranto said that she has not returned to work since ceasing her employment with the defendant. She initially said that she had not applied for any jobs, however, when clinical records from Dr Evers were put to her in cross-examination, she admitted that she had applied for several jobs, and had gone for an interview in February 2007, for a reception and administration role with a construction company. She also later admitted that she had given her résumé to Zamel’s Jewellery and had also commenced a travel and tourism course.
45 In re-examination, at Mr Mighell’s request, I visually inspected Ms Taranto’s right and left hands at close range. I could not see or detect any difference in the right hand as compared to the left hand.
46 In support of her application, Ms Taranto also relied upon an affidavit sworn by her brother, Mr Joseph Taranto. Mr Taranto stated that he has observed that his sister has been restricted since suffering her right wrist injury. He stated that he has regularly seen her take pain medication in the form of pills and creams and has observed her wearing a brace on her right wrist. Since suffering her injury, he stated that she no longer does much of the cooking, and now tends to do the small and easy tasks, but generally does not do that much. Mr Taranto also stated that he and his mother do most of the housework, and that sometimes he has to blow dry Ms Taranto’s hair.
47 Mr Taranto stated that his sister sometimes comes shopping with him and his mother, but that she does not handle the shopping very much. He assists her in putting heavy items into the trolley.
Medico-legal evidence
48 Ms Taranto’s solicitors arranged for her to be examined by pain specialist, Dr Peter Blombery, in September 2018. In his report dated 25 September 2018, Dr Blombery obtained a history from Ms Taranto that, throughout the time she had worked with the defendant, she had “occasional discomfort” in her right hand over the years, but that it would generally resolve when she rested for five minutes. He then noted that she began to develop permanent symptoms of pain in her right hand on 16 March 2016, when she woke with pain and had difficulty moving her hand. It was noted that she had experienced pain in her right hand ever since.
49 Dr Blombery then noted that the treatment Ms Taranto had received for her hand included weekly acupuncture and a wrist brace.
50 On examination, Dr Blombery considered Ms Taranto’s right hand to be four degrees cooler than the left, despite wearing a brace beforehand. He also noted a bluish-red discolouration of the fingers of the right hand. Dr Blombery noted tenderness over the mix extensors in the forearm and a little over the extensor carpi ulnaris muscle belly in the forearm, as well as tenderness over the flexor carpi ulnaris distal belly, where Ms Taranto had complained of pain. He noted a normal range of movement in the wrist and elbow.
51 Dr Blombery noted the recent ultrasound report, which showed that the extensor tenosynovitis had resolved. In conclusion, Dr Blombery stated that he considered Ms Taranto had suffered previous extensor tenosynovitis of the extensor carpi ulnaris tendon, which was complicated by a pain syndrome, with a component of Complex Regional Pain Syndrome Type 1. He considered there to be an organic basis to her injury and considered there had been a sensitisation of her pain nerve pathway. Dr Blombery stated that there had also been some soft tissue injuries affecting the muscles of her right forearm, which had amplified her pain pathway sensitisation.
52 Dr Blombery recommended that appropriate treatment could involve neuropathic pain treatment, with medications such as Gabapentin or Endep, as well as a trial of pain management. Dr Blombery considered that Ms Taranto’s injuries had “essentially stabilised”, in circumstances where the symptoms had been present for almost two-and-a-half years. He did, however, express some hope that she may improve with appropriate treatment, such that she would be fit for restricted work.
53 Ms Taranto’s solicitors also arranged for her to be examined by plastic surgeon, Mr Felix Behan, in October 2018. In his report dated 2 October 2018, Mr Behan noted that Ms Taranto’s pain and dysfunction had begun in approximately March 2016. He also noted that she had suffered her injury while “making picture frames and stretching the canvas”. I am uncertain as to the basis of this history, as there is no evidence that Ms Taranto ever performed such duties.
54 Mr Behan examined Ms Taranto and noted that, upon an examination of her right hand (and when compared to her unaffected left side), there was a lack of definition of the extensor tendons and an oedema of the right side, which he considered to be reflective of tenosynovitis. He also noted severe tenderness proximal to the right radial head, which he considered to be an indicator of possible underlying tenosynovitis.
55 Mr Behan noted that the ultrasound of August 2018 showed no significant abnormality, but was of the opinion, given his clinical findings, and in particular the persistent oedema, that Ms Taranto was still suffering from tenosynovitis in her right wrist.
56 Mr Behan was of the opinion that Ms Taranto may benefit from a rheumatological assessment and in particular, possible treatment with splintage and steroids.
57 The defendant arranged for Ms Taranto to be examined by plastic and reconstructive surgeon, Mr Darrell Nam, on two occasions in October 2016 and August 2018. In his first report dated 19 October 2016, Mr Nam obtained a history from Ms Taranto that she had developed pain in her right hand in March 2016, and that such pain was associated with her work. He noted that Ms Taranto had stated that she mostly performed typing and data entry with her right hand. It was noted that her hand had become swollen and that she had obtained physiotherapy treatment as well as acupuncture.
58 Mr Nam noted that Ms Taranto complained of pain in her right hand that developed around the base of her thumb and radiated up her forearm and over the extensor muscles of her forearm. On examination, Mr Nam considered there to be a full range of movement in Ms Taranto’s fingers, thumb and wrist with no altered sensation.
59 Mr Nam stated that Ms Taranto’s employment “must have been some cause for aggravation or development of this condition” if the injury had arisen at work. However, as there was no definitive diagnosis in relation to her condition, Mr Nam said that he could not confirm Ms Taranto’s condition as being related to her employment.
60 In a supplementary report dated 28 October 2016, Mr Nam considered the ultrasound report dated 16 March 2016. From his records, he then noted that Ms Taranto’s complaints had all been related to the radial side of her hand and did not include any discomfort and pain on the ulna side of her wrist. He therefore considered this ultrasound report to be anomalous and was of the opinion that her initial condition had healed.
61 Mr Nam considered the pathology of the tenosynovitis to have healed and resolved by the time of his examination of Ms Taranto in October 2016, and did not consider her employment to be a factor in the pain symptoms she experienced on the radial side of her hand.
62 I note, however, that her affidavits and her complaints of pain to both her general practitioner and her physiotherapist at about this time, were not limited to the radial side. Their reports indicate that she complained of pain in her hand, wrist and forearm. In such circumstances, I therefore have reservations as to Mr Nam’s opinion in this matter.
63 In his most recent report dated 5 September 2018, Mr Nam detailed his findings following an examination of Ms Taranto on 29 August 2018. At this time, Mr Nam noted that Ms Taranto was still complaining of “intermittent pain and discomfort” in her right forearm, dorsum or wrist, as well as weakness in her hand. On this occasion, he noted that Ms Taranto complained of pain in the extensor carpi ulnaris tendon, but stated that she had not complained about such pain at her previous examination.
64 On examination, Mr Nam did not consider Ms Taranto’s right wrist to exhibit any swelling, and was satisfied that she could move her wrist in all directions, without restriction. He was of the opinion that Ms Taranto no longer suffered from the tenosynovitis which had been diagnosed in March 2016, and considered her prognosis to be good.
Ms Taranto’s credibility and reliability as a witness
65 Ms Spitaleri submitted that Ms Taranto was a witness of poor credit, who had “lied” in relation to several matters. In response, Mr Mighell submitted that Ms Taranto was a witness of credit, whose memory was simply unreliable at times.
66 I am of the opinion that Ms Taranto gave inconsistent answers on multiple occasions throughout the course of her oral evidence. The following are examples to which I attach some significance.
- Ms Taranto initially denied having looked for jobs after ceasing work with the defendant. However, when the contents of contemporaneous medical records from Dr Evers dated 11 May 2016 and 11 February 2017, both of which referred to subsequent job applications, were put to Ms Taranto, she then accepted that she had applied for some jobs.
- Ms Taranto initially denied having ever attended a job interview subsequent to her ceasing employment with the defendant. However, when the contents of contemporaneous medical records from Dr Evers dated 15 February 2017 were put to Ms Taranto, she then accepted that she had been interviewed for a job as a receptionist/administrator.
- Ms Taranto initially denied having undertaken a training course after ceasing her employment with the defendant. However, when the contents of contemporaneous medical records from Dr Evers dated 17 July 2017 were put to Ms Taranto, she then accepted that she had commenced a training course with Flight Centre, which she ceased after three days due to an unrelated health complaint.
- Ms Taranto initially denied having applied for any jobs, other than those of an administrative nature. However, when she was asked specifically whether or not she had applied for a job at Zamel’s, Ms Taranto then conceded that she had, but said, “that was ages ago”, before agreeing that it was last year.
- Ms Taranto initially denied that her husband had been violent towards her, before subsequently stating that he had been violent on only one occasion. When specific dates were then put to her, Ms Taranto accepted that her husband had threatened her with a knife on one occasion, as well as grabbing her by the throat on another.
- Ms Taranto confirmed as accurate part of a history taken by medico-legal psychiatrist, Dr Grant, on 16 August 2018 that she had “significant financial difficulties”. However, upon direct questioning, Ms Taranto conceded that she had sold two properties since August 2016 – from which she had made $65,000 after discharge of the mortgage on the first property, and $36,000 on the sale of the second property. She also stated that she had obtained a superannuation benefit from her husband’s estate in the sum of approximately $175,000. Ms Taranto now lives with her mother. Such evidence appears somewhat inconsistent with her initial assertion that she was experiencing significant financial difficulties.
67 On each of these occasions, Ms Taranto was initially certain about her evidence, and denied the matter which was put to her. However, when contrary evidence was subsequently presented, Ms Taranto then retracted her prior evidence, and accepted the alternate position.
68 In addition, I also consider there to be inconsistencies between Ms Taranto’s affidavits and her oral evidence. Most significantly, during her evidence-in-chief, Ms Taranto said that she had suffered some right hand pain for approximately one year prior to March 2016. Such pain was not referred to, however, in either of her affidavits, or her compensation claim form, nor was such a history provided to any of the medico-legal or treating medical practitioners.
69 Ms Taranto was cross-examined as to the reasons for which she did not provide this 12 month history of right hand pain to Dr Alamudi at her consultation on 16 March 2016. Ms Taranto sought to explain her failure to do so on the basis that Dr Alamudi was not her usual general practitioner. I found this to be an unconvincing answer, particularly in circumstances where Dr Alamudi took relatively detailed notes of this consultation. I consider these notes to demonstrate a high level of care and enquiry on the part of Dr Alamudi, and am of the opinion that Ms Taranto was most likely afforded the opportunity to provide a full history.
70 Ms Taranto’s oral evidence in relation to her ability to cook is a further example of the inconsistencies that exist in her evidence. In her most recent affidavit, sworn less than two weeks prior to the hearing, Ms Taranto stated:
“I remain limited in my ability to cook now due to the symptoms in my right hand, wrist and forearm and left forearm. My mother still does most of the cooking.”
71 In her oral evidence, however, Ms Taranto said the following:
Q: “And you can still cook?
A: Well, I don't at the moment. No, I don't.
Q: In your affidavit, this is your second affidavit -
A: Occasionally but I don't do it on a regular daily basis. My mum does the majority of the cooking.
Q: You don't say you don't do any cooking at all, you just say: "I remain limited in my ability to cook"?
A: That's right.
Q: But you can still cook?
A: I suppose I could but I don't.”
72 There is a difference between no cooking and limited cooking, and I consider Ms Taranto’s evidence in relation to the extent to which she cooks, or does not cook in the kitchen, to be vague and uncertain.
73 Whether or not Ms Taranto intentionally sought to mislead the Court, or was simply being cavalier in her evidence, the multitude of inconsistencies caused me to have significant reservations as to the reliability of her evidence.
Did Ms Taranto injure her right hand during the course of her employment with the Defendant?
74 Ms Taranto described the general nature of her work duties in significant detail in her first affidavit. I note that the defendant did not file any affidavit material rebutting any of the propositions in response. Instead, Ms Spitaleri cross-examined Ms Taranto as to the amount of time she spent on the computer at work. Notwithstanding my general reservations as to Ms Taranto’s reliability, I considered her oral and written evidence, and the histories she gave to the medical doctors as to her work duties to be relatively consistent. I accept Ms Taranto’s estimation that she spent about 80 per cent of her time on the computer.
75 Ms Taranto claimed that, for about one year prior to March 2016, she suffered right wrist pain after long periods of typing. Given my reservations as to her reliability, however, and the absence of any recorded medical history corroborating this aspect of her evidence, I am not satisfied that Ms Taranto suffered pain or symptoms during this period.
76 Ms Taranto’s first consultation with a medical practitioner in relation to this right wrist pain was with Dr Alamudi on 16 March 2013. In her records, Dr Alamudi stated that there was no obvious injury and that Ms Taranto had experienced the pain upon waking on the Sunday morning. However, Dr Alamudi referred to Ms Taranto’s job, which involved picking up the phone and typing on the computer. In a letter dated 21 March 2016, Dr Alamudi stated that, as her condition was starting to improve, she could slowly start to perform regular tasks.
77 Mr Giovannucci and Mr Liu both expressly attributed Ms Taranto’s right wrist pain to her work duties.
78 Dr Blombery considered the nature of Ms Taranto’s duties to be a contributing factor to her injury.
79 Mr Nam initially stated that Ms Taranto’s work may have aggravated her right radial wrist condition, however, in circumstances where he had no verification as to the nature of her duties and where there was no definitive diagnosis, he was equivocal as to the extent of the causal relationship.
80 I note that Mr Behan was of the opinion that Ms Taranto suffered her injury whilst stretching fabric on art frames, and am not therefore assisted by his opinion.
81 I note that the defendant accepted Ms Taranto’s workers’ compensation claim and that she was paid medical expenses and weekly payments for a period of time.
82 In the Court of Appeal decision of Ansett v Taylor,[1] it was noted that the acceptance of liability under the statutory scheme should be considered a “very significant”[2] admission, yet not conclusive, nor an estoppel.
[1][2006] VSCA 171
[2](Supra) at [36]
83The principle in Ansett v Taylor was recently considered in Sednaoui v Amac Corrosion Protection Pty Ltd,[3] in which the Court of Appeal observed that, whilst such an admission should ordinarily be treated as significant, it is an observation only and not a statement of legal principle.[4]
[3][2017] VSCA 66
[4](Supra) at [67]
84Where the defendant seeks to challenge the significance of an insurer’s previous acceptance of liability, the defendant may call evidence as to the basis of its earlier decisions and the reasons for which those decisions should not be used as an admission.[5]
[5]Fokas v Staff Australia Pty Ltd [2013] VSCA 230 at [38]
85 The defendant did not tender any evidence to rebut or explain why such an admission should not have been made by the statutory authority. Although this is not determinative of the causation issue, it is of some influence, and I consider it to be consistent with the abovementioned medical evidence.
86 In considering the whole of the evidence, I am satisfied that Ms Taranto suffered a right hand injury due to the nature of the duties she performed for the defendant.
Does Ms Taranto’s right hand injury persist?
87 The defendant sought to further deny this claim on the basis that Ms Taranto’s right hand injury has now resolved. The defendant relied upon the ultrasound report of Ms Taranto’s right wrist taken in August 2018, which was reported as demonstrating no abnormality.
88 The defendant also relied upon Mr Nam’s opinion of September 2018, to the effect that Ms Taranto is no longer suffering from tenosynovitis and has recovered from her condition.
89 I gain little assistance from the reports of Ms Taranto’s general practitioners. Dr Alamudi’s report is outdated and Dr Chiang seemed confused about Ms Taranto having undergone surgery for her right hand injury.
90 I do note, however, that both Mr Giovannucci and Mr Liu refer to hypertonicity and swelling in 2016 and 2017. Whilst these are not current observations, they are observations which demonstrate that, at some point after Ms Taranto ceased work, she had persisting objective symptoms in her right hand.
91 I note that Dr Blombery recently noted temperature and colour discrepancies between Ms Taranto’s left and right hand. Mr Behan observed oedema. I accept that these are recent objective findings from both of these specialists, the significance of which is not negated by the absence of any such findings on the part of Mr Nam.
92 Having considered all of the evidence, I am satisfied that, notwithstanding the recent ultrasound report, Ms Taranto continues to suffer an organic condition in her right hand.
Is Ms Taranto’s right hand impairment permanent?
93 In order to satisfy the definition of ‘serious injury’, Ms Taranto’s impairment must be permanent. The test for permanence, is whether an injury will persist through the foreseeable future, and not merely into the future.[6]
[6]Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622 at [111]
94 The defendant emphasised that there are treatment options which have been recommended to Ms Taranto that she has not yet pursued. Such treatment included the Pain Management Program recommended by Dr Blombery, and possible cortisone injections foreshadowed by Mr Behan. Ms Taranto said that she will “do anything to help with [her] pain”.
95 Although Dr Blombery referred to such treatment leading to a possible improvement, I am not satisfied that a Pain Management Program, if undertaken, would result in a substantial improvement in Mrs Taranto’s physical injury. Further, as cortisone injections provide only temporary relief, I am also not satisfied that the possibility of such treatment detracts from the permanency of Ms Taranto’s injury. Therefore, I am satisfied that Mrs Taranto’s right hand impairment is permanent.
Pain and suffering consequences
96 I must now assess whether Ms Taranto’s right upper limb impairment has caused her to suffer consequences that are “more than significant or marked”, and “at least very considerable”.[7]
[7]Humphries v Poljak [1992] 2 VR 129
97 In the Court of Appeal decision of Haden Engineering Pty Ltd v McKinnon,[8] Maxwell P stated that, in assessing a plaintiff’s pain and suffering consequences, the court should have regard to what the plaintiff says about the pain; what the plaintiff does about the pain; what the doctors say about the extent and intensity of the pain; and what the objective evidence demonstrates about the disabling effects of the pain.
[8]Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69
98As I have stated previously, I have considerable reservations as to Ms Taranto’s reliability. However, her credibility was not sufficiently tainted to the extent that I should disregard the observations that her brother detailed in his affidavit. That is, despite numerous inconsistencies in her evidence, this is not a situation where the “well has been poisoned beyond redemption”.[9]
[9]Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 (2003) 77 ALJR 1165 at [49] applied in Petrovic v Victorian WorkCover Authority [2018] VSCA 243 at [78]
99 Ms Taranto is right hand dominant. I accept that her right hand pain affects her to some degree, on a regular basis, but not on a constant basis.
100 Ms Taranto has acupuncture treatment on a weekly basis for her right hand pain.
101I note that Ms Taranto wears a hand splint on a regular basis, despite a lack of medical opinion supporting any ongoing need for such treatment, save for Mr Behan who noted that she wears it for “comfort purposes”.
102 Mr Nam and Dr Blombery noted a normal range of movement, without restriction in Ms Taranto’s right wrist. Mr Behan noted some slight restriction in her range of motion.
103 Dr Blombery and Mr Behan noted some tenderness in Ms Taranto’s right wrist as well as some objective findings. However, given Mr Nam did not identify any such findings, I consider such symptoms to therefore be relatively modest.
104In her first affidavit, Ms Taranto said that she tried not to take medication, and only applied Voltaren gel to her hand and forearm. In her most recent affidavit, she said that she continues to take Voltaren tablets “almost every day” and that she is now using a different medicated cream, which she rubs into both her wrists and forearms every night. There was no explanation given by Ms Taranto (or sought from her) as to why she has recently resumed taking pain medication.
105I note that Dr Chiang does not prescribe Ms Taranto any pain medication, and does not refer, in his tendered medical reports, to Mrs Taranto needing either prescription or over-the-counter medication. Even if I was to accept that Ms Taranto now takes Voltaren medication with the frequency she claims, it is a non-prescription medication which is not taken on a daily basis.
106Ms Taranto said that her sleep has recently improved, and that she now only wakes when she rolls onto her right side. She did not state the frequency with which this occurred. I note that Dr Chiang does not refer to any ongoing complaints of sleep deprivation.
107Ms Taranto initially ceased her employment with the defendant for medical reasons unrelated to her right hand impairment. Although Ms Taranto may be restricted in her use of a keyboard for prolonged periods of time, there is no medical evidence to support her being incapacitated for suitable employment. Ms Taranto has applied for some jobs since ceasing her employment with the defendant, including jobs in administrative roles and at a jewellery store.
108Ms Taranto said that she is limited in her ability to perform cooking and household tasks, a consequence which is corroborated by her brother. However, I am satisfied that she can still undertake some light tasks around the home and can still perform some cooking.
109Ms Taranto said that her right-hand injury restricts her ability to blow dry her hair, and her brother said that he sometimes dries her hair for her.
110 In assessing Ms Taranto’s claim, I must look not only at what she has lost, but also at what she has retained.[10]
[10]Dwyer v Calco Timber (No 2) [2008] VSCA 260 at [27]
111Ms Taranto is still able to drive her car, but said that she avoids long-distance driving. However, Ms Taranto did not detail any long trips she had taken where she had been restricted as a consequence of her hand injury.
112Ms Taranto has still been able to travel overseas, and has enjoyed the three trips she has undertaken in the last three years. Ms Taranto did not provide any details as to what she claimed now constituted a “restriction” in the activities she could undertake due to her right hand injury.
113Ms Taranto is still able to go shopping and uses a trolley for heavier items.
114I note that Ms Taranto did not identify any recreational activities which have been restricted as a consequence of her right arm impairment.
115 In determining this case, I must make a comparison with other cases in the range of possible impairments. In doing so, I am mindful that I must consider the broad spectrum of cases this Court sees. As was noted by Ashley JA and Beach AJA in Stijepic v One Force Group Australia Pty Ltd & Anor:[11]
“… this includes cases which do not end up in litigation-because, it may be supposed, the consequences are glaringly apparent one way or the other.”[12]
[11][2009] VSCA 181
[12](Supra) at [42]
116 Whether or not a plaintiff has established the requisite “serious injury”, “is a question of impression which is influenced by elements of fact, degree and value judgment”.[13]
[13]Carbone v Toyota Motor Corporation Australia Ltd [2017] VSCA 249 at [66]
117 I accept that the consequences to Ms Taranto from her right upper limb impairment could be described as significant or marked, but I am not satisfied they can be described as more than significant or marked. In particular, I am not satisfied that the consequences, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described as “at least very considerable”. In such circumstances, her application must therefore be dismissed.
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