Tomasovic v Moran Furniture Pty Ltd
[2012] VCC 1606
•31 October 2012 (revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-01870
| ANA TOMASOVIC | Plaintiff |
| v | |
| MORAN FURNITURE PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 June 2012 | |
DATE OF JUDGMENT: | 31 October 2012 (revised) | |
CASE MAY BE CITED AS: | Tomasovic v Moran Furniture Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1606 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Serious injury – spinal injury (incorporating low back and neck) – both hands and wrists – pain and suffering damages only – relevant principles.
LEGISLATION CITED – Accident Compensation Act 1985.
CASES CITED – Barwon Spinners & Ors v Podolak (2005) 14 VR 622; Church v Echuca Regional Health (2008) 20 VR 586; Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Grech v Orica Australia Pty Ltd & Anor [2006] VSCA 172
JUDGMENT – Leave to the plaintiff to bring common law proceedings to recover damages in respect to an injury to the spine (more particularly injury to the low back and neck) and a bilateral wrist and hands injury (including a right thumb injury) in respect to injuries suffered by her on or after 20 October 1999
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie SC with Mr N Dunstan | Shine Lawyers |
| For the Defendant | Ms M Britbart | Minter Ellison |
HIS HONOUR:
Introduction
1 By way of Originating Motion issued on 21 April 2011, Mrs Ana Tomasovic (“the plaintiff”) seeks leave, pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (as amended) (“the Act”), to bring common law proceedings to recover damages for personal injuries arising out of or in the course of her employment with Moran Furniture Pty Ltd (“the defendant”), to wit:
(a) an injury to the spine (more particularly, injury to the low-back and neck) (“the spinal injury”); and
(b)a bilateral wrist and hands injury (“the hands injury”).
2 It is alleged that the employment of the plaintiff by the defendant from 20 October 1999 until the cessation of the plaintiff’s employment on 23 October 2007 was a cause of the spinal injury and/or the hands injury.
3 The plaintiff seeks leave to bring proceedings for “pain and suffering damages” only within the meaning of s134AB(37) of the Act in respect of the spinal and the hands injuries.
4 The plaintiff gave evidence and was cross-examined. Both parties tendered various documents.[1]
[1]See Annexure “A”
Relevant Legal Principles
5 The court must not give leave unless it is satisfied, on the balance of probabilities, that the spinal injury and/or the hands injury are serious injuries within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[2]
[2]See s134AB(19)(a) of the Act
6 The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Act which reads:
“serious injury means─
(a)permanent serious impairment or loss of a body function … .”
7 The part of the body said to be impaired for the purposes of paragraph (a) is the spine and/or both hands of the plaintiff. In order to succeed, the plaintiff must prove, on the balance of probabilities, that:
(a)the spinal injury and/or the hands injury suffered by her arose out of or in the course of or due to the nature of her employment with the defendant on or after 20 October 1999;[3]
(b)the spinal injury and/or the hands injury, with their resulting impairments, must be “permanent” – that is, permanent in the sense that they are “likely to last for the foreseeable future”;[4]
(c)the consequences to the plaintiff of the spinal injury and/or the hands injury in relation to “pain and suffering” must be “serious” ─ that is, “when judged by comparison with other cases in the range of possible impairments … [can be] … fairly described as being more than significant or marked and as being at least very considerable”.[5] The test for “serious” is sometimes referred to as the “narrative test”.
[3]See s134AB(1) of the Act and Barwon Spinners & Ors v Podolak (2005) 14 VR 622 at [11]
[4]See Barwon Spinners (op cit) at [33]
[5]See s134AB(38)(b) and (c) of the Act
8 In determining the application, the court:
(a)must not take into account psychological or psychiatric consequences of the spinal injury and/or the hands injury for the purposes of paragraph (a) of the definition of “serious injury” ─ these can only be taken into account for the purposes of paragraph (c) of the definition of “serious injury”;[6]
(b)must make the assessment of “serious injury” at the time the application is heard;[7]
(c)must give reasons which are as extensive and complete as the court will give on the trial of an action, and in so doing, disclose the pathway of reasoning in dealing with the evidence and the issues raised by the application;[8]
(d)notes that it has been asserted that the question of whether an “injury” satisfies the narrative test is largely a question of impression or value judgment.[9]
[6]See s134AB(38)(h) of the Act
[7]See s134AB(38)(j) of the Act
[8]See s134AE of the Act and Church v Echuca Regional Health (2008) 20 VR 586 at [89]−[92]
[9]See Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at [67]
The Issues
9 Counsel for the defendant submitted that the plaintiff suffers from age-related degeneration in her neck, back and also in her thumbs and any work contribution to any aggravation of such conditions has now ceased. Counsel for the defendant accepted that one of the specialists, Mr Damian Ireland, considered that the employment of the plaintiff has contributed to an aggravation of the bilateral carpal tunnel syndrome and the basal thumb joint osteoarthritis suffered by the plaintiff. In particular, Mr Ireland is of the opinion that there is a twenty per cent contribution from employment. Counsel for the defendant submitted that the right thumb injury did not qualify as a “serious injury”.
10 Furthermore, counsel for the defendant highlights that a significant issue in the proceeding is whether the plaintiff can discharge her onus in establishing that her employment on or after 20 October 1999 has been a cause of any of the injuries said to be “serious injuries”.
The Evidence of the Plaintiff
11 The plaintiff gave evidence that the contents of her affidavits sworn on 1 December 2010 and 11 April 2012 were “true and correct”.[10]
[10]See T 27, L 3−4
12 The plaintiff also gave evidence that initially she was prescribed Celebrex and Kapidex and, more recently, Panamax tablets. She confirmed that she takes six, up to a maximum of eight, Panadol tablets per day because of her pain.
13 By way of her first affidavit, the plaintiff gave the following pertinent evidence:
· She is a sixty-eight year old (born October 1944) married woman who came to Australia with her husband from Croatia in 1967 when she was twenty-three years old. At the time of arrival, she had one son who had been born in 1963 and she had a second son in Australia in 1970.
· In or about April 1971, she commenced employment with the defendant when her second son was one year old and she was twenty-six years old. She continued to work for the defendant for the following 36½ years until she was told on 23 October 2007 that they had “no further suitable duties for me”.[11]
[11]See Exhibit 1 at page 5 PCB
· She worked as a machinist with the defendant. She describes her duties in the following terms:
“Moran Furniture made chairs and couches and other such things, and it was my job to sew the covers. My job required me to sit at a sewing machine for the duration of my day which was about 8 hours. The leather or other cloth was brought to my bench and placed in a pile to my side. I would reach across, pick it up, sew it as required, and then reach across to put it into another pile, where it would be taken away. The sewing machine was operated by foot pedals. To do my job I had to stretch and push and pull the leather or fabric with both arms, and also lean across from side to side and in front of me while handling the cloth. I tended to work with my neck bent forward. The work was quite physical and I found it hard work. I used to work from 7 in the morning until 3.30 in the afternoon, five days a week, sometimes with overtime. I would have a 10 minute break for morning tea, and a 30 minute break over lunchtime. There was no system where the duties were rotated amongst different people that might have given me a break from the work on the machine. In addition, I had to use scissors to cut both the cotton and the leather or fabric as I was finishing off, and also on occasions hole punches.”[12]
[12]See Exhibit 1 at pages 5−6 PCB
[My emphasis]
· In the 1990s, she started to get a “sore back and neck and sore wrists and hands”. These “problems” did not prevent her from working.
· As best she can “recall”, she initially saw Dr Lam and Dr Bialylew at a clinic in Gladstone Road where she was sent by the defendant. After a short time, she stopped seeing those doctors and commenced seeing Dr Loke at the Burwood Road clinic. She understands that either the Gladstone Road clinic or Dr Loke arranged for her to have x-rays of her back and a CT scan of her back in 1999. She recalls in a general way undergoing these investigations and having some back difficulties, but not problems enough to stop her working.
· In May 2001, she made a claim for compensation for injury to her neck, shoulders and back because, prior to this period, her neck and back pain were getting worse. She thinks that in 2000, she felt a click in her low back when she was standing up from her chair and that made her back “worse” and it continued to “get worse as I continued to work”.
· She believes that she had no time off work after she submitted her claim for compensation and continued to work her normal hours. However, she understands that from that time her doctor provided certificates that she should not be lifting more than five kilograms. Although she then did not lift more than five kilograms, she still continued to do work that involved twisting, bending, pushing and pulling and leaning.
· Since the submission of the claim for compensation, her “low back and neck pain has deteriorated”. She also has pain and numbness and a tingling or tight feeling running down from her buttocks to the outside of her thighs to her knees.
· Her general practitioner referred her to the neurosurgeon, Mr Andrew Danks, who arranged an MRI and recommended that she have an operation on her back and neck. As he would not guarantee that an operation would not make things worse, she chose not to have the operation.
· At about this time, she noticed pain in her right hand and wrist had become worse and, in October 2002, Dr Loke arranged for her to have nerve conduction studies that revealed that she had “bilateral carpal tunnel syndrome”. Although this condition was “painful and difficult for me”, she continued to work.
· On 21 May 2004, she made a claim for permanent impairment benefits for injury to her arms, back, shoulders and hands and such claim was accepted.
· Her right hand, in particular, got worse over time and, on 6 December 2004, she completed a claim for carpal tunnel syndrome. She also had pain and stiffness in her right thumb which she understood to be due to osteoarthritis in that joint.
· In March 2005, she was referred to the hand surgeon, Mr Slattery, who again arranged nerve conduction studies which revealed bilateral carpal tunnel syndrome. However, because she was able to work, albeit with difficulty, she did not want to undergo any surgery and continued to work with pain in her neck, back, knees and hands throughout the rest of 2005, 2006 and into 2007, during which time her “problems continued to get worse”.
· Her worst problem was with her low back, although she had increasing neck pain into her shoulders and increasing problems particularly with her right hand.
· Ultimately, she was unable to cope with a full day’s work and she believes that in about May 2007, Dr Loke advised her to reduce her hours and only work half days, which she did. She continued working half days until 23 October 2007.
· The Moran family had sold the business of the defendant to a Chinese group and, on 23 October 2007 (after the Chinese group had taken over), she was told that they had no more suitable duties for her and that she was to stop work.
· Since stopping work, she has been referred back to the hand surgeon, Mr Philip Slattery, who, in May 2008, performed surgery on her right wrist, after which she had less pain and numbness but she has now less movement in her fingers than she had before the operation.
· She continues to have constant pain in her neck and shoulders, low back and right wrist, of which the low back is the worst. In particular, she describes her symptoms in the low back:
“I feel pain there all the time, although sometimes it is worse than others. I find it difficult to do much walking. It is particularly difficult to get up off a chair and straighten up. I wake up nearly every night with pain, and have to get out of bed and walk around the house and stretch for a while before I lie back down to try to get back to sleep. I see a physiotherapist on occasions but have no other treatment other than taking Panadol. I found that the stronger medication doesn’t agree with me. I am also concerned about taking it with my blood pressure tablets. … My low back pain now makes nearly every aspect of my life difficult for me. I have trouble doing the shopping, and need my husband to help me do the shopping other than for very small things. The pain is still in my back moving down the side of each thigh to the knee. It causes great difficulty for me in washing or hanging out clothes and I have to do that slowly with pain. I now do very little gardening, although that was something I used to enjoy doing.”[13]
[My emphasis]
· She continues to have a problem with her right hand which causes difficulty in cooking. She can no longer perform knitting and crocheting which she is unable to do because of neck pains as well as right hand problems.
[13]See Exhibit 1 at pages 8−9
14 By way of her second affidavit, the plaintiff gives the following pertinent evidence:
· She continues to experience pain in her neck, shoulders, low back and right wrist. If anything, her “low back pain has got worse and this is still the most significant of my injuries”. She considers that her neck is the next worse, then her right wrist and then her shoulders.
· She is unable to walk more than about 200 metres without aggravating her low back pain and, if she walks too far, she gets numbness in the legs. She also has problems sitting down for more than 10 to 15 minutes.
· Her sleep continues to be disturbed at night and most nights she wakes up in the middle of the night with pain in her low back and down through the right leg.
· She experiences problems with driving and is only able to drive short distances such as to the local shops. When she does drive, she has problems with turning her neck and, when sitting in the car, has pain in her low back.
· She normally goes to the shops with her husband and gets him to do any of the lifting and carrying of the shopping bags. Furthermore, she gets her husband or her son to do most of the washing. She will put the clothes into the washing machine but gets either her husband or son to take the clothes out of the washing machine and put the clothes onto the clothes line.
· Her husband now does all the gardening, whereas prior to her injuries, she enjoyed gardening with her husband.
· She is limited in what she can do with cooking as she is unable to do any of the cutting up of the vegetables because of her wrist and cannot stand over a bench and prepare the food for cooking because of her neck and low back injuries. Her husband has to do most of the cleaning up after a meal involving loading and emptying the dishwasher.
· Her husband does most of the heavier housework whereas she did all these jobs prior to her injuries.
· She socialises less because she is unable to prepare big meals for guests or help much with the cleaning up after people have left.
· She cannot perform knitting or crocheting any more which she used to enjoy prior to her injuries.
· She is limited in what she can do with her two grandchildren and is far less social than she was before her injuries.
· Her pain gets her frustrated and down from time to time and reduces her sometimes to tears.
· She has seen a physiotherapist at the Knox Community Centre and was going every second week for about two months. The physiotherapist was treating her neck and shoulders, but this treatment was stopped after about two months as “it was not helping me very much”.
· She had about five sessions of acupuncture about two months ago for her low back, but this did not help her very much either.
· She continued to see Dr Loke as her general practitioner up to 2010, but because his rooms were about 20 kilometres from where she lived, she found it too hard to travel and now consults Dr Seneviratne at the Boronia Medical Centre. She did not tell Dr Seneviratne about her WorkCover claim and is consulting her under the Medicare scheme.
15 The plaintiff also relies on an affidavit from her husband, Ante Tomasovic, sworn on 11 April 2012. In that affidavit, he confirms that:
· He is a seventy-two year-old man who is the husband of the plaintiff.
· He worked as a fitter and boilermaker in Australia for about ten years and then was self-employed, running his own business for about twenty-five years. He retired in 2008 when he was sixty-eight years of age.
· He confirms that his wife’s sleep is disturbed by pain at least three or four nights a week and sometimes he rubs some cream into her low back to give her some relief.
· He goes shopping with his wife and does the lifting and carrying of the shopping bags while she pushes the shopping trolley.
· He does most of the clothes washing in that he takes it out of the machine, carries the washing basket to the line and puts the clothes on the washing line.
· He now does all the gardening whereas, before her injuries, he and his wife liked to do the garden together.
· He does most of the heavier work in the kitchen and helps with the cooking in terms of cutting up vegetables and preparing food for cooking, cleaning up after dinner and putting any of the heavier items into the dishwasher.
· He does all the heavier chores around the house such as mopping, vacuuming and cleaning the bathroom.
· Although his wife will drive for very short distances, he does most of the driving and will always drive whenever his wife has to go very far.
· He has observed that his wife gets very upset and frustrated by her level of pain and restriction and her injuries have affected their relationship, diminishing their sexual life.
Cross-examination of the Plaintiff
16 Under cross-examination, the plaintiff accepted that when she commenced with the defendant, her job was to operate a sewing machine with pedals and, in particular, work on all sorts of fabrics including heavier and lighter types of leather.
17 The plaintiff further accepted that she started to get pain in her back, neck and arms many, many years ago although, initially, she could not remember when those pains commenced. In particular, the following evidence was given:
“Q.When do you say your pain started?
A.My injury was starting in the 1999, the worst one starting.
Q.The worst one starting? 1999?
A.Yes, that’s when I started going to this doctor, that’s when I feel it worst.
Q.Are you saying that because that’s when you had an x-ray in 1999?
A.Yes, that’s when I’m starting all that.
Q.How long had you been having pain in your back before you got the x-ray from the doctor?
A.How can I remember, darling, I work so hard.”
HIS HONOUR:
“Q.Give us some idea, was it for a year or five years or ten years before that, how long?
A.Probably a year or something.”[14]
[14]T 29, L 20−31
18 Later in her evidence, the plaintiff accepted that she started feeling pain maybe “five years” before, but because she was working so hard she did not think much about it.
19 When it was put to the plaintiff various histories given to doctors about the commencement of the pain, the following evidence was given:
“Q.I suggest to you, Mrs Tomasovic, that you have a told a number of different doctors who you have seen for this case that your pain started many years before you put your WorkCover claim in, sometime around 1990 or 1991 is when you started to have pain in your neck and your back, I suggest that’s what you told them?
A.I have pain but that’s when I started feel bad pain when I clicked my back, that was 99.
Q.So are you saying your bad pain started from this incident you have described when you felt a click in your back?
A.Yes, that’s the worst thing.
Q.And do you say that that is the incident that made you go to the doctor and get x-rays?
A.Yes.
Q.’99?
A.Yes.
Q.Okay. The first x-ray that was taken in ’99 was taken in July 1999, so the click in your back happened some time before that, is that right?
A.Yes, not long before that.
Q.Not long, about how long before that?
A.Probably a month or week or something. It’s not years before that.
Q.I see. Do you say from that time you had more back pain?
A.Yes, I do.”[15]
[15]T 31, L 8−29
20 The plaintiff agreed that her treating general practitioner, Dr Loke, commenced to certify her as fit for modified duties from 2000 or 2001. Such modified duties still involved her with sewing machine work, but she did not have to work with heavy fabrics any more. In particular, the plaintiff gave the following evidence:
“Q.What you’re being asked in about 2000, 2001 although you continued to work as a machinist, the fabric which you were saying was lighter fabric, is that right?
A.Yes.
Q.What does that mean, did you sew leathers after that?
A.Yes, I could sew the leather but it’s smaller pieces, not the three seater couch stuff like that.
Q.So same material but smaller pieces?
A.Smaller pieces, yes.”[16]
[16]T 32, L 23−29
21 The plaintiff accepted that although she did continue to sew leather, her employer tried to reduce the amount of leather that she had to sew.
22 The plaintiff gave evidence that when performing sewing work, she had to “cut all the time” material and, in particular, the leather was harder to cut. In particular, the following evidence was given in relation to the cutting work:
“Q:When you did the sewing did you also have to do any cutting with scissors?‑‑‑
A:You have to cut all the time.
Q:And the leather was harder to cut, wasn’t it?‑‑‑
A:Yes.
Q:So when you were sewing after 2000 or 2001, and sewing with the lighter fabrics, it was also lighter to cut, wasn’t it?‑‑‑
A:Still hard to cut because you have about three or four thickness and you have to press it, you don’t have only – just like a piece you like that you have three or four thickness in the corners.”
HIS HONOUR:
“Q:During the day were you required to use scissors or a special type of scissors?‑‑‑
A:Scissors, heavy scissors.
Q:Are you right handed?‑‑‑
A:Yes.
Q:How often did you have to use the scissors during the day?‑‑‑
A:Maybe one hundred times.”[17]
[17]T 33, L 17-31
23 The plaintiff accepted that from 2000 or 2001 until she finished work with the defendant, she was doing lighter work with restrictions and such work was a bit different from what she had been doing over many years before. She also accepted that over this period of time she was having breaks every forty-five minutes or hour or so, so she could stretch. She also accepted that she was not required to lift or carry anything more than about 5 kilograms.
24 The plaintiff gave evidence that when she was sewing, “you don’t move anywhere” and she gave the following evidence:
HIS HONOUR:
“Q:Give me a demonstration, was the material brought to you or did you have to go and get it yourself?‑‑‑
A:They brought to there, then you get up and you pick up the bundle next to your bench, you have a bench like that.
Q:It was in a box or something, was it?‑‑‑
A:They are called bundles, tied up bundles.
Q:You would have to undo the bundle?‑‑‑
A:Yes, you would have a bench there, then you have one cover, then you have to stitch it, then you have to tie it up and put that away?‑‑‑
Q:When you say tie it up, did you wait until you have cut a number of pieces, tie it up?‑‑‑
A:Yes, that’s right, you finish like one chair, one chair probably have 20 pieces so you stitched all the 20 pieces together, then you tie it up, put a number on it, then you took over there to the shelf.
Q:And you took the bundle over to the shelf?‑‑‑
A:Yes.
Q:How much do the bundles weigh according to you after you went onto the light work?‑‑‑
A:Should be 5 kilos like she said.
Q:How many bundles would you do a day?‑‑‑
A:Sometimes 20, 15, 20.”[18]
[18]T 36, L 5-26
25 The plaintiff also gave evidence that she carried the bundles (which weighed about 5 kilograms) to a shelf. In particular, she gave the following evidence:
HIS HONOUR:
“Q:Mrs Tomasovic, when you had to take the bundles weighing up to 5 kilograms across to where you had to put them, where did you put them?‑‑‑
A:They got a little shelf there like maybe from here to there.
Q:So you walk across with a bundle and the shelf?‑‑‑
A:Put them on the shelf.
Q:Where was the shelf, how high was the shelf?‑‑‑
A:You have all sorts of shelves, bit higher, but they not very high, just like that.
Q:Do they go down to the ground?‑‑‑
A:Yes.
Q:Do you ever have to put things on the ground?‑‑‑
A:Depends if you want to, if you feel like it, I didn’t do it many times, I just do it that way.”[19]
[19]T 38, L 11-26
26 She was shown a letter dated 11 November 2002[20] from the defendant to her about the type of work she could do. She did not call receiving such letter.
[20]See Exhibit B
27 When queried, the plaintiff gave evidence that there were further changes to her duties in or about 2006 brought about by her inability to use her right hand to operate the scissors any more. The plaintiff explained that that from that time, her duties were more of a supervisory nature. In particular, the following evidence was given:
“Q:And so were you doing more supervisory duties after that?‑‑‑
A:I was doing a little bit teaching the girls.
Q:Teaching the girls?‑‑‑
A:Yes.
Q:Because you had lots of experience as you were helping to teach?‑‑‑
A:I think so.
Q:Yes, so you were helping to teach, was that in 2006 or could it have been earlier in 2004 maybe?‑‑‑
A:No.
Q:Maybe 2005, could it have been?‑‑‑‘
A:No.
Q:You don’t think so?‑‑‑
A:I don’t think so.”
HIS HONOUR:
“Q:What did that mean, teaching the girls, what did you do?‑‑‑
A:Like a lot of girls want to sew something like new chair and they don’t know how to put it together, then I have go down there and work with them together.
Q:You actually showed them or you sat down and did the sewing and showed them?‑‑‑
A:I couldn’t sew because my hands was so bad at that time so I just told them to put this together, put this one and this one together and that’s how we work together.
Q:When you say your hands were sore, are you talking about your thumb or whole hand, or what?‑‑‑
A:My carpal tunnel, thumb.”[21]
[My emphasis]
[21]T 39, L 7-28
28 The plaintiff was cross-examined about the onset of her carpal tunnel symptoms and, in particular, various notes of Dr Loke were put to her. The following evidence ensued:
“Q:Well, again we have notes here from Dr Loke … so this is the first time that we see Dr Loke’s notes that you mention problems with your hands. She says on 17 October 2002 you were getting increasing pain in your hands and into your forearms at night for years, is that right?‑‑‑
A:I don’t know what she means for years.
Q:Had you been having problems with your hands for years before 2002, problems with pain and pins and needles especially at night?‑‑‑
A:That’s right.
Q:Then on 7 November 2002 Dr Loke says: ‘Carpal tunnel symptoms, six or seven years’, is that right, you had been having some symptoms in your hands since about 1995?‑‑‑
A:I don’t know, I didn’t even take much notice because I did have the pain probably but when you work you’re not running to doctor all the time or WorkCover or stuff like that, I didn’t count on that.
Q:But if Dr Loke has noted this in 2002, you told her that you had had symptoms in your hands for six or seven years, you wouldn’t argue that’s what you told her?‑‑‑
A:Probably not but I just ask, have to go to the doctor to see what’s wrong with me.”[22]
[My emphasis]
[22]T 40, L 9-30
29 The plaintiff also gave evidence that her right thumb was a problem from about 2004 when she attended Dr Loke on 28 October 2004 and he noted:
“Right thumb pain on movements, eg. cutting for a few weeks.”
30 The plaintiff accepted that throughout the period of time, save for the last few months, she worked full time with the defendant. Over the last few months her hand was “getting worse” and she could not even “sometimes drive to work”.
31 The plaintiff accepted that when she ceased doing the heavier work with the defendant her back pain and neck pain improved a “little bit”. In particular, the following evidence was given:
“Q:So it did get a bit better when you started doing the lighter work, correct?‑‑‑
A:Yes.
Q:When you left work in I think it was October or November 2007?‑‑‑
A:October.
Q:October, the company had been sold just before that, yes?‑‑‑
A:Yes.
Q:And at that time you were about 63, is that right?‑‑‑
A:Yes.
Q:And you did not look for any new job after you left Moran, did you?‑‑‑
A:No.
Q:After you left Moran you kept going to see Dr Loke to get certificates?‑‑‑
A:Yes.
Q:Dr Loke continued to give you certificates saying that you could still do some work if you wanted to, the same type of restrictions that Dr Loke had been saying before you finished at Moran, she kept saying you could do the same thing after you finished, didn’t she?‑‑‑
A:I can’t remember that.”[23]
[23]T 42, L 10-26
32 The plaintiff described it as “very hurtful” when her employment was terminated after thirty-seven years of work.
33 The plaintiff accepted that since ceasing work, her pains in her neck, back and arms and wrists have continued to get “worse and worse over time”.
34 She attends Dr Theja Senevirathne about every three months and prescriptions are given to her at those times.
35 Under re-examination, the plaintiff confirmed that she had physiotherapy some time last year on referral from her doctor. She had five sessions of acupuncture in or about April 2012.
36 The plaintiff described that when gripping the scissors with her right hand, it was necessary to put the thumb in the first hole of the scissors handling, causing her thumb to be one side of the pushing mechanism.
37 From about 2006, not only was she helping the other ladies with their knowledge of the sewing machine work, but she also assisted the manager sorting out papers and the like. She believed she did this sort of work for about a year and a half.
38 At the completion of re-examination, the Court requested the plaintiff to demonstrate what position her head was in when she performed sewing work at a sewing machine. The parties agreed that the plaintiff’s head was held at about 30 degrees forward flexion when demonstrating that position.
The Medical Treatment of the Plaintiff
(a) The various radiological studies and investigations:
(i)Plain x‑ray of the lumbosacral spine dated 7 July 1999[24] which is reported as showing:
[24]See Exhibit 2 at page 20 PCB
“There is multi-level loss in disc space height in the mid and lower lumbar region indicating multilevel disc degeneration. This is associated with minor degenerative features of vertebral body end plates and some degenerative sclerosis in the lower lumbar facet joints. There is reasonable preservation of lumbar curvature.”
(ii)CT scan of the lumbosacral spine dated 22 October 1999.[25] The radiologist concludes:
[25]See Exhibit 2 at page 21 PCB
“Central canal stenosis at L3-4 and L4-5 level, worse in the latter with compression of the thecal sac anteriorly. No definite neural compression seen.”
(iii)X-ray of the cervical, thoracic and lumbar spines dated 29 June 2001.[26] The radiologist concludes:
[26]See Exhibit 2 at page 24 PCB
“Cervical spine
There is reversal of the normal cervical kyphosis. This is centred around degenerative changes at C5/6, C6/7 and C7/T1. Large anterior and posterior osteophytes extend from each of these levels. These osteophytes cause moderate bilateral C5/6 and left C6/7 foraminal narrowing. The other foramina are preserved. Disc height is preserved at the other cervical levels. Prevertebral soft tissues are normal.
Thoracic spine
Multilevel degeneration is present throughout the thoracic spine characterised by prominent anterior osteophytes. There are no fractures.
Lumbar spine
Moderate disc degeneration is present at L4/5 and L5/S1. The other lumbar discs are relatively preserved. There is no spondylolisthesis or pars defect.”
(iv)MRI scan of lumbar spine and thoracic spine dated 10 March 2002.[27] The radiologist concludes:
[27]See Exhibit 2 at page 26 PCB
“Left paracentral disc extrusion at L3/4, with mild canal stenosis and lateral subarticular/lateral recess stenosis at this level.
Moderate central canal stenosis at L4/5 and bilateral subarticular/lateral recess stenosis due to disc bulging, short pedicles and posterior element degenerative change.
C5/6 right paracentral disc extrusion with spondylotic myelopathy, as an incidental finding on sagittal T2’s of the cervical spine.”
(v)Nerve conduction studies undertaken on 28 October 2002.[28] The neurologist concludes:
[28]See Exhibit 2 at page 28 PCB
“There is electrophysiological evidence of bilateral carpal tunnel syndrome of greater severity on the right side.”
(vi)X-ray of the right thumb dated 23 December 2004.[29] The radiologist concludes:
[29]See Exhibit 2 at page 29 PCB
“Moderately severe degenerative changes are demonstrated at the first carpometacarpal joint with uneven joint space narrowing and marginal osteophytosis. A 1 mm corticated bony opacity at the base of the distal phalanx is observed. This may be the result of an old injury.”
(vii)Further electrophysiological testing dated 4 April 2005.[30] The neurologist concludes:
“There is electrophysiological evidence of bilateral mild median nerve lesions at the wrist.”
(viii)Operation report of Mr Slattery dated 22 May 2008.[31]
[30]See Exhibit 2 at page 30 PCB
[31]See Exhibit 2 at page 32 PCB
(b) The evidence of the treating doctors
39 The plaintiff relies on medical reports from Dr Loke dated 3 October 2004,[32] 28 February 2008,[33] 14 January 2009[34] and 28 May 2012.[35] The plaintiff also relies on the clinical records of Dr Loke[36] running from 5 August 2004 to 20 January 2005.
[32]See Exhibit 3 at page 33 PCB
[33]See Exhibit 3 at page 36 PCB
[34]See Exhibit 3 at page 37 PCB
[35]See Exhibit 3 at page 39 PCB
[36]See Exhibit 8 at pages 35-36 DCB
40 In his report dated 3 October 2004, Dr Loke notes the long service of the plaintiff with the defendant and that she has had “work related chronic neck bilateral upper shoulder and lower back pain for more than ten years”. He further notes that her WorkCover claim started in 2001 when her “symptoms worsened”.
41 Dr Loke also notes in that report that the plaintiff has symptoms of bilateral carpal tunnel syndrome (confirmed by nerve conduction studies) with the right side being worse than the left.
42 At that time, Dr Loke described the symptoms of the plaintiff to be neck pain (especially on head rotation), a pulling sensation in the shoulders and radiation of pain from the top of the shoulders to the hands, pins and needles/numbness in the hands and hand pain at night, low back pain which radiates to her thighs and legs and is worse on walking with prolonged standing. He notes that these conditions have affected her ability to perform her usual housework – for example, cleaning, washing dishes – due to pain in her back and legs or prolonged standing.
43 Dr Loke also notes that an MRI scan of 10 March 2002[37] showed “quite severe cord compression at C5-6 level due to a disc prolapse and canal stenosis”.
[37]See Exhibit 2 at page 26 PCB
44 He also notes that she had multilevel disc degeneration of the lumbar spine with “significant nerve root compression at L3-4 level on the left side.”
45 In particular, Dr Loke states:
“Mrs Tomasovic’s condition seems to be related to and aggravated by her work duties, which involved carrying and sewing various types of fabrics and using two foot pedals, in a prolonged sitting position with sustained neck flexion postures. She stopped sewing the heavier leather fabrics about two years ago which has helped her symptoms. Her carpal tunnel syndrome is likely to be related to the repetitive manual work.”[38]
[38]See Exhibit 3 at page 34 PCB
46 Dr Loke notes that although the plaintiff has continued to work normal pre-injury hours, she is only performing:
“… modified duties with avoidance and carrying objects greater than 5 kilogram, having brief stretching breaks every 30 to 60 minutes and avoiding prolonged sitting/standing postures.”[39]
[39]Exhibit 3 at page 34 PCB
47 He further notes that she attends physiotherapy/chiropractic treatment and is prescribed anti-inflammatory medication for pain relief. Dr Loke does note that the plaintiff “despite her discomfort” seems to “enjoy and is committed to her work”.
48 In a later report dated 28 February 2008, Dr Loke confirms that the plaintiff has:
“… bilateral carpal tunnel syndrome which I believe has arisen from her job as a machinist at Moran Furniture where she has worked for 36 years”.[40]
[40]Exhibit 3 at page 36 PCB
49 Dr Loke notes that the plaintiff presented to him on 17 October 2002 with:
“… increasing pain in her hands radiating to her forearms at night over a period of six to seven years”.[41]
[41]Exhibit 3 at page 36 PCB
50 At times she also had a constant bilateral hand numbness and pins and needles. Nerve conduction studies undertaken on 28 October 2002[42] confirmed bilateral carpal tunnel syndrome.
[42]See Exhibit 2 at page 28 PCB
51 Dr Loke notes that the plaintiff was referred to the hand surgeon, Mr P Slattery, who recommended a wrist splint, minimal wrist bending and sewing and eventually surgery.
52 Dr Loke also notes that he referred the plaintiff to the neurosurgeon, Mr Andrew Danks, mainly in relation to her ongoing neck symptoms. He notes that Mr Danks recommended a cervical discectomy and decompression but the plaintiff decided against it because of the risks involved.
53 Dr Loke records that the plaintiff underwent a right endoscopic carpal tunnel release on 22 May 2008 resulting in the pain and numbness in her right hand being much improved, although she still continued to have weakness in her right hand and numbness in her right ring and middle fingers. The plaintiff was also complaining of pins and needles and occasion pain in her left hand and Dr Loke also considered that some of her persistent hand symptoms may be due to the cervical disc prolapse and canal stenosis at the C5-6 level.
54 Dr Loke also noted that after the plaintiff ceased sewing the heavier leather fabrics, her symptoms in her neck and back did improve. Dr Loke last consulted with the plaintiff on 22 April 2009 after which he notes that she moved to a medical clinic closer to her home.
55 In relation to the tendered clinical records of Dr Loke, such records reveal that Dr Loke was giving WorkCover certificates for modified duties over the period of time at least from 5 August 2004 to 20 January 2005. Over this period of time, the plaintiff was complaining particularly of right thumb pain but also, back pain with radiated pain down the legs, on 5 August 2004.
56 The plaintiff relies on a report from the neurosurgeon, Mr Andrew Danks, dated 28 June 2004.[43]
[43]See Exhibit 3 at page 40 PCB
57 Mr Danks examined the plaintiff initially on 27 February 2002. At that time, she gave a history of persistent and worsening low back pain and left leg pain together with pain and numbness affecting the left lateral thigh. She further reported bilateral groin pains and said that her symptoms were strongly “posturally related”. Sometimes she found her left leg was weak and that she had fallen because of give way weakness in her left leg on occasions.
58 The plaintiff also gave a history that she had to “lean both ways from the sitting position in her work” and “used to lift quite heavy weights of material but now tended to avoid this because it tended to worsen her symptoms.”
59 In particular, her symptoms tended to worsen during the working day as a general rule.
60 On her first visit, the plaintiff attended with the CT scan of her lumbar spine and later, Mr Danks arranged for her to undergo an MRI scan of her lumbar spine. When reviewed, Mr Danks noted that the scan exhibited quite widespread degenerative changes in the lumbar invertebral discs and a reduced diameter of the spinal cord at all levels. He considered the most significant change was that of a broad based disc bulge and moderate left paracentral extrusion at L3-4 with a degree of canal stenosis and lateral recess stenosis present at that level.
61 Mr Danks also had an MRI scan of the cervical spine undertaken which revealed “severe disc narrowing at C5-6 with a moderate disc extrusion which was causing indentation of the spinal cord.”
62 In particular, Mr Danks noted there was an abnormal signal in the spinal cord itself at this level indicative of myelopathy.
63 On review on 10 April 2002, Mr Danks recommended that the plaintiff undergo surgery to her neck but such recommendation was refused. Furthermore, Mr Danks is also of the opinion that there may be some benefit in lumbar spine surgery and again the plaintiff did not wish to proceed in this manner.
64 Mr Danks diagnosed cervical spondylotic myelopathy and multilevel lumbar spondylosis with a mild degree of canal stenosis and compression, partly at L3-4 and L4-5.
65 In particular, Mr Danks noted that he did not undertake any detailed investigation of the underlying causes of her condition as she was not assessed for medico-legal purposes. However, Mr Danks does state:
“I am not aware of any accident or incident that caused Mrs Tomasovic’s condition. Her condition is a degenerative one due to age and various stressors that have been placed upon her spine over the preceding fifty-seven years. She told me that the pain was worse during the working day …”[44]
[44]See Exhibit 3 at page 42 PCB
66 The plaintiff relies on a report from the hand surgeon, Mr P Slattery, dated 12 December 2008.[45] Mr Slattery initially examined the plaintiff on 8 March 2005 on referral from Dr Loke. At that time, the plaintiff gave a history that she had had “several years of gradually worsening numbness of the hands, more so in the right side and pain in the thumbs.”
[45]See Exhibit 3 at page 43 PCB
67 She also noted that she was becoming more awkward and was dropping various objects.
68 Examination at that time revealed a decreased grip strength on each side and a decreased key pinch strength on each side. The provocative test for carpal tunnel compression showed a positive Tinel’s sign over the left carpal tunnel and there was tenderness and swelling at the base of both thumbs, more so on the right side. X-rays revealed osteoarthritis of the right 1st carpometacarpal joint and nerve conduction studies confirmed bilateral carpal tunnel syndrome.
69 Mr Slattery notes that she was treated conservatively with light duties and a wrist splint and the plaintiff gave a history that her symptoms “improved.”
70 The plaintiff “returned” to Mr Slattery on 28 April 2008, saying that she had “worse pain and numbness of the hands” and that her symptoms were waking her. Ultimately, Mr Slattery performed a right endoscopic carpal tunnel release on 22 May 2008 and notes that when last seen on 5 June 2008, her symptoms “were much improved”.
71 Mr Slattery considered that she would need no further treatment for her right carpal tunnel, but considered it was possible that she may require operative treatment in relation to the milder left carpal tunnel syndrome. He also noted that she has pain and weakness of the thumbs due to osteoarthritis of the first carpometacarpal joints and this could require further treatment.
72 In relation to causation, Mr Slattery states:
“Firstly, it should be stated that the relationship between repetitive manual work and a carpal tunnel syndrome is a somewhat contentious area. Multiple studies have now demonstrated that there is no relationship between repetitive manual work and a carpal tunnel syndrome. Despite this, some medical practitioners feel that a carpal tunnel syndrome can be aggravated by repetitive manual work. Nevertheless, the studies do not support this. Longitudinal studies do not show an increased incidence of carpal tunnel syndrome with repetitive manual work, the exception would be those workers using vibrating equipment such as chain saw operators. The cause of a carpal tunnel syndrome is unknown. It is my opinion that it is not directly related to her employment.
There is also the question of osteoarthritis of the thumbs. This is a ‘wear and tear’ condition in which the articular carp slowly degenerates. The condition if often familial but nevertheless repetitive manual work can lead to aggravation of osteoarthritis and is reasonable state that her work as a machinist for 34 years with Moran has been ‘a significant contributing factor’ to her osteoarthritis. It is my opinion that the osteoarthritis is compensable.
Having said the above, there is also reported increased incidence of carpal tunnel syndrome with osteoarthritis of the first carpometacarpal joint. It is my opinion that due to the osteoarthritis of her thumb, she is at increased risk of carpal tunnel syndrome and it is my opinion that on this basis the carpal tunnel syndromes are indirectly related to her employment and are compensable. However, it should also be noted that so far she has had an x‑ray of her right thumb which has demonstrated the osteoarthritis but is yet to have an x‑ray of her left thumb, which would also probably show osteoarthritis.
Therefore it is my opinion that the osteoarthritis of the thumbs and indirectly her carpal tunnel syndromes are related to employment and are compensable.”[46]
[46]See Exhibit 3 at pages 44-45 PCB
(c) Medico-legal reports relied on by the Plaintiff
73 The solicitors for the plaintiff arranged for the plaintiff be medico-legally examined by the following doctors:
(a)the general surgeon, Mr Michael Flaim, on 21 May 2009[47] and 17 February 2011;[48]
(b)the occupational physician, Dr Charles Castle, on 4 May 2009;[49]
(c)the neurosurgeon, Mr David Brownbill, on 8 November 2011;[50] and
(d)the orthopaedic surgeon, Mr Russell Miller, on 2 May 2012.[51]
[47]See report dated 26 May 2009 Exhibit 4 at page 46 PCB
[48]See report dated 21 February 2011 Exhibit 4 at page 50 PCB
[49]See report dated 27 July 2009 Exhibit 4 at page 53 PCB
[50]See report dated 9 November 2011 Exhibit 4 at page 62 PCB
[51]See report dated 19 May 2012 Exhibit 4 page 70 PCB
74 When initially examined by Mr Flaim, the plaintiff explained that when working as a sewing machinist, she sewed leather and fabric and spent most of her time, sitting, pressing pedals and handling materials. Furthermore, she was sitting forward inclined at the hips and used scissors in a highly repetitious manner in order to cut materials.
75 In particular, the plaintiff gave a history to Mr Flaim that she had a “very long history of aches and pains generally involving the back and the neck”. In particular, in the year 2000, her symptoms increased when she bent down and felt a click in the back and has had symptoms in the back from that time onwards and causing her problems with prolonged sitting.
76 Furthermore, Mr Flaim obtained a history that the plaintiff’s hands had been “… symptomatic for many years and that there were no accidents or incidents, but rather she noticed that forceful gripping aggravated her symptoms causing pain over the radial side of the hands”.
77 On examination, Mr Flaim noted that the plaintiff was “totally cooperative” with “no signs of over reaction”. Neck and back movements were both restricted and examination of the hands confirmed the presence of basal thumb arthritis, more severe on the right than the left. Furthermore, she had residual symptoms of the carpal tunnel syndrome (post surgery) in that she had a persisting abnormal sensation in the middle and ring fingers of the right hand. Grip strength was grossly reduced on the right side.
78 After obtaining a history, making an examination and reviewing various radiological material, Mr Flaim stated:
“Mrs Tomasovic presents with a very long history of symptoms effecting the neck, lumbar spine, hands and legs, and occurring over a period of perhaps twenty years. Physical examination at this stage confirms profound weakness of grip in both hands, active reflexes but no clonus and numbness effecting the right third and fourth fingers. There was restricted movement in the spine. Her investigations have confirmed the occurrence of bilateral carpal tunnel syndrome, and basal thumb arthritis, with cervical and lumbar spondylosis of a relatively severe degree.
Based on the history, physical examination and investigations, I have concluded that:
1 The diagnoses are of bilateral carpal tunnel syndrome, bilateral basal thumb arthritis and cervical and lumbar spondylosis.
2 These conditions occur on the background of a person working, largely in sedentary work, for 34 years, often working much more than 40 hours per week, in work requiring repetitive forceful gripping movements particularly when using scissors.
3 Whilst there has been some improvement with carpal tunnel decompression on the right, this has not been complete, and she is resistant to further surgery.
4 Each of the conditions outlined above can occur without any aggravation from work. However, I would point out the very prolonged nature of predisposing conditions, including repetitive forceful gripping, prolonged sitting and forward inclination affecting both the neck and the back … ”[52]
[52]See Exhibit 4 at page 48 PCB
79 When reviewed on 17 February 2011, Mr Flaim reached the same diagnosis and further stated:
“Mrs Tomasovic worked for 34 years in a situation requiring repetitive forceful gripping, prolonged sitting and forward inclination, and I consider that her work experience has aggravated and accelerated the development of the conditions outlined above.”[53]
[53]See Exhibit 4 at page 52 PCB
80 When seen by Dr Castle on 4 May 2009, the plaintiff gave a history that “about fifteen years ago” she was having pins and needles on her hands but she kept working. In particular, three or four years prior to the examination her hands became “worse” and she had more pain in her legs with walking.
81 Furthermore, the plaintiff gave a history that she has pain from her neck which radiates to her right hand and that in “about 2000 she started having problems with her back”.
82 Dr Castle obtained a history that the plaintiff has difficulty with various domestic activities (for example, cannot peel the vegetables) and is unable to wash her hair.
83 After an examination and review of the available radiological material, Dr Castle stated:
“Mrs Ana Tomasovic is a sixty four year old woman who developed bilateral carpal tunnel syndrome initially in 1994. It subsequently settled. She kept working until in either 2005 or 2006 her hands became much worse. She had nerve conduction studies and was found to have bilateral carpal tunnel syndrome, worse on the right. She subsequently had a carpal tunnel release operation done on her right hand. This was not very effective. She still has carpal tunnel symptoms in both hands with positive failings and Tinel’s signs. In addition, Mrs Tomasovic has neck and low back pain.
In answer to your specific questions:
1 What is the nature of my client’s injury/condition?
Mrs Tomasovic has bilateral carpal tunnel syndrome worse on the right than on the left. She has neck and back pain of unknown or uncertain origin.
2 Was the injury caused or materially contributed to by the nature of her employment?
Yes, in my opinion her injury was caused by the nature of her employment. She worked as a sewing machinist for Moran Furniture. In that role she did very heavy sewing, sewing leather covers for couches. This required frequent wrist flexion.
3 Was the employment a significant contributing factor to the injury/injuries?
There is clear evidence in the literature that carpal tunnel syndrome is associated with the use of vibrating tools, repeated forceful work and repetitive work, particularly repetitive work where the hand is in a flexed position. Carpal tunnel syndrome is also clearly associated with obesity, thyroid disease, diabetes mellitus, and osteoarthritis.
Mrs Tomasovic’s BMI at 35.5 puts her in the obese range. She has Type II Diabetes. She is sixty-four, she is no longer menopausal. The time of her symptoms started in about 1994. It is likely that Mrs Tomasovic would have been menopausal or immediately post-menopausal. There are thus competing factors in determining the aetiology of her condition.
However, in my opinion the work she did as a sewing machinist sewing leather covers for lounges, which was hard sewing, done repetitively, and requiring a significant amount of force at the wrist to hold the material in place, means that her employment was a significant contributing factor to her injury.”[54]
[54]See Exhibit 4 at pages 58-59 PCB
84 Dr Castle was of the opinion that the plaintiff had no capacity for employment as a result of her condition.
85 When seen by Mr Brownbill in November 2011, the plaintiff gave a history that:
“About twenty years ago she noted a gradual onset of pain in the back of the neck and the lower back without any specific injury. Such pain was worse in the mornings and at the end of the day. The pains continued with fluctuations and gradually increased. Pins and needles occurred intermittently in both hands with a gradual increase about eight years ago, more so on the right side.”[55]
[55]See Exhibit 4 page 63 PCB
86 In his report, Mr Brownbill stated, in part:
“Examination on 8 November 2011 has shown restriction of cervical and thoracolumbar spinal movements. There was marked tenderness at the base of her right thumb. There was no objective neurological abnormality in her upper limbs or lower limbs. There were no signs of radiculopathy or myelopathy.
Radiological investigations have demonstrated widespread degenerative arthritic changes including the right thumb base and in the neck and lumbar spine.
On the history provided this lady had back and neck pains which commenced about twenty years ago and then gradually increased.
Noting her described work activities and the radiological investigations, I consider this lady had longstanding constitutional degenerative changes of the cervical and lumbar spines with some work related aggravation resulting in increased symptoms of pain. …”[56]
[56]See Exhibit 4 at page 66 PCB
87 Later, in his report, Mr Brownbill states:
“I consider on the information provided as outlined above that her described work activities over many years have been a contributing factor to aggravation of constitutional degenerative changes. An assessment of her other conditions lies within the orthopaedic surgical province.
I consider that by aggravation of her pre-existing constitutional degenerative changes, this lady’s described work activities were a small but definitely contributing factor to the onset of the symptoms of her neck and back. … Her described work activities in general I consider have been a contributing factor to aggravation of constitutional degenerative changes of the cervical and lumbar spines including the work performed after 20 October 1999 …”[57]
[57]See Exhibit 4 at page 67 PCB
88 When examined by Mr Miller, the plaintiff gave a history that her work as “moderately physical” and that she coped quite well until approximately late 1999. Then, when there was a fairly sudden onset of symptoms, when she bent over to lift some goods at work and developed low back pain which was fairly diffuse. Furthermore, she developed deteriorating symptoms of low back pain discomfort and neck pain discomfort with radiation in the arms and legs and subsequently problems with numbness and tingling in her hands and pain and discomfort in the hands. Her symptoms fluctuated but slowly deteriorated.
89 After obtaining a history, examination and examining various radiological studies, Mr Miller was of the opinion that the plaintiff suffered a musculoligamentous strain to the cervical spine and aggravation of degenerative disease in the cervical spine, a musculoligamentous strain to the lumbar spine, an aggravation of degenerative disease in the lumbar spine, left and right carpal tunnel syndrome and carpometacarpal arthritis affecting the thumbs of the left and right hands.
90 As to any relationship with her employment, Mr Miller states:
“This is clearly a complex issue in this case. It is highly likely that this lady has a propensity to develop degenerative disease in the cervical spine and lumbar spine and both wrists. It is likely that she had a propensity to develop carpal tunnel syndrome. It is however my view that this lady performed significant physical work over a significant period of time, more than three decades, and this work involved repetitive arm actions, repetitive heavy movements, repetitive back movements and twisting, turning and undertaking tasks which would be considered moderately physical. I believe on that basis it is likely, on the balance of probabilities, that her work has contributed to the evolution of the disease in the cervical spine, lumbar spine, left and right thumbs and carpal tunnel syndromes. That effect in my opinion is more than negligible and is significant. I acknowledge the difficulties in making such a determination.”[58]
[58]See Exhibit 4 at page 76 PCB
91 Mr Miller considered the plaintiff had no realistic capacity for employment as a result of her injuries.
(d) The Defendant’s Medico-legal Reports
92 The solicitors for the defendant arranged for the plaintiff to be medico-legally examined by the following doctors:
(a)the general surgeon, Mr Peter Battlay on 17 March 2009[59]
(b)the orthopaedic surgeon, Mr R Simm, on 14 February 2011[60]
(c)the hand surgeon, Mr D Ireland, on 16 February 2011[61]
[59]See report dated 19 March 2009 – Exhibit A at page 1 DCB
[60]See report dated 15 February 2011 – Exhibit A at page 5 DCB
[61]See report of 16 February 2011 – Exhibit 7 at page 12 DCB
93 In his report dated 19 March 2009, Mr Battlay makes clear that he had earlier examined the plaintiff in November 2007 when he concluded that she had bilateral carpal tunnel syndrome which were “not work related” but due to ageing and hormonal factors. However, seemingly at that time, Mr Battlay was of the opinion that her basal joint arthritis of the right thumb had been aggravated through her work.
94 When review on 17 March 2009, the plaintiff gave a history that she had undergone an operation on her right wrist on 22 May 2008 which improved her numbness but her middle finger has remained numb and the basal joint of the thumb has remained tender.
95 Furthermore, she gave a history that she has back pain spreading to the posterior lateral of each thigh as far as the knee. Furthermore, she gave a history of recurrent discomfort in the back of the neck with pain spreading as far as the lower thoracic spine.
96 After examining the plaintiff and reviewing various radiological studies, Mr Battlay considered that she still had a work aggravated osteoarthritic condition of the basal joint of the right thumb which he described as not severe and would not prevent her performing suitable work. In relation to the neck and back complaints, Mr Battlay was of the view that the plaintiff had “age related degenerative changes of her neck and back”. In particular, he was of the opinion that her employment had not aggravated such changes.
97 When examined by Mr Simm on 14 February 2011, the plaintiff gave a history that she suffered no specific injury but noticed onset of symptoms in the neck, shoulders and low back in the “1990s”. She also gave a history of an incident which occurred in either 2000 or 2001 when she was lifting a cover in the forward stoop position and experienced a pain and a click in the lumbar spine. Although she had no time off work after this incident, she gave the history that her back symptoms worsened from that time onwards.
98 In particular, the severity and frequency of symptoms in her neck, shoulders and low back increased from about 2005 onwards. In 2002, she had intermittent numbness in the right hand and was investigated for carpal tunnel syndrome and in 2004 she developed symptoms around the base of the right thumb.
99 The plaintiff informed Mr Simm that her symptoms were getting worse in the neck, shoulders, hands and the low back.
100 Mr Simm noted that the plaintiff was cooperative and that there was “no elaboration of the physical signs presented”.
101 After obtaining a history, making an examination and reviewing various radiological studies, Mr Simm was of the opinion that the plaintiff suffered from advanced degenerative cervical spondylosis with referred symptoms into the upper limbs (with no clinical signs of radiculopathy), advanced degenerative lumbar spondylosis with referred symptoms into the lower legs, together with lumbar spinal canal stenosis (but no clinical signs of radiculopathy), right carpal tunnel syndrome surgically treated and partly resolved, left carpal tunnel syndrome un-operated and still symptomatic, and generalised osteoarthropathy with basal osteoarthritis to the right thumb.
102 In relation to any employment contribution, Mr Simm states:
“All of this pathology is constitutional, age related pathology which has arisen and progressed quite independently of any occupation factors. However, the pathology could certainly have been responsible for increasingly severe symptoms whilst undertaking her work duties. I presume on the basis this symptomatic exacerbation of the pathology, her condition was accepted as work related but I do not believe epidemiological studies would provide sound evidence that the nature of her work duties would have influenced the underlying pathology of the conditions detailed above.”[62]
[62]See Exhibit A at page 9 DCB
103 In particular, although Mr Simm accepted that when the plaintiff was working, such pre-existing constitutional degenerative pathology would have been exacerbated when performing the work, her current condition is due essentially to the constitutional pathology rather than any residual factors relating to employment.
104 When seen by Mr Ireland in February 2011, the plaintiff gave a history that she developed symptoms in her right hand “in the mid 1990s” and were followed some years later by the same symptoms in her left hand. Furthermore, she initially noted pins and needles which were waking her from her sleep at night affecting the right hand and towards the end of the 1990s she developed daytime symptoms and by the year 2000 she was unable to hold scissors due to pain in her right hand.
105 After undergoing surgical treatment for the right hand, the plaintiff gave a history that she believes that the symptoms are “approximately fifty per cent better”.
106 Mr Ireland, after examination, made a diagnosis of bilateral basal thumb joint osteoarthritis, diffuse mild osteoarthritis small joints of both hands and left carpal tunnel syndrome.
107 Mr Ireland was of the opinion that the residual symptoms in the right hand are unrelated to the carpal tunnel syndrome and are caused by basal thumb and joint osteoarthritis. In particular, Mr Ireland states:
“The prognosis for any improvement is poor and moreover it is likely that the symptoms of bilateral basal thumb joint osteoarthritis will deteriorate. The worker’s condition of right carpal tunnel syndrome has stabilised. The other conditions described under the heading of diagnoses above have not stabilised.
The worker’s previous work has not caused her bilateral carpal tunnel syndrome. In my opinion the nature of the work using scissors and operating machinery has significantly aggravated the symptoms of bilateral carpal tunnel syndrome and in that context I believe the condition of bilateral carpal tunnel syndrome is work related. The work therefore has not caused the carpal tunnel syndrome but has aggravated the symptoms of carpal tunnel syndrome possibly rendering it prematurely symptomatic.
Carpal tunnel syndrome and basal thumb joint osteoarthritis in this particular person are not related. I believe the symptoms of basal thumb joint arthritis have developed subsequent to the onset of carpal tunnel syndrome. The same comments apply to basal thumb joint arthritis as to carpal tunnel syndrome as outlined above. The work has not caused the basal thumb joint arthritis but may have aggravated the symptoms of the osteoarthritis rendering it prematurely symptomatic and more severely symptomatic that it may otherwise have been.”[63]
[63]See Exhibit 7 at page 15 DCB.
Analysis of the Evidence
108 There is no issue that the plaintiff is a sixty-eight year old married woman who commenced employment with the defendant in April 1971 when she was twenty-six years old and that she remained in that employment for the following thirty-six and a half years, until she was terminated on 23 October 2007 on the basis that there was “no further suitable duties” for her. Perhaps borne out by her remarkable work record, I gained the impression, as did her treating general practitioner (Dr Loke), that she enjoyed her work and was committed to her work.
109 When queried, counsel for the defendant appropriately and responsibly accepted there was no reason why I should not accept the credit of the plaintiff. Indeed, I found the plaintiff to be a frank witness and doing her best at all times to give honest and accurate answers to questions posed to her.
110 I do accept that the plaintiff was not precisely clear as to when her symptoms in either her neck, back or arms commenced but I accept this is more a reflection of both the effluxion of time and the distinction in the plaintiff’s mind when she continued to work in her normal duties notwithstanding her symptoms and the times when she could not continue her duties because of the symptoms.
111 Consistent with the finding I have made in relation to the credit of the plaintiff, I also note that consistent with the comments of some of the medical examiners, there was no apparent psychological aspect to her presentation or indeed any attempt to embellish her organic symptoms. In this respect, I note the comments of Mr Simm (who examined the plaintiff on behalf of the defendant) that the plaintiff was cooperative with no elaboration of the physical signs, and the comments of Mr Ireland (the hand surgeon who examined the plaintiff on behalf of the defendant) that the plaintiff showed no tendency to exaggerate her symptoms and that the subjective symptoms matched the objective clinical findings.
112 After a consideration of all the evidence, I make the following findings as to the type and nature of the work the plaintiff performed with the defendant:
(a)From when she commenced employment with the defendant until approximately mid-2001, she worked as a sewing machinist involved in the sewing of fabrics and in particular various types of leather. I accept the description given by the plaintiff that such work involved her reaching to obtain material, operating foot pedals on a sewing machine, stretching, pushing and pulling leather or fabric with both arms, leaning across the machine from side to side and in front of her when handling the cloth, working with her neck bent forward and the constant use of scissors in her right hand. Furthermore, I accept the description of the plaintiff that such work was “physical” and “hard work”.
In or about mid-2001, the same work that the plaintiff was undertaking was changed to involve far less sewing work on leather, lifting of no more than 5 kilograms, and the ability to take a break to stretch every hour.
Although the evidence is not completely clear when the transition occurred, I tend to the view it is about mid-2001, as such date is consistent with the contents of the first affidavit of the plaintiff wherein she deposes that after making a claim for compensation in May 2001 her doctor commenced giving her certificates specifying the type of work she was to perform. However, I also note Exhibit B, which is a letter from the defendant to the plaintiff dated 11 November 2002 wherein the defendant offers the plaintiff permanent suitable employment as a sewing machinist with the following guidelines:
(i)taking five minutes’ break every forty-five to sixty minutes for stretching to avoid prolonged postures and sustained neck flexion;
(ii)no greater lifting than 5 kilograms;
(iii)avoiding working at above shoulder level or in forward reaching positions;
(iv)avoid sewing leather and other heavy materials.
(b)Over the period from mid-2001 up to approximately April 2006 (some eighteen months before she ceased employment), the plaintiff continued to perform sewing work with the above qualifications.
(c)During that period from mid-2001 to April 2006, the plaintiff continued to perform sewing work and in particular continued to perform sewing work which caused her to have her head in a flexed position (agreed at about 30 degrees forward flexion), lifting bundles of cloth weighing up to 5 kilograms approximately fifteen to twenty times a day, and using the scissors in her right hand up to maybe one hundred times a day. Although she was required to cut and sew far less leather, cutting was still “hard” because she had to hold three or four thicknesses of material together when they were cut.
(d)In or about April 2006, because of significantly worsening symptoms, particularly in her right hand, her duties largely became supervisory of other sewing machinists and assisting one of the managers. From about May 2007, on the advice of her treating practitioner, Dr Loke, the plaintiff reduced her hours and was only working half days up until her termination on 23 October 2007.
113 A perusal of the medical evidence would suggest that there is a consensus as to the medical conditions suffered by the plaintiff. In respect of her back and neck conditions, these have been variously diagnosed to be lumbar and cervical degeneration (or sometimes referred to as spondylosis). Furthermore, all doctors who have examined her lower arms accept that she has suffered and continues to suffer some degree of bilateral carpal tunnel syndrome and also, basal thumb joint osteoarthritis particularly in the right thumb.
114 Notwithstanding the consensus of medical opinion in relation to her medical conditions, there is an array of medical opinion as to whether or not the employment with the defendant has in any way contributed to such medical conditions.
115 In this respect, I note the following:
(a)Dr Loke is of the opinion that the employment of the plaintiff over her many years with the defendant contributed to her degeneration in the lumbar and cervical spines, the carpal tunnel syndrome and the right thumb basal osteoarthritis;
(b)The treating neurosurgeon, Mr Danks, although he did not perform a medico-legal examination, considered that her degenerative condition in the lumbar and cervical spines were due to age and “various stressors” that had been placed upon her by her preceding fifty-seven years. He noted that the plaintiff did tell him that the pain was worse during the working day’
(c)The treating hand surgeon, Mr Slattery (who treated the plaintiff for her carpal tunnel syndrome), was of the opinion that the carpal tunnel syndrome was not directly related to her employment. However, Mr Slattery was of the opinion that the osteoarthritis in her right thumb was aggravated by her employment with the defendant, which in turn caused an increased risk of carpal tunnel syndrome. In this sense, he considered the carpal tunnel syndrome to be indirectly related to the employment of the plaintiff by the defendant.
(d)The general surgeon, Mr Flaim, considered that the lumbar and cervical degenerative condition, the bilateral carpal tunnel syndrome and bilateral basal thumb arthritis were “aggravated and accelerated” by the type of work the plaintiff was doing over the years of her employment with the defendant.
(e)The occupational physician, Dr Castle, considered that the plaintiff’s employment with the defendant was a significant contributing factor to her bilateral carpal tunnel syndrome.
(f)The neurosurgeon, Mr Brownbill, considers that the work activities of the plaintiff over many years, including the work performed after 20 October 1999, have contributed to an aggravation of constitutional degenerative changes in her back and neck.
(g)The orthopaedic surgeon, Mr Miller, considered that the type of work the plaintiff was performing over the years of her employment with the defendant contributed to the “evolution of the disease in the cervical spine, lumbar spine, left and right thumbs and carpal tunnel syndromes”.
(h)The general surgeon, Mr Peter Battlay, considered that the basal joint of her right thumb had been aggravated through her work, but her bilateral carpal tunnel syndromes were not related. Furthermore, Mr Battlay was of the opinion that the back and neck degenerative changes had not been aggravated by her employment.
(i)The orthopaedic surgeon, Mr Simm, considered that all the medical problems suffered by the plaintiff “could certainly have been responsible for her increasingly severe symptoms whilst undertaking her work duties”. However, he is of the opinion that when such employment ceased there was no longer any ongoing aggravation. In particular, he asserts that the nature of the work duties would not have influenced the underlying pathology of any of those medical conditions.
(j)The hand surgeon, Mr Damian Ireland, is of the opinion that the plaintiff’s employment did not cause her bilateral carpal tunnel syndrome. The duties did aggravate the symptoms of carpal tunnel syndrome “possibly rendering it prematurely symptomatic”. Furthermore, Mr Ireland was of the opinion that the plaintiff’s employment had not “caused” the basal thumb joint arthritis but rather, may have aggravated the symptoms of osteoarthritis rendering it prematurely symptomatic and more severely symptomatic that it may otherwise have been. Mr Ireland considered there was no relationship between the bilateral carpal tunnel syndrome and the basal thumb joint arthritis which developed subsequent to the onset of the carpal tunnel syndrome.
The Position of the Defendant
116 The defendant submits that the undoubted lumbar and cervical spondylosis suffered by the worker is either unrelated to her employment in any way, or alternatively, consistent with the view of Mr Simm, the employment activities of the plaintiff temporarily aggravated symptoms in her back and neck when she was performing such work but did not contribute to any of the pathology which is now giving symptoms in those areas. Furthermore, on any view of the evidence, the plaintiff had symptoms in her neck, back, right wrist and symptoms of bilateral carpal tunnel syndrome prior to 20 October 1999 and indeed, for some time prior to that date. In such circumstances, it is submitted, how can a Court identify her employment on or after 20 October 1999 contributing to any of those conditions to give rise to a serious injury?
Conclusions
117 I refer to the Court of Appeal decision of Grech v Orica Australia Pty Ltd & Anor [2006] VSCA 172. Such case has some similarities to the present factual matrix in that it involved a worker being employed for some thirty years with the same employer until being made redundant in May 2002. The worker had sought leave to bring common law proceedings in relation to a bilateral carpal tunnel syndrome, relying on paragraph (a) of the definition of “serious injury” and psychiatric injury.[64] The worker failed at first instance and on appeal was successful with the matter being remitted to the County Court.
[64]Relying on paragraph (c) of the definition of “serious injury”.
118 In essence, the worker alleged that he felt a gradual build up of stress from 1991 by reason of various incidents at his place of employment and from about probably 1999 he began to experience mild panic attacks and after 20 October 1999 he suffered an episode of palpitations and on 3 January 2001, there were specific circumstances at work that day which the worker found to be stressful. In relation to the bilateral carpal tunnel syndrome, the worker commenced to notice intermittent numbness and pain in his hands at night in 2000 and symptoms worsened, causing him to consult a nurse on 8 September 2000 and thereafter referred for medical treatment. It was accepted that the carpal tunnel syndrome would have developed over time, and in particular would have commenced before 20 October 1999.
119 The decision at first instance relied much on the decision of Barwon Spinners Pty Ltd v Podolak & Ors[65] and the proper approach in determining what “injury” gave rise to symptoms manifesting themselves after 20 October 1999 in circumstances where the bilateral carpal tunnel syndrome and the psychiatric state would have commenced prior to 20 October 1999.
[65]Barwon Spinners Pty Ltd v Podolak & Ors (op cit) [2005] VSCA 33
120 Ashley JA, who delivered the substantial judgment of the Court (the balance of the Court consisting of Buchanan and Chernov JJA), speaks of the appropriate “template” to be utilised where injuries are of a progressive type and straddle periods of employment before and after 20 October 1999.
121 I refer initially to part of the judgment of Chernov JA in Grech, wherein he states:
“In that case [Barwon Spinners Pty Ltd v Podolak & Ors] the court made it plain that the plaintiff must identify the compensable injury (in respect of which he or she claims there is an entitlement to compensation under the Accident Compensation Act 1985) and establish that it occurred on or after 20 October 1999. … The court effectively said that, where the injury has its foundation in circumstances that were referable to the worker’s employment prior to the due date but continued to evolve thereafter, it was for the worker to identify, for the purposes of subs (1), the compensable injury in respect of which he or she claims to be entitled to compensation and establish that it is referable to employment on or after the due date, but not before it. The court did not say, however, that merely because the injury had its foundation in the work environment prior to the due date and has been ongoing it necessarily meant that the plaintiff was ‘out of court’ for the purposes of subs (1). As Ashley JA explains, there is an important difference between injury and the consequences of injury. Whether the injury is compensable and whether it occurred post the due date are questions of fact that must be determined by reference to the circumstances of the particular case. Thus, for example, it may be that an injury that had its onset in the work place some years prior to 20 October 1999 and was ‘ongoing’ or evolving, but which only manifested itself, say, at the end of 1999, would not be regarded for the purposes of subs (1) as a compensable injury that relevantly occurred after the due date. On the other hand, as his Honour makes clear by reference to the likely scenario in this case, although the appellant may have sustained injury — even a compensable injury and one that was ‘ongoing’ — before the due date, the evidence may nevertheless show that the injury, as distinct from a manifestation of an earlier injury, in respect of which the worker became ‘entitled to compensation’ within the meaning of subs (1), was sustained after the due date.”[66]
[66] Grech v Orica Australia Pty Ltd [2006] VSCA 172 at paragraph [2] – [3]
122 Ashley JA states, in part:
“So, as the Act stood when the plaintiff allegedly suffered injury, and when he was last employed by the defendant, s 134AB(1) addressed injuries which conformed with the then definition, and which met one of the conditions of compensability, provided that such injury was sustained, and that the condition of compensability was satisfied, on or after 20 October 1999.
This must be clearly kept in mind. Such an injury could not at the same time be an injury which conformed with the statutory definition and met one of the conditions of compensability before 20 October 1999. That is so even if the two injuries were to the same body part; or if the injury later in time was an aggravation of the injury earlier in time. That is so, also, even if — as here — the worker had the same employer before and after 20 October 1999.
Then consider what s 134AB permitted. In short, subject to restrictions, it permitted the recovery of damages in respect of an injury which satisfied a condition of compensability on or after 20 October 1999. Such a right was not to be confused with a right of recovery of damages in respect of compensable injury sustained between 12 November 1997 and 19 October 1999 — for the injuries were necessarily not the same. The latter was prohibited — subject to exceptions — by s 134A.
Understanding the structure of the Act casts light upon what the court meant in Barwon Spinners when it referred to injury ‘linked’ or ‘referable’ to employment on or after 20 October 1999, ‘but not to employment before it’. It was a way of emphasising that the only injury which could give rise to a right to recover damages under s 134AB was an injury which met a condition of compensability on or after 20 October 1999. The plaintiff must first establish and identify such an injury, and then establish that its consequences met the statutory definition of serious injury.”[67]
[67]See Grech v Orica Australia Pty Ltd [2006] VSCA 172 (op cit) at paragraphs [51] – [55]
123 Later, when speaking of the differences between injury and its consequences, Ashley JA stated:
“Returning to that difference, it cannot be doubted that compensable injury may be sustained which does not have present consequences yielding an entitlement to compensation. Indeed, an injury may never have such consequences. Again, it is quite possible — it will be a matter for determination according to the evidence in the particular case — that each of two or more compensable injuries is a legally sufficient cause of the same consequences.
The second of those propositions turns on the words of the Act. Most often, a consequence is compensable if it ‘results from or is materially contributed to by an injury. The concept of material contribution was a later addition to workers compensation legislation. But even before that addition, the causal connection required by the words ‘results from’ had been construed to require much less than that injury be the sole cause of a consequence. It is argued by Hill & Bingeman - 38#38 that, given such a history of construction, the causal requirement imported by ‘material contribution’ should be taken to be a lesser requirement still than that encompassed by decisions construing the words ‘results from’. It is unnecessary to say whether that proposition should be accepted. It is enough to say that the Act, as with its predecessors, contemplates that a consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.”[68]
[68]Grech v Orica Australia Pty Ltd [2006] VSCA 172 (op cit) paragraphs [57] – [58]
124 As Ashley JA acknowledges, an employer could contend that all or some part of the consequences in respect of which a worker seeks to recover damages were caused only by compensable injuries sustained in the period 12 November 1997–19 October 1999. In such circumstances, whether it be an application under s134AB or the trial of a permitted proceeding, the issue would then become one of evidence in a similar way in circumstances where a defendant may assert that a plaintiff who is seeking to recover damages as a result of some earlier statute-barred incident or some incident in a domestic setting.
125 After consideration of all the evidence, I find that the plaintiff’s employment on or after 20 October 1999 up until approximately October 2006 has contributed to an aggravation and acceleration of her lumbar and cervical degeneration, her bilateral carpal tunnel syndrome and her right thumb basal joint osteoarthritis. In particular, I consider that the employment over the period from 20 October 1999 until approximately mid-2001, when she was performing all aspects of her sewing work involving all types of leather, caused such an aggravation and acceleration. Although the workload lessened in some respects after mid-2001, she continued to perform sewing activities until approximately April 2006. Such work involved the use of scissors, holding her neck in a flexed position, twisting and turning to gather material, carrying loads of material weighing up to 5 kilograms on a reasonably regular basis, and some degree of bending. Again, I consider such employment caused an aggravation and acceleration of her lumbar and cervical degeneration, her bilateral carpal tunnel syndrome and her right thumb basal joint osteoarthritis.
126 Accordingly, I am satisfied that the plaintiff has suffered a compensable injury to her neck, back, right thumb, and both lower arms and hands, on or after 20 October 1999. Furthermore, consistent with the decision of Grech, I find that such injuries are a cause of the consequences now suffered by the plaintiff in those areas of her body.
127 I do accept that her employment with the defendant prior to 20 October 1999 also aggravated and accelerated the medical conditions which have given rise to her present complaints. On the basis of both her histories to various doctors, and in particular her treating general practitioner, and the radiological studies, the plaintiff was clearly experiencing various symptoms in her back, neck, and arms, prior to 20 October 1999. However, I do not accept that her present symptoms can be wholly understood to be either a consequence of an underlying pathological condition in the affected areas or, alternatively, a work injury which was suffered prior to 20 October 1999.
128 I have made such findings for the following reasons:
(a)In relation to the neck and back conditions, I prefer the evidence of the treating general practitioner (Dr Loke); the general surgeon Mr Michael Flaim; the neurosurgeon Mr David Brownbill; and the orthopaedic surgeon Mr Russell Miller. Although each of these doctors consider that all of the employment of the plaintiff with the defendant contributed to an aggravation of her constitutional condition, such opinions logically encompass that period on or after 20 October 1999. Mr Brownbill in particular expressly opines that such employment contributed to such an aggravation.
(b)Such medical opinion accords with the factual circumstances, in that the plaintiff’s symptoms in the affected areas “worsened” over the years from 20 October 1999, leading up to her changing the nature of her duties in mid-2001 and more dramatically so in April 2006. It is to be stressed that although the plaintiff was experiencing some symptoms prior to October 1999, she lost little or no time from work, or a change of duties, until after 20 October 1999.
(c)Although Mr Simm seemingly accepts there was some temporary “aggravation” of her symptoms when performing the work, I do not accept his opinion that such aggravation ceased when employment came to an end in the face of the other medical opinions including that of the treating general practitioner. On the evidence, I find that her symptoms deteriorated throughout the period of her employment after 20 October 1999 and indeed never really improved after the cessation of employment.
(d)In respect to the bilateral arm condition (including the right thumb basal joint osteoarthritis) I prefer the opinions of Dr Loke, Mr Flaim, Mr Miller, the occupational physician Dr Castle, and in particular that of the hand specialist Mr Ireland. In particular, I consider it of some importance that the right hand of the plaintiff (her dominant hand) has shown greater evidence of carpal tunnel syndrome (compared to the left) and greater osteoarthritis in the right thumb. It is to be remembered that the plaintiff was frequently using scissors to cut leather and materials during the course of her employment at least until mid-2001, and in general up to April 2006.
I also note that the treating hand specialist, Mr Slattery, accepts an indirect relationship to employment because he considers that the employment has contributed to an aggravation of the right thumb arthritis.[69] Although accepting that the plaintiff presented with some symptoms consistent with carpal tunnel syndrome prior to October 1999, it is clear enough on the evidence that again such condition worsened over that period from October 1999 in the face of performing repetitive work such as she was performing prior to October 1999.
[69]Although such an opinion is disputed by Mr Ireland, who considers that the basal thumb arthritis post-dated the onset of carpal tunnel syndrome
129 When queried by the Court, counsel for the defendant submitted that if there was a compensable injury on or after 20 October 1999 which materially contributed to the claimed medical conditions, such consequences of any impairment did not satisfy the narrative test.
130 Counsel for the defendant fairly conceded that there was no material on which to challenge the consequences that are set out in the affidavits sworn by the plaintiff and, for that matter, sworn by her husband.[70] I refer to the affidavits of the plaintiff and that of her husband and in particular to paragraphs 13 to 14 of her first affidavit, paragraphs 2 to 16 of her second affidavit and paragraphs 5 to 13 of the affidavit of the husband of the plaintiff.
[70]T 24, L 6
131 Consistent with my earlier findings as to her credit, I accept that the plaintiff suffers from the variety of consequences that she describes in such affidavits. Although it is unclear whether the Panadol tablets she takes every day is referrable to all her conditions, or one particular condition, I accept that she suffers pain in her low back in particular, her neck, both lower arms as a result of the bilateral carpal tunnel syndrome and right thumb arthritis.
132 Counsel for the defendant did not raise any particular issue as to identifying the body function as the “spine” including the neck and the low back. Indeed, in the circumstances of this matter, I am of the opinion that little turns on any technical distinction. If indeed, one was disposed to look at the back and neck independently, the same result would be achieved – each injury is a “serious injury” within the meaning of the Act.
133 However, for present purposes, I do find that the injury to the spine as so found is permanent and satisfies the requirements of the narrative test. Furthermore, I also find that the injuries consisting of the bilateral carpal tunnel syndrome and the right arthritic thumb as so found give rise to permanent impairment with consequences which satisfy the narrative test.
134 In particular, I accept that the “spinal injury” gives rise to constant pain which causes disturbance in sleep, difficulty doing shopping, household chores, driving, gardening, walking for any distance or sitting for any length of time. Furthermore, and in particular, I find that the bilateral arm condition is permanent and has residual symptoms in both the left arm and the right as a result of her carpal tunnel syndrome and her right thumb osteoarthritis. In particular, I find that notwithstanding surgery to the right wrist, which gave some relief, the plaintiff has ongoing residual symptoms from that condition (as found by Dr Loke, Mr Flaim, Dr Castle and Mr Miller). The impairment in her lower arms consists of, pain, inability to prepare vegetables, inability to clean and wash dishes, inability to perform gardening work and an inability to perform any knitting or crochet work as she performed prior to such injuries.
135 Although the age of the plaintiff is relevant in assessing the pain and suffering consequences, I consider that the consequences resulting from the relevant impairments impact virtually on every aspect of the plaintiff’s life causing her pain and distress.
Conclusions
136 Accordingly, I grant leave to the plaintiff to bring common law proceedings in respect of the spinal injury (more particularly injury to the low back and neck) and a bilateral wrist and hands injury (including an arthritic right thumb) sustained by her during the course of her employment on or after 20 October 1999.
137 I will hear the parties on any other issues.
ANNEXURE “A”
(1) The plaintiff tendered the following material:
Exhibit 1
· Two affidavits of the plaintiff sworn 1 December 2010 and 11 April 2012 found at pages 5−15 of the Plaintiff’s Court Book (“PCB”).
· Affidavit of Ante Tomasovic (the husband of the plaintiff) sworn 11 April 2012 found at pages 16−19 PCB.
Exhibit 2
· X-ray of the lumbosacral spine dated 7 July 1999 at page 20 PCB.
· CT scan of the lumbosacral spine dated 22 October 1999 at page 21 PCB.
· X-ray of the cervical, thoracic and lumbar spines dated 29 June 2001 at page 24 PCB.
· MRI of the lumbar and thoracic spines dated 10 March 2002 found at page 25−26 PCB.
· Nerve conduction studies dated 28 October 2002 at page 27 PCB.
· X-ray of right thumb dated 23 December 2004 at page 29 PCB.
· Nerve conduction studies dated 4 April 2005 at page 30 PCB.
· Operational report in relation to right endoscopic carpal tunnel release dated 22 May 2008 at page 32 PCB.
Exhibit 3
· Medical reports of the treating general practitioner, Dr Loke, dated 3 October 2004, 28 February 2008, 14 January 2009 and 28 May 2012 at pages 33−39 PCB.
· Medical report of treating neurosurgeon, Mr Andrew Danks, dated 28 June 2004 at page 40 PCB.
· Medical report of treating hand surgeon, Mr Philip Slattery, dated 12 December 2008 at page 43 PCB.
Exhibit 4
· Medical reports of general surgeon, Mr Michael Flaim, dated 26 May 2009 and 21 February 2011 at pages 46−52 PCB.
· Medical report of occupational physician, Dr Charles Castle, dated 27 July 2009 at pages 53−55 PCB.
· Report from the neurosurgeon, Mr David Brownbill, dated 9 November 2011 at pages 62−68 PCB.
· Medical report of orthopaedic surgeon, Mr Russell Miller, dated 19 May 2012 at pages 70−78 PCB.
Exhibit 5
· Clinical notes from the Boronia Medical Centre found at pages 108−110 PCB.
Exhibit 6
· Worker’s Claim for Impairment Benefits form dated 31 January 2005 at pages 348−349 PCB.
· Letter from agent of Victorian WorkCover Authority dated 31 January 2005 at pages 350−358 PCB.
Exhibit 7
· Medical report of hand specialist, Mr Damian Ireland, dated 16 February 2011 at page 12−16 of Defendant’s Court Book (“DCB”).
Exhibit 8
· Clinical records of Dr Kit Loke at pages 35−36 DCB.
(2) The defendant tendered the following material:
Exhibit A
· Report of the general surgeon, Mr Peter Battlay, dated 19 March 2009 at pages 1−4 DCB.
· Medical report of the orthopaedic surgeon, Mr Rodney Simm, dated 15 February 2011 at pages 5−11 DCB.
Exhibit B
· Letter from Moran Furniture Pty Ltd to plaintiff dated 11 November 2002 at pages 54−56 DCB.
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