Tran v VWA

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-24-06274

THI DIEM TRANG TRAN	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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JUDGE:	HIS HONOUR JUDGE GINNANE
WHERE HELD:	Melbourne
DATE OF HEARING:	27 October 2025
DATE OF JUDGMENT:	21 November 2025
CASE MAY BE CITED AS:	Tran v VWA
MEDIUM NEUTRAL CITATION:	[2025] VCC 1702

REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords:              Serious injury application – disaggregation of bilateral wrists work injury – whether aggravation ceased - range
Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Puhovac v VWA [2024] VCC 1591; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1.
Judgment:                  Application Granted

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr V A Morfuni KC Ms O Go	Zaparas Lawyers
For the Defendant	Ms J Zhu	Lander & Rogers

HIS HONOUR:

Introduction
1The plaintiff initially sought relief under paragraph (a) and (c) of the definition of serious injury as well as for economic loss. The Particulars of Injury of the impairment under paragraph (a) were expressed as the loss of function of the plaintiff’s bilateral upper limbs, bilateral hands, bilateral wrists, and bilateral thumbs.

The limited and revised nature of the application
2When the matter commenced the plaintiff’s Senior Counsel, Mr Morfuni, abandoned reliance on paragraph (c) and also the claim for economic loss and relied only on paragraph (a). Moreover, the reliance was to that of the wrists. When I referred to the stumbling block associated with assessing some bilateral injuries as an impairment to one body function,[1] Mr Morfuni did not seek to amend the particulars of injury, although he agreed that that the bilateral injuries pleaded could not be aggregated and instead submitted that the primary focus would be to the impaired function to the plaintiff’s left wrist. He submitted that each wrist could be disaggregated from the other for the purposes of a determination of serious injury. Mr Morfuni also submitted that the impairment to the function of the plaintiff’s right wrist and separate to the left wrist could be independently assessed as satisfying the test for the grant of a serious injury certificate.
[1]Puhovac v VWA [2024] VCC 1591.
3The fact of, or at least the recognition by the plaintiff of the problems associated with the aggregation of the right and left wrist as an impairment to a single body function, perhaps was foreshadowed by and reflected in a very late filed report from Mr Ash Chehata to which no objection was raised by the defendant.
4Ms Zhu of counsel who appeared for the defendant submitted in opening that the issues raised by the plaintiff’s application are those of:
·        Diagnosis;
·        Causation i.e. work relatedness; and
·        Range.

Relevant Legal Principles – Serious Injury
5The law in relation to the test the plaintiff must meet is not in dispute in this case.[2] The plaintiff must prove that she has a permanent impairment or a loss of a body function, the consequences of which, when judged by comparison with other cases in the range of possible impairments or losses of body functions may fairly be described as more than significant or marked, and as at least being very considerable.
[2]s325(1) Workplace Injury Rehabilitation and Compensation Act 2013.

The Documentary Evidence
6The plaintiff relied on the following evidence:
(a)   Particulars of Injury dated 16 December 2024;[3]
[3]Exhibit P1, Plaintiff Court Book (“PCB”) 23.
(b)   Affidavit of the Plaintiff dated 18 June 2024;[4]
[4]Exhibit P2, PCB 24-29.
(c)   Affidavit of the Plaintiff dated 18 Feb 2025;[5]
[5]Exhibit P3, PCB 30-33.
(d)   Report of Mr Michael Phoon dated 8 April 2021;[6]
[6]Exhibit P4, PCB 34.
(e)   Report of Ms Jessica Godwin dated 2 December 2021;[7]
[7]Exhibit P5, PCB 35.
(f)    Report of Mr Stephen Tham dated 12 April 2022;[8]
(g)   Report of Dr Peter Lackner dated 3 August 2023;[9]
(h)   Report Dr Nancy Do dated 25 August 2023;[10]
(i)    Report of Dr Nancy Do dated 15 January 2025;[11]
(j)    Report of Mr Ash Chehata dated 20 July 2023;[12]
(k)   Report of Mr Ash Chehata dated 15 November 2023;[13]
(l)    Report of Mr Ash Chehata dated 17 December 2024;[14]
(m)     Report of Dr James Crompton dated 10 September 2022;[15]
(n)   Report of Mr Ash Chehata dated 18 June 2025;[16]
(o)   Report of Mr Ash Chehata dated 24 October 2025.[17]
[8]Exhibit P6, PCB 36.
[9]Exhibit P7, PCB 37-38.
[10]Exhibit P8, PCB 39.
[11]Exhibit P9, PCB 40-41.
[12]Exhibit P10, PCB 48-51.
[13]Exhibit P11, PCB 52-54.
[14]Exhibit P12, PCB 55-63.
[15]Exhibit P13, PCB 86-98.
[16]Exhibit P14, PCB 99-104.
[17]Exhibit P15, PCB 105-109.
7The defendant relied on the following evidence:
(a)   Ultrasound Left Wrist dated 30 March 2021;[18]
[18]Exhibit D1, PCB 42.
(b)   MRI Right Wrist dated 13 October 2021;[19]
[19]Exhibit D2, PCB 43.
(c)   X-Ray and Ultrasound Right Wrist dated 13 May 2022;[20]
[20]Exhibit D3, PCB 44.
(d)   Bilateral Wrist Ultrasound dated 24 June 2022;[21]
(e)   MRI Left Wrist dated 12 October 2021;[22]
(f)    X-Ray and Ultrasound Bilateral Wrists dated 28 August 2023;[23]
(g)   Report of Dr Peter Lackner dated 4 April 2022;[24]
(h)   Report of Dr Peter Lackner dated 13 December 2022;[25]
(i)    Report of Dr Brett Halliday dated 15 March 2022;[26]
(j)    Report of Dr Brett Halliday dated 4 May 2022;[27]
(k)   Report of Dr Loretta Reiter dated 28 March 2025;[28]
(l)    Report of Dr Mary Wyatt dated 28 March 2025;[29]
(m)     CoWork Vocational Assessment and Labour Market Analysis report dated 27 May 2025.[30]
[21]Exhibit D4, PCB 45.
[22]Exhibit D5, PCB 46.
[23]Exhibit D6, PCB 47.
[24]Exhibit D7, Defendant Court Book (“DCB”) 8.
[25]Exhibit D8, DCB 9.
[26]Exhibit D9, DCB 10-20.
[27]Exhibit D10, DCB 21-23.
[28]Exhibit D11, DCB 24-34.
[29]Exhibit D12, DCB 35-46.
[30]Exhibit D13, DCB 72-137.
8I have read and had regard to the affidavit evidence, cross-examination and re-examination of the plaintiff, and the medical and vocational evidence,[31] relied on by the parties. In the reasons that follow, I have referred to only such of the evidence that has proved necessary to explain the basis of the decision I have reached.
[31]A CoWork report was tendered by the defendant but of itself it does not bear on the outcome of the application.

The Affidavits
9The plaintiff made two affidavits in support of her Originating Motion dated 18 June 2024 and 18 February 2025.
The First Affidavit 18 June 2024
10The plaintiff was born in 1974 in Vietnam and it was there that she finished school and then studied accounting. She worked in the finance industry doing the books.
11In around 2003 the plaintiff arrived in Australia. She was unemployed until around 2012. From 2012 to 2014 she worked as a hairdresser.
12On 26 May 2014 the plaintiff commenced work with Australian Pharmaceutical Manufacturers Pty Ltd (“the employer”) as a casual picking operator. She worked about 38 hours per week and performed approximately 10 hours of overtime per week.
13The plaintiff’s duties involved working inside and outside a cleaning room, and placing bottles on a conveyer belt, checking that caps were properly secured, wiping bottles free from powder, weighing tablets, scooping tablets from a tub into a hopper, depositing bottles into a bottle unscrambler, hand placing and conducting quality checks. Outside of the cleaning room she packed shrink wrap bundles into shippers, pushed tape shippers and labelled boxes. The plaintiff said that the work placed considerable strain on her wrist and her hands.
Medical History
14The plaintiff said that in about 2016 after the birth of her daughter she developed right wrist pain. She was provided pain relief and a splint. She said she could not recall a formal diagnosis being made but that the pain settled.
Injury and Treatment
15The plaintiff claims to have first noticed sore hands when performing her normal duties with the employer in about 2019. The symptoms settled with rest but she continued to occasionally experience pain in both hands and wrists but that this again settled with rest.
16In about February 2021 the plaintiff noticed pain in her left hand and wrist when undertaking her normal duties at work. The pain became progressively worse. The pain did not go away. She saw her GP, Dr Nancy Do, on 15 February 2021 concerning her pain. She tried to use her left hand less. She said she also developed symptoms in her right hand and wrist.
17On 30 March 2021 the plaintiff underwent an ultrasound of her left wrist which she understood was normal. She kept working. On 13 May 2021 she had an ultrasound and x-ray of her right wrist.
18On 20 May 2021, at the suggestion of her employer, she saw the company doctor, Peter Lackner. On about 31 May 2021 she commenced hand therapy.
19In about April 2021 the plaintiff stopped work because of pain in both of her wrists. She returned about a week later on modified duties but said this nonetheless aggravated her pain.
20On about 13 October 2021 the plaintiff had an MRI on her right wrist.
21On 12 April 2022 she attended on hand surgeon, Mr Stephen Tham.
22On about 18 June 2022 the plaintiff ceased work completely. The employer was unable to continue to offer the plaintiff modified duties.
23On about 24 August 2023 the plaintiff had x-rays and ultrasounds on both of her wrists.
Consequences
24The plaintiff deposed to continuing to experience pain in her left wrist and that is made worse with its use. The plaintiff deposed that she also has pain in her right wrist but it is not as severe. She says she often wears a brace to help support each wrist.[32]
[32]The plaintiff said she was not wearing a brace on the day of the hearing.
25The plaintiff said she was taking Panadol for the pain about three times per week.
26The plaintiff said that prior to her injury she would sleep through the night but that now her left wrist pain wakes her during the night.
27She said she can shower independently but squeezing a face towel to wash her face aggravates her wrist.
28The plaintiff deposed that her left wrist pain is made worse by vacuuming, cleaning the bathroom and doing the washing. She said that she used to undertake these tasks pain free. She has become reliant on her partner for the vacuuming. She said she was still able to clean the bathroom but that there is a long time between cleaning to avoid making her pain worse. She occasionally performed laundry washing but once again is reliant on her partner and daughter to do it most of the time.
29The plaintiff cannot wheel the rubbish bin outside due to pain and depends on her partner to do so.
30The plaintiff said that she used to enjoy cooking. Since she injured her wrist cooking aggravates her pain when it is associated with actions that require chopping meat and vegetables, opening jars and packets. Although she said she can still cook, the task takes her a lot longer, and she confines herself to making simple meals. Cooking is no longer the pleasurable activity for her that it had been.
31The plaintiff deposed to having enjoyed baking and her hobbies included making pastries, but her injury prevents her from kneading dough and so this is another activity that has been lost to her.
32The plaintiff said she no longer enjoyed grocery shopping as she once did. She used to enjoy picking fresh produce but carrying shopping bags hurts her wrist and instead she performs a few small shops rather than the big market shop as used to be the case.
33The plaintiff said that driving makes the pain in her left wrist worse and hence she does not drive as often as she used to.
34The plaintiff deposed that she used to wash her daughter’s hair but due to wrist pain she no longer does so.
35Prior to her injury the plaintiff enjoyed swimming with her daughter but she has been unable to do so because the swimming action makes her wrist pain worse.
36The plaintiff deposed that her injury has impacted her intimacy with her partner.
37The plaintiff said that her right wrist pain impacts her activities in a similar way to her left but that the pain associated with the right wrist is not as bad as the left wrist pain.
38The plaintiff said her left wrist pain precludes her from returning to work. She has limited computer skills and her English is poor. She said in light of her struggling with simple tasks at home, she does not think she would cope with manual work.
The Second Affidavit
39The plaintiff deposed that at the end of 2024 she completed a Certificate III in Support Work. This was part-time twice a week. She does not believe she could undertake the duties of a support worker because it involves heavy tasks such as helping the elderly, taking them shopping or attending medical appointments along with domestic cleaning work for residents at aged care centres.
40In December 2024 the plaintiff her partner and daughter travelled to Vietnam for 6 weeks. She said that whilst there family assisted her and allowed her to rest.
41The plaintiff says she still experiences pain in her left wrist and that it worsens with use but that rest helps alleviate the pain.
42The plaintiff deposed that the pain in her right wrist is still present but her left wrist presents much worse.
43The plaintiff said she is taking Nurofen and Panadol approximately two or three days a week and with a dosage of four or six tablets on each of those days.
44The plaintiff said that she continues to suffer difficulty sleeping due to the pain in both wrists which play up at different times. She says that stress and anxiety from which she suffers also adds to her disrupted sleep.
45The plaintiff said she will wear a brace on each of her hands to support her wrists when they are in pain.
46She is able to shower and dress without assistance. She washes her hair but with difficulty because of the awkwardness and pain when needing to twist her left wrist in that exercise.
47She struggles with any heavy chores such as vacuuming and lifting. It is difficult for her to utilise her left wrist for washing and drying dishes. She struggles to hold heavy plates or saucepans with her left hand.
48She does little grocery shopping. She carries items by hugging them with her forearms or shoulder as opposed to using her hands and wrists.
49She is limited in her driving because of the pain in both wrists.
50The plaintiff deposed that her husband still does the vacuuming and the heavy chores at home. She said she cleans the bathroom but not as often as she used to due to pain mainly in her left wrist. Her husband helps wheel the rubbish bin outside because her doing so causes left wrist pain.
51The plaintiff said she cooks because she regards it as her obligation as wife and mother but does so less now than prior to the accident. She misses baking. Her husband changes the bedsheets because doing so makes her left wrist pain worse. She is despondent that she is unable to swim with her daughter and it was an activity they enjoyed doing together.
52Her left wrist injury has affected her relationship with her husband because of her lessened mood.

The Plaintiff’s Medical Evidence
Mr Michael Phoon
53The plaintiff’s treating physiotherapist Michael Phoon wrote to Dr Lackner on 8 April 2021 noting that the plaintiff had been referred to him. He said his initial consultation with the plaintiff occurred on 30 March 2021 when she reported symptoms of one month of bilateral forearm pain left and right, and of her work aggravating her pain but of an easing of pain with rest.
54Mr Phoon said that he believed the plaintiff’s symptoms may be related to a forearm strain from overuse. He identified reduced wrist and grip strength in her left arm, and although without pain she was hesitant to push.
Ms Jessica Godwin
55Jessica Godwin is an Occupational Therapist/Hand Therapist. In December 2021 she wrote to Mr Ang, a consultant orthopaedic surgeon who had seen the plaintiff, and thanked him for doing so in relation to bilateral thumb/wrist pain.
56Mr Ang said the plaintiff presented to Re-Wired Hand Therapy on the 31 May 2021 following referral from Dr Lackner. The plaintiff reported bilateral wrist and thumb pain but that was worse on the left. She reported a history of ganglions and tenosynovitis and a splint had been fabricated but she had shown poor compliance with its full time use and had been removing it for light activities and, there had been no success in reducing her symptoms.
57Ms Godwin wrote that the plaintiff’s presentation demonstrated a direct correlation between her symptoms and work duties and that was evidenced by pain when working and failure to reproduce with provocative testing. She said that an MRI was ordered which showed a 5mm ganglion across the right radial wrist and mild tenosynovitis across the left. Objective measurements she took included:
·        Strength: L)10kg R)10kg
·        Pinch Strength: L)2.5kg R)2kg
·        L) nil pain on palpation across 1st dorsal compartment, - finklestein, - WHAT, mild tightness across extensor mass
·        R) nil pain on palpation across 1st dorsal compartment, mild pain across scaphoid ?ganglion site, - finklestein, - WHAT, mild tightness across extensor mass.
Mr Stephen Tham
58Mr Stephen Tham is an Orthopaedic Surgeon who saw the plaintiff on referral from Dr Peter Lackner. He reported to Dr Lackner on 12 April 2022. He said the plaintiff had noticed pain largely on the volar and ulnar aspect of her left wrist but also to a certain extent in her right wrist for the last twelve months. Mr Tham said that the plaintiff’s symptoms appeared to be activity related particularly in the repetitive nature of her work of packing medicine. He said that her overall symptoms had somewhat worsened but had improved since modifying her work activities. Clinical examination of her left wrist was unremarkable without areas of tenderness or evidence of instability. There was no evidence of tendonitis. Provocative testing for carpal tunnel or Guyon's Canal entrapment were negative. He noted MRI scans had been performed on both wrists and with the results being essentially normal. He said he felt that the plaintiff’s overall symptoms are activity related and not due to any objective cause. He felt that the best treatment option would be for her to continue on her alternate duties and to refrain from returning to her previous job packing as it is likely that her symptoms would worsen.
Dr Peter Lackner
59Dr Lackner provided a medical report dated 3 August 2023 in response to a request by the plaintiff’s solicitors. Addressing diagnosis, Dr Lackner wrote that following numerous consultations his impression was of bilateral wrist pain. As to the right wrist he said he thought the plaintiff has had a De Quervans [sic] synovitis with (tenosynovitis of the abductor pollicis longus and extensor pollicis brevis tendon).[33] As far as the left wrist is concerned, initially it was diagnosed as a wrist sprain associated with a development of a 6 mm x 4 mm ganglion below the abductor pollicis and extensor pollicis tendons. He said that a year later a repeat ultrasound had provided signs that there was no further ganglion present in the left wrist. In summary, Dr Lackner offered a diagnosis of bilateral wrist pain, possibly on the right a De Quervans synovitis and on the left a similar type of tenosynovitis.[34]

[33]        Exhibit P7, PCB 37.
[34]        Ibid.
60In response to being asked to comment if the bilateral wrist injury continues to be contributed to the plaintiff’s employment, Dr Lackner said that it appeared that the plaintiff had presented for at least the last year not being able to return to work “because the company has insisted she should not return unless she is pain free”.[35] He said the plaintiff had continued to describe pains in both wrists, sometimes more on the left than the right, and that causes her pain with performing certain activities at her home such as cleaning, cooking and the like. Dr Lackner related that the plaintiff had been seen by an orthopaedic hand surgeon as well as a hand therapist. He was unaware that the plaintiff had obtained any cortisone type of treatment to either wrist. He said that the surgeon had noted the MRI scans of the wrists and did not believe the plaintiff had De Quervans tenosynovitis but that the symptoms of her wrists pain could be related to her work activities of packing pharmaceuticals. On examination of the plaintiff’s wrists, Dr Lackner found no obvious deformities, swellings or restrictions in range of movements to either wrists and from the investigations that were provided including MRIs of both wrists and follow up of ultrasounds, there was no obvious pathology demonstrated towards the end of his course of involvement for treatment of the plaintiff. He said he last saw the plaintiff on 10 January 2023.
[35]        Ibid.
61Dr Lackner said that in his opinion, the plaintiff appeared fit for unrestricted duties based on findings and investigations.
Dr Nancy Do
62Dr Do is the plaintiff’s General Practitioner, and she was requested by Zaparas Lawyers for a medical report. By way of letter dated 25 August 2023, Dr Do said she has been treating the plaintiff for general health complaints. However, she said she had not treated her for her work-related bilateral wrist injury. She said she saw her only a few times regarding her wrist condition and this occurred whenever the plaintiff could not get in to see the doctor treating her injury.
63In a later report dated 15 January 2025, Dr Do offered an opinion that the clinical diagnosis could possibly be bilateral wrist strain and pain from recurrent tenosynovitis but that she did not have any specialist investigation or opinion regarding the condition. As to whether she considered on the balance of probabilities that the nature of the plaintiff’s employment is a cause and continues to be a cause of the plaintiff’s bilateral wrists injury, Dr Do said, that “If the diagnosis is bilateral wrist strain, it is more likely that the nature of Ms Tran's employment could be a cause and continue to be the cause as her work involves packing which is repetitive”.[36]
[36]        Exhibit P9, PCB 40.
64Dr Do listed symptoms that the plaintiff experienced due to her bilateral wrists injury of pain, stiffness and weakness in both wrists. She suffered restriction in wrist movements of extension, flexion, supination and pronation and she had poor strength to hold/carry objects in both hands.
65Dr Do recommended no repetitive flexing or extending actions of both wrists, and no holding/carrying of weight in both hands as appropriate restrictions for the plaintiff’s bilateral upper limb condition. She said that the plaintiff should be assessed by an Occupational Therapist for more accurate work restrictions.
66Dr Do said she believed the identified restrictions as necessarily permanent.
67Dr Do said that the plaintiff’s wrist condition should be examined by specialists such as either an orthopaedic surgeon or rheumatologist for an accurate diagnosis and possible underlying pathology of her wrist pain and to implement possible treatment.
68Dr Do said that the plaintiff would benefit from a course rehabilitation to her wrists to focus on increasing muscle strength in her forearms so as to support her wrists.
69Addressing work capacity, Dr Do suggested that due to the bilateral wrists injuries, the plaintiff has no capacity to perform her pre-injury duties. She thought that the plaintiff possessed a realistic capacity for suitable employment on a permanent, sustained, consistent and reliable basis without the risk of re injury and/or aggravation but that to determine suitable employment and working hours, the plaintiff required a vocational employment and Occupational Therapy assessment.

Plaintiff Medico Legal Reporting
Mr Ash Chehata
70Mr Chehata provided a number of medico legal opinions following on from his examination of the plaintiff.
71In his initial report dated 20 July 2023, Mr Chehata said that examination of both of the plaintiff’s hands appeared to disclose a full range of movement in all fingers and thumbs. There was some very mild tenderness at the base of the CMC joint, although being very weakly positive in terms of any provocative testing and there was very little symptomatology. There were no signs of ulnar, cubital or carpal tunnel syndrome. Phalen’s and Tinel’s Tests were negative as was the De Quervain’s Finkelstein’s Test. She had a full range of movement with a normal grip and although she described quite significant and specific hypothenar and thenar eminence,[37] and even more proximal pain, it certainly appeared to be more suggestive of very early constitutional arthritis.
[37]The thenar eminence is the fleshy mound at the base of the thumb, while the hypothenar eminence is the corresponding fleshy area at the base of the little finger.
72Mr Chehata said that the specific diagnosis appeared to be an aggravation of bilateral CMC joint,[38] and STT joint arthritis.[39] He said it certainly appeared that the repetitive employment had aggravated constitutional STT and CMC joint arthritis and rather than a specific tenosynovitis or De Quervain’s tenosynovitis, it seemed that the repetitive nature, particularly of the pick packing, the plaintiff performed is likely to be the aggravating factor. He said that the symptoms appear to present with any repetitive use of the hand rather than a specific single use.
[38]A carpometacarpal joint, the articulation where a carpal bone (from the wrist) meets a metacarpal bone (from the hand).
[39]STT arthritis is osteoarthritis in the scaphotrapezoid-trapezoid (STT) joint of the wrist, causing pain and stiffness in the wrist and base of the thumb.
73Mr Chehata was satisfied on clinical examination, that there were no non-organic features or catastrophising features. He said the diagnosis certainly appeared to be of early degenerative changes at the CMC and STT joint, and which is likely to be constitutional and aggravated by the plaintiff’s repetitive employment.
74In a second report dated 15 November 2023, Mr Chehata wrote that he had been provided a copy of the plaintiff’s x-ray and ultrasound of her bilateral wrists dated 28 August 2023. In response to being asked by the plaintiff’s lawyers if this information altered the opinion he expressed in his first report, he wrote that the x-rays and ultrasounds dated 28 August 2023 unfortunately did not add much to the ultimate diagnosis. He said the wrist x-rays performed at Capital Radiology on 24 August 2023 confirmed STT joint arthritis with small cysts, “as would be expected”.[40] He said that although there is a paucity of reporting, the CMC joints appear to be fairly reasonable, although the right side does show some very early changes of CMC joint arthritis, slightly more than the left with small elements of calcification.
[40]        Exhibit P11, PCB 53.
75Mr Chehata said that, “Again, these images of both x-rays and ultrasounds, really fail to further support or deny a specific diagnosis. I would certainly feel that the initial diagnosis of at least a potential aggravation of very early CMC joint arthritis, STT joint arthritis and based on these latest films, of likely synovitis as a reactive phenomena, is more than likely to be the case but it certainly does not alter my opinion and I think essentially, the diagnosis remains the same”.[41]
[41]        Ibid.
76In a third report dated 17 December 2024, Mr Chehata wrote that having examined the plaintiff for her bilateral wrist pain, “It appears that she has intermittent and symptomatic CMC and STT joint arthritis, bilaterally worse on the left than the right, which appears to come and go, all consistent with likely arthritic change, likely aggravated by the repetitive pick packing which requires a lot of manoeuvring of the thumbs”.[42]
[42]        Exhibit P12, PCB 60.
77Mr Chehata said he thought it was likely that the plaintiff will be able to return to some form of employment, by way of administrative work or part-time work, and that this would be an ideal scenario considering that she has no restriction at the level of the wrist or thumb or hand but he also said that considering that she speaks minimal English, requires a Vietnamese interpreter, her transferable skills will certainly reduce her chance of gaining employment in the open job marketplace. He thought it was very difficult to ascertain exactly what sort of employment is feasible.
78Mr Chehata said that the bilateral wrist injuries had “certainly affected many of her activities of daily living and although she is fully independent, she often requires multiple breaks due to the ongoing ache and pain in the base of the thumbs”.[43]
[43]        Ibid.
79Mr Chehata provided a fourth report dated 18 June 2025 in which he responded to various questions that had been posed to him by the plaintiff’s solicitors concerning the proposed suitable employment that had been identified in a CoWork Pty Ltd report dated 31 March 2025.
80Mr Chehata wrote that the plaintiff has capacity for some form of employment, ideally administrative or part-time work, with permanent restrictions on heavy manual work and repetitive thumb use due to bilateral degenerative arthritis.
81In a sixth report dated 24 October 2025, Mr Chehata addressed the right wrist injury only. He confirmed an organic basis for the bilateral wrist injuries, noting that the plaintiff had been diagnosed with STT and CMC joint arthritis bilaterally,[44] with objective findings including full range of movement and arthritic changes visible on imaging. He said the symptoms suggested the arthritic nature of the condition comes and goes, and that he said is both very relevant and very reproducible in terms of medical history.
[44]Bilateral STT and CMC joint arthritis means both the scaphotrapeziotrapezoid (STT) and carpometacarpal (CMC) joints at the base of both thumbs have arthritis, a degenerative condition where the cartilage wears away. This can cause pain, stiffness, and loss of grip strength, particularly on both sides, and may require surgical options like trapeziectomy if non-surgical treatments are insufficient.
82Mr Chehata said that the plaintiff's employment was a significant contributing factor to the right wrist injury. He suggested that there has been an aggravation of constitutional age-related STT and CMC joint arthritis, likely aggravated by the repetitive nature of the pick packing. He said he had diagnosed bilateral CMC and STT joint arthritis as constitutional age-related degenerative changes that had been aggravated by repetitive work activities.
83Mr Chehata said that the right wrist injury reduces the plaintiff’s capacity to perform repetitive pick packing and heavy lifting or manual work, particularly pushing and pulling using the thumb is likely to be restricted. He assessed these restrictions as likely to be permanent considering her age and the progressive degenerative change. In daily activities, she has functional limitations with chopping meat/vegetables, opening jars/packets, twisting towels, swimming, and typing, with lifting capacity limited to about 2 kg.
84Mr Chehata said he was also of the opinion that there is an organic component to her left wrist pain and he mentioned that he had confirmed organic pathology with objective findings. He said that the October 2021 left wrist MRI showed a 5mm ganglion adjacent to distal pole of scaphoid, mild degenerative changes at scaphotrapezium-trapezoid articulation and 1st carpometacarpal join and that the “condition is very relevant and very reproducible in terms of medical history”.[45]
[45]        Exhibit P15, PCB 108.
85Mr Chehata expressed the opinion that the plaintiff’s employment was a significant contributing factor to the left wrist injury. He said that the condition represents aggravation of constitutional age-related STT and CMC joint arthritis, likely aggravated by the repetitive nature of the pick packing and that the specific work tasks involved repetitive manual handling duties over the course of employment from 2012 to June 2022.
86Mr Chehata said that the left wrist injury also imposes functional limitations on the plaintiff including chopping meat/ vegetables, opening jars/packets, twisting towels, swimming, typing with lifting capacity limited to about 2 kg. There are permanent restrictions on heavy lifting or manual work, particularly pushing and pulling using the thumb. These limitations affect her activities of daily living although she remains fully independent, she often requires multiple breaks due to ongoing ache and pain.

The Defendant’s Medical Evidence
87The defendant tendered a report from Dr Lackner to the WorkCover insurer dated 4 April 2022. He had been asked to provide a report with an opinion on four questions regarding the plaintiff and her return to work.
88Dr Lackner said he agreed with a report of Dr Halliday that the plaintiff has a constitutional condition of her left and right hand with minor degenerative changes which are not particularly work related but is able to return to her typical position despite her pain situation.
89Dr Lackner also said that he believed the plaintiff was able to return to her position as a packer but that the hours of packing work should be limited and slowly increased over months. He described ongoing physiological pain in the left and right wrist area.
90Dr Lackner was unable to explain her cause of pain other than some minor degeneration. He said the plaintiff has seen specialists and an independent assessor to help with defining her symptoms and ongoing treatments. He assumed that she would continue to have pain medication, perhaps hand therapy from time to time and was currently being reviewed for a second opinion from another plastic surgeon.
Dr Brett Halliday
91Dr Halliday is a Consultant Orthopaedic Surgeon who provided an independent medico legal report to the defendant insurer dated 15 March 2022. He reported that the plaintiff lived at home with her daughter who was then aged 5. She was at the time a single mother. She reported undertaking all of her domestic tasks but that are made difficult by her bilateral hand and wrist pains.
92Dr Halliday said that the plaintiff has bilateral constitutional base of thumb osteoarthritis at the CMCJ and STT joints of both thumbs, that is worse on the left than the right. She has constitutional osteoarthritis at the base of both thumbs. He said he was unable to identify a work related cause.
93Dr Halliday reported that the plaintiff had no work injury preventing a return to normal duties and that she was continuing to work. She reported that her repetitive, and that stage “very light activities exacerbate her pains. This is consistent with her underlying constitutional condition”.[46] He said that for significant pain the use of splintage is appropriate and the use of working splints would be reasonable to manage the underlying condition. He did not consider that any treatment was required for any work injury. He said that the plaintiff’s ongoing symptoms reflect the natural history of the underlying constitutional condition that is affecting the base of both thumbs and causes pain with repetitive, even fine motor activities. Gripping, twisting and forceful activities exacerbate her underlying constitutional symptoms.
[46]        Exhibit D9, DCB 15.
94Dr Halliday provided a supplementary report dated 4 May 2022. In response to being asked if Dr Lackner’s report caused him to alter his opinion, he said that “Dr Lackner agrees with my opinion and the opinion of the original treating plastic surgeon. The condition is a constitutional one. Dr Lackner’s response does not cause me to change my opinion”.[47] He said further that “It may be that the underlying constitutional osteoarthritis is temporarily exacerbated with certain activities at work. This will also happen with certain domestic activity. Any management or treatment is to treat the underlying constitutional condition”.[48]
[47]        Exhibit D10, DCB 22.
[48]        Exhibit D10, DCB 23.
Dr Loretta Reiter
95Dr Reiter is a Consultant Rheumatologist who provided a report on examination of the plaintiff to Lander & Rogers solicitors dated 28 March 2025. At the time of her report the plaintiff was unemployed. Dr Reiter addressed likely work capacity.
96Dr Reiter wrote that the plaintiff had undertaken an English course; a computer course; as well as a disability support carer’s course.
97Dr Reiter recounted the plaintiff’s activities of daily living in the following terms:[49]
“Ms Tran is independent with showering and dressing herself. She only cooks simple meals and the cleaning, including the mopping, the vacuum cleaning and the cleaning of the bathroom is done less frequently, and when she does do these tasks, she does a little bit at a time. Also, when she hangs out her washing, she only does small loads, and she will do the grocery shopping more frequently again obtaining small amounts. The maximum she can drive is 15 to 20 minutes. Her husband as usual is mowing the lawns and tending to the garden. Ms Tran occasionally played badminton, and she would swim for half an hour once a week, with her not doing either of these activities. She did not and does not have any hobbies”.
[49]        Exhibit D11, DCB 27.
98Dr Reiter recorded that the plaintiff had a symmetrical, good range of motion that was very good with flexion 60°; extension 50°, ulnar deviation of 40°; and radial deviation 30°, bilaterally.
99Dr Reiter noted the following results of investigations:[50]
·        Ultrasound – Left Wrist (30 March 2021): Showed no abnormality.
·        X-Ray - Right Wrist (13 May 2021): Showed no abnormality.
·        Ultrasound – Right Wrist (13 May 2021): Mild abductor pollicis longus tenosynovitis with a small ganglion cyst arising from the tendon sheath.
·        MRI – Left Wrist (12 October 2021): Showed a 5 mm ganglion adjacent to the distal pole of the scaphoid. Mild fraying partial thickness degenerative tears of the peripheral attachment of the triangular fibrocartilage at the ulnar fovea. Mild degenerative changes at the scaphotrapezium-trapezoid articulation at the 1st carpometacarpal joint.
·        Ultrasound – Both Wrists (24 June 2022): No signs of tenosynovitis or synovitis on either side. Small ganglion cyst, which has decreased in size as compared to the previous examination in the left wrist.
·        MRI – Right Wrist (13 October 2021): Showed focal heterogeneity of the peripheral/ulnar attachment of the triangular fibrocartilage complex without a definite tear. Mild synovial fluid in compartment 1 and 2 tendon sheaths with tenosynovitis of the compartment 1 tendons.
·        Ultrasound – Left Wrist (18 February 2022): Showed no tendinous abnormality on the ulnar side of the left wrist. 8. Ultrasound – Left Wrist (16 January 2023): Showed no abnormality.

[50]        DCB 11, DCB 28.
100By way of summary and assessment, Dr Reiter wrote:[51]
Diagnosis: Clinically, Ms Tran has no abnormal findings on examination of both wrists, so it was difficult to give her a current diagnosis. However, there is evidence on her MRIs of degenerative TFCCs (a tear in the triangular fibrocartilage complex of the wrist that develops over time due to wear and tear, rather than a single traumatic injury) bilaterally, as well as bilateral 1st CMC joint degenerative disease and on the left, STT degenerative disease. Therefore, it is my opinion that she exacerbated these underlying, pre-existing, constitutional, age-related degenerative conditions with the activities that she was doing at work and that exacerbation has long since ceased, particularly given that she ceased working in this role in June 2022.
[51]        Ibid.
101Dr Reiter reported that the plaintiff described her activities to include getting breakfast for her daughter and then driving her to school. When she returns home, she does meal preparation for dinner a few days a week, and the family has takeaway two to three times a week, as well as leftovers. She will then do some studying, and collect her daughter from school and do some tutoring of her daughter.[52]
[52]        Exhibit D11, DCB 29.
102In answer to a nexus between the plaintiff’s work and her current condition, Dr Reiter said that the only nexus is that the plaintiff’s work activities caused her to experience her pain due to her structural changes of degenerative disease noted on her MRIs of both wrists.
103Dr Reiter was asked if the plaintiff’s employment has been a significant contributing factor to her condition or its recurrence, aggravation, acceleration, exacerbation or deterioration. Dr Reiter said that the plaintiff most likely had an exacerbation. This is because of a history of experiencing pain on the radial side of her wrists where she has her 1st CMC joint osteoarthritis bilaterally and STT osteoarthritis on the left, and of then experiencing pain on the ulnar side of her wrist where she has degenerative changes affecting her TFCC. However, Dr Reiter said none of this was present on examination.
104Dr Reiter said that the plaintiff’s conditions are slowly progressive conditions, and hence would have been present eventually, regardless of her employment. She said that she considered that the plaintiff’s employment exacerbated her underlying conditions that has ceased, with the exacerbation ceasing when she stopped employment in June 2022. She did not believe that her condition/incapacity remains materially contributed by the claimed injury from employment.
105Dr Reiter said that she did not consider that the plaintiff was fit for pre-injury duty, however, has a capacity to work four hours a day five days a week with a maximum lifting of 1 kg.
Dr Mary Wyatt
106Dr Wyatt is an Occupational Physician who provided a medico legal report on examination of the plaintiff dated 28 March 2025.
107Dr Wyatt commented that the plaintiff said that over a few years there was some improvement in her symptoms and she had asked to go back on light duties once again a few years ago but had been told none were available and she could not return to her normal job. The plaintiff had then gone on to study a certificate in disability care, but did not look for that work in that field as she felt it was physically demanding and she was not confident in dealing with people who had disabilities. More recently she had commenced a Certificate III in Business Administration online.
108Dr Wyatt detailed “soreness over the ulnar aspect of both wrists. She described a semi-circle of pain with a maximum area at the base of the wrist. There is a constant ache, and it is more noted in the left wrist than the right”.[53]
[53]        Exhibit D12, DCB 38.
109She said that the plaintiff when asked about the presence of any swelling said, “it does become a little swollen over the little finger side of the wrist with a lot of repetitive activity. There tends to be a tingling in the hand in the morning, and use of the wrist makes her pain worse. She says that bending her wrist backwards or extension of the wrist is particularly sore. She has particular soreness with gripping and twisting, such as wringing out a towel”.[54]
[54]        Ibid.
110The plaintiff described her sleep as disturbed partly because of pain and partly because of worries.
111The plaintiff said that she undertakes “simple cooking and light cleaning. She said she mopped the floors weekly. She would tidy up, clean the bathrooms but not when her wrist was sore, and was putting the clothes in the washing machine, hanging them out and folding them and putting them away. She goes and does the grocery shopping. There is no garden to do. She is sore with driving the car”.[55]
[55]        Ibid.
112The plaintiff uses Panadol and Nurofen as needed, not daily. She has splints but only uses them occasionally.
113The plaintiff said she had decided to go back to hand therapy to see if it would assist and there had been one consultation to date.
114Dr Wyatt said there was little for her to find in terms of examination of the wrists. There was discomfort at end of range of movement but the plaintiff had been able to demonstrate normal movement at both wrists. There was no tenderness at the wrists. There was no pain with movement at the proximal or distal joints at the wrist, and no tenderness over the small joints of the wrist. There was no tenderness at the base of the thumb, and no tenderness over the ulnar aspect of the wrist. Stressing the wrist medially and laterally did not result in complaints of pain. The right forearm measured half a centimetre greater in circumference than the left forearm. With a Jamar dynamometer there was 7 kg of grip strength in the right hand and 2 kg in the left hand, which Dr Wyatt said she considered was “a non-organic response”.[56] Using the rapid cross-over method, grip strength went up to 16 kg in the right hand and 11 kg in the left hand, through Dr Wyatt said she was “not confident that was maximal grip strength”,[57] and that that the reduction in grip strength noted has a significant functional component to it, and that “others have talked about feel avoidance and avoiding activities”.[58]
[56]        Exhibit D12, DCB 39.
[57]        Exhibit D12, DCB 40.
[58]        Exhibit D12, DCB 42.
115Dr Wyatt wrote that as “others have indicated, there is no clear diagnosis. While there is reference to osteoarthritis with reference to symptoms coming and going, the degenerative changes are at the base of the thumb, not over the ulnar aspect of the wrist as she refers to in terms of the location of pain”.[59]
[59]        Ibid.
116Dr Wyatt said that “it is plausible Ms Tran developed wrist complaints in the course of her work, though after cessation of work one would expect these to settle if they were due to nonspecific musculoskeletal ache secondary to work activities. There is no identifiable condition that one can attribute to the nature of her work between 2014 and 2021. I do note the reference to osteoarthritis but abnormal findings on x-rays and scans are common, and they do not match her clinical picture. I accept that Ms Tran’s employment contributed to the symptoms she had at the time, but there is no identifiable condition or diagnosis. The x-rays show some mild arthritis at the base of the thumb, though this is not the location of her continued symptoms. Her employment does not appear to have aggravated a previous problem. I do not think the general nature of her duties has aggravated, or accelerated, or caused a deterioration to a pre-existing condition”.[60]
[60]        Exhibit D12, DCB 43-44.
117Dr Wyatt said that she considered the plaintiff’s employment was a significant contributory factor to her symptoms when she was working, but in the absence of a clear diagnosis and something to account for her continued problems, she was unable to relate her continued wrist complaints to the nature of her work and did not consider her employment remains a materially contributing factor to her wrist complaints.

Cross-Examination of the Plaintiff

118When the plaintiff was asked about her use of braces, she said she wears them only when she is sore.[61] She said that the brace is not worn for practical reasons when cooking and any washing of dishes and potentially cleaning.[62] The plaintiff said she is right hand dominant.
[61]Transcript (“T”) 10, Lines (“L”) 17-23.
[62]T11, L4-7.
119The plaintiff agreed that the pain experienced in her wrists is intermittent. When it was suggested that the pain is “not there all the time” she said, “When I move or do things with my wrist I feel sore”.[63] She was asked whether when she is stationary or her wrists are immobile there is pain the plaintiff said, “Sometimes I feel sore”.[64]
[63]T12, L3-4.
[64]T12, L5-6.
120The plaintiff said, “there’s still swelling”[65] (in her wrists) and when suggested that she did not experience tenderness in the wrists, she said, “I do feel sore in my wrist”.[66] To these accounts the plaintiff was then asked if she had memory of attending on Dr Reiter for examination in March this year. The plaintiff could not recall. She was directed to Dr Reiter’s report that, “She had no swelling or tenderness of either of her wrists”. The plaintiff said “There is swelling but it’s not there all the time. If I do some activities the swelling is worse”.[67] In relation to tenderness, the plaintiff said, “When there is swelling, it feels tender”. The plaintiff went on to say that “It’s almost always all activities that cause”[68] (the swelling or the tenderness).
[65]        T12, L16.
[66]T12, L17-19.
[67]T12, L26-31; T13, L1-2.
[68]        T13, L12-13.
121The plaintiff was questioned about an examination conducted by Mr Chehata in December 2024. It was put to that Mr Chehata recorded, “Ms Tran has a full range of movement with no features of CRPS”.[69] The plaintiff said that she can still move her hands normally. She said it feels sore when undertaking activities. The plaintiff agreed that her range of motion of her hands is unrestricted and of having a full range of motion of all of her fingers and her thumbs for both hands.
[69]        Exhibit P12, PCB 58.
122The plaintiff said she can cook and can prepare meals and does prepare meals for herself, her husband and her daughter and that she does so on average three times a week.
123As for preparation of meat for meals the plaintiff said normally the butcher cuts the meat for her.
124The plaintiff agreed that she makes soup. This involves chopping vegetables which she is still able to do, “but very little” meaning three times a week.[70] She agreed that she holds the knife in her right hand to cut vegetables.[71]
[70]T15, L30-31.
[71]T15, L27-28.
125The plaintiff agreed that she is the primary carer for her primary school aged daughter and that she drops her and collects her from school by car but which only takes a few minutes.
126The plaintiff said if necessary she can drive up to a total of 60 minutes in a round way trip. She said she can use public transport.
127The plaintiff said that despite being able to clean the family home she cannot “do it regularly” and perhaps only once a week.[72] She said she could sweep and mop the floor but she wouldn’t do both tasks on the same occasion. She said she thinks she can vacuum but not regularly. Indeed, she said she would only use the vacuum cleaner inside once every few months. She said she will sweep the floor because she doesn’t “need to vacuum. I only need to sweep it”, because she has wooden floors.[73] She went on to say that since the injury “I hardly use the vacuum cleaner because it’s quite heavy. I only need it to vacuum the car”.[74]
[72]T18, L7-10.
[73]T19, L6-11.
[74]T19, L17-21.
128The plaintiff said she will use the vacuum to clean the inside of her car once every few months when really required.[75] The plaintiff said she cleans the inside of her car with the vacuum cleaner in her right hand which feels sore afterwards “because I have difficulties with using my left hand I have to rely on my right hand more often and I feel sore in my right hand”.[76] The plaintiff said that sometimes without undertaking any activity with her left hand i.e. using the vacuum nozzle with her right hand to clean the inside of her car, nonetheless “there is still pain there”.[77]
[75]T19, L22-24; T20, L21-25.
[76]T20, L11-15.
[77]T22, L16-19.
129The plaintiff accepted that she could shower and dress, brush her teeth, comb her hair and manage her personal hygiene without any difficulties.[78]
[78]T22, L27-31; T23, L2-6.
130The plaintiff said she is able to tidy up and clean the bathroom although not very often. She agreed that sometimes she will undertake that exercise herself but only “when there is less pain and I feel that I could do it, then I would do it”.[79] She thought she cleaned the bathroom in this manner approximately once “a few months”.[80]
[79]T23, L12-14.
[80]T23, L17-18.
131The plaintiff said she can load the washing machine and hang clothes out although sometimes she will ask her husband and daughter to assist her. If she performs the laundry by herself then she will only do “a small load”.[81] She agreed she could do it once a week and that she takes the laundry down and folds it and puts it away.
[81]T24; L2-3.
132She says she undertakes the grocery shopping weekly.[82]
[82]T24, L8-9.
133The plaintiff worships at a local church. She drives there but it takes only a little bit more than 10 minutes. She sings in the church choir.[83]
[83]T24, L17-25.
134She will do what she can to take her daughter on the weekend to playgrounds.
135The plaintiff agreed that being the primary carer for her daughter it falls to her to complete various paperwork for excursions and the like and communicate with the school by email or attending in person at parent teacher interviews. The plaintiff said, “I only attend important meetings maybe once or twice here”.[84] The plaintiff agreed that she drives her daughter to taekwondo and this can be up to three times a week.[85] Her daughter undertakes piano lessons conducted from home.
[84]T25, L23-25.
[85]T26, L11-16.
136The plaintiff said she travelled to Vietnam for three weeks in May 2023 to commemorate the anniversary of her father’s death.[86] The plaintiff said she was able to manage her luggage. She explained that she and her daughter each had one large and one small piece of luggage. The plaintiff said she pushed the big piece of luggage and her daughter the smaller case. She estimated the larger luggage to weigh approximately 20 kg.[87] The plaintiff also travelled to Vietnam in 2024 to visit family and was away for approximately six weeks and she travelled with luggage of approximately the same weight.
[86]T28, L25-27.
[87]T30, L1-8.
137The plaintiff said she undertook a computer course in Keysborough on Tuesdays and Thursdays from 9:00 am to 12:30 pm for a total of seven hours a week.[88] She said that the course commenced in May 2025 and concluded in September 2025. It required an in person attendance at the Keysborough Learning Centre.[89]
[88]T30, L25-31.
[89]T31, 1-9.
138The plaintiff said at the end of 2024 she completed a certificate III in disability support. The course was conducted twice a week, five hours per day in person.[90] The plaintiff said that handwriting was involved in the course. She said she commenced the course in March 2024 and completed it by the end of the year.[91]
[90]T31, L10-15.
[91]T31, L26-27.
139The plaintiff said that she was currently studying a certificate III in business administration which she commenced in March 2025.[92] It is an online course. Aspects of it requires her to type with a keyboard. She estimated this course involves 3 to 4 hours per week.[93]
[92]T31, L30-31; T32, L1-3.
[93]T32, L16-23.
140The plaintiff agreed that she completed a five week practical placement at an aged care facility in December 2024.[94]
[94]T32, L24-26.
141The plaintiff was asked about her evidence at paragraph 11 of her affidavit,[95] where she deposed, “it is difficult for me to use my left wrist for washing dishes and drying them”. The plaintiff explained that although she is right hand dominant what she meant to convey was that when she is doing “the washing of the dishes I have to hold the bowl on my left hand and use my right hand to clean it… If I have to turn a lot that it will cause pain to my left wrist”.[96] The plaintiff said she has a dishwasher at home, but she has never used it and does not know how to.[97]
[95]Exhibit P3, PCB 31.
[96]T34, L12-24.
[97]T34, L26-31.

Re-examination of the Plaintiff
142The plaintiff was re-examined. She said she has undertaken the maximum five sessions annually of physiotherapy that is reimbursed by Medicare and is unable to afford more.

Plaintiff’s Final Addresses
143On the question of causation, Mr Morfuni submitted that it is relevant that from 2012 until the plaintiff ceased work she was capable of performing her duties, and indeed, for a period of time she also appeared to have been able to work as a hairdresser. However, the plaintiff is now unable to undertake like duties.
144Mr Morfuni submitted that when the plaintiff attended on her GP he considered that her presentation was related to her employment. She was then referred to the employer’s doctor, Dr Lackner, whose diagnosis was that the plaintiff’s pain was due to the repetitive nature of the work she was performing and who suggested she should be undertaking alternative duties.
145Mr Morfuni submitted that Dr Wyatt’s opinion is of limited value with the extent of it being that because the plaintiff has not been working for a reasonable period of time and is still complaining of suffering pain, that the condition is not work-related.
146Mr Morfuni emphasised the opinion expressed by the plaintiff’s treating general practitioner, Dr Do, that her condition is work-related and is ongoing and that although the plaintiff possesses a work capacity for modified duties she is unable to undertake the work of the type that she had previously performed.
147More particularly, Mr Morfuni emphasised the reporting of Mr Chehata who diagnosed bilateral CMC and STT joint arthritis. Mr Chehata referred to earlier radiology including imaging from August 2023, that revealed earlier “CMC joint arthritic changes slightly more on the right side with small elements of calcification”. He said he believed there to exist an organic component to the plaintiff’s pain for her bilateral wrist injuries. He noted that the plaintiff had been diagnosed with the STT and the CMC, with objective findings, including full range of movement and arthritic change visible on imaging and that the symptoms suggest that the arthritic nature of it comes and goes, and which he said was very relevant to and very reproducible in terms of medical history.
148Having been asked if he considered that the plaintiff’s employment was a significant contributing factor to her condition, Mr Chehata said, “Yes, in my opinion the plaintiff’s employment was a significant contributing factor for the right wrist injury”.[98]
[98] Exhibit P15, PCB 107.
149Mr Morfuni emphasised other medical opinions that do not particularly dispute that there has been at the very least an aggravation of the plaintiff’s so-called organic condition but rather that any aggravation has ceased.

150Mr Morfuni submitted that despite the fact that the plaintiff has not reached the point of having been prescribed pain relieving medication, she is consistently taking over-the-counter pain relief, and which need will be ongoing.
151Mr Morfuni submitted that it is incontrovertible that the plaintiff’s capacity for employment is not what it was prior to her injury, and that her loss of work sounds as a consequence in an overall assessment of her pain and suffering. Mr Morfuni referred to the lack of flexibility that the plaintiff will experience is a highly relevant consideration.
152Mr Morfuni emphasised other consequential effects from the plaintiff’s injury, including the limitations on being able to swim with her daughter and the significance of that loss as has been expressed by the plaintiff.
153Mr Morfuni particularly emphasised the evidence relevant to the plaintiff’s non-dominant left hand in which wrist she suffers the greatest pain. Mr Morfuni relied on paragraphs 24, 25, 26, 27, 28, 30, 31, 32, 34, 35 and 36 to the plaintiff’s first affidavit that each refer to her left wrist and, notably at paragraph 38, the plaintiff’s evidence that her left wrist pain prevents her from returning to work.

Defendant’s Final Address
154The defendant impugned the plaintiff’s credit.
155On the matter of the plaintiff’s wrist injuries and their work connectedness, Ms Zhu submitted that it is a highly problematic exercise on the part of the plaintiff to identify a diagnosed work caused injury to her wrists.
156Ms Zhu submitted that the plaintiff had failed to disaggregate the left wrist consequences from the right wrist consequences but that in any event the identified and relied upon impairment in the plaintiff’s left wrist should not be assessed as serious either for her or when judged by reference to like impairments.

Analysis and Findings
157The plaintiff may not rely on bilateral injuries to the left and right wrists as a single impairment to a body function. However, in the circumstances of this case, it makes no difference, as I am satisfied that the plaintiff meets the test for each hand, if assessed separately.
158I am satisfied that the plaintiff has led evidence that constitutes a sufficient basis to satisfy a work relatedness to her wrists injury. This is made out on the opinions of the plaintiff’s GP, the company doctor and Mr Chehata. I adopt the opinion of Mr Chehata that the repetitive employment aggravated constitutional STT and CMC joint arthritis as opposed to a specific tenosynovitis or De Quervain’s tenosynovitis. Mr Chehata thought that the repetitive nature, particularly of the pick packing the plaintiff performed is likely to be the aggravating factor and that the symptoms appear to present with any repetitive use of the hand rather than a specific single use.
159Dr Wyatt’s contrary opinion is that that there is no ongoing work contribution because despite the aggravating effect of work, but work having well and truly ceased, the continuation of pain is due to non compensable reasons. Dr Reiter’s opinion is predicated on the same basis along with Dr Halliday.
160I am not satisfied of the defendant’s submission that any work aggravation to either wrist has ceased. I am not satisfied that the preferable view is that the aggravation ceased in June 2022 when the plaintiff ceased work and thereafter the condition of each wrist has been subsumed or overtaken by a pre-existing constitutional condition, such as to account for the consequences of pain and functional limitation.
161In addressing whether it is it permissible in a case where work processes has caused a bilateral impairment such as to the function of each of the left and right wrists to attempt to disaggregate the consequences that attach to each wrist, I regard it as permissible to do so both practically and legally.
162As I have already identified, because the body functions that are affected are of the left wrist and the right wrist, I cannot and I do not, assess them together. I have made an assessment of the consequences for the plaintiff that derive from each wrist.
163Naturally enough, in relation to some activities, the consequences of pain in one wrist of the hand need not cause a limitation if a particular function to be performed is able to be executed from a biomechanical point of view by the use of one wrist. So, for example, if the plaintiff encountered difficulty picking up fine objects because of pain with her left wrist, or hold and open a folder or a book or magazine and could do so by the application of the wrist of the opposite hand, then this would not be a consequence likely to be made out to meet the test because it would not prevent the task from being performed.
164However, there are a multitude of other activities that require facility with the use of both wrists, such that pain in one will cause a difficulty with or prove impossible, even if pain is non-existent or negligible in the opposite. Therefore, even if only one of the two is affected, actions that require the use of both wrists of the hands would be impacted to a very similar degree to the impact of pain in each hand.
165I am satisfied that the plaintiff experiences restrictions on driving. I am satisfied that the plaintiff’s inability to swim with her daughter is a loss of considerable meaning to her. I am satisfied that a number of activities of daily living are affected because of the injury to the left wrist. I am satisfied that it cannot sensibly be said, for example, that all of them could be undertaken with the less painful right wrist. These restrictions are referred to in the plaintiff’s evidence. They are also reflected in the reporting by Mr Chehata who said that the left wrist injury imposes functional limitations on the plaintiff including chopping meat/vegetables, opening jars/packets, twisting towels, swimming, typing and a lifting capacity limited to about 2 kg. He has assessed permanent restrictions on heavy lifting or manual work, particularly pushing and pulling using the thumb. He said, that although the plaintiff remains independent, she often requires multiple breaks and longer time frames to complete a task due to ongoing ache and pain in the left wrist. He identified like effects attributable to the right wrist, although I accept the experience of pain from use of the right wrist is less than the left.
166I accept that the plaintiff suffers a loss of the flexibility in the scope of employment and that there is a real and considerable adverse effect on her employment options that is permanent. This is a factor that may be considered as part of the entire evidence in assessing the seriousness of the consequences of the plaintiff’s injuries.
167As President Maxwell said in Haden Engineering Pty Ltd v McKinnon,[99]the weight to be attached to the plaintiff's account of the pain experience will, of course, depend on assessment of the plaintiff's credibility. I do not accept the defendant’s submission challenging the plaintiff’s credit. I found this an unpersuasive submission. It struck me as predicated on a series of answers the plaintiff gave that were different to some extent and possibly contradictory but ultimately, I am not satisfied that they were incompatible with each other. I have also taken into account that the questions asked of the plaintiff required to be put to her through an interpreter and her answers in turn were provided by the interpreter. I am satisfied that the plaintiff was a credible witness. Indeed, some of her answers were not to her advantage and her account belies in my judgment any conscious effort on her part to dissemble.
[99] (2010) 31 VR 1.
168The plaintiff deposed that she was taking Panadol for the pain about three times per week. In re-examination she described taking Nurofen about twice a week.
169When the plaintiff was asked if the pain was intermittent, and when the meaning of that word was explained to her as intended to mean that the pain in her wrists is “not there all the time” she said, “When I move or do things with my wrist I feel sore”.[100] She was asked whether when she is stationary or her wrist are immobile there is pain the plaintiff said, “Sometimes I feel sore”.[101] I accept the plaintiff’s evidence and this includes her acknowledging that overall her left wrist is predominantly worse than the right.
[100]T12, L3-4.
[101]T12, L5-6.
170As far as the plaintiff’s sleep is concerned, she said that prior to her injury she would sleep through the night but that her left wrist pain wakes her during the night. She accepted as has been reported that her sleep is also interrupted on occasions by worry. Her right wrist also has an impact on her sleep. I am satisfied that her emotional state and its contribution to her adversely affected sleep can be permissibly given some limited consideration as an adjunct to the pain and suffering caused by the paragraph (a) injury as opposed to her worries trespassing outside the ambit or reach of her physical injury. In any event, I am satisfied that her worries are not the predominant reason for this consequence.
171Because the defendant relied on the opinions in particular of Dr Wyatt and Dr Reiter that any aggravation has ceased, but in light of me having rejected that conclusion, then the medical evidence on the question of ongoing work relatedness resides with Mr Chehata who believes that the impairment is entrenched. I accept his opinion and I am satisfied that the condition is permanent.
172When a comparison is made between the plaintiff before injury whereby she seemed able to have worked as a hairdresser, in addition to her former processing work neither of which she can now do, and of her ability to enjoy her life as a mother and her interactions with her daughter and of her cooking and baking for her family and undertaking an array of activities identified in the evidence but absent pain and restrictions and the limitations occasioned by the condition of the left wrist in comparison to today, then I am satisfied that the plaintiff is entitled to a certificate for pain and suffering for the left wrist.
173I am in like manner and for like reasoning satisfied that separately the consequences to the right wrist are also at least very considerable to her and by comparison to a range of like impairments.
174I will hear the parties on the form of final orders.

[2025] VCC 1702

21 November 2025