Turnbull v Victorian WorkCover Authority
[2023] VCC 584
•19 April 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| Serious Injury List |
Case No. CI-20-04140
| SHANE BOYD TURNBULL | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 February 2023 | |
DATE OF JUDGMENT: | 19 April 2023 | |
CASE MAY BE CITED AS: | Turnbull v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 584 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment of the right upper limb – aggravation – non-compensable conditions – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Petkovski v Galletti [1994] 1 VR 436; Peak Engineering Pty Ltd & Anor v McKenzie [2014] VSCA 67; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Company Pty Ltd (2007) 17 VR 592; Dwyer v CalcoTimbers Pty Ltd (No 2) [2008] VSCA 260; Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr O T Lesage | Maurice Blackburn Lawyers |
| For the Defendant | Mr D Churilov | Minter Ellison |
HER HONOUR:
1This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with GKR Transport (“the employer”) on 9 September 2013 (“the said date”).
2The plaintiff seeks leave to bring proceedings for damages for pain and suffering only.
3The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4The body function said to be impaired is the right upper limb. The impairment of the body function must be permanent.
5Subsection 38(h) of the Act provides that consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
6The plaintiff bears an overall burden of proof upon the balance of probabilities.
7By ss38(c) of the Act, the impairment must have consequences in relation to pain and suffering which:
“… when judged by comparison with other cases in the range of possible impairments, or losses of a body function or disfigurement, as the case may be, fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable.”
8I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
9I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[1] Petkovski v Galletti[2] and Peak Engineering Pty Ltd & Anor v McKenzie[3] in reaching my conclusions.
[1] (2005) 14 VR 622
[2] [1994] 1 VR 436
[3] [2014] VSCA 67 (“Peak Engineering”)
10The plaintiff swore two affidavits, the first in April 2020 and the second in January 2023. He was cross-examined. He also relied on an affidavit sworn by his ex-partner, Ankica Turnbull, on 22 December 2022. Also in evidence were medical reports and other material. I have read all the tendered material.
The issues
11The overarching submission on the defendant’s behalf was that any physical impairment flowing from the aggravation of the plaintiff’s right hand/wrist in the incident does not, in its own right, produce serious injury pain and suffering consequences, particularly when viewed through the prism of a non-work-related significant physical back condition.[4]
[4]Transcript (“T”) 84
The Plaintiff’s evidence
12The plaintiff is presently aged forty-nine, having been born in September 1973.
13He never learned to read or write properly and did not complete Year 8. He had a difficult home life and, after leaving school, did jobs like delivering papers, washing cars and working at a service station. There were times he lived on the streets. He also had a job cleaning coaches and did some car detailing.
14He started truck driving when he was about twenty years old. At first, he obtained his heavy combination licence and drove a semi for about five or six years. He then drove trucks and trailers, known as truck and dog, for about three years. Next, he obtained his B‑double licence and drove B‑doubles for many years, and also did truck and dog work. He drove a dangerous goods tanker.
15His work kept him reasonably fit and active. He suffered aches and pains associated with work but was able to maintain a good employment record and had to use his hands forcefully. In about 2004, he developed carpal tunnel syndrome, but kept working.
16He married in 2004.
17In about 2005, he was working for Intercoast Transport in Werribee South as a changeover driver. On 27 May that year, he fell from the step of a truck and landed on his outstretched right hand (“the 2005 injury”).
18Specialist hand surgeon, Mr Damian Ireland, operated on his right wrist on 19 July 2005, when hardware was put into his hand. The plaintiff tried to go back to work, but his right wrist was just no good. Mr Ireland further operated by fusing his wrist on 31 January 2006 and also then performed a carpal tunnel release. The plaintiff never returned to work with Intercoast Transport.
19After a time off work, he eventually got back to truck driving, driving semis, truck and dog, and tip trucks. He did all the duties of a truck driver on a full-time basis but was careful with his right wrist as he continued to have pain and occasional swelling.
20He remained under the care of general practitioner (“GP”), Dr Todd Cameron, and continued to be prescribed Tramal, and later tried to just use Nurofen. He had been told by his doctors just to get used to the pain and swelling and that pain should be his guide. He just did things differently. He continued to work but became obsessed with WorkCover investigators, and thought they were out to get him. He then had about twelve months off work.
21Over time, his wrist seemed to hold up better. He saw Dr Cameron for other medical problems, but not so much about his right wrist. He just accepted the pain and stiffness. He was able to get back to work and was able to do his job.
22In about 2011, he experienced worsening back pain. He saw Dr Cameron, investigations were organised and he was referred to the Metro Spinal Clinic. He had a facet joint injection in his back in June 2012 and was off work again for about six to eight months.
23He finally found work with the employer as a truck driver in November 2012. He was employed full-time and drove all over Melbourne in any vehicle he was asked to drive.
24He continued to have low back pain into 2013, as his doctor’s notes indicated but he did not need time off work.
25His right wrist was still stiff and sore, but it was stable. He was getting on with things and he put his wrist out of his mind. He was still constantly using his right hand as he is right-handed. It did not interfere with all the manual tasks he had to undertake. The job was actually quite tough, and he had to work very hard. If anything, his back pain was the problem then, but he kept working.
The incident
26On about the said date, he was given a B‑double to drive. He was trying to fit a pole on the end of a curtain when the wind caught the curtain and pulled the pole out of position, trapping his right hand (“the incident”).
27He experienced excruciating pain in his hand and was given some ice. The employer’s doctor in Laverton wanted him to go back to work. An x‑ray was undertaken, although he could not recall it.
28He remained off work with a very painful right hand and wrist. His hand was swollen.
29He saw Dr Cameron a couple of days later, who certified him unfit for work. His WorkCover claim was accepted.
30He started taking Lyrica after Mr Ireland explained that he had aggravated his underlying wrist condition.[5] He then agreed that he was prescribed Lyrica by his GP on 16 October 2013 and that is when he really started to take it.[6]
[5]T72
[6]T73
31He was sent for a CT scan in September 2013 and referred back to Mr Ireland, who saw him the following month. He was sent to a hand therapist. A splint was put on his wrist, and the pain started to ease.
32He could not remember when he stopped wearing a splint after the incident, but he was told to live with it. The Velcro splint did not improve his pain but gave him some support.[7] He could manage without it.[8]
[7]T74
[8]T12
33He hoped his wrist pain would settle down the way it was before the incident, but it never did. He had an ultrasound in October 2013 and was referred to Mr Ireland, who said he did not want to operate. The plaintiff’s pain was then around the scaphoid.[9]
[9] T9
34While in his letter of 30 October 2013 Mr Ireland wrote that most of the plaintiff’s pain had settled, he was in fact then in excruciating pain. He never told Mr Ireland there had been any improvement.[10]
[10] T11, cf Mr Ireland’s report dated 5 May 2014 “settled marginally”
35The plaintiff tried to return to light duties towards the end of November 2013. His right hand was still painful.
36When he went back to work, he was truck driving. He moved a forklift around, but he would not call himself a forklift driver. He could recall going back in the office initially, which he did not like very much. He was then off work for some time and went back to driving heavy vehicles. He could not remember driving a forklift at the start of his return-to-work duties.[11]
[11]T16
37His employment was effectively terminated in 2014, because the employer could not provide him with work that complied with the sort of lighter restrictions that he needed.[12]
[12]T76
38On 23 April 2014, GKR Transport wrote to the plaintiff confirming its receipt of a further medical certificate from Dr Cameron, which read:
“Restrictions are 6 hour days, 5 days per week. Light use of right hand. Avoid excessive use of right hand with light duties and forklift use maximum daily use of forklift 3 hours. OK for ‘running around’ in the work ute. OK to climb onto trucks. OK to shift trucks within yard.”
39Mr Sundstrom, the employer’s Victorian state manager, confirmed that on the basis of current operational requirements, the employer could not accommodate the plaintiff’s current medical restrictions. The decision would be reviewed if the plaintiff provided medical evidence that there had been a change in those restrictions.
40The plaintiff kept seeing his GP and was sent for an MRI scan in January 2014. He was referred to a specialist plastic and hand surgeon, Mr Richard Maxwell. He also went back to Mr Ireland, who was not operating anymore. He referred the plaintiff to another specialist hand surgeon, Mr David McCombe, whom he first saw in April 2014.
41Mr McCombe did not want to operate at that stage. He did not think that the plaintiff’s grip had improved, so it was equal, consistent with the March 2014 report of Ms Leanne Graham, hand and occupational therapist.[13]
[13]T14
42WorkCover tried to stop his weekly payments. The matter was referred to conciliation, and payments were reinstated in August 2014 after a Medical Panel opinion.
43The plaintiff continued to see Mr McCombe and was sent for a cortisone injection in October 2014, from which he did not get much relief. He last saw Mr McCombe in March 2015.
Visits to Dr Hogg
44The plaintiff was referred to Dr Hogg at the Royal Melbourne Pain Clinic, whom he first saw in about December 2014. He might have last seen him two years ago.[14]
[14] T17
45He could not remember telling Dr Hogg in July 2016 that he was maintaining his activities of daily living. He agreed he was doing a reasonable job looking after himself then.[15] He was in excruciating pain at work, but accepted he was able to do reasonably with his job, as Dr Hogg noted. He was not working 60 hours a week, although he could not remember.[16] He was then taking Tramadol, Pregabalin and Meloxicam for his wrist.[17]
[15]T18
[16]T20
[17]T74
46After the incident, he was driving tip-trucks for a matter of years, and then drove a fuel tanker, but never went back to full pre-injury duties. The only cleaning he was doing was to his truck.[18]
[18]T21
47He could not remember Dr Hogg telling him in 2017 to start reducing Lyrica but accepted that was the case.[19] He was not taking Mobic for his wrist. He was taking it for his back before and after the incident.[20]
[19]T22
[20]T23
48The plaintiff denied that in August 2018 he told Dr Hogg that his right wrist settled with no overt functional impairment.[21] It was not normal. Movement was not normal.[22]
[21]T25
[22]T26
49He could not recall telling Dr Hogg in August 2018 that he had some back pain associated with work.[23]
[23]T26
50He was certain doctors were wrong, saying his wrist had settled or improved. The pain was excruciating and has not changed. It hurts.[24]
[24]T27
51While Dr Hogg said in August 2018 the whole focus was on the plaintiff’s relationships and violence, his right wrist was giving him a lot of problems. He guessed he was “talking to Dr Hogg about all this other stuff that was pretty stressful”.[25]
[25]T29
52He could not remember Dr Hogg telling him he had good muscle strength. As of August 2020, his hand was “killing” him. He struggled to do activities at home. He could drive.
53Dr Hogg was wrong, and the plaintiff did not say the various things to him about improvement.[26] In general terms, Dr Hogg’s advice to him was to live with his right wrist pain.[27]
[26]T38
[27]T80
54He was seeing Dr Hogg at the Royal Melbourne Hospital for his right wrist pain.[28] He was seeing someone else for his back.[29]
[28]T77
[29]T80
The first affidavit – 29 April 2020
55The plaintiff continued to have constant strong pain in his right wrist and hand. It could flare up, depending on what he was doing. Activities like opening jars could trigger a flare up of pain, and such a flare up could be almost unbearable. Usually he took something like Tramal, which was able to settle down a flare up.
56He continued to see Dr Cameron and attend the Royal Melbourne Hospital. Over time, his medications were changed, and he ended up staying on Lyrica.
57He disagreed that he told Dr Peter Zammit at M3 Health[30] that his right-hand injury was not a current issue for years.[31]
[30]GP from 2019 to August 2020
[31]T40; Dr Zammit’s letter to Dr Wilson of August 2020 handing over the plaintiff’s care
58He was taking Lyrica daily and Tramal and Nurofen Plus as he needed it. He no longer wore a brace.
59He eventually got back to truck driving – driving tip‑trucks – on a full-time basis. Tip‑trucks were something he could drive, even with a sore wrist. He could also drive fuel tankers.
60He struggled to do tarps, curtains, dog and chain gates, straps and ratchets in the usual way. Those tasks would be just too hard now that his right wrist was worse than before the incident. Driving tip-trucks only involved a minimal use of tarps.
61He continued to find truck driving work for various employers over the next few months and had periods of time off due to the unavailability of work or because of personal issues.
62In early 2021, he was working at Rivett 12 hours a day, four weeks on, two weeks off, as a road train driver in Western Australia. He was driving a tip truck. He was able to manage the job, notwithstanding his right wrist pain. He did work those hours. He managed.[32]
[32]T56
63His marriage ended and he had other relationships, one of which resulted in him being charged with assault. He became extremely depressed and suicidal and saw a psychiatrist, who prescribed medication.
64He was ordered to do community work in February 2017 after family violence issues. His first stint of community work involved light gardening, pulling out weeds and things, mostly with his left hand. He got 100 hours of community work and did full 8-hour days.[33] His right wrist has been extremely sore since doing the gardening in community work, but he had to do it.[34]
[33]T24
[34]T78
65He agreed there was a flare up in his back pain after a domestic assault in 2019, but it settled. He received 150 hours of community work but did not complete it because of the pandemic.[35]
[35]T32
66His right wrist was impacting extremely on his ability to do household chores in 2021.[36]
[36] T78
67He still worked but was limited in the kind of driving he could do. The pain and weakness in his right hand was now much worse and he could no longer do the type of work he had previously done for the employer. The pain was constant and much stronger now.
68Since his last relationship had broken up, he had been left with nowhere to live and he was then living out of his car because of the difficulty obtaining accommodation due to the pandemic.
The second affidavit – 11 January 2023
69The plaintiff had longstanding on and off lower back pain, which he managed with medication. He agreed that back pain started in 2011, and he continued to have problems with his back. Sometimes it would hurt when he was sitting in the tip truck.[37]
[37]T28
70He had a heart issue in 2015 which resolved in 2017. He had a left carpal tunnel release with good recovery. He had a thyroid condition controlled by medication. His biggest problem was his right wrist and hand.
71He was then living in a caravan on a friend’s property. In addition to his social issues previously deposed to, he had had a tough upbringing which had a negative effect on his mental health for most of his adult life. He has poor communication skills and has difficulty controlling his emotions and anger.72He has difficulty reading and writing and gets his former partner to help him.
73Previous treatment also included counselling and medication via Hepburn Health Service, visiting a surgeon in 2021 but surgery was not advised, hand therapy and using a splint. He had seen a number of doctors and had various investigations. He had problems navigating WorkCover and had treatment at a pain management clinic.
74He understood that he was “at the end of the road treatment wise” and would have to live with his right wrist and hand pain.
75He was then taking Mobic, Cymbalta, Dexamphetamine and Lyrica, also used for his back, and anti-depressants and continued to see his GP and a psychiatrist.
76Of recent times, he was seeking medication for his right wrist.[38] It was incorrect that he was seeking it for his back. He takes Lyrica mainly for his right wrist but for both. Mobic is for his back.[39] He takes Mobic at night all the time for his back. He takes Lyrica twice a day.[40]
[38]T42
[39] T43
[40]T45
Medication history
77He believed he weaned himself of Lyrica/Pregabalin in March 2021 and then stopped taking it all together. He remembered being prescribed a different medication, Gabapentin.[41]
[41] T47
78He could vaguely recall telling Dr Wilson simple tablets did not help with back pain on 21 May 2021.[42] That day, he was prescribed Gabapentin. While his GP noted it was for back pain, it was to manage both his back and wrist. He disagreed it was prescribed for back pain only. His GP gave it to him for both.[43]
[42]T49
[43]T52
79He did not recall complaining to Dr Wilson of severe back pain when seen on 4 June 2021. He was taking medication for both conditions. He did not recall exactly whether the back pain was severe then. He was taking Gabapentin for both his wrist and back in mid-2021[44] and in January 2022.[45]
[44]T52
[45]T61
80Dr Wilson’s note in early 2022 was incorrect in stating that Gabapentin was increased because of back pain. He was taking it for both conditions.[46]
[46]T61
81On 3 May 2022, he told Dr Wilson he found a leftover script of Lyrica and that it was really good for managing back pain. Lyrica was good for “both of them”, his back pain and wrist pain.[47]
[47]T64, T52
82It was correct that when he switched over to Lyrica, he had stopped using Gabapentin. Lyrica was good for both his problems.[48]
[48]T65
Surgery
83While the plaintiff deposed the surgeon he saw in 2021 did not advise surgery, he could not recall which surgeon he saw. It may have been either Mr McCombe or Mr Ireland but then agreed that it had to be Mr McCombe.[49]
[49]T70, the plaintiff may be confused about this issue as Mr McCombe seems to have last seen the plaintiff in March 2015
84He believed he talked to Dr Wilson about having some different treatment for his back, including an operation. He accepted he must have a serious problem with his back if there had been a discussion about surgery.[50]
[50] T46
GP visits
85He did not dispute that from March 2021 to July 2022, in forty-five visits to his GP, he did not mention his right wrist pain. “I lived with this but all done.”[51]
[51]T42
86He did not dispute that he did not mention his wrist to his GP in the last six months, because he just put up with it. He complained to someone at Creswick about his hand, but he did not believe he went there specifically for it.[52]
[52]T43
87He mentioned his back, but not his wrist, because he had been told to live with his wrist. He had been seeking treatment for his back, and still is.[53]
[53]T44
88He continues to experience the consequences previously deposed to.
89The pain arising from the incident was much worse than his earlier problems from 2005, from which he had made a reasonable recovery. His earlier symptoms were manageable, and he had retained a degree of functionality.
90As a result of the incident, he continues to experience constant pain and restriction in his right hand and wrist. The pain is a deep, dull, aching pain in a joint, with sharper flare ups of pain. It is worse in hot or cold weather and is aggravated by activity. The pain spreads to the base of his thumb, across the hand and into his fingers, and he continues to experience a disturbed sensation with pins, needles and numbness.
91His current pain is in his hand and wrist, the webbing between his fingers and across the top of his hand, at the top of his knuckle. He pointed out the finger that was hurt in the accident.[54] He also had numbness on his right palm.[55]
[54]T71
[55]T72
92He continues to experience the physical limitations earlier deposed. Gripping, twisting and fine motor skills are more difficult. His wrist and hand feel sore and stiff, and he tends to rely more on his left.
93His pain is worse at night as a result of the incident, and he has great difficulty going to sleep, impacting on his energy levels the next day.
94Prior to the incident, he enjoyed a variety of hobbies and pastimes, such as travel with his family, truck shows and tinkering with trucks.
95His right wrist pain stops him from attending truck shows because the pain in his wrist is “annoying”, it is “extremely bad”.[56] He can work because he needs to and does that to survive. He does not have to go to a truck show.[57]
[56] T67
[57]T68
96He agreed he was not going on family holidays anymore because his son was very young prior to 2013. He now has issues with his son who is eighteen.[58]
[58]T68
97There is very little in his social life and he does not travel or go to truck shows. He rests between work and play.[59]
[59]T79
98Prior to the incident, he was able to perform heavier housework, wash the car and mow the lawns without too much trouble. This was in addition to household and domestic chores. These tasks now produce pain and discomfort. He tries but ends up in pain and takes a while to recover.
99He agreed he told Dr Slesenger in August 2021 that he was still able to do a range of domestic tasks. This is still the case.[60]
[60]T55
100He does housework, although it hurts his back. He manages with painkillers. He does not do things when his back hurts. He agreed he has problems with prolonged standing because of his back and with bending and twisting at times. He had mentioned these problems to his GP. He has been told by doctors over a period of time that his back can improve with treatment.[61]
[61]T45
101He agreed, it was possible, just doing little things at home could trigger his back pain. He guessed this could get worse as the day went on if he was active.[62]
[62]T47
102He could not remember seeing a chiropractor once so far for back pain.[63]
[63]T50
103Whilst he had other issues, he attributes a decline in his mental health as a result of pain and restrictions flowing from the incident. It disrupted work and family life and he had had problems with stable housing since then. He experiences worsening moods, depression, frustration and anxiety, and his confidence is down. He experienced feelings of distress following the incident and had a number of suicide attempts in recent years, such as in 2021, when he tried to run in front of a truck. His mental state is generally much worse since the incident.
104He disputed that his psychiatric issues and his back pain were the major issues and denied that his right hand was “not really any big deal at all”.[64]
[64] T41
105The pain from 2013 never settled, whereas, prior to the incident, it had been able to settle. Since the incident, he has been in extreme pain. His wrist has not been normal.[65]
[65] T77
Current work
106Since the incident, he found the earlier work on the mines too demanding, and stopped. He presently drives a truck between Melbourne and Adelaide. That work suits him because it is basic and flexible, but he finds it does hurt his wrist. He pulls up sore afterwards, but the shift nature of the work gives him some time to recover.
107He does not apply for jobs that include the tying down duties.[66]
[66]T59
108He is currently employed by Kennedy Express on the Melbourne/Adelaide or the occasional Brisbane run. He goes to Adelaide five times a fortnight. He works one week three days and two the next. The driving does not involve doing gates and tying things down with tarps.[67] Those jobs are done for him. He is now driving a B-Double, the same truck as before the incident.[68]
[67]T57
[68] T58
109He just manages with his current job.[69] He struggles but puts up with it. He is restricted in completing work involving buckles, chains, gates, curtains and tarps, “all the major physical stuff you normally do”.[70] He was given certificates in 2017 and 2019 providing restrictions on that type of work.[71]
[69]T75
[70] T76
[71]T76
110He agreed, as was recorded on 28 June 2022, that he found work rewarding and enjoyable, and still does.[72]
[72]T66
Lay evidence
111The plaintiff’s former partner, Ankica Turnbull, swore an affidavit in December 2022.
112They were married in 2004 and had a child that year. They separated in late 2018 and she moved out of the home in January 2019. They remain friends and she continues to help him with administrative tasks because of his literacy issues.
113She remembered the 2005 injury, with which she felt the plaintiff had learned to cope. When the pain would arise, it would then settle and be okay afterwards. She did not recall that injury significantly interfering with their life.
114Between 2005 and 2013, their child was aged one to nine. They all went on day trips from time to time. The plaintiff quite regularly attended truck shows. He helped around the house with housework, and he continued to work. While he certainly had ongoing pain and discomfort from time to time, she could not recall ever observing or feeling he was going to have to stop working.
115Everything changed after the incident.
116The plaintiff never seemed to have any relief from pain and had to attend a pain clinic, which he had not had to do before. He attended truck shows much less and helped around the house much less. His sleep was much more disturbed.
117He had learned to cope and adapt after 2005. Since the incident, unrelenting pain and the limits it has caused him as to what he can do at home and work, has really changed him as a person.
118While their marriage was not perfect, she was sure the incident injury played a significant role in their eventual separation in 2018.
The Plaintiff’s medical evidence
Pre-employment medical material
119On 4 August 2009, Dr Caaren Chin at Laverton advised Modern Medical that she had examined the plaintiff in relation to a pre-employment truck driver’s medical.
120A request was made for further information in regard to the 2005 injury and the plaintiff’s capacity to work as a truck driver, which involved lifting gates, pulling curtains, and requiring strength of his right wrist.
121Dr Jo-Ann Silva from Modern Medical advised that the plaintiff last saw Mr Ireland in January 2008 and was cleared to continue full truck driving and related duties with no restrictions. He was taking episodic Nurofen Plus and used Tramal if required for pain, and that was usually less than fortnightly.
Treaters
Mr Damian Ireland, hand surgeon
122Mr Ireland first saw the plaintiff in July 2005.
123X‑rays of the right wrist revealed a scapholunate dissociation, but there was no evidence of rotatory subluxation of the scaphoid or of dorsiflexion intercollated segment instability of the lunate.
124He diagnosed acute rupture of the scapholunate ligament, and recommended surgery for which he sought WorkCover funding.
125Surgery was undertaken in July 2005. Following that procedure, the plaintiff continued to complain of pain, and a post-operative MRI scan revealed continuing synovitis of the right wrist.
126The surgery left the plaintiff with a considerable impairment at the right wrist due to restricted motion, but with relative pain control such that he was able to return to work as a truck driver with a different employer.
127The plaintiff was next referred to him in October 2013 to assess the incident injury where he sustained a crushing injury to his right hand involving the index finger when trying to unjam stuck curtains on his semi-trailer in high winds.
128The plaintiff reported more concern about wrist pain than the recent index finger injury. There was some tenderness over the second metacarpal of the right hand, but the major tenderness was over the dorsoradial aspect of the wrist.
129Mr Ireland diagnosed a recent soft tissue injury to the right index finger and aggravation of a pre-existing condition affecting the right wrist, and referred the plaintiff for hand therapy splinting.
130On review on 30 October 2013, the symptoms had settled marginally, and the plaintiff was suffering from anxiety.
131On 9 April 2014, the plaintiff reported that he had returned to alternate duties doing car washing and office duties, and felt his persisting symptoms prevented him from returning to work as a truck driver. A further MRI scan revealed traumatic arthritis of the right wrist.
132The plaintiff’s major symptom was wrist pain, and he opined the incident injury had aggravated the underlying pre-existing condition. He thought the plaintiff would benefit from surgery to excise the radial styloid process.
133As he had retired from surgery, he referred the plaintiff to colleague, Mr McCombe, for continuing management, as he suspected further surgery was necessary. Mr McCombe thought that treatment should commence with an intra-articular corticosteroid injection.
134Mr Ireland thought the incident injury had aggravated the pre-existing right wrist condition, namely early traumatic arthritis at the radiocarpal joint rather than causing any significant long-term damage to the finger. The plaintiff’s current symptoms prevented him returning to work as a full-time semitrailer and B double driver as he had insufficient strength to shut the curtains on the truck.
135The plaintiff suffered a serious soft tissue in 2005 to the right wrist. A surgical attempt at reconstructing the damaged wrist ligament was unsuccessful, and the operation was then followed with a salvage procedure in the form of limited wrist arthrodesis. That left the plaintiff with a considerable impairment of the wrist due to restricted motion but with relative pain control, such that he could return to work as a truck driver with a different employer. There was then the further injury, which was an aggravation of the pre-existing injury.
136When last seen on 9 April 2014, he thought the plaintiff’s prognosis was poor and further surgery would be necessary.
Meg Schibli, hand therapist
137Ms Schibli consulted the plaintiff on 14 January 2010.
138She wrote to QBE in March 2011 advising she had seen the plaintiff in November 2010 after he had seen Mr Ireland. It was then determined the plaintiff was managing his condition well and independently and was unlikely to need any further therapy appointments.
139There were numerous attendances during October 2013.
Dr Todd Cameron, GP, Modern Medical
140Dr Cameron provided reports from May 2014 to December 2016.
141The plaintiff had been a patient since January 2004, and Dr Cameron first saw him in August 2005.
142In his December 2016 report, he noted the plaintiff had ongoing issues with his right-hand wrist pain owing to his work-related injury. The plaintiff was then taking Tramal, Mobic and Lyrica to assist with managing his pain, which was the plaintiff’s standard treatment for a long time.
143Dr Cameron provided a certificate of capacity in July 2017 where he certified the plaintiff fit for alternative duties, full-time hours and to drive trucks. His reduced right-hand function meant he could not use manual tiedowns or curtains or pallet jacks reliably.
Mr Richard Maxwell, plastic surgeon
144In March 2014, the plaintiff saw Mr Maxwell on referral from Dr Cameron for a second opinion in relation to his right hand and wrist.
145The plaintiff then complained of a nagging pain across the dorsum of his wrist, and pain on extension of the wrist and on thumb motion. He also complained of a tingling numbness on the back of the wrist, and stiffness on waking in the mornings.
146A repeat CT scan and plain x‑rays showed the fracture of the base of the second metacarpal to have healed with no displacement. Those investigations did show some narrowing of the joint space between the radius and the scaphoid.
147As he had not performed the plaintiff’s original surgery, he thought it appropriate to refer him back to Mr Ireland for consideration of a wrist arthroscopy, and maintained him on current modified duties.
148He thought the confusing aspect of the case was that the plaintiff suffered two injuries, and it is likely his wrist pain and reduced function reflected more the original injury in 2005 rather than being the result of the incident injury.
149He was provided Mr Anstee’s report. His opinion as to the plaintiff’s work capacity differed. He thought Mr Anstee was restricting himself to consideration of the more recent injury, which he considered resolved. Given that prior to the incident injury, the plaintiff was doing normal duties, it was therefore logical that Mr Anstee thought he should be able to return to normal duties.
150The reason Mr Maxwell and Mr Anstee differed in regard to work capacity was that Mr Anstee was looking at the more recent injury, whereas he was looking at the patient overall without specific reference to either the 2005 injury or the 2013 injury in isolation. Furthermore, Mr Maxwell’s certificate for modified duties was only valid until his review by Mr Ireland.
Leanne Graham, hand and occupational therapist
151Ms Graham wrote to Dr Cameron in February 2014.
152She noted the plaintiff’s grip strengths had improved considerably, from 22 kilograms in the right hand to 33 kilograms. This was significantly lower still than the left at 52 kilograms.
153Of concern was the plaintiff’s ongoing pain in the radial wrist and pain across the dorsal hand over the MCPs. The plaintiff was not satisfied with his last surgical review and wanted to seek another opinion.
154She wrote to Dr Cameron in March 2014, noting that the plaintiff’s grip strength had increased on the right to 51 kilograms, and he was keen to return to truck driving but was unsure of his ability to load and unload. He would, however, need to be monitored for increased pain. It was noted he was currently managing six hours, five days a week, and was managing forklift driving.
155In her letter to Dr Cameron of March 2014, she noted that the plaintiff had continued to demonstrate improvement in grip strength and function despite ongoing pain. On the right it was 39, and on the left 52.
Mr David McCombe, hand surgeon
156The plaintiff was first seen by Mr McCombe at Mr Ireland’s request in April 2013 and last seen in March 2015.
157The plaintiff injured his right wrist injury in 2005 with the further incident injury in which the plaintiff sustained a crush injury to the right hand with a shearing-type element as he extricated his hand from the part of the truck that his hand was caught in. He sustained an abrasion to the dorsum of his hand and also a fracture of the index finger metacarpal and had ongoing problems from that time.
158As a consequence of the initial surgery, the plaintiff had a permanent restriction of motion to the wrist. His wrist and hand pain symptoms were further aggravated by the incident.
159The plaintiff had evidence of premature degenerative arthritis of the radioscaphoid joint consequent to his initial injury, which remained an ongoing issue, but at the most recent review, had not reached a point where surgery was warranted. He had been supported with pain management with good effect.
160He diagnosed a right scapholunate ligament injury requiring scapholunate ligament reconstruction and subsequently, limited wrist arthrodesis. The plaintiff had developed premature radioscaphoid arthritis of the wrist consequent to that injury.
161He also sustained further injury in the incident, with likely neuropathic pain relating to a superficial radial nerve injury over the dorsum of hand. The consequence of both conditions was the development of Chronic Pain Syndrome for which the plaintiff had had pain management intervention.
162In April 2014, he wrote to QBE requesting an ultrasound injection to the right scaphoid joint to address the incident injury. This intra-articular cortisone injection did not provide any significant benefit, and the plaintiff was subsequently referred for pain management which was effective in addressing his ongoing symptoms to a degree.
163When last seen in March 2015, the plaintiff’s grip strength on the right was still weak and range of motion was reduced. A bone scan indicated there was premature degenerative change in the radioscaphoid joint. He thought that while there was an element of mechanical symptoms, the predominant issue with the plaintiff was his neuropathic symptom and addressing the structural issue with his wrist did run the risk of aggravating his neuropathic symptoms. It was felt it would be better to defer surgery until the neuropathic symptoms had settled.
164Correspondence from Dr Hogg in January 2017 indicated the plaintiff had returned to work despite his ongoing limitations of motion and grip strength and associated symptoms and, at that point, was tolerating this effectively.
165It was possible, given the documented radioscaphoid arthritis, that further intervention may be required in the form of either a total wrist arthrodesis or scaphoidectomy and partial wrist arthrodesis. This would be determined on the basis of the severity of symptoms and compromise of function and radiographic appearances at the time of the assessment.
Dr Malcolm Hogg, pain management, Royal Melbourne Hospital
166Dr Hogg provided a number of reports from December 2014 to February 2021.[73]
[73]Further reports from Dr Hogg were relied on by the defendant
167The plaintiff was first assessed at Royal Melbourne Hospital on 2 December 2014 as having had persistent hand pain following the incident injury. He described a combination of neuropathic and nociceptive pain on a background of the previous work injury.
168The plaintiff also described limited activities in relation to grip strength, lifting, and heavy manual tasks, and there was an associated degree of psychological distress including frustration, sleep disturbance, and worry. He had a good work history and a strong desire to return to full-time employment.
169Approval was sought for a bone scan, a trial of amitriptyline gel, maintenance of pregabalin and/or meloxicam, review by a clinical psychologist and occupational therapist, and, if agreeable, consideration of an endorsed return to employment company for assessment and provision of a return-to-work program.[74]
[74] Dr M Hogg, letter to QBE WorkCover Insurance dated 2 December 2014
170In February 2015, Dr Hogg advised the bone scan “defined two areas of specific arthritic change, notably right radioscaphoid articulation (moderate) and scaphoid lunate region (mild? pseudoarthrosis)”.
171He requested a review by Mr McCombe regarding the plaintiff’s pathology and felt there was a nociceptive source of persistent pain. The plaintiff complained of paraesthesia and activity-related pain into the webbing of his right hand and his middle and index finger, consistent with an additional degree of neuropathic pain.
172The plaintiff described functional impairment, including grip strength and reduced flexion/extension of the wrist and pain exacerbation, but he had maintained some activities, including limited driving. He did not believe he would be able to return to pre-injury duties.
173Dr Hogg reviewed the plaintiff in the pain clinic on behalf of the occupational therapist in July 2016.
174He was pleased to note the plaintiff was back at work, although he found the trucking industry stressful. There was some ongoing crepitus and discomfort with excessive activity, but the plaintiff was maintaining his ADLs and work role reasonably. He was using Tramadol infrequently but had maintained meloxicam and pregabalin, along with duloxetine and ADHD treatment.
175The plaintiff had input from both a psychiatrist and clinical psychologist, having described long-term low-grade suicidal ideation in relation to childhood adversity.
176Dr Hogg wrote to Dr Wilson at Creswick in February 2021.
177He noted there were a number of psychosocial features from the outset, with a past history of psychological distress; however, the plaintiff had been employed for long periods in the trucking industry.
178Further assessments and management became increasingly fraught with psychological symptoms, subsequent assaults, loss of accommodation and relationships, and self-harm. The psychiatric service in Ballarat was providing ongoing support.
179More recently, the plaintiff had reported back pain, which had not been formally investigated.
180Given the plaintiff’s current location and engagement with Ballarat Health Services, he did not feel there was a great deal more for them to offer, and he discharged him. He believed the plaintiff would have ongoing nociceptive pain sources in both wrists and potentially the lumbar spine, and potential neuropathic pain in the right hand, although his functional status was reasonable, and he should only require a simple analgesic strategy. Given the potential for dependency, they would avoid use of the opioid agents if possible.
Dr David Frost, GP, Modern Medical, Caroline Springs
181Dr Frost reported in May 2020. He saw the plaintiff five times – twice in relation to WorkCover and most recently on 9 April 2012.
182The diagnoses were fractured lunate scaphoid bones requiring partial fusion in 2006, and the plaintiff was left with a weakened right hand with reduced power in his grip strength and muscle wasting and had ongoing wrist pain.
183The practice notes showed the plaintiff had an acute trauma to his right index finger which recovered, but, again, the right wrist pain continued. Secondary to his injury, he developed an Adjustment Disorder with worsening depression. These conditions were chronic.
184The plaintiff last attended Caroline Springs on 11 December 2017.
Dr Peter Zammit, M3 Health
185In August 2019, Dr Zammit certified that the plaintiff was fit for alternative duties full-time hours and to drive trucks. His reduced right-hand function means he cannot use manual tiedowns or curtains or pallet jacks reliably.
Investigations
186There was a bone scan in June 2005, the findings of which were consistent with a right scaphoid fracture.
187Following an x-ray of the right wrist in October 2006, it was reported “arthrodesis involving the scaphoid, lunate and the capitate bones has been performed”. This appeared solid. Metallic staples remained in situ. Alignment was anatomical, and no complication had been identified. The radiocarpal joint was normal.
188Following an x-ray of the right hand and wrist in September 2013, it was reported there were multiple bone staples and bone anchors projected over the carpus and bony ankylosis across most of the carpus, in particular, involving the scaphoid, trapezoid, capitate and lunate. The bone alignment of the remainder of the carpus was normal. There was no fracture in this region detectable on x-ray. The remainder of the hand appeared normal.
189Following a CT scan of the right hand in September 2013, it was reported there was a subtle lucency through the base of the second metacarpal, possibly extending into the carpometacarpal joint space, thought likely to represent an undisplaced facture.
190An MRI scan of the right wrist in January 2014 was reported to show:
“Clinical indications: past history of partial arthrodesis of right wrist 2006 for malunion of scaphoid. Re-injured September, 2013. CT suggests fracture of right 2nd metacarpal bone.
Delayed healing. ? Findings.
Conclusion:
1.The carpal bone arthrodesis appears solid but intrinsic detail limited by metallic artefact.
2. TFC is intact.
3.No acute fracture or malalignment is identified. The 2nd metacarpal bone changes on the CT scan appear related to old un-united bone fragments with no evidence of recent fracture.”
191Further radiology in December 2014 was reported to show findings consistent with mild degenerative arthropathy affecting the right radial scaphoid articulation, and minor uptake also noted on the scaphoid innate fusion.
192There was an ultrasound scan of the left third finger in July 2016.
Medico-legal evidence
Medical Panel
193On 28 August 2014, the Medical Panel concluded the plaintiff was suffering from persistent right hand/right wrist dysfunction following a crush injury, he had an incapacity for work, and the incapacity resulted from and was materially contributed to by the claimed hand injury of 2013.
Dr Joseph Slesenger, occupational physician
194Dr Slesenger examined the plaintiff in August 2021.
195The plaintiff then complained of residual pain in the extensor surface of the right wrist, with severe restriction to his range of movement. He also reported pain over the dorsum of the right index finger but had no associated numbness in the right hand.
196The plaintiff advised that his mental health had deteriorated, and that in 2019, he had had a dispute with his ex‑partner which became physical. He was charged with assault and given a Corrections Order.
197The plaintiff advised he had difficulty gripping, twisting, turning, pushing, pulling, and performing fine dexterous tasks. He could lift no more than 5 kilograms and tended to lift using his left side.
198He was then taking Gabapentin, Cymbalta, Mobic, and thyroid medication.
199He advised that after the incident injury, he was unable to return to truck driving but worked in the office. He became subject to workplace harassment and ceased work within a few months.
200He subsequently secured employment as a tip-truck driver and tanker driver for short periods up to six months full-time. He was allocated roles that did not require him to close gates or curtains or to load or unload trucks. When driving tip trucks, he was generally allocated to automatic pneumatic tarps and rear doors. Nevertheless, he was still required to use high-pressure hoses and brooms to clean the trucks. He was occasionally required to manually open and close the tarps and did so predominantly with his left hand.
201He had been out of work for two years but had recently secured employment with Rivett as a road-train driver, driving a manual truck, usually working 12 hours a day, four-weeks on/two-weeks off roster, six to seven days before a 24-hour break. The plaintiff presented with a complex history of right dominant wrist pain associated with the initial fall in 2005 and then the crush injury in the incident.
202The plaintiff described residual right wrist pain, stiffness, and restricted range of movements, together with weakness, and remained more reliant on his left side.
203Dr Slesenger diagnosed soft-tissue injury, right hand/wrist, aggravation of pre-existing degenerative disease of the right wrist, index finger fracture, chronic right wrist pain with associated restricted range of movements and associated dysfunction, and psychological impairment.
204It was difficult for him to determine whether the plaintiff’s employment was a significant contributing factor, as the plaintiff’s account of his pre and post-injury employment was difficult to quantify. However, at the time of the incident, he was working full time operating Tautliners, requiring him to repetitively close gates and curtains, and he worked in that role for a year.
205Subsequent to the incident injury, it appeared he had not been able to return to work in that role but had been able to return to work driving tip trucks and bulk carriers. Based on the evidence, Dr Slesenger was satisfied that there was evidence of a significant change in the plaintiff’s employment, and it was reasonable to attribute this to the increase in right-hand symptoms subsequent to the incident injury.
206At the time of the incident injury, the plaintiff had been suffering with right wrist hand pain for about eight years. He had had a fusion and would have been at risk of developing arthritis in his right hand regardless of the incident.
207However, the incident appeared to have caused a significant increase in symptoms, and he was satisfied that the plaintiff’s current impairment, at least partially, caused his overall disability, namely his inability to perform repetitive or forceful right upper limb activities, particularly those requiring forceful pushing, pulling or torque movements. These restrictions would impact negatively on his employment choices, and he noted that subsequent to the incident injury, the plaintiff had avoided driving trucks requiring him to load or unload and to close gates and curtains. Nevertheless, he had been able to remain at work performing alternative duties, working pre-injury hours.
208The prognosis must be guarded, given the length of the plaintiff’s impairment and disability, the degenerative nature of the underlying condition, as well as his current psychological impairment. On the whole, the plaintiff was likely to have further deterioration in his symptoms, although that should be quantified by an expert in the relevant field.
Dr Richard Sullivan, pain specialist
209Dr Sullivan examined the plaintiff in September 2021 and January 2023.
210When first seen, the plaintiff reported pain in the dorsal aspect of his right wrist in the ulnar carpal junction. There was pain spreading from the base of his thumb across the dorsum of his hand to the proximal phalanx of his first and second fingers. He reported a disturbed sensation like pins and needles. Background pain was around 3/10 but could aggravate to 9/10 with excessive activity.
211On re-examination, the plaintiff reported ongoing significant pain in the dorsal aspect of the right wrist, maximal over the ulnar carpal interface, with pain that could extend through to the palmar surface of the right wrist and also extended into the hypothenar eminence on the right. There was also altered sensation and pain at the base of the right thumb which could extend down to the first and second fingers. The level of pain description was at the same level as on previous examination.
212The diagnosis remained chronic pain condition affecting the right upper limb after traumatic injury. The plaintiff would have chronic pain affecting his right upper limb into the foreseeable future. The diagnosis of his right-hand injury in isolation was post-traumatic chronic pain. The incident was the cause of the diagnosed right-hand injury.
213While the plaintiff had a previous injury to his right wrist, that had largely resolved following the fusion to a point where he had been able to return to a full range of activities. That situation had changed considerably following the incident. Therefore, the incident injury was a significant contributing factor to the diagnosed injury.
214The restrictions and limitations on employment should continue into the foreseeable future, namely pertaining to any activity that would require him to apply significant force or strain or require him to repetitively use his right arm.
215As a consequence of his right-hand injury in isolation, the plaintiff cannot reasonably return to pre-injury employment as a truck driver, and this will continue for the foreseeable future.
216The need for further surgery should be considered by a specialist hand surgeon.
Dr Nigel Strauss, psychiatrist
217Dr Strauss examined the plaintiff in October 2021.
218He believed the plaintiff had always struggled with his life because of his unhappy upbringing. From a psychiatric perspective, he had always had problems with emotional control. An appropriate diagnosis was that of Borderline Personality Disorder or a complex Post-Traumatic Stress Disorder.
219The plaintiff had had a difficult life and had not been well equipped to cope with his physical injuries. He had a chronic back condition and two episodes in which he injured his right hand and wrist. The incident aggravated not only his pre-existing physical problems but also his psychological distress, which had been lifelong.
220The plaintiff suffered from a Personality Disorder, but also a longstanding Adjustment Disorder, secondary to his various physical injuries, including the incident injury. To his credit, he had kept working over the years, but still had significant behavioural problems, as had been evidenced by his recent suicide attempt. He was an unstable individual but did his best to cope.
221Dr Strauss believed the plaintiff needed intensive psychological treatment over six months on a weekly basis.
222From a psychiatric perspective, he did not believe the incident had caused significant work incapacity, but certainly it had had an adverse effect on the plaintiff’s enjoyment of life and his ability to deal with social, domestic and recreational activities.
The Defendant’s medical evidence
Mr Ireland
223Mr Ireland wrote to Dr Cameron on 30 October 2013.
224Having reviewed the plaintiff that day, Mr Ireland thought his pain had settled.[75] The plaintiff had a full range of movement of all his fingers. He did not believe the plaintiff sustained a serious injury recently and it is more likely he aggravated the underlying wrist condition. He advised the plaintiff that when he finished his current dosage of Lyrica, it was unlikely he would need to continue it. He also advised the plaintiff to wean off his splint.
[75]May 2014 report- “symptoms had settled marginally”
225He thought the plaintiff should be it to resume light duties in two weeks with a view to full duties in a month.
Dr Malcolm Hogg, pain specialist
226In January 2017, Dr Hogg wrote to Dr Cameron.
227He noted the plaintiff was stable, fully active in his work role, possibly overworking at up to 60 hours a week with driving a manual truck and significant cleaning. He and his wife recognised this as a longstanding issue and were working with his psychological support team to assist.
228Dr Hogg reinforced the role of dose reduction of anti-neuropathic agents, starting with pregabalin. Similarly, meloxicam could be used for periods on a pro re nata basis or trial drug-free days.
229Dr Hogg would continue to offer a semi-regular support appointment in six to twelve months.
230He felt the claim could remain open for longer-term issues and healthcare costs, noting arthritic changes of the right wrist on bone scan as there may be some long-term degenerative changes.
231In his letter to Dr Cameron of 9 August 2018, having seen the plaintiff at the pain clinic with the occupational therapist, he noted the pain in the right wrist appeared to have settled with no overt functional impairment currently. Some back pain was reported associated with recent employment activity high physical activation pattern.
232The interview was dominated by psychosocial issues, including the breakdown of the plaintiff’s relationship and financial stresses, and possible legal aspect subsequent to physical altercations with others. The plaintiff reported excessive use of dexamphetamine. They discussed the role for emergency psychiatric intervention.
233He would avoid the plaintiff having access to full strength opioids, but was comfortable with ongoing use of pregabalin, meloxicam and possibly Tramadol.
234In October 2019, Dr Hogg wrote to the plaintiff’s new GP, Dr Zammit.
235The plaintiff attended for review that day, primarily as a support measure following their input several years ago for persistent right arm pain. Psychosocial issues remain the predominant concern, with an ongoing court case regarding family violence.
236There were some complaints of neurogenic pain in the right hand, but not clearly within a median nerve distribution. He could not elicit a Tinel’s sign. There was no overt tenderness and good muscle strength, so he tried to reassure the plaintiff.
237Pregabalin remained high, at 300 milligrams, plus 150 at lunchtime, and he would support Dr Zammit pushing to slowly dose reduce.
238Dr Hogg interviewed the plaintiff by telephone in August 2020, following which he wrote to Dr Zammit.
239Pain complaints and medication remained, but symptoms were dominated by his psychosocial aspects. Pregabalin was still at a high dose of 300 milligrams.
240Whilst it was known the plaintiff had an arthritic condition of the right wrist/hand and some stresses related to his previous work, Dr Hogg believed these were stable and he functioned reasonably at a physical level, including driving and domestic ADLs. He had some support with his son in the region, and possibly his former partner.
241He was happy to provide a follow-up appointment but was primarily supportive in nature and/or aiming to contain medication use, if possible.
Dr Zammit, M3 Health
242Dr Zammit wrote to Dr Wilson, handing over the plaintiff’s care, in August 2020. He advised he found the plaintiff a challenge to care for. He often took medication at high doses and not always in the amount prescribed. He could be forgetful and disorganised and often asked for repeats when he had them in his papers.
243He thought the plaintiff had borderline personality traits, as well as his stipulated psychiatric conditions of ADHD and Anxiety.
244He noted a recent suicide attempt was an admission to Horsham Base Hospital and suicidal ideation at Ballarat in August.
245The plaintiff also said he had a court case running in regard to his WorkCover claim, which dated back many years, and his injuries were not a current issue for years.
Dr Wilson, Creswick Medical Centre
246Dr Wilson referred the plaintiff to Lake Health Group Physiologist in September 2020 for his longstanding history of chronic low back pain. He noted that the pain had worsened following the assault in 2019 and had associated left-sided sciatica.
Heidelberg Chiropractic Clinic
247There was a note from Heidelberg Chiropractic Clinic of 16 May 2022 to Dr Wilson, thanking him for referring the plaintiff to the chiropractic clinic.
248The plaintiff presented on 22 January 2022. It was noted they had been managing him intermittently for many years, mostly for chronic low-back pain and subacute episodes.
249As one would appreciate, the plaintiff had a complex medical history which extended to his spinal issues. He had significant degenerative changes seen on radiographs and obvious lumbar kyphosis. He had issues with weight management and poor muscular support, a history of spinal trauma and significant mental health issues which all contributed to the biopsychosocial complexity of his pain.
250The plaintiff generally responded well with the physical care provided, including spinal mobilisation, soft tissue therapy, exercise therapy, taping and bracing. A significant component of care was also around psychological support and reassurance.
251He had completed his five visits under the plan, and they would continue to care for him as required.
Clinical notes
252By email of 16 March 2023, I was provided with a copy of the clinical notes from Creswick Medical Centre from July 2022 to February 2023 which the parties had inspected after the conclusion of the hearing.
Medico-legal evidence
Mr John Anstee, hand specialist
253Mr Anstee examined the plaintiff in February 2014 and July 2015.
254On the first examination, the plaintiff reported a history of the incident where he skinned the knuckle of his index metacarpophalangeal joint. He had pain there, and the joint of his index finger and adjacent area of his hand.
255The plaintiff was then working 6 hours a day, five days a week, but on light duties and not yet performing normal driving. He was receiving hand therapy.
256He complained of pain, weakness and reduced movement in his right hand and wrist.
257An x-ray of the right hand and wrist of September 2013 showed no recent fracture and there was partial fusion of the right wrist.
258A September 2013 CT scan of the right hand showed a possible fracture of the base of the second metacarpal; however, an MRI scan in January 2014 suggested there was no fracture.
259There had been a right carpal tunnel release in 2005 and a fracture of the right scaphoid in 2005, with a partial arthrodesis of the right wrist the following year.
260The fusion was a significant problem and resulted in a significant impairment of the right extremity. He doubted that the injury in the incident had resulted in significant injury.
261On examination, Mr Anstee found the plaintiff a pleasant cooperative man with a slight decrease in range of movement of the right thumb, and a significant decrease in range of movement of the right wrist. Grip strength was weaker on the right than the left, demonstrating a significant weakness on the right side.
262He thought the plaintiff had substantially recovered from the crush injury to the right hand. Reduction in range of movement of the right index finger had resolved. There was a complaint of pain in the carpometacarpal joint of the index finger and adjacent area.
263The injury to the index finger was a new injury and that had resolved or improved significantly. The plaintiff returned to pre-injury duties and hours. He doubted the plaintiff would need much in the way of hand therapy. His prognosis for right wrist function was poor.
264The plaintiff was back at work, and he could go back to full hours and transfer to normal duties. The fusion was a significant problem, resulting in weakness and decreasing range of wrist movement. The plaintiff should be able to perform any duties he did before the incident.
265On re-examination in July 2015, the plaintiff advised he believed his right wrist may be deteriorating. He was a very positive man and wished to return to work as a truck driver but was concerned he would be defeated by pain and weakness in the right wrist. He was then taking Lyrica, Tramal, Voltaren and an occasional Panadol.
266The plaintiff had extensive problems with the old injury to his wrist, with a partial fusion and a gross restriction in range of movement, and quite extensive. Whether or not the incident injury had worsened the situation was difficult to say and, indeed, may be impossible to distinguish.
267There was again weakness on the right side with grip strength and there was some wasting of the thenar eminence of the right side.
268He thought the plaintiff’s pain, which was genuine, should be managed in a pain clinic. If it was not possible to manage his pain, he supposed consideration could be given to a further fusion which would greatly reduce the range of right wrist movement and the usefulness of the right hand.
269There may have been a recent exacerbation of the right wrist. It was difficult to find evidence of that.
270He thought the plaintiff would have difficulty loading or unloading the truck and managing the side curtains, plus it would be difficult for him to return to pre-injury duties and hours. It would be very difficult to find alternative duties for him, having suffered a very significant injury to his dominant right hand.
271The plaintiff struck Mr Anstee as a genuine and reasonable man who would return to work if he could.
272He thought the plaintiff would have some difficulty with manual work associated with being a forklift driver. Work as courier would depend on the maximum weight of items carried, as would automotive store sales assistant. Work as a store person would be difficult because of his problems with literacy, as would light stores work.
273Either the earlier injury or a combination of the two had made the plaintiff’s life very difficult indeed, and he would have significant trouble returning to work as a forklift driver because of the probable genuine pain in his right wrist.
Mr Damon Thomas, hand specialist
274Mr Thomas examined the plaintiff in March 2020.
275On questioning on two separate intervals during the consultation, the plaintiff seemed clear that there had been no change to his wrist and hand issues from the incident, but that his conditions all dated back to the original injury and surgery in 2005. This was very different to the documented reports that had been included in his file which stated he made a good recovery following the 2005 injury but developed a new onset of pain and functional loss subsequently to the incident injury.
276Current complaints were that of diffuse wrist pain and reduced movement. There was a scar over the dorsum of the wrist, which was sensitive to touch, and had surrounding sensory changes in the wrist and dorsum of the hand. There was also some altered sensation to the fingers. The symptoms were continuous but worsened with any activity.
277Whether the plaintiff’s employment materially contributed to the injury was of some debate. From what Mr Thomas could ascertain, he had been asked to assess the incident injury and it would appear that this injury had not changed the plaintiff’s situation from the original issue in 2005.
278The overriding diagnosis was that of an injury which dated back to 2005 where the plaintiff had had a scapholunate ligament injury, with initial reconstruction and partial wrist fusion, and post-operative and post-traumatic issues with reduced range of motion, chronic pain and loss of function and sensory neuropathy in the hand and wrist area. He also had an element of post-traumatic arthritis in the wrist.
279Mr Thomas thought the incident injury did not appear to have contributed to the plaintiff’s current deficits. He had significant psychological issues which would be addressed best by a psychologist or psychiatrist.
280The overriding prognosis with regard to the wrist and hand was poor in that the wrist had generalised reduced range of motion and chronic pain, and that would persist and may deteriorate with time as the plaintiff developed progressive degenerative arthritic changes. The defects to the hand and fingers will be stable and are less significant.
281From a history and symptomatic point of view, the plaintiff’s status was unchanged after the incident injury compared to before.
282The incident injury had had at most a minor contributing factor to the plaintiff’s current impairment. That is because it would seem that his deficits, at least entirely, or the majority of which relate back to the 2005 injury.
283A key point in Mr Thomas’ view was that from what he could ascertain, the plaintiff’s injury and impairment really dated back to 2005 and everything had subsequently resulted from that. The plaintiff’s recent incident injury had not changed his symptomatology. Therefore, he would apportion the majority, if not the entirety, of the plaintiff’s current deficits to the 2005 injury.
Overview
284There is no issue that the plaintiff suffered an aggravation of his right wrist in the incident, together with a soft tissue injury to the right index finger/hand, which appears to have largely resolved.
285Having had a partial wrist fusion following the 2005 injury, the issue in this application is whether any aggravation of the right wrist in the incident is “serious” – excluding the consequences of any other non-related conditions.
Credit
286As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[76]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[76](2010) 31 VR 1 at paragraph [12]
287Counsel for the defendant submitted the plaintiff presented as a poor and unreliable witness, particularly when he gave evidence about the state of his wrist and hand subsequent to the incident. It was submitted that his evidence in cross-examination was strongly affected by a sense of reconstruction. He is a man with significant memory problems but had no difficulty saying that his wrist has always been a problem since the incident; it has not changed; it is always extreme, and it has not ameliorated in any event.[77]
[77]T88
288Counsel for the plaintiff submitted the plaintiff was a witness a truth who did not “dodge and weave”. There might have been some issues with his reliability, but the plaintiff is forgetful and disorganised, as Dr Zammit described.[78]
[78]T122
289As counsel for the defendant acknowledged, the plaintiff made appropriate concessions as to the condition of his right wrist condition before the incident.
290While the plaintiff may have had difficulty with his memory when asked to recall what medication he was prescribed for what condition at various times, my impression was he was trying to give honest and accurate answers to the questions he was asked. He did his best when asked many questions about earlier treatment.
291To some extent, in my view, any inconsistencies in the plaintiff’s evidence are likely to be explained by his lack of sophistication and his degree of literacy.
292Although the plaintiff may have been confused or lacked recall of a number of things, it is not inconsistent that he was clear that his significant wrist problems have continued, without improvement, since the incident. However, his viva voce evidence of “extreme” pain is somewhat of an exaggeration compared to his affidavit evidence and history to examiners.
293I also note that Mr Anstee, who examined the plaintiff on the defendant’s behalf, described him as a pleasant cooperative man.
Pre-incident condition
294While the plaintiff’s wrist condition prior to the incident is clearly relevant in an aggravation case, it was agreed that he was functioning well at the time of the incident.
295Counsel for the defendant did not cross-examine the plaintiff at all about his pre-incident wrist condition. The plaintiff’s evidence that he could do full truck driving duties was not challenged. He had a partially fused wrist and had some impairment but was able to perform his work. His other affidavit evidence was also not challenged. It was acknowledged the plaintiff had made appropriate concessions about the state of his right wrist before the incident.[79]
[79]T85
296The defendant’s case, however, was that, taking into account the plaintiff’s present condition, including his symptoms unrelated to the incident, he does not establish a serious aggravation. It was submitted he would not be performing most, if not all, of the activities that he claims are restricted by his right wrist because of his back and mental state.[80]
[80]T86
297Counsel for the plaintiff relied on the fact the plaintiff had been cleared to full-time truck driving with no restrictions prior to the incident.[81] Counsel also relied on the reports of the hand therapist and treaters to support the submission that the plaintiff was going “pretty well” at the time of the incident.[82]
[81]T111
[82]T112
298In 2009, Dr Jo-Ann Silva from Modern Medical advised that the plaintiff last saw Mr Ireland in January 2008 and was cleared to continue full truck driving and related duties with no restrictions. The plaintiff was taking episodic Nurofen Plus and used Tramal for pain, if required, and that was usually less than fortnightly.
299Ms Schibli, hand therapist, advised QBE in March 2011 she had seen the plaintiff in November 2010 after he had seen Mr Ireland. It was then determined the plaintiff was managing his condition well and independently and was unlikely to need any further therapy appointments.
300As the plaintiff deposed, over time, his right wrist seemed to hold up better. He did not need to see his GP for his wrist, and he just accepted some pain and stiffness as part of his life. He constantly used his right hand, as he was right handed, and was able to do all the manual tasks he had to undertake.
Pain
301In Haden Engineering Pty Ltd v McKinnon,[83] President Maxwell said the evidentiary basis of the pain assessment would ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
(b) what the plaintiff does about the pain (for example medication, rest, seeking medical treatment);
(c) what doctors say about the extent and the intensity of the plaintiff’s pain; and
(d) what the objective evidence shows about the disabling effect of the pain.
[83] Supra at paragraph [11]
(a) what the Plaintiff says about pain to doctors and in court
302The plaintiff currently describes continuing to experience constant pain and restriction in his right hand and wrist – a deep, dull, aching pain in a joint, with sharper flare ups of pain, worse in hot or cold weather, and aggravated by activity. The pain spreads to the base of his thumb, across the hand and into his fingers, and he continues to experience a disturbed sensation with pins, needles and numbness.
303Since the incident, his wrist has not been normal.[84] Gripping, twisting and fine motor skills are more difficult. Movement is more restricted, and his grip strength is weak.
[84] T77
304In his viva voce evidence, at times, the plaintiff also described extreme and excruciating pain since the incident.
305Counsel for the plaintiff described the plaintiff’s pain in the years after the incident as excruciating, as the clinical notes set out from 2013 to 2016. It was submitted Dr Hogg’s opinion was just a piece of evidence, and not totally problematic for the plaintiff.[85]
[85]T116
306Counsel for the defendant submitted the plaintiff’s wrist pain is not “extreme” as he described in court when one looks at contemporaneous medical evidence, particularly the reports of Dr Hogg, who treated him from December 2014 to February 2021,[86] and Dr Zammit’s “hand over” letter in August 2020.[87]
[86]T89
[87]T93-94
307It was submitted the plaintiff was” driving this extreme pain” in this case.[88] He has manageable pain. He is able to function at work, at home, and in terms of treatment, while Lyrica may have some ameliorative effect on his right wrist, he is taking it for his back.[89]
[88]T97
[89] T89
308I accept that since the incident, the plaintiff has suffered a continuous substantial level of right elbow pain, although not at the “extreme” or “excruciating” level he described during the hearing. This pain has required strong prescription medication for many years. It is “manageable” because he is a stoic who has always been prepared to get on with work and his life despite the incident injury.[90]
[90]Stijepic v One Force Group Australia Pty Ltd [2009] VSCA 181 at paragraph [48]
309In recent times, he has consistently described to examiners ongoing significant wrist pain which increases with activity, weakness and reduced movement of his wrist and hand.[91]
[91] Dr Thomas December 2020, Dr Slesenger August 2021 and Dr Sullivan in 2023
310Dr Zammit’s comments in the “handover” letter in 2020, that the plaintiff’s injuries were not a current issue for years, are somewhat difficult to reconcile with his certificate of capacity in 2019 where he imposed restrictions based on the plaintiff’s reduced right-hand function.[92]
[92]T123
311While psychosocial issues remained the predominant concern in later years of treatment by Dr Hogg, when he discharged the plaintiff from his care in February 2021, he believed the plaintiff would have ongoing nociceptive pain sources in both wrists and potentially the lumbar spine, and potential neuropathic pain in the right hand, although his functional status was reasonable, and he should only require a simple analgesic strategy. Given the potential for dependency, they would avoid use of the opioid agents if possible.
(b) what the Plaintiff does about the pain
312The plaintiff was referred by his GP to hand surgeon Mr Ireland.
313In October 2013, having diagnosed a soft tissue injury to the index finger and aggravation of a pre-exiting right wrist condition, Mr Ireland initially referred the plaintiff to a specialist hand therapist for a splint.
314The plaintiff resumed hand therapy with Ms Schibli in late 2013 but his condition did not improve, and he was referred back to Mr Ireland.
315When the plaintiff saw Mr Maxwell in March 2014 for a second opinion, he thought it appropriate to refer the plaintiff back to Mr Ireland for consideration of a wrist arthroscopy as Mr Ireland had performed the original surgery.
316The plaintiff was seen again by Mr Ireland in April 2014 with persisting wrist symptoms which prevented him returning to work as a truck driver. A further MRI study revealed traumatic arthritis of the right wrist.
317Mr Ireland thought the plaintiff would benefit from surgical treatment to excise the radial styloid process and, as he had retired from surgery, he referred the plaintiff to Mr McCombe for the surgery.
318Mr McCombe commenced treatment in October 2014 with an intra-articular injection to assess the impact on the radioscaphoid joint. That did not make a significant difference to the plaintiff’s pain symptoms. While surgery to remove the metal and address the radioscaphoid arthritis with a total wrist arthrodesis or scaphoidectomy was discussed, because of the presence of neuropathic symptoms, the plaintiff was referred to pain management specialist, Dr Hogg, for ongoing management in late 2014.
319When last seen by Mr McCombe on 19 March 2015, the plaintiff was advised to defer the wrist surgery until the neuropathic symptoms settled down.
320In January 2020, Mr McCombe reported that further intervention may be required in the form of either a total wrist arthrodesis or scaphoidectomy and partial wrist arthrodesis.
321While the is no direct medical evidence that the incident aggravation resulted in the need for this further surgery,[93] surgery was not contemplated before the incident as the plaintiff was coping well, without the need for treatment.
[93]T106
322The plaintiff has also required years of pain management for his wrist from Dr Hogg at the Royal Melbourne Hospital, a treatment regime he did not require following the 2005 injury.
Medication
323There is no dispute that Lyrica was first prescribed for right wrist pain after the incident and continued for nearly eight years until early 2021, when it seems the plaintiff was weaned off this medication because of dependency problems.[94]
[94]T90
324In December 2016, Dr Cameron noted the plaintiff’s standard treatment for his right wrist for a long time had been Tramal, Mobic and Lyrica. There were high doses of Lyrica at 300 milligrams in August 2020 as Dr Hogg reported, making no mention prescription of any back complaint.
325There was no suggestion in the clinical notes that the plaintiff was taken off Lyrica in early 2021 because of any improvement in his wrist pain.
326Mobic has been prescribed before and after the incident for back pain.
327I do not accept the submission that the plaintiff has adopted a deliberate strategy to include his right hand in all the significant medication for his back.[95]
[95]T89
328While the clinical records after 2021 set out that subsequent prescriptions for strong painkillers have been for back pain, I accept the plaintiff takes prescription medication for both conditions as it has an ameliorating effect on both.
329As Dodds-Streeton JA said in In Kelso v Tatiara Meat Company Pty Ltd:[96]
“… The chronic pain was a prominent feature of the appellant’s case. The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
[96](2007) 17 VR 592 at paragraph [199]
Recent GP attendances
330Although the last GP report was in 2020, the clinical notes to date were available.
331While the plaintiff continues to attend his GP regularly, there have been no visits specifically for his right wrist after early 2021.
332Clinical notes from July 2022 to February 2023 provided after the hearing finished, detailed eleven attendances, with a mention of the plaintiff’s back on one visit. There was no suggestion of any need for back surgery in those notes. The notes related largely to mental health issues.
333As the plaintiff explained, Dr Hogg had told him he had to live with his right wrist issues. The plaintiff sees himself “at the end of the road treatment wise”. I accept, in those circumstances, there was no reason for him to continue to mention his right wrist pain to his gp, as there is nothing else to be done. Treatment for his back pain, however, is still ongoing, as he has been told by doctors his back can improve with treatment.
(c) what doctors say about the extent and intensity of pain
334Counsel for the defendant submitted Mr Ireland, Mr Anstee and Mr Maxwell, three plastic surgeons, did not think there was a significant injury in the incident.[97]
[97]T108
335On close examination, I do not accept this was the case.
336Mr Maxwell did not undertake any analysis of the plaintiff’s pre and post-incident condition. He did not take into account the plaintiff was coping well before the incident, despite the fusion surgery, compared to the problems he had after the incident. In any event, he sent the plaintiff back to Mr Ireland for consideration of further wrist surgery as Mr Ireland had carried out the original procedures.
337Mr Anstee was focussing largely on the finger/soft tissue injury and did not really consider in any detail any aggravation of the wrist condition. On the first examination in early 2014, he thought the plaintiff had gone back to pre-injury duties and hours which was not the case. While he thought it difficult to find a recent exacerbation of the wrist in the incident, he did not have a full history from the plaintiff as to his pre-incident level of functionality.
338On the other hand, Mr Ireland thought the wrist condition was of such severity that surgery was appropriate, as did Mr McCombe, who deferred surgery until the plaintiff’s neuropathic pain settled.
339Mr Thomas’ opinion has little weight, as it was based on a confusing history of no change in the plaintiff’s wrist condition after the incident which cannot be explained. It was clearly wrong to say, as he did, the incident had not changed the plaintiff’s symptomology.
340While the plaintiff had a previous injury to his right wrist, Dr Sullivan thought that had largely resolved following the fusion to a point where he had been able to return to a full range of activities. That situation had changed considerably following the incident.
(d) what the objective evidence shows about the effect of disabling pain
Work
341Counsel for the plaintiff submitted there is a definite restriction in terms of functional ability to do a full range of jobs as a truck driver.[98] The plaintiff was stoic as he continued to work full time despite ongoing pain.[99]
[98]T119; Hawkins v DHL Express (Australia) Pty Ltd [2013] VSCA 26
[99]T119
342Counsel for the defendant submitted this is not a loss of vocation case at all, because the plaintiff is still able to drive the same B‑doubles and he is still able to do truck driving. He is restricted in some activities, but in his current job he does not need to do them. He also enjoys doing this work.[100] It was submitted that the plaintiff’s situation “does not get him over the line in that regard”.[101]
[100]T96
[101]T97; Ellis Management Services Pty Ltd v Taylor [2013] VSCA 326
343It was submitted medico-legal examiners relied upon by the plaintiff had an uncritical acceptance of what they had been told, without knowing what was really happening.[102] Everything hinged on the history given. The plaintiff is still driving the same sort of truck doing the work he enjoys.[103]
[102]T101
[103]T102
344I accept that the incident injury has significantly impacted on the plaintiff’s work capacity.
345Because of the injury to his wrist in the incident, the plaintiff has never been able to return to his full pre-injury duties. At the time of the incident, he was working full-time operating Tautliners, requiring him to repetitively close gates and curtains.
346In March 2015, Mr McCombe thought wrist symptoms and restricted grip strength limited the plaintiff’s capacity for loading of his truck with manipulation of side curtains and or tying down requirements.
347This view has been consistently held by his treaters since then.
348Dr Cameron, in September 2017, and Dr Zammit, in August 2019, certified that the plaintiff was fit for alternative duties full-time hours and to drive trucks. His reduced right-hand function meant he could not use manual tiedowns or curtains or pallet jacks reliably.
349Based on what I accept was an accurate history given by the plaintiff, Dr Slesenger reported that subsequent to the incident injury, it appeared the plaintiff had not been able to return to work in his pre-injury role but had been able to return to work driving tip trucks and bulk carriers. Based on the evidence, Dr Slesenger was satisfied that there was a significant change in the plaintiff’s employment, and it was reasonable to attribute this to the increase in right-hand symptoms subsequent to the incident injury.
350Similarly, Dr Sullivan thought the restrictions and limitations on employment should continue into the foreseeable future, namely pertaining to any activity that would require the plaintiff to apply significant force or strain or require him to repetitively use his right arm. As a consequence of his right-hand injury in isolation, the plaintiff could not reasonably return to pre-injury employment as a truck driver, and this will continue for the foreseeable future.
351Loss of the ability to undertake previously enjoyed activities including work and frustration at that loss, are relevant to assessing pain and suffering.[104]
[104]Haden Engineering Pty Ltd v McKinnon (supra) at paragraph [15]; Ellis Management Services Pty Ltd v Taylor (supra) at paragraph [35]; Peak Engineering (supra) at paragraph [38]
352Despite the medical restrictions imposed, the plaintiff has always been keen to work or return to work and, in my view, he is somewhat of a stoic, working up to 12 hours a day. He works with a sore wrist, but he “manages”. He struggles, but he puts up with it. He pulls up sore after a long shift, but he has time to recover somewhat between shifts.
353He does not apply for truck driving jobs which require right wrist strength.
354As Nettle JA commented in Dwyer v CalcoTimbers Pty Ltd (No 2),[105] he suspected:
“… but for the way the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well have not disputed his claim … But it would be unfortunate and in my view wrongheaded if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury.”
[105] [2008] VSCA 260 at paragraph [4]
355While he is still driving the same truck and gets enjoyment from his work, importantly, there is someone else to do the jobs for him that require use of his wrist.
356Clearly, the plaintiff has had a longstanding, significant problem with his back but it did not prevent him undertaking unrestricted truck driving duties prior to the incident. His back condition did not affect his ability to do tasks requiring the use of his right wrist such as manual tiedowns or curtains or pallet jacks.
357His wrist condition prevents him from doing the range of duties he could do pre-incident, even with a partially fused wrist. Unrestricted work in his chosen field has been closed off to him as a result of the incident injury.
Sleep
358While the plaintiff complains of problems with sleep related to his wrist, he is not taking any medication and, in any event, he says his depression and lower back pain affects his sleep.[106]
[106]T99
Housework
359Although problems with housework were relied upon in terms of consequences of the wrist impairment, the plaintiff has described a good level of functionality in this regard to a number of doctors, including Dr Slesenger. He also conceded, minimal household chores cause him back pain.[107]
[107]T100
360However, I do accept there would be a particular restriction with tasks requiring manual dexterity and grip strength like opening a jar or any twisting motion. His ability to tinker with trucks, an activity he previously enjoyed, was also affected.
Other activities
361The plaintiff is a man with limited hobbies. Counsel for the plaintiff submitted that the plaintiff’s need to rest after working long hours, prevented him from doing a range of activities.[108]
[108]T124
362However, I have difficulty accepting that the plaintiff, who is able to do long hours driving for work, is unable to attend truck shows because of his wrist pain.[109]
[109]T100
363While the plaintiff used to enjoy family holidays pre-incident when his son was very young, his son is now eighteen and they would no longer be going away together as they have “issues”.[110]
[110] T68
Non- compensable conditions
364In Peak Engineering & Anor v McKenzie,[111] Maxwell P described the difficulty faced when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury.
[111] Supra
365In such circumstances:
“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ... at least very considerable’. For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”[112]
[112] At paragraph [1]
366The President found that the judge was:
(a) bound to identify, and exclude, the continuing consequences for the plaintiff of the non-compensable conditions; and
(b) when the consequences properly referable to the relevant injury were identified, identified them as “serious”.[113]
[113] At paragraph [2]
367Counsel for the defendant submitted that there was not much that would not be untouched by the plaintiff’s significant back condition, or his mental state as noted by Dr Hogg. In any event, the plaintiff retains capacities to perform daily activities, recreational, and work activities.[114]
[114]T87; Dwyer v CalcoTimbers Pty Ltd (No 2) (supra)
368I accept the plaintiff’s back condition has always been a feature and part of his makeup and that has been longstanding. There have also been issues with his mental state.[115]
[115]T117
369As noted above, the plaintiff was able to do a full range of duties before the incident, although his back pain was significant, as the clinical notes indicate.
370While the plaintiff hinted back surgery had been suggested, there is no mention of this in any of the medical evidence including the up-to-date clinical notes.
371In general terms, the plaintiff’s back, and more recently his mental issues, are significant but do not affect his ability to continue full-time truck driving.
372The plaintiff’s ongoing wrist pain and the need for strong medication are consequences unrelated to his back condition or mental health. In any event, despite his back and mental health issues, he has been able to continue to work on a full-time basis up to 12 hours per day.
373Taking into account all the evidence of the consequences relating to his right wrist and excluding any consequences related to his back or mental state, in my view, there is an additional impairment resulting from the 2013 incident which is serious.[116]
[116] Petkovski v Galletti (supra)
374As a result thereof, the plaintiff developed a new onset of pain for which he has required treatment, including the suggestion of surgery. That pain has resulted in functional loss, particularly in relation to his employment.
375The pain from the incident never settled whereas, prior thereto, it had been able to largely settle following surgery. Since the incident, he has had continuous wrist and hand pain. His wrist has not been normal.
376His right upper limb impairment has been an issue since the incident, with no long-term sustained improvement, despite treatment. In those circumstances, the impairment is permanent.
377Accordingly, I grant leave to bring proceedings for damages for pain and suffering.
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