Virtue v Spotless Services Australia Ltd
[2017] VCC 1164
•28 August 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-05724
| JOANNE VIRTUE | Plaintiff |
| v | |
| SPOTLESS SERVICES AUSTRALIA LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 June 2017 | |
DATE OF JUDGMENT: | 28 August 2017 | |
CASE MAY BE CITED AS: | Virtue v Spotless Services Australia Ltd | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1164 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the hands and wrists – carpal tunnel syndrome – pain and suffering and pecuniary loss damages
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Mobilio v Balliotis [1998] 3 VR 833; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46; Ansett Australia Ltd v Taylor [2006] VSCA 171; Sednaoui v Amac Corrosion Protection Pty Ltd [2017] VSCA 66
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J J Fitzpatrick | Slater & Gordon Ltd |
| For the Defendant | Mr M K Clarke | Wisewould Mahony |
HIS HONOUR:
Introduction
1 Joanne Virtue seeks leave or permission to bring a claim for damages against the defendant under the Accident Compensation Act 1985 (“the Act”). She relies on paragraph (a) of the definition of “serious injury” in s134AB(37) of the Act. She says the permanent serious impairment or loss of a body function concerns her upper extremities and, in particular, her hands and wrists. In relation to the meaning of “serious”, she relies on the consequences to her of both pain and suffering and loss of earning capacity.[1] Although Ms Virtue pleaded a reliance on paragraph (c), it was not pursued even though not formally withdrawn. Anyway, the evidence was insufficient to establish it.
[1]See s134AB(38)(b).
2 Ms Virtue’s principal injury is the carpal tunnel syndrome affecting both wrists. A description of it appears in the report of Associate Professor Felix Behan, plastic and reconstructive surgeon, one of the specialists who examined her:[2]
“Carpal tunnel syndrome occurs as a result of compression of the median nerve.
The median nerve runs from the forearm through a passageway in the wrist (carpal tunnel) to the hand. It provides sensation to the palm side of the thumb and fingers, with the exception of the little finger. It also provides nerve signals to move the muscles around the base of the thumb (motor function).”
[2]Associate Professor Felix Behan, report dated 12 September 2016 at Plaintiff’s Court Book page 94
3 Because it is an issue in this case, Associate Professor Behan then spoke of its causes:[3]
“In general, anything that crowds, irritates or compresses the median nerve in the carpal tunnel space can lead to carpal tunnel syndrome. Additionally systemic factors like obesity, pregnancy, thyroid disease, ganglia, wrist fracture and injuries etc. can narrow the carpal tunnel and irritate the nerve, as can the swelling and inflammation resulting from rheumatoid arthritis. … .”
[3]At page 94
4 The other conditions are flexor tenosynovitis of the left index finger and thumb, and osteoarthritis of the PIP joint of the left index finger.
Circumstances
5 Ms Virtue is fifty-eight. She finished Year 11 at Macleod High School, married and raised her three children, before starting paid work in hospitality. On 2 July 2003, she started with the defendant as a catering assistant, working in Nestlé’s canteen at Campbellfield. Apart from periods off work, she continued as a catering assistant until resigning on 18 July 2016. For thirty years, she has worked as a catering assistant.
6 As a catering assistant at Nestlé, Ms Virtue worked weekdays between 2.45pm to 9.15pm (the afternoon shift). The canteen served up to 100 employees during her shift but, on average, she served about 50 customers. She worked alone because the morning shift prepared the food for the day. She heated and arranged fried foods including spring rolls and pies; toasted sandwiches, wraps and leftover food from the morning shift; reheated meals prepared by the earlier shift for dinner; took the temperature of all foods; topped up the tea and coffee area; prepared sandwiches; washed all dishes; loaded and unloaded the dishwasher; served customers and worked on the register; wiped down tables; and filled serviette, salt and pepper containers.
2011
7 On 28 May, Ms Virtue injured her right ring finger at home when she hit the hinge of a door. She suffered a mallet injury with subsequent swan necking. Thereafter, she had periods off work. She went to the Northern Hospital for hand therapy. Her hand was in a split for three weeks. For some of the time between May 2011 and February 2012, Ms Virtue did not work. I do not know how long.
2012
8 In February, Mr James Thomas, a hand surgeon, operated on the right middle and ring fingers. He performed a spiral oblique rectangular ligament reconstruction. The surgery was successful. After some weeks Ms Virtue was able to return to work, initially, on light duties.
9 On 15 May, while at work, Ms Virtue suffered pain in her right forearm after pulling a very heavy dishwasher rack. Later, she felt numbness and tingling in her fingers of the right hand. Despite this, she continued working but the pain, tingling and numbness increased in her right wrist and hand. She slept poorly.
10 On 7 June, she underwent nerve conduction studies of the right wrist. These revealed a carpal tunnel syndrome. Her duties at work were changed to avoid repetitive movements of her right hand and lifting over 5 kilograms. Her claim for compensation was accepted.
11 On 17 July, Mr Thomas reviewed Ms Virtue and wrote to her general practitioner, Dr Hala Alexander. He noted she had recovered very well from the surgery for her right middle and ring finger swan necking. She told him:[4]
“… Over the last couple of months however she has started to develop paraesthesia in the median nerve distribution of the right hand. It is particularly exacerbated by her duties at work as a caterer, especially if there is any heavy lifting activity. She also gets paraesthesia that wakes her from sleep at home. … .”
[4]Report dated 17 July 2012 at Plaintiff’s Court Book page 64
12 Mr Thomas saw signs of carpal tunnel syndrome: altered sensation in the median nerve distribution; and strongly positive provocative signs. His diagnosis was supported by the earlier nerve conduction tests. He recommended an endoscopic carpal tunnel release.
13 On 23 July, Mr Clive Kenna, physical medicine physician, examined Ms Virtue at the request of an authorised agent.[5] Since it is an issue, Dr Kenna stated the purpose of his examination is “to determine the current medical condition and whether in actual fact, it has arisen out of the course of her employment as liability is pending”.[6]
[5]Report dated 23 July 2012 at Plaintiff’s Court Book pages 151-156
[6]At page 151
14 Dr Kenna diagnosed right carpal tunnel syndrome. He implicated her employment as the cause of the injury, saying:[7]
“I consider the nature of the job duties as being contributory, in particular the incident at work on 15.04.2012 (scil 15.05.2012). Preceding that, it would have been the nature of the job duties over time making her more prone for median nerve irritation or compression.”
[7]At page 154
15 Dr Kenna rejected the injury as an aggravation, et cetera, of a pre-existing injury because she had no history prior to the incident on 15 May 2012. She was then unfit for her pre-injury duties but fit for modified duties within the restrictions given by Dr Alexander and including no repetitious hand movements involving the right wrist or lifting more than 5 kilograms.
16 On 16 August, Mr Thomas performed right carpal tunnel release surgery. This caused triggering of her right thumb, which was injected with cortisone.
17 In late September, Ms Virtue returned to work, initially at a different workplace on modified duties. By November, she returned to the canteen at Nestlé on normal duties. However, her work there increased. She spent lengthy periods chopping and cutting vegetables and salads for the next shift. Despite the surgery, her right hand did not fully recover and she became more reliant on her left hand.
2013
18 By about October, Ms Virtue suffered from numbness in both hands and inner elbows. On 21 November, she saw Dr Alexander, who found numbness of the middle three fingers of the left hand, the middle finger of the right, tenderness over the ulnar grooves of the elbows and a positive Tinel’s sign in the left wrist.
19 On 3 December, Ms Virtue underwent further nerve conduction tests revealing median neuropathy consistent with mild carpal tunnel syndrome. There was no evidence of ulnar neuropathy of the elbows.
2014
20 On 5 March, Ms Virtue saw Dr Alexander, complaining of worsening symptoms in her left hand: pain and numbness. Her sleep was disturbed and had been since the previous November. Dr Alexander referred her to Mr Thomas.
21 On 17 March, Ms Virtue saw Mr Thomas again. He concluded left-sided carpal tunnel syndrome and recommended a release.
22 On 16 April, Mr Murray Stapleton, a plastic and hand surgeon, examined Ms Virtue at the request of an authorised agent.[8] He diagnosed recurrent carpal tunnel syndrome on the right hand and the syndrome for the left. He foresaw surgery for both hands.
[8]Defendant’s Court Book at pages 5-8
23 As to the link between employment and the syndrome, Mr Stapleton twice denied any link:[9]
“This lady’s right hand injury was accepted as work related. I believe that was not appropriate, as carpal tunnel syndrome is not an injury, nor is it caused, nor is it aggravated by repetitive activity and hard manual work. It is a condition which mainly affects women of menopausal age, which is the case here. It is also more common in people suffering from thyroid disease, which, again, involves this lady.”
[9]Defendant’s Court Book at page 5
24 Again, while answering a question from the authorised agent:[10]
“The cause of the condition is unknown. It is a condition known to be one of gradual progression. It is not caused by hard work or repetitive activities, although any flexion of the wrist, at work or at home, will provide added compression to the median nerve at the wrist. The suffering of symptoms thus caused does not go to the question of aggravation of the pathological process, precisely in the same way that lying in bed when the sleep is disturbed, lying flat is not regarded as a significant contributing factor to the condition.”
[10]Defendant’s Court Book at page 7
25 And to another question:[11]
“This is not an aggravation, acceleration, exacerbation or deterioration of a pre-existing condition.”
[11]Defendant’s Court Book at page 7
26 On 15 July, Dr Alexander wrote to the Accident Compensation Conciliation Service. Regarding causation, she said:[12]
“Joanne’s condition is clearly related to the activities that she performs at her work place, as described in the previous pages. Her job involves quite a lot of heavy lifting and repetitive hand movements. These are well known and well documented causes of Carpal Tunnel syndrome. Joann[e] tells me that Mr. Stapleton has suggested that [t]he Carpal Tunnel Syndrome is due to her menopausal status. I do not agree with his comment as the work-related duties that Joanne performs on a daily basis are very highly associated with causing Carpal Tunnel Syndrome in anyone, menopausal or not. I see many menopausal women who don’t have Carpal Tunnel Syndrome. I do not believe that Jaonne’s (sic) condition would have occurred if she was not performing those duties.”
[12]Report dated 15 July 2014 at Plaintiff’s Court Book at pages 55
27 In September, Mr Thomas performed a release on Ms Virtue’s left hand. About a month later, she developed triggering in her index finger and thumb. Injections of cortisone and anaesthetic largely settled the thumb but not the finger where she developed flexor tenosynovitis. She wore a compression glove. She used sponges and weights to strengthen her left hand. However, her symptoms did not improve.
2015
28 On 23 March, Mr John Anstee, a plastic and reconstructive surgeon, examined Ms Virtue at the request of an authorised agent. His examination came after both carpal tunnel releases. He felt both operations were successful but there was triggering of the left index finger and left thumb. A steroid injection into the tendon sheath proved unsuccessful. The only restrictions lay with those the finger and thumb. He recommended a release of the flexor tendon sheath to overcome the stenosing tenovaginitis.
29 On 20 April, Mr Thomas performed a tenosynovectomy on Ms Virtue’s left index finger and thumb. With hand therapy, the condition of her thumb improved but her index finger remained painful and swollen.
30 On 25 June, an ultrasound was taken of Ms Virtue’s left index finger. It showed adhesions and scarring around the tendon.
31 On 7 July, Mr Anstee re-examined Ms Virtue. He noted the success of the operation to remove the triggering. He noted very slight swelling in the left hand. Her left hand tired easily. Although the stenosing tenovaginitis was unrelated to the carpal tunnel releases, he felt it was work related because it was one of the few genuine occupational overuse syndromes. He thought she should return to work immediately. Starting with four hours each day, she should reach her pre-injury duties after four weeks.
32 In July, Ms Virtue returned to work on reduced hours and modified duties. She tried to work six hours a day but could not. She returned to five hours each day, five days each week. She no longer worked at Nestlé’s canteen. For less than twelve months, she worked at CSL in Broadmeadows and a “couple” of months while at the Coles distribution centre in Somerton. She did these hours and days for about a year. Her duties were light. She could not lift more than 2 kilograms with her left hand. There was no restriction with her right hand. She was a catering assistant at CSL; she did not lift. She put cakes on cake trays, put toast in toasters, worked at cash registers and pushed food forward on display cabinets. Her duties at Coles involved placing food on plates and giving them to customers.
33 On 29 July, Mr Thomas reviewed Ms Virtue. Her scar tenderness and range of movement in the left index finger and thumb were improving. He noted she had returned to work on reduced hours and modified duties and expected a return to her normal pre-injury duties.
34 On 15 September, Ms Kate Crump, a hand therapist, wrote to Ms Virtue’s solicitors. Her clinic, Melbourne Hand Rehabilitation, had treated her 44 times between 13 October 2014 and 15 September 2015. She, and other hand therapists, concentrated on the left hand. By September, Ms Crump was modestly optimistic. She expected continued, but slow, improvement in work capacity, strength, other function and pain. The aim was a return to full hours and duties at work, with six hours each day by October.
35 By September, Ms Virtue had returned to work on a plan devised by the defendant. It had two restrictions: no lifting with the left hand over 2 kilograms and repetitive lifting over 500 grams. Interestingly, Ms Virtue’s grip strength with the left hand had declined from 8 kilograms to 6 kilograms over the period of treatment. It was much less than the grip strength of the right dominant hand at 20 kilograms. However, pinch strength had increased from 2.5 kilograms to 3 kilograms.
2016
36 On 18 July, Ms Virtue resigned, believing she could not perform her duties because of her injuries. She felt pain in her left index finger, thumb and wrist. She found serving customers heavy work which aggravated her pain. Holding tongs in her right hand, she put food on plates. She tried using the tongs with her left hand but that was painful. The weight of foods on plates was less than 2 kilograms. When she resigned, no one was then treating her.
37 After resigning, she continued taking Nurofen for pain relief and did exercises at home.
38 On 12 September, Associate Professor Behan, a plastic and reconstructive surgeon, examined Ms Virtue at the request of her solicitors. His reports contains photographs of her hands and left elbow with detailed descriptions. With the left, there was oedema and swelling on the dorsum, causing reduced flexion, especially on the index and middle fingers.
39 His diagnosis was straight forward: bilateral carpal tunnel syndrome with residue of the syndrome in the left hand. The prognosis was poor despite saying her condition had not stabilised. He did not know whether she has developed a Complex Regional Pain Syndrome (CRPS) but viewed it as a possibility. He would cause another EMG investigation to confirm his clinical conclusion of the residue of the syndrome. If confirmed, he would recommend exploring the wrist surgically to see if there is irritation in the perineural sheath of the median nerve. If there is, there should be another release and protective reconstruction to cover the median nerve to minimise subdermal adhesions to the perineural sheath which is one of the causes of ongoing dysfunction and CRPS development.[13]
[13]Plaintiff’s Court Book at page 99
40 Associate Professor Behan excluded her return to her pre-injury duties. The aftermath of her injuries prevented pushing and pulling. Ms Virtue told him she preferred to work in an office where the demands on her manual dexterity would be less.
41 On 2 November, Mr Damian Ireland, a hand surgeon, examined Ms Virtue at the request of the defendant’s solicitors.[14] Noting the bilateral carpal tunnel syndrome had been treated surgically, he found only minor residual sensory symptoms on the left and none on the right. The flexor tenosynovitis of the right thumb had resolved with conservative treatment. The same condition for the left thumb and index finger was treated surgically.
[14]Defendant’s Court Book at pages 17-22
42 Ms Virtue complained of numbness in the index, middle and radial half of the ring fingers of the left hand; stiffness of the left index finger, which prevents full flexion, and intermittent pain in the left thumb over the palmar aspect of the metacarpophalangeal joint when flexing. There was intermittent stiffness of the right index finger but the numbness had gone.
43 His examination of the left hand detected no wasting of the intrinsic muscles, no tropic skin changes at the finger pulps, no swelling or deformity. There was full opposition of the thumb to all finger pulps with normal opposition power. The left thumb had a full range of movement in its joints without triggering, swelling or crepitus over the flexor tendon sheath. The same findings applied to the index finger except there was restricted movement at the PIP joint. The median nerve compression test reproduced numbness in the index, middle and radial half of the ring finger. Two point discrimination at 6 millimetres revealed normal sensation in all finger pulps. Apart from a slight restriction of movement in the PIP joint of the ring finger, the right hand was normal.
44 In his first report, Mr Ireland said:[15]
“The worker developed carpal tunnel syndrome bilaterally which in my opinion was unrelated to her work, and moreover in this situation is a developmental degenerative condition and more likely related to her menopausal condition and hypothyroid condition. … .
… It is my opinion that the work may have aggravated the pre-existing symptoms, but in my opinion is unlikely to have been a significant contributing factor. … ”.
[15]Defendant’s Court Book at page 21
45 In his second report, Mr Ireland answered this question:[16]
“The Worker’s Injury Claim Form dated 20 June 2012 indicates the onset of her right carpal tunnel symptoms was precipitated by pulling a tray out of a dishwasher. In your experience, is carpal tunnel syndrome caused by a single event such as this?
The mere fact of ‘pulling a tray out of a dishwasher’ does not cause carpal tunnel syndrome. Carpal tunnel syndrome develops over time and is due to chronic sustained compression of the median nerve in the carpal tunnel. Carpal tunnel syndrome is not a traumatic condition. Having a propensity to develop carpal tunnel syndrome, certain types of movements and posturing of the hand can precipitate the symptoms of carpal tunnel syndrome without causing the condition. Such precipitating factors can include long periods of sustained gripping or long periods of sustained posturing at the wrist in either full extension or full flexion. None of these precipitating factors appear to be relevant in the case of Mrs Joanne Virtue.”
[16]Defendant’s Court Book at pages 23-24
46 On 10 November, Mr Michael Baynes, an occupational physician, examined Ms Virtue at the request of the defendant’s solicitors. She told him of stiffness and restricted flexion of the left index finger with some numbness in the thumb, index and middle fingers. There was frequent swelling of the dorsum of the left hand and forearm. She made minor complaints about her right hand.
47 His examination revealed nothing abnormal with the right hand. He noted reduced flexion of the MIP and PIP joints; tenderness over the flexor tendons at the MIP joint of the left index finger and thumb. He noted altered sensation of the thumb, second and third fingers with reduced grip strength. He could not explain a triggering pain up her left forearm on testing. There was slight swelling of the dorsum of the left hand and the wrist.
48 Dr Baynes said, of her capacity for work:[17]
“I believe the worker is fit for normal function with her dominant right hand. She is fit for modified duties using her left hand where there is no repetitive forceful gripping, nor pincer gripping. She should be able to frequently change her postures and should not work where she needs to maintain a fixed forceful grip or lift heavy weights greater than 2 to 3kg with the left hand. She is fit for full-time or pre-injury hours.”
[17]Defendant’s Court Book at page 13
49 When asked to identify specific areas of work, Dr Baynes said:[18]
“I believe the worker would be fit to undertake light production work and packing work. She would be able to work in commercial kitchens or takeaway establishments only on lighter duties that do not require repetitive or forceful gripping. For example, I note when plating up and using tongs she used the tongs in her right hand but would grip the plate between her thumb and index finger with the left hand. This would cause increased symptoms and would not be an appropriate type of work.
With on-the-job training and further computer training, she would be fit to work in administrative or office type work. She would be fit to work as a retail sales assistant or receptionist with further training. She would be fit to work as a ticket seller or information clerk.”
[18]Defendant’s Court Book at page 13
50 Later, the defendant’s solicitors gave Dr Baynes a copy of a 130-week vocational assessment report, dated 28 October 2016. He agreed Ms Virtue could perform the jobs of ticket seller, enquiry clerk, administration assistant or receptionist on full-time or pre-injury hours with the restrictions on the use of her left hand. He noted she could undertake the physical requirements of computer training.
2017
51 On 6 February, Ms Virtue saw Mr Thomas again. She complained of persistent numbness in her left index finger, thumb and middle finger, stiffness in the index finger and altered sensation in the median nerve distribution. He saw some ulnar drift deformity at the proximal interphalangeal joint (PIP joint) of the index finger.
52 On 21 February, her left hand was x-rayed, revealing degenerative changes in her index and middle fingers. The changes were significant at the PIP joint.
53 On 28 February, a further nerve conduction study was performed on her left hand, showing mild median nerve sensory slowing. Apparently this finding is commonplace after successful carpal tunnel decompression surgery.
54 On 8 March, she saw Mr Thomas again.
55 On 20 March, Associate Professor Behan re-examined Ms Virtue. Her complaints about her left hand led Associate Professor Behan to say there had been a poor return of function of the left hand following treatment, including the flexor digitorum profundus muscle. He noted an inability to bend the left index finger to touch the palm: there was a 15-millimetre gap. She had neuropraxic change of the left index finger, resulting in an absence of sensation along the radial digital component.[19] There had been incomplete recovery from the syndrome. It may be caused by a surgical complication stemming from the tenosynovitis release, being scar formation at the level of the MCP joint. If so, Associate Professor Behan thought this complication was likely to be permanent.
[19]Later, he called this “dysthesiae”
56 As with his previous examination, Associate Professor Behan attached a series of images or photographs to show what he explained in his report.[20] Images 3 and 4 show the restricted flexion of the left index finger, with the latter showing a gap of 20 millimetres (2 centimetres). The gap is bridged by pushing but does not happen naturally. There is full extension of that finger. Images 8, 8A and 8B show the left index finger. He saw the potential for arthritic changes in the DIP joint, which may be contributing to the slow return of function. The condition of that hand had not stabilised because of his uncertainty about the cause of the slow return of function.
[20]Images 5, 6 and 7 did not form part of the Defendant’s Court Book
57 Associate Professor Behan saw two problems: the lack of sensation along the left index finger; and its restricted movement. Implicitly, he linked the latter to the flexor digitorum profundus muscle and not to arthritic changes to the PIP joint. In fact, he noted possible arthritic changes to the DIP joint and nothing regarding the other joint. She could not perform her pre-injury duties and any other activity because pain re-occurs after five hours of activity. She is restricted in social, domestic and recreational activities. She takes Nurofen and Maloxicam.
58 On 31 March, Mr Thomas wrote to Ms Virtue’s solicitors. He re-affirmed his previous diagnoses: carpal tunnel syndrome for both wrists; flexor tenosynovitis of the left index finger; and osteoarthritis of the left index PIP joint with x-rays showing the last as significant. He believed the osteoarthritis was the cause of the pain and stiffness in her left index finger. Since the nerve conduction tests of 28 February showed improvement in the median nerve function compared with similar tests in December 2013, further surgery was not needed to treat the symptoms of the syndrome. Implicitly, he considered those remaining symptoms as permanent. He suggested oral anti-inflammatory medicine to reduce the pain in the PIP joint.
59 Mr Thomas believed she could return to light, administrative work but not her pre-injury duties involving food preparation and catering duties. These restrictions were permanent.
60 On 26 April, Mr Thomas wrote to Ms Virtue’s solicitors:[21]
“With regard to question 1 from your correspondence dated 21 April 2017 I believe that it is more likely than not that the duties undertaken by Joanne whilst working as a catering assistant were responsible for a significant aggravation of her carpal tunnel syndrome. Whilst carpal tunnel syndrome is generally accepted as a constitutional condition, the repetitive gripping and lifting required for prolonged periods in Joanne’s duties as a catering assistant would more likely than not have aggravated her symptoms of carpal tunnel syndrome.”
[21]Plaintiff’s Court Book at page 78
61 On 5 May, Dr Alexander wrote again to Ms Virtue’s solicitor. She was despondent about Ms Virtue’s left hand due to complications since the release: the triggering of the index finger and thumb; and osteoarthritis. She saw the possibility of further surgery, despite Mr Thomas’ view, if the condition worsened. She noted the psychological effect upon Ms Virtue. Even then, she considered Ms Virtue was unfit for her pre-injury duties and any other work.
62 On 9 May, Associate Professor Behan wrote again to Ms Virtue’s solicitors replying to their question about causation and aetiology of carpal tunnel syndrome. He referred to several articles and studies, in particular, an unpublished article by Dr Peter Blombery and a published article by Associate Professor W Bruce Conolly. He concluded:[22]
[22]Plaintiff’s Court Book at page 141
“I conclude in reference to your request of Causation, there is no doubt in my mind that work related environmental factors in the case of Mrs Joanne Virtue are more likely to be related aetiologically than any constitutional factors, therefore,
(a)There are multifactorial causes in the development of CTS as evidenced in the Blombery Article
(b)The repetitive nature of the activity aggravates the situation as evidenced in the Conolly Article
In response to your Question NO. 1 – the primary aetiology be it constitutional to a degrees (sic) but is certainly aggravated by the work related factors and these 2 aetiologies cannot be divorced.”
63 Between 17 June 2016 and 13 February 2017, Ms Virtue saw Ms Thakur at an organisation called IPAR.[23] She made three visits in June 2016. At the second, Ms Thakur claims her résumé was created and Ms Virtue received copies including an electronic version. Ms Virtue denies this. Although she gave IPAR her email address, it did not send any emails to her. She agrees she received coaching on something called “WISE incentive”.
[23]Report dated 1 March 2017 – Defendant’s Court Book at pages 61-69
64 Ms Virtue returned in January and February 2017. In February, Ms Thakur claims IPAR submitted job applications on her behalf on a particular website for aged care assistant, aged care driver and courier driver. Ms Virtue denies this. She denied saying she preferred the job of driver and courier. She is licensed to drive a motor vehicle and can drive short distances. She never discussed using SEEK to find a job. However, she does now know how to search for jobs online.
65 Ms Janette Ash is an occupational therapist and injury management consultant. On behalf of an organisation called “Recovre”, she looked at various documents about Ms Virtue and reported to the defendant’s solicitors.[24] She did not see Ms Virtue. Ms Ash examined in detail four kinds of jobs at individual workplaces in light of the physical restrictions stated by Dr Baynes: packer (Campbellfield); telephonist and enquiry clerk (Epping); receptionist in a neighbourhood community centre (Sunshine); pharmacy and sales assistant (Sunbury). She said each was suitable for Ms Virtue given her limitations.
[24]Report dated 15 May 2017 – Defendant’s Court Book at pages 25-60
66 The average gross weekly wage for full-time employees in those job categories varied according to the source. Ms Ash used two sources: Job Markets Australia; and Job Outlook (Australia). For packers, the figures were $938 and $841 respectively; for enquiry clerks, $1,071 and $1050; for receptionists, $825 and $850; and for pharmacy sales assistants, $774 and $750.
Pain and suffering consequences
67 Ms Virtue has more trouble with her left hand than her right. The left hand is regularly swollen and painful. Its power and grip strength is significantly reduced. She has persistent numbness in her index finger and thumb with some numbness in the left middle finger. Her index finger aches constantly: it is worse around the second knuckle. Repetitive use of the hand leads to a “throbbing type” pain. This finger is always stiff, which restricts its movement. She has an aching pain at the base of her thumb. Any significant use of the hand frequently causes a “sharper, shooting” pain through the thumb. Occasionally, pain travels from her hand and fingers into her forearm. On most days, her elbow is sore. Her left arm feels much weaker and she uses it less. The problems of the hand cause her to drop things regularly (iPads, plates and cups).
68 Using her left hand repetitively or for prolonged periods causes problems: she favours her right hand and suffers pain as a result. She is limited in her ability to push, pull or lift with her hand. It has less strength now and tires easily. She experiences something like cramp. Her left index finger is swollen and always aches. Occasionally, she has a shooting pain in the thumb. She has difficulty using her thumb and index finger in pincer movements. The other fingers of her left hand are numb. Fine movements with the hand are more difficult now: doing up her bra, zips, laces; turning taps; opening lids; chopping vegetables; food preparation; picking up coins or items from pockets, and typing.
69 With her right hand, most days she feels stiffness and pain in the index finger. Sometimes, it is numb. There is some loss of strength and function in the hand. The pain is less frequent and intense as felt in the left hand.
70 Ms Virtue is house proud. She enjoys cooking. She struggles with carrying plates, trays, pots and pans and with heavy cleaning tasks such as vacuuming, mopping, cleaning showers and toilet areas. She relies on her husband and youngest child, a daughter, to help. This upsets her greatly.
71 Ms Virtue has five grandchildren, aged between one and eleven. Her inability to play with them, especially the youngest, upsets her greatly.
72 She takes up to six tablets of Nurofen daily and the anti-inflammatory, Meloxicam, once daily. She squeezes a foam brick daily to strengthen both hands. She lifts a kilogram weight but finds her left hand tires quickly after doing so.
73 She sees Dr Alexander monthly.
Loss of earning capacity consequence
74 Ms Virtue’s work as a catering assistant involved these duties: lifting and carrying two to four 10-litre milk bladders from a fridge to a tea and coffee area; whisking eggs, up to eight at a time; chopping vegetables; carrying heavy pots; deep frying food and emptying such food into trays; lifting, carrying and emptying heavy trays of food into a bain-marie; gripping and carrying heavy trays and serving plates; using tongs over lengthy periods; unpacking food deliveries consisting of bags of frozen chips or dim sims, cans of beans and tomatoes, slabs containing tins of coffee and Milo; lifting and carrying heavy plates; pushing and pulling heavy trolleys loaded with these plates; loading and emptying the dishwasher; and pulling down the heavy shutters in the canteen.
75 These duties were very repetitive. They involved constant use of her hands and wrists. There was pressure to get the work done quickly. At times, the work was very fast-paced.
76 Ms Virtue is pessimistic about her future as a worker:[25]
“… I am not really sure what work I could now realistically perform on a consistent and reliable basis given the problems with my left hand. I certainly do not believe I could return to my previous job with Spotless. That work placed considerable strain and stress on my hands and wrists, which I do not believe I could tolerate anymore. I have limited skills and experience outside the hospitality industry and I believe I would struggle with any job that involved frequent use of my left hand.”
[25]Affidavit sworn 28 April 2017 at paragraph [21] – Plaintiff’s Court Book at pages 17-18
Legal considerations
77 To gain permission or leave, Ms Virtue must prove:
(a) she sustained an injury to her upper extremities arising out of or in the course of her employment with the defendant;
(b) the injury is a “serious injury”. This expression is defined in s134AB(37) of the Act. Here, it is said to be the permanent serious impairment or loss of a body function where the impairment or loss concerns her upper extremities;
(c) the impairment or loss due to the injury must be permanent, which means likely to last for the foreseeable future;[26]
[26]Barwon Spinners Pty Ltd & Ors v Podolak [2005] 14 VR 622 at paragraph [33]
(d) the injury is “serious”. “Serious” is determined by reference to the consequences of her impairment or loss with respect to pain and suffering when judged by comparison with other cases in the range of possible impairments or losses.[27] An impairment or loss is not serious unless the pain and suffering consequence is, when judged by comparison with other cases in the range of possible impairments or losses, fairly described as being more than significant or marked, and as being at least very considerable;[28]
(e) where there is reliance upon paragraph (c) of the definition of “serious injury”, the word “severe” poses a stronger or sterner test than that posed by “serious” in this legislation.[29]
[27]Section 134AB(38)(b) of the Act
[28]Section 134AB(38)(c) of the Act
[29]Mobilio v Balliotis [1998] 3 VR 833 at 846 per Brooking JA
78 The pain and suffering consequence of an injury encompasses both Ms Virtue’s experience of pain and suffering and the disabling effect of the pain on her physical capabilities (including capacity for work) and enjoyment of life.[30] Where a plaintiff relies on paragraph (a) of the definition of “serious injury” and not paragraph (c), then s134AB(38)(h) requires me to ignore the psychological or psychiatric consequences of the physical injury. In Mutual Cleaning Pty Ltd v Stamboulakis,[31] Maxwell P described the extent of the operation of paragraph (h).
[30]Haden Engineering Pty Ltd v McKinnon [2010] 31 VR 1 at paragraphs [9] and [15]
[31][2007] 15 VR 649 at paragraph [9]
79 Ms Virtue also relies on the loss of earning capacity consequence. She must prove a loss of earning capacity productive of a financial loss of 40 per cent or more, both at the date of hearing and permanently.[32] This loss is measured by comparing her gross income from personal exertion (expressed at an annual rate) which she is earning, whether in suitable employment or not or capable of earning in suitable employment, as at the date of hearing, whichever is the greater,[33] with the gross income (expressed as an annual rate) she was earning or would have earned or would have been capable of earning from personal exertion within three years before and three years after the injury as most fairly reflects Ms Virtue’s earning capacity had the injury not occurred.[34]
[32]Section 134AB(38)(e) of the Act
[33]Section 134AB(38)(f)(i) of the Act
[34]Section 134AB(38)(f)(ii) of the Act
80 The defendant relied on s134AB(38)(g) of the Act.
81 Ms Virtue relied on Ansett Australia Ltd v Taylor.[35] I was referred to Sednaoui v Amac Corrosion Protection Pty Ltd.[36]
[35][2006] VSCA 171
[36][2017] VSCA 66
82 In Ansett’s case, Ashley JA said:[37]
“But in cases where liability in relation to such a claim was accepted, I consider that the acceptance should stand only as an admission by the Authority or self-insurer, speaking for the employer, that such an injury had been sustained. Having regard, however, to the very serious consequences for the Authority or self-insurer flowing from acceptance of a claim – not only in respect of compensation payable under s98C 0r s 98E, but also, potentially, with respect to s 134AB(3) and (15) – I consider that such an admission should ordinarily be regarded as very significant; albeit not conclusive, because a defendant, in a particular case, might be able to satisfactorily explain its conduct.”
[37]At paragraph [40]
Discussion
83 Ms Virtue asserts the following injuries: bilateral carpal tunnel syndrome; and trigger finger of the left index finger and thumb. The defendant denies these injuries arise out of or in the course of her employment with it. More pointedly, it denies the employment connection with the PIP joint of the left index finger.
Causation
84 Whether the carpal tunnel syndrome arises out of or in the course of employment is a medical question where differing opinions are given by specialists for Ms Virtue and the defendant.
85 The plaintiff relies on the opinions of Mr Thomas, Associate Professor Behan, Dr Alexander and Dr Kenna. The defendant relies upon the opinions of Mr Stapleton and Mr Ireland.
86 Mr Thomas concedes carpal tunnel syndrome is a constitutional condition. However, in the case of Ms Virtue, its symptoms were aggravated by her repetitive gripping or lifting for prolonged periods as a catering assistant. In view of his acceptance that it is constitutional, it does not matter he does not mention her thyroid condition or menopause[38] even though he may have been aware of both.
[38]It may be he was aware of her thyroid condition, for it is recorded in her patient information sheet dated 6 August 2011. One supposes he read it.
87 Associate Professor Behan’s view is more complex. Initially, he said Ms Virtue’s carpal tunnel syndrome was caused by her duties at work. It appears in a single sentence and he does not elaborate. The conclusion reads as though he thought it “goes without saying”. In his last report, his view may have changed. His language is confusing. Where there may be concurrent causes of the syndrome and, with Ms Virtue, an inability to separate the constitutional from the employment, he then said:[39]
“In response to your Question NO. 1 – the primary aetiology be it constitutional to a degrees (sic) but is certainly aggravated by the work related factors and these 2 aetiologies cannot be divorced.”
[39]Plaintiff’s Court Book at page 141
88 From a lawyer’s perspective, Associate Professor Behan uses the word “aggravated” unusually. He uses the word “aetiology” for the constitutional and the “work related factor” and says they cannot be separated as aetiologies. In view of his earlier comments, he treats the “work related factor” as a cause along with those under the rubric of “constitutional”. He is not saying the injury is an aggravation of a pre-existing injury with her employment as a significant contributing factor to it.
89 As with Mr Thomas, the failure of Associate Professor Behan to mention thyroid disease in his report dated 20 March 2017 is immaterial. He sees constitutional factors as causative and he was aware of it because of his note on his copy of Dr Blombery’s article.[40] As to menopause, both Associate Professor Behan and Mr Thomas knew of Ms Virtue’s age and gender.
[40]See Plaintiff’s Court Book at page 144
90 Associate Professor Behan believes Mr Stapleton’s view is against the prevailing scientific views. He summarises from several publications of “senior clinical sources”: Mayo Clinic; article in the British Journal of Hand Surgery; a text book edited by Lam, Hooper and Kuczynski; another textbook “Rheumatology”; and the articles by Dr Blombery and Associate Professor Conelly.
91 I have quoted Dr Alexander’s view. She sees Ms Virtue’s employment as the cause of the syndrome in both hands. Implicitly, she rejects the constitutional cause of the syndrome.
92 From the passage I quoted from Dr Kenna’s report, he sees her duties (including the May 2012 incident) as contributing to the syndrome, with her earlier duties making her more prone to median nerve irritation or compression. He rejects the existence of the syndrome before the May 2012 incident. The critical event is the incident. Her earlier work set the stage and the incident triggered the syndrome in her right hand.
93 I have set out Mr Stapleton’s views. He sees the cause of the syndrome as being entirely constitutional, with employment playing no part in its causation or aggravation, et cetera.
94 Again, I have set out Mr Ireland’s views. He saw as important the near simultaneous occurrence of the condition in both wrists coupled with Ms Virtue’s age, menopausal state and hypothyroidism. He described it as a constitutional degenerative condition which would have occurred regardless of her work. Mr Ireland disfavours work because the syndrome occurred roughly about the same time in the wrists. This is wrong. The left occurred some time after the right. The decompression of the right hand occurred in August 2012, having been diagnosed earlier. The symptoms of the left appeared in October 2013, more than a year later.
95 Ms Virtue submits Mr Ireland knew little of the work done by Ms Virtue because he barely mentions it in his report. However, she concedes he was given her affidavit and presumably read it. In which case, the proper inference is that he was aware. Why else would he conclude her work may have aggravated pre-existing symptoms even though it is unlikely to have been a significant contributing factor, adding she stopped work in September 2016 because ‘the light duties work’ presented to her was not consistent with her continuing symptoms?[41]
[41]Defendant’s Court Book at page 21
96 I read Mr Ireland’s report as asserting her work did not cause the syndrome but could aggravate it. If it did, then the aggravation itself fell short of a compensable injury because her employment was not a significant contributing factor to it. Mr Ireland does not spell out why he takes that view. His comment about stopping work in September 2016 is puzzling. Mr Ireland viewed a DVD purporting to show her duties. It did not change his earlier views. Ms Virtue submits the DVD did not show the full extent of her duties. Reading her third affidavit and Mr Ireland’s comments do not enable me to say he would have come to a different conclusion if he knew the full extent of her duties.
97 The defendant submits I should prefer the opinions of Mr Stapleton and Mr Ireland because they were apprised of the complete medical picture. Mr Stapleton had no medical reports when he saw Ms Virtue. He had a Claim Form and response and an incident report. However, she told him about menopause and her thyroid condition. He noted it mainly affects women of menopausal age and is more common in persons suffering from thyroid disease. These two factors explained its onset in Ms Virtue. They did not affect his view that the condition is unrelated to her employment.
98 Of the practitioners who commented on causation of the syndrome, the view of Associate Professor Behan was the most persuasive. Although a very experienced practitioner, he researched the issue and found books and articles, including articles by Dr Blombery and Associate Professor Conolly. The unpublished article by Dr Blombery was a recent survey of available research including the results of two lengthy studies. In the search for the answer it is significant. Mr Thomas, Mr Stapleton, Mr Ireland and Dr Alexander are also experienced practitioners but only Associate Professor Behan sought to identify current thinking about the cause of the syndrome.
99 The plaintiff submits it is an injury and not an extended injury in the definition of “injury”. I agree.
100 The defendant submitted Ms Virtue had plenty of time off work due to finger injury in the time leading up to the incident on 15 May 2012 and the subsequent diagnosis of carpal tunnel syndrome. Whether that is relevant is a matter of medical opinion, of which there is none. The submission asks me to stray into an area of expertise, which I will not do.
101 As I said earlier, Ms Virtue relies on Ansett’s case to bolster her submission that there is a causal link between her carpal tunnel syndrome and her employment. I have quoted a passage from the judgment of Ashley JA. The authorised agent made the decision to accept her claim for compensation after receiving a report from Dr Kenna. It is common ground the letter accepting her claim is dated 25 July 2012 while Dr Kenna’s report is dated 23 July 2012 and Dr Kenna was asked by the authorised agent whether “in actual fact it had arisen out of the course of her employment”. On the basis of Dr Kenna’s conclusion, the authorised agent was forced to admit the occurrence of an injury arising out of or the course of her employment with the employer. There cannot be any explanation for its admission in the sense in which Ashley JA speaks. The admission is very significant.
102 I am satisfied Ms Virtue suffered bilateral carpal tunnel syndrome arising out of or in the course of her employment with the defendant. Her injury falls within the primary definition of “injury” and not within paragraph (c) of the definition.
103 There are arthritic changes to the PIP joint of the left index finger. There might be such changes to the DIP joint. The changes to the PIP joint causes the pain and stiffness in her left index finger. No practitioner says that her employment caused the changes to the PIP joint. Associate Professor Behan spoke of the DIP joint. He said nothing about her employment causing it, assuming there are arthritic changes. In the absence of such evidence, I cannot find the condition of either joint is an “injury” arising out of or in the course of Ms Virtue’s employment with the defendant. I must exclude it from my consideration of the pain and suffering consequence.
Pain and suffering consequence
104 Mr Thomas has treated Ms Virtue since 2011. After the results of the nerve conduction tests of 28 February 2017 became available, he saw her. He explained to her, to Dr Alexander and her solicitor in subsequent reports that:
(a) most likely the osteoarthritic change to the PIP joint of her left index finger is responsible for the pain and stiffness of that finger;
(b) there was mild median sensory slowing at the level of the carpal tunnel but this was a common finding of successful carpal tunnel decompression surgery. I would interpret the existence of the median sensory slowing as explaining the symptoms Ms Virtue experiences with her left hand and wrist apart from the PIP joint. Mr Thomas noted those symptoms as persistent numbness of her left thumb, index and middle fingers and, overall, altered sensation in the median nerve distribution;
(c) further surgery on her left wrist would not help with these residual symptoms due to her carpal tunnel, and conservative treatment is required. A course of anti-inflammatory medicines would help with the pain from the PIP joint;
(d) the pain in her left hand affects her activities of daily living and recreation.
105 Ms Virtue has had three operations. I have set out in detail her present complaints with both arms. With her left hand, the picture is confused by the condition of the PIP joint of the left index finger. However, many of her complaints are unrelated to the joint. They are numbness of the left thumb, index and middle fingers; overall, altered sensation in the median nerve distribution; swelling of the left hand; pain at the base of the left thumb; after frequent use, pain through the left thumb; sore elbow; loss of grip strength in both hands but most with the left; pain and stiffness in the right index finger and some numbness.
106 With the loss of grip strength, one expects the grip in her left hand would be weaker than that of her dominant right. What part the pain and stiffness due to the PIP joint plays in the loss of grip strength, I do not know. Her inability to close the gap between the tip and the palm must have some significance for gripping.
107 Ms Virtue cannot now return to her pre-injury duties which she pursued for thirteen years with the defendant and longer overall. Since she enjoyed her work with the defendant and the company it provided, it is an important loss.
108 Hands are an important part of the body. She is right handed. She has not given up any sports or recreational activities. She enjoyed the activities of home life including cooking and housekeeping. Her husband and daughter help her now. She can look after the older grandchildren but not the younger ones. She does not avoid the younger ones but it is a point of difficulty.
109 The test posed for the granting of leave is a stern one because the words “being more than significant or marked, and as being at least very considerable” present a considerable hurdle. Most of Ms Virtue’s difficulties lie with the left hand and a good deal of that lies with the index finger. Clearly, I accept Mr Thomas’ assessment that the PIP joint is responsible for the pain and stiffness in the left index finger. This is a critical finding. It is made by the surgeon who has treated her for the syndrome and the earlier right hand. Although Mr Thomas does not say so, this joint is responsible for a good deal of the pain she experiences with the left hand and arm. The exclusion of the pain and stiffness of that finger much reduces the difficulties with that hand attributable to remaining symptoms of the syndrome. So much so that the remaining symptoms are moderate and not serious in the sense used in the legislation.
110 The dominant right hand is largely unimportant in this context. Combining it and the arm adds little to the left hand and arm.
111 The pain and suffering consequence for Ms Virtue falls short of satisfying the test.
Loss of earning capacity consequence
112 The strongest view comes from Dr Alexander. In May 2017, she said Ms Virtue had no realistic capacity for work. During her evidence, Ms Virtue admitted an ability to do light work. She enjoyed her work and would have continued but for her injuries. She continued working for several years after the initial injury before stopping. Despite her admission, she said she could not do the jobs put to her in cross-examination. Her counsel submits she could not do any recognised job. With light work, he queried her reliability. Administratively, she could answer the phone and make notes. Assuming these tasks amounted to a genuine job, he again queried her reliability.
113 Ms Virtue worked at CSL for nearly twelve months. The tasks of that job were more onerous than some of the suggested options. After setting restrictions, Dr Baynes says she can perform a number of jobs. Mr Anstee puts no restrictions at all. Putting him aside, the general view is that she cannot perform her pre-injury duties but retains a current work capacity. There are forms of suitable employment which she can perform. Mr Thomas says she can perform light administrative duties. Ms Virtue agrees she has the capacity for light work. She has made no attempt to return to work or measure the extent of her capacity. The defendant asks: how can I be satisfied as to her loss of earning capacity where she has not tried to return to work. The failure to return deprives her of evidence, it does not conclude the matter. In her 15 May 2017 report, Ms Ash identifies four jobs. Working from the restrictions set out by Dr Baynes, she identifies four particular jobs which Ms Virtue could perform. Her description of the tasks of each is highly detailed and keeps the restrictions in view. Her implicit conclusion that Ms Virtue could perform each on a full-time basis is persuasive.
114 Making the comparison required by s134AB(38)(f) of the Act for the purposes of the subsection generally, Ms Virtue does not prove a loss of earning capacity productive of a financial loss of 40 per cent or more.
115 The defendant referred to s134AB(38)(g) of the Act. In view of the above, there is no need to consider its application here.
Conclusion
116 Ms Virtue’s application for leave to bring a proceeding for damages for pain and suffering and loss of earning capacity is dismissed.
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