Walsh v Victorian WorkCover Authority
[2022] VCC 1162
•27 July 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-21-05158
| NUNZIETINA WALSH | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 June 2022 | |
DATE OF JUDGMENT: | 27 July 2022 | |
CASE MAY BE CITED AS: | Walsh v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1162 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – leave sought for pain and suffering and pecuniary loss damages – aggravation – credit
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35; Petkovski v Galletti [1994] 1 VR 436
Judgment: Leave granted to commence a proceeding for pain and suffering and pecuniary loss damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Brett QC with Mr P Haddad | Arnold Thomas & Becker |
| For the Defendant | Ms A Bannon | Wisewould Mahoney |
HIS HONOUR:
BACKGROUND
1The plaintiff in this proceeding, Mrs Nunzietina (“Tina”) Walsh was born in 1965 and is now 57 years of age. She is married. Her husband is currently unemployed, having recently worked as a gaming attendant. They have an adult son. She is right-hand dominant.
2The plaintiff’s work history is not in dispute. She left school in Year 11 and worked briefly as a receptionist. Otherwise, she has worked in manual employments, including bookbinding, machine operator and factory worker.
3The plaintiff has had episodes of hand or wrist pain due to manual work and extending back as far as late 1993.[1] In approximately 2008, she was diagnosed with Bilateral Carpal Tunnel Syndrome following appropriate nerve conduction studies.[2] On 1 April 2008, she attended a general practitioner where a mild bilateral carpal tunnel syndrome was noted, and it was recorded that her symptoms were better.[3] There is then no suggestion of ongoing carpal tunnel symptoms until the plaintiff’s employment with COV Holdens (Aust) Pty Ltd Trading as A A Gaskets Pty Ltd (“A A Gaskets”).
[1] Defendant’s Supplementary Court Book (“DSCB”) 3
[2]Plaintiff’s Court Book (“PCB”) 4
[3]Defendant’s Court Book (“DCB”) 68
4The plaintiff commenced casual employment with A A Gaskets in approximately late 2013/early 2014, initially on a casual basis until August 2014, when she was employed on a full-time basis. Her duties involved operating machines, flattening, sorting, and cutting gaskets, and picking and packing gaskets.
5In early 2015, the plaintiff developed pins and needles and numbness in both hands. She did not seek medical treatment until September 2015. In an affidavit sworn 14 July 2021,[4] she said:
“… My condition worsened around September 2015. I had trouble sleeping and my hands were hot and cold. I tried using hot water bottles. My hands at night were very painful.”[5]
[4]PCB 5
[5]PCB 6, paragraph [8]
6On 21 September 2015, the plaintiff attended her general practitioner at the Craigieburn Clinic, Dr Fred Low. He recorded that she presented with symptoms of bilateral carpal tunnel syndrome on a history of having the same problem in 2008.[6] Nerve conductions studies were arranged and the plaintiff was referred to Mr Mark Baldwin, plastic surgeon.
[6]PCB 30
7The plaintiff attended Mr Baldwin on 8 December 2015, with bilateral carpal tunnel syndrome, worse on the left than on the right.
8Mr Baldwin performed a left carpal tunnel release on 9 February 2016. Following that, she was referred to Ms Sue Doman for hand therapy.
9Mr Baldwin reviewed the plaintiff on 3 May 2016. There were still some issues associated with the carpal tunnel surgery and the plaintiff’s right carpal tunnel was also problematic. Mr Baldwin performed right carpal tunnel surgery on 5 July 2016.
10Following the right carpal tunnel surgery, the plaintiff had a good outcome. By then she had developed triggering of the left thumb. Mr Baldwin recorded that trigger fingering sometimes develops following hand therapy.[7] Mr Baldwin performed a left trigger release on 18 July 2017.
[7]PCB 43
11Mr Baldwin reviewed the plaintiff from time to time. At the last review on 6 February 2018, she continued to complain to Mr Baldwin of symptoms on the left side and an incomplete result from the left carpal tunnel surgery. In a report written by him 10 April 2019, Mr Baldwin described the whole scenario when he last saw the plaintiff as “a bit strange”.[8]
[8]PCB 48
12The plaintiff had other specialist referrals for her carpal tunnel symptoms. In January 2017, she attended Associate Professor Brian Chambers, neurologist. Despite what he considered to be technically satisfactory carpal tunnel release, he noted ongoing symptoms.[9] By April 2018, he was in contact with Dr Low and described the plaintiff presenting with a chronic pain syndrome. He said that no further surgery was required.[10]
[9]PCB 16
[10]PCB 24
13The plaintiff attended Mr Damon Thomas, plastic surgeon, for a second opinion in April 2018. He described the treatments to the point with Mr Baldwin as very sensible.[11]
[11]PCB 29
14Notwithstanding a technically successful outcome from carpal tunnel surgery, the plaintiff has continued to complain of symptoms, more so on the left side.
15The plaintiff is currently off work. She last worked in approximately November 2015, on a return-to-work plan with the A A Gaskets. She remains in receipt of WorkCover weekly payments.
This proceeding
16Against that background, this is a proceeding brought by the plaintiff pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”), in which the plaintiff seeks the leave of the Court to commence a proceeding for both pain and suffering and pecuniary loss damages.
17The plaintiff relied upon the physical injury (carpal tunnel) to the left hand/wrist as the “serious injury”.
18The matter proceeded in the “usual manner”, although due to time constraints the parties provided written submissions rather than oral submissions. In the circumstances, the Court shall accept the written submissions as exhibits.[12] Each party tendered a court book (in the case of the defendant, a court book and a supplementary court book) of relevant documents,[13] including affidavits, medical reports, medical records and claim documents. The plaintiff gave oral evidence.
[12] Respectively marked P2 and D2
[13] Respectively marked P1 and D1
19The cross-examination of the plaintiff was initially directed towards the history of carpal tunnel and the accuracy of that history in her affidavits and to the doctors. Next, she was cross-examined about her capacity for daily activity. There was a particular focus on her residual capacity for employment and whether she had made genuine attempts to rehabilitate herself or look for employment.
20I have considered all the tendered evidence, the transcript of the plaintiff’s oral evidence, and the written submissions, but I shall refer to the tendered evidence and submissions only to the extent necessary.
The parties’ submissions
21Pausing, and before briefly setting out the parties’ written submissions, counsel for the defendant, in response to a question from the Court, accepted that there was no issue about the plaintiff suffering a compensable left carpal tunnel injury with the employer.[14] Further, at the conclusion of the plaintiff’s oral evidence, counsel for the defendant was asked whether the sole issue in the proceeding was economic loss, which counsel confirmed that it was.[15] Further, counsel for the defendant said that “serious injury” for pain and suffering consequences was not formally conceded, but that the cross examination reflected the focus of the defendant’s case.[16]
[14] Transcript (“T”) 26, Line (“L”) 18-22
[15] T 52, L2
[16] T 52, L3-8
22However, in the written submission, the defendant retreated from the concessions made in court and firstly submitted that there was no ongoing organic condition affecting the plaintiff’s left hand. Next, the defendant submitted that the evidence revealed limited consequences from any left-hand injury and the plaintiff had been prone to some ‘hyperbole’ in relation to her limitations generally during cross examination. At best the left-hand injury could be said to produce consequences somewhere between modest to moderate, and certainly not “more than significant or marked” or “at least very considerable”. Finally, the defendant submitted that the medical evidence and the plaintiff’s oral evidence supported a conclusion that there was a residual capacity for employment and that pecuniary loss serious injury was not made out on the evidence.
23The written submissions of the defendant are unexpected considering the discussions in court. It might also be regarded to be somewhat unexpected that the VWA as a model litigant would seek to agitate work capacity in this proceeding and yet continue to make weekly payments to the plaintiff based on no current work capacity. Although, I accept that the test for pecuniary loss serious injury is different to the test for the entitlement to ongoing weekly payments. At the end of the day, the proceeding must be resolved on the issues raised in the written submission, but I do so in the context of the concessions made in court and the manner in which the cross examination was conducted.
24In her written submission, the plaintiff identified the fact that the defendant had conceded the fact of injury and the compensable nature of injury. She proceeded to make submissions about the nature of the injury – said to be an organically based residual condition following left carpal tunnel surgery. She submitted that the consequences were “serious” in respect to pain and suffering consequences and noted, correctly, that no substantial challenge had been made to her account of pain and suffering symptoms. Next, she submitted that she had no effective use of the left hand, such that she now had no capacity for any “suitable employment”. Alternatively, if there was a residual capacity then it was for no more than 20 hours per week, consistent with the opinion of Dr Baynes, and the requisite level of pecuniary loss was established.
25Because I prefer the submissions of the plaintiff, leave is granted to the plaintiff to commence a common law proceeding for both pecuniary loss and pain and suffering damages. I shall now set out my reasons for preferring the plaintiff’s submissions.
The plaintiff
26It is convenient to start with a few words about the plaintiff and credit. There were occasions during her oral evidence where she displayed a lack of respect for counsel for the defendant and unhappiness with the questions asked of her. That may have been an unfortunate product of the stress of giving evidence and the adversarial nature of the proceeding. Some of her answers to questions in cross examination did seek to highlight her level of disability and could be said to reflect her ‘putting her best foot forward’. But equally, she did make appropriate concessions, including concessions that could be said to be against her interest when it comes to residual work capacity.[17]
[17] See, as an example, T46, L28
27Broadly, I consider her as a genuine witness who did her best to answer questions asked of her. I do not consider this to be a case where her credit is an issue. I consider that in assessing the seriousness of her injury, I can rely on her evidence. I reject a submission that her evidence was subject to “some hyperbole” in the sense that is meant to convey that she exaggerated when giving evidence.
28As already mentioned, the plaintiff was challenged broadly about her residual capacity for employment and whether she had made a genuine attempt to retrain or look for alternate employment. Indeed, much of the thrust of the defendant’s case was that the plaintiff, and to an extent her husband, were living off her WorkCover weekly payments and that was the reason she had not looked for work.
29I pause again to note that the plaintiff remains in receipt of weekly payments for no current work capacity and requires medical certification to receive those payments, with no suggestion that she is in some way receiving payments she is not entitled to.
30However, in respect to specific pain and suffering consequences as set out in her affidavits, while there was a challenge in the broad sense as to her level of disability, much of what she said in her affidavits was not directly challenged. I accept what she said about her left hand/carpal tunnel condition in her affidavits sworn 14 July 2021,[18] and 27 June 2022.[19]
[18]PCB 5
[19]PCB 9
31I accept that she has constant, ongoing pain in her left hand, which fluctuates. I accept that she has pins and needles and a feeling of altered sensation and altered temperature. She has difficulty making a fist and difficulty gripping items. She requires assistance from her family with domestic duties. She requires ongoing medication, general practitioner consultation, and splinting of the left wrist. This can be summarised by what she said in her second affidavit as follows:
“Since swearing my affidavit, I have continued to experience constant pain in my left hand. It is usually a stabbing pain, and it is particularly intense around the base of my left thumb. I get pins and needles in the fingers of my left hand. Often my left hand feels cold and numb, and I sometimes get swelling too. My fingers are dull to touch.
I still struggle to make a fist with my left hand. I have almost no strength in my left hand. I struggle to lift even very light things in my left hand, even a cup of coffee. I often drop things if I try to hold them in my left hand.”[20]
[20]Paragraphs 2 and 3
32In my view, the inability to use her left hand for activity that requires gripping, holding, or carrying items, combined with the ongoing pain and need for treatment, is such that the plaintiff has made out a “very considerable” pain and suffering consequence. I also consider what she told the doctors about her symptoms, which I shall come to when discussing pecuniary loss consequences. In short, the evidence discloses a “very considerable” pain and suffering consequence from the left-hand injury.
33It should be apparent that I accept that there is an organic and ongoing condition affecting the left hand. Once again, that will be discussed when dealing with the medical material. The real issue in the case is pecuniary loss serious injury, and it is appropriate to move to a consideration of that issue.
Legal principles
34Before dealing with the relevant evidence of work capacity, it is convenient to set out the relevant legal principles, which are not in dispute. In order to establish an entitlement for leave to commence a proceeding for loss of earnings damages, the plaintiff must first establish that the loss of earning capacity consequences from the compensable injury, when judged by comparison with other cases in the range of possible impairments or losses of a body function, are fairly described as being more than significant or marked, and at least “very considerable”, as per the narrative test set out in s325(2)(b) and (c) of the Act.
35It was not seriously suggested during the plaintiff’s oral evidence that she should return to her pre-injury employment. A consideration of the whole of the evidence, including the relevant medical evidence, tends to the conclusion that the plaintiff cannot return to her pre-injury employment so, in my view, that constitutes a “very considerable” consequence to her, and the narrative test is satisfied.
36Next, upon establishing “very considerable” loss of earning capacity consequences, as the plaintiff has, then next she must satisfy the statutory formula as contained in sub‑s325(2)(e), (f) and (g) of the Act, namely, whether she has a loss of earning capacity of 40 per cent of gross earnings, measured as set out in s325(2)(f), and will permanently have a loss of earning capacity which will be productive of financial loss of 40 per cent or more of her gross earnings, as required by s325(2)(e)(ii). It is this aspect of the proceeding that is the real contest. The defendant submitted that there are several light jobs that the plaintiff could now undertake, or undertake with limited re-training, if she was motivated to look for work. Therefore, the defendant disputed that the plaintiff satisfied the statutory formulae.
37To satisfy the statutory formula, the measure of the claimed loss of earning capacity requires a comparison of two matters:
(a) the gross income the plaintiff is earning or is capable of earning in suitable employment at the date of the hearing (“after injury earnings”); and
(b) the gross income the plaintiff was earning or was capable of earning “during that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity had the injury not occurred” (“without injury earnings”).[21]
[21]Yirga-Denbu v Victorian WorkCover Authority [2018] VSCA 35 at paragraph 70
Injury, work capacity and the medical evidence
38There is no dispute that the plaintiff suffered a work-related left carpal tunnel injury with A A Gaskets, as confirmed by the medical reports. The central issue in this proceeding is the factual findings that I must make to determine the explanation for the plaintiff’s ongoing left-hand symptoms – that is, whether there is a physical (organic) explanation – and then to determine her “after injury” earing capacity, for the purposes of the statutory formulae.
(i) The plaintiff’s treating practitioner reports
39Commencing with the evidence in reports from treating health practitioners, in a report dated 10 August 2021, the plaintiff’s treating general practitioner, Dr Low, said that the plaintiff was suffering residual disability from carpal tunnel syndrome.[22] In a report of 4 February 2022, Dr Low said the plaintiff’s condition was essentially unchanged and that she continued to have “chronic mild pain in her left middle, ring and little fingers”.[23]
[22]PCB 38
[23]PCB 40
40Next, returning to Mr Mark Baldwin, in a report dated 10 April 2019,[24] he set out the treatment he had provided to 6 February 2018 and, notwithstanding that he found the whole situation a little strange, he set out ongoing symptoms and appears to consider those symptoms to be caused by the carpal tunnel injury.
[24]PCB 47
41Pamela Teoh is a physiotherapist who treated the plaintiff. She provided a report dated 17 November 2017,[25] in which she noted the plaintiff as still suffering the effects of the work injuries and then had no capacity for pre-injury duties.
[25]PCB 78
42Ms Sue Doman is an occupational therapist who has treated the plaintiff. Ms Doman has also provided reports, but they are now out of date and of little assistance on the issue of work capacity. Those reports record regular hand therapy treatments until the plaintiff was discharged from her care in November 2017. By letter dated 25 September 2017,[26] Ms Doman wrote back to Mr Baldwin. In that letter, she described the plaintiff attending for therapy and that she was “now progressing well”. She said that she thought the plaintiff would eventually achieve a good result, but progress was slow. At that time, she expressed an optimistic opinion that the plaintiff would be able to return to work.
[26]PCB 123
(ii) The plaintiff’s medico-legal reports
43Dr Peter Blombery is a consultant physician who has examined the plaintiff and provided reports at the request of her solicitors. In a report dated 19 November 2018,[27] he noted the plaintiff as complaining of ongoing pain, throbbing, and stabbing in the left hand. He noted his examination findings. He described the plaintiff as having ongoing pain in the left hand, as well as numbness and tingling in the fingers. It was his opinion “that a lot of the pain she has in the left hand is caused by the development of a non-specific pain syndrome present in the affected area, where there is sensitisation of pain nerve pathways”.
[27]PCB 86
44Dr Blombery went on to diagnose “bilateral carpal tunnel compression of the median nerves and left trigger thumb complicated by the development of a pain syndrome in the left hand”. I understand that to be an organic condition affecting the left hand. Regarding work capacity, he said “it is my opinion that she may be able to do light duties using her right hand a few hours per week but not in any job which involved heavy and repetitive use of the right arm”.[28]
[28]PCB 89. It would appear that Dr Blombery’s reference to the right hand should in fact be a reference to the left hand, considering the commentary in his report.
45Dr Blombery provided a further report dated 26 October 2021[29] in which he largely repeats his earlier opinions. He said a lot of the paraesthesia in the left hand was caused by the development of a non-specific pain syndrome, which I again understand to refer to an organic condition. He described the plaintiff’s prognosis for recovery as poor. He said the plaintiff had marked pain, restriction, disabilities, and incapacities affecting both hands, but particularly the left hand.[30]
[29]PCB 91
[30]PCB 94
46Dr Robyn Horsley is an occupational physician who has provided reports at the request of the plaintiff’s solicitors. In her first report dated 10 January 2019,[31] Dr Horsley set out her examination findings, her review of investigations, and provided her opinions regarding the plaintiff. She diagnosed the carpal tunnel condition and said that the plaintiff had “developed a chronic pain syndrome on the left side”.[32] Her opinion was that symptoms were likely to persist. In respect to the plaintiff’s capacity for work, she said:
“Ms Walsh, without considerable input, is likely to remain out of the work force into the longer term. She presents currently with no capacity for manual work, secondary to pain.”[33]
[31]PCB 95
[32]PCB 102
[33]PCB 102
47Dr Horsley said further:
“Ms Walsh presents without clinical signs suggestive of complex regional pain syndrome. She does however present with disability in the left hand with stiffness of movement secondary to under usage and a fear of using her left thumb, fearful that this will increase her level of pain. Clinically, she also has degenerative changes in the metacarpo phalangeal joint of the left thumb; a plain x-ray is indicated. Ms Walsh would benefit from involvement with a Pain Management Specialist and further Hand Therapy to assist with desensitisation, in combination with cognitive behavioural psychological strategies to help normalise the use of her left hand and increase usage, initially on the home front. An occupational therapy based graduated return to activities of daily living plan would be of value and the provision of appropriate hand based aids such as tap turners etc.
Ms Walsh presents with disability, left handed, which significantly impacts upon her ability to return to the work force. I believe that work has been a significant contributing factor. She has however, now developed a chronic pain syndrome. She is a manual worker.”[34]
[34]PCB 103
48Dr Horsley described realistic work restrictions as essentially avoiding any repetitive use of the left hand.
49Dr Horsley provided a second report dated 1 March 2019, which discussed suggested suitable employments for the plaintiff.[35] In summary, she said that it would be difficult to marry the plaintiff’s physical restrictions to the identified manual occupations.
[35]PCB 105
50Dr Horsley then provided a further report dated 22 February 2022.[36] In respect to current symptoms, she noted that the plaintiff continued to have pain at the base of the left thumb and radiating into the left wrist. Dr Horsley recorded a description by the plaintiff of reduced power in the left hand such that she regularly drops things and cannot carry items with the left hand. On examination, Dr Horsley did not find any evidence of complex regional pain syndrome, such as change in temperature or sweatiness. The plaintiff wore a splint and could not make a firm fist. She was tender to palpation of the left thumb and had a poor range of motion in the left wrist.[37]
[36]PCB 110
[37]PCB 113-114
51In a section titled “Summary and Diagnosis”, Dr Horsley said that the plaintiff initially presented with bilateral carpal tunnel syndrome but had now developed a chronic pain syndrome on the left, but no evidence of complex regional pain syndrome, clinically.[38] Again, I understand that to be a reference to an organic condition of the left hand.
[38]PCB 115
52Dr Horsley said that given the length of time since injury and the ongoing nature of the symptoms, she believed the symptoms are now likely to persist. She said the plaintiff presents with no reliable or realistic capacity for work.
53I understand Dr Horsley’s opinion to be that the plaintiff had developed an organically based chronic pain syndrome as a reference to an ongoing residual physical condition caused by the carpal tunnel syndrome, which is within the area of Dr Horsley’s expertise. In her third report, Dr Horsley set out work restrictions referrable to the left-hand injury.[39] I accept her opinions as I consider that they are a realistic assessment of the plaintiff’s “after injury” earing capacity, namely that the plaintiff may have a theoretical capacity for work with restrictions but, in her words, “[s]he has no realistic or reliable capacity for work.”[40]
[39]PCB 116
[40]PCB 117
(iii) The Medical Panel
54In May 2019, Magistrate Wright referred a set of medical questions to a Medical Panel for an opinion. The Panel answered those questions by Certificate of Opinion dated 24 August 2019.[41] The Panel Opinion was accompanied by the Panel’s Reasons for Opinion.[42]
[41]PCB 130
[42] PCB 133
55The Panel opined that the plaintiff had “residual pain in her left non-dominant hand following surgically treated carpal tunnel syndrome and resolved right carpal tunnel syndrome treated surgically.”[43] The Panel further opined that the plaintiff did not have a current work capacity because of the left-hand condition.
[43]PCB 130
56There is no argument that the Certificate of Opinion and the Reasons for Opinion are relevant evidence in this proceeding. In fact, the plaintiff goes further and says that, while the Panel Opinion does not bind this Court, the Panel’s Opinion and the Reasons contain “powerful evidence by reason of the impartiality of the Panel”.[44]
[44] Exhibit P1, at [3]
57But, of course, the various medico-legal witnesses are subject to the expert witness obligations, including impartiality. I do not elevate the Panel Opinion above other relevant opinions on a ground of impartiality. Having said that, the Reasons for Opinion are clear and, in my view, compelling. The Panel Opinion and Reasons support the plaintiff’s claim for serious injury and the conclusions I have expressed to this stage. The Panel also had the benefit of video surveillance that was not otherwise shown in this proceeding.
58The plaintiff apparently informed the Panel that she had no history of carpal tunnel, but the Panel had available to it, and commented on, nerve conduction studies from 6 March 2008 showing mild bilateral carpal tunnel syndrome. Consistent with the overall evidence, the Panel concluded that the pre-existing symptoms may have improved prior to the injury with the employer. The Panel excluded a diagnosis of a chronic pain syndrome and ascribed an organic basis for the plaintiff’s ongoing complaint of left-hand pain.
59The Panel further concluded that, on its analysis of “suitable employment”, the plaintiff had no current work capacity.
60The Panel’s diagnosis is consistent with the medical evidence discussed to this point, but obviously its opinion about work capacity is diluted to some extent by reason of the passage of time – although the evidence tends to the conclusion that the plaintiff’s symptoms today remain largely as found by the Panel and, of course, the Panel has not had the benefit of the oral evidence in this proceeding.
(iv) The defendant’s medical evidence
61Turning next to the medical material tendered by the defendant, the plaintiff was seen by Mr Barclay Reid, general surgeon, on 19 November 2015 and he provided a report of that date.[45] He diagnosed bilateral carpal tunnel syndrome of moderate severity, caused by repetitive movements by reason of the plaintiff’s work with the employer. He said: “The worker’s employment is totally responsible for her condition.”[46]
[45]DCB 5
[46]DCB 9
62Dr Dominic Yong, specialist occupational physician, examined the plaintiff and provided a report dated 10 October 2016.[47] He obtained an incomplete history that the plaintiff had no previous carpal tunnel conditions. Regardless, he summarised the plaintiff as suffering bilateral carpal tunnel syndrome, which by then had been treated surgically. He described ongoing symptoms and clinical features with those conditions. He said employment had contributed to the condition.[48] He described the plaintiff having a work capacity “which is limited”.[49]
[47]DCB 14
[48]DCB 18
[49]DCB 19
63Mr John Buntine is a plastic and hand surgeon who examined the plaintiff on 4 April 2017 and provided a report.[50] He conducted an examination and reviewed material relevant to the plaintiff and opined that she then had tender scars following satisfactory decompression of both carpal tunnels. He said that her symptoms appeared to be magnified by non-organic influences.[51] Regardless, he described the plaintiff’s injuries as consistent with the “hard, repetitive manual work” undertaken by her. He said she was then not capable of undertaking her pre‑injury duties and hours[52] and that a return to modified duties should be considered after the plaintiff had surgical treatment for the triggering of the left thumb, as that surgery had yet to occur.[53]
[50]DCB 24
[51]DCB 27
[52]DCB 28
[53]DCB 29
64Mr Buntine then provided a further report dated 15 November 2017, in which he was asked to comment upon a report from Professor Jacques Joubert, consultant neurologist, dated 31 October 2017.[54] Mr Buntine said that from a purely physical point of view the plaintiff would now be fit to undertake work as a product quality controller, sales assistant or product assembler.[55] He said that his belief was that the plaintiff’s:
“…apparent symptoms are magnified by influences of other than a physical nature. I am not sure how this would be best described from a psychological point of view but will mention that ‘contrived symptoms’ might be suggested as an alternative way of describing the presently observed inconsistencies.”[56]
[54]DCB 33
[55]DCB 36
[56] DCB 36
65As already discussed, I have not formed a view that her credit is an issue. Mr Buntine’s opinion that the plaintiff has “contrived symptoms” suggests dishonesty in her presentation. I do not accept his opinion about “contrived symptoms” and it lessens the weight I attach to his opinion about work capacity.
66Turning next to Professor Joubert, consultant neurologist, he examined the plaintiff on 18 October 2017 and provided a report dated 31 October 2017.[57] He did not obtain the earlier history of carpal tunnel. He obtained a history of the plaintiff’s employment with A A Gaskets. When he saw her, the plaintiff’s complaints were of pins and needles in both hands and ongoing discomfort in the left thumb post-surgery, together weakness of grip of the whole left hand. Professor Joubert opined that the carpal tunnel syndrome had to a large extent resolved. He said the delay in a return to work was the recovery from the surgery to the left thumb. He opined that the carpal tunnel syndrome was contributed to by the plaintiff’s employment, but he could not comment on the trigger thumb as it was outside his area of expertise.[58]
[57]DCB 37
[58]DCB 44
67Professor Joubert then re-examined the plaintiff and provided a further report dated 13 February 2018.[59] He obtained a history of the plaintiff having ongoing symptoms in the left hand and pain at the base of the left thumb. He described her as giving a detailed history of her condition. Neurological examination revealed altered sensation in the ulnar distribution of the left hand.[60] He said that the plaintiff had orthopaedic problems affecting the left hand with an almost completely resolved left carpal tunnel syndrome. He went on to say that he agreed with Mr Buntine “regarding the elements of non-organicity” but the structural problems were of a plastic surgery/hand surgery nature and outside his field of expertise.[61] He then stated that he believed the plaintiff could return to work “with the work adapted for only using her right hand”.[62]
[59]DCB 50
[60]DCB 55
[61]DCB 56
[62]DCB 58
68I do not attach much weight to Professor Joubert’s opinions. As he conceded, the plaintiff’s injuries are largely outside his field of expertise. Further, his reports are out of date and ignore the Plaintiff’s ongoing symptoms when expressing his opinion regarding work capacity. In my opinion as of 13 February 2018, the plaintiff was unfit to return to her pre‑injury duties. I am unimpressed with his suggestion that the plaintiff could return to work one-handed. His report predates the Medical Panel Opinion and the Panel Reasons, which are comprehensive and prepared by a Panel of medical specialists.
69Next, the defendant arranged for the plaintiff to be examined by Dr Ian Dickinson, orthopaedic surgeon. Dr Dickinson provided a report dated 4 December 2018.[63] That report is directed towards symptoms in the plaintiff’s neck, which he described as unrelated to employment and as not producing any capacity for employment.[64] Obviously, it pre-dates the Panel Opinion.
[63]DCB 63
[64]DCB 66
70Dr Dickinson then provided a more report dated 18 October 2021, after an examination of the plaintiff that was conducted by Zoom due to COVID restrictions and precluded any hands-on clinical examination. Dr Dickinson reviewed various relevant medical reports and material. He then said regarding carpal tunnel syndrome that it:
“…does occur insidiously and is not related to work. It is common in women in middle life”… “the nature of Mrs Walsh’s work does not meet any the requirements which have been considered (at times) to be consistent with occupationally induced carpal tunnel syndrome.”[65]
[65]DCB 84-85
71Dr Dickinson went on to describe the plaintiff as presenting with a functional component and that her symptoms are non-physiological or anatomical in nature. He said they represent pain, injury and treatment focussing rather than any specific diagnosis. He then said:
“She has had carpal tunnel syndrome diagnosed and has had a poor outcome from the surgery.”[66]
[66]DCB 86
72Pausing here, Dr Dickinson’s opinion that carpal tunnel is an insidious condition “common in women in middle life” is against the balance of medical opinion. I reject it. I note his description as the plaintiff having had a poor outcome from the carpal tunnel surgery, which I accept. I do not accept his suggestion that pain is a non-physiological feature, in circumstances where, as he said, the plaintiff has had a poor outcome from the surgery and considering the other evidence already discussed, including the Panel Opinion.
73Dr Dickinson then provided a third report dated 20 May 2022 after a further examination with the plaintiff via Zoom. He noted the plaintiff’s symptoms to be the same as when he last saw her.[67] He then said: “There is no physical diagnosis to Mrs Walsh’s presentation” and that:
“There are functional components in relation to Mrs Walsh’s presentation. She has non-anatomical and physiological loss of function in both arms. These have manifested themselves in relation to the physical findings.”[68]
[67]DCB 95
[68]DCB 96
74Dr Dickinson went on to say:
“There is evidence of physical complaints without evidence of any physical condition underlining the complaints. This may be consistent with a conversation reaction.”[69]
[69]DCB 96
75I am unimpressed by Dr Dickinson’s opinions. There is no suggestion elsewhere in any medical material of the plaintiff suffering a “conversation reaction”. He does not have specialist psychiatric qualification. His report is against the weight of medical opinion, namely that the plaintiff had an organic carpal tunnel condition with incomplete resolution following surgery.
76Next, the plaintiff was examined by Dr Michael Baynes, occupational physician, on 19 December 2018 at the request of the defendant.[70] In a report of that date, Dr Baynes recorded that physical examination elicited tenderness on palpation of the left wrist, with a reduction in grip strength in both hands, more so on the left. Having reviewed various investigations, Dr Baynes said that the plaintiff was suffering from a chronic pain syndrome with evidence of centralisation of pain and amplification of symptoms, which I understand to be an organic condition.
[70]DCB 99
77Dr Baynes then commented the plaintiff’s residual capacity for employment at that time and suggested the plaintiff would be able to undertake work as a product quality controller, sales assistant, product assembler (light items), information officer, or purchasing and supply logistics clerk on a part time basis “of around 20 hours per week taking into account the above physical restrictions.”[71]
[71]DCB 103
78Dr Baynes then provided a further report dated 26 April 2019,[72] commenting upon a suitable employment report from Recovre dated 1 February 2019. In respect of various jobs, Dr Baynes opined that the plaintiff would be fit to undertake those jobs on a part time basis of around 20 hours per week.[73]
[72]DCB 105
[73]DCB 106
79Finally, completing a summary of the defendant’s medical evidence, the plaintiff was examined by Dr Mary Wyatt, occupational physician, on 21 October 2021 via video conference.[74] In a report dated 25 October 2021, Dr Wyatt noted the history of carpal tunnel in 2008 and the onset of symptoms in 2015. A limited examination was conducted because of the restrictions of the video conference. Dr Wyatt then reviewed various investigations and said that the plaintiff developed carpal tunnel syndrome in 2008, which settled spontaneously and recurred and was diagnosed as moderately severe in 2015, requiring carpal tunnel release. She noted that a diagnosis of chronic pain had been made and said, “I am not confident this fully explained Ms Walsh’s described problems and ongoing limitations” and that, “[i]t is possible that a mood disorder has contributed to Ms Walsh’s presentation, and it is possible that claim factors are playing a role.”[75]
[74]DCB 128
[75]DCB 132
80Dr Wyatt went on to describe the plaintiff’s capacity for employment. She said that the plaintiff could work in an environment where she did not need to do significant manual handling, such as regular lifting over 2-5 kilograms. She said that forceful activities with the wrists and hands should also be avoided.[76]
[76]DCB 133
81Dr Wyatt then provided a further report dated 24 April 2022, after once again examining the plaintiff via video conference. In that report she repeated much of her earlier report. She said that the plaintiff had the physical capacity to undertake jobs set out in a Nabenet report dated 5 April 2022, namely production line picker/packer; hand packer; production worker; medical assembly. She said that she did not believe the plaintiff would require any special flexibility or accommodation to perform those roles and that a period of work hardening would assist but was not medically necessary.
82Finally, regarding the Nabenet report of 5 April 2022,[77] it identifies “suitable employment” options, which boil down to light manual type jobs that it is said the plaintiff could now undertake or undertake with limited re-training.
[77] DCB 141
Analysis
83On a consideration of the whole of the medical evidence, I conclude that the plaintiff suffered either the occurrence or recurrence of left carpal tunnel syndrome related to her work with the employer. In circumstances where she was symptom free between 2008 and when she commenced with A A Gaskets, in the Petkovski[78] analysis not much turns on whether she suffered a discrete carpal tunnel injury or the aggravation of a pre-existing carpal tunnel. She has undergone surgery for that condition, with an incomplete outcome and ongoing symptoms now for the best part of six years.
[78] Petkovski v Galletti [1994] 1 VR 436
84For the reasons provided I prefer the medical opinions that ascribe an organic condition to her ongoing complaints of left-hand pain.
85I do not accept that the plaintiff has contrived her symptoms, or avoided a return to work, because of the claims process or because she is not motivated to do so. The plaintiff had a solid history in manual work and would be better off financially by working. The defendant chose to joust with the plaintiff during cross-examination about her motivation for looking for work, but it was not prepared to “put the sword in” in the sense that there is no suggestion she is now receiving weekly payments that she is otherwise not entitled to receive. I accept her evidence that she has ongoing symptoms in her left hand which preclude her from ordinary daily activity as set out in her affidavits and similarly precludes her from any form of manual work using the left hand, bearing in mind that she has only ever undertaken manual work.
86The short question, then, is whether there is “suitable employment” for which the plaintiff is now capable of undertaking effectively one-handed. In my view it is unrealistic to expect her to be able to do so. Self-evidently, most manual jobs, including the jobs identified by the defendant in the vocational assessments, require the use of both hands. Despite her oral evidence that if offered a light job she would give it a go, I consider that she accurately summed up her situation when she said “I mean, I am 57, I have had an accident at work. And, I mean, who’s gonna give me a job with one hand working?”[79] Realistically, the plaintiff has no “after injury” capacity for any “suitable employment”.
[79] T33, L 6-7
87In the circumstances, I conclude that the plaintiff has no capacity for suitable employment and economic loss test is made out.
88Accordingly, leave is granted to the plaintiff to commence a proceeding for both pain and suffering and pecuniary loss damages.
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