Watt v Multiple Sclerosis Society Limited

[2009] VCC 309

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY

WORKCOVER LIST

Case No. CI-08-00887

CATHY WATT	Plaintiff
v
MULTIPLE SCLEROSIS SOCIETY LIMITED	Defendant

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	17, 18 and 19 February 2009
DATE OF JUDGMENT:	11 March 2009
CASE MAY BE CITED AS:	Watt v Multiple Sclerosis Society Limited
MEDIUM NEUTRAL CITATION:	[2009] VCC 0309

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – plaintiff suffered injury to her right upper limb – whether consequences of the impairment caused by the injury were at least very considerable with respect to pain and suffering and loss of earning capacity – whether the plaintiff’s application involved an aggregation of injuries – disentangling between effect of organic injury and chronic pain disorder – leave granted for both pain and suffering and loss of earning capacity .

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Jordan SC and	Clark, Toop & Taylor
Mr A Ingram
For the Defendant	Mr P Jens	Hall & Wilcox
HIS HONOUR:

Introduction

1 Before the Court is an application brought by Originating Motion filed on 7 March 2008 by which the plaintiff applies for leave pursuant to s.134AB(16)(a) and (16)(c) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injuries suffered by her arising out of or in the course of her employment with the defendant from 20 October 1999.

2          The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.

3 The injury relied upon by the plaintiff is an injury to the right forearm, upper arm, shoulder and neck. In bringing the application, the plaintiff asserts that the effect of the injury is to occasion an impairment of the function of her right arm which is organic in origin and accords with the definition of “serious injury” as set out in s.134AB(37)(a) of the Act. Alternatively, the plaintiff alleges that if the evidence does not establish on the balance of probabilities that the impairment of function of her right arm is caused by an organic injury, I should be satisfied that she has suffered a psychiatric injury which is responsible for the presence of a chronic pain syndrome, the effect of which is to impair the function of her right arm, and the consequences of which are sufficient to satisfy the provisions of s.134AB(37)(c) of the Act.

4          The defendant:

(i)	takes issue as to the severity of the plaintiff’s organic and psychiatric injuries and asserts that neither gives rise to an impairment which could be adjudged to be “serious” under the provisions of the Act.
(ii)	asserts that the plaintiff seeks to impermissibly aggregate injuries in order to attempt to meet the definition of “serious injury” under the Act;
(iii)	asserts that the plaintiff’s symptoms are caused by a combination of psychiatric and organic factors which require disentangling, and when disentangled and considered separately, do not satisfy the test of “serious injury” under the Act;
(iv)	contests the entitlement of the plaintiff to be given leave to commence proceedings to claim damages for both the pain and suffering and loss of earnings consequences of her injuries.

5          In the course of the hearing the following evidence was adduced:

(i)	The plaintiff gave evidence and was cross-examined;
(ii)	The plaintiff tendered:

ƒ Her Court Book (“PCB”) pages 5-34; 71-101b; 125-127; 174-175; 180

and 191-193: Exhibit A;

ƒ The medical records from the Altona Meadows Clinic: Exhibit B;

(iii)     The defendant tendered its Court Book (“DCB”) pages 1-110, together with pages 55-70 from the plaintiff’s Court Book;

(iv)     The plaintiff’s general practitioner, Dr Michael Hampton, gave evidence and was cross-examined.

The Statutory Scheme

6 The application is governed by the provisions of s.134AB of the Act.

7          The application is brought under the definition of “serious injury” contained in subsection (37)(a) which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function” or alternatively, under the provisions of subsection (37)(c) which requires the plaintiff to establish that she has suffered a permanent severe mental or permanent severe behavioural disturbance or disorder.

8          The relevant considerations which apply to such an application are as follows:

(a)	The plaintiff must prove that she has suffered a compensable injury, that is, an injury which arising out of the course of her employment on or after 20 October 1999.[1]
(b)	The injury and the impairment must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)	The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a), subsection (19)(b) and subsection (38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)	Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)	Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)	Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(g)	Subsections (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(h)	Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(i)	Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows that without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event,[3] an approach which I intend to follow in the present case.
(j)	In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.

[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11

[2]             Barwon Spinners, at paragraph 33

[3]             A consistent approach of Judges of the County Court – see, for example, De Pasquale v AW Dark Pty Ltd [2005] VCC 158, per Judge Higgins; Talevski v Fulop Trading Australia Pty Ltd [2007] VCC 833, per Judge Strong; and Patterson v Burbank Plumbing and Maintenance Services [2007] VCC 1527, per Judge Ross.

9          I am required by s.134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action, and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.

The Finding as to Nature and Extent of the Plaintiff’s Injuries

The Plaintiff’s Evidence

10        The plaintiff was born on 2 February 1960 and is presently forty-nine years of age. She was educated at Altona High School, where she successfully completed Year 10, but left after failing to successfully complete her Year 11 studies. After leaving school, the plaintiff undertook unskilled work. She married at the age of twenty-two and did not return to the workforce until 1991. Between 1991 and the date upon which the injuries the subject of this application arose, the plaintiff worked as a carer –

• initially at the Westhaven Nursing Home in Footscray for approximately nine months;

• thereafter, at a nursing home in Newport for approximately two months;

• thereafter, between 1994 and 1997, for the Spastic Society;

• thereafter, between April 1997 and 17 September 2007, the plaintiff was employed with the defendant.[4]

[4]             The plaintiff’s employment with the defendant was terminated on 17 September 2007, however, the plaintiff had been absent from her employment with the defendant from 24 May 2004 until the date of her termination.

11        The defendant conducted three residential facilities in Power Street, Williamstown. The plaintiff’s work involved caring for residents of these facilities. Her duties included showering, dressing and repositioning the residents as necessary. The plaintiff described in general terms the medical status of the residents as requiring far more care than had been the case with her work with the Spastic Society.

12        Although the plaintiff was cross-examined at length, the evidence contained in her affidavit dated 6 May 2006[5] and her supplementary affidavit dated 22 December 2008[6] as to the level of her symptoms was generally unchallenged.

[5]             PCB 5-12

[6]             PCB 19-21

13        The plaintiff first began to develop symptoms of pain in both her wrists and arms during the middle of 2001. On 30 October 2001, she attended her general practitioner with respect to these symptoms and was subsequently referred to a neurologist, Dr David Freilich, who undertook nerve conduction studies which diagnosed the presence of bilateral carpal tunnel syndrome. Subsequently the plaintiff underwent a right carpal tunnel release which was performed on 5 August 2002 by Mr P Rubenstein, who subsequently performed similar surgery upon the plaintiff’s left hand in February 2003.

14        Approximately six weeks after her left carpal tunnel release surgery, the plaintiff returned to work, undertaking light duties. Approximately six weeks later, the plaintiff returned to unrestricted duties. It is the plaintiff’s evidence (which was uncontested), that on returning to unrestricted duties, she commenced to develop symptoms in her upper arms and neck in addition to the pain which she was experiencing in her wrists and hands, from which the plaintiff gave evidence she had never fully recovered.

15        It was the plaintiff’s evidence that her symptoms continued to deteriorate until May 2004 when she was forced to cease work entirely. The plaintiff has not returned to work since that time.

The Evidence as to the Plaintiff’s Symptoms and their Effect

16        In her first affidavit, the plaintiff described the effect of her symptoms upon her in the following terms:

“In terms of pain and suffering, my lifestyle has also been significantly impaired. I am now limited in my ability to undertake tasks around the house, such as cleaning, cooking, house maintenance tasks and the like. I find that if I try to do too much with my upper limbs then I am likely to suffer increased symptoms in those parts of my body. I find the pain causes significant disruption to my patterns of sleep. My sexual relationships with my husband have become non-existent, following, I believe, as the result of my injuries. We do not socialise as much as we used to because of the pain which I am in.[7]

[7]             paragraph 19 of the plaintiff’s affidavit sworn 15 November 2007

17        In her second affidavit, the plaintiff amplified her description of the effect of her injuries upon her, stating that –

• she remained unfit for employment;

• she continued to suffer from pain and numbness in her hands which caused her to drop things;

• she was being prescribed Panadeine Forte to control her pain;

• her social, recreational and domestic activities were limited by reason of her injuries, as was her ability to undertake housework and cooking, which activities increased her neck and hand pain.[8]

[8]             the plaintiff’s affidavit dated 22 December 2008

18        In an affidavit sworn 16 February 2009, the plaintiff’s husband described her symptoms in the following terms:

“I am able to confirm that by reason of the bilateral wrist and hand problems which my wife has, she has had, and continues to suffer, a high degree of pain and suffering. I also believe that she has a similar degree of suffering by reason of pain emanating from her neck and spine. In addition, my wife has suffered from psychological problems and I know that she is prescribed an anti-depressant medication, Lovan, which she takes three times a day. On a number of occasions I have heard her express suicidal ideas. Certainly within our house where she was formerly a very happy-go-lucky type of person, she has become more moody, irritable and easily angered.”

19        In the course of her viva voce evidence, the plaintiff described herself as usually being a happy-go-lucky person but as being depressed because she was in a lot of pain.[9] She admitted that her life had involved a number of incidents of significant psychological trauma which included a temporary marriage break-up associated with “a bit of a breakdown”;[10] a significant history of asthma; ongoing back problems, including sciatica and an ongoing history of anxiety and depression for which she had been prescribed Prozac on and off for many years.

[9]             T 53

[10]           T 59

20        The plaintiff described her attitude to her work in the following terms:

“I’ve always loved being a carer wherever I have gone, . . . yes, I loved

the working [sic] at Karana and I loved working at MS.”[11]

[11]           T74-26

21        And further:[12]

“I wouldn’t have done it if I didn’t like it. I mean I felt that I was contributing. Look, I couldn’t really get a job anywhere else. I’m a very caring person and I thought, well, this is for me. This is it, and if I can give a little bit back, this is the way I’ll do it and that’s what I did.

[12]           T146

Q:	Do you miss it now?---
A:	I do, I do, I miss it a lot.”

22        The plaintiff’s evidence as to the cause of her present incapacity for work was that this was caused by her problems with her hands and in particular, her dominant right hand. She said that she had always been able to manage her pre-existing symptoms associated with her irritable bowel syndrome, her sciatica, her asthma and her anxiety and depression, and that it was not those conditions which had incapacitated her from working since May 2004.[13]

[13]           T141-143

23        Although it was submitted on behalf of the defendant that the plaintiff’s asthma was such that, by itself, this condition would now preclude her from employment, having considered the totality of the evidence on this point, I reject that submission.[14]

[14]           Whilst the report of Mr Michael Pain (DCB 14) supported the proposition that the plaintiff’s asthma would restrict her from engaging in heavy physical exertion, Mr Jonathan Burdon opined that the plaintiff’s prognosis in terms of employment capacity was for the most part related to her musculoskeletal and neurological problems (PCB 37), and Dr Peter Trembath classified the plaintiff as suffering from a one per cent whole person impairment with regard to her aggravated asthma. In any event, it is my task in this proceeding to identify the consequences of the compensable injury: Dressing v Porter & Anor [2006] VSCA 215

24        No real attack was made upon the plaintiff’s credit. Whilst it was submitted on behalf of the defendant that the plaintiff may have been guilty of embellishing her evidence on some occasions, I do not accept this submission. Rather I formed the view, having had the opportunity both to listen to the plaintiff and observe her demeanour throughout her cross-examination, that the plaintiff was doing her best to give truthful and accurate answers and that her evidence could be relied upon.

25        I formed the view that the plaintiff did not attempt to overstate the level of her symptoms or the disability associated with those symptoms. I accept her evidence that the injuries to her arms cause her constant pain which, although it may vary in intensity, is generally present at significant levels. I further accept the plaintiff’s evidence that the presence of her symptoms have precluded her from engaging in the work which she enjoyed and from which she derived considerable satisfaction.

26        The plaintiff was cross-examined at length as to the consequences to her of the injury to her right arm. In the course of cross-examination, it was never suggested that the plaintiff was disingenuous or not to be believed when she described the level of her symptoms. Rather the position taken by the defendant both in cross-examination and in subsequent submissions to me, was that there was such uncertainty as to the cause of the plaintiff’s disability[15] that I could not be satisfied to the requisite degree as to the effect of the organic injury suffered by the plaintiff or her emotional injury and for that reason that the application should fail.

[15]           The issue being whether the plaintiff’s symptoms were caused organically or by a psychological based Complex Regional Pain Syndrome

27        For reasons I will expand upon in due course, I find that the plaintiff, by reason of the presence of genuine symptoms of pain in her right forearm, is presently disabled and will remain disabled from undertaking any form of gainful employment. I accept however the proposition put on behalf of the defendant that if I am unable to apportion the responsibility for this disability between, on the one hand any organic cause for the plaintiff’s symptoms, and on the other any emotional or psychiatric cause for the plaintiff’s symptoms, the plaintiff’s application must fail having regard to my requirement under the Act to consider the application made by the plaintiff under paragraph (a) of the definition of “serious injury” as set out by s.134AB(37) of the Act separately to the application made by the plaintiff under the provisions of paragraph (c) of the definition of “serious injury” as set out by s.134AB(37) of the Act.

Medical Evidence

28        Having regard to the complexity of the issues which arise in the case, I consider it appropriate to summarise the evidence relied on by the parties:

The Plaintiff’s Medical Reports

29        The medical reports of Dr A Kaplan,[16] although contained in the PCB, were tendered by the defendant. Dr Kaplan, a consulting psychiatrist, examined the plaintiff at the request of her solicitors on 18 September 2006. The history obtained by Dr Kaplan was consistent with the material set out in the plaintiff’s affidavits in support of this application.[17] Dr Kaplan expressed the opinion that the plaintiff presented with an adjustment disorder with mixed anxiety and depressed mood. He opined that her condition was related to her injuries, her chronic pain, her physical disabilities, and her inability to work. He concluded his report by stating:

“Mrs Watts is likely to remain depressed and anxious as long as she suffers from chronic pain and as long as she remains disabled and is unable to resume her career and her normal lifestyle. Her psychiatric condition, and in particular, her diminished capacity to cope with stress, her impaired memory and concentration and her damaged self-esteem is likely to have an impact upon her capacity to engage in her pre-injury employment or any other suitable employment, although this capacity will largely be determined by her physical condition.”

[16]           PCB 58-64

[17]           PCB 5-12 and 19-21

30        In a subsequent report dated 1 December 2008,[18] Dr Kaplan expressed the opinion that the plaintiff’s psychiatric condition had not improved since his previous examination, that her capacity for employment remained as described in his earlier report, and that whilst it was appropriate for the plaintiff to be referred for psychiatric or supportive psychotherapy, it was unlikely that such treatment would substantially alter her psychiatric condition.

[18]           PCB 65-69

31        Dr Andrew Harkness, a rheumatologist, in a report dated 28 September 2006, expressed the opinion that the plaintiff suffered from bilateral carpal tunnel syndrome, probably resulting from tenosynovial injury in the two wrists, and that:

“She may have strained the muscles of her neck, bearing in mind that the arms are suspended from the cervical spine and trying to do heavy (sic) with the arms constraining the muscles between the shoulders and neck as well as hurting the arms themselves.

Employment was a significant contributing factor in causing these injuries in that if she hadn’t been doing this work, I doubt that she would have these injuries. She still suffers from ongoing pain and weakness in her wrists and consequent upon the chronic pain and her predicament, she has depression as well although I have not attempted to assess this.

It would seem, bearing in mind that her symptoms occurred over the last six years, that they should now be regarded as permanent with impairment likely for the foreseeable future.

The consequences of impairment are very considerable in that they are preventing her from working or from enjoying her life.”[19]

[19]           PCB 72

32        He further expressed the opinion that, bearing in mind that the plaintiff’s symptoms had persisted over the last six years, they should be regarded as permanent, and that their consequences are very considerable in that:

“They are preventing her from working or from enjoying her life.”

33        As to the plaintiff’s work capacity, Dr Harkness expressed the following opinion:

“She does not have the capacity for her pre-injury employment, or indeed, for any other heavy repetitive manual work. I feel that attempts to rehabilitate the worker being a carer are inappropriate and efforts would be better directed to retraining her for something far less manually demanding. There must be gentle, sedentary jobs that would be within her capacity and I believe this would be the case, except that she has always imagined herself as being a carer and has in the past intended to return to be a carer. I think if she continued on that path she will be continually frustrated.”[20]

[20]           It is appropriate to observe that Dr Harkness did not express the view that the plaintiff’s symptoms were in any way caused or amplified by the presence of any emotional or psychiatric condition.

34        Mr Kenneth Brearley,[21] orthopaedic surgeon, undertook a medico-legal assessment of the plaintiff on 11 August 2008. He obtained a history from the plaintiff that she suffered from constant pain in both wrists, radiating up her arms, and also had pain in both shoulders which travelled to the side of her neck. The plaintiff told Dr Brearley that she was able to use her hands but she dropped things frequently and that her hands felt weak. Upon his examination of the plaintiff he noted the presence of tenderness at the back of the plaintiff’s neck, with moderate reduction of movement in all directions, an inability to abduct her right shoulder by more than 90 degrees, and the presence of well-healed scarring over the front of the right wrist joint. It was his opinion that the plaintiff had developed a chronic pain syndrome and it was this condition which was preventing her from returning to work. From an organic point of view it was the opinion of Mr Brearley that there was no specific injury which would prevent the plaintiff from performing suitable light work. He developed his opinion upon these topics in the following manner:

“From the organic point of view she does have a capacity for suitable employment, i.e., light duties at the MS Society. She will need to avoid lifting beyond 5 kilograms. She should avoid repeated use of her hands and arms. She should avoid pushing and pulling movements. She should avoid work above shoulder height and she should not lean forward for long periods because of her neck symptoms.”

[21]           PCB 75-80

35        In addition, Mr Brearley noted that the plaintiff would have difficulty with her reliability and productivity. As to the prospect of the plaintiff’s rehabilitation, Mr Brearley commented:

“She did not have a realistic capacity to be rehabilitated as she did develop a chronic pain syndrome earlier on which prohibited such retraining.”

36        Dr Steven Jensen, a specialist in musculoskeletal medicine, examined the plaintiff during 2004, and subsequently reported to her solicitors on 11 August 2005.[22] In dealing with specific questions as to the plaintiff’s presentation, Dr Jensen opined as follows:

[22]           PCB 82-86

• “I believe this lady has a chronic regional pain syndrome affecting her neck, shoulder girdles and both upper limbs, and a resolved bilateral carpal tunnel syndrome relevant to the alleged work injuries.

• It is probable that employment was a significant contributing factor to her original bilateral carpal tunnel syndrome. However, I reiterate that there is now no demonstrable pathology pertaining to this original pain syndrome. I do not believe that her employment directly contributed to any physical injury to her neck or upper limbs.

• In my opinion, it is the significant psychosocial distress which is now manifest as considerable and genuine physical pain which is the major contributing factor to her present clinical status. This in turn was due to the initial delayed acceptance of her bilateral carpal tunnel injury and thus the delayed surgical treatment that she received, along with her perception of being persecuted by the WorkCover system and her employer and fellow employees, as well as the perception that the duties she was asked to perform on her return to work were unreasonable.

• In other words, it is my opinion that her employment was a significant contributing factor to her level of psychosocial distress, which in turn led to her pain experience, but employment was not a significant contributing factor to any physical injury to her neck or upper limbs, apart from the now resolved bilateral carpal tunnel syndrome.

• I believe that at the last time I saw her she did not have a capacity for suitable employment. I feel her incapacity for employment is totally related to the psychosocial factors, which in turn have led to her perceived physical incapacity.”

37        The plaintiff was treated by Dr Marg Safron, psychologist, who has provided a medical report dated 18 January 2005.[23] Dr Safron described the plaintiff as a compassionate and caring person who “preferred” to be the carer rather than the one being cared for. She opined that the plaintiff presented with levels of stress related to anxiety and depression which had been quite severe and that the plaintiff had lost confidence in her own ability to manage. As to the plaintiff’s attitude to rehabilitation, Dr Safron made the following comments:

“Cathy is working hard to heal. She enjoys her work as a carer for both the intrinsic and extrinsic rewards it provides to her. She has attended a range of therapists and has worked hard at programs suggested by them. Cathy applied herself diligently to the many strategies and interventions we worked on frequently keeping detailed diaries as well as practising her stress and relaxation exercises. As well as relaxation strategies to manage muscle tension and to reduce the impact of negative experiences, we worked on cognitive behavioural approaches to enhance her coping skills, trauma counselling to assess and manage the influence of past experiences on her present capacity to cope and we are currently also addressing assertion strategies to manage situations of feeling powerless in personal and work situations.”

[23]           PCB 92-97

38        Dr Safron concluded her report by observing that the plaintiff was keen to return to work and that her application to this goal should complement a successful rehabilitation process.

39        In a report dated February 2005,[24] Dr Safron noted attending a meeting with the defendant’s representatives in which restrictions were placed as to the plaintiff’s return-to-work tasks which included (i) a weight-bearing capacity of 1 kilogram per hand and 2 kilograms in total, with the plaintiff’s activities being largely limited to the preparation of food and the assistance of feeding of appropriate residents (plaintiff to choose) and the performance of socialising activities including reading the paper and playing board games.

[24]           PCB 96

40        The plaintiff relies upon a certificate dated 1 June 2006 from Dr David Elder, Presiding Member of a Medical Panel which assessed the plaintiff’s injuries and found that the plaintiff suffered a 12 per cent whole person impairment resulting from:

“... the accepted wrists and forearms injury. When assessed in accordance with s.91 for the purpose of ss.98C and 134AB(3) and (15) of the Act the degree of impairment is permanent.”

41        The plaintiff’s treating plastic surgeon, Mr Craig Rubenstein, reported on 3 May 2004[25] that the plaintiff underwent surgery involving a right carpal tunnel release on 5 August 2002, and a further identical procedure involving a left carpal tunnel release was undertaken on 13 January 2003. When he reviewed the plaintiff on 6 February 2003, Mr Rubinstein noted that the plaintiff’s recovery was “very good”.

[25]           DCB 109-110

42        On a subsequent review on 24 February 2003, Mr Rubenstein commented that the plaintiff was suffering from residual aching in her wrists. On 24 February 2003, it was noted that the plaintiff was complaining of the left carpal tunnel, and on 15 September 2003, Mr Rubinstein noted that the plaintiff was to continue anti-inflammatory gel massage to her wrists. On 22 September 2003, Mr Rubinstein noted that there was still intermittent weakness, particularly with lifting, and the plaintiff was still tender over the left carpal tunnel.

43        Dr Rubenstein made the following comments relevant to the causation of the plaintiff’s carpal tunnel syndrome:

“Carpal tunnel syndrome is generally recognised to be caused and exacerbated by heavy strenuous and repetitive activities and if Mrs Watt’s work involved this it is not unreasonable that the work was either contributory if not causative and this has already been accepted by WorkCover.”

44        The plaintiff relies upon the medical evidence of Dr M Hampton, who has provided seven medical reports.[26]

[26]           PCB 22-33

45        Dr Hampton is the plaintiff’s treating general practitioner. The material contained in his seven medical reports was supplemented by viva voce evidence.

46        On 16 September 2003, Dr Hampton reported the plaintiff as complaining of the presence of aching in her right hand.

47        The initial reports from Dr Hampton chart the course of the plaintiff’s initial presentation at the Altona Meadows Family Medical Clinic to Dr Hollerer on 30 October 2001 with bilateral wrist and arm pain, the diagnosis via nerve conduction studies undertaken by Dr David Freilich of bilateral median nerve compression at the level of the wrist, and the surgery for this condition undertaken on the right wrist on 5 August 2002 and the left wrist on 30 January 2003. On 16 September 2003, Dr Hampton reported the plaintiff complaining of aching in the right hand, at which time she was awaiting a cortisone injection to be administered by her hand therapist. In his report of 6 May 2004, Dr Hampton commented:

“As of this time, Cathy has achieved her maximal recovery from her bilateral carpal tunnel syndrome. She continues to have low-grade but somewhat disabling pain and continuing weakness.”

48        In his report dated 4 September 2004,[27] Dr Hampton notes that the plaintiff consulted him on 14 July 2004 and provided a history that she was:

“Back on WorkCover for her hands [presumably through Dr C Rubenstein] and had soreness of her shoulders and arms. I requested she demonstrate her method of lifting and it became clear that, in order to avoid any use of her wrists, she was lifting and carrying with her forearms as does a hand amputee.”

[27]           PCB 27

49        He continued:

“I regard the shoulder girdle injury as a consequence of the carpal tunnel

pain and attempts to perform duties outside the return to work plan.”

50        Whilst Dr Hampton, in the course of this report, queried whether the plaintiff’s lifting tasks at the time of the onset of her symptoms in her shoulders and arms fell within her return to work program, for reasons I will expand upon later, I am not satisfied that the evidence establishes that this is the case, neither was it asserted to be so on behalf of the defendant. In the course of this report, Dr Hampton opined:

“If Cathy’s statements are to be believed, the workplace conditions are such that a fit worker stands an excellent chance of chronic injury undertaking the duties she describes. Secondly, there is little doubt the excessive delay in approving surgery has caused permanent damage to Cathy’s wrists/arms which is unlikely to have occurred if her carpal tunnels had been decompressed within an appropriate timeframe. My opinion is that Cathy is unlikely to be able to perform lifting duties in excess of 5 kilograms with one hand at any time in the foreseeable future and that the predominant cause of this is the delayed surgery. My opinion is that Cathy is unable at any time to perform the duties she describes as being her pre-injury duties.”

51        Dr Hampton conceded in the course of cross-examination[28] that with the passage of time the plaintiff developed a depressive illness which, as at 5 July 2005, he thought was the predominant issue in the plaintiff’s presentation. By July 2006, whilst Dr Hampton remained of the opinion that the plaintiff was suffering from severe depression, he confirmed his earlier opinion that it was the plaintiff’s injuries to her arms and shoulders that precluded her from returning to work as a carer.[29] Finally, when he wrote his report of 15 August 2008, Dr Hampton was of the view that the plaintiff’s mental state had improved slightly but that her physical condition remained unchanged.

[28]           T193-2

[29]           PCB 32

52        Whilst, when asked to express his opinion as to the capacity of the plaintiff to return to suitable employment, Dr Hampton conceded that there was some prospect of the plaintiff being retrained.[30] He qualified that concession in the course of his further evidence on this issue.[31]

[30]           T199

[31]           T204-5

53        Dr Hampton was the only medical witness to give evidence in the proceeding. Having regard to the complexity of the medical issues in the case, I found his evidence of considerable assistance in the tasks which I am required to undertake.

The Defendant’s Medical Reports

54        In addition to the medical reports of Dr Kaplan, to which I have previously referred, the defendant relies upon the following reports.

55        Three reports from Dr Tony Kostos.[32]

[32]           DCB 5-13

56        In June 2005, Dr Kostos, rheumatologist, found, on examination, that the plaintiff suffered from diffuse tenderness to skin touch around both shoulder girdles consistent with allodynia, and tender points in the interscapular region of the anterior chest wall, and diffuse tenderness throughout both arms. He reported the presence, neurologically, of collapsing weakness proximally and distally, and that the plaintiff’s grip strengths were four bilaterally. Dr Kostos expressed the opinion that the plaintiff’s current symptoms could be attributed to her carpal tunnel syndromes, and related her problems to the presence of a regional pain syndrome with features of fibromyalgia, which he explained as the presence of pain amplification, the symptoms of which related to psychological and social factors. Dr Kostos concluded his report with the following statement:

“Therefore, in trying to treat this problem it is essential that Mrs Watt understands the true nature of her problem and she needs to be convinced she is not injured and that her current problems do not relate to the physical aspects of her former employment. Unless this is achieved then there isn’t any likelihood of further treatment being able to help her. ...

There isn’t any musculo-skeletal factor which would preclude Mrs Watt from returning to work. Therefore her ability to work relates largely to psycho-social factors and unless these are resolved there is little likelihood that she will return to work in the foreseeable future.

Her prognosis is poor.”

57        In his subsequent reports, Dr Kostos essentially repeated the opinions he had expressed earlier. I note, however, that at no time did Dr Kostos question the veracity of the plaintiff or the genuineness of her presentation.

58        Dr Warren Kemp, consultant rheumatologist, examined the plaintiff on 27 March 2006 and 13 February 2007.[33] In the course of his first examination, Dr Kemp found the plaintiff to be presenting with slight restriction of all active movements of both shoulders and the cervical spine due to neck pain and the presence of sensory alteration in the left thumb and middle finger. Whilst he expressed the opinion that the plaintiff was, at the time of his examination, unfit for any work due “to her multiple widespread symptoms”, he opined that it was unlikely that there would be any ongoing incapacity which was work- related.

[33]           DCB 17-24

59        In a further report dated 24 February 2007, Dr Kemp concluded that whilst it was likely that there had been some temporary aggravation of the plaintiff’s bilateral carpal tunnel syndrome during the course of her work, it was her hypertension, recurrent asthma, and irritable bowel syndrome which incapacitated her for employment, and her incapacity, which Dr Kemp seemed to regard as likely to continue indefinitely, did not arise from any injury arising out of or in the course of her employment.

60        Dr Mary Wyatt, occupational physician, examined the plaintiff on 8 November 2002 and 21 March 2003.[34] On the occasion of her first examination, Dr Wyatt challenged the relationship between the plaintiff’s employment and the development by her of carpal tunnel syndrome. She expressed the opinion that the plaintiff was still recovering from the surgery undertaken upon her right arm, that she required surgery upon her left arm, and that she was not likely to be fit for her pre-injury duties for some time, although the symptoms on her right side were likely to settle with time.

[34]           DCB 25-29

61        Following her second examination, in which Dr Wyatt found a grip strength of 10 to 14 kilograms in the right hand and 7 kilograms in the left, Dr Wyatt expressed the opinion that whilst the plaintiff’s symptoms are expected to improve with time she may be left with some mild weakness in the right arm, that she may struggle with heavy work, but that she was fit for the majority of her normal duties.

62        Mr John Chew, surgeon, examined the plaintiff on 10 January 2002.[35] On that occasion he found the plaintiff to present with a classical diagnosis of bilateral carpal tunnel syndrome. Mr Chew expressed the opinion that the plaintiff suffered from a bilateral condition of carpal tunnel syndrome of which her right wrist was more affected than her left, that her condition was not related to her work, that she required surgery, and that her operation may prevent her from performing pre-injury duties. He concluded, however, that the plaintiff’s prognosis was good following successful decompression of her carpal tunnels.

[35]           DCB 31-34

63        Mr Geoffrey Klug, neurosurgeon, examined the plaintiff on 20 September 2004.[36] Following his examination of the plaintiff, Mr Klug expressed the opinion that the plaintiff developed bilateral carpal tunnel syndrome during the course of her employment in 2001, and that, whilst he was unable to define the cause of her ongoing symptoms in her upper right limb, it was:

“... well recognised that after what appears to have been a successful operation for carpal tunnel syndrome, chronic pain may persist in the related upper limb.”

[36]           DCB 35-39

64        Mr Klug concluded his report with the following comments:

“She presents as a person who is substantially disabled at the present time. I would see no reason to doubt that her current symptoms do to some extent interfere with her functional status but based on my assessment I believe that she could probably undertake some suitable types of employment of a sedentary nature. I feel it would be difficult for her to undertake any employment where she was required to use both upper limbs in a forceful way. She would not have the ability to undertake her original employment as a personal carer.

I saw no reason to doubt her sincerity. I formed the impression that she was probably overreacting somewhat to her current condition. She appeared to be very injury-focused.”

65        Dr Clive Kenna, consultant in musculoskeletal pain management, examined the plaintiff on behalf of the defendant on 9 September 2004, at which time he expressed the opinion that the plaintiff was not fit to work. In expressing his views as to the plaintiff’s symptomology and prognosis, Dr Kenna opined:

ƒ “I would accept at this point in time she is not fit for work. There has been no incident but the condition has progressively developed due to muscular imbalance.

ƒ I would accept also that she has incurred her current symptoms

directly as a result of the nature of the work she has performed in an

awkward manner now over some period of time.

[37]           DCB 42

ƒ	With regards to the wrist, although there is a decrease in symptoms, subsequent functional tests indicate that she was unlikely to regain full strength in both wrists.
ƒ	I would accept the medical certificate from Dr Michael Hampton, her general practitioner of Altona Meadows, is a fair and accurate indication of her current state.”[37]

66        Mr Robert Carey, orthopaedic surgeon, examined the plaintiff on one occasion, on 5 July 2006.[38] In expressing his opinion, Mr Carey observed that he could not account for the plaintiff’s symptoms on the basis of a structural or neurological injury, and that it was his view that the plaintiff had developed a form of chronic pain.

[38]           DCB 44-49

67        Dr Stephen Stern, consultant psychiatrist, examined the plaintiff on 26 July 2007 and 19 February 2008.[39] It was his opinion that the plaintiff was suffering from a chronic adjustment disorder. There appears to me to be a fundamental inconsistency between the opinions expressed by Dr Stern in his report of 19 February 2008 and that of 4 March 2008. The inconsistency could not be explained in the course of submissions by counsel for the defendant. Its presence causes me to give little weight to the opinions expressed by Dr Stern.

[39]           DCB 58-63

68        Following his second examination of the plaintiff, Dr Stern expressed the opinion that there had been no improvement in her psychiatric condition and that she was suffering from a chronic adjustment disorder and chronic pain disorder. He opined that she was psychiatrically fit for suitable employment (which he did not define), but that she was psychiatrically incapacitated for her pre-injury work due to her work-related psychiatric disorder. He again expressed the opinion that her psychiatric state had stabilised, and that she would be left with residual psychiatric symptoms.

69        In a further report dated 4 March 2008, Dr Stern commented that in his opinion the plaintiff was fit from a psychiatric aspect alone to return to work with the MS Society. In the body of that report he referred to the content of his previous report in which he had diagnosed the presence of a chronic adjustment disorder with mixed anxiety and depressed mood and also a chronic pain disorder.

70        Dr Barrie Kenny, consultant psychiatrist, assessed the plaintiff on 14 July 2005, 5 March 2007 and 13 November 2008.[40] In his initial report, Dr Kenny accepted the plaintiff as being genuine in her presentation and that she was doing her best to give a truthful account of her symptoms. He commented in the course of his report:

“When one can’t find a clear organic basis, the term fibromyalgia is commonly used. My understanding of the term is basically it means that the patient claims to have symptoms in their muscles et cetera.

I accept that she has her aches and pains. Frankly I’ve no idea whether they have a physical or psychological basis. Commonly when one can identify a satisfactory cause the tendency is to attribute the problem to psychological factors, and so often we then come across the term pain amplification. As far as I am concerned she says she has these symptoms. I have no way of knowing just how severe they are, I have no way of knowing whether they have an organic basis to them and it is outside my area of expertise to say whether or not they are associated with work.”

[40]           DCB 72-99

71        He continued:

“I am inclined to accept that she has her symptoms. I have no way of knowing whether they’re due to work, ageing process, or whatever else, and I say she has a mild adjustment disorder in response to her persistent physical symptoms, her frustrations at the compensation process, and her indignation that she feels that she hasn’t been treated supportively or appropriately. This is a not uncommon, but relatively mild sort of condition, and the term adjustment disorder with depressed and anxious mood is appropriate.

This, of course, is secondary to her physical symptoms and issues relevant to the WorkCover process.”

72        It was Dr Kenny’s opinion that the plaintiff was suffering from:

“... some sort of chronic pain syndrome – regional pain syndrome with a mild adjustment disorder in response to her physical symptoms and the situation in which she finds herself but that it was her physical symptoms that restricted her work capability, not her psychiatric status.”

73        In the course of his second report, Dr Kenny again observed that he had no reason to doubt the plaintiff’s history, and that he accepted that the plaintiff was genuine in her presentation, and frustrated by her limitations. He opined that he was not convinced that other factors in the plaintiff’s background were of significant relevance to her continuing problems, and accepted that she presented with significant symptoms in her neck, shoulders, and arms, and headaches which had been described in other reports as regional pain syndrome. In concluding his report, Dr Kenny observed:

“So I say she is a lady with persistent physical symptoms, described as chronic regional pain syndrome. I don’t see any good reason to consider that psychological factors make a significant contribution to her physical symptoms – but of course can’t exclude that possibility.”

74        It seems clear that in making that comment, Dr Kenny was excluding chronic regional pain syndrome as stemming from a psychiatric cause. In his final report, Dr Kenny again commented that he accepted that the plaintiff suffered from the symptoms which she described, and essentially reiterated the opinions he had previously expressed.

75        Dr Chris Grant, psychiatrist, examined the plaintiff on one occasion on 16 March 2006.[41] He expressed the opinion that the plaintiff suffered from a dysthymic disorder (a chronic adjustment disorder) with depressed mood which arose partly out of a work injury and was an aggravation of a pre-injury mood disorder. It was the opinion of Dr Grant that from a psychiatric perspective the plaintiff did not have a capacity for work at the time of his examination.

[41]           DCB 95-99

The Findings as to Medical Evidence

76        The cross-examination of Dr Hampton by counsel for the defendant was extensive and thorough. I formed the opinion that Dr Hampton was a competent general practitioner and I felt confident in relying upon the evidence provided by him:

(a)	generally as to the plaintiff’s symptoms and their effect upon her life, lifestyle and capacity to work;
(b)	specifically insofar as any “disentangling” was required to be undertaken as to:

(i)	the significance of the symptoms in the plaintiff’s shoulder and neck when compared with the symptoms present in the plaintiff’s right forearm;
(ii)	the cause of the plaintiff’s reported symptoms of pain in her right forearm (whether the symptoms stem from organic or psychological factors).

77        I am of the opinion that Dr Hampton, having regard to his close association with the plaintiff and his ability to observe her presentation and progress over a significant period of time, was best placed to speak on those issues, notwithstanding the fact that his practice was in general medicine rather than in any specialist field.

78        In this regard, I accept the evidence of Dr Hampton that:

(i)	The symptoms within the plaintiff’s upper right arm and neck had improved slowly between 2004 and the present time;
(ii)	There had been very little improvement in the function of or the symptoms present in the plaintiff’s right forearm and that it was this injury which remained, for the plaintiff, the most significant factor in causing her pain and disabling her from return to employment.[42]
(iii)	The plaintiff has lost all realistic capacity for suitable employment taking into account her age, experience and education.[43]

[42]           T153, 23-31 and T195-6

[43]           T205, 3-11

Chronic Pain Syndrome

79        Having regard to the issue which arises in the case as to the way in which the plaintiff’s chronic regional pain syndrome should be characterised, I consider it appropriate to quote directly from two passages of evidence given by Dr Hampton which I consider provided a persuasive analysis of the issues involved.

“HH:

Might I just ask you with respect to the term you've used ‘chronic regional pain syndrome’, in terms of where one place it, do you place it as being caused by a psychiatric condition or do you place it in the physical injury category?---

A:

The answer to that is strictly I don't know. What I can do is to tell you if I had my foot placed in plaster for three months, which happened to me as a youth, non-weight bearing, and then I take my foot out of that plaster, the first time I put it to the ground it is incredibly painful. But in the normal event, the rate of impulses that go up from my foot to my spinal cord don't change, but my perception of that pain dries down over 24, 48 hours and within 48 hours I was back playing football. In people who have chronic regional pain syndrome, it appears that that attenuation, which is thought but not known to occur in the spine, no longer occurs. So they get a continual, every impulse that comes up from the nerve gets through to the brain and is painful. Why that happens, nobody has given an adequate reason for, but it does happen and it is incredibly disabling. Sometimes it spontaneously resolves, as did my foot. Most of the time for whatever reason it doesn't. So I would agree that it is considerable and genuine physical pain, but I don't make any statement as to the causation because I'm unaware of anything bar bias that leads one to a causation.

HH: So when you said to Mr Jens that you disagreed with the sentence, ‘In my opinion it is a significant psychosocial distress which is now manifest as considerable and genuine physical pain,’ did I understand from your last answer that it was your opinion that there is present genuine physical pain but you disagreed with the cause being ascribed, namely, psychological distress. Is that the - - -?---

A:	I don't believe that we can say that it is or that it isn't. We have no - - -
HH:	Is or isn't psychological distress?---
A:	Mm.
HH:	But what's your view about whether your patient is presenting with "considerable and genuine physical pain"?---
A:	Regardless of whether it's caused by psychosocial distress or by some organic lesion, if the pain is real and you can measure it so there is considerable and genuine physical pain. My query is or my disagreement is with the conventional theory at the moment that because we can't show a lesion, it automatically has to be a psychosocial problem. I have been around medicine long enough to see most psychosocial problems end up with a far more organic cause as a result of time and investigations. The fact that this process mirrors this process that normally happens to a perfectly fit person when the leg is immobilised, makes me think that it is some abnormality of the process of recovery and that that may well not be a psychological issue.”[44]

[44]           T189-191

80        And further:[45]

[45]           T203

“Q:	Well, what is it?---
A:	My belief is that the delay in decompressing Cathy's carpal tunnels led to ischaemic damage to the nerve and that full function will never return. The surgery was done very competently with a result that the remaining nerve fibre bundle is working at its optimum, but there is a loss of function and that cannot be recovered.
Q:	Is that an organic explanation for her pain and disability in the wrist and hand area in both hands?---
A:	And forearms.
Q:	And forearms?---
A:	Yes.
Q:	I appreciate as a clinician it's probably semantic, but His Honour has to grapple with this organic psychological debate, unfortunately, given the system that we have. Could I ask you this, so in terms of her disability which you've described and you've said is permanent, both in that letter I just showed you and elsewhere?---
A:	Yes.
Q:	Is it your opinion that it is organically-based or psychologically-based or both or you don't know?---In relation to her wrist injuries, on both sides it is my belief that they are organically based.”[46]

[46]           See also Dr Hampton’s evidence at T175,11-30

81        The opinion expressed by Dr Hampton upon this issue is supported by:

•  Dr Harkness, who opined upon examining the plaintiff on 28 September 2006:

“She still suffers from ongoing pain and weakness in her wrists and consequent upon the chronic pain and her predicament she has depression as well, though I have not attempted to assess this. It would seem, bearing in mind that her symptoms occurred over the last six years, that they should now be regarded as permanent with impairment likely for the foreseeable future.”[47]

[47]           PCB 72 – Dr Harkness did not suggest the plaintiff’s symptoms were caused or augmented by a psychiatric or psychological condition

• Dr Brearley, who expressed the opinion from an organic point of view, that the plaintiff was confined to activities which avoided lifting beyond 5 kilograms.[48]

• Mr Geoffrey Klug, who commented as to the plaintiff’s ongoing symptoms:

“They did appear to be genuine. It is well recognised that after what appears to be a successful operation for carpal tunnel syndrome, chronic pain may persist in the related upper limb.”[49]

[48]           PCB 79

[49]           DCB 38

• Dr Clive Kenna, who commented that the plaintiff was unlikely to gain full strength in her wrists.[50]

• Both Dr Kaplan and Dr Kenny who did not find the plaintiff to be suffering from a depressive condition which was responsible for her physical symptoms, rather, each psychiatrist seemed to accept that any anxiety or depression which was present was secondary to and dependent upon those symptoms. Each of these practitioners however appear to regard the plaintiff’s presentation as being genuine, and in particular, the comments made by Dr Kenny to which I have previously referred tend to support a characterisation of the plaintiff’s symptoms as being organic in nature.

[50]           DCB 42

82 For the reasons I expressed earlier, namely the unique position of Dr Hampton to monitor the plaintiff’s condition on numerous occasions, I accept his evidence that the condition in the plaintiff’s wrists is organically base. In making this finding, I take into account the support to which I have referred from other medical practitioners for the proposition that the plaintiff continues to suffer, to some extent, from organically based symptoms. That evidence, which I accept, speaks against any assertion that the plaintiff has made a complete physical recovery from any injury occasioned in the course of her employment with the defendant and that the explanation for her continued pain lies in a chronic pain disorder which is properly categorised as being an injury to be assessed under the provisions of s.134AB(37)(c) of the Act.

83        In making the above finding, I reject the opinions of the various medical practitioners who have expressed contrary views to the finding which I have made for the following reasons:

• Mr Rubenstein has not assessed the plaintiff since September 2003. His evidence is of little assistance in speaking as to the nature of the plaintiff’s symptoms at the present time and he did not, in the course of his report, comment specifically on whether to categorise the plaintiff’s chronic pain syndrome as a psychological or organic process.

• Dr Kostos, whilst appearing to accept the genuineness of the plaintiff’s presentation, expressed the opinion that her initial carpal tunnel injury was not related to her employment and that her present symptoms were caused by a pain syndrome with features of fibromyalgia. I do not accept the evidence of Dr Kostos as to the causation of the plaintiff’s initial injury. Indeed it is not asserted on behalf of the defendant that I should do so.[51] Whilst the fact that I do not accept the opinion of Dr Kostos on this issue does not lead necessarily to the fact that I should reject the assessment of Dr Kostos as to whether the plaintiff’s chronic pain syndrome was organic or psychological in nature, I prefer the evidence of Dr Hampton on this point for the reasons to which I have earlier referred.

• The evidence of Dr Kemp in which he attributed the plaintiff’s present incapacity to her hypertension, recurrent asthma and irritable bowel syndrome is inconsistent with the general tenor of the evidence of each of the other medical practitioners and I do not find his opinion persuasive.

• Dr Mary Wyatt last saw the plaintiff on 21 March 2003, at which time she commented that the plaintiff was still recovering from the surgery undertaken by her. Having regard to the length of time which has elapsed since Dr Wyatt’s examination of the plaintiff, I do not find her evidence of assistance in determining the plaintiff’s level of disability and its causation at the present time.

• Dr John Chew examined the plaintiff on 10 January 2002. For the reasons expressed earlier when discussing the evidence of Dr Kostos, I do not accept his opinion that the plaintiff’s carpal tunnel syndrome was not related to her work. Further, I do not find his opinion of assistance in determining the nature (organic or otherwise) of the plaintiff’s present disability, having regard to the period of time which has elapsed since he examined the plaintiff.

• Mr Carey examined the plaintiff on one occasion on 5 July 2006. Although his opinion differs to that of Dr Hampton as to the nature of the cause of the plaintiff’s symptoms (whether organic or otherwise), I am of the opinion that Dr Hampton was in a better position to express an opinion on this issue having regard to his close contact with the plaintiff over a considerable period of time.

• Mr Jensen managed the plaintiff’s care between July 2004 and late 2005. Insofar as Mr Jensen disagreed with the opinions of both Dr Hampton and Mr Kenna as to whether the plaintiff’s employment was responsible for an injury to her upper limbs or neck, I prefer the opinion of Dr Hampton (as supported by Dr Kenna) on this issue, having regard to Dr Hampton’s long association with the plaintiff and his many opportunities to assess the progress in the plaintiff’s symptomology prior to the date upon which she ceased employment on 16 May 2004. Whilst Mr Jensen does not appear to categorize the plaintiff’s pain syndrome as organic in nature, for the reasons given earlier, I am persuaded by and accept Dr Hampton’s evidence on this issue.

[51]           T354-1

The Plaintiff’s Capacity for Employment

84        Dr Hampton conceded in the course of his evidence that there may be some prospect of the plaintiff being retrained.[52] That concession was qualified however by his further evidence on this issue. Dr Hampton’s evidence when considered as a whole,[53] provides clear support for the contention that the plaintiff has lost all capacity for work. I accept that evidence. Further, accepting as I do the plaintiff’s evidence as to her level of symptoms and her resulting incapacity, I am satisfied, on the balance of probabilities, that the plaintiff is unfit and will remain unfit for work for which she is reasonably suited. I am also satisfied on the balance of probabilities that there is no reasonable prospect of the plaintiff being rehabilitated or retrained for suitable employment having regard to her age, education, employment history and the incapacity from which she suffers.

[52]           T199-5

[53]           T204-205

Aggregation of Injuries

85        It was submitted on behalf of the defendant that in assessing the consequence of the plaintiff’s injuries upon the impairment of function of her right arm, I should not take into account the plaintiff’s symptoms of upper arm pain which arose upon the plaintiff’s return to work following the plaintiff’s bilateral carpal tunnel surgery. It was submitted on behalf of the defendant that to do so would involve an inappropriate aggregation of injuries which arose out of separate incidents.[54]

[54]           In making this submission, the defendant relied upon Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511, with particular reference to the comments of Chernov JA, at paragraphs 23-27

86        The factual evidence relevant to the circumstances in which the plaintiff came to develop upper arm pain was largely uncontested. With respect to that evidence, I make the following findings of fact:

(i)	The plaintiff originally developed symptoms consistent with and caused by bilateral carpal tunnel syndrome which arose out of the duties required of her in her employment;[55]
(ii)	Following her bilateral surgery for this condition, the plaintiff made an incomplete recovery from those symptoms, the condition in the plaintiff’s right arm always being more significant than that in her left.[56]
(iii)	On her return to work with the defendant, the plaintiff undertook light duties for approximately two months and thereafter returned to unrestricted duties.[57]
(iv)	At the time at which she returned to employment in unrestricted duties, the plaintiff performed essentially identical duties to those which had given rise to her carpal tunnel syndrome (the 2004 duties).[58]
(v)	In requiring the plaintiff to undertake the 2004 duties, the defendant was not acting contrary to any certificate or direction provided by the plaintiff’s medical practitioners as to the nature of the duties which she was fit to undertake.[59]

[55]           This was conceded on behalf of the defendant at T354, lines 1-9

[56]           This matter was not the subject of challenge by the defendant. See further T48-49; T102

[57]           T88

[58] T87-88

[59]           The plaintiff’s evidence on this issue was confusing. Her evidence at T100 was contradicted by her husband’s evidence at T113. I consider her evidence at T127 to most probably represent the true situation, namely that the plaintiff was unable to recall. In the circumstances, I am unable to find, on the balance of probabilities, that in requiring the plaintiff to undertake normal duties between May 2003 and May 2004, that the defendant was acting in contravention of any medical certificate restricting the plaintiff’s duties.

(vi) The plaintiff’s symptoms of upper arm pain developed whilst the plaintiff was performing duties essential identical to those which had caused the plaintiff to develop her bilateral carpal tunnel syndromes.[60]

(vii)     The symptoms developed by the plaintiff in her arm and shoulder were a consequence of the plaintiff adopting an unusual posture with her right arm which was described as “using her arm as an amputee”[61] when she returned to work following the surgery undertaken on her left arm. I further find that the development of the symptoms as they were was a consequence of the incomplete recovery made by the plaintiff from the surgery to her right arm.62 63

[60] T87-88

[61]           T48-49

87        In these circumstances, I am of the opinion that it is appropriate to categorise the symptoms which the plaintiff developed in her upper arm and right shoulder as being a direct consequence of the injury to her right forearm. I do not regard them as having occurred as the result of a separate workplace accident or incident nor do I regard them as constituting a separate injury or giving rise to a separate impairment.

88        For the reasons expressed earlier, I am satisfied that the symptoms in the plaintiff’s upper arm and right shoulder contribute to some degree, but not to a major degree, to the plaintiff’s present disability. I am of the opinion that it is appropriate to take into account those symptoms when assessing the consequence of the injury the subject of this application, upon the function of her right arm. I find however, for the reasons earlier mentioned, that independently of the presence of those symptoms the organic injury to her right arm which the plaintiff suffered by reason of her unsatisfactory recovery from her carpal tunnel injury, incapacitates her from undertaking any suitable employment within the meaning of the provisions of the Act. Having regard to the plaintiff’s age, her limited education, her occupational history and transferrable work stills, together with the limitations placed upon her physical capabilities by reason of her symptoms, I do not believe that there is any real prospect of the plaintiff being successfully retrained or rehabilitated. In this respect I accept the evidence of Dr Hampton on this issue.[64]

[64]           T204, 16 to T205,10

Conclusion

89        It was conceded on behalf of the defendant that if I were satisfied by reason of the effects of a compensable injury, that the plaintiff had suffered an impairment of body function, the effect of which was to preclude her from suitable employment, that such a finding would be sufficient to justify the granting of the order sought by the plaintiff in this proceeding. Independently of that concession, I am of the opinion that the finding which I have made as to the plaintiff’s loss of earning capacity requires me to grant the plaintiff leave to commence proceedings to recover damages for both pain and suffering and loss of earnings. In doing so I endorse the Judgment on this issue of His Honour Judge Ross in Patterson v Burbank Plumbing & Maintenance Services Pty Ltd (supra).

90 On the basis of the foregoing reasons, findings and conclusions I grant the plaintiff leave to bring a proceeding at common law pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 to recover damages for bodily injuries and pain and suffering and loss of earning capacity arising out of her employment with the defendant from 20 October 1999.

91        After discussion with counsel I will pronounce formal orders and hear the parties on the question of costs.

- - -

1. T187-14

2. Generally the defendant made no challenge to the evidence which supports the findings set out in (i) through to (vii)