Wu v Riddells Staffing Pty Ltd
[2012] VCC 642
•2 May 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. ci-10-06080
| SHOU YU WU | Plaintiff |
| v | |
| RIDDELLS STAFFING PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 and 8 March 2012 | |
DATE OF JUDGMENT: | 2 May 2012 | |
CASE MAY BE CITED AS: | Wu v Riddells Staffing Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 642 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – serious injury application – injury to the right hand and wrist – loss of manual dexterity – economic loss – leave granted
LEGISLATION CITED – Accident Compensation Act 1985, s.134AB
CASES CITED – Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Lakic v GB Galvanizing Service Pty Ltd & Anor [2001] VCC 21 November 2001; De Luca v Pinkey & TAC [2007] VCC 1307; Barwon Spinners Pty Ltd v Podolak & Ors [2005] VSCA 33
JUDGMENT –
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms A MacTiernan | Zaparas Lawyers |
| For the Defendant | Ms M Britbart | Lander & Rogers |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s.134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by him in the course of his employment with the defendant on or about June 2008.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.”
5 The body function relied upon in this application is the right hand, including the wrist and/or loss of manual dexterity caused by injury first to the right limb and secondly, and as another possibility, when aggregated with the injured left limb.
6 The plaintiff relied upon two affidavits, sworn 5 May 2010 and 6 March 2012. The plaintiff was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant Legal Principles
7 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s.134AB(37) of the Act.[1]
[1]S.134AB(19)(a) of the Act
8 In order to succeed, the plaintiff must prove, on the balance of probabilities that:
(a)“the injury” suffered by him arose out of, or in the course of, or due to the nature of, his employment with the defendant on or after 20 October 1999.[2]
(b)“the injury” with its resulting impairment must be permanent, in the sense that it is likely to continue into the foreseeable future.[3]
(c)“the consequences” to the plaintiff of his impairment in relation to “pain and suffering” or “loss of earning capacity” must be “serious” – that is, when judged by comparison with other cases in the range of possible impairments…be fairly described as being more than significant or marked and as being at least very considerable.[4]
[2]S.134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph [11]
[3]Barwon Spinners (op cit) at paragraph [33]
[4]S134AB(38)(b) and (c)
9 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden to establish.[5]
(i)that at the date of hearing he had a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s.134AB(38) of the Act;[6]
(ii)that after the date of hearing, he will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more,[7] and
(iii)that even with rehabilitation and retraining he will still sustain a loss of 40% or more.[8]
[5]S.134AB(19B) and 38E of the Act
[6]S.134AB(38)(e)(i) of the Act
[7]S.134AB(38)(e)(ii) of the Act
[8]S.134AB(38)(a) of the Act
10 If the plaintiff satisfies the test laid down by the Act in relation to loss of earning capacity, then he is at large to make a claim for damages, that is both pain and suffering and loss of earning capacity.[9]
[9]Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at [63]
11 The Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
12 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[10]
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[11]
[10][2009] VSCA 181
[11]Ibid at [42]
13 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent, by what has been retained.”[12]
[12]Stijepic v One Force Group Aust Pty Ltd (ibid) at paragraph [44]
14 The test for “serious”, as set out in paragraph (b) and (c) of s.134AB(38) of the Act, is sometimes referred to as the “narrative test”.
15 In determining the application, the Court:
(a) must make the assessment of “serious injury” at the time the application is heard.[13]
(b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[14]
[13]S.134AB(38)(j) of the Act
[14] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242, at paragraph [67]
The Issue
16 Counsel for the defendant informed the Court that:
(i) There was a causation issue which will not be pressed in this application.
(ii) The plaintiff does retain some function in his right hand which is important in assessing what he has lost.
(iii) This is a “range case”, namely that the consequences of the plaintiff’s injury do not meet the test for a serious injury. In addition, the plaintiff is capable of working and the plaintiff has retained a capacity for work.
(iv) The evidence does not support a loss of dexterity comprising both hands.
The Plaintiff’s Evidence
17 In his affidavits sworn on 5 May 2010 and 6 March 2012, the plaintiff deposed that:
· In 1995 he moved to Australia. He worked in various roles and owned a series of small businesses: a milk bar for 12 months, a $2 shop for 18 months, another $2 dollar shop for three years, a foreign currency exchange for six months, a photo processing shop for 12 months and a take away shop for 12 months.
· On 26 May 2008 he commenced work with the defendant. His work involved assembling and installing spotlights.
· In late June 2008 his right arm started to feel sore. He kept working but a couple of weeks later he developed pain in his right wrist and weakness in his right hand.
· On 12 July 2008 he consulted Dr Tang, but continued to work normal duties. His symptoms gradually became worse. He had pain, numbness, tingling and a pulling feeling in his hands. He saw Dr Woo.
· On 1 August 2008 he was put off work because he was having difficulty keeping up with production.
· On 1 May 2009 he had an operation on his right wrist. After the operation he had some improvement in the symptoms in his middle and ring fingers but worse discomfort in his thumb, forefinger and palm. He continued to see Dr Woo every month. He had ongoing pain and weakness in his right hand.
· He continues to have pain in his right thumb, forefinger and palm. He gets sharp pain in this right hand three to five times a day. He also sometimes has dull pain on the inside of his right wrist spreading to his lower palm.
· He has difficulty holding things with his right hand. He is right handed.
· He has a dull pain in his inner left wrist and an intermittent feeling like electricity is spreading into his left hand. This area also feels cold. He has to favour his left hand more now and finds that strong gripping with any heavy lifting, pulling or pushing increases the pain in the wrist. His symptoms in both hands are worse when it is cold.
· When driving he turns the steering wheel using his left hand and steadies the wheel with his right hand using his little and index finger. He has difficulty sleeping as he has to avoid rolling onto his right hand or putting pressure on it and he wakes because of right hand pain several times a week. He shaves using his left hand. He has difficulty with buttons and his wife has to help him. He uses zips with his left hand. He can no longer maintain the garden or help his wife with the cleaning at home. He can no longer play table tennis.
The Plaintiff’s Evidence in Cross-examination
18 The plaintiff was cross-examined and gave the following pertinent evidence:
· He was only able to get casual employment.
· He ran several businesses. The noodle shop was unsuccessful. The milk bar could not support his family.
· He ceased work for the money exchange business because his business partner no longer supported him.
· He has a computer now. He can read simple emails.
· He agreed he had attended many meetings with Nabenet to obtain employment, but there had been no response to the applications. Nabenet applied for jobs on his behalf.
· He agreed the pins and needles are in his forefinger and thumb all the time, worse in the morning and on rainy days.
· He uses the three fingers on his right hand which are not affected.
· He performs household chores with his left hand – for example, vacuuming, sweeping and wiping the bench.
· He had an investment property in Knoxfield with his wife and they were building a new unit at the rear of the investment property.
· The family trust owns investment properties which are rented out. He was not sure how the trust operated. He purchased land through VKK.
· He agreed he was a director with two others of Wam Tai Property Investments.
· He could not now run the Two Dollar shop because of the heavy lifting. He said in Australian businesses the boss does the heavier sort of jobs.
· He said he could do a job that did not involve his hands.
· He said he needed someone to assist him in reading when using the computer.
19 In re-examination, the plaintiff said:
· He was not offered any work by the labour hire firm, Riddells, after he was injured.
· Dr Woo said he could not drive a tram.
· He attended two programs with Nabenet.
· He has never performed quality control work, nor has he been a quality control inspector.
· He has never written reports in Australia and has never been required to enter information about his work into a computer.
· He had a business importing photo frames into Australia, which was unsuccessful. He was not able to make any money.
· He said his computer skills were limited. He could not prepare his own resume. He is able to receive emails and read simple English. There has been no suggestion he should do a refresher course.
· Before his injury, he was a one finger typist, using the index finger on the right hand. Now he uses the index finger of the left hand.
· He said he cannot write as he did before the injury, using the right hand, because it becomes quite sore and he is unable to exert force and the finger is weak.
· He said the left hand only has 70 per cent of the strength he had prior to the injury.
· He said the left wrist and hand was without pain during good weather and when he is not required to lift heavy things.
Investigations
20 On 9 August 2008, an EMG (bilateral) was conducted. The conclusions were as follows:
“The findings provide clear evidence of median nerve lesions at the wrist bilaterally. The lesions are of marked severity on the right and moderate severity on the left (despite the absence of clinical symptoms).
Right ulnar nerve studies gave normal results. In particular there is no evidence of ulnar nerve damage relating to the presence of a lipoma in right upper arm.”
21 On 22 July 2009, an EMG of the right wrist recorded:
“This is an abnormal study.
The findings are consistent with moderately severe compression of both minor and sensory fibres of the median nerve in the carpal tunnel on the right side.”
22 On 19 March 2010, an MRI scan of the right wrist stated:
“Focal area of scarring median nerve radial aspect at and just distal to margin of the carpal tunnel. Atrophy and low grade oedema in the thena muscles consistent with injury to the recurrent branch of the median nerve. Positive ulnar variance and ulnolunate abutment.”
23 On 30 April 2010, an EMG study of both wrists concluded:
“There is electrophysiological evidence of a generalised sensory neuropathy affecting the upper and lower limbs.
In addition there is a median neuropathy at the wrist on the right. The severity is difficult to estimate accurately given the underlying neuropathy but is likely to be severe as indicated by the reduced median CMAP and absence sensory responses.
This median neuropathy may represent persistent changes following successful carpal tunnel release surgery or recurrent carpal syndrome. Comparison with the previous study and a repeat study in three months to look for further reduction in median CMAP amplitude may be useful if the current disease is suspected.”
24 On 10 November 2010, an EMG study of both wrists commented:
“This is an abnormal study. Compared to the previous study of July 2009 where only the right side was studied there are now changes of a mild generalised neuropathy obviously related to diabetes. The right side parameters are relatively stable and unchanged.
The left sided parameters are consistent with the compression of sensory fibres of the median nerve in the carpal tunnel and as I have no previous studies to compare to (left side) whether this is improvement or stable cannot be stated.”
The Plaintiff’s Medical Evidence
Dr Lawrence Woo
25 Dr Woo, the plaintiff’s general practitioner, provided reports dated 12 December 2010, 28 December 2011 and 23 February 2012. In December 2010, Dr Woo said the plaintiff presented on 24 July 2008 complaining of moderately severe numbness and pain in his right forearm and left elbow, which commenced around July 2008. It was Dr Woo’s view that the plaintiff had suffered bilateral chronic pain syndrome and his work was the most likely cause, as the plaintiff started having symptoms not long after he commenced work with his employer. The right side had been operated on and testing performed after the operation showed a persistent moderate degree of chronic pain syndrome, which was confirmed by an MRI report.
26 Dr Woo noted that there were some superimposed changes due to the plaintiff’s diabetes. He said the plaintiff was unable to work due to symptoms of numbness and weakness in his right and left hands. He was unable to hold things and he said he was currently unfit for any type of work.
27 In December 2011, Dr Woo said the plaintiff was eager to return to any type of employment but was definitely unfit for any type of processing work. Due to language problems, lack of skills and his age, Dr Woo thought it would be difficult for him to get useful employment. He said the plaintiff would not be fit for work which involved manual handling. He said the plaintiff was unemployable and he thought it unlikely he would work again.
28 In February 2012, Dr Woo said the plaintiff’s symptoms, and the Nerve conduction test confirmed a significant persistent carpel tunnel syndrome in both hands. Further, the plaintiff was currently totally incapacitated for any type of work, which was likely to continue in the foreseeable future. He said that he was unemployable in the open market, due to his age, command of English, skill training and experience.
29 Dr Woo considered the employment options identified by Nabenet in its NES vocational assessment report: namely, quality controller; telecommunications technician; electronic engineer; import, export and wholesales; purchasing and supply logistic clerk; stock clerk; and tram driver. He said the plaintiff was not capable of those employment options because he is unable to handle material with his hands and is unable to write. He cannot do any work which involves control with his hands. Tram driving and any type of processing work and work which involves writing were inappropriate. He said there was no sign of functional overlay. He considered the plaintiff’s prognosis was poor.
Mr Stephen Tham
30 Mr Tham saw the plaintiff in March 2009 on referral from Dr Tang, general practitioner, in the practice of Dr Woo. In a report of March 2010, Mr Tham said a right endoscopic carpal tunnel release was performed in May 2009. There were no post operative complications. However, the plaintiff described numbness of his thumb and index finger which persisted. Mr Tham was unable to determine the relationship of his symptoms of carpal tunnel syndrome to his employment but said he was not aware of the specific requirements of an electronic worker and did not question him regarding the correlation of his symptoms with his usual activities at work. He said there may be difficulty in activities requiring fine manipulative use of his digits. He said sensitivity may improve over time.
31 In June 2010, Mr Tham said he had not consulted with the plaintiff since November 2009 and as the surgery was performed in May 2009, he would expect the plaintiff’s condition had substantially stabilised and he would be capable of returning to his pre-injury employment.
Mr James Thomas
32 Mr Thomas, hand surgeon, saw the plaintiff in November 2009, and February and March 2010 and provided reports dated 10 August 2010, February 2011 and January 2012.
33 In August 2010, Mr Thomas said the plaintiff’s original diagnosis of carpal tunnel syndrome persisted. At that time he thought it was unlikely that the plaintiff would be fit to return to his pre-injury employment due to the persistent sensory abnormality. He considered the plaintiff should avoid repetitive lifting and gripping and fine dexterity tasks, but was otherwise fit to perform alternate duties. He was guarded about the plaintiff’s prognosis due to the plaintiff’s underlying diabetes and demonstrated generalised neuropathy on nerve conduction tests.
34 In February 2011, Mr Thomas said the plaintiff’s occupation appeared to have exacerbated his symptoms of carpal tunnel syndrome. He reiterated his views on employment expressed in his report of August 2010. He said the plaintiff may benefit from a revision open carpal tunnel release but there was a significant chance that this would not improve his symptoms of numbness in the right index finger and thumb.
35 In January 2012, Mr Thomas said he had not reviewed the plaintiff since August 2010 but, given the plaintiff’s underlying peripheral neuropathy as demonstrated on his nerve conduction tests, the likely prognosis was for ongoing sensory disturbance which is unlikely to resolve significantly over time.
Mr Charles Flanc
36 Mr Charles Flanc, vascular and general surgeon, saw the plaintiff at the request of the plaintiff’s solicitors in May 2010 and November 2011 and provided a supplementary report in February 2012.
37 In November 2011, Mr Flanc said that the plaintiff’s symptoms were confined to the right thumb and index fingers. The plaintiff reported that the symptoms were more severe than before the operation. Mr Flanc said the plaintiff had extreme sensitivity to touch and any forced movement caused severe pain in the thumb and index fingers. He said the symptoms indicate a major sensory abnormality causing extreme discomfort. He described the plaintiff’s disability as “severe”. Mr Flanc said the plaintiff had very minor symptoms affecting the left hand, mainly in the form of pain in the carpal tunnel. He said the plaintiff’s disability in the left hand was quite minor, although it may be aggravated by a return to heavy and repetitive work. It was his view that the carpal tunnel syndrome can occur as a result of heavy and repetitive use of the hands in susceptible individuals. He thought the work that the plaintiff was doing would be the type of work which could have resulted in a symptomatic carpal tunnel syndrome.
38 Mr Flanc said the plaintiff was not able to cope with his pre-injury duties due to extreme hypersensitivity in his right hand. He said theoretically he should be able to cope with light duties involving the left hand, but this is probably not realistic for sustainable employment. He viewed the vocational options listed in the Nabenet report of 17 June 2010 and had reservations as to whether the plaintiff would be able to cope with any of those activities if they involved use of both hands. He noted that the plaintiff could not use chop sticks in his right hand.
39 In 2012, Mr Flanc said the plaintiff would have great difficulty performing any work with his right hand because of the extreme hypersensitivity. In addition, any repetitive work with his left hand could aggravate a mild carpal tunnel syndrome. He said the plaintiff has a theoretical capacity for very light duties using the left hand only but he did not consider that he could use this in the employment options referred to in a letter sent by the plaintiff’s solicitor. He said the plaintiff’s limited English would make it difficult for him to cope with any employment. He took the view the plaintiff had no current work capacity, which was likely to continue into the foreseeable future, and he had no realistic work capacity in the open market.
Dr Peter Blombery
40 In July 2011 the plaintiff was medically examined by Dr Blombery, consultant physician (vascular disease), at the request of his solicitor. Dr Blombery said the plaintiff developed nerve symptoms of tingling and numbness and pain in both arms, worse on the right side than the left. He diagnosed bilateral carpel tunnel compression of the median nerve. It was Dr Blombery’s view that the development of carpal tunnel compression in the plaintiff was consistent with the work he was doing which involved heavy and repetitive use of the wrists and arms. He said the plaintiff had no capacity for his pre-injury employment or for alternative duties, given the severity of his neuropathy. The plaintiff’s prognosis for a recovery was poor and it may well be that his pain will gradually increase in severity with the passage of time.
41 In February 2012, Dr Blombery said he did not believe the plaintiff could obtain realistic employment in the open market and he did not consider the plaintiff could perform any of the proposed employment options identified by Nabenet given his problem and his difficulty in using the arms.
Mr Frank Ham
42 The plaintiff relied upon a medical report dated February 2010 from Mr Frank Ham, consultant plastic surgeon, who examined the plaintiff at the request of the defendant’s insurer. Mr Ham said the nerve conduction studies performed on 9 August 2008 indicated that the plaintiff had severe carpal tunnel syndrome in the right wrist and to a lesser degree in the left wrist. It was Mr Ham’s view that the plaintiff’s work had aggravated the constitutional condition of carpal tunnel syndrome. He did not consider the plaintiff could return to work to his pre-injury duties. He said that although the plaintiff may have a current work capacity, he considered he needed a further conduction study to check on his median nerve conduction through the carpal tunnel. He said the only suitable work would be a job which did not require significant use of the plaintiff’s right hand.
Dr Jack Wodak
43 In May 2011, Dr Wodak, neurologist, saw the plaintiff at the request of the defendant’s solicitor. Dr Wodak said the plaintiff’s symptoms had been precipitated or aggravated by the work he was involved in between 21 May and 1 August 2008. He said the plaintiff may have had an underlying predisposition to develop the symptoms. He said the plaintiff has similar though milder changes on the left side. He said the plaintiff’s median nerve had been damaged, most probably at the time of his surgery, and that the plaintiff’s discomfort is a reflection of that damage. He said the plaintiff was genuine and the discomfort of which he complains interferes with his everyday activities. He said the plaintiff was not fit to carry out any work; he had difficulty carrying out everyday activities, such as brushing his teeth and doing up buttons. He said there may be an element of embellishment in the plaintiff’s description and in his responses, but surveillance would be able to confirm whether this was so.
44 Despite this, Dr Wodak said the pain of neuropathic hypersensitivity may have a very unpleasant quality and be very distressing in nature. He said that the discomfort the plaintiff was experiencing and the sensation which interferes with his performance of everyday activities is understandable and distressing. He recommended the plaintiff be referred to a physician with expertise in pain management.
The Defendant’s Medical Evidence
Mr Murray J Stapleton
45 The plaintiff was medically examined by Mr Stapleton, plastic and hand surgeon, at the request of the defendant’s insurer in September 2008 and at the request of the defendant’s solicitor in May 2011. In February 2012, he provided a further report.
46 Mr Stapleton accepted the plaintiff had a history of carpal tunnel syndrome but said it was totally unrelated to his occupation.
47 In May 2011, he said that the plaintiff was suffering from bilateral carpal tunnel syndrome which is genetically predetermined. He said repetitive activities have not caused, nor have they aggravated, the pathological process of his condition. He said the plaintiff required surgery on both wrists, which he thought could solve the problem. He said the plaintiff would not improve and would probably get worse in time if his weight increased.
48 In February 2012, in commenting upon a report from Dr Blombery, Mr Stapleton said Dr Blombery’s view, that carpal tunnel syndrome was related to his occupation, was not a view that he shared, nor a view shared by most hand surgeons. He recommended the defendant’s solicitors contact other hand surgeons who he suggested and rheumatologists as well as a general surgeon.
Vocational Assessments
Nabenet Reports
49 In February 2012, Nabenet provided an NES vocational assessment report, which updated its report of June 2010 relating to the plaintiff. The 2010 report accepted that the plaintiff could undertake work where he was not required to use his dominant hand, especially the index finger, on a regular basis. The 2012 report identified suitable employment options listed in order of priority: quality controller; telecommunications technician; electronics engineer; import, export and wholesalers; purchasing and supply logistics clerk-stock clerk; and tram driver.
50 In identifying suitable employment options, Nabenet noted that any role identified would need to be assessed to ensure it fits within the plaintiff’s current medical capacity and reported physical tolerances. Nabenet identified the worker’s age and his limited English language skills, including reading and writing, as possible barriers to him obtaining employment.
Australian Vocational Link Pty Ltd
51 In July 2010, a vocational assessment was conducted by Leonie Schneider, a vocational counsellor, at the request of the plaintiff’s solicitor. Ms Schneider was provided with medical reports and had the opportunity of interviewing the plaintiff. She obtained a detailed history of his education and employment and the duties of all work performed by the plaintiff in Australia. It was her view that the plaintiff had no current work capacity for his pre-injury employment and/or for any alternative occupation for which he could be suited by way of his previous knowledge, training, experience, skills, education, place of residence and/or his age. She said it was these factors coupled with his work-related bilateral carpal tunnel injury that effectively rendered the plaintiff incapacitated for all work.
52 Ms Schneider said when you added the effects of his pain, with his oral English comprehension and literacy skills to his capacity to work, it became even more apparent that the plaintiff had no current work capacity, either now or in the foreseeable future. She stated that, without the constant reinforcement and physical demands of work, the plaintiff is likely to become further deconditioned physically, psychologically and emotionally. Further, without access to the English speaking population that most work environments provide, he will cease developing his language skills and become more alienated from society. She took the view the plaintiff was very considerably disadvantaged and most probably he will become increasingly unemployable.
Video Surveillance
53 The plaintiff was shown video surveillance taken on 12 November 2009, which showed him driving his car to 1 Keyes Lane Knoxfield where he met a builder who he engaged to build a unit at the rear of an investment property in Fredal Crescent, Knoxfield. The plaintiff was shown inspecting a marble table at a supplier of the builder. He was carrying his keys and a piece of paper in his right hand. The keys were hooked on his ring and little finger. He was shown picking up coins on the floor using his index and little finger of the right hand.
54 On 21 January 2011 the plaintiff was shown doing shopping, carrying small bags supported by his right arm, opening the boot with his right hand and putting items in the boot. The plaintiff was shown with a woman he identified as Sharon Wong who he said was an investor in Nam Thai. He said he took her to VKK Investments as she was seeking information.
55 A video of 14 and 15 June 2011 showed the plaintiff looking at a property which he said he did not purchase. He was identified visiting the offices of VKK Investments, which he said was to discuss his investment with his friend. He was shown carrying a couple of shopping bags in each hand. He agreed he could carry 5 kilograms using the three good fingers of his right hand. He said he was carrying two bags weighing approximately two kilograms, which he could only carry for 20 minutes using the three good fingers on his right hand.
56 The video surveillance showed the plaintiff performing activities which were not inconsistent with the activities that he said he could perform. The plaintiff was surveilled for 94.2 hours over 15 days. He was identified on film taken on 4 separate days. The film shown to the court was of limited duration. I took the view that the film did not assist the defendant as to the level of activities the plaintiff said he could perform.
Credit of the Plaintiff
57 The plaintiff was consistent in reporting the injury and its causes to doctors whom he saw. He confined and isolated his symptoms to his thumb and index finger. He has told doctors that he has good sensation in his right middle, ring and little fingers.
58 The plaintiff made appropriate concessions about his injury and its consequences. He said he could lift and carry things in his right hand using his middle, ring and little fingers but only for a limited period, up to 20 minutes. He said he was bored and thought he could perform certain work. He said he could not operate a $2 shop because of the lifting. The plaintiff did not exaggerate the consequences of his injury.
59 He was reluctant to disclose information about his investments. The evidence he gave on this issue was confusing and on occasions contradictory.
60 Overall, the plaintiff impressed me as a credible witness.
Submissions of the Defendant
61 Counsel for the defendant submitted that the plaintiff is different to the way he has been portrayed in the affidavits and to the doctors and by doctors. I do not accept this submission for the following reasons:
· His affidavit disclosed his education and work history
· He informed the vocational expert, Ms Schneider and Nabenet of his educational background and work history in Australia
· None of the businesses he conducted were highly sophisticated. They all involved manual handling and working long hours to be sustainable. Two of the business were not commercially viable.
· There was no evidence that the plaintiff was conducting or capable of conducting an investment business or working in that type of business. There was no evidence that the plaintiff had training or was capable of training in that discipline. The evidence was that the plaintiff and his family trust owned properties and/or interests in properties. The plaintiff said his role in these activities did not preclude him from working full time.
· Mr Flanc was provided with a copy of Ms Schneider’s report. Mr Blombery was provided with medical reports.
Analysis of the Evidence
Injury to the right hand
62 The plaintiff relied on an impairment to the body function of the right hand including his wrist, which was suffered during the period of employment. Based on the medical evidence, I am satisfied that the plaintiff suffered a compensable injury to his right hand, including his wrist, arising out of, or in the course, of his employment with the defendant. The majority of the medical witnesses accepted the injury to the right hand including the wrist was work-related. Mr Tham said he could not determine the relationship of the plaintiff’s symptoms to employment as he did not question the plaintiff as to his work activities. Mr Stapleton accepted the plaintiff had a history of carpal tunnel syndrome but said it was totally unrelated to his work. Mr Stapleton was the only doctor to express that view.
Loss of manual dexterity
63 The plaintiff also claimed a loss of manual dexterity caused by injuries to the right limb and when aggregated with the left limb.
64 Counsel for the defendant said the evidence does not support the fact that the plaintiff has a loss of dexterity comprising both hands.
65 In August 2008 a bilateral EMG confirmed evidence of median nerve lesions at both wrists with marked severity on the right and moderate severity on the left. In November 2010 a bilateral EMG confirmed the left sided parameters are consistent with the sensory fibres of the median nerve in the carpal tunnel.
66 The medical evidence confirms that the plaintiff suffered an injury to both hands: mainly to the right wrist but to a lesser extent, the left wrist. Dr Woo, Mr Flanc, and Mr Blombery accepted the plaintiff had a bilateral injury, worse on the right side, that was work related. Mr Tham said the plaintiff had bilateral carpal tunnel syndrome, but could not determine the relationship of his symptoms to his employment because he did not question the plaintiff about his work. Whilst Mr Stapleton did not accept the plaintiff’s injury was work related, he said he was suffering bilateral carpal tunnel syndrome.
67 Based on the medical evidence I am satisfied that the plaintiff suffered an injury to both his right and left hands and wrists arising out of, or in the course of, his employment with the defendant.
68 Counsel for the plaintiff submitted that the use of two hands may be regarded as a single body function and relied upon Lakic v GB Galvanizing Service Pty Ltd & Anor.[15] Judge Gebhart said the loss of use of two hands maybe regarded as a single body function. He said:
[15][2001] VCC 21 November 2001 per Judge Gebhart
“Manual activity is inter-related: each hand depends on the other hand. I believe as a matter of commonsense and practical assessment, the two hands equal one injury, only compound the seriousness of such.”
The employer sought leave to appeal. In a brief decision Winneke P and Chernov JA refused leave on the basis that the decision that the employee had suffered a serious injury was not attended with sufficient doubt to warrant a grant of leave.
69 Whilst there is also authority of this Court to the contrary – see in De Luca v Pinkey & TAC[16] - I accept that where a worker has sustained injury to both hands in the same work process during the same period and uses both hands in manual work, it would be difficult to accept that this did not represent the use of a single body function.[17]
[16][2007] VCC 1307
[17]See Judge O’Neill in Raimondo v Hoi Yeung Pty Ltd(trading as Oceanic Food) [2005] VCC 1400, Judge Misso in Guiliano v Red Robin Pty & Anor [2008] VCC 1805, Judge Anderson in Wright v Mount Edisar [2006] VCC 410, Judge Jenkins in Karovska v Parker Williams Pty Ltd [2008] VCC 1476 and Judge Bourke in Ristovska v VOA Webco Pty Ltd (No 1) [2010] VCC 152
70 Thus, I accept in the present case that the injury the plaintiff sustained to his hands and wrists was to a single body function; namely, his capacity to work manually in a job that required use of both his hands in combination.
Section 134AB(38) of the Act
71 The Court must examine the consequences of a physical impairment in the separate context of:
(a) pain and suffering; or
(b) loss of earning capacity.
72 The provisions of s.134AB(38) provide a narrative test for determining whether a worker may make a claim for damages for pain and suffering and loss of earning capacity.[18] The subsection then imposes additional tests which must be satisfied in determining whether a worker may make a claim for damages for loss of earning capacity.[19] If a worker satisfies the tests laid down by the Act in relation to loss of earning capacity, then he or she is able to make a claim for damages (that is, both for pain and suffering and loss of earning capacity).[20]
[18]S.134AB(38)(b) and (c)
[19]S.134AB(38)(e), (f) and (g)
[20]Advanced Wire & Cable Pty Ltd & VWA v Abdulle [2009] VSCA 170, at [63]
73 Accordingly, it is appropriate for me to look first at the various tests for loss of earning capacity which must be satisfied by the plaintiff.
74 The evidence of most of the medical witnesses was that the plaintiff has no current work capacity, which is likely to continue for the foreseeable future. That view was expressed by Dr Woo, Mr Flanc, Dr Blombery and Dr Wodak.
75 In February 2012, Dr Woo, Mr Flanc and Dr Blombery considered the Nabenet vocational report and said that the jobs identified in that report were not appropriate. Dr Woo said the plaintiff cannot perform manual handling tasks and cannot write. Dr Flanc said theoretically the plaintiff could cope with light duties involving the left hand but that was unrealistic for sustainable employment. Dr Blombery said of the Nabenet vocation options:
“Given his problems and his difficulty in using the arms, it is my opinion that he would have no capacity to perform these employment options.”
76 Mr Flanc said any repetitive work with his left hand could aggravate a mild carpal tunnel syndrome and that, given the plaintiff’s limited English, he doubted whether he could cope with any employment. Dr Woo said that, due to the plaintiff’s age, language problems and lack of skills, it was difficult for him to obtain employment. This view was endorsed by Ms Schneider.
77 In relation to the right hand, Mr Flanc said the plaintiff cannot cope with his pre-injury duties because of extreme hypersensitivity in his right hand. He said that in assessing his capacity for work, the use of his right hand must be minimal because he cannot even use chopsticks in his right hand. Dr Wodak expressed a similar view and said:
“He is not fit to carry out any work; he has difficulty carrying out everyday activities such as brushing his teeth and doing up buttons.”
78 The views of Mr Thomas, Mr Tham and Mr Ham as to work capacity were not current and therefore of limited value.
79 I accept the medical evidence that the plaintiff has no current work capacity as a consequence of the injury to the right hand only and also in relation to the injury to both hands causing a loss of manual dexterity.
80 Counsel for the defendant submitted that the plaintiff had retained capacity in his right hand which is important in assessing what he has lost. Counsel relied upon the plaintiff’s evidence that he was willing to work and the jobs he asked NES to apply for on his behalf. The evidence was that he did not know what the jobs involved. Despite the plaintiff’s frank admissions that he would like to work, I consider the plaintiff’s capacity to do light work is theoretical only.
81 The plaintiff is aged 51 years. Since arriving in Australia he has performed manual work. Despite his limited English and lack of recognised skills in Australia he has been in work most of the time whether as an employee or self employed. The common denominator in his employment has been manual handling. He impressed me as a man with a keen work ethic. The evidence was that the plaintiff has not returned to work. The current medical evidence was that he has no current work capacity and that incapacity is likely to continue for the foreseeable future. I refer to the reports of Dr Woo, Mr Flanc, Dr Blombery and Dr Wodak. The medical opinions were supported by Ms Schneider’s view. In 2012 Nabenet said that the options would need to be assessed in the light of the plaintiff’s current medical capacity and physical tolerances.
82 The plaintiff has minimal use of his right hand. He is right hand dominant. He has suffered a loss of manual dexterity that encompasses both hands. The plaintiff has limited English language skills and lacks transferable skills. I am satisfied that the plaintiff cannot return to work. He told the court that he was bored and that he should be working to assist his wife. I accept that his inability to return to work represents a significant loss to the plaintiff, both with respect to his enjoyment of life and self esteem.
83 Given the medical evidence and that the plaintiff’s injury has continued since 2009 I am satisfied that the injury is permanent.
84 In reaching this conclusion I have considered the consequences of the injury to the right hand and the loss of manual dexterity as separate injuries.
85 I have made a comparison with other case in the range of possible impairments. I am satisfied that it is fair to describe the consequences of this plaintiff’s loss of earning capacity as being more than significant or marked and properly described as considerable when judged by comparison with other cases in the range. The plaintiff therefore satisfies the narrative test.
86 In addition to satisfying the narrative test for loss of earning capacity, the plaintiff must also satisfy the statutory test for loss of earning capacity.
The Statutory Test – Loss of Earning Capacity
87 To obtain leave in relation to loss of earning capacity, the plaintiff must establish that:
(a) at the date of the hearing, he has a loss of earning capacity of 40 per cent or more – s.134AB(38)(e)(i); and
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii).
88 The measurement of loss of earning capacity is set out in paragraph (f), which requires a comparison between:
(i) “without injury earnings”; and
(ii) “after injury earnings”.
89 The “without injury” earnings must be calculated by reference to the six-year period specified in s.134AB(38)(f).
90 “Without injury earnings” consist of the gross income (expressed at an annual rate) that the plaintiff was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion, had the injury not occurred. It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the plaintiff’s earning capacity.
91 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) of s.134AB(38) therein: see Barwon Spinners Pty Ltd & Ors v Podolak.[21]
[21](supra) at paragraph [70]
92 The plaintiff’s present earnings from personal exertion are nil.
93 All doctors who expressed a view on employment said the plaintiff could not return to his pre injury employment or suitable employment due to the bilateral hand injury. Dr Wodak and Mr Flanc said the work restrictions applied to the right hand also. His incapacity was permanent.
94 I am also required to consider issues of re-training and rehabilitation pursuant to subsection (g) of the Act. None of the medical reports suggested that further rehabilitation would assist the plaintiff. Ms Schneider said that his age, his problems with oral and written English literacy, his lack of confidence and self esteem would make retraining difficult. Added to that are his physical restrictions. I am satisfied that the plaintiff has no prospect of retraining and rehabilitation that will enhance his earning capacity.
95 Based on the plaintiff’s presentation in court, his age and the views expressed by both medical and vocational experts, the plaintiff has suffered a total loss of earning capacity. I think it highly unlikely that the plaintiff would be able to return to work as a result of the injury to his right hand and the loss of manual dexterity of both hands. Despite the plaintiff’s frank admission that he would like to work, I think the plaintiff’s capacity to do “light work” is theoretical only. This is supported by the medical and vocational evidence. I do not consider that retraining and rehabilitation will alter the situation. Accordingly, I am satisfied that he will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 percent or more.
96 Therefore I am satisfied that the plaintiff satisfied the 40 per cent requirement and has sustained an injury within the meaning of s.134AB of the Act to his right hand and the loss of manual dexterity of both hands.
97 Having made these findings, it is appropriate to make an order granting the plaintiff leave to commence a proceeding at common law seeking damages for pain and suffering and loss earning capacity as a result of the employment with defendant after October 1999 in respect to the right hand only and the loss of manual dexterity of both hands.
98 I will hear the parties as to the precise form of orders sought and on the issue of costs.
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