Yarwood v Drake Australia Pty Ltd
[2021] VCC 1401
•28 September 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-00810
| TRACY LYLE ALFRED YARWOOD | Plaintiff |
| v | |
| DRAKE AUSTRALIA PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 August 2021 | |
DATE OF JUDGMENT: | 28 September 2021 | |
CASE MAY BE CITED AS: | Yarwood v Drake Australia Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1401 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment of the right wrist – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners & Ors v Podolak (2005) 14 VR 622; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Aburrow v Network Personnel Pty Ltd [2013] VSCA 46; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M Fogarty | Fittipaldi Injury Lawyers |
| For the Defendant | Ms M Cameron | Russell Kennedy Lawyers |
HER HONOUR:
Preliminary
1This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with Drake Australia Pty Ltd (“the defendant”) from May to August 2008 (“the work period”).
2The plaintiff seeks leave to bring proceedings for damages for pain and suffering only.[1]
[1]Transcript (“T”) 1
3The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a)permanent serious impairment or loss of a body function.”
4The body function said to be impaired is the right wrist.
5The impairment of the body function must be permanent.
6Subsection 38(h) of the Act provides that consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
7The plaintiff bears an overall burden of proof upon the balance of probabilities.
8By subsection (38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which:
“… when judged by comparison with other cases in the range of possible impairments, or losses of a body function or disfigurement, as the case may be, fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable.”
9I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
10I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[2] and Peak Engineering v McKenzie[3] in reaching my conclusions.
[2] (2005) 14 VR 622
[3] [2014] VSCA 67
11The plaintiff swore two affidavits. He was cross-examined. He also relied on an affidavit sworn by his partner, Nadia, on 4 August 2021. Also in evidence were medical reports and other material. I have read all the tendered material.
12I am bound by the Medical Panel Opinion of April this year.[4] The Panel found compensable injury and permanency, and also determined the issue of work capacity. Accordingly, the only issue in dispute is range.[5]
[4] 28 April 2021
[5]T2; Aburrow v Network Personnel Pty Ltd [2013] VSCA 46
The Plaintiff’s evidence
13The plaintiff is presently aged sixty, having been born in Canada in June 1961. He is married with an adult daughter. He completed about four months of Year 10, and was then employed in Canada as a photo engraver and sometimes as a drummer in a band on weekends.
14The plaintiff migrated to Australia in 1989. He then worked for a number of different labour-hire companies, and also at Amcor for about seven years. Prior to commencing work with the defendant, he ran his own cleaning business for a number of years.
Pre-injury health
15The plaintiff was diagnosed with Hepatitis C in 1989, after he had had some tattoos.
16From around 2000, he had problems on and off with hernias. In the early 2000s, he had three or four hernia-repair procedures over about two years. He had further procedures performed in October 2014, August 2015 and August 2017. As of October 2019,[6] he continued to experience ongoing left groin pain, for which he took painkilling medication at times.
[6]First affidavit
17He is not presently having any treatment funded by WorkCover for his hernia condition.[7]
[7]T8
18He agreed he has had about seven hernia operations. In the last year, he had surgery performed by Dr Chris Y Lu, general and laparoscopic surgeon, in which a nerve was cut in his groin to address the shooting pain he was experiencing. Post-surgery, that pain had gone but he is very tender in that area.[8]
[8] T10
19The plaintiff agreed that when he saw Dr Louise Soh, rehabilitation specialist at The Royal Melbourne Hospital in June 2019, he still had significant problems with the hernia, but it had changed since the most recent surgery. The pain is now very localised and does not radiate as before and is just under the scar tissue.[9]
[9]T11
20The plaintiff agreed that as at mid 2019, he had problems with prolonged walking, sitting and standing because of the hernia, but it had subsided quite a lot, “it is not the same”, it is now tolerable; before he could not tolerate it. He does not have the sharp pains like a knife going straight through his skin.[10] The nerve having been cut “is just a big relief”.[11]
[10]T12
[11]T13
21He agreed in mid 2019, he was taking Endone for shooting groin pain. He was then using Voltaren cream for his groin, and also his wrist. He now only now uses the cream on his wrist.[12]
[12]T13
22As at mid 2019, the plaintiff was having issues with sleep due to his hernia, and he had problems sitting.[13] He could not sit for a long time to do drumming “to a certain point”.[14] Driving would have been restricted because of problems sitting. He had a bit of a limp when walking. Camping and fishing with groin pain was “sort of a problem”, it just depended on whether he could get in the right comfortable position. Once he was comfortable he could feel fine. It was a similar situation when he worked on cars. It would have been a problem doing heavy housework, but he did not do it anyway.[15]
[13]T13
[14]T15
[15]T17
23He denied he tried to minimise his hernia issues in his first affidavit.[16] He did not mention it in his second affidavit because this is a case about his wrists.[17]
[16]T17ff
[17] T19
Work with the Defendant
24In about May 2008, the plaintiff started work with the defendant as a labourer/forklift driver placed at Lafarge Plasterboard Pty Ltd (“Lafarge”). His duties were very heavy and repetitive, requiring repetitive lifting and manoeuvring of heavy bags of material used in the production of plasterboard.[18]
[18]T22
25In about late August 2008, in the course of his duties, he developed increasing pain in both wrists, worse on the right (“the work injury”). He reported wrist pain on 22 August 2008. His general practitioner, Dr Pinto, referred him for an x‑ray and ultrasound of his right wrist, which were performed that month.
26On 27 August 2008, the plaintiff completed an Incident Report, and the following day lodged a WorkCover claim for injury to his wrists. In his Claim Form, he set out that he had suffered tenosynovitis to both wrists as a result of opening and lifting 20-25-kilogram bags of chemical compounds into a hopper mixer, dumping about fifty to sixty bags per day into the mixer.
27On 29 August 2008, he saw Dr Pinto, who referred him to occupational physician, Dr Hwang.
28On 17 October 2008, the plaintiff had an MRI scan of his right wrist, and in February the following year, a CT and bone scan. He was then referred to hand surgeon, Mr Tham, who recommended right wrist surgery, which was performed on 23 March 2009 (“the first operation”).
29The plaintiff had a further MRI scan of his wrist on 13 July 2009.
30In about September 2009, he returned to work on modified part-time duties.
31In January 2010, he was referred by his general practitioner to Dr Karlov, consultant physician. In March that year, he had another MRI scan of the wrist, and on 23 April 2010, had a right wrist steroid injection which caused increased pain for a few days and gave him no lasting benefit.
32In August 2010, the plaintiff started work with Altus Traffic as a traffic controller.
33In November 2010, he had a further x‑ray of his right wrist.
34In March 2012, he started attending the Point Cook Superclinic.
35In April 2013, he had another right wrist x‑ray and an ultrasound.
36In September 2013, he started work as a traffic controller with Trafman Solutions Pty Ltd.
37In about August 2014, the plaintiff suffered back pain after a work incident and lodged a WorkCover claim, and had one or two weeks off only.
38In November 2015, he had a cortisone injection in his wrist.
39In mid 2016, the plaintiff commenced work as a traffic controller with Advanced Traffic Management.
40On 25 July 2016, he had further wrist surgery (“the second operation”) at St Vincent’s Hospital performed by Mr David McCombe, plastic surgeon. His wrist was in a cast for a few weeks post surgery and he then had hand therapy. He was reviewed by Mr McCombe in November 2016.
41In July 2017, the plaintiff was reviewed by Mr Tham, who then recommended conservative treatment.
42On 25 October 2017, the plaintiff had a further MRI scan of his right wrist, and in September that year, he was referred to Mr Antoniou, hand therapist.
43In October the following year, he consulted Mr Bennett, hand surgeon, about ongoing right wrist pain. Mr Bennett recommended conservative treatment.
44As of October 2019,[19] the plaintiff continued to suffer constant fluctuating right wrist pain, made worse with activity. The pain extended from his right wrist to his elbow, and he generally experienced a throbbing pain. He also had occasional numbness in his right hand and fingers, and had lost a lot of strength in his right hand. He often wore a brace on his right wrist for extra support.
[19]First affidavit
45As a consequence of the operations, he had a scar about 10 centimetres long across the top of his wrist.
46He was then seeing his general practitioner, Dr Bingham, at Point Cook, and also having physiotherapy. He took Endone as required for right wrist pain, and also at times for groin pain, but he tried to avoid taking medication.
47As a consequence of his right wrist injury, he was restricted in his ability to lift and carry heavy objects, and activities requiring repetitive use of his right hand and arm caused increased pain, as did gripping for prolonged periods.
48He had not worked in any capacity since around mid 2017, in large part because of his right wrist pain. He did not feel capable of working on a consistent, reliable basis. He believed he could only do part-time light work at best. He had always been a manual worker in the past, and never had any office job. He had very limited computer skills, and he was worried about his financial future.
49He did what he could around the house, but was restricted by right wrist pain. Activities such as cleaning the windows or lifting furniture caused increased pain, as did using power tools for prolonged periods. He was woken by right wrist pain some nights, and it could take him a long time to get back to sleep. Day-to-day tasks such as opening jars and bottle tops were more difficult because of the lack of strength in his right hand.
50Prior to the work injury, he used to enjoy going on regular camping trips to places like Jamieson. Now, because of his right wrist pain, he struggled to set up and pack up camp, and was reliant on his wife if they went camping. He found this situation upsetting and frustrating. Because of right wrist pain, he was unable to enjoy going fishing and camping like before.
51He is right handed, and was now far more reliant on the left hand to perform day‑to‑day activities than before.
52In his further affidavit sworn on 4 August 2021, the plaintiff confirmed he basically continues to suffer the symptoms, consequences, and effects of his wrist injury, as he earlier deposed.
53His constant fluctuating right wrist pain is made worse with activity and is generally worse in cold weather.
54The pain extends from his right wrist into his forearm, and he generally experiences a throbbing pain, and at times, a popping sensation in his wrist, usually a couple of times a week.
55At times, his right wrist pain is severe, and he can then do very little with his right hand. When he has a flare-up, he needs to stop what he is doing, rest, and wait for the pain to settle. Flare-ups happen about once a week, usually lasting for between one to four hours.
56He denied he told Mr Buntine, when seen in April 2020, that he had continuous “mild” pain in his wrists. He described the pain as “severe”, and it has not changed.[20] It gets worse in cold weather. He agreed that the pain travelled down into his three fingers and he experiences a pins and needles sensation, like the hand going to sleep. He also complained to Mr Buntine of a “popping”. He told him that his wrist was tender when he placed pressure on the scar in one spot. He agreed he has pain in the middle of the wrist, it goes through the middle of the palm straight out through the back.[21]
[20]T23
[21]T24
57His wrist pain is now no better, no worse, it is just consistent.[22]
[22]T60
58The popping sensation continues, although it had not been found by a number of examiners.[23] When his wrist pops, it is excruciating and it happens maybe once or twice a week.[24] It is like “bone on bone”.[25] It feels like it has literally popped out of his wrist completely, pops back in and he gets “like a surge of voltage of some sort”.[26]
[23]T27
[24]T28
[25] T31
[26]T60
59Paralysis with his ring, middle and little fingers associated with numbness, can last up to a day, probably four or six hours, and would not necessarily be resolved by heat packs all the time.[27] This paralysis occurs once every two weeks roughly.[28]
[27]T32
[28]T33
60His right hand is not as strong as it used to be, and his grip strength is reduced. He experiences stiffness and restricted movement in his wrist. The scarring is unchanged.
61When asked about normal range of wrist movement found by some examiners, he explained that when he was wearing “the strap”, he could move his wrist, but never said it ever seized up. He has difficulty moving his right wrist when the pain hits him.[29]
[29]T38
Treatment
62In May 2020, the plaintiff consulted physiotherapist Ms Wilson in Point Cook, regarding his right wrist. He last saw her about a year ago.[30]
[30]T36
63He now takes Panadol and Nurofen for wrist pain, usually a couple of times a week, but no longer takes Endone or other strong medication because he has liver and heart problems and needs to be careful of his medication intake. He takes a couple of Panagesics “or something like” that for his wrists when he has a flare up.[31] Some days he rubs Voltaren Emulgel on his wrist.
[31]T9
64When he told the Medical Panel he did not take any medication, he meant he was not taking anything strong because of the Hepatitis C. He was not going to take any chances because he “just had one shot at life”. He takes analgesics, because he did not like the feeling of Endone. He takes Panadol and over-the-counter medication at least two or three times a week. He also takes aspirin every day for his heart, which helps his wrist pain.[32]
[32]T35
65He does not do specific hand exercises but tries to do things normally with his right hand, “just basically daily use”.[33]
[33]T37
66He often wears a brace on his right wrist for extra support. He wore different types of wrist guards at different times, really to keep his wrist warm. It was not suggested by a doctor, he wears it only when he needs it.[34] He is wearing a wrist guard more often than three years ago as his wrist was “getting kind of worse for the cold”.[35]
[34]T25
[35]T26
67The pain and restrictions caused by the right wrist injury get him down at times. Since October 2019, he has consulted a psychologist, Ms Newman, on and off. He has also discussed other issues with her.
Restrictions
68As a consequence of his wrist injury, he remains restricted in his ability to lift and carry heavy objects, and activities requiring repetitive use of his hand cause increased pain, as does forceful use of his right hand and gripping for prolonged periods.
69His right hand is weaker than his left, especially now, because it is not getting any better, it is “basically deteriorating” when he is gripping and holding.[36]
[36]T28
70He could not remember Mr Buntine testing his grip strength and did not know the results of any test. He did not remember being encouraged by Mr Buntine to grip more firmly.[37] He disagreed that there was no difference in the strength of his right and left grip.[38] He thought his right wrist was probably weaker than his left.[39]
[37]T29
[38]T30
[39]T39
71The main thing is he cannot lift; he cannot turn a wrench to a certain tightness. He does try things, he “goes ahead like a bull out of a china shop” and all of a sudden pays for it the next day and the next two days. Now it is “what the hell did I do that for?”.[40] If he was to lift a 22-kilogram bag, “forget it”. Any repetition, his wrist goes into a spasm state and he drops things, even lighter things like a frying pan or cooking, when taking it to the sink. He has had that happen many times because his right wrist is not strong.[41]
[40]T20
[41]T21
72Day-to-day activities such as opening jars and bottle tops remain difficult due to wrist pain and reduced strength. Dropping both heavy and lighter things has been a problem for a couple of years.[42] At times, he has trouble with finer tasks such as doing up buttons and zips on clothing.
[42]T31
73He remains restricted in what he can do around the house because of his right wrist pain. Heavier jobs, such as vacuuming and mopping, cause him increased pain. He avoids heavy lifting, but does what he can to help out, predominantly using his left hand.
74He still gets woken by right wrist pain, and on some nights has trouble getting to sleep, particularly if he has had a flare-up during the day. Some nights he can be woken by pins and needles in his fingers. It can then take him a long time to get back to sleep.
75He does everything pretty much with his left hand, but he tries to use his right, as “… [he] has to just keep on going, and that is what … [he] does”. He tries to use both hands because if he did not, he was going to get weaker on the one side.[43]
[43]T32
76He has not returned to fishing or camping since he swore his first affidavit. Writing for long periods causes increased right wrist pain but he does not have to do much writing day to day, and he can write a grocery list.[44] If he writes for a prolonged period his wrist “kind of seizes up”.[45]
[44] T31
[45] T60-61
77He drives mainly with his left hand and “just sort of guides” the wheel with his thumb. That does not restrict the amount of driving he does.
78He is able to attend to his personal care.
79He mostly uses his left hand for gardening and housework, but he is not able to go camping or do drumming for any length of time.[46]
[46]T33
80Not working gets him down, and he relies on his wife’s earnings for living expenses. He is not sure what work he could do on a reliable consistent basis with his wrist pain, having only ever done manual work in the past.
81He has played drums since he was a child, and played in bands on and off for years. He still has a drumkit at home, but he rarely plays now due to his wrist pain, and can only play for a few minutes before it gets too painful. He finds this situation very upsetting and frustrating.
82He can sit on the drums maybe for two minutes, but he “[does] not call that playing”. He had been playing “since [he] was born.” Pretty much his first drums were congas, bongos and a full set of drums when he was three. He has not done jam sessions since roughly 2007/2008:
“I can’t play now, I can’t even do a frigging one song all the way through I can’t – I haven’t – I haven’t got the capacity to last the distance or the consistency of – of say keeping the rhythm, yeah, and, ah – yeah, like I say about two minutes and I can’t do any more, it’s just not happening, it’s frustrating … .” [47]
[47]T56-57
83The loss of playing the drums is significantly upsetting to him.[48] He did not mention it in the first affidavit because –
“Maybe we didn’t put it in because we forgot, we never even thought of it.
…
[48]T57
I was under a lot of other things going on in my life at that time as well, so yeah, that’s plausible that I - I didn’t put it down.”[49]
[49]T58
84When he tries drumming, he literally drops the stick from his hand if he pushes it. When playing, “you need to get a rhythm going and it’s all on the crack of the wrists”. He cannot do it – “Well basically it is heartbreaking.”[50]
[50]T61
85His current groin pain would not prevent him playing the drums.[51] His sitting tolerance has improved.[52]
[51]T59
[52]T60
86He has enjoyed working on cars over the years but is now restricted in his ability to perform mechanical work due to wrist pain. He occasionally works on his cars, but not as much as he used to, nor does he enjoy doing so as much as he used to because of his wrist pain.
87He is restricted in his ability to undertake heavy jobs in the garden because of his wrist injury, and mowing the lawn causes increased pain. He now uses a lighter mower, which he pushes mostly with his left hand.[53] The vibration of the mower aggravates his wrist pain. He agreed, when recently seen by the Medical Panel, he would have had dirt under his nails because he was in the garden.[54]
[53]T55
[54]T38
88He is still tender in the groin area – “but it is what it is”. He has no problems or restriction sitting and he can stand or walk probably for ten minutes. Fishing and camping would still be impacted. Walking up hill is “not a chance”. “Turning in the rod, pulling on the fish, and stuff like that, not a chance.” He would be restricted to about ten minutes working on a car. Issues with heavier housework would be more likely due to the wrist pain.[55]
[55] T20
Surveillance
89The drill the plaintiff was shown holding in the film on 30 November 2019 was not a very powerful one and he was not putting much pressure on it because if he pressed too hard, it just stopped.[56] He also remembered three days later, he was literally laid up after giving that part of the van a bit of a clean-up with the drill.He was basically using his other hand for pressure. The right hand was just basically to hold the drill, and the other one was doing the balancing.[57]
[56]T44
[57] T45
90He asked, how does the film show pain? While he was doing that task he was in pain, “oh hell yeah very much to the point where it would throw my wrist completely out, but I remember dropping that as well”.[58] He was pushing only, there was no drilling, he was just touching up against the side of the windscreen.[59]
[58]T45
[59]T46
91He agreed he was shown on 6 October 2018 holding a ladder with his right hand, but he was not putting any weight on it.[60] He was reaching up with his right hand changing the light bulb in a lantern. He was not drilling into anything. He was turning the flatheads with the drill and there was no pressure. He just had to tap the button and then it screwed them in.[61] There was no weight involved on his right wrist whatsoever. He estimated the orange drill he was using weighed about 2 kilograms.[62] He was not drilling down “period”, although Mr Buntine described him as having an unusual and difficult grip. All it took was a click of the button, just hit it and “boof”, that is it.[63]
[60]T46
[61]T47
[62]T48
[63]T49
92On 23 April 2018, the plaintiff was shown moving around, putting a cover over the back of a ute. He denied he was banging it down. He was just sort of slapping or flapping down the cover on the back of the ute with no pressure – “it was like making a bed.”[64]
[64]T51
93That day, there was no film of him working on a car.[65] He agreed he had a red toolbox that Mr Buntine referred to, but there was nothing in that toolbox. He does not work on his car; he does nothing on it.[66]
[65]T52
[66] T54
Lay evidence
94The plaintiff’s wife, Nadia, swore an affidavit on 4 August 2021. They have been married for eleven and a half years and were in a de facto relationship for eight years before then.
95She has observed that the plaintiff has continued to experience right wrist pain since the work injury which affects his enjoyment of life in a number of ways.
96He came from a family of musicians and had played the drums since he was a child, previously playing in a band, and he had a real passion for music. Prior to his injury, he played his drums a lot. Now he struggles to complete one song, due to his wrist pain, and hardly plays at all. She can tell this frustrates him and gets him down, as he really loves playing.
97She has noticed he drops things unexpectedly. She has seen him drop a pot and drop a chopping board while helping her in the kitchen. If he does some cooking, he regularly asks her to lift pots in case he drops them and burns himself. He also finds chopping vegetables can aggravate his wrist, and she could tell that situation frustrates him.
98He always took pride in doing chores and small maintenance jobs around the house. He still tries, but most of the time he ends up in pain. He tries to pace himself, as continued movement and use of his hand/wrist results in pain. She then has seen him try to use his left hand. When the pain is really bad, he usually takes medication such as Nurofen or Panadol, and he also uses gel regularly.
99His sleep is disturbed by wrist pain, and he often wakes complaining of pain or pins and needles in his wrist and hand. On occasions, he takes medication during the night to help him sleep.
100Their marriage and relationship have been affected by his wrist injury. In the past, he was generally in a good mood and a very social person, but since then, he has been regularly down in mood, and they argue more frequently. He loses his patience and becomes irritable much easier, and he ruminates about his injury a lot.
101He does not go fishing or camping like he did before the work injury. On many occasions since then, he has turned down invitations to go fishing with her father. She and the plaintiff used to go camping regularly prior to the injury, but that no longer happens. He has told her he is not confident setting up camp and driving long distances due to his wrist.
102He has not worked for a number of years due to his wrist injury, and only ever worked in manual labour. He is also dyslexic. Although he would really like to get back into the workforce, he is not confident he could work on a consistent basis due to his injury. She has observed that not working has impacted on his self-esteem and confidence.
The Plaintiff’s medical evidence – treaters
Dr Leslie Pinto – general practitioner – Rochdale Medical Centre
103Dr Pinto wrote to the Accident Compensation Conciliation Service in December 2008 and July 2010.
104He first saw the plaintiff concerning bilateral wrist pain worse on the right on 25 August 2008. As of July 2010, the plaintiff was reporting right wrist pain of 6 to 7 out of 10, exacerbated by cold weather and repetitive lifting of any weight. He also reported a giving way of the right wrist and pain to the elbow with lifting and a popping sensation – four episodes in the last three months.
105Dr Pinot thought the plaintiff suffered from chronic injuries to both wrists, worse on the right, related to the work he was doing in August 2008. He thought the plaintiff was certainly incapacitated for pre-injury duties on a permanent basis. He was fit for duties that involved minimal use of the right hand. Practically, he was extremely unlikely to find such work. This incapacity is permanent.
Dr Tim Hwang – consultant occupational physician
106Dr Hwang examined the plaintiff in September and October 2008 on referral from Dr Pinto for management of his bilateral wrist pain.
107He thought it would appear from the history that the symptoms commenced during work in August 2008, and that the plaintiff most probably sustained a tear, possibly due to a particular wrist movement during work when handling heavy bags. He referred the plaintiff to orthopaedic surgeon, Mr Kiellerup.
Mr Jim Kiellerup – trauma and orthopaedic surgeon
108Mr Kiellerup wrote to the Accident Compensation Conciliation Service in December 2008, diagnosing a right distal radioulnar joint effusion and ganglion. There may also be some alteration in the triangular fibrocartilage complex of the right wrist. He felt the plaintiff may have been a suitable candidate for a wrist arthroscopy, which was not a procedure he performed himself, so he referred him onwards.
Mr Stephen Tham – hand surgeon
109Mr Tham wrote to Dr Pinto in February 2009, advising he would offer the plaintiff a wrist arthroscopy. He carried out an arthroscopic excision of the synovial fold the following month.
110He advised the Accident Compensation Conciliation Service in September 2010 that the only arthroscopic finding of note was a large dorsal synovial fold in the wrist joint.
111The plaintiff’s symptoms appeared to have been precipitated by a period of work in August 2008. He was capable of resuming work which did not involve forced extension of his right or left wrist, lifting of weights of more than 2 kilograms, or any activities which required repeated pronation/supination or forearm rotation of either arm. The use of a soft wrist splint may help his symptoms.
112In July 2017, Mr Tham saw the plaintiff on referral again from the Point Cook general practitioner because of right wrist pain.
113He noted there continued to be pain in the plaintiff’s right wrist, particularly over the dorsum, but extending palmarwards, with some sensation of discomfort in the little and ring fingers and also in the palmar aspect of his hand. Clinically, there was minor reduction in range of motion, with some tenderness over the radiolunate and radioscaphoid joints.
114He explained to the plaintiff his wrist appeared to be in good order with regard to his carpus and wrist joint. This was obviously a longstanding problem, and Mr Tham did not think there was any surgical solution, and advised an activity modification as the best line of treatment.
Dr Victor I Karlov – consultant physician
115Dr Karlov saw the plaintiff on referral from his general practitioner in January 2010.
116In his August 2010 report, Dr Karlov diagnosed a peripheral tear of the triangular fibrocartilage as well as a traumatic synovitis of the radial carpal joint. He thought the pathology in the plaintiff’s wrists was consistent with his work in a strenuous physical type job involving grasping and lifting.
117At that time, he thought the plaintiff was unfit for his pre-injury duties and could not manage any job involving arm movements. With a good result from arthroscopy, he could engage in light duties, but he had no experience in that area.
Mr David McCombe – plastic surgeon, St Vincent’s
118Mr McCombe wrote to the plaintiff’s general practitioner in November 2016, five months after the second operation.
119He advised there had been a change in the plaintiff’s symptoms, with some residual dorsal wrist pain and limitation of function which was improving slowly with time. He would expect there would be some further improvement, given the pattern of recovery to date. The question will be whether he has an acceptable level of function or not at the time he reaches the plateau in terms of wrist recovery.
120If he has a significant ongoing disability, it would be worthwhile re evaluating the risk with further imaging and returning to see us for a further assessment with a view for options for treatment including further cortisone injection or surgery as indicated.
Mr Timothy Bennett – orthopaedic surgeon
121Mr Bennett wrote to Dr Mathur in October 2018, having seen the plaintiff, who still had issues with discomfort, stiffness and weakness.
122Examination confirmed a minimally tender scar and a very good motion. Right grip strength almost matched his contralateral side, and the wrist was stable to stressing in all directions.
123Mr Bennett did not think there was anything specific going on at that stage that required addressing. The plaintiff’s symptoms and signs fitted with post-surgical scarring, stiffness, and sensitivity, and Mr Bennett reassured him there was little he could do.
Medical Panel
124In December 2010, a Medical Panel found the plaintiff was suffering from a soft tissue injury of the right wrist, relevant to the claimed injury to the right wrist. The Panel was of the opinion that his current medical condition was still materially contributed to by the claimed injury, and that his incapacity for his pre-injury duties was still materially contributed to by the claimed injury.
125In April 2021, a Medical Panel consisting of Dr Saraf and Dr Buist, psychiatrists; Professor Leanne Rowe, general practitioner; Mr Elsner, orthopaedic surgeon, and Dr Feletar, rheumatologist, provided a Certificate of Opinion.
126The Panel concluded the plaintiff was currently suffering from a largely resolved soft tissue injury of the right wrist following surgical treatment on two occasions, which had contributed to a mild aggravation of degenerative changes of the right wrist. The Panel also found the plaintiff was suffering from Adjustment Disorder with Mixed Anxiety and Depression.
127The Panel was of the opinion the plaintiff’s current wrist condition and Adjustment Disorder with Mixed anxiety and Depression currently result from, and are materially contributed to by the injury in the course of his employment with the defendant from May to August 2008.
128The Panel thought the plaintiff’s largely resolved soft tissue injury of the right wrist, which had contributed to a mild aggravation of degenerative changes and Adjustment Disorder with Mixed Anxiety and Depression, was permanent.
129The Panel concluded the plaintiff does not have a current capacity for pre-injury duties due to his right wrist condition, and that he has a current capacity for suitable employment, disregarding any psychiatric consequences of the physical injury.
130The Panel thought the plaintiff was capable of performing suitable employment, including as a light picker, on a full-time basis, and that his current restrictions include no lifting over 10 kilograms with the right hand.
131The Panel was of the opinion that the current incapacity for pre-injury duties results from, and is materially contributed to by the right wrist injury alone, and that that incapacity is permanent.
Ms Pamela Newman – counselling psychologist
132Ms Newman reported in July 2021 that she first saw the plaintiff in 2014. She thought he presented with symptoms consistent with a diagnosis of an Adjustment Disorder with Mixed Anxiety and Depressed Mood due to his work-related injury.
133There was no further counselling until 2019, when she suggested a referral through WorkCover, as the plaintiff’s mental health decline seemed triggered by his work injury and inability to work.
134She noted the plaintiff is an avid musician and can no longer play the drums because of his wrist. He reported he had been playing the drums since he was two, and had played them every day, all his life, and in many bands. He said, “I look at my dusty drumkit and my heart and soul drop with the loss”. He used to play to crowds of 5,000 people, “but was not that guy any more who came in and lit up the crowd”.[67]
[67] Report dated 18 July 2021
Medico-legal evidence
Dr Leon Le Leu – occupational physician
135Dr Leon Le Leu examined the plaintiff on behalf of the insurer in November 2017 to consider his weekly payment and medical benefit entitlements.
136Current complaints were pain in several locations around both wrists, the right being worse; decreased range of movement on the right but not left; weakness in the right hand; and for a while, following the first operation, the ulnar two fingers of the right hand would “go paralysed and numb, but they are good now”.
137The plaintiff was no longer taking medication, and he did not like taking it anyway. He was taking Endone after the operation, but it stopped.
138On examination, there was reduced flexion and extension of the right wrist. Grip strength on the left was 31.2 kilograms, and on the right, 19.3 kilograms.
139Dr Le Leu thought the precise diagnosis was not easy to give, it turning out that there was not a tear, noting the Medical Panel thought the plaintiff had a soft tissue injury.
140The recent surgery of excision of a ganglion had resulted in a slight change in his symptoms and perhaps a little improvement. He thought the plaintiff had now developed a Chronic Pain Syndrome involving the wrist (not Complex Regional Pain Syndrome). The medical condition and incapacity for work were materially contributed to by the claimed injury.
141Although the plaintiff had developed a hernia, it was having no direct impact on the work-related condition which had kept him off work.
142The only limitations in terms of work were on lifting, pushing and pulling. Despite his wrist problems, the plaintiff could drive. His reported tolerances did not differ from what Dr Le Leu was able to observe.
143He thought the plaintiff could not return to work in his pre-injury duties and hours. Since his right dominant hand was severely affected, he did not think the plaintiff had a current work capacity. He did not think the plaintiff was ready to participate in retraining. This situation could be reviewed in a year.
144The plaintiff’s dominant right hand, which was severely affected by the condition, made it impossible for him to perform moderately to highly physical work. He would equally be unable to perform light office work and had no background in computer use.
145Dr Le Leu thought the plaintiff should go back for review by his orthopaedic surgeon to see what further steps he advised. He also thought he should be seen by a pain management specialist, but he would not expect a favourable outcome from that. He did not think the current regimen of no treatment was appropriate. However, the hand therapy was causing a deterioration of the condition before. It was difficult to know what treatment will help. There was no clear treatment regime that will transition the plaintiff into self-management. Having said that, he was not having any physical treatment then, so he was effectively self-managing without that treatment or medication.
146The only barrier with regard to returning to suitable employment was the right wrist condition. There was no significant difference in the plaintiff’s presentation or condition since the time the Medical Panel examined him.
147On 16 January 2020, when Dr Le Leu was provided with new information since his last report on the plaintiff’s hernias and also Mr Tham’s July 2017 report, he did not change his opinion on the plaintiff’s wrist injury.
148Noting the Transferable Skills Analysis Report dated 2 November 2017 and the suggested jobs, Dr Le Leu thought that that while computer training seemed a laudable option, that would be very difficult with a right hand that is functionally very compromised. He did not think it realistic for the plaintiff to perform any of the suitable employment options on either a part‑time or full-time basis because of the current level of his right-hand function. If that improved significantly, the situation could be reassessed.
149Dr Le Leu was provided with four surveillance disks[68] and was asked to prepare a further report. He noted throughout the material, the person of interest appeared to avoid using his right hand as much as possible. The range of movement was pretty well within what he had observed on examination, allowing for a different viewpoint on the DVD. He could not say that the plaintiff carried any very heavy items with his right hand, and most of the time he tended to use his left hand as the dominant hand.
[68] The films cover 17 April 2018, 23 April 2018, 21 August 2018, 26 September 2018, 2 October 2018, 3 October 2018 and 30 November 2019
150The only mildly surprising episode was the use of the cordless drill with wire brush attachment inside the white van. He suspected that the drill was largely being supported underneath the battery by the left hand, or its movement was being stabilised by the left hand over the barrel, and both of those actions were visible “or one stage”. In any case, these drills are now rather light.
151He had no reason to alter his earlier comments about the plaintiff’s work capacity.
Mr Damon Thomas – plastic and reconstructive surgeon
152Mr Thomas saw the plaintiff in June 2020. There were no examination findings in his report.
153Complaints were then of chronic pain in the wrist, worse with any activities, a popping sensation sound with any movement, and cold intolerance. At that stage, medications included Endone about twice a month.
154Mr Thomas thought the overriding diagnosis was a little bit hard to ascertain. The original operation for the wrist arthroscopy was for an MRI finding of a triangular fibrocartilage complex tear which seemed to have been documented throughout his file. However, operating surgeon, Mr Tham, noted a normal triangular fibrocartilage complex tear on the wrist arthroscopy which is generally the most accurate assessment. Therefore, overall, the presumptive diagnosis is that of a soft tissue injury of the right wrist due to an overuse type injury rather than a sudden acute event.
155Based on the history alone, and the time sequence involved, he thought it feasible the plaintiff’s employment had materially contributed to this diagnosis.
156He considered the plaintiff is permanently unable to undertake his pre-injury duties on a part or full-time basis. He has only limited capacity of doing light non-manual tasks not involving the right hand. Due to his incapacity on the right, his age of fifty-nine, his limited education of leaving school in Year 10, and general skills and work experience, the plaintiff’s options for employment in any capacity are limited.
157He thought the plaintiff has two employment limitations. The first is physical, to do with the right wrist, and the second is intellectual, due to his lack of experience, lack of training, and lack of education, but also general issues with anxiety, panic attacks and dyslexia. He finds anything involving writing, documentation, computer work or technology very challenging.
158Mr Thomas thought the roles of forklift driver, courier driver, road traffic controller, picker and security guard, all seem to be excluded due to lack of physical capacity. The other roles of trade sales assistant, customer service representative, hire controller, and rental salesperson, the plaintiff would struggle with due to his issues with dyslexia, lack of formal education, and difficulty with technology.
159The only role they thought may be initially feasible was that of a mobile road safety camera operator. The plaintiff would be able to drive a vehicle and sit in it. However, when outlining the tasks involved using a laptop computer and setting up the computer for each shift, the plaintiff felt he would struggle with this from a technology point of view. Therefore, it would seem all of the tasks were not really suited to him from a physical or intellectual point of view.
160Mr Thomas noted that prior to the injury, the plaintiff was a keen drummer. He was unable to do this, and therefore this does influence his recreational and social tasks. From a domestic point of view, he can do some light cleaning, but he is limited beyond this.
161Mr Thomas’ understanding was that the plaintiff has been informed that nothing else could be done for him and no further surgery is indicated. Whether he ends up with degenerative arthritic changes in the wrist, time will tell, but this is the main potential moving forward. If this were to occur, he may require further surgery.
Dr Joseph Slesenger – occupational physician
162Dr Slesenger examined the plaintiff in June 2020.
163The plaintiff told him that despite surgery, he had severe residual pain, stiffness, swelling, and a clunking sensation in the right wrist. Symptoms were aggravated by cold weather and disturbed his sleep.
164The plaintiff advised his grip strength is weak. He has difficulty with fine dextrous tasks, difficulty with pinch grip, key grip, and simple grip. He also has difficulty with repetitive activities like cutting up vegetables or writing for prolonged periods. He avoided lifting on the right side and was generally more reliant on the left.
165The plaintiff was then taking cardiac medication, but also Endone twice a month. He used heat packs. He had stopped physiotherapy due to COVID‑19. He was no longer attending his hand therapist.
166The plaintiff also advised of back pain, bilateral inguinal and femoral hernias, ischaemic heart disease, and a right wrist injury when he was twelve.
167The plaintiff reported that in subsequent employment after leaving the defendant, his right wrist symptoms deteriorated, and he ceased work in 2017.
168Dr Slesenger noted the plaintiff had poor grammar and spelling skills, and had been diagnosed with dyslexia. He had no computer skills.
169On examination, there was coarse crepitus throughout the range of movements of the right wrist. Flexion and extension were to 30 degrees, and ulnar and radial deviation to 10 degrees. On the left, flexion and extension were to 70 degrees, and ulnar and radial deviation to 20 degrees. There was no evidence of callosities or ingrained dirt on both hands.
170Grip strength on the right was 36 kilograms, and on the left, 50 kilograms. There was no upper limb wasting, and the neurological examination was normal.
171Dr Slesenger thought the plaintiff presented a difficult case to assess. He presented with chronic right wrist pain which he advised developed during his work with the defendant. There was surgery thereafter, and he advised of residual right wrist pain, swelling and stiffness around the right wrist, which continued to be aggravated by activity and cold weather.
172The plaintiff told Dr Slesenger he ceased work due to an aggravation of his symptoms working as a traffic controller.
173Dr Slesenger diagnosed a soft tissue injury to the right wrist and chronic right wrist pain. He was satisfied the initial injury was causally linked to the manual handling with the defendant. However, he thought subsequent tasks while working in traffic control were a plausible cause of aggravation.
174Based on the residual right wrist impairment, he considered the plaintiff could not return to his pre-injury duties, noting the manual handling and postural demands. With regard to suitable alternative duties, he advised the plaintiff could remain at work with restrictions of no push, pull, carry or lift over 5 kilograms, no prolonged gripping, and no repetitive wrist tasks.
175He thought the plaintiff was unlikely to be able to return to work in a role for which he had suitable training experience, taking into consideration his age of fifty-nine, that he lives in Point Cook, his driving capacity, his qualifications, his literacy skills and computer skills.
176He recommended the plaintiff be referred to a pain specialist, noting that he was rarely using medication despite the severity of the symptoms.
177Dr Slesenger advised the plaintiff against returning to any of the jobs suggested in the December 2018 JSS Report and the June 2020 Recovre Vocational Assessment Report.
178The plaintiff tod him of residual domestic restrictions and limitations to his recreational activities, which Dr Slesenger was satisfied related to the compensable injury.
Investigations
179Dr Hwang organised an MRI scan of the right wrist in November 2008. There was a bone scan in February 2009, and further wrist MRI scans in March 2010 and October 2017. The plaintiff also had an x‑ray and ultrasound of the right wrist of 3 April 2013.
The Defendant’s medical evidence
Treaters
180Mr Tham operated on 23 March 2009, performing an arthroscopic excision of synovial fold.
181He wrote to CBE in July 2009 following that procedure. He advised that he had reviewed the plaintiff since the surgery on multiple occasions and his right wrist pain had improved significantly, though there was some degree of ongoing discomfort, particularly with extension of his wrist, including radial and ulnar deviation. The plaintiff was capable of returning to modified duties where either the wrist was prevented from extension or any activities which required repeated flexion/extension of the wrist.
182Dr Ashish Mathur from Point Cook reported in October 2017 in relation to the plaintiff’s hernia condition. He believed the reason for aggravation and recurrence of the condition was related to the nature of the plaintiff’s work, which involved standing for long periods and pushing heavy barriers. It seemed unlikely the plaintiff would ever be able to return to a role that involved prolonged standing, sitting, pulling or pushing.
183Dr Bingham from Point Cook reported in March 2019 on the plaintiff’s ongoing wrist pain post surgery. He noted there was no documented causal relationship of this injury to employment; however, the pain was exacerbated by work which involved heavy lifting or repetitive work.
184He thought the plaintiff was currently fit for work which did not require lifting more than 5 kilograms or repetitive excessive hand/wrist movements for the foreseeable future. The plaintiff also had chronic left groin pain for which he was awaiting specialist opinion.
Medical Panel
185In its Reasons for Decision dated 28 April 2021, the Medical Panel set out the current symptoms and function.
186The plaintiff told the Panel he was currently continuing to experience constant pain through the centre of his right wrist 24/7 and sometimes a nail like pain going through his right palm. With any repetitive tasks, such as lifting more than 5 kilograms or using a screwdriver, he experiences an increase of pain in the right wrist. His right wrist pops every now and again and there is grinding in certain activities.
187Right wrist movement was reported to be restricted in flexion and extension, with stiffness. The plaintiff was able to write with his right dominant hand, but it depends on the day. He sometimes drops heavy things. With repetitive tasks, he may experience paralysis of the right middle, ring and little fingers associated with numbness which may last up to one day. He will apply hot packs and these symptoms spontaneously resolve in time. He occasionally uses a wrist brace in cold weather.
188The plaintiff told the Panel he does not take any medication as he is concerned about his liver function. He will do regular stretches of his right hand but is not currently attending any physical therapies.
189On examination, there was no deformity of the plaintiff’s right arm. There was no muscle wasting of the arms, including the hypothenar or thenar eminences. There was evidence of use of the right hand with callouses over both thumbs and dirt under all the nails. There were no signs of osteoarthritis of the hands. Colour, temperature and circulation of the hands was normal.
190The Panel noted there was no tenderness over the upper limbs and the range of motion of the shoulders, elbows and wrists was normal. There was a normal range of motion with repetitive testing noted on a goniometer. There was normal sensation of the upper limbs and Tinel and Phalen’s signs at the wrists were negative. There was normal power in reflexes of both upper limbs, but the Panel noted the repetitive grip testing by Jamar Dynamometer inconsistent on the right side without any complaints of pain. Finkelstein’s test was negative.
191The Panel noted the surveillance footage of the plaintiff in April, August and October 2018, as well as November and December 2019. In particular, on 30 November 2019, he was using a drill in his right hand, holding it with a difficult grip as he elevated his arm while drilling down vertically and sideways. The plaintiff said he remembered performing this task and it was common for him to use his right hand to try and see what he could do. However, his right wrist was usually painful after performing these sorts of tasks.
192The Panel considered that the activities displayed in the recording were consistent with the finding of a normal range of motion of the right wrist on physical examination on 18 January 2021.
193The Panel noted the plaintiff was preoccupied with chronic diffuse pain of the right wrist, and restricted movement was reported with stiffness.
194The Panel considered the extent of these reported symptoms as described by the plaintiff were not consistent with the Panel’s physical examination, which was essentially normal, with evidence of normal use of the hands.
195The Panel also noted the surveillance footage of the plaintiff in 2018, as well as November and December 2019, documenting normal function of the right wrist on multiple occasions.
196Notwithstanding the plaintiff’s reports of right wrist pain, both the essentially normal physical examination by the Panel, and surveillance footage, provided the objective evidence that the plaintiff is currently capable of lifting up to 10 kilograms rather than 5 kilograms.
197While mild degenerative changes of the right wrist were reported on imaging, the Panel noted these minor findings would not explain the extent of the plaintiff’s report of constant right wrist pain.
198The Panel considered while mild degenerative changes of the right wrist were a common finding in people the plaintiff’s age, it could also represent a mild aggravation of degenerative changes to the right wrist following two operations.
199Based on the above considerations, the Panel considered the original soft tissue injury of the wrist in 2008 had largely resolved over time, but that the mild aggravation of degenerative changes of the right wrist following surgery was persisting and may be further exacerbated in the future with lifting more than 10 kilograms.
200The Panel also noted the plaintiff’s lack of transferable skills, dyslexia and limited work experience and training for most of the suggested roles in June 2020.
201The Panel considered that work as a packer required no training and the critical work demands do not currently exceed the plaintiff’s restrictions and tolerances, and that he would be able to undertake this position if there was no requirement to lift over 10 kilograms.
202The Panel disagreed with Dr Slesenger and Mr Thomas and reiterated its conclusion. It agreed with Dr Bingham and also Mr Buntine’s most recent view on the plaintiff’s work capacity.
203The Panel also took into account reports from Mr Peter Battlay of September 2008 and April 2010.
Medico-legal
Mr John Buntine – hand, plastic and reconstructive surgeon
204Mr Buntine first examined the plaintiff in September 2018.
205At that stage, the plaintiff said his right wrist cracked and popped when he moved it, which Mr Buntine did not hear.
206The plaintiff said he had continuous pain which extended from the wrist to the elbow and often affected the whole of the arm, which went numb when he overused it. He reported pain at the lateral part of the elbow, but Mr Buntine noticed no tenderness precisely corresponding with tennis elbow. The plaintiff said the scars of the right hand were tender. He complained of numbness affecting the lateral side of the right elbow and upper arm, and various parts of the dorsum of his right hand and fingers.
207The plaintiff reported that because of the condition of his right wrist, he could not work, and his wrist had only 30 or 40 per cent capacity of function.
208Mr Buntine was not able to diagnose a specific condition of a pathological nature affecting the right wrist and he agreed therefore with the Medical Panel diagnosis of a soft tissue injury to the right wrist.
209He doubted that the plaintiff’s medical condition and/or incapacity for work was materially contributed to by his claimed physical injury, as despite extensive investigations and operative procedures, no significant condition of a physical nature affecting the wrist had been diagnosed.
210Mr Buntine had no reason to believe that a range of activities were limited by a physical condition affecting the right wrist. Accordingly, considering physical factors alone, the plaintiff would now be able to undertake his pre-injury duties and hours. He also thought the plaintiff had the physical capacity to participate in retraining or new employment services.
273Wrist pain and altered sensation causes interference with the plaintiff’s sleep. This situation was confirmed by his wife, who mentioned he takes some Panadol or Nurofen at night sometimes.
274His wife also confirmed the plaintiff’s difficulties carrying and at times dropping items such as saucepans when helping with the cooking.
275In general terms, while the plaintiff still does gardening and odd jobs around the house, as shown on the film, he is precluded from doing heavy repetitive work with his right hand for any extended period.
276It is a similar situation with recreational activities such as fishing and camping and working on his cars.
277While he has had problems with a range of activities at various times because of groin pain,[84] that condition has largely settled and does not play a part in any of his restrictions.
[84]Peak Engineering v McKenzie (supra) at paragraph [28]
278There is limited evidence that the plaintiff’s wrist condition will deteriorate significantly in the future and Mr Thomas and Mr McCombe are the only doctors who speculated surgery may be required.
279However, the plaintiff’s right wrist problems have persisted for over thirteen years with no significant improvement despite two operations, injection and conservative treatment. In those circumstances, I accept his impairment is permanent.
280Counsel for the defendant submitted even if the Court was satisfied the plaintiff had suffered all the consequences claimed, nevertheless he did not meet the threshold of serious injury compared to other cases in the range. If all of his consequences are accepted, he might suffer from an injury that is “significant or marked” but not “at least very considerable”.[85]
[85]T77
281However, taking into account all the evidence, I am satisfied that the consequences of the plaintiff’s right wrist impairment are “serious”.
282As a result of the significant abnormality described by Mr Buntine, the only hand surgeon who has opined in this application,[86] the plaintiff continues to experience ongoing pain requiring medication, his work options are significantly limited, his sleep is affected, he can no longer enjoy his favourite pastime of drumming, and a range of daily activities are also affected.
[86]T67
283Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering.
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