IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISION	 Revised
Not Restricted
Suitable for Publication	
Serious Injury List		

Case No. CI-20-05720

KERRY ANNE UPHAM	Plaintiff	
		
v		
		
VICTORIAN WORKCOVER AUTHORITY	Defendant	

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JUDGE:	HIS HONOUR JUDGE O’NEILL	
WHERE HELD:	Melbourne	
DATE OF HEARING:	16 July 2021	
DATE OF JUDGMENT:	27 July 2021	
CASE MAY BE CITED AS:	Upham v Victorian WorkCover Authority	
MEDIUM NEUTRAL CITATION:	[2021] VCC 1008		

REASONS FOR JUDGMENT
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Subject:	ACCIDENT COMPENSATION
Catchwords: 	Serious injury application – injury to the left wrist in the course of cleaning duties – further injury to the right shoulder said to arise in compensating for left wrist and therefore a consequence of wrist injury – identification of injury – disentanglement from other physical and psychological conditions – pain and suffering and economic loss – whether consequences “very considerable” – whether 40 per cent loss of earning capacity
Legislation Cited:	Workplace Injury Rehabilitation and Compensation Act 2013, s335 
Judgment:	Leave granted in respect to pain and suffering and loss of earning capacity damages.

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr A J McG Moulds QC with Ms K L Bradey	Hounslow Lawyers	
			
For the Defendant	Mr J L Batten	Russell Kennedy Lawyers	

HIS HONOUR:

Preliminary
1	Ms Kerry Upham has been engaged in a wide range of employment over her working life, from childcare, through retail sales, as a driver, and, at the time she suffered injury the subject of this application, as an office cleaner.  She had completed a diploma in counselling and had aspirations to work as a “Life Coach”. 
2	From 2010, she worked part time as a cleaner for a company, Australian Specialist Floor Services Pty Ltd (“ASFS”).  It had a contract to clean retail stores, including the Rebel Sports store at Chirnside Park.  The work was physical.  She also worked part time cleaning school premises.
3	On 30 May 2016, while working at the Rebel Sports store, Ms Upham was attempting to separate parts of a vacuum cleaner which had become stuck.  She felt a crack in her left wrist and pain into her left hand and arm.  She was unable to continue working.
4	Ms Upham went to her general practitioner, Dr Glenn Chandra, and then to the Maroondah Hospital.  An MRI scan of 26 June 2016 showed swelling but no other structural abnormality.  She was in a wrist brace for a period.  She was referred to a plastic hand surgeon, Dr Rory Maher. 
5	Because she was favouring her left wrist, Ms Upham started to experience pain into her right thumb and had treatment through a hand therapist.  Because of this over compensation, by July 2016, she started to experience pain into the right shoulder.  This required radiological investigation and cortisone injection.  She also developed pain in the left shoulder. An ultrasound of the shoulders taken in November 2017 revealed bilateral subacromial/subdeltoid bursitis.
6	Ms Upham has not worked since the injury save for an attempt to return in December 2016 for a short period, which was unsuccessful.
7	Ms Upham is right handed.  Treatment has been conservative.  She has had hand therapy, physiotherapy, acupuncture, massage and has seen a pain specialist, Dr Malcolm Hogg.  She takes a range of medication.
8	Ms Upham fell in her backyard in August 2019 and fractured her left humerus, which required surgery with a plate and screws.  She suffers trigeminal neuralgia which causes pain from the back to the front of her head.  She takes Lyrica for this, which has led to side effects.  She has had some problems with her neck, and an MRI scan showed degenerative changes at C5-6.
The application
9	This is a serious injury application.  Leave is sought to bring proceedings for both pain and suffering and loss of earning capacity.
10	The body function said to be lost or impaired is the left wrist.  A consequence of that injury is said to be pain and restriction in the right shoulder.  No part of the application relates to the neck, the neuralgia or the right wrist or hand, save to the extent it is necessary to disentangle the consequences of those conditions from those of the left wrist injury.
11	Mr Batten, counsel for the defendant, identified the issues in the application as:
•	the onus was on the plaintiff to identify the injury said to have been suffered in the workplace incident, which was not clear from the medical reports (“injury”);
•	the defendant accepted Ms Upham suffered some soft tissue injury to the left wrist in the workplace incident from which it says she has recovered.  To the extent there are any ongoing symptoms, they are modest, and when regard is had to other cases in the range of possible impairments, those consequences to do not meet the “very considerable” test (“range”); and
•	the plaintiff had not disentangled the consequences of the other conditions referred to from the consequences of the claimed injury (“disentanglement”).
Injury
12	Upon the happening of the incident, Ms Upham’s affidavit sworn 14 August 2021 records:
“… I felt a crack in my left wrist, and pain shot up and down my left arm (the incident).  I had pain in my fingers up to my elbow.  I found that I couldn’t hold the pole of the vacuum cleaner.  I couldn’t complete my shift.”
13	In relation to the onset of symptoms in her right shoulder, Ms Upham said:
“Following the injury to my left wrist, I couldn’t use my left arm completely because of the brace.  I used my right arm for everything.  By about late June/July 2016, I was finding that my right shoulder was painful.  The pain in my shoulder got worse and worse over time, to the point where I ultimately underwent a right shoulder ultrasound on about 29 November 2016.”
14	An MRI scan of the left wrist taken on 26 June 2016 was normal, save for oedema in the forearm and wrist, which was said to be of uncertain aetiology.  A CT scan of the left wrist did not identify any fracture.  Nerve conduction studies did not show any nerve entrapment.
15	An ultrasound of the right shoulder showed mild degenerative changes with a thickened subacromial/subdeltoid bursa.  A full thickness tear of the supraspinatus tendon of the left shoulder was identified.
16	Ms Upham was referred to Mr Rory Maher in 2016.  At that time, he noted ulnar-sided wrist pain.  He thought it unlikely she would be capable of a return to work as a cleaner but thought she could do light duties and function at full capacity doing desk work.  He believed there would be improvement in her symptoms with the assistance of hand therapy.  In a report of 30 October 2017, Mr Maher said Ms Upham had developed moderate ECU tendonitis.  He noted the clinical picture had improved “dramatically”, although the tendonitis remained.  
17	Ms Upham was referred to Dr Malcolm Hogg, pain specialist, in November 2017.  He noted she had had a cortisone injection to the left wrist in January 2017 and an injection to the right shoulder in February 2017, neither of which provided any long-term benefit.  He noted subacromial bursitis with some degree of impingement on abduction in the right shoulder.  Dr Hogg said Ms Upham had suffered a soft tissue injury to the left wrist with transient neuropraxia, with reasonable resolution from a functional perspective, but with persisting pain.  He said he could not identify psychosocial stressors.  He thought a return to work process or retraining should be undertaken.
18	The initial treating general practitioner, Dr Chandra, diagnosed a left wrist tendon injury, although there was no precise diagnosis.  He further noted right shoulder bursitis.
19	Ms Upham was examined by Mr Craig Mills, orthopaedic surgeon, in May 2021.  He obtained a history of constant aching pain in the left wrist at 3 to 4 out of 10, and with activity, 8 to 9 out of 10.  Ms Upham also complained of continuous pain in the right shoulder.  He diagnosed a soft tissue injury to the left wrist and a consequential soft tissue injury to the right shoulder.  He suggested a self-directed exercise program and continued conservative management.  He considered Ms Upham may come to surgical treatment of the right shoulder.  He said she was unfit for work as a cleaner.
20	Ms Upham was examined by Dr Robyn MacBeth, occupational physician, in March 2021.  In a comprehensive report, she noted chronic left wrist pain and said the symptoms were consistent with ulnar neuropathy of the left wrist.  She said further, Ms Upham had aggravated pre-existing degenerative changes in the right shoulder, resulting in subacromial/subdeltoid bursitis.  She agreed Ms Upham was unlikely to return to work as a cleaner, and suggested she be referred to a hand surgeon for further assessment.  Further, Dr MacBeth said Ms Upham had no realistic capacity for any of the employment areas as set out in the Nabenet vocational assessment report, on a reliable and consistent basis.
21	That Nabenet report had suggested Ms Upham had the capacity to work as a counsellor, welfare support worker, information officer, greeter or hotel/motel receptionist.
22	On behalf of the defendant, Ms Upham was examined by Dr Majid Rahgozar, occupational physician, in 2016, 2018 and, most recently, in October 2020.  In 2016, Dr Rahgozar said Ms Upham had suffered a muscular or tendon strain to the extensors of the left wrist.  By 2018, he thought the pain in her shoulder was due to a musculoligamentous injury which had resolved.  He noted pain across a range of areas, including the cervical spine, shoulders, elbows and wrists.  He said the pain was non-specific and likely to be related to psychosocial risk factors, including stress of personal relationships due to her condition and that of her husband, termination of employment and a non-organic component.  He said her symptoms were no longer contributed to by the initial injury.  He said she had the capacity for alternate employment.
23	In his final report, Dr Rahgozar described Ms Upham’s clinical presentation as complex.  He accepted she had sustained a musculoligamentous injury and/or a soft tissue injury to the left wrist and right shoulder, which he said had resolved, and what remained was non-specific.  He noted she had major health conditions, including trigeminal neuralgia, a fracture to the left humerus and psychosocial stressors.  He accepted she may have some osteoarthritis to the left wrist but that was related to the fall in 2019 and not the subject incident.  Those other health issues contributed to her reduced work capacity and for pre-injury work as a cleaner.  He said she did have the capacity to work as a counsellor, welfare support worker, information officer, greeter and hotel/motel receptionist.  He accepted she was not fit for her pre-injury cleaning work.
24	Ms Upham was examined by Associate Professor Max Esser, orthopaedic surgeon, in November 2020.  His opinion was that Ms Upham had objective signs of ulnar neuropathy of the left wrist, possibly due to the injury, however, found it difficult to understand her claimed degree of disability.  He thought she exhibited a significant degree of illness behaviour in relation to the right shoulder.  As to the left wrist, he said she had –
“… a traction neuropathy of the ulna[r] nerve at this level.
 I think this is consistent with the mechanism of injury that she describes, which probably resulted in a traction neuropathy of the ulna[r] nerve at the level of the wrist.  … .”
25	Professor Esser was not able to come to any concluded diagnosis of the right shoulder due to what he said was an abnormal response to examination.  He considered the right shoulder problem was not related to the workplace incident, but the ulnar nerve impairment was.
26	Professor Esser said Ms Upham could perform the areas of employment referred to in the Nabenet report.  He said that given her significant psychological response to the left wrist injury, she would be unable to return to work as a cleaner. 
27	There are differing views amongst the various treating and consultant practitioners as to the precise injury suffered by Ms Upham to her left wrist in the incident on 30 May 2016.  While the various radiological investigations did not show any structural problems, the MRI scan of 26 June 2016 identified oedema which is likely to be related to the trauma of the incident.
28	Despite the differing diagnoses, including injury or strain to the ulnar nerve, most accept Ms Upham has suffered a soft tissue injury to the left wrist.  I am of the view the practitioner in the best position to make a diagnosis is Mr Maher, who diagnosed moderate ECU tendonitis; that is, the inflammation or irritation of the ECU tendon.  According to his report of 30 October 2017, Dr John Crock, who Ms Upham saw for a second opinion, agreed with that assessment.  Mr Maher is a treating practitioner, and his opinion should be respected.  In particular, he is a specialist hand surgeon and, in my view, the person best able to make an assessment and diagnosis. 
29	The position in relation to the right shoulder is more straightforward.  I accept Ms Upham has suffered an overuse injury to that shoulder which has led to an aggravation of underlying degenerative disease with subacromial/subdeltoid bursitis.
Range
30	According to her affidavit, Ms Upham continues to suffer pain in the left wrist and into two fingers of her left hand.  She says there is a weakness in the left hand with pins and needles.  She says she suffers constant pain to the right shoulder, extending down the right arm.  This pain is made worse by activities, including lifting, driving, sitting in the one position and overhead activities.
31	She has remained under the treatment of her general practitioner, Dr Chandra, although, more recently, has seen another general practitioner, Dr Imre Sagi.  Over the period from 2016 to 2018, Ms Upham had extensive hand therapy.  She was treated by a remedial therapist, Mr Thomas McKail, with massage and acupuncture, in 2018.
32	Ms Upham had a cortisone injection into the left wrist in January and into her right shoulder in February 2017.
33	She was, for a period in 2017, under the care of Dr Hogg, the pain specialist.  She had physiotherapy to the right shoulder in 2018.
34	Ms Upham sees her general practitioner regularly for the prescription of medication.  She takes Lyrica, primarily for the trigeminal neuralgia, but also because it provides relief for the left wrist and right shoulder pain.  She has had to reduce the dosage of this medication as it has caused side effects.  In addition, she takes Panadol Osteo each day.  She also takes Panadeine and Mersyndol as needed. 
35	Ms Upham has five grandchildren.  The youngest is only a few weeks’ old.  She will be unable to assist with her new grandchild as she would otherwise do.
36	She enjoyed camping but she and her husband have now purchased a caravan, which is not as fulfilling.
37	She says she is in too much pain to return to work.  She is constantly fatigued.  While she can sit at a computer, she has difficulty using the keyboard for any period of time.  Her memory is affected by the medication she takes.
38	According to the history provided to Dr Mills, Ms Upham’s husband undertakes the heavier domestic chores.  She does very minimal gardening.  She can no longer enjoy rock and roll dancing nor ride her husband’s motorbike as a pillion passenger.  Dr Mills thought that her complaints of pain and restriction were likely to continue into the foreseeable future.
39	To Dr MacBeth, Ms Upham complained that the left wrist and right shoulder dysfunction had had a significant impact upon her quality of life, including her personal activities of daily living, sleep, level of activity, social life, work capacity and her mood.  She has to plan activities to determine whether and how she can carry them out.  She had to cut her hair short as it was too difficult to keep long.  Putting on clothes was problematic.  Ms Upham said her sleep is poor and she wakes regularly during the night.  If she sleeps or rolls onto her right shoulder, it wakes her.  Lifting heavier items in the kitchen is not possible.
40	Treatment at present for the left wrist and right shoulder is conservative and modest. It is mainly medication and home exercises.  There is no surgery suggested for the wrist.  There is the possibility of surgery for the shoulder at some future time.  Ms Upham said she will resume massage and physiotherapy when the COVID-19 pandemic permits. 
41	Any assessment of the consequences of a workplace injury in an application such as this involves consideration of the credibility of the applicant.  I found Ms Upham an honest and straightforward witness attempting to respond to questions put in cross-examination.
42	Surveillance film taken on 18 and 20 May and 10 July 2021 was shown.  Ms Upham is seen in a carpark and in shopping centres.  She fills up her car at a petrol station.  For a period, she walks along a suburban street.  She opens the boot of a car and takes out some bags.  They did not appear to be heavy.  The defendant admitted it carried out surveillance of the plaintiff for over 60 hours, with only 40 minutes of film produced.
43	In my view, there is nothing on the surveillance film to suggest any significant inconsistency with her complaints of pain and restriction in the left wrist and right shoulder.
44	In the course of cross-examination, Ms Upham accepted that Nabenet assisted her in trying to find employment, and she applied for several jobs.  One was as a counsellor.  She got to an interview as a radio room operator in a hospital.  She said she would have accepted the job if it had been offered.
45	I accept the plaintiff as a credible and honest witness and, as such, generally accept her descriptions of pain and restriction in the left wrist and right shoulder.
46	As stated, I accept the opinion of Mr Maher that Ms Upham has suffered ECU tendonitis.  In his report of October 2017, he observed that the clinical picture had improved dramatically but the tendonitis remained.  It was sufficient for him to warrant referral of Ms Upham to Dr Crock for a second opinion.  While I accept Mr Maher’s diagnosis, and his overall opinion should be respected given he is the treating surgeon, nonetheless, he has not had the opportunity to examine Ms Upham’s left wrist since 2017.  Despite his prediction of continued improvement, that has not eventuated, and I accept her evidence of the ongoing pain in the left wrist and the restriction in the activities she claims.
47	There is no issue as to whether Ms Upham is unable to return to her work as a cleaner.  Nabenet have suggested a range of areas of employment said to be available to Ms Upham.  Dr Rahgozar and Professor Esser are both of the opinion Ms Upham has the capacity to undertake that work.  Dr MacBeth considered Ms Upham had no capacity for any of those alternate areas of employment.
48	Dr Rahgozar’s report did not refer to any careful analysis of the duties involved.  Professor Esser came to the same conclusion, but, again, did not undertake a comprehensive assessment. 
49	Dr MacBeth’s opinion of the unsuitability of each of the alternate areas of employment involved an assessment of the tasks Ms Upham would be required to undertake, and those which she determined would be difficult given her injuries.  
50	On balance, I prefer the opinion of Dr MacBeth, whose assessment is more detailed, and comprehensive than the other practitioners.
51	I accept Ms Upham has no capacity to return to work as a cleaner.  It should be remembered that her incapacity relates to both her left and right upper limbs.  Accepting her complaints of pain and restriction to those areas, any area of employment to which she is suited would be difficult.  I am of the view she has limited capacity to return to any area of alternative duties.  I accept that that incapacity is greater than 40 per cent.
Disentanglement
52	Both Dr Rahgozar and Professor Esser came to the conclusion that there were non-organic or psychological factors involved given Ms Upham’s widespread complaints of pain.  However, there is a radiological basis for her complaints in relation to the neck, left shoulder and trigeminal neuralgia.  An MRI scan of the cervical spine of 2 February 2021 showed multilevel cervical degenerative changes with foraminal stenosis.  There was said to be compression of the exiting right C5 nerve roots.  An ultrasound of the left shoulder of 13 November 2017 showed a posterior tear of the supraspinatus tendon.  Ms Upham has been under treatment for the trigeminal neuralgia, including by practitioners at the Maroondah Hospital, with prescription of Lyrica.
53	Further, in 2019, she fell and fractured her humerus, which required surgery.  I accept her evidence that she has largely recovered from this injury.  
54	While undoubtedly, she has suffered a range of injuries and conditions, they all have a physical basis.
55	I prefer the opinion of Dr Mills, who considered there was an organic basis for the left wrist and right shoulder conditions, and of Dr MacBeth, who did not observe any abnormal illness behaviour.
56	I accept Ms Upham’s evidence that she has largely recovered from the fracture to the ulnar and the consequences of that injury are not of any significance.  While she has a tear to the supraspinatus tendon of the left shoulder, there is no evidence to suggest that is a condition which significantly disables her from her activities of daily living and employment.
57	I accept Ms Upham suffers pain and restriction in her neck.  This has caused an increase in migraines which she has suffered for a considerable period.  I further accept that the trigeminal neuralgia does cause pain to her head and face.  For both of these conditions she takes pain-relieving medication, which is also used for her left wrist and right shoulder conditions.  However, those conditions do not affect her use of the left wrist and right shoulder, in particular, in activities requiring her to lift objects at or above shoulder height, use a keyboard and carry out the domestic and recreational activities referred to in her affidavit.  While those conditions in all probability affect her employment capacity to some extent, the evidence does not suggest that effect is significant.
Conclusion
58	Accepting Ms Upham’s right shoulder condition came about as a result of compensating for her left wrist injury, looking at the left wrist and right shoulder alone, the consequences from a pain and suffering perspective meet the “very considerable” test.  I am satisfied that in respect of the left wrist and right shoulder conditions alone, there is a greater than 40 per cent loss of earning capacity.
59	Leave will be granted for the issue of common law proceedings.
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