Collins v All Metal Magic Pty Ltd and Anor [2016] QDC 48

 Farr SC DCJ

The applicant sought an extension of the limitation period under s.31 of the Limitations of Actions Act 1974 (LAA) and consequential leave to commence proceedings pursuant to s.298(1) of the Worker’s Compensation and Rehabilitation Act 2003 (WCRA).

The applicant claimed that her personal injury arose from work duties that she was required to undertake over a period of time during the course of her employment with her employer, the first respondent.

APPLICANT’S CHRONOLOGY OF EVENTS (para 5):

  • The applicant first experienced stiffness in both wrists and fingers for a few months in about 2004;
  • She did not lodge a WorkCover claim because the stiffness resolved after a few months;
  • She commenced employment with the first respondent in approximately June 2010;
  • She says that she suffered wrist symptoms which she believes are due to the system of work involving powder coating, believing the weight of the spray gun and hose and the repetitive nature of the work caused injury to her wrists;
  • She performed that work until the end of 2011, at which time she was transferred to work as a bookkeeper in the business, having made her employer aware that her hand and wrist were sore;
  • Despite the change in her duties, the applicant continued to work on the floor from 7:00am to 9:30am preforming whatever duties were required, which included ongoing work performing powder coating and using the spray gun;
  • She continued those duties until August 2014 at which time she took over the role of store-person, which was a manual handling job;
  • The applicant attended a General Practitioner, Dr Jocelyn Gaw, on 12 June 2013 after she suffered chest pains at work:
    • The applicant recalls advising Dr Gaw that she thought she was suffering a heart attack and Dr Gaw asked her if she was suffering from tingling in her fingers;
    • The applicant responded that she had been suffering from tingling in her fingers for some time, on and off;
    • The applicant claims that Dr Gaw did not advise her of a diagnosis of carpal tunnel syndrome and she did not undergo any tests by a specialist or receive any referral to a specialist for diagnosis, and she was not told that she ought to stop doing powder coating work
  • The applicant states that from late 2010 she experienced a gradual increase in symptoms, with the tingling in her fingers becoming more frequent, together with an increased feeling of heaviness in her hands.
  • She felt that her hands were also starting to ache generally depending on what she did during the day;
  • The applicant was not provided with any manual handling training throughout the course of her employment and did not make complaints of injury at the time because she thought that the tasks were essential parts of her job, but nevertheless did report pain to co-workers;
  • She remained in the store-person position until 14 April 2015 when she underwent surgery to both wrists, which was paid for by WorkCover;
  • On 2 March 2015 the applicant was performing duties which required repetitive screwing motion and she used both hands alternatively as they were both sore;
  • The applicant said by the end of that day the pain was unbearable and, for the first time, she was suffering constant numbness in the fingers of both hands which she could not shake off;
  • That same day, she attended upon her General Practitioner, Doctor Perera;
  • The applicant further attended upon Dr Perera on 9 March 2015 and 13 March 2015 and says that he advised her that he suspected she was suffering from carpal tunnel syndrome and referred her for nerve conduction studies with Dr Corvett;
  • Subsequent nerve conduction studies confirmed the diagnosis of moderately severe bilateral carpal tunnel syndrome;
  • Carpel tunnel release surgery was performed on both wrists on 14 April 2015;
  • The applicant had noticed an increase in her symptoms when she commenced in the store-person role in August 2014 and by the time she attended Dr Perera in March 2015 the pain had reached a point where it was constant. She said that by then she was suffering from constant numbness in the fingers of both hands;
  • The applicant says that prior to then, she had believed she was suffering from muscular strain in her wrists due to overwork, but was not aware that she had a significant condition and that she was only formally diagnosed as suffering from carpel tunnel syndrome once she received the results of the nerve conduction studies. It was only then that she was informed for the first time that she required surgery;
  • The applicant alleges that she has suffered complications post-surgery due to a nerve in each hand being lacerated during surgery. The nerve in each hand has since been the subject of further surgical intervention and suturing;
  • The applicant continues to experience extremely sensitive patches in the palms of both hands and has an ‘altered sensation’ in the thumb of the left hand. She also continues to suffer extreme sensitivity in the scar area of the right hand and wrist and of the left wrist and these areas ache after work each day;
  • The applicant expressed the belief that she has suffered bilateral carpel tunnel syndrome as a result of the system of work;
  • The applicant first experienced pain in the wrists in approximately late 2010 and that pain became worse over time until April 2015 when it reached the stage where she was unable to work.

RIGHT OF ACTION:

His Honour found that:

[9] The only evidence that suggests that a cause or link exists between her employment duties and her injuries is her own opinion. Relevantly, this is not a matter where an injury can be linked to a particular event due to the immediate onset of pair or symptoms. In circumstances like those in existent here, an opinion from a suitably qualified medical practitioner is necessary.

..

His Honour referred to the decision of McMeekin J in Barnes v Smith & Ors [2011] QSC 259 at [43] – [46] as to the need for a cause of action as a preliminary hurdle even in cases of manual handling.

[11] …There is no admissible evidence before this Court establishing, or even suggesting, a cause or link between the applicant’s injury and the work performed in the course of her employment. The only evidence which touches upon this issues comes from the applicant herself where she states:

“I suffered wrist symptoms which I believe are due to the system of work and in particular the 80 percent of my work which involved powder coating. I believe the weight of the spray gun and hose and the repetitive nature of the work injured my wrists.”

 [12]      …

 Work cover paid for this surgery”

 

 “I believe that as a result of the system of work I have suffered bilateral carpal tunnel syndrome”

 “I first experienced pain in the wrist in approximately late 2010. The pain become worse overtime and in April in 2015 it reached the stage where I was unable to work.”

[13] Similarly there is no evidence that the nature of the work performed could cause an injury of this nature. That is a matter for expert opinion. In the absence of such expert evidence, the application has failed to establish an action on the right of action. For this reason alone the application must fail.

His Honour nevertheless went on to consider whether the element of material fact of a decisive character was satisfied. His Honour concluded it was, but the that it was within the applicant’s means of knowledge and that she failed to give a good explanation as to why she did not take appropriate steps to ascertain the the cause of her symptoms prior to March 2015. On this basis the application also failed.

David Cormack – Brisbane Barrister & Mediator

Related Posts

Recent Comments

    Categories