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Angela Simmons’ worked as a kitchen hand at the Westside Tavern in Maryborough. In April 2010, she was cleaning a large metal drip tray from the grill. It fell from the bench and instinctively, she reached out and tried to catch it.
In a shocking injury, a sharp edge of the grill sliced her hand from the webbing between her second and third fingers halfway down her palm. After surgery, she tried to return to work but the pain, loss of sensation and reduced grip strength took its toll.
She needed further surgery for wound infection and was diagnosed with carpal tunnel syndrome which was unsuccessfully managed with yet further surgery. Apart from another unsuccessful trial in a hospitality role and a few short term engagements, she has not worked since October 2010.
Her symptoms have worsened and she is now unable to use her left hand without pain. WorkCover admitted responsibility in her personal injury lawsuit but contested the extent of the injury and the compensation payable.
It urged the court to accept the opinion of hand surgeon Stephen Coleman, who assessed an 8% whole person impairment compared to his colleague David Van der Walt whose assessment of WRI was 14%.
In the court’s view, the wide gulf between the experts was irrelevant given she was accepted as being essentially unemployable and “both surgeons doubt future treatment will significantly improve her condition.”
Video surveillance depicting Angela – when attending her occupational therapist with her “left arm swinging freely” – was not damaging to her case because it also showed her “resting her left hand on her thigh and kept her left limb relatively still”.
Aided by a diagnosis from neurologist Don Todman that was consistent with “intra-neural scarring”, the court was however satisfied with Angela’s truthfulness. And when defence O.T. Anne White “disavowed” her earlier unfavourable opinion (because of a misunderstanding of Dr Coleman’s diagnosis), there was no further obstacle to Angela’s damages ask being awarded.
The result was that WorkCover was ordered to pay $527k, including general damages of $45k, past loss of wages of $110k and future loss of earning capacity of $360k.
Simmons v Wanless & Anor [2014] QDC 042 Kingham DCJ 10/03/2014
Categories: Personal Injury , Litigation & Law Practice