Maria Susie Frith v Host-Plus Pty Ltd

District Court of NSW|2007-03-28

Background 9 The plaintiff was born on 6 May 1955, so she is presently aged 51 years. The plaintiff is predominantly right-handed.

10 The plaintiff went to Leichhardt High School and left in either 1970 or 1971 whilst she was in year 9. She did not complete the school certificate, and she was not formally trained to do any particular job.

11 After leaving school the plaintiff was employed as a telephonist/clerk in a department store for about one year. She then had a similar job at Granville Motors for a couple of years.

12 The plaintiff got married in 1973. She and her husband managed the Illawong Motel at Forster, which had about 20 rooms. They managed the motel for a number of years. The plaintiff's role included checking people in, ordering stock and doing a lot of the cleaning.

13 The plaintiff stopped working in the motel in 1978 when her first daughter was born. She and her husband decided that she would focus on bringing up their children. The plaintiff has four children who are all now adults.

14 The plaintiff and her husband were divorced in 1992.

15 The plaintiff decided in 1993 that, as her children were growing up, it was time to retrain herself so she could go back into the workforce. The plaintiff did two courses at Randwick and Petersham TAFE on a part-time basis. The courses related to computer skills and word processing. The plaintiff did not ever do any work involving the use of these skills.

16 In 1997 the plaintiff starting working for Horizons as a cleaner. Horizons operated two blocks of serviced apartments, one at Cronulla and the other at Hurstville. There were between six to eight apartments in the Cronulla block and about ten in the Hurstville block. They were all either two or three bedroom apartments. The plaintiff's tasks all involved manual labour, including washing the windows, cleaning the stoves and ovens, cleaning barbecues, moving beds and joining them together to make them into double beds, making the beds, changing the linen, pulling out the washing machines and dryers so that the dust and dirt could be removed from behind those machines and so on. The plaintiff had to drive a van to and from Sans Souci, where Horizons' storehouse was located. From the storehouse the plaintiff collected bed linen and utensils and had to load those into the van, drive it to either Cronulla or Hurstville and unload it.

17 As well as the other tasks I have mentioned, the plaintiff said she had to vacuum, scrub the bathrooms, wash dishes that were often dirty and scour the stove tops and pots. Many of the occupants in the serviced apartments left garbage around and that had to be cleaned up. In particular, some of the tenants at the Hurstville block used the ovens as barbecues and they were black inside as a consequence, oil was spilled on the carpets and there was a lot of filth encrusted on cupboards. This involved a lot of cleaning. The plaintiff described it as "excessive work".

18 By the end of 2000 the plaintiff was working 4-5 days a week doing between 25 and 30 hours per week.

19 The plaintiff said that at the end of 2000 she noticed some symptoms in her right wrist. It got sore and her right hand started to ache. She went to her GP, Dr Mikhail, in January 2001. In the witness box the plaintiff said that, at the time, she had soreness in the palm of her right hand and swelling at the base of the four fingers in that hand. As well, her wrist was very painful and it made it impossible for her to mop and sweep the floor.

20 Dr Mikhail gave the plaintiff Panadol and told her to use a bandage as a form of a splint. She was also prescribed Voltaren gel to apply.

21 As things did not improve, the plaintiff went back to see Dr Mikhail who ordered that an x-ray be taken and referred the plaintiff to Dr Eisman, a rheumatologist. Dr Eisman organised a bone scan, an x-ray and an ultrasound, prescribed Vioxx, and told the plaintiff to use Voltaren gel.

22 In March 2001 the plaintiff said that she was allocated to do light duties by her employer, but the problem was that there were no light duties available. She tried to do her normal duties but found this impossible. So she resorted to using her left hand.

23 The plaintiff said that her position was made worse by the fact that in May 2001 she was the only cleaner employed by Horizons. The rest of the staff had left. She found it impossible in the circumstances to load up the van or even to try and do this part of her job using a car.

24 It was at this time that the plaintiff's symptoms in her right hand got worse. Her fingers started curling up and she could not put a key in the locks to open the doors of the apartments and had to use her left hand. She was not able to continue working on her own.

25 The result was that the plaintiff ceased working for Horizons in May 2001 and made a claim for workers compensation benefits.

26 In October 2001 the plaintiff said she felt quite depressed because she had started having problems with her left hand. Dr Eisman referred her at this time to an occupational therapist whom she saw at Kogarah. She went twice a week and she was given three types of splint to ease the difficulties in her right hand. She still has occupational therapy on a weekly basis.

27 The plaintiff said that the splints which were prepared by the occupational therapist helped her. She had a special one for driving, one to put on when she slept at night and another for use during the day when needed. She also put an air cushion around her right arm to alleviate pressure when necessary. The plaintiff still uses these splints when the need arises.

28 The plaintiff has seen Dr Eisman approximately once every three months since January 2001.

29 The plaintiff takes anti-inflammatory drugs (Mobic) on a daily basis. She also takes Nexium to counteract reflux problems she has had as a result of the anti-inflammatories. The plaintiff takes one Panadol a couple of times a week.

30 The plaintiff said that the pain in her right hand comes and goes, particularly if she is gripping anything or twisting her hand. She generally uses her left hand to drive a car.

31 When the plaintiff gets pain in her right hand it goes up her wrist to the elbow. She has pain in all four fingers and her thumb aches independently of the fingers. Her right hand is now not as strong as it once was and it often swells up in the area of the index, middle and ring fingers. She also gets swelling in the knuckles on that right hand. Her fingers lock when she eats. To unlock them, she has to wriggle and massage them.

32 The plaintiff lives in a home owned by one of her two children, who both live there with her. In this respect, the plaintiff has the use of a home computer in the sense that she says she can operate the computer a little bit for very short periods of time but she can only use two fingers and it is difficult to coordinate. The plaintiff said that she feels the heat from the mouse and if she uses the mouse for more than half an hour it is not possible for her to continue using the computer.

33 The plaintiff said she could not do work as a telephonist or receptionist because she would need to use her hands to press buttons and write and it was not possible for her to do these things continuously.

34 The plaintiff has not attempted to do work since May 2001, although she has been on several Work Cover programmes. She was pressed in cross-examination about whether she could work 25 hours a week and agreed that she could do this if she did not have to use her right hand at all. She denied being advised that she had psychological overlay.

35 The plaintiff said there would not be any job she could do without having to use her hands. The plaintiff agreed that she had no problems sitting down and talking. She agreed she was a good talker and that this had been an ingredient in her successful management of the motel with her ex-husband in the late seventies.

36 Whilst agreeing that sitting down was not a problem, the plaintiff reiterated that she could only use a computer spasmodically because her hand gets affected after half an hour's use. When asked if a job was found for her requiring only very occasional use of the mouse and the keyboard on the computer would she be able to do it she said she did not know. She agreed that she could wear a headset if she was a telephonist and that she could answer calls, but said that this job would not be suitable because she would not be able to hit buttons using her fingers or dial continually or make any handwritten records. She was unaware of arrangements for telephonists to use foot pedals to work phones. When she was told this was possible she agreed that this could alleviate the need for her to use her fingers to make a call.

37 The plaintiff was asked about whether she could work in a call centre if all she had to do was nothing more than answer the phone and talk to a person at the other end without having to use her hands. The plaintiff said she could do such a job if it existed. There was no evidence that such jobs exist. Commonsense dictates that the use of hands would be involved in such a job.

Policy Provisions 38 The whole of the policy is located at tab 26 of exhibit A.

39 The definition of Total and Permanent Disablement (relevantly) is as follows: " 'Totally and Permanently Disabled' in relation to an Insured Member means Part (a) Unable to Work When all of the following apply to the Insured Member: · an injury or sickness stops the Insured Member working in his or her usual occupation continuously throughout the TPD waiting period; · after considering all evidence satisfactory to the Insurer, the Insured Member has become incapacitated to such an extent as to render the Insured Member unable ever to engage in or work for reward in any business, occupation or regular duties for which he or she is reasonably qualified by education, training or experience."

40 The "TPD waiting period" referred to is six months and clause 12 of the Policy provides that: "If the appropriate premiums have been duly paid and if to the satisfaction of the Insurer it is established that in respect of an Insured Member the Insured Event has occurred … the relevant Sum Insured … shall become payable."

41 In this case, if the plaintiff had become totally and permanently disabled, then this would have been an "Insured Event" within the meaning of clause 12 of the Policy.

42 The parties agree that if the plaintiff is totally and permanently disabled she is entitled to recover benefits of $17,930.

History of the Claim 43 On 31 October 2003 the plaintiff's solicitors notified the Trustee of her intention to make a claim for TPD benefits. Correspondence followed in which the plaintiff was asked to provide information in support of her claim, including the provision of medical reports. Arrangements were then made for the plaintiff to attend medical examinations on behalf of the Insurer.

44 By letter dated 23 February 2007 (exhibit A, Tab 32, pg 16), the Insurer informed the Trustee: "Having considered all the available material we are of the opinion that the member is not Totally and Permanently Disabled under the terms and conditions of the policy. Accordingly the claim for Total and Permanent Incapacity is denied." 45 Attached to the letter was a document headed "Claims Summary - (the "Claims Summary") 23 February 2007". The Claims Summary commenced: "When considering the claim, all the evidence available (medical and non-medical) was considered and applied to the terms and conditions on the policy.

The following comments are AXA Australia's view of the evidence received. When considering the claim, the trustees should read all the available evidence in its entirety in conjunction with this summary." Some nine pages later the summary concluded:

"There is a long medical history with conflicting views and opinion about this lady's disability and capacity for work, however on the current medical and other evidence it is open to conclude that the member is capable of work (sic) which she is reasonably qualified by education, training or experience and that the member would not be prevented from engaging in that work for a comparable amount of hours as her previous role.

Having considered all the available material we are of the opinion that the member is not Totally and Permanently Disabled under the terms and conditions of the policy. Accordingly the claim for Total and Permanent Incapacity is denied."

46 On 8 March 2007 the Trustee considered the decision of the Insurer and resolved to request the Insurer to refer the claim back to the Insurer with a request that a specialist examination be arranged and opinion obtained as to what extent the plaintiff's sick role behaviour is affecting her ability to work. There is no further evidence about what has happened, as between the Trustee and the Insurer, since 8 March 2007.

47 The plaintiff's claim against the Insurer is pleaded in paragraphs 20-24 of the amended statement of claim filed in Court on 14 March 2007.

48 The written submissions made by the plaintiff's counsel, Mr Petrie, have been dated 15 March 2007 by me and placed with the papers in the Court file.

49 Essentially, counsel for the plaintiff relied on paragraphs 20, 21 and 23 on the amended statement of claim. He submitted that, in breach of a duty to act in good faith, the Insurer had not determined whether there was a realistic expectation of the plaintiff being able to find employment within the definition of "Totally and Permanently Disabled" and instead had addressed itself to the question of whether the plaintiff had a theoretical capacity to work.

50 More specifically, counsel for the plaintiff challenged the Insurers' decision on the grounds identified in paragraphs (a) - (f) of counsel's written submissions which I set out in an order more convenient to the Court: (i) The Insurer misconceived the question that it had to determine;

(ii) There was no explanation or reasoning about how the conclusion was reached;

(iii) The Insurer failed to form an opinion fairly and reasonably in considering the extent of the Plaintiff's disablement or her reasonable qualifications;

(iv) There was no statement as to what medical evidence the insurer had or had not accepted;

(v) The passages quoted from the medical reports did not include, in many instances, the doctor's opinion as to work capacity and other comments which were relevant to the Insurer's decision.

(vi) Therefore, the Insurer did not properly consider the medical evidence placed before it in that its conclusion is against the great weight of the medical evidence.

Insurer's Submissions 51 In his written submissions, counsel for the Insurer submitted that the claim for breach of contract in paragragh 23 of the amended statement of claim could not be maintained because the plaintiff was not a party to the Policy. He submitted that the plaintiff, not being a party to the Policy, cannot rely upon the provisions of s 13 of the Insurance Contracts Act 1984 (Cth). However, as the Court of Appeal made clear in Hannover Life Re Australasia Ltd v Sayseng (2005) NSW CA 214, in a policy of this sort, as a general rule, because the plaintiff's interests were indirectly but very strongly involved in the Insurer's decision, the plaintiff had an interest in compliance by the Insurer with its duty of good faith to the Trustee to proceed fairly to form its opinion. The High Court's decision in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 also affords a principled basis for attributing the duty of good faith to the Insurer in its dealings with the plaintiff.

52 In the context of the plaintiff's claim, in my opinion, following upon what the trial judge said in Sayseng's case and earlier what was stated by Mahoney JA in C E Heath Casualty & General Insurance v Grey (1993) 32 NSWLR 25 and by McLelland J in Edwards v The Hunter Valley Co-op Dairy Co Limited (1992) 7 ANZ Ins Cas 61-113, the principles relevant to testing the validity of the Insurer's decision are: a. The Insurer was under a duty of good faith and fair dealing which required it to have due regard for the interest of the plaintiff as well as the Trustee;

b. The Insurer was obliged to act reasonably in considering and determining what its opinion was. In doing so, the Insurer was not required to follow a specific procedure or act in the manner which the law requires of an administrative officer obliged to do natural justice to a person affected by the prospective decision;

c. If the view taken by the Insurer can be shown by the plaintiff to have been unreasonable on the material before the Insurer, the plaintiff can successfully attack the Insurer's decision;

d. If the attack is successful, it is a matter for the Court to determine on the evidence before it whether the plaintiff is totally and permanently disabled within the meaning of the Policy.

Whilst counsel for the Insurer did not address each of the above principles, he conceded that the Insurer's decision could be attacked if the Court decided that the Insurer's determination was not reasonably open to it on the evidence before it. If the attack was successful, counsel conceded that the Court could then make its own determination on the evidence before the Court.

53 Counsel for the Insurer submitted that the Insurer had formed a view as to the effect of conflicting medical evidence and determined that it was not satisfied that the plaintiff was totally and permanently disabled. He submitted that the Insurer had obtained relevant medical opinion, reviewed it and made its determination. In this respect the plaintiff had not clearly articulated what more the Insurer should have done; in Sayseng's case, for example, the trial judge determined that the insurer had failed to obtain the claimant's response to doctors reports and a video which were adverse to his case. That was not the case here.

54 Counsel for the Insurer submitted that the Claims Summary set out the correct TPD definition and it noted that there were conflicting views and opinions about the plaintiff's disability and capacity to work. It also noted that it was open for the Insurer to conclude that the plaintiff was capable of work which she was reasonably qualified by education, training and experience to do. As the plaintiff's ability to work was confirmed by medical experts specialising in vocational rehabilitation, corroborated by the absence of any organic basis for the plaintiff's pain in her hand, the Insurer's rejection of the plaintiff's claim could not be attacked.

Did The Insurer Act Reasonably in Considering and Making its Determination

55 This issue involves consideration of the submissions set out in paragraphs 49 & 50 above and the application of the principles set out in paragraph 52.

(i) The Insurer misconceived the question that it had to determine

56 In its letter dated 23 February 2007 to the Trustee, the Insurer stated that it must have regard to the TPD definition. It then set out the definition in the attached Claims Summary. In my opinion this sufficiently demonstrates that the Insurer did not misconceive the issue for determination.

(ii) There is no explanation or reasoning as to how the conclusion has been reached.

57 I have set out the Insurer's conclusion earlier in this judgment. Although expressed somewhat inelegantly, by using the words "it is open to conclude that" an objective reading of the paragraph under the heading "Conclusion" makes it tolerably clear that the Insurer determined that because the plaintiff was capable of work of which she was reasonably qualified by education, training or experience, and was not prevented from engaging in that work for an amount of hours comparable with her previous position, that she was therefore not totally and permanently disabled. Although this conclusion was supposedly reached on the basis of the statement that "all the evidence (medical and non-medical) was considered", the Claims Summary specifically identified the material in the medical reports which the Insurer relied on. The material included a substantial summary of Dr Potter's report of 1 December 2006 which took up nearly one and a half pages of the ten page Claims Summary. Dr Potter concluded that the plaintiff was fully fit for work and that there was no objective evidence of incapacity. Looked at in isolation and without reference to all the other material in the Claims Summary, Dr Potter's opinion obviously supports the Insurer's determination.

(iii) The Insurer failed to form an opinion fairly and reasonably in considering the extent of the Plaintiff's disablement or her reasonable qualifications.

58 This submission is linked with submissions (iv), (v) and (vi) set out in paragraph 50. In other words, the plaintiff submitted that the Insurer did not act reasonably in considering and determining what its opinion was about her being totally and permanently incapacitated because, in fact, the Insurer did not take into account the whole of the evidence and, more importantly, failed to take into account all of the critical medical evidence concerning the plaintiff's incapacity to the extent that it rendered her unable to engage in work as defined. It is therefore necessary to examine the complaints made by the plaintiff about the omissions in the Claims Summary of critical medical evidence.

59 Following the order of the reports set out in the Claims Summary, the omissions relied on by the plaintiff are: (a) Dr McKessar - Report of 28/2/02 There is no mention made of Dr McKessar's opinion that: "She is, on her present symptoms and signs, unfit for her previous work.

`I believe her prognosis is that this condition should settle in time; I cannot say exactly when. At the moment I believe she would only be fit for a supervisory role in an organisation such as a cleaning organisation and this would require her to be employed in a large cleaning organisation rather than her present limited apartment cleaning."

(b) Dr Nash - Report of 17/5/05: There is no mention made of Dr Nash's opinion thus: "She has difficulty co-ordinating her hands on the computer and she does not really know what type of work she could perform. She had been assessed by an occupational authority and has been told that it would be difficult to place her in employment. I agree with this assessment." (c) Dr Morse - Report of 7/6/04: The Claims Summary notes that, according to Dr Morse, the plaintiff's employment prospects are grim. However, his actual opinion was: "She is unable to work at her usual occupation because of her physical state. Given her physical symptoms in her hands she would find it difficult to do other work such as retail and keyboard etc. Employment prospects look grim …

The restriction on Ms Frith's capacity for work is because of her physical state. She would have problems with motivation and involvement because of her current depression but if she didn't have the physical problems she wouldn't be depressed."

(d) Dr Kwong - Report of 2/4/04: The Claims Summary notes that, according to Dr Kwong, the plaintiff was permanently unfit for her pre-injury duties as a housekeeper. But he also added: "She is not fit for any duty currently until there is improvement in her hand function and treatment for her reactive depression associated with her chronic pain problem."

There is no mention in the Claims Summary of Dr Kwong's report of 28 September 2006 in which he says: "Worker's Capacity for Employment In my opinion, she is not fit to work at her pre-injury duties as a cleaner or telephonist.

In my opinion, she is unlikely to ever engage in her regular occupation as a cleaner or as a telephonist and therefore fulfils the definition of AXA of totally and permanently disabled.

In my opinion, she has been incapacitated to the extent that rendered her unlikely ever to engage in, or to work in, any occupation or work for which she is reasonably qualified by education, training, or experience." (e) Dr Kendall - Report of 6/2/04: Although Dr Kendall said the plaintiff's work experience and "some TAFE courses" indicated she was not without resources, the Claims Summary omits the following from Dr Kendall's report: At page 5 "The doctor for the insurance company actually told her that even if she tried to return to an earlier phase as a telephonist/receptionist or worked as a sales assistant she would still have to use her hands and that probably would prove too much for her (sic). She has cast about for possible jobs such as serving on an enquiry desk, being a guide in historical houses or art institutions but such work is very hard to find. Even so, writing by hand or with a keyboard would be required for many such jobs." At page 8 "Currently she is almost unemployable." (f) Dr Eisman - Report 6/11/01: This report is not referred to. In it Dr Eisman concludes: "At this stage, I regard Ms Frith as quite unfit for any return to fast, repetitive work. She has even difficulty just doing very basic keyboard work. She certainly should not be doing any other heavy, physical work such as housekeeping and cleaning or driving a van etc." (g) Dr Eisman - Report of 17/3/05 This report is not referred to either. In it, Dr Eisman says: "At this time, the patient is unable to perform any kind of work. I do not expect that the patient will ever be able to return to her normal occupation. It is difficult to envisage what type of work Ms Frith will ever be able to do as she will continue to have pain in her hands for some considerable time to come. There will always be the risk that fast, repetitive work will aggravate or precipitate another attack of tenosynovitis." (h) Dr Herlihy - Report of 17/7/01: Again, the doctor's opinion about work capacity was omitted: "I spoke to treating doctor, Dr Mikhail, on 18/7/01. She said that the severity and persistence of Ms Frith's condition indicate that she should never return to her preinjury duties. Even if the condition does settle, the nature of her work is such that there will always be a high risk of recurrence. Dr Mikhail advised that Ms Frith should be retrained for work that does not require strenuous or repetitive use of the injured hand. Office duties would be suitable. Ms Frith is not presently fit even for office duties if those duties involved repetitive use of the right hand. Hopefully, the condition will improve in coming months but it is not possible to predict exactly when that will occur. Dr Mikhail could only certify Ms Frith fit for work that excludes use of the right hand at present.

I agree with Dr Mikhail's opinion." (i) Dr Reema Mina - Report of 14/7/06: Although the Insurer referred to Dr Mina's statement that the plaintiff was fit to undertake work which was not upper limb sensitive, it omitted the following:

"Her self reported tolerances are such that return to work in any capacity is unlikely, especially given the length of time that she has been out of the work force." (j) Dr Schiff - Report of 22/10/03: The whole of her opinion as to capacity for work is not quoted. The relevant passage at Page 6 is: "The opportunity for redeployment for work in the ideal situation would be such that the claimant is capable of working her pre-injury hours but the nature of the position would be extremely restricted to minimal hand work. Should such a position be available, claimant could be redeployed. However, realistically this would be a difficult position to find."

(k) Dr Mastroianni - Report of 18/8/01: Emphasis was placed on the doctor's prognosis of full recovery with no mention of the following: "Fitness: she continued working for a number of months with the problem and then a further period on selected duties. She hasn't worked for the last couple of months and there has been some improvement in her hand symptoms. She is fit for left handed work only."

60 Anne Newell was the Group Claims Assessor who prepared the Claims Summary. Ms Newell did not give evidence. That being so, the appropriate inference to draw is that Ms Newell either ignored the material which was omitted from her summary or regarded it as unimportant because she did not properly comment on it. In my opinion, the assessor was wrong to do so because this evidence was critical to the Insurer's determination, especially whether the plaintiff was incapacitated to the extent that she was unable ever to engage in or work for reward in any business, occupation or regular duties for which she was reasonably qualified by her education, training or experience. The evidence of Dr McKessar, Dr Nash, Dr Morse, Dr Kwong, Dr Kendall, Dr Eisman, Dr Herlihy, Dr Mina and Dr Schiff on this issue was highly relevant and of great importance because a great deal of that evidence supports a determination opposite to the determination made by the Insurer. In the circumstances, it was manifestly unreasonable of the Insurer not to have properly considered all of this evidence.

61 It follows that the Insurer did not act reasonably in considering and making its determination. By reason of its failure to do so, the Insurer's determination is vitiated and it is necessary for the Court to make its own determination.

62 I had a good opportunity to observe the plaintiff because she was in the witness box for a while. The plaintiff was a difficult witness in the sense that she did not answer questions in a straightforward way and was inclined to be discursive. In some instances, the plaintiff reacted angrily to the questions posed of her in cross-examination. This was because, in my assessment, the plaintiff is an angry person. Her anger, however, is caused by her disabilities. This is not an unreasonable reaction.

63 In my assessment, the plaintiff was not deliberately avoiding answering the questions that were being put to her. I consider she reacted the way she did in the witness box because she felt that she had to convince the cross-examiner about her state of health.

64 Taking these matters into account, I am satisfied that the plaintiff was an honest witness and I believe her. Most importantly, I do not think the plaintiff was exaggerating at all about the symptoms that she has experienced and I completely accept her evidence that she has suffered from the various problems about which she gave evidence. I am also totally satisfied that the plaintiff is unable to do the things she said she could not do and that her life and daily activities have been restricted in the manner about which she gave evidence.

65 Exhibit A is the only exhibit in the proceedings and it consists of two volumes of documents.

66 When exhibit A was tendered I informed counsel for both parties that apart from the oral evidence, the case would be decided on the basis of the specific documents to which each of them took the Court. The Court cannot be expected to trawl through two volumes of documents if no reference has been made to many of the documents in exhibit A and no submissions have been made about those specific documents.

67 Counsel for the plaintiff identified the medical evidence he relied on as being all of the reports specifically identified in the Claims Summary, with the exception of Dr Bodell. He pointed out that not all of Dr Bodell's report was in evidence. Counsel for the defendants agreed with him and so I will ignore Dr Bodell's report dated 21 February 2005.

68 Counsel for the Insurer also referred the Court to Dr Humphry's x-ray report dated 19 January 2001 in which he stated that the area identified would be consistent with an enchondroma. Counsel submitted that this was not symptomatic of any pain.

69 Counsel for the Insurer also referred the Court to Dr Broderick's bone scan dated 1 February 2001, in which he recorded that there was no hyperaemia suggestive of tendonitis and he had the impression that there was an enchondroma of the proximal phalanx of the right index finger and some mile arthritic changes.

70 Counsel for the Insurer also referred the Court to Dr Adler's report of 1 February 2001, noting that the ultrasound of the plaintiff's right hand did not disclose evidence of tenosynovitis.

71 As none of the medical practitioners gave evidence, the evidence of the plaintiff's treating rheumatologist, Dr Eisman, is therefore very important because he has been treating the plaintiff regularly since January 2001.

72 In his first report of 29 March 2001, Dr Eisman recorded that the plaintiff had pain and tenderness in the right, second and third MCP joints on the flexor aspect and recorded that he had commenced her on Vioxx and Voltaren Gel.

73 In his next report of 30 July 2001, Dr Eisman recorded that the plaintiff still had pain and tenderness in the flexor aspect of her right second, third and now fourth MCP joints consistent with tenosynovitis and was of the opinion that the plaintiff was not then fit to return to work.

74 In his report of 6 November 2001, Dr Eisman recorded that the plaintiff had pain in both hands along the flexor aspect of the second and third MCP joints, particularly with triggering in those sites as well as tenderness. He recorded the plaintiff's complaints about fatigue and wondered if she was developing depression. He repeated that he regarded her as quite unfit for any return to fast, repetitive work and should not be doing any other heavy physical work, such as housekeeping and cleaning, or driving a van.

75 In Dr Eisman's report of 15 May 2002 he recorded that the plaintiff still had a lot of difficulty with any activity involving her hands, that she had very little strength in her hands and in his opinion, she had tenosynovitis. Dr Eisman said the plaintiff remained quite unfit for any type of manual work or doing prolonged computer work.

76 In his report of 17 March 2005, Dr Eisman reiterated that during the time he had been treating the plaintiff she had continued to have pain in her right hand, that when he last reviewed her on 28 February 2005 she had swelling and tenderness in the left second MCP joint on the flexor aspect, mild tenderness in both wrists and pain and tenderness in the right hand MCP joints as well. He was of the opinion that the plaintiff continued to have ongoing pain from tenosynovitis in her hand and that this had been precipitated by her work. Her symptoms had not eased much since January 2001 and she was still unable to perform any kind of work. He did not expect the plaintiff would ever be able to return to her normal occupation and he said it would be difficult to envisage what type of work she would ever be able to do because the plaintiff would continue to have pain in her hands for some considerable time to come.

77 In his last report of 13 October 2006, Dr Eisman recorded the plaintiff had continuing pain in her hands, tenderness over the MCP joints and both wrists and said she suffered from occupational overuse syndrome. Her disability was of sufficient intensity that she was unable to perform any work duties. It would be impossible to predict if she would be able to return to work in either a part or full time capacity.

78 With regard to the submissions made on behalf of the Insurer concerning the bone scan, x-ray and ultrasound, Dr Eisman has referred to these in his reports and he obviously took them into account in expressing the opinions referred to.

79 Dr McKessar saw the plaintiff on 27 February 2002 for the purpose of a medico-legal opinion provided on 28 February 2002.

80 The history the plaintiff gave Dr McKessar is consistent with her evidence to the Court. Dr McKessar accepted that the plaintiff's symptoms were genuine and that they were consistent with signs of a form of tenosynovitis. He thought at that stage it was likely to settle. He agreed that her problem had been caused by the nature of her work. He also said the plaintiff was unfit for her previous work. Once fit, he expected that she would only be fit for a supervisory role in a cleaning organisation or possibly light clerical duties such as receptionist work.

81 Dr Stenning, a specialist in musculo skeletal medicine, provided a report on 1 June 2001 in which he said the plaintiff had suffered over a period of time repetitive strain injury to her hand and had osteoarthritis and tenosynovitis. Her injury was permanent. The history given to Dr Stenning was consistent with the plaintiff's evidence to the Court.

82 Dr Mastroianni provided a report dated 17 August 2001 to the workers compensation Insurer. His opinion was that the plaintiff's condition in her right wrist and hand was due to chronic strain and local trauma to the soft tissues of the hand and that this had been caused by her work. Although Dr Mastroianni prognosticated a completed recovery, he said it may take some time and there was no further report from Dr Mastroianni to which the Court was taken. As events have transpired, I am satisfied that the plaintiff's condition has simply not improved.

83 Dr Horsley is a specialist in occupational health rehabilitation and counselling and in her report of 27 March 2002 the history the plaintiff gave Dr Horsley is consistent with the evidence, the history given to other doctors and more importantly, to the Court. Dr Horsley considered that the plaintiff's symptoms would most likely persist and that her work had caused the problems.

84 Dr Barbara Schiff is an injury management consultant whose report is dated 30 October 2003. Again, the symptoms reported by the plaintiff to the doctor are consistent with her evidence to the Court and the diagnosis does not differ much from the other doctors. It includes tenosynovitis, arthralgia of the hands, enchondroma of the right index finger and right carpal tunnel sensitivity.

85 Although Dr Schiff thought the plaintiff could be re-deployed in her work, she did not specify how and said that the plaintiff would be extremely restricted to minimal hand work in such a position. She conceded that realistically it would be very difficult to find a position for the plaintiff.

86 Dr Herlihy saw the plaintiff at the behest of the Workers Compensation Insurer on 17 July 2001 and agreed with the general practitioner's assessment that the plaintiff was only fit for work that excluded use of her right hand. Dr Herlihy accepted that the plaintiff's complaints were genuine.

87 A consultant psychiatrist, Adrienne Margarian, considered the plaintiff ought be given the opportunity to develop coping strategies for depression.

88 Dr Mahoney is an orthopaedic surgeon whose reports are dated 23 December 2003 and 13 May 2005. The complaints he recorded are consistent with the plaintiff's evidence and Dr Mahoney considered her symptoms were referrable to tenosynovitis of the flexor tendons to the index and middle ring fingers of both hands and he considered her permanently unfit for her previous work. He thought she might be able to be retrained in another area not involving significant use of the upper limbs.

89 Dr Kwong is a rheumatologist whose report of 2 April 2004 contains a diagnosis of tenosynovitis and chronic pain in both wrists and hands and a conclusion that the plaintiff was permanently unfit for previous duties and had reached maximum medical improvement. As well as not being fit for her pre-injury duties as a housekeeper, in Dr Kwang's opinion, the plaintiff was not fit for any duty until there was an improvement in her hand function and she was treated for depression and chronic pain.

90 When seen by the psychiatrist, Dr Morse, he said in his report of 7 June 2004 that the plaintiff was suffering from adjustment disorder with depressed mood. He accepted that the plaintiff was unable to work at her usual occupation and that it would be difficult to do other work of a retail nature or using keyboards and her employment prospects were grim. He expected the plaintiff would most likely suffer severe depression in the future and there would be ongoing problems with employment.

91 Dr Kendall, in his report of 6 February 2004, accepted that the plaintiff suffered from tenosynovitis as a result of her work and that she had developed a reactive depression. As mentioned earlier, although Dr Kendall commented that the plaintiff was not without resources, he was of the opinion that the plaintiff was almost unemployable.

92 Dr Fernside is a neurological surgeon who provided a report to the plaintiff's solicitors dated 30 January 2004. The full report is not contained in exhibit A, but in any event, in the Claims Summary, the material therein demonstrates that the plaintiff is significantly disabled. The report of 2 May 2005 was also not in exhibit A, but again, the Claims Summary supports the plaintiff's claim.

93 Although Dr Meena, the injury management consultant whose report of 12 July 2006 is referred to in the Claims Summary, stated that the plaintiff was fit to undertake work which was not upper limb intensive, the comment was not addressed to the plaintiff's ability to do work in respect of which she was reasonably qualified by education, training or experience.

94 The Insurer sent the plaintiff to a psychiatrist, Dr Lee, who, in his report of 15 November 2006, considered the plaintiff evidenced abnormal illness behaviour and believed that the plaintiff was capable of work.

95 I reject Dr Lee's opinion because it is inconsistent with the evidence of the other doctors and my own assessment of the plaintiff as a truthful person who has in fact suffered the pain about which she gave evidence.

96 As I said earlier, the Insurer has placed a lot of emphasis on Dr Potter's report of 1 December 2006. Dr Potter, in fact, said the plaintiff had constant pain in both arms, right worse than left, of such degree that she could do little recreational tasks, had no job capacity and her domestic responsibilities were significantly lessened. Although he was of the opinion that the plaintiff had abnormal illness behaviour, Dr Potter is out of step with all of the other doctors and with the Court because the Court accepts the plaintiff's complaints. I therefore do not accept Dr Potter's opinion that the plaintiff was fully fit for work. This is totally against the evidence of all of the other doctors. Overwhelmingly, the plaintiff is clearly unfit for work and I am comfortably satisfied she will be unable ever to engage in or work for reward as a cleaner or housekeeper.

Conclusion 97 I am comfortably satisfied that the plaintiff is totally and permanently disabled because the tenosynovitis to her right hand prevented her from working as a cleaner continuously throughout the TPD waiting period.

98 I am further comfortably satisfied, on the basis of all of the evidence to which I have referred, that the plaintiff is incapacitated to such an extent as to render her unable to ever engage in work as a housekeeper or cleaner.

99 I am further comfortably satisfied that the plaintiff would not be able to work as a receptionist or telephonist because this would involve the use of her hands and quite possibly a keyboard and so on and she cannot do a task work wise that involves the use of her hands. I am satisfied that the plaintiff could not do any computer work in a job because of her evidence about how this affects her and I accept that. The questions the plaintiff was asked about answering the phone in call centres were about theoretical positions, in respect of which there was no evidence before the Court.

100 In terms of the plaintiff working as a supervisor in some way or another in the cleaning industry, she is not qualified to do so because there is no evidence that she has been trained to act in this way. Her experience as a cleaner is, in my opinion, insufficient to qualify her as a supervisor. Commonsense dictates that in this day and age, people who work as supervisors need to be trained. There is no obligation on the plaintiff to establish that she cannot do a job that she might be re-trained to do. The TPD definition is satisfied if the plaintiff is unable to engage in work in a business occupation or duty for which she is reasonably qualified by reference to her existing education, training and experience and I am satisfied on all of the evidence that there is nothing the plaintiff could do work wise with reference to her existing education, training or experience.

101 The plaintiff is therefore entitled to receive TPD benefits in the amount of $17,930.00.

102 I will adjourn the matter for a period so that the plaintiff can bring in Short Minutes of Order to reflect the Court's determination. In this respect, the Insurer submitted that interest is payable under the Insurance Contracts Act 1984 (Cth) as opposed to the District Court Act 1973. Approaching the matter on this basis, the Insurer submits that the entitlement to interest accrues from the date on which the TPD benefits ought to have been paid. In that respect, the defendants submit that the plaintiff's solicitors delayed providing information to the Trustee and the Insurer, that it was reasonable for them to have the plaintiff examined in late 2006 and the monies ought not to have been paid prior to the hearing in any event.

103 As counsel for the Insurer demonstrates in paragraphs 9-26 of his written submissions, it was not until 23 January 2006 that the plaintiff's solicitor provided the medical report from the plaintiff's treating rheumatologist, Dr Eisman. It was not until 14 April 2006 that the Trustee forwarded all relevant material to the Insurer for its consideration. Arrangements were then made for the plaintiff to be examined by medico-legal specialists. The Insurer did not make its determination until 23 February 2007.

104 The award of interest is discretionary. In my opinion, in this case, the plaintiff is not entitled to recover interest until such point as the evidence discloses that the Insurer was provided by the plaintiff with all relevant information to make a determination. Accordingly, the plaintiff is entitled to recover interest on the amount of $17,930.00 from 14 April 2006 to date.

105 The defendants have indicated they wish to be heard on the question of costs. There is a hint in their submissions about seeking special orders. In the circumstances of this case it would be preferable for the parties to agree on the costs orders, especially having regard to the relatively small amount payable to the plaintiff. I suggest that the solicitors for the parties meet in person within the next week for this purpose. The suggestion is also made because the parties ought be mindful of the fact that the Insurer rejected the plaintiff's claim when the evidence in her favour was overwhelming; on the other hand, they should not overlook the fact that, during the hearing, the plaintiff abandoned her claim that the Trustee had breached any duty which it owed the plaintiff.

106 I grant liberty to apply on 48 hours notice. This should be exercised if agreement on costs is reached.

107 If the parties are unable to agree on costs, then I make the following directions: 1. Plaintiff to provide written submissions to my associate by email or fax on or before 13 April 2007 and to serve same on the defendants by that date. The submissions should have attached to them the plaintiff's proposed Short Minutes of Order.

Defendants to provide their submissions by email or fax to my associate and to serve same on the plaintiff by 20 April 2007.

Any submissions in reply by the plaintiff to be emailed or faxed to my associate and served on the defendants by 27 April 2007.

I propose to deal with the question of costs on the papers, but if either party wishes to be heard, then I will fix a time and date for counsel to speak to the written submissions.

I direct that the exhibits be retained in the registry until 31 May 2007, unless the parties agree otherwise.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION: Maria Susie Frith v Host-Plus Pty Ltd [2007] NSWDC 39

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Judgment (129 paragraphs)

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