Baida Select Poultry Pty Ltd v Vucic

[1999] NSWCA 253

CITATION:	Baida Select Poultry Pty Ltd v Vucic [1999] NSWCA 253 revised - 27/07/99
FILE NUMBER(S):	CA 40274/98
HEARING DATE(S):	5 July 1999
JUDGMENT DATE:	22 July 1999
PARTIES :	Baida Select Poultry Pty Limited v Marijan Filip Vucic
JUDGMENT OF:	Beazley JA at 1; Giles JA at 2; Davies AJA at 3

LOWER COURT JURISDICTION:	Compensation Court
LOWER COURT FILE NUMBER(S) :	CC 8291/97
LOWER COURT JUDICIAL OFFICER:	Walker CCJ

COUNSEL:	Appellant - J. Poulos QC Respondent - L.M. Morris QC, S. Swinton
SOLICITORS:	Appellant - Hickson Wisewoulds Respondent - Dennis & Co
CATCHWORDS:	Workers compensation - opposing medical views - no error of law
ACTS CITED:	Compensation Court Act 1984 (NSW) s 32
CASES CITED:	Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538 Kayell Pty Ltd v Fahey (1995) 11 NSWCCR 442 Manning Valley Senior Citizens Homes Ltd v Cleveland (Unreported, CA, 29/8/95)
DECISION:	Dismissed with costs

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40274/98
WCC 8291/97

BEAZLEY JA
GILES JA
DAVIES AJA

Thursday, 22 July 1999

BAIADA SELECT POULTRY PTY LTD v VUCIC
WORKERS COMPENSATION - appeal under s 32 of the Compensation Court Act 1984 (NSW) - employee unable to perform work because of problems with hand and post traumatic stress disorder - opposing medical views - Held : trial judge correct in taking into account the sequence and nature of events, the time that had passed and the condition of the worker as he saw him - no error of law.
Compensation Court Act 1984 (NSW), s 32.
Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538
Kayell Pty Ltd v Fahey (1995) 11 NSWCCR 442
Manning Valley Senior Citizens Homes Ltd v Cleveland (Unreported, Court of Appeal, Mahoney, Clarke and Meagher JJA, 29/8/95)

ORDERS
Appeal dismissed with costs.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40274/98
WCC 8291/97

BEAZLEY JA
GILES JA
DAVIES AJA

Thursday, 22 July 1999

BAIADA SELECT POULTRY PTY LTD v VUCIC


JUDGMENT

1 BEAZLEY JA: I agree with Davies AJA. 2 GILES JA: I agree with Davies AJA. 3 DAVIES AJA: This is an appeal from an award of compensation made by Walker CCJ, a judge of the Compensation Court of New South Wales, on 9 February 1998. Under s 32 of the Compensation Court Act 1984 (NSW), the appeal lies only on a point of law or a question as to the admission or rejection of evidence. 4 The worker, Marijan Vucic, commenced employment on 18 March 1994 having left school at the end of the previous year. On 20 April 1994 when operating a mincer, his right hand was caught up to the knuckle and could not be removed. His hand was trapped in the machine for three hours during which time he was subjected to great pain. An angle grinder was eventually used to cut his hand from the mincer. He was given morphine at the scene and taken to Westmead Hospital. 5 After release from hospital, Mr Vucic saw Dr Chan and Dr Law. He was off work for two weeks and then resumed on light duties. Subsequently, he was put back to work on the mincer but he was scared of that. He was transferred to the filleting section and was later given a job hanging chickens. During all this time he was having trouble with his hand which was swollen and painful. Mr Vucic had problems with the cold and with the fast, repetitive work involved in the hanging of chickens. He asked his supervisor for lighter work. The supervisor declined to give it to him and he walked out of the job. Thereafter, apart from a two months welding job from which he was dismissed and a six months job in clerical and sales, undertaken under an employment scheme, Mr Vucic was unemployed. As time went by Mr Vucic’s condition deteriorated. 6 There was medical evidence from a Dr Mathew Giblin, an orthopaedic surgeon who had seen Mr Vucic on a number of occasions commencing in late 1995. He had arranged for a bone scan which showed some decrease in uptake in the distal end of the right third metacarpal bone suggestive of a fracture. Dr Gilbin’s view was that Mr Vucic had suffered a soft tissue injury to his hand consequent upon the accident and he estimated that there was an 8% loss of the efficient use of his right arm at or above the elbow. 7 Dr C. H. Greenway, a psychiatrist who saw Mr Vucic on 30 May 1996 and again on 9 July 1996, reported that, in his view, Mr Vucic showed some features of a post traumatic stress disorder. He was concerned that the manner in which Mr Vucic constantly held his right hand in a particular position would cause long term disability. He feared that Mr Vucic would become a chronic invalid if there was not rehabilitative intervention. 8 The doctors called for the respondent put a different view. Dr Barry Cant, a neurologist, said that, while he did not exclude that there was damage causing pain, he did not accept that it was probable because he could find no objective signs. Dr A.S. Prakash, an orthopaedic specialist, was of the opinion that Mr Vukic had sustained soft tissue injuries to the fingers and dorsum of his right hand but he could detect no abnormalities in his examination or in the bone scan. He considered there was no permanent loss of the use of the limb. 9 Dr Yolande Lucire, a forensic psychiatrist, reported that Mr Vucic had a personality disorder of some magnitude with narcissistic, obsessive compulsive and passive aggressive traits which was fertile ground for a genuine or faked somatoform disorder in the hand which had been sensitised by the fact that it was caught in the mincer. She concluded that Mr Vucic’s problems were attitudinal not organic and that he would recover once his claim was resolved. Dr Lucire tended to the view that Mr Vucic was a malingerer. She said that, “I tended to think that he was making a lot of it up.” 10    The learned trial judge heard evidence from Mr Vucic and formed a favourable view of him, as he was entitled to do. On the whole of the evidence the trial judge summarised Mr Vucic’s condition as follows:

“ Taking a common sense approach to the medical evidence I determine on the balance of probabilities that the applicant suffered a very painful deep soft tissue injury to his right hand that has yet to recover fully. I further find that as a result of the injury he also developed post traumatic stress disorder.
This disorder caused him to somatise his feelings resulting in symptoms of continued pain, swelling, discolouration, nightmares, lack of concentration and depression.
.....
There is no doubt that Mr Vucic has become very dysfunctional holding his hand to his breast, suffering nightmares distancing himself from people, experiencing swelling and discolouration and as Dr Cant describes suffering a global weakness of the right hand. His condition is debilitating and Dr Greenway had grave fears that these somatic effects would produce chronic invalidity. ”

11    The findings of the trial judge were based on the evidence before him, particularly on the medical evidence of Drs Giblin and Greenway and on the pattern of events. The trial judge concluded that, as a result of a most unpleasant accident, in which he suffered some physical injury, Mr Vucic developed a debilitating psychosomatic condition which limited his capacity to obtain employment. Whilst the opposite contention, that Mr Vucic was a malingerer, was one which would have been open to the trial judge, it is not surprising that the trial judge found that, as a result of his stress and anxiety resulting from the accident, Mr Vucic had somatised his condition and his ability to work was affected by the pain and symptoms which he experienced. 12    Another relevant fact was that, in April 1997, Mr Vucic was diagnosed as suffering from schizophrenia. He was given treatment and, by the time of the trial, his condition was very much improved. In the proceedings, it was not alleged on behalf of Mr Vucic that his schizophrenia had resulted from the accident and it was not alleged on behalf of the employer that Mr Vucic’s condition, the subject of the proceedings, had been brought about by the schizophrenic condition. 13    In his reasons for judgment, the trial judge observed that DSM IV, which is applied by psychiatrists in the New South Wales Mental Health System, requires that no diagnosis of schizophrenia be made until the symptoms have been present for at least six months. He concluded that it was possible that, when Dr Lucire saw Mr Vucic five months previous to the diagnosis, the presence of the more florid of some of the symptoms of schizophrenia, such as thought disorder and delusional thinking, may then have been present. He referred to Dr Lucire’s reference to “grandiose, narcissistic, obsessive compulsive and passive aggressive behaviour” and concluded that “Common sense suggests that what Dr Lucire was noticing was the early symptoms of the schizophrenic illness asserting themselves”. 14    It is submitted on behalf of the appellant that the trial judge ought not to have discounted Dr Lucire’s evidence when there was no evidence directed to DSM IV which supported this finding. It is not said, however, that the trial judge was incorrect in his description of the relevant psychiatric standard, which is a standard to which Dr Greenway referred in his report. 15    In my opinion, the relationship of the dates are so close that it was open to the trial judge to conclude that some of the elements of the subsequently diagnosed schizophrenic condition were presenting themselves when Dr Lucire interviewed Mr Vucic. In any event, the important point is that it was open to the trial judge to conclude that Mr Vucic’s mental condition was unlikely to have been that of a malingerer, that it was more likely that Mr Vucic suffered an entrenched psychosomatic condition and that his full recovery after the claim had been determined was improbable. The trial judge’s preference for the evidence of Dr Greenway over that of Dr Lucire was open to him and his findings were supported by the facts which had occurred. 16    It is submitted that his Honour failed to give sufficient reasons for his findings in relation to Mr Vucic’s capacity for work. In this respect, reference was made to the work undertaken by Mr Vucic by way of post injury employment. However, his Honour made it clear that he considered that the condition which limited Mr Vucic’s capacity to obtain work was principally a somatised rather than an organic condition. Therefore, it was not of great significance that Mr Vucic had worked in one employment for two months before being dismissed and in another employment for six months under government subsidy. It was not his underlying physical condition which prevented him from working. 17    The trial Judge held that:

“ The reality is that Mr Vucic is dysfunctional because he is feeling pain. Some of that pain may well be caused by deep tissue damage. However I have found that as well as pain that travels along neural pathways to produce symptomatology and consequently losses of efficiency that can be assessed by Dr Giblin according to the AMA’s guidelines he also has a stress disorder.
Mr Vucic’s work related condition includes neurotic displacement of his emotional conflicts into his body in a way that produces the physiological symptom of global pain in his hand. ”

18    It was submitted that these findings were findings of a medical nature which were not supported by medical evidence. However, Dr Greenway had said that Mr Vucic “certainly does have some features of a post traumatic stress disorder”. Dr Cant reported that “the complaints he [Mr Vucic] now has cannot be attributed to any type of organic pathology”. And Dr Lucire referred to a “genuine or faked somatoform disorder in the hand”. Accepting that Mr Vucic was genuine in his complaints, which the trial Judge was entitled to do, it follows that his Honour’s conclusion that Mr Vucic suffered from a psychosomatic condition whereby his hand continued to give him pain and other symptoms was well based on the medical evidence. 19    It should also be observed that a judge is rarely limited to the opinions of the medical practitioners. A judge will have other material available, including the evidence of witnesses and the sequence and nature of the events which have occurred, which the judge must take into account. See Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538 at 563; Kayell Pty Ltd v Fahey (1995) 11 NSWCCR 442; Manning Valley Senior Citizens Homes Ltd v Cleveland (unreported, Court of Appeal, Mahoney, Clarke and Meagher JJA, 29 August 1995). 20    It was finally submitted that the trial judge was in error in assessing Mr Vucic’s permanent loss of use of his upper limb at 25% rather than the 8% estimated by Dr Giblin. However, Dr Giblin was an orthopaedic surgeon and had made an orthopaedic assessment. The trial judge was correct in taking into account the time that had passed and the condition of Mr Vucic as he saw him. I see no error of law in his conclusion that, in the light of the functional element, the permanent loss was 25%. As Priestley JA said in Kayell Pty Ltd v Fahey at 444, s 66 requires that there be a factual assessment of the efficient use of the injured limb. 21 I need not discuss other submissions that were made. The trial judge expressed clear and well based reasons for his findings. No error of law has been demonstrated. For these reasons the appeal should be dismissed with costs.

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