Bairami v Susan Day Cakes Pty Ltd
[2010] VCC 513
•27 May 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-08-03422
| JULIE BAIRAMI | Plaintiff |
| v | |
| SUSAN DAY CAKES PTY LTD | First Defendant |
| And | |
| VICTORIA WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HER HONOUR JUDGE LAWSON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 11-12 March 2010, 13 April 2010 |
| DATE OF JUDGMENT: | 27 May 2010 |
| CASE MAY BE CITED AS: | Bairami v Susan Day Cakes Pty Ltd & Anor. |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0513 |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation - Serious Injury – leave application – claimed injury under both physical and psychiatric heads - pain and suffering and loss of earning consequences – leave granted in relation to psychiatric consequences.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S.R. McCredie | Ryan Carlisle Thomas |
| with Mr J. Valiotis | ||
| For the Defendants | Mr P.D. Elliot QC | Minter Ellison |
| with Ms M.B. Bylhower | ||
| HER HONOUR: |
1 Julie Bairami makes this application seeking leave to bring proceedings pursuant to s.134AB of the Accident Compensation Act (the Act).
2 Ms Bairami worked at Susan Day Cakes Pty Ltd (Susan Day) for seven years. Susan Day is engaged in the manufacture of cakes in a large modern factory located at Hallam. Ms Bairami was a team leader who was on permanent afternoon shift. She carried out manual tasks as part of her duties as well as supervisory tasks and on occasion trouble shooting duties. On 12 October 2005 whilst undertaking troubleshooting duties she suffered a crush type injury to her right wrist. Prior to injury she enjoyed good health and her right wrist was normal. She is right hand dominant.
3 Ms Bairami relies upon both paragraph (a) and paragraph (c) of the definition of ‘serious injury’ contained in s 134AB(37) of the Act. Those paragraphs of the definition are in the following terms:
serious injury means –
(a) permanent serious impairment or loss of body function; or … (c) permanent severe mental or permanent severe behavioural disturbance or disorder; or
4 The claimed loss of body function is the right upper limb.
5 Leave is sought for both pain and suffering and loss of earning capacity consequences.
6 It is not in dispute that Ms Bairami suffered a compensable right wrist injury during the course of her employment on 12 October 2005. What needs to be determined is the nature and effect of that injury and whether the physical and/or the psychiatric consequences constitute a serious injury within the meaning of the Act.
7 The Court of Appeal has made it clear in Barwon Spinners Pty Ltd & Ors v Podolak & Ors [1] that the correct template is firstly, to determine whether the plaintiff suffered compensable injury on or after the 20 October 1999; secondly, determine the nature of that injury and its consequences and finally, to confirm whether the consequences of that injury meet the statutory definition of serious injury.
[1] [2005] VSCA 33
8 I note that section 134AB(38)(d) requires the making of a comparison and a judgement that the consequences of mental or behavioural disturbance or disorder could be fairly described as being more than serious to the extent of being severe. The statutory test to be satisfied in psychiatric claims is, accordingly, greater than the test for physical injury.
The parties’ submissions
9 In his opening, Mr McCredie on behalf of the plaintiff, submitted the Court could find ‘serious injury’ under sub-paragraph (a) based on the soft tissue injury to the right wrist injury itself and/or Chronic Pain Syndrome as a physical manifestation of the right wrist injury. He also relied on sub- paragraph (c) on the basis, that if there is no longer an injury of any substance to the right wrist that causes pain, then Ms Bairami’s abnormal illness behaviour is a hysterical conversion disorder and should be treated as a ‘serious injury’ for the purposes of the Act under sub-paragraph (c).
10 During final submissions Mr McCredie, limited the application for the physical injury to Chronic Pain Syndrome as a physical manifestation of the right wrist injury. He sensibly conceded that the soft tissue injury of itself would not qualify for serious injury. He relied on the further alternative that the psychiatric injury itself constituted a serious injury within the meaning of the Act.
11 Mr Elliot QC, on behalf of the defendants, submitted that the plaintiff’s application ought to fail. From a physical point of view, he relied on the evidence of Mr John Crock, the treating hand surgeon. He submitted that the Court ought to find that the plaintiff’s right wrist problem is an injury to the ligaments to the wrist that is essentially a mild degenerative condition. On the balance of the medical evidence the condition itself cannot explain or support the diffuse complaints of the plaintiff in relation to various parts of her body and does not of itself amount to a serious injury.
12 He further submitted that the Court ought not to accept that the plaintiff is suffering from Complex Regional Pain Syndrome. The weight of the medical evidence is that there are no symptoms and signs of Complex Regional Pain Syndrome evident on the plaintiff’s clinical presentation. He submitted that the plaintiff’s specialist, Dr Peter Blombery is very much out of kilter with his diagnosis having regard to the evidence of Mr Crock and the other experts the defendants rely upon.
13 Finally, he submitted that if the Court is satisfied that there is some kind of Complex Regional Pain Syndrome based on the findings of Mr Littlejohn and Dr Blombery it is of a mild nature and the extent of it and the symptoms and effects do not make this impairment to the plaintiff a serious injury.
14 Insofar as the claimed psychiatric disorder is concerned he submitted that the plaintiff cannot satisfy the test as enunciated in the Act and decided cases. He submitted that the plaintiff’s condition is best categorised as a mild adjustment disorder otherwise described as functional overlay with injury focussed pain behaviour or abnormal illness behaviour and the plaintiff’s condition falls short of a permanent severe mental or permanent severe behavioural disturbance or disorder.
15 He referred to the paucity of treatment with the exception of the treatment by the treating psychologist, Mr Young. Further, the plaintiff takes only an occasional Valium and refuses to take anti-depressant medication and has not sought any psychiatric treatment as such and therefore the treatment falls short of demonstrating that the plaintiff’s psychiatric condition falls within the severe category.
The evidence
16 Ms Bairami and Mr John Crock her treating hand surgeon gave vive voce evidence and were cross-examined and re-examined. The balance of evidence was tendered by counsel in documentary form in accordance with the attached schedule. The application was supported by affidavits sworn by Ms Bairami on 4 March 2008 and 15 May 2009 and copies of numerous medical reports from treating and medico-legal specialists, a vocational report and radiology reports. The defendants relied on various medico-legal reports and a labour market analysis report.
Findings on credit
17 Mr Elliott submitted that there were inconsistencies in Ms Bairami’s evidence concerning when she ceased taking anti depressant medication and referrals to Dr Mahalingham, a psychiatrist who had previously treated her following the death of her child.
18 Ms Bairami’s evidence was that she had stopped seeing her psychiatrist in about Christmas 2002 and that she had stopped taking antidepressants at around that time.
19 The extract of her treating general practitioner’s clinical records show entries in January 2004, February 2005 and January 2007 that detail attendances where it is recorded that the plaintiff suffered anxiety and she was referred back to Dr Mahalingham for further review. The plaintiff could not recall those attendances. Further the doctor records show that she was taking Serzone anti depressant in January 2003, April 2004 and December 2003 Valium in November 2004.
20 Given the passage of time and the extensive nature of the treatment that she has had for the compensable injury I accept her evidence that she could not remember those attendances or the precise dates of when she ceased taking the antidepressant medication.
21 Ms Bairami impressed me as being genuine and essentially I regard her evidence as being honest, reliable and credible. I accept that she has given an honest account of her symptoms, both physical and mental, to the treating and medico-legal doctors who examined her. Video surveillance was undertaken as revealed in the defendants Court Book however no film was shown.
22 Ms Bairami’s present complaints are of bilateral wrist pain, bilateral pain in the shoulders right worse than the left, pain in the elbow and fingers. She has throbbing pain in the right wrist.[2] The pain is constant and varies with the weather. When it is hot it (the wrist) swells and when it is cold she feels pain in the bone.[3]
[2] T12, L17-31
[3] T13,L1-5
23 She takes medications including, Panedeine Osteo (for pain), Zoton (for an ulcer), Valium as needed (for anxiety/panic attacks) and uses a TENS unit once a day on the affected area. She constantly wears a wrist splint taking it off only to exercise.[4]
[4] T13, L1-30
24 Ms Bairami has had extensive physiotherapy treatment with Mr Gerald Lee and laser acupuncture treatment with Dr Chung for her right wrist injury. Currently Ms Bairami sees Dr Thornton once a month and wears a wrist splint. She takes prescribed Panadeine Forte two to four tablets per day and Valium as required, and Zoton for stomach problems. She has regular weekly hand therapy with Amelia Clark. She sees her psychologist, Mr Richard Young, every fortnight and pain management from Dr Peter Blombery.
Facts not in contention
25 Ms Bairami is aged 43 and was born on 22 July 1966 in Macedonia to Albanian parents. In 1969 she migrated to Australia with her family. She has some limited formal education having left school aged 16 not having completed Year 8. She is able to speak, read and write English with some proficiency. She married in 1984 and lives with her husband and four children.
26 The plaintiff has a good work history undertaking process/factory work with Linda’s Electrics, Bic Biros, Elite Pleaters, food service for the Royal Melbourne Hospital, process work with Herbert Adams and then returning to Bic Biros. Between the years 1986 to 1995, Ms Bairami stayed at home to raise her children. She commenced casual work for Peters Ice Cream for some four years and commenced employment with Susan Day Cakes on 16 August 1999.
27 Following injury Ms Bairami returned to work performing light duties and continued working until a repeat arthroscopy performed by Mr Crock on 5 May 2008. She has not resumed employment since that date.
The circumstances of injury
28 The plaintiff’s affidavit sworn 4 March 2008 describes problems at the workplace with a tray machine that was malfunctioning. The tray machine operated with air suction cups which sucked up trays and released them onto a wrapper machine. There had been a problem with the tray machine for many years. The suction kept moving and as a result the machine would not pick up the trays as required. Ms Bairami had made complaints about the machine and had been shown how to fix the machine by one of the maintenance men. She states that she regularly had to fix the machine in order to allow production to continue.
29 On the date of her injury she was attempting to fix the machine by realigning the suction cups. She had a shifter in her right hand. Suddenly, the arm of the machine, which is like a steel bar, came down very forcefully and hit her on her right forearm from just below elbow across her right wrist and on to the back of her right hand (the incident) [5].
[5] Paragraphs 8 and 9 of the plaintiff’s affidavit, PCB 24-25.
30 Following the incident she felt immediate pain in her right forearm, particularly in the right wrist. She reported the incident and kept working. Over the ensuring days the pain increased rather than decreased. She noted swelling in her wrist. On 19 October 2005, some seven days post-injury, she attended on her general practitioner, Dr Thornton.
Treatment for the right wrist injury
31 Dr Thornton initially diagnosed soft tissue injury to the right wrist due to the incident at work. In April 2008 following assessment by the team at Epworth Rehabilitation it was concluded that Ms Bairami had developed a well entrenched Chronic Pain Syndrome. He notes Dr Peter Blombery pain management specialist’s diagnosis of Chronic Regional Pain Syndrome (CRPS) Type 1. He considers that the plaintiff’s pain is organic in nature.[6]
[6] PCB 39a
32 He continues to manage the plaintiff’s condition with conservative measures namely strong analgesia (Panedine Forte), muscle relaxants/tranquillizers (Valium) and Zoton, a proton pump inhibitor for peptic ulcer (which makes anti inflammatory medication contra indicated).[7]
[7] PCB 39
33 An X-ray of the right forearm taken on 25 October 2005 demonstrated no abnormalities.
34 Ms Bairami was referred to Dr Feletaar, rheumatologist. She treated her from 15 March 2006 to 9 February 2007. When first reviewed by Dr Feletaar she was still engaged in full duties 38-40 hours per week.
35 Dr Feletaar, in her report dated 5 June 2007, confirms that the plaintiff had a bone scan on 17 March 2006 to identify any localised bony pathology. The scan showed minimal increased activity in the region of the left first carpo- metacarpal (CMC) joint suggesting very early degenerative disease. There were no signs of right-sided skeletal injury. Her impression was the plaintiff had sustained a soft tissue injury following the impact injury at work. Regular hand therapy was recommended and that was undertaken. [8]
[8] PCB 62
36 Subsequently, the ulnar compartment wrist pain did not settle. An MRI was conducted on 19 May 2006 that showed mild degenerative change without a discrete tear in the triangular fibrocartilage. There was mild prominence of ulnar variance. The median nerve within the carpel tunnel was mildly hyper- intense and thickened. When seen by Dr Feletaar on 26 May 2006 there was no major identifiable pathology. The doctor suggested slow mobilisation with less time wearing the splint during the day and paracetamol to be taken as required.
37 On 14 July 2006 Dr Feletaar referred Ms Bairami to Mr James Leong, hand surgeon. He was asked to assess with a view to possible arthroscopy in particular looking for a triangular ligament acute injury or instability in the carpus in this region. At that time Ms Bairami was not manifesting diffuse to upper limb pain. Dr Feletaar noted some pain in right elbow but no clear resisted wrist extension and considered that it was not clearly lateral epicondylitis. [9]
[9] PCB 63
38 Nerve conduction studies were conducted on 2 February 2006 which were normal. [10]
[10] PCB 63
39 When last seen by the rheumatologist on 9 February 2007 the plaintiff’s symptoms were unchanged. Ms Bairami was working modified duties full hours doing training and writing.
40 In summary, Dr Feletaar confirms that the plaintiff presented with predominant right wrist pain, particularly localised to the ulnar compartment, following the impact injury at work and that her right wrist and forearm pain have been ongoing problems since the incident. She considered it was a soft tissue injury.
41 Mr James Leong, hand surgeon, first saw the plaintiff on 22 August 2006. On examination, there was maximum tenderness of the extensor carpal ulnaris tendon, especially at the insertion site of this tendon. The triangular fibro- cartilage and the scaphoid lunate ligament were normal.[11]
[11] Report of Mr Leong, 12/06/2007, PCB 65
42 Ms Bairami’s wrist was splinted for several months which he states improved her situation significantly. In December 2006 the plaintiff returned complaining of ongoing pain in the right wrist. A further MRI scan was performed which was reported as fairly normal and she was referred to Mr John Crock, a hand surgeon specialising in wrists, for a second opinion.
43 Mr John Crock diagnosed the injury as a crush-type injury. The forearm extensor musculature and the ulnar side of the wrist were largely impacted by the heavy object that is the arm of the machine. MRI scans show degenerative changes and injury to the triangular fibro-cartilage carpal (TFCC) ligament. There was also mild oedema along the ulnar side of the wrist. [12]
[12] PCB 73
44 He confirms that Ms Bairami suffered exacerbation of degenerative tendonopathy and osteoarthritis of the wrist with acute ligament injury. He considered the degenerative condition would continue to deteriorate with time and use.[13]
[13] PCB 73-74
45 He recommended a wrist scope and debriding of the TFCC. The first arthroscopy was performed on 6 March 2007 and inspection revealed some scapholunate disassociation, loss of cartilage between the scaphoid and lunate generalised ligamentous laxity. [14]
[14] PCB 75
46 The findings of the first arthroscopy are recorded as follows – lunate facet - normal, scapholunate ligament- ruptured with loss of cartilage on the edge of the lunate, luno triquetral ligament - no tear, scaphoid facet- generalised chondromalacia with some frank cartilage loss laterally, synovitis - generalised[15].
[15] PCB 77
47 Following that arthroscopy he wrote to Dr Thornton that this was an extremely difficult problem and stated that he had discussed the plaintiff’s condition with some world leaders at a recent wrist surgery conference and the general consensus was that it was an extremely difficult problem to fix. He did not recommend surgery. He recommended trialling conservative therapy, splintage, analgesia and anti-inflammatories. If her condition did not improve surgery was proposed.[16]
[16] PCB 75
48 It is important to note that at the hearing Mr Crock corrected an error that had been repeated throughout his correspondence to the referring doctors and in his medico legal reports. He corrected a typographical error that has significant consequences in terms of describing his findings at arthroscopy.
49 He wrote to Dr Thornton, following the first arthroscopy, that he found that Ms Bairami had some scapho-lunate “dislocation”. In fact he found “disassociation” not “dislocation”. Mr Crock explained that disassociation is a more serious finding of some considerable clinical significance. The error caused some confusion as is borne out in the reports from Mr Damien Ireland, hand surgeon and Mr Westh, surgeon both of whom examined the plaintiff for medico legal purposes.
50 Mr Crock performed a repeat arthroscopy on 5 May 2008. In evidence he said that he did the arthroscopy to confirm the diagnosis. He found that there was some chondromalacia in the lunate facet. There was fraying of the scapholunate ligament that was degenerative. There was fraying of the luno triquetral ligament that was also degenerative. There was some scaphoid facet chondromalacia and there was synovitis, especially on the ulnar side and that was debrided.
51 Mr Crock confirmed that at the arthroscopy he used an image intensifier and looked to see if there was any “disassociation” there. He could not find disassociation. He formed the conclusion that the plaintiff has some degeneration but that it was not enough to warrant surgical intervention. He considered that the plaintiff had some cartilage damage but her condition had actually improved between the first and second arthroscopy.
52 From his treatment and observations during the second arthroscopy he considered that there should have been improvement in the plaintiff’s physical findings as a result of the second intervention.[17]
[17] T 54, lines 22-31; T 55, lines 1-10.
53 Following the second arthroscopy, he considered the plaintiff had significant synovitis, especially on the ulnar side of the wrist and that was debrided. He explained synovitis is not an infection rather it is an inflammatory condition[18] and that is why he referred to the rheumatologist for the management of that condition.[19] He referred the plaintiff back to the rheumatologist and also to Mr James Leong.
[18] T 58, lines 22-31.
[19] T 59, lines 1-2.
54 In a letter dated 28 May 2009 addressed to the plaintiff’s solicitors Mr Leong states that the plaintiff was last seen in April 2009 with a non-specific pain over the right wrist. There was no specific site of maximum tenderness on the right wrist. She was taking two to four Panadeine Forte tablets per day and was unemployed. He considered that he had exhausted all avenues of treatment and referred her to see Dr Peter Blombery.
55 Dr Peter Blombery confirms that he reviewed Ms Bairami on 19 May 2009 with pain syndrome affecting her right arm. She described her pain as being present all the time, keeping her awake from sleep intermittently, fluctuating in severity from day to day. The right hand tended to swell, become purple and was often abnormally sweaty. There was also numbness and parathesia in the fingers.
56 On examination he found there was difference in temperature between the two wrists although the right wrist was slight redder than the left. She was moderately tender on pressure of the wrist and there was some swelling of the right hand. There was only slight reduction in the range of movement of the wrist but that caused pain.
57 He considered the combination of the plaintiff’s noted changes in temperature, colour and sweating of the wrist and hand, together with ongoing pain, are diagnostic of Complex Regional Pain Syndrome Type 1.
58 Initially he commenced Ms Bairami on Epilum to modulate pain perception. He also gave her a reducing course of oral Prednisolone. The prognosis was poor at that time. At review on 25 June 2009 he noted that the Epilum had resulted in the plaintiff becoming dizzy on the lowest dose. The Prednisolone had resulted in little change in the level of pain and therefore she was advised to cease that medication. He recommended a trial of Clonidine, a medication used for treating high blood pressure but also has an effect on pain nerve pathways as well as the sympathetic nervous system and may be useful in patients with Complex Regional Pain Syndrome Type 1.
59 On 7 September 2009 he noted that the plaintiff had not taken the Clonidine and had problems with a stomach ulcer and nausea and was concerned that the Clonidine may make her worse. She refused a linocane ketamine infusion because of her concerns about side effects.
60 On 7 December 2009 he noted that Ms Bairami had a trial of acupuncture with no response in terms of reduction in pain, ongoing pain the right arm and also noted right hand swelled. Dr Blombery gave her a trial of Mexitil which is sometimes useful in patients with neuropathic-type pain. He confirmed that she had ongoing features with Complex Regional Pain Syndrome Type 1 affecting the right wrist and arm as a complication of the incident in the course of her employment on 12 October 2005.
61 He has trialled a variety of forms of treatment and the plaintiff has either had no response to them or developed side effects. He was very pessimistic about her likelihood of improvement in the foreseeable future. He considered that she had no capacity for employment nor will she in the future.[20]
[20] PCB 102h
The medical evidence concerning Chronic Regional Pain Syndrome (CPRS)
The plaintiff’s medical evidence62 The plaintiff relies upon the diagnosis of CRPS by Dr Blombery.
63 In addition, she relies on the Certificate of Opinion of the Medical Panel constituted pursuant to the Accident Compensation Act 1985. The opinion dated 11 May 2009 certifies the Panel was of the opinion that the worker is suffering from a regional pain syndrome affecting the right upper limb relevant to the claimed injury. The Panel is of the opinion that the worker has no current work capacity and this situation is likely to continue indefinitely.
64 Eames JA, as he was then known held in Pope v W.S. Walker & Sons Pty Ltd (2006) 14 VR 435, that s.68(4) has binding effect with respect to medical opinions obtained under s.45(1A) for the purpose of a s.134AB application, but that the court hearing such an application is not bound to treat as final and conclusive (although it may well have regard to them) the opinions of medical panels obtained for the purpose of claims to statutory benefits. That is the case in this application.
65 For reasons set out in my separate ruling I have had regard to the Certificate of Opinion but shall not have regard to the separate reasons for opinion of the Medical Panel in deciding this application.
66 Mr Roger N. Westh, orthopaedic surgeon, examined Ms Bairami for medico- legal purposes on behalf of the plaintiff’s solicitors on 11 July 2008 and re- examined her on 8 September 2009.
67 When he first examined Ms Bairami he considered the precise diagnosis and pathology of the wrist condition was not clear. He stated that it would appear the main abnormality may involve some articular cartilage loss at the scaphoid facet in the wrist joint with some synovitis. He did not consider that there was any definite evidence of any significant ligament injury.
68 He confirmed that Ms Bairami had sustained a significant impact injury to the right wrist and impairment of the wrist function was likely to last for the foreseeable future.
69 At the re-examination he was aware of Dr Blombery’s diagnosis of CRPS. He noted that the main complaints were pain on the ulnar side of the right wrist radiating up the forearm and extending into the ulnar three fingers. Pain is present everyday and is of variable severity. Pain is made worse with activity. He found on examination of the right wrist well healed arthroscopic portals with no swelling. Ms Bairami was diffusely tender over the wrist, particularly over the ulnar side. There was no abnormal sensation in the hand, no abnormal skin temperature or skin colour, there was normal pulses, there was no muscle wasting and the plaintiff was able to make a fist. He reviewed the radiology, including the x-rays of 25 March 2009 and MRI scan report of 20 February 2007.
70 In summary, he states that the plaintiff presents with chronic right wrist pain. He maintains that it is not possible to give a precise diagnosis. In his opinion there is no correlation between the radiological findings and the subsequent described operative findings – the latter of which he found very confusing. (This is most likely due to the error corrected by Mr Crock in his evidence).
71 His overall impression was that it would appear there was no major psychological (query should this read physiological) changes to account for her symptoms at the wrist arthroscopy dated 5 May 2008. He considered that Ms Bairami has a severe accompanying post-traumatic stress reaction and that is her major ongoing problem.
72 He agrees with Mr Damien Ireland that there does not appear to be any evidence to support the diagnosis of a Chronic Regional Pain Syndrome Type 1. He reiterated there is no definite evidence of any significant ligamentous injury to the wrist. His overall impression is that Ms Bairami is suffering from only minor physical impairment as a result of the significant impact injury to her right wrist at work. The ongoing disability relates to Chronic Pain Syndrome and psychological upset as non-organic cause. He is very guarded about her long-term prognosis.[21]
[21] PCB 81c
73 The plaintiff relies on the report of Mr Geoffrey Littlejohn, rheumatologist, dated 18 August 2009. This report was commissioned by the defendants’ solicitor and relates to his findings following examination conducted on 18 August 2009.
74 On examination of the right wrist Mr Littlejohn noted restrictions in movement due to pain with 40 degrees of flexion, 70 degrees of extension, 20 degrees of radial deviation and 30 degrees of ulnar deviation. There was tenderness on the outer aspect of the right dorsal wrist at the base of the fifth digit more so than other areas. However, the plaintiff was abnormally tender in other regions of the wrist, first web space of hand and upper outer forearm and the forearm in general as well as the shoulder girdle and trapezius areas. She was tender at the base of the right side of the neck. Neurological examination was unremarkable with no wasting evidence. There were normal reflexes bilaterally and no objective anatomical sensory deficit or change. The forearm and hands were of equal temperature and there was no redness or discoloration on one side versus the other over and above the effect of wearing a tubigrip on the forearm on the right side. The grip strength on the right was significantly diminished compared to that on the left.
75 He expressed the opinion that Ms Bairami has clinical features of a right upper quadrant Regional Pain Syndrome. She has had some features consistent with Chronic Regional Pain Syndrome which he considers is just a variation on the same thing. He did not find any evidence of any ongoing significant right wrist abnormality per se.
76 He acknowledged that the surgeon, Mr John Crock, visualised changes in the joint at the initial arthroscopy which he described as being due to some abnormal cartilage and some synovitis. However, it is his opinion that Ms Bairami’s ongoing pain complaint relates to the right upper quadrant (Complex) Regional Pain Syndrome. He thinks the initial injury resolved as expected but now the plaintiff is left with increased sensitivity in the right upper limb in particular. He noted these types of problems also are often associated with abnormal illness behaviour or functional overlay. He considers that she is capable of doing modified duties in the future.
77 In conclusion, he states that Ms Bairami has a mild upper quadrant regional pain syndrome which he expected to improve with time, he does not consider that there is any significant residual abnormality in the right wrist which is leading to her current symptoms or likely to give longer term problems.[22]
[22] DCB 50c
The defendants’ medical evidence
78 Dr David Barton, consultant occupational physician, examined Ms Bairami on 7 June 2006. He noted on specific examination of the right hand and wrist there was some generalised tenderness around the back of the wrist on the ulnar side extending into the outer metacarpal. There was full range movement and normal range of thumb and finger movements.
79 He considered that there were a number of features that point to the plaintiff’s condition being functionally rather than physically based. He did not believe there was any clear medical condition apart from a strongly held illness belief for which her work would be seen as a factor. He considered from a physical point of view her condition had resolved and she was essentially fit for normal work.
80 In a letter dated 20 June 2006 Dr Barton confirmed that the underlying medical problem was not severe and that Ms Bairami had a capacity to return to suitable employment.
81 On re-examination on 24 August 2007 he repeated that he did not believe that there was any physical basis for her complaint and that at best she had sustained a mild soft tissue injury round the back of the wrist and forearm as a consequence of the incident at work and that that is no longer relevant. The current diagnosis is of a chronic pain problem with strong illness belief and symptom focus.
82 He conducted a further re-examination on 25 July 2008. At that time the plaintiff was describing her situation as being in severe pain around the back of the right hand that extends up to the right elbow and that pain is present at all times. On examination there was no temperature, colour or sweating difference between either upper and the normal hair growth of nails on both hands. Again, he repeated his opinion the problem was not physically based and that from a physical point of view she has current work capacity.
83 Dr Malcolm Brown, occupational physician, examined the plaintiff on 1 November 2006. This is prior to the arthroscopic examinations. He considered she had definite residual pathology in the wrist causing incapacity for manual tasks at work and at home. He noted however that clinical and radiological investigations had failed to find the precise reason for her continuing symptoms and he considered, there was little correlation between the clinical history and the examination and the various minor findings on radiological examination that is, the ultra sound right wrist 3 January 2006, bone scan 17 March 2006 and MRI of the right wrist 19 May 2006.
84 Following a worksite assessment he considered that Ms Bairami was capable of doing modified light duties. She has the capacity to carry out supervisory tasks and other lighter manual tasks for 10 to 15 minutes at a time.
85 Mr David Conroy, general surgeon, examined Ms Bairami on 21 August 2007. He considered the history and examination was consistent with traumatic cartilage degeneration in the carpal bones of the right wrist with a chronic pain disorder.
86 When he examined the plaintiff the wrist was minimally swollen over the carpal bones. Ms Bairami claimed tenderness that seemed to vary in site and degree around the wrist. There was no wasting of the forearm. Skin colour, temperature and moisture were normal. Pulses were normal. Sensation appreciation was normal. There was no wasting of the small muscles of the palm. There was a restriction in the range of motion at elbow and wrist, and in the thumb.
87 Dr Susanne Homolka, occupational physician, examined the plaintiff on 7 March 2008. She considered that Ms Bairami suffered from residual dysfunction of the right wrist following a surgically treated soft tissue injury. She considered she was demonstrating a significant amount of abnormal illness behaviour and that her physical conditions had become complicated by a secondary adjustment disorder. She recommended psychiatric assessment.
88 Dr Homolka considered that Ms Bairami does not have a current work capacity for her pre-injury duties, however is fit for suitable alternative work involving minimal use of the right hand.
89 When re-examined by Dr Homolka on 12 September 2007 she confirmed the previous diagnosis.
90 Mr Damien Ireland, hand surgeon, examined Ms Bairami on 27 August 2008. His clinical examination revealed there was evidence of previous arthroscopy scars dorsally on the right wrist. Both palms were soft and devoid of work stain and work callous. The nails and hair growth on the dorsum of the hand and forearm were symmetrical and normal. There was no temperature gradient along the right arm and there was no temperature difference between the right and left hand (no evidence of Chronic Regional Pain Syndrome).[23]
[23] DCB 42
91 He confirmed that the arthroscopy pictures produced by the plaintiff that were undated revealed some synovitis of the wrist and chondromalacia but being unlabelled he could not identify the site of the synovitis or the chondromalacic bones. He was unable to offer a diagnosis for the plaintiff’s global right upper limb symptoms.
92 He considered that the plaintiff may have some minor soft tissue degenerative changes in her wrist but considered that they appeared insufficient to warrant surgery. He thought there was a tenuous connection between the condition and work injury. [24]
[24] DCB 43
93 He considered that the plaintiff’s condition was largely non physical. On the basis of the plaintiff’s psychological condition he stated that she would be prevented from engaging in any form of gainful employment.[25]
[25] DCB 44
94 Mr Ireland first raised the issue about whether Mr Crock had properly recorded the nature of the problem that he had identified at arthroscopy. In his opinion the scapholunate joint was neither dislocated or enlocated and that Mr Crock may have meant disassociation rather than dislocation for both. Disassociation is clearly defined as scapho-lunate joints spaced 2mm or more wider than any of the other intercarpal joint spaces. [26]
[26] DCB 45
95 Mr Crock confirmed that Mr Ireland was correct and that there was no evidence of disassociation found when he performed the two arthroscopic procedures on the plaintiff.
96 Mr Ireland in his letter, dated 18 February 2009, addressed to the defendants’ solicitor states:
“It was my overwhelming opinion when I spoke to Ms Bairami and examined her wrist, that her major problem involving the right upper limb was non-physical in nature. The pain she described did not fit any known anatomical, neurological or pathophysiological pathway or pattern. She was equally tender at any randomly selected point circumferentially along the entire upper limb.”[27]
[27] DCB 45-46
97 Mr Ireland subsequently examined the MRI study of the right wrist dated 19 May 2006 and having viewed that imaging study could find no evidence of any serious physical problem affecting her right wrist. The presence of any significant injury or condition at the scapholunate joint level in his view had been excluded. [28]
[28] DCB 47
98 He states in summary, if Ms Bairami suffers from any physical problem affecting the right wrist it is indeed extremely minor and in no way explains her right upper limb global symptom complex. He accepts Ms Bairami obviously sustained an injury at work on 12 October 2005 but says there is no evidence currently of any physical sequelae of this injury and that her overall symptom complex is non-physically based. That opinion is based on the lack of positive examination findings of the wrist and specifically at the scapholunate joint. That view is supported by the negative MRI findings which fail to show any loss of integrity of the scapholunate joint or any inflammation in or around the scapholunate joint. Surgery is contra indicated. [29]
[29] DCB 49
99 When specifically asked to comment on Dr Blombery’s diagnosis of Chronic Regional Pain Syndrome Type 1, he says that he could find no evidence to support the diagnosis. He noted that whilst Ms Bairami complained of intermittent colour changes in the right hand she could not describe those changes and did not know how often it happens or how long the episodes last.
100 Mr Ireland is emphatic that he found no physical findings of Chronic Regional Pain Syndrome. There was no obvious swelling despite Ms Bairami claiming that the right hand and upper limb were swollen. Range of motion at the wrist was normal. There was no temperature difference between the right and left hands and no difference in hair or nail growth when comparing the right and left hand. There was no trophic changes affecting the finger pulps when the forearm was pronated. There was no difference in the moisture of the finger pulps comparing the right to left. [30]
[30] DCB 50B
101 The defendant relies further on Mr Crock’s evidence. In cross-examination, Mr Crock confirmed that the plaintiff’s symptomatology did not improve following the second arthroscopy and said he could not explain why that has happened.[31] He confirmed, following the second arthroscopy, he formed the opinion that from a physical point of view the plaintiff was a lot better than when he conducted the first arthroscopy and that she did not require surgery so he withdrew his original opinion – that she might have a degenerative condition needing a fusion or whatever.[32]
[31] T 62, lines 15-16.
[32] T 63, lines 1-4.
102 Whilst not professing to be an expert in Regional Pain Syndrome or Chronic Regional Pain Syndrome (CPRS), Mr Crock did give evidence about the mechanism of CRPS.
103 His evidence was that CRPS starts off as pain and then there are autonomic changes that follows, so there is swelling, the skin becomes shiny and atrophic, you get hair growth and the nail growth can change and can increase. The hand gets really stiff and basically just freezes in a position and you cannot use it. It sort of fuses like that, it is a horrible condition.[33]
[33] T 66, lines 27-31, T67, lines 1-2.
104 He further said that to establish Regional Pain Syndrome it is very obvious. “The pain, the patient’s hand doesn’t move, it’s got big black hairs on it, the nails are often longer, the skin is a different colour, shiny, atrophic, it’s very obvious.”[34] He confirmed he did not find any of those features when examining the plaintiff.
[34] T 75, lines 23-30.
105 He acknowledged in evidence that he sends his patient’s who present with CPRS to Dr Peter Blombery, whom he considers is the expert in regional pain in Victoria.
106 During cross-examination he agreed with Mr Ireland’s conclusions that if Ms Bairami suffers from any physical problem affecting the right wrist it is extremely minor and in no way explains her right upper limb global symptom complex.[35] He was told about Mr Ireland’s findings on clinical examination and agreed with Mr Ireland’s opinion that there does not appear to be any evidence to support a diagnosis of Complex Regional Pain Syndrome Type 1.[36]
[35] T 68, lines 14-18.
[36] T 74, line 13.
107 The findings of Mr Roger Westh, orthopaedic surgeon, were also put to Mr Crock and he agreed with Mr Westh’s findings.
108 Mr Crock now very much doubts that the plaintiff’s condition is a CRPS this far out and without any of the accompanying signs. He qualified this by saying that is his personal opinion and he would be interested to see what Dr Blombery said at this stage because there is an element of time involved in the diagnosis as well and he was not sure what chance Dr Blombery had to address those.[37]
[37] T 75, lines 1-10.
109 I have not had the advantage of seeing Dr Blombery in the witness box. As happens often in these types of cases the Court is required to make a determination without having all the expert evidence challenged in court. Notwithstanding the limitations of such I am prepared to make findings that do not accord with Dr Blombery’s diagnosis having considered the totality of the evidence.
110 I note that on 29 May 2009 Dr Blombery recorded that on examination there was no difference in temperature between the plaintiff’s two wrists although the right was slightly redder than the left. Ms Biarami was moderately tender on pressure over the wrist and there was some swelling of the right hand. There was only a slight reduction in the range of movement of the wrist but this caused pain.[38] Mr Crock agreed that those findings were not particularly strong, pointing in the direction of a CRPS.
[38] PCB 1026
111 When re-examined by Mr McCredie he conceded it is very unusual to have a regional pain that does not have all the swelling, pain, stiffness, hair growth and that is why he recommends that Dr Blombery’s opinion should be sought. He was unable to say whether the ongoing hand therapy had stopped the plaintiff from getting all the other sequelae.
Findings on Chronic Regional Pain Syndrome
112 The general consensus of medical opinion confirms that as a result of the incident Ms Bairami suffered a traumatic soft tissue injury to the right wrist that has largely resolved.
113 Most of the doctors accept that the plaintiff suffered from an organically based injury initially but cast doubt that her ongoing symptoms of global right upper limb pain as described by the plaintiff are organically based. They further cast doubt on the diagnosis of Chronic Regional Pain Syndrome.
114 In contrast, Dr Blombery and to an extent Mr Littlejohn consider that Ms Bairami is suffering from Chronic Regional Pain Syndrome. Mr Littlejohn does raise the possibility of the plaintiff’s condition also being classified as “abnormal illness behaviour”.
115 I accept having regard to the description of the symptoms that are usually associated with Chronic Regional Pain Syndrome that at no time has any clinician made findings that would assist the Court in making a determination that Ms Bairami suffers from Chronic Regional Pain Syndrome. Whilst accepting that Dr Blombery refers in his reports to the plaintiff having ongoing features of Chronic Regional Pain Syndrome he at no stage documents whether he found those features present on his clinical examinations.
116 Overall, I have come to the conclusion that there is insufficient evidence of a clinical nature to demonstrate that the plaintiff does suffer from Chronic Regional Pain Syndrome. I consider that the plaintiff’s ongoing complaints of pain are not a consequence of any physical problem affecting the right wrist following the incident at work on 12 October 2005.
117 I accept the expressed opinion of Mr Ireland in this regard, who is a very experienced hand surgeon, who was meticulous in his examination of all the relevant medical material and investigations and who was able to properly identify what it was that was found at arthroscopy. His opinion was supported by the evidence of Mr John Crock. That opinion is also supported by Doctors Westh, Barton and Homolka.
118 Having made the finding that the plaintiff’s condition is not physically based, I am nonetheless satisfied that she is a person who genuinely believes that she does have global right upper limb pain that is related to her right wrist condition. I am satisfied that the plaintiff suffers from a chronic pain condition that is sufficiently linked to the traumatic right wrist injury.
119 Ms Bairami has been examined by a psychiatrist, Dr Timothy Entwistle, on two occasions on 23 October 2007 and 24 February 2010. On the first occasion Dr Entwistle diagnosed an Adjustment Disorder with depressed and anxious mood and that she was suffering no incapacity to work. Following re- examination he noted she continues to present with features of abnormal illness behaviour and strong injury focus. He considers that her physical symptoms are best understood as conversion symptoms – a well known phenomenon occurring in the context of the expression of emotional effects via physical symptoms.[39] He is out of kilter with all the other examiners when he finds the plaintiff’s condition is related to anger at her work rather than due to injury. I reject his expressed opinion.
[39] DCB 21E
120 Dr Stephen Stern, psychiatrist, reviewed the plaintiff on 10 October 2007 and 9 October 2008. He expressed the opinion she is suffering from a Chronic Adjustment Disorder with mixed anxiety and depressed mood. He thought, from a psychiatric point of view, she is fit for work but not her pre-injury duties or using machinery. Her condition had stabilised and she needs ongoing psychological treatment. Following re-examination he confirmed his expressed opinion.
121 Dr Richard B. Young, consultant psychologist, is the treating psychologist. Ms Bairami has been under his care since 9 May 2007. He continues to review her regularly. At initial assessment it was his opinion Ms Bairami was suffering a chronic pain condition related to her work injury. He found that she is suffering a moderate mixed adjustment to work injury, subsequent pain and associated disability disorder with anxiety and depression.
122 Dr Young confirms that Ms Bairami has presented in chronic pain and he notes that with treatment the mixed adjustment illness with anxiety, depression and irritability has slightly eased into the mild to moderate range and the response to trauma has eased slightly too. He considers from a psychological point of view she is unfit for all work. He continues to manage her fortnightly for ongoing cognitive behavioural and supportive psychotherapy for the chronic pain and mixed Adjustment Disorder.
Findings
123 I am satisfied that Ms Bairami suffered a compensable physical injury in the incident, namely, traumatic injury to her right wrist. The consensus of medical opinion is that she has recovered from the initial soft tissue injury and is left with some minor soft tissue degenerative changes in the wrist demonstrated radiologically. On balance, I am satisfied that the weight of evidence supports a diagnosis of chronic pain syndrome, and that there is no organic basis for that pain. Her claim under paragraph (a) therefore fails.
124 I have no doubt that the plaintiff suffers from the symptoms of which she complains however there is insufficient evidence to link them to a physical cause. The physical injury has substantially resolved but consequential on that injury the plaintiff has developed a chronic pain syndrome affecting the right wrist and right upper limb which had been the site of organically determined pain following traumatic injury. Consequential upon that injury the plaintiff has developed psychiatric injury - variously described as mixed anxiety/depression, a chronic adjustment disorder with depressed and anxious mood, abnormal illness behaviour or a conversion disorder.
125 I have had regard to the totality of the evidence which shows that prior to the incident Ms Bairami was fit and well with no pre-morbid injuries or impairments to her right wrist and right upper limb. Following injury she has been left with ongoing complaints of severe pain and disability that adversely affect her right upper limb function.
126 I have had regard to the chronicity of her symptoms, the extensive physical and ongoing cognitive behavioural therapy and the need for pain relief and muscle relaxants/tranquilisers. I am satisfied that the plaintiff’s condition is permanent in that it will not improve in the foreseeable future.
127 I am satisfied that Ms Bairaimi has established a sufficient causal linkage between the initial compensable physical injury and chronic pain disorder and the presence of a depressive /adjustment disorder, abnormal illness behaviour or a conversion disorder.
128 Overall, there is no reason for me to doubt Ms Bairami’s evidence and I accept her evidence concerning the nature of her condition, its effects in terms of her work, social and recreational and domestic activities.
129 Section 134AB(38)(d) requires the making of a comparison and a judgement that the consequences of mental or behavioural disturbance or disorder could be fairly described as being more than serious to the extent of being severe.
130 The judgment of the Court of Appeal in Mobilio v Balliotis[40] resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission[41], that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive; namely, that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, His Honour said that “severe” was used in the definition as a stronger word than “serious”.
[40] [1998] 3 VR 833
[41] (1995) 21 MVR 314
131 Prior to injury the plaintiff was an organised and effective worker employed fulltime as a team leader in a busy modern factory. She coped with the demands of her employment as a Baking Factory worker and was active at home, had a variety of hobbies including a passion for cake making and decoration. She managed her family and work. Prior to the incident she did not have any previous history of illness or impairment that affected the right upper limb.
132 Ms Bairami has had years of conservative treatment with little, if any, benefit. Her situation is now chronic. She is no longer capable of managing her pre- injury duties. As a consequence of her injury her quality of life, level of function and level of enjoyment and mood have all dramatically declined. For a women who is only 45 those consequences are considerable and marked.
133 I am satisfied that the test set out in s.134AB(38)(d) has been satisfied. The plaintiff has discharged the burden of proof in this regard. She has satisfied the “severe” test.
Loss of Earning Capacity
134 The plaintiff has also discharged the burden of proof in this regard, both in relation to the “severe” test and in relation to the more stringent test contained in s.134AB(38)(e) to (g).
135 I am satisfied that the plaintiff’s earning capacity has been totally and permanently destroyed. I find that her earning capacity is now zero.
136 I accept Dr Thornton’s expressed view that the plaintiff remains severely disabled in all aspects of her life and is unable to work in any capacity.[42] This opinion is supported by Dr Richard Young who considers that from a psychological point of view the plaintiff is unfit for all work due to low mood (due to depression), fatigue (from poor sleep, depression and pain), and trouble with concentration and short-term memory (due to the fatigue, depression and pain).[43] Both those doctors have had the advantage of observing and treating the plaintiff over many years. Dr Blombery and Mr Westh support this assessment.[44] On purely psychiatric terms Dr Weissman agrees.[45] Mr Ireland supports the contention that the plaintiff’s current psychological state prevents her working.[46]
[42] PCB 39d
[43] PCB 59
[44] PCB 102c and PCB 81
[45] PCB 93k
[46] PCB 44
137 I reject the expressed opinions of Mr Entwisle and Dr Homolka, Dr Stern and those opinions expressed in the Co Work labour analysis report concerning this aspect of the plaintiff’s claim based upon my observations of the plaintiff and my findings concerning the nature and extent of her injury and its consequences.
138 I am of the view that the plaintiff’s incapacity for employment is permanent within the meaning of the Act.
139 Having regard to her ongoing condition and its consequences in my judgment it would not be possible for the plaintiff to undertake “suitable employment” as that term is defined in s.5 of the Act.
140 Given that I find that the plaintiff’s capacity for employment is zero and that this condition is permanent within the meaning of the Act, it is clear that she discharges the burden both in relation to the “severe” test and in relation to the other statutory tests referred to above.
141 The plaintiff is successful. She has discharged the burden of proof.
142 The plaintiff’s application to bring the proceeding at common law pursuant to s.134AB(16)(b) to recover damages for bodily injuries for pain and suffering and loss of earning capacity arising out of her employment with the first defendant is granted.
LIST OF EXHIBITS—
| COUNSEL FOR THE PLAINTIFF: COUNSEL FOR THE DEFENDANT: | S McCredie & J Valiotis |
| P Elliott QC & M Blyhouwer |
Number and
| Identifying Mark | Short Description of Exhibit | Date | Plaintiff/ |
| on Exhibit | Tendered | Defence |
Affidavits of the Plaintiff, Julie Bairami, sworn 4 13 April Plaintiff
1 March 2008 & 15 May 2009 2010 Plaintiff’s Medical Reports including; Dr Roger Thornton dated 1 June 2006; 28 August 2006; 26 April 2007; 15 December 2008; 15 December 2008; 25 May 2009; 15 September 2009; 14 January 2010
Mr Gerald Lee dated 6 October 2007 Dr Richard Young dated 24 June 2007; 10 December 2008; 10 February 2010 Dr Marie Feletar dated 5 June 2007; 12 June 2007; Mr James Leong dated 12 June 2007; 28 May 2009; Ms Amelia Clarke dated 11 June 2007; 27 July 2007; 20 November 2008 Mr John Crock dated 26 June 2007 and notes; 21 May 2009 Mr Roger Westh dated 19 August 2008; 24 September 2009 Dr David Weissman dated 3 November 2008; 13 January 2010 Dr Robyn Horsley dated 2 March 2010 Dr Peter Blombery dated 27 May 2009; 17 September 2009; 8 February 2010 Radiology report of 20 February 2007 Opinion of the Medical Panel dated 11 May 2009 Operation notes of Dr Crock dated 5 May 2008 Expert reports including Vocational Assessment by Katrina Henderson dated 18 September 2008 & Vocational Assessment by Katrina Henderson dated 6 February 2009
Mr Geoffrey Littlejohn dated 18 August 2009 Plaintiff’s Taxation Summary
Reports including; 13 April Defenda
2 Dr Malcom Brown worksite assessment dated 2010 nt 13 November 2006 Dr David Conroy dated 21 August 2007;
Dr Timothy Entwisle dated 24 October 2007 & 3
March 2010
Dr David Barton dated 8 June 2006; 20 June
2006; 27 June 2006; 27 August 2007; 25
October 2007;28 July 2008
Mr Damien Ireland dated 28 August 2008; 18
February 2009; 18 March 2009; 1 April 2009; 5
August 2009
Dr Susanne Homolka dated 7 October 2008 &
13 March 2008;
Dr Stern dated 10 October 2007; notes of
Langdon medical Centre; Co Work Pty Ltd
Labour Market Analysis Report dated 30 April
2009
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2
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