Bamford v Bruck Textiles Pty Ltd
[2010] VCC 1135
•17 August 2010
| IN THE COUNTY COURT OF VICTORIA | Unrevised |
Not Restricted
AT WANGARATTA
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-00246
| RONALD BRUCE BAMFORD | Plaintiff |
| v | |
| BRUCK TEXTILES PTY LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Wangaratta |
| DATE OF HEARING: | 27 and 28 July 2010 |
| DATE OF JUDGMENT: | 17 August 2010 |
| CASE MAY BE CITED AS: | Bamford v Bruck Textiles Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1135 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – injury to the right and left wrists – complex regional pain syndrome - pain and suffering only – whether consequences to the plaintiff are serious.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T S Monti and | Nevin Lenne & Gross |
| Mr G Pierorazio | ||
| For the Defendant | Mr W R Middleton SC and | Wisewould Mahony |
| Ms J M Forbes | ||
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant on 18 July 2007 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this case is the right and left wrists.
5 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6 The impairment of the body function must be permanent.
7 Subsection 38(h) provides that consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
8 The plaintiff bears an overall burden of proof upon the balance of probabilities.
9 By subsection (38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
10 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
11 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica (2006) 14 VR 602.
12 In conformity with Barwon Spinners, in the present case I must identify the injury and impairment arising after 20 October 1999. I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after the injury: See Petkovski v Galletti (1994) 1 VR 436 and Guppy v Victorian WorkCover Authority (2010) VSCA 164.
13 The plaintiff relied upon three affidavits and he was cross-examined. The plaintiff’s wife, Rosalyn, swore an affidavit on 16 June 2010. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
14 The plaintiff is aged sixty four, having been born on 24 May 1946. He is currently in receipt of WorkCover payments in relation to the injuries the subject of this application.
15 The plaintiff commenced employment with the defendant in July 1993 on a full time basis as a textile worker in quality control.
16 Prior to that employment, the plaintiff worked as a car salesman. He also was the owner of a mixed business in Coleraine, Victoria, where he worked for about fifteen years.
Pre-Incident Health
17 The plaintiff deposed that on 9 December 1998, he suffered a sprain/break to his right wrist at work when he slipped on some steep steps. He was in plaster for about eight weeks and made a full recovery. After that he had no problems.
18 In cross-examination, the plaintiff confirmed that he did not have any problems with this injury to his right wrist. He was told it was a strain and did not think it was a fracture.
19 During his employment with the defendant, the plaintiff suffered the development of a bilateral hernia (“the hernia condition”) as a result of the requirement to push heavy trolleys.
20 On 24 May 2004, the plaintiff felt a tearing sensation in his groins and they were very sore. He was treated by Dr Hawkins, his general practitioner, who referred him to Mr Thomas, a surgeon, who operated on the right sided hernia in May 2006. The left sided hernia was treated conservatively.
21 Having lodged a claim for weekly payments for the hernia condition which was accepted, the plaintiff returned to modified duties in August 2006.
22 In 2006 he was treated by Dr Todhunter, who prescribed Lyrica tablets because he had Regional Pain Syndrome in that area.
23 The plaintiff deposed that he continues to suffer groin pain more in the right. If he overexerts himself his groins play up and it is a problem if he pushes himself too hard.
24 The plaintiff deposed that his groin injuries in themselves were not enough to stop him from returning to work with the defendant, however combined with his subsequent hand injuries, they were a problem.
25 In cross-examination, the plaintiff agreed that after the hernia operation, for a little while he continued to have problems but said “it was alright now”. He tried a TENS machine. He had very small doses of Lyrica for his right groin. He could not remember the dosage. It may have been 150 milligrams.
26 The plaintiff was cross-examined about a medico-legal examination by Mr Michael Long, general surgeon, in November 2006 in relation to the hernia condition.
27 The plaintiff agreed he was struggling at work after his hernia. There was a five kilogram lifting limit placed on his duties on his return to work in August 2006.
28 The plaintiff agreed that he told Mr Long that ever since the hernia operation he had sharp, episodic pain in the right groin, aggravated by movement, particularly getting up from a seated position. He could not drive to Hamilton or similar distances because he got pains and had to get out of the car.
29 The plaintiff agreed his groin symptoms were not improving when he saw Mr Long and they were still “grabbing” him “and all the rest”. He was limited in activities at home and someone mowed his lawns for him. His sleep was being disturbed by groin pain. The plaintiff also had arthritis in his thumbs and he was taking Panadol for pain relief.
30 The plaintiff’s evidence is confusing as to the type of work he carried out after he underwent hernia surgery. He said the defendant was pushing him to do heavier work and that he had a bad supervisor. However, he also said that work was no problem and he loved being at work.
31 In cross-examination, the plaintiff agreed that, of course, the hernia slowed him down but at that time he had no thoughts about leaving work. He might have said, like everyone says, “I’ve had enough of this place” but he would still be there today if he had not hurt his hands.
32 The plaintiff applied for a voluntary redundancy when “everyone else was doing it” but he was not successful. He denied that he applied because he was finding work too hard with the heavy rollers.
33 The plaintiff was cross-examined about entries in Dr Hawkins’ notes relating to sessions with counsellor, Jane Phillips, during 2006.
34 On 12 January 2006, Ms Phillips noted that the plaintiff had been overlooked at goal umpiring and he was very upset about it. He was commenced on Lexapro at that stage. He had fluctuating sleep patterns because of nightshift. He had a reduced appetite. The plaintiff denied, as she noted, that his concentration was impaired.
35 The plaintiff agreed that he told Ms Phillips that he used to be a happy bloke but agreed that something could have got him down at that time, as well as his problems after his radical prostate.
36 In May 2006, Ms Phillips reported that the plaintiff was walking gingerly after the hernia repair and he was edgy. She reminded him not to catastrophize and anticipate problems.
37 On 27 July 2006, Ms Phillips noted the plaintiff was back at work on light duties but found groin pain increased. He was having problems, waking at night. The plaintiff denied that he told her that “he was hoping to hang in until Christmas”. He would still be working with the defendant if he could and he denied he was ready to retire at that stage.
38 The plaintiff was asked about an attendance with Dr Hawkins on 22 February 2007 when she noted “pain is worse - will retire in June - getting head sweats with pain”. The plaintiff said that he might have told her that he wanted to retire, but he could not afford to.
39 The plaintiff admitted that as of February 2007, things were not getting any better with his groin and hernia but he had learned to live with it. Lyrica was being experimented with and Dr Todhunter had sent him to pain management.
40 Prior to the incident, the plaintiff was also having problems with his right knee. He complained of knee pain during 2002. In May 2003, his right knee was still painful and he was taking Celebrex.
41 Right knee pain was persisting in March 2005 and was worse with goal umpiring. The plaintiff’s right knee pain might have stopped him umpiring for a couple of weeks but if he wore brace on it he could still umpire.
The Incident
42 Following a union meeting on the said date, the plaintiff fell outside the defendant’s premises, landing facedown, taking his weight on his hands (“the incident”). The plaintiff was assisted by a fellow worker and then got himself into his car and drove to his home, which was just around the corner.
43 The plaintiff attended the Accident and Emergency Department at North East Health, Wangaratta (“the Hospital”), where his grazes were cleaned up and his right knee laceration was sutured. There was some discussion at that time that the plaintiff had sprained his hands. The Hospital Resident told him to call back in the morning if his hands were still painful or swollen.
44 The next morning the plaintiff attended his general practitioner, Dr Hawkins, who ordered x-rays be carried out. The x-ray results were unclear, and given the symptoms and possible fractures, Dr Hawkins arranged for Ms Keith, an orthopaedic surgeon, to examine the plaintiff.
45 The plaintiff was somewhat confused in cross-examination as to which doctor he actually saw at the Hospital.
46 The plaintiff deposed that Ms Keith admitted him to the Hospital for the night and the following day a CT scan was carried out which revealed fractured triquetral bones in both wrists. Plaster casts were applied to both hands and elbows, with only the plaintiff’s thumbs exposed slightly from the plaster.
47 After the plaster was removed some eight weeks later, the plaintiff developed shaking hands and forearms and has been diagnosed with Reflex Sympathetic Dystrophy (“RSD”) in both arms. The pain in the left hand is worse than the right but both are very painful and shake uncontrollably.
48 Since the incident, the plaintiff has not returned to work and has been certified as totally unfit for any duties.
49 The combined continuing symptoms of pain in both wrists, with the left being worse and the sharp pain in conjunction with his symptoms, preclude the plaintiff from returning to work and he does not believe he would be able to undertake any suitable employment similar to the work he did with the defendant.
Pain and Restrictions
50 In June 2009, the plaintiff deposed that his pain fluctuated and sometimes it was unbearable and sometimes not too bad. His right wrist was better than his left but not by much.
51 Most afternoons, after he did too much, the plaintiff had to rest on top of the bed because he was in so much pain and because of the effect of his medication.
52 The plaintiff’s hands are sweaty and discoloured. His hands go cold and black “when he had them down.”
53 His sleep at night was not good and he woke on and off. This was as a result of his hands jumping and “carrying on”. His hands shook when he cuddled his wife. He also sweated profusely. At night he had to change the pillowcase occasionally. He used a towel to dry himself.
54 Because of his hands, the plaintiff cannot do very much. With medication, the plaintiff rated his left hand pain at nine out of ten pain on a really bad day and on a good day, about eight out of ten. By 5.00 pm his pain level was up to nine again and he had to take more tablets. The plaintiff rated his right pain at seven and at its highest at eight out of ten.
55 In cross-examination, the plaintiff said that he chose to open the car door with mainly his right hand. He used a key in his right hand. Ninety nine per cent of the time he would choose to use his right hand.
56 The shaking in the plaintiff’s hands does not go away. Accordingly, he stays away from people because he is embarrassed by it. He puts up with it; there is nothing he can do about it and he will not cry himself to sleep at night as a result. He is very fortunate to have a great, supportive wife.
57 The plaintiff does not have a problem with the tremor if he does not touch anything but then he starts to shake when he puts pressure on his hands and he has no control over them. His wrists stop shaking by themselves when weight is taken off them.
58 When it was suggested to the plaintiff in cross-examination that when his attention was taken away from his hands, they did not shake at all, the plaintiff explained that if he put pressure on his hands they shook, such as when he was exerting any pressure driving.
Treatment and Medication
59 In cross-examination, the plaintiff confirmed there was no improvement after he underwent the ganglion block in February 2008, not even pain relief. About two minutes after the procedure, the pain returned.
60 The plaintiff had physiotherapy treatment for his hands from Ms Barbara Binks, last having treatment in June 2008.
61 The plaintiff has been seen by Mr Ring, a neurologist. Mr Ring told him everything was “OK”, he was not “nuts or anything”.
62 The plaintiff did not see Miss Keith after the operation other than the day of the meeting in December 2007 at the Hospital when he also saw Mr Leitl, Mr Falkenberg and also Mr Seager.
63 Dr Todhunter did not perform a spinal stimulator because he told the plaintiff it was very dangerous and that pain management was a better course.
64 The plaintiff undertook a three month pain management course in mid 2009 under Dr Todhunter’s care. Despite undertaking that course, the plaintiff had no real change in his physical condition.
65 The plaintiff was and still is in a lot of pain which is sometimes unbearable and sometimes not too bad. The course did help him “to breath” but did not help a great deal with pain. It showed him ways and means to live with his pain. The plaintiff kept a pain diary but he no longer has it. He may have sometimes written in it but his wife did most of the writing because of his hands.
66 The plaintiff used to go to a heated indoor pool twice a week for hydrotherapy treatment.
67 As of April 2010, the plaintiff was taking Endone tablets, 20 milligrams, one tablet every four hours and also applying a Norspan patch, 10 micrograms an hour, once a week. The medication knocked him around.
68 In cross-examination, the plaintiff said that he also takes fifteen OxyContin in the morning and twenty at night, prescribed by Dr Hawkins.
69 Whilst giving evidence, the plaintiff indicated the site of his hand pain. He pointed to the top of his left hand going into his fingers and up his arms up to his elbow and confirmed he had the same problem with his other arm. Both arms were very tight and he had some numbness in his fingers.
Activities
70 Whilst the plaintiff did not mention goal umpiring in his three affidavits, his wife deposed that the plaintiff had been unable to goal umpire as much because of his wrist injuries.
71 The plaintiff was cross-examined about the extent of his goal umpiring prior to the incident and around the time of his hernia operation. He goal umpired roughly for twelve years but he “would not have a clue” what years he umpired.
72 The last time he umpired was the first match of the year when he hurt his hands. The plaintiff thought in the preceding year he had umpired in some finals. He might have come back for about four or five matches after his hernia operation. He also did not umpire for a while when he had prostate cancer.
73 The plaintiff maintained that he was not goal umpiring because of his wrist injuries because his hands would shake too much and because of the pain. He could not hold two sticks or wave the flags.
74 The plaintiff agreed no doctor had ever suggested to him he could not do goal umpiring.
75 In re-examination, the plaintiff confirmed his love of goal umpiring. For him to goal umpire was “half his life”. He was on football club committees and “all that type of stuff”. He used to love going to training and meeting people and travelling all over the north east of the state.
76 The plaintiff’s hands swell up when he drives. That makes it difficult for him and his wife because she des not drive a car because of her poor eyesight.
77 The plaintiff is unable to drive to Melbourne and he has to take the train or have someone else to drive him because it is too far. When he drives his hands start shaking and he cannot put pressure on them.
78 The plaintiff last drove to Hamilton to see his mother about six months before the incident and denied that he last drove there before his hernia operation.
79 When the plaintiff drives his hands are very light on the steering wheel. It is not difficult to operate the indicators. If his wife is in the car with him, he sometimes gets her to put the car into reverse.
80 The most the plaintiff would drive would be about twenty kilometres. After driving to places such as Milawa, Glenrowan or Beechworth, the plaintiff’s hands are in so much pain from driving that he cannot sleep that night.
81 The plaintiff does not wash his car because of the pain in his hands
82 The plaintiff has difficulty doing simple domestic things, such as turning on a tap. When he goes to Coles he does not use his hands to push the trolley; he uses his body.
83 When going shopping, the plaintiff always uses his right hand. He wraps the shopping bags over his right wrist and forearm. Sometimes he carries a little bit of shopping in his left hand.
84 The plaintiff has to use his right hand more because his left hand is worse. He would carry things like a newspaper in his left hand but not very often. He might have carried a light paper in his left hand but he would not have carried anything heavy.
85 The plaintiff requires assistance with eating, dressing and general hygiene. He has to get his wife to cut up steak for him as the pain in his hands is too great.
86 When the plaintiff eats he has to keep his hands as loose as possible because they can start shaking fairly vigorously. He can make himself a cup of coffee at home and uses a small kettle which he lifts with his right hand because he cannot lift it with his left.
87 The plaintiff uses his right hand for personal hygiene tasks. He dresses himself but if has to do up something really hard he gets help from his wife.
88 In cross-examination, the plaintiff was asked to undo the button on his polo shirt with his left hand. He was able to do so. He rated his pain at seven-and- a-half at that time. The plaintiff finds it pretty easy to tie up his runners using two hands lightly.
89 The plaintiff has not done any gardening since the incident. He might however, put some weeds in the bin after his wife had pulled them up.
90 The plaintiff walks quite regularly, including to the shops. He still has pain in his groins which is worse on the right side. He walks to the milk bar or down to Coles. He finds that when he walks, his arms do not shake but when he puts pressure on them they shake uncontrollably, which is very embarrassing for him.
91 The plaintiff goes for a walk with his dog, with the dog on a lead. The dog does not pull on the lead. The plaintiff takes his dog for a swim down the river. To his knowledge, he always holds the lead in his right hand around his wrist.
92 Occasionally the plaintiff sees a mate down the road and he does some shopping with his wife.
93 The plaintiff does what he can around the house. If the wheelie bin is heavy, his wife takes it out, or if it is light, he does it and he is able to bring it in. He takes the bin out half full and brings it back empty. He does not grip it with his hands
94 The plaintiff used to do a far bit of housework before the incident but he now does very little. He is able to do some vacuum cleaning and other general cleaning duties of a light nature. He can also manage some light washing and drying of dishes.
95 In cross-examination, the plaintiff was asked whether or not he could wash his hair. He responded to the question by putting his left hand up to the top of his head. He agreed that when he did this his left hand was not shaking because he did not have pressure on it. When the plaintiff put his left hand up a second time it started to shake.
96 The plaintiff has seen his hand shake for four or five minutes non stop but said the pain is the main thing. His hands always hurt.
97 In cross-examination, the plaintiff was asked to write his signature on a piece of paper. His hand stopped shaking when he put pen to paper but before he started writing it was shaking. His signature was tendered.
98 Because of his injuries and the impact they have had on his life, the plaintiff is somewhat anxious but he is more moody, irritable and angry. His depression makes him moody and he is not himself.
99 The plaintiff is aware that some doctors who have examined him believe he is faking his injuries. “On his oath”, the plaintiff was not doing so and he was telling the truth. The flapping tremors were a horrible thing to live with and he did not like taking the medication that he had to take. The plaintiff denied that he was feigning his symptoms.
Lay Evidence
100 The plaintiff’s wife, Rosalyn Bamford, swore an affidavit on 16 June 2010. She has been married to the plaintiff for thirty three years.
101 Mrs Bamford deposed that prior to the incident, the plaintiff was very well and fit apart from prostate cancer, from which he suffered and from which he made a good recovery.
102 The plaintiff is now unable to mow the lawns because of his injuries and his ability to undertake household work is very much diminished. He only does very light household duties. This is in contrast to his ability to engage in housework prior to the incident.
103 Further, the plaintiff has been unable to goal umpire as he did prior to his hand injuries. This was a very big part of his life and he enjoyed it immensely. On Saturdays, the plaintiff now gets very “testy”. It annoys him that he cannot goal umpire.
104 As a result of his injuries, she now cuts up the plaintiff’s meat and chops if “his hands go off”. It is very embarrassing for the plaintiff when he starts shaking in public and his hands can “go off” when they are out having a meal.
105 She has observed that when pressure is placed on the plaintiff’s hands "they go off” and they start trembling. The plaintiff’s hands shake in bed “something shocking”.
106 As a result of the plaintiff’s injuries, their social life has decreased significantly.
107 As a result of a medical condition, she does not drive. Accordingly, because the plaintiff’s ability to drive has been limited, the plaintiff only drives short distances to local shops. They do not go on long drives as they used to in the bush or go for walks very much at all.
The Plaintiff’s Medical Evidence
108 Dr Caroline Hawkins, general practitioner from the Wangaratta Medical Centre reported on 18 June 2007. She confirmed the plaintiff suffered bilateral triquetral fractures when he fell at work. He had pain and swelling in both wrists and hands, and suffered a pretibial laceration.
109 In her view, the injury was not an aggravation of a pre-existing injury/disease, and there were no non-work related factors affecting the plaintiff’s claim.
110 At that stage, Dr Hawkins thought rehabilitation would facilitate a return to work; however, she thought the plaintiff had no current work capacity.
111 North-East Health, Wangaratta, wrote to Dr Hawkins on 29 June 2007. It was noted the plaintiff re-presented to that clinic ten months after the fractures, which had been managed non-operatively. On 29 June 2007, it was noted that the plaintiff demonstrated classical signs of RSD.
112 Dr Todhunter, specialist anaesthetist and pain medicine expert, wrote to Dr Hawkins on 3 August 2007.
113 Dr Todhunter had reviewed the plaintiff on 24 July 2007, at which time the plaintiff told him that Lyrica had helped reduce his right groin pain. The plaintiff told him that his activity overall had been curtailed, because shortly after Dr Todhunter saw him he fell and fractured bones in both hands.
114 Dr Todhunter noted that the plaintiff had some ongoing pain in the left hand, and signs of a CRPS, with a degree of tremor and swelling and sweating.
115 As of August 2007, Dr Todhunter thought the plaintiff needed to continue with Lyrica, and in fact he increased the dose to 150 milligrams in the morning and 300 milligrams at night. He thought the plaintiff needed to increase his activity as much as he could, and use his left hand as much as he could.
116 Dr Todhunter again wrote to Dr Hawkins on 26 February 2008. He mentioned that on 18 February 2008, he gave the plaintiff a left stellate ganglion block at the T1 level, injecting Lignocaine.
117 Dr Todhunter gave the plaintiff a pain diary to keep a record of his pain and his tremor. Dr Todhunter noted that he would have a better idea as to whether the plaintiff had any evidence of sympathetically maintained pain based on the diagnostic injection when he returned to see him.
118 On 11 March 2008, Dr Todhunter reported to Dr Hawkins that the plaintiff did not derive any benefit following the cervical sympathetic block with stellate ganglion. Dr Todhunter advised that there was simply no cure or way of reducing the plaintiff’s pain directly without resorting to more complex procedures such as a spinal cord stimulation, which he did not feel was appropriate. Further, Dr Todhunter advised that he would not be prepared to undertake any more complex interventional procedure until the plaintiff had done a cognitive behavioural pain management program, and he advised the plaintiff to consider that approach further.
119 Miss Prue Keith, orthopaedic surgeon, was involved in a clinical orthopaedic meeting at North East Health, Wangaratta, on 21 December 2007, which was also attended by Mr Leitl, Mr Falkenberg and Dr Warren Seager (“the meeting”).
120 Following the meeting, Miss Keith reported to Dr Hawkins on 2 January 2008 that she had spent a considerable amount of time considering the plaintiff’s case. She noted that he had been attending the Orthopaedic Fracture Clinic, and had been seen by her on a number of occasions.
121 Miss Keith noted, importantly, at the meeting was Mr Leitl, who worked in a number of large medico-legal cases and had substantial and valuable experience in the management of orthopaedic conditions.
122 Miss Keith advised Dr Hawkins that those who attended the meeting concluded that the plaintiff, while acknowledging that he may well have signs of a CRPS as outlined by Dr Todhunter, was also showing significant abnormal behavioural responses to his initial underlying condition and it was their feeling there was a substantial elaboration of signs and symptoms that were not in keeping with his initial condition.
123 Miss Keith therefore advised that they would not offer the plaintiff any surgical procedure. She noted the plaintiff’s orthopaedic condition, while in some respects was mildly symptomatic, did not require aggressive management at that stage and was effectively stable.
124 Miss Keith advised that she had no further plans to review the plaintiff and thought he would be best managed by Dr Todhunter but she considered the plaintiff also may benefit from a psychological or psychiatric review at some stage if his problem continued.
125 Following the meeting, Miss Keith also wrote to the plaintiff advising of the meeting and the fact that the assessment of those attending was in concert with her original opinion, namely that the contribution of the fractures to the plaintiff’s present symptoms was effectively negligible and there were other issues at that stage which were contributing to his complex of symptoms.
126 Miss Keith advised the plaintiff she had received correspondence from Dr Todhunter dated 14 December 2007 in which he had made some reasonable recommendations regarding the plaintiff’s management. She advised the plaintiff there was no indication at all that he would be helped by any orthopaedic intervention, including surgery, and at that she would approach his orthopaedic issue in a conservative manner with observation only. She was going to leave him to Dr Todhunter’s management.
127 Miss Keith also advised she had discussed the plaintiff personally with Dr Ring. Dr Ring told her that he did not feel there was any underlying neurological issue that needed to be dealt with at that stage.
128 Dr Langenegger wrote to Gallagher Bassett on 4 August 2008 requesting funding for a pain management program, noting the plaintiff had recently undergone screening for participation in an inpatient chronic pain management program, having been referred for ongoing problems with chronic right groin pain and bilateral hand pain.
129 By letter dated 26 June 2009, Dr Langenegger advised Gallagher Bassett that the plaintiff had participated in an inpatient program from 8 to 26 June 2009. She detailed the self management plan for the plaintiff’s pain, and noted that he had made some positive gains in the program.
The Plaintiff’s Medico-Legal Evidence
130 Dr James Rowe, occupational physician, examined the plaintiff on 12 September 2007 at the request of Gallagher Bassett.
131 At that stage, the plaintiff complained of ongoing pain in both inguinal areas. He had constant pain and difficulty with his walking, and had seen Dr Todhunter in that regard. He had been prescribed Lyrica, 150 milligrams, twice per day, and was also taking Lexapro and Somac.
132 Dr Rowe also took a history of the incident.
133 Dr Rowe noted the most recent CT scan taken on 20 August 2007 showed un-united comminuted fractures of the triquetral bones of both wrists.
134 On examination of the wrists, the plaintiff had intention tremor in both hands and he had an extremely weak grip of less than five kilograms in both hands.
135 The plaintiff had limited movements of both wrists, limited by pain. There was some swelling about the radial border of both wrists. There was no change in sensation about the plaintiff’s arms or hands. His left hand was perspiring. It was bluish, that is, it was somewhat cyanosed.
136 Dr Rowe noted the plaintiff had suffered from bilateral fractures which had not responded to immobilisation. He commented that in fact the plaintiff had now developed RSD, at least in the left hand, as a result of this injury or following that injury and he had diffuse osteoarthritis in both wrists.
137 At that stage, Dr Rowe thought the plaintiff was unfit for any work. Dr Rowe noted it was possible surgery could be offered to him with regard to his wrists and it was possible that bone grafting or fusion could take place.
138 Dr Rowe suggested a report be obtained from Mr Falkenberg. In terms of the RSD, he suggested a report could be obtained from Dr Todhunter.
139 In Dr Rowe’s view, the plaintiff’s problem was he could not use his hands. He had now, probably as a result of the medication prescribed, developed intention tremors in both arms and hands which further complicated matters. In such circumstances, he thought it might help if the plaintiff’s medication was modified or ceased. He considered the plaintiff’s prognosis was quite poor and it was possible he may never be able to return to work.
140 Professor Vernon Marshall, surgeon, examined the plaintiff on 28 March 2008 on behalf of Gallagher Bassett. All investigations were available to him.
141 Professor Marshall noted on the left side the comminuted fracture remained ununited with sclerosis at the fracture margins consistent with non union and associated with patchy loss of bone density, suggestive of disuse atrophy. He also found signs of associated arthritis of the left thumb.
142 It was noted the plaintiff was not having any formal physical treatment and that he walked as much as he could.
143 On examination, findings were confined to the arms where the plaintiff had a striking and marked intention tremor with galvanic and twitching movements affecting both arms and hands, particularly the left, where twitching was more extreme and almost convulsive.
144 The plaintiff had associated marked colour changes in both hands, particularly the left, where the hands and fingers became cold, sweaty and purple. Range of movement of the wrist and hands was reasonable but difficult to maintain activity because of the persisting and repeated twitching.
145 The plaintiff’s pain and tenderness of the wrist was predominantly on the outer side of the wrist on the dorsum and palm and not specifically related to the site of the previous fractures where there was minimal continuing tenderness.
146 Professor Marshall diagnosed bilateral wrist fractures, Post-Traumatic Chronic Regional Pain Syndrome Type I (RSD) and post-traumatic non-organic tremor of both hands.
147 In Professor Marshall’s view, the plaintiff now had stable non union of the fractures but had developed a Post Traumatic Regional Pain Syndrome with associated evidence of sympathetic overactivity/RSD. He had also developed an additional marked intention tremor with convulsive tick like spasms affecting both arms, particularly the left. Professor Marshall noted that the spam did not follow any organic pattern and he agreed with the diagnosis of non organic tremor following the injury, with possible pain amplification.
148 Professor Marshall thought the plaintiff was totally impaired for pre-injury or any other duties as a result of his continuing significant symptoms.
149 Professor Marshall noted that RSD is a condition of complex aetiology in which vascular and sympathetic overactivity follow injury and persist even though the original injury has healed or stabilised, as in this case. In his view, those symptoms continued to be directly related to the plaintiff’s work injury.
150 That injury had not resolved or stabilised although, in Professor Marshall’s view, the physical effects had largely stabilised.
151 Professor Marshall thought that the plaintiff had clinical features typical of RSD and noted that that condition was often complicated by superimposed abnormal illness behaviour or pain amplification syndromes and he believed that was also likely to be contributing to the plaintiff’s continuing problems.
152 Professor Marshall further reported on 2 July 2008, having seen surveillance film which is not in evidence.
153 Professor Marshall last reported on 17 October 2008, having been asked to comment on some jobs suggested for the plaintiff and also in relation to funding the plaintiff’s participation in a chronic pain management program.
154 Professor Marshall advised that he believed the funding request was reasonable but thought it was unlikely that its effect would be to enable the plaintiff to return to the workplace in view of his persisting symptoms, which Professor Marshall believed were predominantly of a non organic nature, and his age and length of time off work.
155 Mr Leitl, orthopaedic surgeon, examined the plaintiff on 28 April 2009 at the request of Gallagher Bassett. The plaintiff told him that when the plasters were removed and physiotherapy started, he developed a bizarre tremor of his upper limb involving mainly his hands and forearms and developed signs of a CRPS.
156 In terms of his domestic situation, the plaintiff said he occasionally did a bit of vacuuming. He dried a few dishes; he was able to make a cup of coffee for himself and his wife. He was able to drive locally and he was able to go shopping using a green bag which he carried either in the crook of his right elbow or over his right shoulder. Occasionally his wife dried his back and he was able to cut up his meals, including meat.
157 Mr Leitl noted the plaintiff’s descriptions of home based activities and activities of daily living were not in keeping with his claim that he had a constant tremor in both arms.
158 On physical examination, of obvious note was an unusual flapping tremor that varied in intensity and affected both upper limbs from the elbows distally and was most pronounced in the hands.
159 Examination of the plaintiff’s wrists showed a normal contour. It was difficult to establish, but there appeared to be a reduced range of motion in both wrists. There was generalised non repeatable tenderness and not specifically over the triquetral bones.
160 Examination of the plaintiff’s hands showed that the left was cool to touch and had a purple colour and there was no increased swelling. There was reduced sensation of the tips of all fingers, particularly in the left hand.
161 Mr Leitl had available to him all investigations and he confirmed the findings of comminuted fractures which were not united.
162 Mr Leitl diagnosed bilateral fractures, CRPS Type I and Chronic Pain Syndrome.
163 Mr Leitl thought that the flapping tremor was non organic in origin. In his view, it was unlikely the plaintiff had any dysfunction of his wrist directly relating to the previous fractures, because they were not tender at specific examination. There was objective evidence that the plaintiff still suffered from RSD as there were changes supporting that diagnosis on examination of his left hand.
164 In Mr Leitl’s view, psychological factors were present, particularly in regard to the finding of the tremor. He thought there appeared to be significant non work related factors present.
165 Mr Leitl considered, as the plaintiff presented, he had no current work capacity and that he was not fit for his pre-injury or suitable employment.
166 Mr Leitl commented that the plaintiff had not worked for the last two years and now had a large entrenched self perceived infirmity. He doubted the future pain management program would be able to overcome those self perceived problems, and that even with such a program, the plaintiff’s prognosis for further recovery was poor.
167 Mr Littlejohn, rheumatologist, examined the plaintiff on 30 July 2009 on behalf of Gallagher Bassett.
168 Mr Littlejohn noted movements of the wrist were difficult to assess because of the plaintiff’s persistent tremor. Mr Littlejohn felt both wrists probably had a seventy five per cent normal range of motion to extension, flexion, radial and ulnar deviation.
169 Neurological examination was unremarkable in both upper limbs, with normal sensation, power and muscle tone and there was no wasting.
170 The plaintiff did, however, have dysaesthesia on palpation of the hand bilaterally. He was more sensitive than he should have been to light touch in a non neuroanatomical distribution. Those changes in the hand were also seen in the lower aspect of the forearm.
171 Mr Littlejohn noted there was no overt colour change in either hand although they felt cooler than would be expected. There was no change in nail or hair growth.
172 Mr Littlejohn considered the key finding on examination was in the hands and included the non neuroanatomical dysethesia but, more prominently, the coarse irregular tremor affecting hands and lower forearms. He noted the tremor varied a lot through the interview, being more prominent when the plaintiff was formally asked to perform activities with his hands.
173 In Mr Littlejohn’s view, the plaintiff had suffered the fractures and, consequent thereto, he had developed symptoms consistent with RSD.
174 Mr Littlejohn noted the symptoms had comprised mainly pain and other sensory changes, including colour changes and temperature change in the hands in particular. He noted the plaintiff had also developed a variable tremor which seemed to be worse when he was under stress than when he was relaxed.
175 In Mr Littlejohn’s view, the plaintiff continued to suffer from the consequences of his injury, namely resolving RSD. Mr Littlejohn noted RSD Syndromes invariably involved significant input from psychosocial factors and he believed this was the case. He noted that plaintiff also had significant input from the fractures themselves, providing both physical and emotional trauma. In his view, there were significant psychological factors involved in the plaintiff’s presentation causing the clinical features that had been described, namely pain, sensory changes and tremor.
176 Mr Littlejohn thought the plaintiff had a current work capacity for modified duties but not his pre-injury employment and that future employment would require a work employment assessment. Mr Littlejohn considered the use of hands would be difficult, noting various activities which gave the plaintiff problems, such as driving, mowing the lawn and vacuuming. He thought the plaintiff, in those circumstances, would need to retrain or have a job that was very sedentary and involving verbal interaction or similar.
177 Mr Littlejohn commented that it was usual that conditions such as that suffered by the plaintiff improved gradually over time. He noted often unresolved psychosocial stressors, such as medico-legal deliberation, provided significant input to allow continuation of these pain syndromes. He thought it was possible therefore, that in the future things might improve more than was currently evident. He considered the plaintiff’s prognosis for improvement was guarded but possible.
178 Dr Blombery, consultant physician in vascular disease, examined the plaintiff on 27 May 2010 at the request of his solicitors.
179 Dr Blombery noted that a diagnosis of CRPS had been made and the plaintiff had been referred to Dr Todhunter who had trialled Lyrica and carried out a nerve block on 18 February 2008.
180 On examination, the plaintiff had a prominent tremor affecting both arms, more marked on the left. The tremor increased when he was anxious and when asked to move his arms. The left hand developed a flapping tremor when the plaintiff was asked to look at his hand. Dr Blombery found the left hand was redder than the right and two degrees cooler.
181 The plaintiff could not make a fist as he could not flex his fingers, however, Dr Blombery noted, observing the plaintiff’s hands during the consultation, his metacarpophalangeal joints flexed fairly normally.
182 Dr Blombery noted a significant difference in temperature and colour of the left hand compared to the right. He thought the plaintiff therefore had features of RSD and fulfilled all the criteria of the International Association for the Study of Pain for that diagnosis.
183 In Dr Blombery’s view, the plaintiff’s management should be in the nature of multidisciplinary therapy for chronic pain.
184 Dr Blombery noted the very prominent involuntary movements. He thought, on the basis of his examination, it was very likely there was a subconscious psychological contribution to those movements. He noted CRPS was reported as being associated with involuntary movements in some patients and he had certainly observed them, however, they were usually different in nature to those he observed in the plaintiff.
185 In Dr Blombery’s view, the prognosis for recovery was extremely poor and he considered there would be no significant change in the plaintiff’s level of disability in the foreseeable future. He noted it was three years since the injury and the plaintiff was well established in his CRPS Type I.
186 Dr Blombery thought there was a significant reduction in the plaintiff’s ability to perform domestic, social and recreational activities and that would continue for the foreseeable future. Further, he thought the severity of the plaintiff’s incapacity would prevent him from doing any form of work at the moment or in the future. That was both because of the ongoing pain as well as the prominent tremor and the need to take potent medications which had central sedative side effects.
Investigations
187 An x-ray of the wrists and hands was carried out on 17 April 2007. It was noted the clinical history was of “trauma at work - fall, now very swollen, painful wrists and hands with a reduced range of movement”.
188 On the left, the study confirmed the presence of a fracture involving the left triquetral, with dorsal displacement of bone fragment and associated soft tissue swelling.
189 On the right, there was a similar fracture involving the triquetral with dorsal displacement of two bone fragments. There was associated soft tissue swelling.
190 A CT scan of both wrists was carried out at the request of Miss Keith on 18 April 2007. It showed bilateral comminuted fractures of the triquetrum, both sides showing involvement of the articular surface.
191 X-rays of the hands were carried out on 1 June 2007. On the left, when compared to the previous study of 17 April 2007, it was noted that there had been no significant integral change in the position of the triquetral fracture.
192 On the right, the two displaced bone fragments related to the dorsal aspect on the carpus (17 April 2007) were not as evident on the current examination. Alignment was otherwise maintained.
193 On 29 June 2007, Mr Falkenberg organised further investigations of the plaintiff’s hands.
194 On the left wrist there was some sclerosis and irregularities seen with respect to the dorsal aspect of the triquetrum on the oblique film, consistent with healing fractures.
195 On the right side, there was an avulsed fracture fragment seen arising from the dorsal aspect of the triquetrum. This remained displaced on the lateral film. Moderate degenerative pathology was seen in the distal scaphoid articulation and carpometacarpal joint of the thumb.
196 A CT scan of both wrists was carried out on 20 August 2007. A direct comparison was made with the examination performed on 18 April 2007.
197 On the left side, the comminuted fracture of the triquetral bone remained ununited and there was sclerosis at the fracture margin consistent with non union. Both the dorsal and volar fragments were ununited. There were a few other associated tiny bony fragments. There was patchy regional osteopenic consistent with disuse and moderate osteoarthritic change seen within the carpometacarpal joint of the thumb.
198 On the right side, there was an oblique fracture through the medial aspect of the right triquetral bone extending posteriorly. There was minor fragmentation seen with respect to the volar aspect of the fracture. Fracture fragments appeared largely ununited. There was patchy regional osteopenia noted, which was consistent with disuse. There was also osteoarthritic changes within the distal scaphoid articulation and also the carpometacarpal joints of the thumb.
199 On 9 November 2007, a CT scan of both wrists was organised by Dr Hawkins and sent to Miss Keith.
200 On the left side, axial scans were performed with sagittal and coronal reconstructed images. There was bony deformity seen with respect to the posterior aspect of the triquetrum consistent with healed fractures. The oblique fracture of the anterior aspect of the triquetrum was incompletely united but the degree of union appeared to have progressed slightly when compared to the study performed on 20 August 2007. There was moderate degenerative pathology in the carpometacarpal joint of the thumb.
201 On the right side, a posteromedial fracture of the right triquetrum remained ununited. The fracture margins were sclerotic and there was slight persistent displacement. It was noted there may be a mild increase in the degree of sclerosis of the bony fragment when compared to the study performed on 20 August 2007. There was moderate degenerative pathology in the carpometacarpal joint of the thumb.
The Plaintiff’s Other Evidence
202 The surveillance activity report prepared by the Axiom Group on 16 July 2010 was tendered. It related to surveillance of the plaintiff undertaken on 13 and 14 July 2010. It was noted, at 11.15 am on 13 July 2010, the video showed the plaintiff holding both hands clasped against his chest with a dog’s lead around his right wrist. At one point the plaintiff was observed reattaching the lead to the dog’s collar without restriction, raising his right hand to his face and adjusting his gloves.
203 On 14 July 2010 at 11.07 am, it was noted, as the plaintiff walked along the footpath he was clasping his hands together at chest height. It appeared he had a nervous twitch to his left hand as he approached the corner of Dock Street.
204 At 11.12 am, the plaintiff was observed walking towards Green Street, at first having both hands clasped to his chest, before releasing his right hand, which he moved to the buttock area on the right side before raising the same hand to his ear.
205 Various payroll reports detailing the plaintiff’s earnings with the defendant were tendered, as were previous earnings reports from 1 July 2006 to 15 April 2007.
The Defendant’s Medical Evidence
206 The plaintiff was examined for medico-legal purposes by Mr Michael Long, general surgeon, on behalf of QBE Insurance on 29 November 2006 in relation to the hernia condition.
207 At that stage the plaintiff was being certified fit for work involving lifting not greater than five kilograms, nor pushing or pulling of heavy loads.
208 The plaintiff told Mr Long that ever since the hernia operation he had sharp episodic pain. He found it necessary to take Tramadol once or twice a day because of pain and he had a slight discomfort in his left groin. Because of his symptoms, he had been placed on real light duties for the past four weeks and now was undertaking office type duties.
209 The plaintiff’s symptoms were not improving. Just walking was limited. He was unable to run. He was aware of right groin pain when driving. He continued to help at home but limited his activities. He needed to have someone to mow his lawns until two weeks earlier. He had attempted to return to his hobby of goal umpiring but found that difficult. His sleep was satisfactory although occasionally he was kept awake because of pain in his groin following a hard day at work. He had been somewhat down since his hernia operation and had been placed on Lexapro, of which he was taking ten milligrams a day, and also Mobic because of arthritis in his hands. He was also taking Tramadol for pain relief.
210 On examination, the plaintiff was troubled by twinges of severe pain in his right groin occurring unexpectedly when he moved.
211 Mr Long thought, post operatively, the plaintiff had developed features of nerve entrapment or irritation following surgery. He thought the plaintiff’s symptoms were entirely genuine.
212 The defendant also tendered the notes of the Wangaratta Medical Centre detailing treatment of the plaintiff from 20 November 2000.
213 During 2001, the plaintiff reported right chest pain. In July 2001, right groin pain was noted as present since last year and getting worse.
214 On 25 July 2002, the plaintiff complained of a painful right knee since 13 April 2002, which he twisted whilst stump wiring. He was prescribed Celebrex. The right knee was mentioned by the plaintiff again on 1 August 2002 and a letter was written to Mr Falkenberg, orthopaedic surgeon.
215 On 17 October 2002, the plaintiff’s knee was still very sore and Celebrex was being prescribed.
216 There was mention on 3 April 2003 of a very painful thumb with any use since the plaintiff had a right scaphoid fracture two years ago.
217 On 6 May 2003, the right knee was still very painful and collapsed. It was noted - “can’t afford to take time off yet but long service leave in ten months – still umpiring but with a brace”.
218 On 31 July 2003, there was “seven weeks off for radical prostatectomy”.
219 It was noted on 5 August 2003, the plaintiff was in plaster for six to eight weeks due to a WorkCover injury.
220 On 3 June 2004, the right knee was very painful – “work too heavy, put in for voluntary redundancy – if gets it, can’t claim unemployment for thirteen weeks so ?sick leave until finds a better job”. Celebrex was prescribed, as was Panadeine Forte on 23 September 2004.
221 There were reports of abdominal pain during 2004.
222 On 3 March 2005, the right knee pain was persisting and worse with umpiring, especially since ceasing Celebrex.
223 It was noted, on 28 June 2005, “bilateral groin pain after work, worse with heavy work. Can’t swim”.
224 On 22 February 2007, Dr Hawkins noted the plaintiff reported “pain is worse - will retire in June - getting head sweats with pain”.
225 Counsellor, Ms Jane Phillips’ entries appeared in the clinical notes relating to sessions with the plaintiff on 2 January, 9 March, 18 May and 27 July 2006.
The Defendant’s Medico-Legal Evidence
226 Mr Schutz, consultant surgeon, examined the plaintiff on 2 July 2008.
227 In Mr Schutz’s view, because of the most atypical presentation which may also indicate non-organic features, the findings were considered unreliable.
228 Mr Schutz noted, during the course of examination, the plaintiff had a hand tremor which varied from slight to extreme and at worst would be a likely cause of wrist/hand trauma.
229 On examination, the plaintiff had slightly cold and slightly sweaty hands on both sides, the left being more markedly abnormal than the right. However, after conclusion of the examination, which included quite a number of repeat tests of movements, the plaintiff’s hands were of equal temperature and there was no difference in colour and the sweatiness was the same.
230 Mr Schutz noted that although circulatory anomalies were present at the commencement of the examination, they were not present to the same extent symmetrically at the conclusion thereof.
231 Mr Schutz noted the comments made by Mr Thomas, who treated the plaintiff for his hernia condition, who referred to the plaintiff’s presentation as “hypomanic” when first seen. Mr Schutz noted that it seemed the plaintiff presented in a similar manner when he examined him.
232 Mr Schutz concluded, despite immobilisation, the fractures had remained ununited radiologically. From the enclosures provided to him, he noted that the plaintiff progressed to develop RSD which was treated with a block to the left arm that had resulted in no improvement.
233 In Mr Schutz’s view, the evidence was, however, that the clinical features taken to indicate possible RSD were the same on both sides and those findings improved during interview. In those circumstances, Mr Schutz thought that did not seem to be consistent with a diagnosis of a chronic condition such as CRPS.
234 Mr Schutz noted assessment was made exceedingly difficult as there was an abnormal presentation with an histrionic presentation, there was a variable tremor which could be extreme, and indeed so extreme as to probably cause damage and symptoms if they did not already exist. Because of the variable tremor, he thought that it was not possible to accurately define a range of movements, assess power, or the histrionic presentation impeded the definition of any possible sensory abnormality.
235 Mr Schutz commented that because of the highly inconsistent findings noted during examination and the variability of the tremor, assessment of movements could not be accurately carried out.
236 Dr A Jager, psychiatrist, examined the plaintiff in early 2009.
237 On examination, the plaintiff had an upper body tremor and at times a gross flapping tremor of both hands when discussing the presence of the tremor. He was very anxious, shaky and his speech was rapid. His thought stream was fluent and coherent and he described no bizarre beliefs or abnormal sensory perceptions.
238 Dr Jager could not confidently identify any mental disorder. He considered it more likely than not that the plaintiff’s symptoms were feigned. He thought non work-related matters were highly likely to be contributing to the plaintiff’s presentation and that surveillance film casted doubt on the plaintiff’s genuineness in terms of his presentation to other medical assessors.
239 On balance, Dr Jager considered the plaintiff had no incapacity for work. Dr Jager considered him fit for his pre-injury or alternative employment from a psychiatric perspective.
240 On 20 September 2008, the Medical Panel concluded that the plaintiff had an eight per cent whole person impairment resulting from the fractures, a right skin laceration and RSD. In the Panel’s view the plaintiff was not suffering from CRPS and there was no impairment attributable thereto.
241 On examination, the Panel found there was no focal muscle wasting. There was no evidence of any skin discoloration of the upper limbs and skin temperature in both upper limbs was equivalent. Peripheral circulation in both upper limbs was normal. All deep tendon reflexes were present and symmetrical. Sensory testing did not demonstrate any abnormality. There was no dysaesthesia. Examination of the wrists did not reveal any joint or soft tissue swelling. There was diffuse tenderness of palpation of both wrists with no particular localisation over the triquetrals bone region. On occasions light touch of the wrists was associated with a complaint of tenderness but this was an inconsistent finding. There was mild restriction of wrist movements bilaterally. Grip strength tests results were not consistent or reliable.
242 It was noted that x-rays demonstrated the fractures on the left which were comminuted and on the right side associated with minimal displacement. The most recent imaging performed in November 2007 demonstrated satisfactory progression of bony union bilaterally
Video Surveillance
243 Video surveillance was taken of the plaintiff’s activities on 8 and 9 April 2010. There was a total of about thirty five minutes film of the plaintiff getting in and out of the car, walking with a limp along the street, walking his dog and also going shopping.
244 On 8 April 2010, the plaintiff was shown for about three of four minutes walking along the street carrying something which looked similar to a brown paper bag of meat in the crook of his left arm.
245 In cross-examination, the plaintiff agreed that at no time was he shown experiencing any tremor but he said he was not exerting any pressure. The plaintiff agreed that the film did not show him having problems with his arms, but then said he always had excruciating pain.
246 The plaintiff was shown at various times on 9 April 2010 scratching his head and also scratching the middle of his back with his left hand without demonstrating any tremor.
Findings
247 The plaintiff suffered a compensable injury when he fractured the triquetral bones in both wrists in the incident.
248 The most recent investigations carried out in November 2007 on the left showed a bony deformity with respect to the posterior aspect of the triquetrium consistent with healed fractures. The oblique fracture of the anterior aspect of the triquetrium was incompletely united but union appeared to have progressed slightly when compared to the August 2007 study.
249 On the right, the fracture remained ununited and it was noted there may be a mild increase in the degree of sclerosis of the bony fragment when compared to the earlier study in August 2007.
250 In this application, I am required to consider whether any impairment relating to the plaintiff’s wrist injury is serious and permanent as at the date of the hearing.
251 Subsection 38(h) of the Act provides that psychologically based consequences are to wholly disregarded in an application pursuant to paragraph (a).
252 As the Court of Appeal said in Barwon Spinners & Ors v Podolak (supra), at page 664, para 117:
“… the proper identification of pain and suffering attributable to impairment which is physical, or physiological in origin, … requires that any psychological or psychiatric overlay be stripped aside. …”
253 Thus, the onus is on the plaintiff to separate the psychiatric or psychological from the physiological or organic when considering the consequences of such bodily impairment as exists.
254 It was said by Maxwell P in Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis (2007) 15 VR 649, at 652-3, that:
“So far as the evidence allows, the court must identify and exclude from consideration, any pain and suffering consequences which cannot be shown on the balance of probabilities to have an organic or a physical basis…. Where the court is unable to disentangle the pain and suffering consequences in this way, this will ordinarily mean that the application must be refused since the court cannot be satisfied on the balance of probabilities that the organically based pain and suffering consequences satisfy the statutory criterion. …“
255 What may be viewed as a slightly different approach to this issue was taken by Ashley JA in Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167, where his Honour said, at p.19:
“A court might well be able to conclude, considering all the evidence, that on the probabilities the plaintiff has suffered a physically-based impairment which satisfies the statutory test even though identification of the precise quantum of a supervening psychological overlay has not been attempted, or is in the real world impossible.”
256 Redlich JA expressed a not dissimilar view to Ashley JA in the case of Zivolic v Hella Australia Pty Ltd [2007] VSCA 142, at p.19-20. In Redlich JA’s view, where there was evidence –
“… consistent with the plaintiff having suffered both physical and psychiatric or psychological injury, if the nature of the medical evidence permits the conclusion that the physical consequences of the injury constituted a serious injury, then, notwithstanding the requirements of s.134AB(38)(h), no disentangling or stripping away of psychological or psychiatric consequences may be required.”
257 I accept, having considered these authorities, as Judge Morrow said in Gorgiev v Healthscope Ltd (2008) VCC 1443, at para 50:
“…if one can say that the plaintiff has suffered a ‘serious injury’ on evidence other than the psychological and psychiatric consequences of the injury, then that is all that is required. The mere fact that these latter factors intrude does not mean that an otherwise sound organically based case is to be dismissed.”
258 There is little medical evidence that the plaintiff continues to suffer ongoing problems as a result of the fractures themselves.
259 The plaintiff’s complaint of pain in his hands is not at the site of the fractures. As Mr Leitl stated it was unlikely that the plaintiff had any dysfunction of the wrists directly related to the fractures because these were not tender at specific examinations. Professor Marshall made a similar finding.
260 Whilst there is still some non union of the fractures, Miss Keith whom I accept has seen the investigations and others with her at the meeting in December 2007, considered that the contribution of the fractures to the plaintiff’s symptoms as of January 2008 was effectively negligible
261 Ms Keith and other specialists at the meeting thought that the orthopaedic condition was mildly symptomatic and there was significant abnormal illness behaviour.
262 Professor Vernon Marshall thought the physical effects of the original injury had healed or stabilised.
263 Professor Littlejohn whilst commenting that the plaintiff had in addition to CRPS significant input from the fractures themselves providing both physical and emotional trauma, he did not explain the basis of this view.
264 Taking into account these medical opinions, I am not satisfied that that there is an orthopaedic basis for the plaintiff’s complaints.
265 From a neurological view, this is also the case. The treating neurologist, Dr Ring, thought there was no neurological basis for the plaintiff’s complaints and that there may be a connection between the tremor and hyperthyroidism or that the plaintiff’s medication may contribute to the tremor.
266 Mr Littlejohn found neurological examination was unremarkable in both upper limbs, with normal sensation, power and muscle tone and there was no wasting.
267 I accept the submission of counsel for the defendant that at best there are features of CRPS which I accept is an organic condition- see His Honour Judge O’Neill, in McDonald v M J & A L Percy Transport Pty Ltd [2009] VCC 1782.
268 Ultimately, counsel for the plaintiff submitted the tremor was “nought to do with this case” and it was not relied upon. It was submitted there was an incomplete recovery from the fractures with a superimposed CRPS which satisfied the test of seriousness.
269 Whilst it was denied that the plaintiff’s symptoms were feigned, reliance was placed by counsel for the plaintiff on Dr Jager’s view that the plaintiff did not have a psychiatric condition.
270 No application has been brought pursuant to subparagraph (c).
271 The issue for consideration is whether any CRPS results in a serious and permanent impairment.
272 The plaintiff’s case at its conclusion was that, excluding the non organic tremor and its effect on the plaintiff’s daily life and various activities, the plaintiff maintained that he was in constant pain as a result of the CRPS related symptoms.
273 Reliance was placed by counsel for the plaintiff on the following medical evidence as to the existence of CRPS:
•
Dr Rowe’s view on examination in 2007 that the plaintiff had developed a RSD at least in his left hand having found swelling, restriction of movement and discolouration of both wrists.
•
Dr Todhunter thought the plaintiff had signs of a CPRS with a degree of tremor and swelling and sweating
•
Professor Marshall found marked colour change in both hands particularly the left and diagnosed RSD.
•
Mr Leitl’s examination also diagnosed CPRS having found the left hand cool to touch and that it had a purple colour.,
•
Dr Littlejohn thought that following the incident the plaintiff had developed symptoms consistent with CRPS although there was no overt colour change on examination the plaintiff’s hands felt cooler than expected
•
Dr Blomberry noted a significant difference in temperature and colour of the left hand compared to the right and concluded the plaintiff therefore had features of CRPS
•
The report from North East Health dated 29 June 2007 which noted that “Bruce demonstrated classical signs of RSD”.
274 A contrary view was expressed by Mr Schutz who made normal findings at the conclusion of his examination of the plaintiff and the Medical Panel which found no signs of CRPS on examination of the plaintiff.
275 Whilst the findings differ on various examinations, I accept that the plaintiff does have some ongoing features of CRPS in his left wrist.
276 The issue for consideration is whether any consequences of this condition are serious and permanent.
277 What are the consequences of the pain that the plaintiff describes and the findings of some discoloration, sweating and restriction of movement, leaving to one side the complaints relating to the tremor?
278 When considering this issue the plaintiff’s credibility is of particular relevance.
279 As was raised with counsel during the hearing, it was my view, whilst obviously not a medical one, that on my observation the tremor demonstrated by the plaintiff in the witness box was variable and inconsistent. It did not occur only when the plaintiff exerted any pressure on his hands as he described was the case.
280 The plaintiff was shown on video scratching his back and performing other movements which would have involved some pressure on his hands such as using his car keys yet no tremor was shown.
281 Following my comment, counsel for the plaintiff conceded that the tremor was non organic and would not be relied upon as a consequence of the plaintiff’s wrist arising from the incident.
282 Given my observation of the plaintiff in court and what I found to be a markedly different presentation on video, with no tremor or disability evident save for a limp, I do not accept the plaintiff’s evidence that he has constant pain in his hands or that the movement of his hands is restricted.
283 Further, comments made by various medical examiners did not assist the plaintiff’s claim.
284 Medical examiners such as Mr Leitl and Mr Littlejohn had difficulty examining the range of movement in his hands because of what they described as an intention tremor. Mr Schutz thought because of highly inconsistent examination findings and the variability of the tremor, assessment of hand movements could not be carried out accurately.
285 Mr Blomberry whilst finding restriction of hand movement when the plaintiff tried to make a fist on formal examination observed that the plaintiff could flex his joints fairly normally during casual observation.
286 Further, Mr Blomberry, who thought that the tremor might have something to do with RSD, commented that involuntary movements were sometimes self- reported by patients but such movements were different to those exhibited by the plaintiff.
287 Whilst Mr Leitl found signs of RSD he noted that the plaintiff told him of significant activities of daily living which Mr Leitl thought were not in keeping with his claim of a constant tremor.
288 Mr Littlejohn noted RSD Syndromes invariably involved significant input from psychosocial factors and he believed this was the case. In his view, there were significant psychological factors involved in the plaintiff’s presentation causing the clinical features that had been described, namely pain, sensory changes and tremor.
289 Whilst this is not a case involving an aggravation of a pre existing hand condition, when considering the consequences of his wrist impairment, I am required to consider the plaintiff’s level of functioning prior to the incident and compare that situation to his condition at the date of hearing.
290 At the time of the incident the plaintiff was experiencing ongoing problems with a hernia condition which involved groin pain with resulting restrictions in his work, domestic and recreational activities which were accepted by the plaintiff in cross-examination.
291 The plaintiff to the present day continues to experience pain relating to his hernia condition, particularly in the right groin.
292 Counsel for the defendant relied on Mr Long’s examination six months prior to the incident where the plaintiff described problems associated with the hernia- pain requiring Lyrica, restriction of movement, sleep disturbance, problems driving and with gardening, difficulty performing his work duties and general problems with mobility.
293 Further Mr Long noted he had been provided with a report from Mr Thomas who treated the plaintiff for his hernia condition and described his presentation in 2006 as “histrionic”.
294 A number of these problems reported by the plaintiff to Mr Long in relation to his hernia condition were also noted by Ms Phillips when she was involved in counselling the plaintiff in 2006.
295 Clearly the plaintiff had difficulties with his life at the time of the incident. With pain and restrictions resulting from his groin condition, a situation which continues to the present date.
296 Dealing firstly with the plaintiff’s evidence that he ceased goal umpiring because of his wrist condition. The plaintiff was unsure as to how frequently he was umpiring before the incident. He made reference to goal umpiring in his affidavit. It was mentioned only by his wife in her affidavit.
297 It is clear from the plaintiff’s general practitioners clinical notes and the description of his condition to Mr Long six months before the incident that the plaintiff’s hernia condition was interfering with his ability to umpire. He also had problems with his right knee in this regard. In any event tremor related symptoms on his evidence appear to be the cause of his claimed inability to umpire.
298 In such circumstances, I am not satisfied that the plaintiff ceased goal umpiring was a consequence of his wrist injury.
299 Whilst his wife deposed to the plaintiff’s ability to freely undertake household activities prior to the incident clearly this is not the case again based on the history given by the plaintiff to Mr Long and the plaintiff’s ongoing problems with the hernia.
300 Similarly, the plaintiff had problems driving and gardening prior to the incident due to his hernia condition.
301 Prior to the incident, the plaintiff’s ability to carry out his work duties was significantly restricted because of his hernia condition. Whilst the plaintiff denied this was the case, it was noted by medical practitioners at that time that the plaintiff was considering retirement because his work was too heavy.
302 Whilst the plaintiff’s intake of Lyrica has been increased since the incident, it is a strong medication which was prescribed by Dr Todhunter for the hernia condition.
303 Dr Langenegger’s suggestion in 2008 that the plaintiff participate in a pain management program was directed at treatment of what she described as a chronic hernia condition as well as a problem with the plaintiff’s hands.
304 Finally in terms of permanency in Mr Littlejohn thought the plaintiff continued to suffer from resolving RSD. In his view, it was usual that conditions such as that suffered by the plaintiff improved gradually over time.
305 Ignoring the non-organic tremor and the significant problems experienced by the plaintiff associated with it, I am not satisfied that the plaintiff has a serious injury resulting from the CRPS condition.
306 Taking into account all the evidence, I am not satisfied that the plaintiff has a serious injury in relation to his wrist condition pursuant to sub paragraph (a).
307 Accordingly, the plaintiff’s application seeking leave to bring proceedings for damages for pain and suffering is dismissed.
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