Bell v Eurest (Aust) Catering & Services Management Pty Ltd
[2012] VCC 6
•3 February 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-00801
| LEONIE JULIEN BELL | Plaintiff |
| v | |
| EUREST (AUST) CATERING & SERVICES MANAGEMENT PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 and 20 January 2012 | |
DATE OF JUDGMENT: | 3 February 2012 | |
CASE MAY BE CITED AS: | Bell v Eurest (Aust) Catering & Services Management Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2011] VCC 6 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Impairment of the left wrist and arm – psychiatric impairment – pain and suffering – loss of earning capacity.
LEGISLATION CITED – Accident Compensation Act 1985, ss.134AB(16)(b), 134AB(37) and (38)
CASES CITED – Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Barwon Spinners Pty Ltd v Podolak [2005] VSCA 33; Grech v Orica Australia Pty Ltd (2006) 14 VR 602; Ansett Australia Ltd v Taylor [2006] VSCA 171; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69; Acir v Frosster Pty Ltd [2009] VSC 454; Advanced Wire & Cable Pty Ltd & VWA v Abdulle [2009] VSCA 170.
JUDGMENT – Leave granted to bring proceedings for damages for pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J J Fitzpatrick with Mr N J Dunstan | Shine Lawyers |
| For the Defendant | Mr C S O’Sullivan | Hall & Wilcox |
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 during the course of her employment with the defendant on 29 August 2006 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s.134AB(37) and (38).
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 left upper limb. The plaintiff also brings this application pursuant to clause (c), claiming a permanent severe behavioural disturbance or disorder.
Outline of Section 134AB
(i) 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;
(ii) The impairment of the body function must be permanent;
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity;
(iv) By subsection (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity 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”;
(v) The judgment of the Court of Appeal in Mobilio v Balliotis [1998] 3 VR 833 resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission (1995) 21 MVR 314, 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”;
(vi) Winneke P, in Mobilio, agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of sub-s.(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.);
(vii) 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;
(viii) Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter;
(ix) Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
(x) Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;
(xi) Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(xii) 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 in reaching my conclusions.
5 The plaintiff relied upon two affidavits and gave viva voce evidence. She also relied upon an affidavit sworn by her husband, Erol Bell, on 10 January 2012. Dr Lim, pain specialist, was required to attend for cross-examination. 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
6 The plaintiff is presently aged forty five, having been born in India in November 1966. She completed Year 12 and then worked briefly as a primary teacher before marrying at the age of twenty.
7 In 1987, the plaintiff migrated to Australia with her husband. Upon her arrival, the plaintiff worked as a process worker for a couple of years until she stopped work to have her four children.
8 The plaintiff returned to the work force in approximately 2000, when she obtained a job with the defendant working as a catering assistant in the Qantas Club at Tullamarine.
9 The plaintiff was employed on a full time basis working a roster of five days on and two days off and also some weekends, grossing about $650 per week. She enjoyed her work and intended to continue working as long as she could.
10 The plaintiff’s duties in the Qantas Club included working behind the bar, serving food at the buffet, maintaining coffee machines, cleaning, stacking and tidying up (“the duties”). The duties involved a lot of rapid repetitive work and there were frequent problems with understaffing.
11 On the said date, it was a very busy day and the lounge was crowded. The plaintiff was working behind the busy bar, without the assistance of two fellow staff who usually worked with her.
12 Whilst under pressure performing her duties, the plaintiff grabbed a tray containing thirty beer glasses and lifted it off a trolley to put it into the rack. As she did so, she felt a very sharp and clicking sensation in her left wrist (“the incident”).
13 The plaintiff’s left wrist was painful immediately and soon thereafter it started to swell. She reported the incident to her supervisor and continued working as best as she could.
14 Over the next week or so, the plaintiff’s symptoms slowly worsened. Her left wrist was very painful and swollen and after a few weeks, she was referred to the defendant’s doctor in Sunshine (“the clinic”).
15 The plaintiff attended the clinic on three or four occasions and was given painkillers and anti-inflammatories and possibly some other medication.
16 The plaintiff continued working on very light duties, using only her right hand.
17 On 19 September 2006, the plaintiff was provided with a WorkCover certificate from the clinic. The plaintiff’s claim for compensation dated 26 September 2006 was accepted.
18 As the plaintiff continued to suffer pain in the left wrist and “pins and needles”, the doctors at the clinic referred her to a hand specialist, Mr Bennett, whom she first saw in October 2006. The plaintiff was then still suffering from a lot of pain. At night she was experiencing tingling in her hand and a feeling of deadness in her fingers.
19 Mr Bennett arranged investigations and informed the plaintiff that she should undergo surgery to remove a ganglion and release her carpal tunnel. That surgery took place on 16 November 2006 (“the first surgery”).
20 The post-operative period was painful and drawn out. The plaintiff remained off work until January 2007 when she returned to work pursuant to a return to work plan, which provided she was to use one hand only and not carry out any bar or buffet work. However, the plaintiff was placed on the buffet.
21 Over the next few months, there was some improvement in the plaintiff’s condition and by about May, she was able to attempt normal duties but with some difficulties. This situation however, lasted only a couple of months before the plaintiff’s symptoms once again deteriorated.
22 By July 2007, the plaintiff tried to return to bar and buffet work but her symptoms began to deteriorate once more. She became aware there was a noticeable lump on her left hand, which was also very painful. The plaintiff attended Dr Bennett, who recommended a second operation, which took place on 2 September 2007 (“the second surgery”).
23 Following the second surgery, the post-operative recovery was painful and drawn out and the plaintiff was off work for two or three months. She attempted a return to work in January 2008. At that time, she was just helping out using her right hand, but her symptoms continued to cause a lot of problems and by March 2008, her condition was deteriorating. The plaintiff was suffering constant pain in her left arm and wrist and she was also becoming very depressed and she was also experiencing some right arm problems.
24 In re examination, the plaintiff explained that on her return to work at various times, she did not undertake bar work but simply worked in the kitchen using her right hand only, plating trays.
25 In March 2008, after Mr Bennett explained to the plaintiff there were no more surgical options, he referred her to St Vincent’s pain management clinic (“St Vincent’s”) for further treatment. She was discharged from Mr Bennett’s care wearing a wrist splint and using a Thermoskin as required.
26 The plaintiff started treatment in a multi faceted course at St Vincent’s in about July 2008. She then was experiencing chronic left arm pain, sweating, various skin and temperature changes and restriction of movement.
27 When the plaintiff swore her first affidavit in October 2010, she was seeing Dr Lim monthly and attending hydro therapy.
28 The plaintiff was taking about four Panadeine Forte tablets a day. That medication caused stomach upset. The plaintiff was also taking OxyContin and Lyrica together with an antidepressant Effexor and Seroquel, which was intended to help her sleep. She was finding it difficult to sleep at night and it was difficult to do much with her arm at all. She was experiencing weakness in her hand and wrist.
29 By that stage, the plaintiff was also becoming quite anxious and depressed and was now seeing her normal family doctor, Dr Datt, who referred her to a psychologist, Vicki Palmer, in August 2008 whom the plaintiff has continued seeing on a fortnightly basis.
30 When the plaintiff first saw Ms Palmer, the plaintiff was experiencing a lot of chronic pain, restriction of movement and her medication was making her drowsy. She also had some dark colouring on her arm. Despite ongoing counselling treatment funded by WorkCover, the plaintiff has remained severely anxious and depressed.
31 In February 2009, the plaintiff was admitted as an inpatient for two weeks to the North Eastern Rehabilitation Centre in Ivanhoe. After the inpatient process was completed, she spent another two weeks living in supported accommodation close to the Centre. During that time, the plaintiff found it very difficult to move her left wrist and fingers and was also having problems with her left shoulder, which has been an ongoing issue.
32 In her first affidavit sworn in October 2010, the plaintiff deposed there had been some brief periods where things had improved somewhat. The pain had been constant, although it had varied in its level from time to time and she had suffered from a lot of anxiety and insomnia.
33 The plaintiff successfully challenged an attempt to terminate her weekly payments in August 2009 when the Conciliator determined there was no genuine dispute and payments were to be reinstated.
34 Three months later, the plaintiff challenged another decision to terminate her payments. In June 2010 the Medical Panel determined the plaintiff had no current work capacity and that that situation was likely to continue indefinitely.
35 These disputes relating to the plaintiff’s weekly payments caused her a great deal of additional stress and anxiety and created significant financial pressures on her and her husband and family.
36 In January 2010, the Medical Panel determined the plaintiff had a 10 per cent whole person due to her injuries and 25 per cent impairment due to psychiatric aspects secondary to her physical injuries.
37 Dr Joshi took over the plaintiff’s care after Dr Datt retired. Dr Joshi writes WorkCover certificates in consultation with Dr Lim.
38 Prior to the incident, the plaintiff used to be reasonably fit and active. She had put on a lot of weight over the last few years due to her inactivity attributable to her injuries and that had caused secondary health issues.
39 The plaintiff deposed she continued to experience almost constant pain in her left shoulder girdle and left upper arms and also some pain in her left forearm and wrist, which was constant. Some days were worse than others. The pain tended to be aggravated by physical activities.
40 At times, the plaintiff felt her left fingers go cold and her left arm sweated. She experienced frequent bruising over her left arm and movement of the left shoulder and elbow were reduced.
41 The plaintiff often felt groggy with medication and needed assistance with a range of activities, including showering and dressing. Her husband assisted her with dressing and she did not have much capability in carrying out household tasks and did very little around the home.
42 The plaintiff spent a lot of time watching television and she received assistance from her husband, children and mother-in-law managing most of the household duties and the plaintiff spent much of her time in bed sleeping.
43 The plaintiff deposed her psychological state remained very poor as she was no longer able to enjoy herself and had stopped socialising and going out to a large degree. She felt withdrawn and isolated and preoccupied with what had happened to her.
44 The plaintiff wished she was able to work and look after the family the way she would like. In re examination, the plaintiff confirmed she enjoyed her job and she was very depressed as she missed the social contact with workmates.
45 The plaintiff felt useless, helpless, frustrated and hopeless. She sometimes was troubled by suicidal thoughts and felt her motivation and energy was significantly reduced. Her libido had disappeared and she was often tearful. She then felt her condition had stabilised.
46 The plaintiff deposed that she continues to see Dr Lim every six months. He prescribes medications which are renewed by Dr Joshi, whom the plaintiff sees once a month. The plaintiff sees Ms Palmer, once a fortnight and has attended St Vincent’s for treatment once in the last twelve months.
47 The plaintiff takes OxyContin (10 milligrams, two per day), Lyrica (75 milligrams, two per day), Effexor (75 milligrams, two per day), and Seroquel (one per day at night time).
48 In re examination, the plaintiff confirmed she had been prescribed Oxycontin since 2007/2008. That medication made her feel very drowsy, nervous and tense. The plaintiff could not sit for long periods of time and the drug caused a fluid build up resulting in an increase in weight.
49 In January 2012, the plaintiff deposed that her symptoms remain much the same. She continues to experience fairly constant pain in her left arm, including pain in her left wrist, forearm, upper arm and shoulder.
50 In cross examination, the plaintiff agreed that there was an improvement in her condition, with a reduction in swelling and increased use of the fingers, when she saw Dr Lim in March 2010. After the rehabilitation program there was “a bit of a change” because the plaintiff could open her fist.
51 In re examination, the plaintiff described that when the pain was more severe she experienced black and blue bruising on her arm. On being recalled by her counsel, the plaintiff showed me her left arm. There was obvious bruising from about three inches above the elbow. There was further significant bruising on the inner side of the left forearm. The plaintiff explained that the bruised area was extremely painful to touch. The plaintiff’s left fingers felt colder than her right.
52 The plaintiff has been encouraged by Dr Lim to try and use her left arm as much as possible, even if it causes pain, to avoid getting a frozen shoulder.
53 The plaintiff does not wear a splint on her arm too frequently as she is concerned because it causes her to have a frozen shoulder. In re examination, the plaintiff explained that she uses the splint mostly when going out so she does not knock her wrist and it makes her feel more secure.
54 In cross examination, the plaintiff was asked to make a fist. She was able to do so with some difficulty due to pain in the site of her left wrist surgery but she was able to move her fingers reasonably well when doing so.
55 The plaintiff deposed in January 2012 that her psychological state remains much the same. Ms Palmer has encouraged her to try and get out of the house and socialise more. The plaintiff plays the machines at the local pokies venue about twice a fortnight. She often meets a friend there and they play pokies together for an hour or two. The plaintiff plays the push button machine so she does not aggravate her left wrist.
56 In cross examination, the plaintiff confirmed she was encouraged by her psychologist, and also her husband, to go out. She occasionally went to the pokies. If she had to, she walked up the road and did a bit of shopping. Often she had to return home as she was in a lot of pain. She did not go out for dinner or go to the pictures.
57 The plaintiff was cross examined about a history given by her to various doctors of not being able to drive. The plaintiff confirmed this was the case in the years after the incident but in more recent times she drove when she had to and her pain increased when she did so. Further, the plaintiff chose not to drive because most days she felt drowsy and dizzy from her medication and she could not pay attention.
58 The plaintiff denied she had driven her car on 23 December 2010 when she was filmed that morning getting something out of the car and locking the car. Initially she said the car was filmed in her driveway and could not be driven because it needed oil. She then agreed it may have been parked in the drive way of a tyre company but she denied having driven it there. She said that she could have driven that day if the car was driveable.
59 The plaintiff denied having received any speeding fines in her car. Any fines that had been incurred would have involved either her husband or her son driving the car.
60 When shown the video of her activities on 23 December 2010, the plaintiff explained that this was just one occasion and she does not have that level of activity every day. She did use her left hand as she was shown, on the advice of her doctor. The handbag she carried in her right arm was not heavy. The plaintiff denied that pressing the button on the poker machine with her left hand involved a firm movement. Further the mobile phone she rested in her left hand was not heavy.
61 The plaintiff agreed that she was probably markedly better when shown on the video compared to how she presented to Dr Kaplan the previous month. There was an improvement “in the sense that she was still in pain and her finger movements were all right and she could walk”. She disagreed she was generally able to go out more in recent times.
62 In re examination, the plaintiff described how she had a lot of pain when shown on the film walking carrying her jacket so she held onto her handbag strap with her left hand to make herself more comfortable.
63 The plaintiff said that she really did not walk for exercise but she walked sometimes when she had to and to lose weight “but walking was not a priority”. She initially put on a lot of weight after the incident. Her weight increased by twenty five kilograms until recent times when she had it more under control after being advised by her doctors to walk.
64 In cross-examination, the plaintiff advised that she had not been offered alternate employment by the vocational service or any other person. She would not be able to do cashier work because of the requirement to use her fingers and also the effects of her medication – which made her “feel like she was walking and standing on eggshells.” Telephone work would also be difficult for her because of the sleepiness and confusion caused by the medication.
65 On a recent visit to IPAR, it was suggested to the plaintiff that she may be able to work as an interpreter but the plaintiff thought this would not be possible as she only knew a little bit of her language, Hindi.
Summary of the Plaintiff’s Taxation Returns
Financial Year Gross Income 2002/2003 $23,011 2003/2004 $19,881 2004/2005 $15,799 2005/2006 $34,511 2006/2007 $33,320 2007/2008 $49,450 2008/2009 $24,524 2009/2010 $20,593
Lay Evidence
66 The plaintiff’s husband, Erol Bell, swore an affidavit on 10 January 2012.
67 Mr Bell deposed that he met the plaintiff whilst holidaying in India in about 1982. Throughout their marriage and prior to the plaintiff’s injury, she was always full of life and energy and was always very happy. She was a very social person who had a lot of friends and enjoyed going out to see them. As a couple, they enjoyed going to the movies, out to bingo and also to dinner parties and dances. They enjoyed each other’s company and the plaintiff was lots of fun to be around.
68 At home, the plaintiff took on most of the household responsibilities and was in charge of maintaining the house. She did the vacuuming, mopping, washing and ironing, cleaning of the kitchen, cooking and gardening, and took great pride in looking after the house and garden.
69 After the incident, plaintiff had many physical restrictions. Mr Bell now has to assist her with even the simplest tasks such as getting dressed. He now does a lot of household chores, such as mopping, vacuuming, washing and ironing.
70 Mr Bell deposed the plaintiff has changed since her injury and it is like she has gone into a shell and has become very reserved. They hardly ever go out together, even to the movies or to dinner. They have to stay at home constantly because the plaintiff is normally too depressed to go out and she does not feel like doing so. Sometimes it is a struggle to even get her to go to the shops with him.
71 The plaintiff’s sleep has been significantly affected by her injury and often she struggles to fall asleep at night. He often sees her taking sleeping pills in order to get herself off to sleep and other times she will be awake as a late as 3.00 am.
72 It is very hard for Mr Bell as the plaintiff is now a completely different person to what she was like before the incident. She now does not do any of the things she used to. Since the incident, she is now the opposite of her fun loving social self. He always tries to encourage her to go out more and do things, but she finds it is too difficult. Also, she is on a lot of medication and yet still seems to be in a lot of pain, which prevents her from doing many of the things she used to enjoy.
The Plaintiff’s Medical Evidence
73 The plaintiff was first seen at OccWest (“the clinic”) on 19 September 2006, having developed left wrist pain of gradual onset over the preceding few weeks at work at the Qantas Club. At that time there was tenderness over the dorsum of the left wrist.
74 The plaintiff continued to attend the clinic. Tests were undertaken which showed positive carpal tunnel syndrome and an ultrasound showed a ganglion. The plaintiff was therefore referred to Mr Bennett who carried out surgery.
75 It was reported the plaintiff made a gradual recovery over the next two months but she unfortunately developed an unusual degree of hypersensitivity over the scar from the carpal tunnel. However, she appeared to recover and was cleared for return to her pre injury duties in April 2007.
76 The next presentation at the clinic was on 18 July 2008 when the plaintiff had experienced a recurrence of pain in the volar aspect of her wrist at the site of the tunnel release and she also had recurrence of swelling of the dorsum of the wrist.
77 On examination, there was redness, tenderness and a slight swelling of the thenar and hypothenar eminences. There was also a small cystic swelling adjacent to the surgical scar on the dorsum of the wrist. An ultrasound was arranged which showed a small recurrent ganglion at the site of the previous excision.
78 The plaintiff was referred to Mr Bennett who suggested a conservative approach and referred her for hand therapy. However, as the plaintiff did not improve, she underwent a further ganglion excision in early September 2007. The plaintiff was not seen at the clinic after that date.
79 Dr Henderson from the clinic reported the diagnoses were chronic regional pain disorder of the left upper limb following carpal tunnel release and excision of dorsal scapholunate ganglion, scapholunate ganglion of the right dominant wrist and probable carpal tunnel syndrome of the right dominant wrist.
80 Dr Henderson then thought the plaintiff’s condition had not stabilised but it was highly likely she would be left with significant weakness and loss of dexterity in the wrist.
81 Mr Bennett wrote to Dr Henderson in March 2008, having reviewed the plaintiff that day. He noted the plaintiff had deteriorated significantly with regard to pain and stiffness in the left wrist. He wondered whether she was getting an early stage of reflex sympathetic dystrophy and advised he had referred her to St Vincent’s.
82 Mr Bennett reported to the Conciliation Service in June 2008, confirming the plaintiff first presented on 20 October 2006 with a history of injury following the incident. On examination, the plaintiff complained of nocturnal tingling and deadness in her fingers and a small tender dorsal wrist ganglion was confirmed on ultrasound.
83 Mr Bennett felt whilst excising the ganglion, given the plaintiff’s clinical symptoms, it would be wise to release her carpal tunnel. This surgery was carried out on 16 November 2006 following which the plaintiff recovered slowly but steadily with hand therapy.
84 Mr Bennett noted the plaintiff returned to work in January 2007 and slowly upgraded her activities. She was continually troubled by sensitive wounds and returned to normal work in May 2007.
85 In July 2007, the plaintiff represented with a recurrence of left dorsal wrist ganglion, which was giving her increasing amounts of pain. The ganglion was re-excised in September 2007. Following that procedure, the plaintiff again recovered slowly due to sensitivity in the wound.
86 In March 2008, Mr Bennett thought it was clear the plaintiff was developing signs of CRPS and referred her to St Vincent’s. He also noted that the plaintiff then began complaining of pain in the dorsum of the right wrist and similarly she had developed signs of carpal tunnel syndrome on that side and required further investigations in that regard.
87 Mr Bennett recommended the plaintiff not work at that stage, especially because of her left symptoms. He thought it would be likely she would be able to return to work, however, it would be unlikely for her to return to jobs requiring heavy lifting or gripping. He thought it would be hard not to attribute the right handed symptoms to work as liability had been accepted by the defendant for the left hand injury.
88 The plaintiff was referred to St Vincent’s by Mr Bennett in March 2008. This referral followed increasing stiffness and left wrist pain following surgery and a query by Mr Bennett as to the diagnosis of early reflex sympathetic dystrophy.
89 The plaintiff was first seen by Dr Charles Kim. In the initial assessment, he noted the plaintiff was spending most of her time watching television and she had become increasingly withdrawn and depressed with a reduction of socialisation. He noted a history of self harm ideation.
90 On the original examination, the plaintiff was wearing a splint. There was evidence of brush allodynia and dysesthesia around the wrist and thumb. There was a reduction of wrist movement and there was marked evidence of dyskinesia of the left hand, fingers and some reduction in temperature on the left compared to the right, but no change in colour.
91 A diagnosis was made of CRPS secondary to the incident on some of the signs, particularly the dyskinesia of the left upper limb. In addition, there was evidence of temperature change, a history of colour change and pain out of keeping with the injury, as was well allodynia.
92 Dr Kim reported To Mr Bennett in July 2008, thanking him for referring the plaintiff.
93 Dr Kim advised the issues were continued chronic pain and impairment, reduction of function with dependence on ADLs, unable to work and reduced social network. He recommended to the plaintiff she undergo assessment by St Vincent’s physiotherapist and clinical psychologist as a part of a multi disciplinary assessment.
94 Dr Trinca, director at St Vincent’s, saw the plaintiff on 17 October 2008, noting a small amount of improvement with Lyrica and Endep, but the plaintiff was started on OxyContin. The plaintiff was not able to move her left arm or fingers and she was unable to release her shoulder, which was persistently hunched. For those reasons and the fact the plaintiff was not progressing, Dr Trinca referred her to Dr Lim, who specialised in CRPS in an inpatient setting.
95 Dr Trinca believed the plaintiff was suffering from CRPS and also had significant psychological distress related to stress, anxiety and depression probably secondary to her pain problem or other issues in her life. She was guarded as of December 2008 as to the plaintiff’s prognosis and thought the plaintiff’s only chance of improvement was to have a really concentrated effort involving neuro facilitation. She also noted the plaintiff could well have a requirement for regional blockage treatment, but was concerned that her level of distress needed to be addressed before that type of treatment was undertaken.
96 Emma Strachan from St Vincent’s referred the plaintiff to a physiotherapist in February 2009, noting the plaintiff had made very significant gains since beginning treatment and that the opiate medication had dramatically improved her shoulder range of movement for a considerable amount of time.
97 Ms Strachan advised she was concerned the plaintiff’s shoulder stiffness and pain may develop into a frozen shoulder but she was encouraged to find on recent occasions the plaintiff could achieve 160 degrees of flexion and abduction.
98 The plaintiff first saw Vicki Palmer, psychologist, in August 2008. The plaintiff then reported she was in constant pain and that she had been prescribed medication which caused her to sleep most of the day.
99 Ms Palmer reported that since the plaintiff had been attending therapy she had presented with severe bruising on the whole of her left arm, which Ms Palmer had been informed was due to chronic pain syndrome. She noted also the plaintiff was a very slightly built woman and she had reported that she was a size ten and she now retained a lot of fluid and was wearing size sixteen to eighteen.
100 The plaintiff advised she found it difficult to exercise and had withdrawn from most social activities as a result of weight gain, lack of energy and constant pain. She had tried to practise strategies in relation to cognitive behavioural therapy but had found it very difficult.
101 On 17 August 2010, Ms Palmer found the plaintiff’s responses to the Beck Anxiety Inventory (“Beck test”) were indicative of severe depression and anxiety.
102 Ms Palmer reported again in October 2011. She noted a lot of the medication prescribed to the plaintiff caused drowsiness and the plaintiff slept most of the day. The plaintiff continued to have limited capacity to cope with most daily tasks and felt she was constantly overwhelmed and anxious with daily routines.
103 The plaintiff indicated to Ms Palmer that she felt worthless, having not only lost her job but also her social network at work. The plaintiff continued to report experiencing left arm pain and when her arm swelled, the pain also dramatically increased. The plaintiff advised she got confused and could not concentrate for long periods and felt she had failed in her family life.
104 Ms Palmer reported that the goal of therapy was to significantly reduce the plaintiff’s presenting symptoms. However, the plaintiff’s physical injuries significantly impacted on the treatment and when considering that and the constant pain experienced, she thought the plaintiff would not be able to return to pre injury work.
105 Ms Palmer found on 22 September 2011 that the plaintiff’s responses to the Beck test were indicative of severe clinical depression and anxiety and the plaintiff met the criteria for chronic adjustment disorder with mixed depression and anxiety.
106 Dr Datt reported in October 2008 that the plaintiff presented on 28 March 2008 and advised of her treatment following the incident.
107 The plaintiff was then doing light duties on and off and she was then also having pain in her right wrist. She had been off work since 8 April 2008 and was complaining of constant pain, swelling and an inability to bend the left wrist.
108 At that stage, Dr Datt thought it difficult to comment on the plaintiff’s prognosis as the condition was still being treated.
109 In October 2008, Dr Lim, consultant in rehabilitation and pain medicine, requested GIO fund the plaintiff’s participation in a CRPS rehabilitation program involving a two week inpatient stay.
110 Dr Lim advised GIO the plaintiff suffered from constant pain that increased with activity, dystonia, as reflected by loss of ability to use her upper limb purposefully, and sympathetic nervous system dysfunction reflected by persistent swelling, and discolouration of the affected limb.
111 Dr Lim advised that as the CRPS was relatively well established, the return to some suitable alternate vocation may be problematical.
112 Dr Lim further reported to GIO on 4 December 2008, having reviewed Dr Kostos’ report.
113 Dr Lim noted Dr Kostos’ findings that the plaintiff was wearing a sling and splint, neck movements were restricted with pain in all direction, limitation of right shoulder elevation and the plaintiff’s inability to actively move the left shoulder from the position of 45 degrees of abduction and the fact that the plaintiff could not move her left hand at all, were consistent with the diagnosis of CRPS, which Dr Lim stressed was a chronic pain condition.
114 Dr Lim advised that unfortunately as Dr Kostos was not a pain management specialist, he might not have been cognisant of the diagnosis, even though he did describe some of the typical findings.
115 Dr Lim described CRPS as one of the most difficult and unforgiving pain conditions to treat. He noted the plaintiff had been confirmed as suffering from CRPS by two recognised and experienced pain medicine specialists, namely, Dr Trinca and himself.
116 Dr Lim wrote to Dr Trinca on 12 March 2009, having reviewed the plaintiff that day when she was in the fifth week of her program, having had a two week intensive inpatient stay.
117 Dr Lim advised the plaintiff had engaged in the program well and had taken on responsibility of self treatment and management.
118 Dr Lim advised that of interest on examination on 23 February 2009, the plaintiff commenced volitional movement of the fingers of the left hand again, something she had not done for a couple of years. Dr Lim advised the plaintiff continued to increase volitional left thumb movement and was now practising to increase the dexterity of all digits. She was then using her hand as a helper. She was not ready then to progress to the next step due to her significantly lowered threshold from being supersensitised due to CRPS. He advised Dr Trinca that they were in the position of “when” increased left hand function would be occurring, rather than “if”, as the plaintiff’s left upper limb function was gradually increased.
119 Dr Lim noted the plaintiff’s left hand splint had been removed and active left shoulder range of movement was also increasing, which was both painful and limited. The plaintiff was continuing to have spontaneous flares of increased pain as she gradually increased her left hand functions. Dr Lim advised the plaintiff’s mood had improved and she was less flat in affect and there had been no resistance from her to actively participate in the program.
120 At that stage, Dr Lim thought the plaintiff was clearly not ready to return to work.
121 Dr Lim provided a detailed report to the Conciliation Service on 5 November 2009, confirming his diagnosis of CRPS affecting the plaintiff’s left upper limb. Having described CRPS and the related symptoms, Dr Lim noted that the injury associated with the development of CRPS does not need to be considered as major or serious. The level of pain that is experienced, which can be extremely severe, may not necessarily reflect the severity or lack of the injury.
122 Dr Lim advised the natural history of the condition is variable and that it is managed by a combination of medical and rehabilitation intervention.
123 Dr Lim confirmed the improvement in the plaintiff’s level of movement in February 2009 and advised the plaintiff continued to suffer fluctuating levels of pain though the general levels were more tolerable and she had been very gradually weaning off OxyContin. He noted, however, the flares of increased pain could still be devastating and the plaintiff was using the medication Lyrica to augment the self help desensitisation process.
124 Dr Lim noted, associated with the pain and the physical signs of CRPS, there had been a significant emotional disturbance with an initial persistent flat affect due to a degree of depression which had lifted somewhat. He noted in August 2009, there was a major flare of increased pain with the cause being heightened emotional state due to a dispute with WorkCover.
125 The plaintiff’s insomnia had been refractory to treatment but on Seroquel she had been able to enjoy some refreshing sleep and that medication was also being prescribed to reduce the level of anxiety.
126 In that report, Dr Lim noted he last reviewed the plaintiff on 8 September 2009. Her condition then had remained unchanged despite further therapy and he recommended a temporary cessation of therapy while she continued to pursue the self help pathway. A pain team reassessment had been scheduled for early 2010. At that stage, Dr Lim thought the plaintiff’s current capacity for pre-injury duties or suitable duties was nil.
127 In cross-examination, Dr Lim confirmed the increase in movement noted on examination in February 2009 and also the fact that the plaintiff continued to use her left hand as a helper. He confirmed the improvement in the plaintiff’s condition during 2009 leading up to the examination in November 2009.
128 Dr Lim explained there is no 100 per cent cure for CRPS and he did not think sufferers ever became symptom free, but they could become functional and could return to work although not necessarily full time.
129 When Dr Lim mentioned the amazing result on examination in November, his expectation was that the plaintiff could have been better, but not with such improved physical functioning, and she in fact had done quite well, and he thought her condition would improve even more with further treatment. Dr Lim thought that in March 2010, the plaintiff’s condition had plateaued.
130 Dr Lim was shown the surveillance film. The thing that surprised him was that the plaintiff had improved in terms of her upper limb control – dystonia. He was pleased with what he saw in the footage and he agreed it was a step up again from what he had seen on examination in March 2010.
131 As to the plaintiff’s ability to work, Dr Lim thought that the film showed she ought to be reassessed by the pain management team. He explained that a return to work would be part of the process of normalising the plaintiff’s life, but she would still have a lowered threshold and a lowered functional capacity.
132 Dr Lim did not want the Court to assume that a return to work equalled full-time work or normal work that a person of the plaintiff’s age would be expected to do, because he did not think that would be appropriate. Also he queried the success of a graduated return to work program which he had tried with other CRPS patients over twenty years, and he had learnt to be respectful of the fact that once a patient had developed a chronic or persistent pain condition then their functional capacity was lowered. He explained if patients were pushed towards full-time work they may cope for a week but then not cope, and then he would “have to end up picking up the pieces.”
133 Finally, Dr Lim agreed that the plaintiff was shown on the video to be significantly improved to when he first saw her in October 2008.
134 In re‑examination Dr Lim confirmed that on the times he had seen the plaintiff he did not have any concerns about inconsistent behaviour or whether the diagnosis of CRPS was not correct. He confirmed that his clinic was a specialist treater of that condition.
135 When asked about the surveillance film, Dr Lim confirmed that a lot of activity shown in the film involved the plaintiff using her right upper limb and her biceps, an area not the main site of her pain. In his view, there was nothing inconsistent in the way the plaintiff held her handbag on film to how she had presented on examination. He was pleased as a clinician to see those things were occurring, because the plaintiff was actually doing what he and fellow treaters had been trying to engender in her, namely normalisation of life being the ultimate therapy. In his view, the plaintiff “had to have a go at things” and he agreed his advice had been to the effect of “use it or lose it”.
136 Dr Lim confirmed that a patient taking medication such as OxyContin would be better in the morning.
137 Dr Lim thought the plaintiff was an extremely motivated patient and she was very receptive to what was being offered to her.
138 The plaintiff first saw Dr Joshi on 16 March 2009 after Dr Datt retired.
139 Dr Joshi reported the plaintiff had a three year history of left upper limb pain secondary to the incident. She confirmed various modalities of treatment undergone by the plaintiff, including surgery.
140 Dr Joshi noted that since the incident, the plaintiff had ongoing pain and swelling in the left wrist, which radiated to the forearm and left arm.
141 Dr Joshi noted that Dr Lim reviewed the plaintiff on 2 July 2009 for flaring up of her CRPS. The plaintiff had then been tried on various analgesics including narcotics, OxyContin and Lyrica.
142 Dr Joshi diagnosed CRPS secondary to the incident and also depression and anxiety and stress due to pain.
143 Dr Joshi confirmed that ongoing symptoms since 2009 had been pain in the left wrist and upper limb and loss of activities of daily living, in that the plaintiff could not lift with her left upper limb, for showering, washing her hair and dressing. The plaintiff also had insomnia secondary to pain. There was weight gain due to decreased physical activities secondary to pain and narcotics.
144 Further, the plaintiff had depression secondary to her pain and had lost interest in her enjoyable activities and she could not drive.
145 Since March 2009, Dr Joshi confirmed that the plaintiff had a lack of motivation and a depressed mood most of the time. She could not use her left forearm and hand and had lost pleasurable activities and was not working. Those conditions had put the plaintiff and her family in financial difficulty.
146 Dr Joshi noted that since March 2009, the plaintiff’s condition had not changed, but she had had an episode of aggravation. At that stage, she thought the plaintiff’s prognosis depended on when she had a definitive pain management program.
147 Dr Joshi most recently reported in September 2011, having continued to review the plaintiff on a regular basis. She thought the plaintiff required ongoing rehabilitation of her left upper limb. In the future, she anticipated the plaintiff would require help from an occupational therapist to help her with activities of daily living. She thought the plaintiff required ongoing psychological support and noted the plaintiff’s medication was Effexor (75 milligrams daily), Lyrica (75 milligrams, twice per day), OxyContin SR (10 milligrams, twice daily) and Seroquel (25 milligrams daily).
148 Dr Joshi concluded the plaintiff had been suffering CRPS since 2008 and her prognosis was uncertain. She considered at that stage the plaintiff was unfit to return to work.
Medico-Legal
149 GIO arranged for Dr Hjorth, consultant neurologist, to examine the plaintiff in July 2009.
150 On examination, the plaintiff’s fingers on the left hand were colder than the right, but the back of the left hand and wrist were warmer than the right. The nails of the left hand had a pinkish colour not present on the other hand. The whole of the left upper limb was tender to touch. There was no voluntary movement of the hand.
151 Dr Hjorth thought there was probably fair mobility of the wrist, fingers, and elbow, but not of the shoulder, where the arm appeared to be immobile.
152 Dr Hjorth thought this was an example of a very severe RSD (CRPS). He noted very commonly that condition followed injury, and that in this situation one would accept that the strains to the wrist and carpal tunnel syndrome and the two operations were what precipitated the condition.
153 Dr Hjorth noted the debate in the medical profession as to the condition, and that those doctors who thought it was hysterical or did not exist, were in the minority. Most doctors, he noted, believed it was organic, no matter how mysterious, and he agreed with the majority.
154 Dr Hjorth thought it was hard to give a prognosis; noting, however, that many cases remain severely disabled for long periods and indeed some of them continue indefinitely. The plaintiff’s prognosis was unknown and he thought it was a bit early probably to completely dismiss the possibility of further recovery, noting the plaintiff was under very good care with Dr Lim.
155 Dr Hjorth thought the condition had substantially stabilised, although there was a small chance of further improvement. In his view, it would be reasonable to add another four or five years to be absolutely certain, but even then he could not be confident.
156 Mr Troy examined the plaintiff on behalf of GIO in March 2009.
157 On examination, Mr Troy made no attempt to touch the plaintiff’s left upper limb, as she said it was too intensely painful. He noted that the plaintiff had a variation, as though it was bruising, in the subcutaneous normal pigmented skin, in the distal aspect of the volar and dorsal aspects of the forearm.
158 Mr Troy thought the plaintiff appeared to have sustained a variant of CRPS.
159 On 26 January 2010, the Medical Panel assessed a 10 per cent whole person impairment resulting from the accepted left wrist and left upper limb CPRS injuries. The Panel also was of the opinion the plaintiff had a zero per cent psychiatric impairment.
160 On 8 June 2010, the Panel thought the plaintiff was suffering from minor surgical scarring without any residual left wrist joint dysfunction together with minor dysfunction to the left shoulder and elbow, without any neurological abnormality or vascular abnormality or left wrist, thumb, finger joint abnormality.
161 The Panel also found that the plaintiff was suffering from a major depressive disorder with significant features of somatisation associated with a chronic pain disorder relevant to the claimed injury. The Panel found the plaintiff had no current work capacity and that that situation was likely to continue indefinitely.
162 Dr Kaplan, psychiatrist, examined the plaintiff in November 2010. The plaintiff told him in early 2009, she was referred to a psychiatrist for assessment and saw him twice.
163 On examination, the plaintiff complained to Dr Kaplan of a constant throbbing pain in her left wrist, arm, shoulder and shoulder blade region, aggravated when using her hand. She had limited movement of her fingers and thumb and was not able to make a fist. She had no movement in her wrist joint and could not rotate her forearm and consequently had little use of her left hand. She could do little more than light dusting around the house and needed assistance even when dressing.
164 The plaintiff told Dr Kaplan that she was always emotionally upset and depressed and most of the time she was sleeping – her medication affecting her sleep pattern. She got up at 7.30 am to supervise her children and then went back to bed. Her husband on his return from work at 1.30 pm would wake her up and give her a cup of tea and then she would watch television for the rest of the day until dinner. The plaintiff told him her weight had increased from forty three to seventy three kilograms and that also depressed her a lot.
165 The plaintiff advised she had no social life and she avoided driving because she felt groggy as a result of the medication. She only drove if she had to, such as having to drive her daughter to school and her pain affected her ability to drive. She had only gone shopping to the supermarket on a couple of occasions and only when her husband pressurised her to accompany him.
166 On mental state examination, the plaintiff’s thinking was characterised by preoccupation with her injury and its impact on her life. There were no abnormalities of speech, thinking or perception. The plaintiff appeared depressed and projected an air of defeat and expressed feelings of despair and hopelessness.
167 Dr Kaplan thought the diagnosis of a pain disorder associated with psychological factors and a medical condition was appropriate. He considered her depression, anxiety and associated panic attacks were related to the pain disorder and the organic component of her chronic pain and a diagnosis of an adjustment disorder with mixed anxiety and depressed mood associated with panic attacks would probably be more appropriate. He thought the plaintiff’s pain disorder would probably incapacitate her for work and he considered given the duration of her condition and the failure to improve, her prognosis was likely to be unfavourable and that she was unlikely to be capable of returning to her former job. He thought the plaintiff was likely to be retained with continuing treatment with her treating psychologist.
168 Mr Michael Flaim, surgeon, examined the plaintiff in December 2010.
169 On examination, the plaintiff wore a brace. Mr Flaim noted no colour changes or vascular changes in the left hand compared to the right. There was extreme hypersensitivity to touch over the left hand, particularly dorsally in the region of the scar. The plaintiff had extremely weakened grip of the left hand, which was hardly perceptible, and there was restricted movement at the left shoulder and wrist in passive and active movement. Mr Flaim noted all of the examination generally was accompanied by a tendency to over react.
170 Mr Flaim confirmed the weakness of grip was beyond expectations for the pathology, which had been demonstrated, and there was no obvious organic explanation for the persistence of severe degrees of pain and incapacity.
171 Mr Flaim concluded the initially injury was a soft tissue one, resulting in a dorsal wrist ganglion, which had recurred. He noted that there had been ample time for those soft tissue injuries to have resolved, but they had increased. He noted from the reports of Dr Trinca and Dr Lim that the plaintiff had developed chronic pain syndrome which had been relatively refractory to prolonged expert treatment.
172 Given the duration of her condition, Mr Flaim was pessimistic as to the plaintiff’s long term condition and he considered she would remain disabled for any work for the foreseeable future. He noted the plaintiff was currently totally unemployable and the fact she was on narcotic analgesics further reduced her employability. He could not foresee her returning to previous vigorous employment in the foreseeable future and noted she had also lost her capacity to look after her own household. He noted, as commonly was the case in this type of condition, the plaintiff had experienced a spread of symptoms to involve the right wrist further restricting her incapacity.
173 The plaintiff was examined by Dr Thomas, consultant in rehabilitation and pain medicine, on 4 November 2011.
174 The plaintiff then reported constant pain in the left hand which at times was a burning sensation and at times a shooting pain. A recent recommencement of physiotherapy had made her pain worse.
175 On examination, the plaintiff was wearing a wrist orthosis. There was no evidence of vasomotor swelling and no change to nail or hair. There was no alteration to her sweat pattern. The colour of her hand looked to be symmetrical with the right hand. She was hyperalgesic, and she had dynamic allodynia, especially around the scars of the left wrist over the carpal tunnel and over the back of the wrist of the dorsum of the wrist. Left hand movement was limited by pain, as were shoulder movements.
176 Dr Thomas thought the plaintiff suffered an injury in the incident. He thought it appeared she had primarily suffered a ganglion and then went on to develop carpal tunnel syndrome. He noted it appeared that pain was a major feature from the outset, and that it was quite intense for the plaintiff.
177 Dr Thomas thought it appeared that there had been an improvement from a neurological perspective, indicating the carpal tunnel was well decompressed.
178 At the time Dr Thomas saw the plaintiff, he thought she could not meet the criteria of CRPS. Nonetheless, he noted she was assessed by Dr Trinca, who thought the plaintiff fitted that diagnosis. Dr Thomas noted that syndrome did vary and altered with time. To be able to formally make the diagnosis he noted there had to be some history of vasomotor changes in addition to evidence of sensitisation such as allodynia and the hyperalgesia. Dr Thomas thought the plaintiff had the latter, but that when he saw her there were no vasomotor changes, which would tend to imply that any sympathetic overactivity that may have been present from the outset had now resolved.
179 On balance therefore, Dr Thomas thought CRPS Type 1 remained appropriate, indicated on the basis of the background documents.
180 Dr Thomas thought there was a direct relationship between that condition and the injury suffered at work, and in his view the plaintiff was not able to undertake her pre-injury duties as a catering assistant.
181 Dr Thomas thought in addition to physical problems the plaintiff had also developed some psychological problems, which also contributed to her current level of incapacity.
182 In Dr Thomas’s view, the nature of the plaintiff’s upper left limb condition precluded her ability to work in physical work where she required two functional arms, which was no longer the case. He thought an assessment by Dr Lim and the plaintiff’s local doctor was appropriate.
183 If an attempt was made to untangle the organic and the non-organic, Dr Thomas thought the plaintiff would still be left with a significantly disabling problem. He thought she would be very limited in her work capacity, and that overall she would be reliable for four hours, three days a week, to be able to do work which was predominantly right armed.
184 Dr Thomas also noted there would have to be clearly a significant improvement in the plaintiff’s overall emotional state to allow that to have eventuated, and that was something he suspected would never occur, as the plaintiff’s pain would not allow her to improve from his perspective to any extent. He thought it would be reasonable to indicate there had been a major curtailment in the plaintiff’s ability to function and pursue the life she was able to prior to the incident.
185 Dr Thomas provided a supplementary report of 18 January 2011, having seen the surveillance DVD. He noted the plaintiff was shown carrying a bag with the right upper limb. She closed the car door with her right upper limb. On the way to play the poker machines, she made a telephone call and typed a text message and held the phone in her left hand. On occasion when playing the pokies she used her left hand and returned to the car. She held objects close to her chest, not using the left hand but using the left arm.
186 All in all, Dr Thomas did not think the DVD evidence altered his opinion in any way. Further, he commented there was nothing much in Dr Kostos’ report that was of any concern to him. That report also reminded him that the plaintiff had her left hand in her jacket for much of the walk she was shown undertaking on the film.
187 Dr Thomas commented it would not be surprising that when Dr Kostos saw the plaintiff she did not have the criteria to form the diagnosis of CRPS, but nonetheless he thought the plaintiff clearly continued to suffer problems with the left hand and wrist, and there was a disability associated with it. He thought the surveillance DVD tended to support the fact that the plaintiff still had problems with the left hand.
188 Dr Blombery, consultant physician in vascular disease, first examined the plaintiff on 21 October 2010.
189 The plaintiff then complained of ongoing pain in the left arm and shoulder present all the time, that kept her awake at night. The left arm became hot and cold, changed colour, and there was increased sweating in the left hand and also the left axilla. The plaintiff also told Dr Blombery she had been quite depressed and had gained weight.
190 The plaintiff told Dr Blombery she was very limited in what she could do around the house. She used to enjoy going for walks every evening, but no longer could. She was able to drive for short distances, and she was no longer outgoing and happy as she had been before the incident.
191 On examination, the plaintiff sat with her left shoulder drooping. She wore a left wrist brace, and was exquisitely tender on pressure over the left hand, forearm and upper arm, as well as in the shoulder girdle and trapezius muscle. She could not flex the fingers of her left hand at all, and there was only five degrees of movement of the left wrist. There was very reduced flexion and extension of the left elbow and also abduction of the left shoulder. The left hand was more sweaty than the right, but there was no difference in temperature or colour between the hands.
192 Although there were no changes in temperature or colour on examination, there were changes in sweating between the two hands, and in Dr Blombery’s view the plaintiff fulfilled all criteria of the International Association for the Study of Pain for the diagnosis of CRPS Type 1.
193 Although it was more than four years since the incident, Dr Blombery thought it may still be worthwhile considering a technique such as stellate ganglion blockade, and he would certainly concur with a trial of intravenous ketamine infusion in an effort to break the pain cycle. He thought the plaintiff also needed multidisciplinary therapy for chronic pain in an ongoing way into the future.
194 Given the duration of the plaintiff’s symptomatology, he thought her prognosis for recovery was poor and that there was unlikely to be any significant change in her level of disability in the foreseeable future.
195 In Dr Blombery’s view, the nature of the plaintiff’s condition was CRPS Type 1 complicating removal of a ganglion and left carpal tunnel decompression. He thought the nature of her employment contributed to the development of these conditions, and that the plaintiff was suffering from her incapacity to work because of the injury.
196 Dr Blombery then thought the plaintiff currently had no capacity to work, given the severity of her left arm pain, which would distract her and make her use her right arm in gainful employment. It was his opinion that the plaintiff would not be able to return to her previous employment in the future, given the severity of her injury.
197 Dr Blombery re‑examined the plaintiff in November 2011. The plaintiff then advised that she was relatively stable since last being seen.
198 On examination, after the removal of her wrist brace, there was no difference in temperature or colour between the plaintiff’s hands, which Dr Blombery thought may suggest the temperature of the left hand was actually lower, as it would normally be higher after wearing a brace. The plaintiff was diffusely tender on pressure up the left arm from the wrist to the shoulder, and there was quite marked spasm in the trapezius muscle. There was some limitation of flexion of the fingers and restriction of wrist and elbow movement.
199 Dr Blombery concluded that the plaintiff continued to have features of CRPS. He noted typically the signs of this disorder fluctuate from time to time, and it was therefore quite possible that the plaintiff would not demonstrate signs of the disorder at various times. He noted she had always given him a convincing history of autonomic disturbance affecting the left arm on each occasion he had seen her.
200 Dr Blombery confirmed his early view as to the plaintiff’s employment capacity and also noted, given the severity of pain, which required opiate analgesics, and also marked secondary depression, there was no likelihood that she could return to realistic employment in the foreseeable future.
201 Dr Blombery provided a supplementary report on 18 January 2012, having seen the surveillance film and read Dr Kostos’ report.
202 Dr Blombery noted that in the film the plaintiff used her left arm fairly freely to carry objects and carry on a long conversation on the phone – such movements not consistent with examination in October 2010 when she could not flex the fingers of her left hand, and there was only minor movement of her wrist and elbow when he saw her in November 2011.
203 Dr Blombery commented in real life the plaintiff appeared to have been able to use the left arm to a significantly greater degree than during the examination, although he noted on the film the plaintiff did keep her arm in a jacket not infrequently and she wore a left wrist brace. He noted nevertheless she was able to play the pokies and press the buttons on the machines quite forcefully.
204 Dr Blombery therefore felt the plaintiff could use her left arm to a greater degree than exhibited in the course of his consultations, but noted there were some limitations on the surveillance DVD, and he did not consider she could use her left arm normally.
205 Dr Blombery agreed with Dr Kostos’ comments, apart from the fact that when Dr Kostos saw the plaintiff she said she was unable to drive on all occasions that he saw her, whereas when she first saw Dr Blombery the plaintiff said she could drive.
206 Dr Blombery concluded overall there was some disparity between the reports of the use of the plaintiff’s arm and what was being observed on surveillance, but the surveillance did not completely negate there being a problem with her arm.
207 Dr Jager, forensic psychiatrist examined the plaintiff in June 2009 on behalf of the defendant.
208 Dr Jager thought the plaintiff had a depressive disorder and a chronic pain disorder associated with both psychological factors and a general medical condition.
209 In his view, if there was no physical injury arising from the plaintiff’s employment, then the mental injury did not arise out of or in the course of employment. He thought non work related factors relevant to the claim included the plaintiff’s status as an immigrant, and also the fact she was not given restricted duties when certified.
210 Based on Dr Jager’s cross sectional assessment, he thought the plaintiff had no current work capacity due to the psychiatric illness. He did not consider her incapacity for employment was indefinite, and if treatment were modified a review in three to six months would be appropriate.
211 Dr Jager provided a supplementary report, having been provided with Dr Davison’s report and the vocational assessment. Dr Jager confirmed the plaintiff had a diagnosis of a major depressive disorder requiring additional treatment, and he thought if she were treated, she would regain a work capacity. From the psychiatric perspective, he thought the plaintiff was unfit for all employment due to the effects of a major depressive disorder.
Vocational Evidence
212 Mary Oliver, human resources consultant from Flexi Personnel, interviewed the plaintiff on 20 September 2011.
213 The plaintiff told Ms Oliver that due to her medications, which made her sleepy, she usually only drove if she had to. She spent most of the day sleeping. She was predominantly reliant on her right hand. She found it difficult to lift her left arm and would usually hold her arm close to her body.
214 Reference was made to Dr Blombery and Dr Kaplan’ review and also the report from the Medical Panel.
215 In Ms Oliver’s opinion as a recruiter, the plaintiff would have considerable difficulty effectively performing any workplace duties that equalled an acceptable productive standard, and most sedentary work required the use of both upper limbs.
216 Noting the Medical Panel opinion, Ms Oliver stated that she would not refer the plaintiff to any vacancy without a medical clearance from a doctor stating she was fit to work unrestricted both from a physical and a psychological perspective.
217 Ms Oliver concluded that the plaintiff’s predominant career skills, qualifications and experience, required high energy as demanded by the hospitality industry, especially in a large volume catering environment such as the airport.
218 In Ms Oliver’s view, as a result of her left wrist, arm and shoulder injuries and ongoing symptoms and diagnosed chronic pain disorder and major depressive disorder, it was unlikely the plaintiff would be able to effectively perform a pre-injury workforce role. From a recruitment perspective that would also extend to work with parallel physical and emotional demands.
219 Ms Oliver thought that if the plaintiff were to undertake alternative employment it would have to be very restricted duties, and with predominant use of one arm, to allow for her injuries and aggravation of her symptoms, therefore significantly narrowing her capacity to gain suitable employment and be a productive employee.
220 Ms Oliver noted that from a recruitment perspective, the plaintiff possessed minimal work ready transferable skills, with no previous administrative office or computer skills or experience, and effectively use of only one arm.
221 Ms Oliver reviewed the DVD surveillance and provided a report in January 2012. As that film had been taken about nine months before the interview, Ms Oliver did not know if the plaintiff’s condition had deteriorated after the recording, and essentially her view of the plaintiff’s condition remained unchanged.
The Defendant’s Medical Evidence
222 On 16 March 2010, Dr Lim wrote to GIO requesting funding for a two week inpatient program and also treatment by ketamine infusion.
223 Dr Lim advised that he had reviewed the plaintiff that day, noting she had had a scheduled break from formal therapy for five months, during which time she had self treated. He noted the fingers on the plaintiff’s left hand had a major reduction in swelling and discolouration and were comparable to the right now. She could wear rings on her fingers again. She had more normalised volitional range and sequencing – coordination of movement of her fingers, although grip strength was still reduced.
224 Dr Lim thought this was quite an amazing result for someone who had suffered a moderate to severe CRPS of the left upper limb at the time of the initial consultation in October 2008. He advised therefore the plaintiff had the potential to further normalise function of her whole left upper limb.
225 However Dr Lim noted the severity of the plaintiff’s pain was due to a supersensitisation to pain in consequence of CRPS and that was continuing to delay the process considerably. In that context he suggested the infusion treatment. He also noted the plaintiff’s problem of weight gain from fluid retention, and the possibility that that was due to medication, and therefore he had referred the plaintiff to Dr Sachs in that regard.
Medico-Legal
226 The plaintiff first saw Dr Kostos, rheumatologist, on 14 November 2008.
227 The plaintiff then complained of constant pain in her hands and shoulders with paraesthesia and numbness in both hands, and restriction of left hand and wrist movements.
228 At home she claimed there was not much she could do with one hand, and said she needed help with dressing and bathing and could not do any cooking and cleaning.
229 On examination, the plaintiff presented with her left arm in a splint, and when she removed it, she kept her left elbow abducted away from her side. The left elbow was held in ninety degrees of flexion, and the plaintiff could not demonstrate any active movement at all, and there was diffuse tenderness throughout her left arm. She could not perform any active wrist movements. Her hands were identical, save for movement, apart from the left being slightly cooler than the right, which was obviously due to immobility.
230 Dr Kostos thought the plaintiff’s left wrist pain was due to her dorsal wrist ganglion, and that the paraesthesia and numbness were due to her carpal tunnel syndrome, despite a normal nerve conduction study in June 2008.
231 Dr Kostos was firmly of the opinion that the plaintiff’s ganglion was coincidental and never the cause of her pain, and she never had carpal tunnel syndrome, and further confirmation of that came from the fact that she claimed to have developed identical symptoms on the right side.
232 In Dr Kostos’ view, it was inevitable surgery would not make a great deal of difference to the plaintiff’s symptoms.
233 Dr Kostos thought it appeared as though Mr Bennett believed the plaintiff had CRPS Type 1, but Dr Kostos could not find any evidence of that condition on examination. Dr Kostos thought it quite apparent the plaintiff had a chronic pain syndrome, and that parts of her presentation, particularly with respect to her left arm, could be described as being hysterical in origin. He suggested the best thing was to explain to her that she had never been injured and surgery was never likely to help. He thought she should also be asked to stop taking Lyrica and OxyContin.
234 Dr Kostos thought it quite apparent that the plaintiff did not demonstrate her true physical capabilities on examination, and therefore it was unclear whether she could drive a car. He thought she was attempting to portray herself as an invalid, and while she did this she would never return to work, and her prognosis was poor.
235 Having received Dr Lim’s report of 4 December 2008 in which Dr Lim commented on his report, Dr Kostos explained that none of the features described by Dr Lim as found by Dr Kostos on examination were actually diagnostic criteria for CRPS, and that the diagnosis was usually based on reporting and observing sensory sudomotor, trophic and vasomotor features. Dr Kostos noted that dystonia was not a usual feature of CRPS as Dr Lim had described. Therefore, there was not any information in Dr Lim’s report that would make Dr Kostos change his opinion.
236 The plaintiff was re‑examined by Dr Kostos in June 2010, at which time she advised there had not been any change in her condition.
237 On examination, the plaintiff presented with a left wrist splint, and her neck movements were virtually non existent. She could not demonstrate any active left wrist movement at all, and there was exaggerated tenderness to light touch around the left wrist. Her hands were completely normal apart from a marked pain response to light touch in the left hand. In particular, Dr Kostos noted there were not any vasomotor, sudomotor or dystrophic changes.
238 Once again Dr Kostos did not find there was any evidence of CRPS. He found examination findings were bordering on the hysterical, and certainly could not be explained on any physical basis whatsoever. He did not believe there was any need for the plaintiff to undertake a pain management program nor any infusion treatment. He commented that the plaintiff was trying to give the impression she was an invalid, and as a result “was trying to lead us to believe she would never return to work”. However, he did not believe this was the case.
239 Dr Kostos last examined the plaintiff in October 2011. At that stage the plaintiff’s paraesthesia and numbness that she had previously noted in her hands had improved.
240 The plaintiff told Dr Kostos she spent most of her time in bed during the day reading and she was unable to drive.
241 On examination, the plaintiff had little active movements of the left shoulder, and Dr Kostos decided not to attempt to demonstrate passive movements. There was diffuse tenderness around both shoulder girdles to light touch; more so on the left. The plaintiff’s left elbow was held in thirty degrees of flexion, and she claimed she did not have any active movement at all; however, movements of her left elbow were noted on casual observation.
242 The plaintiff’s hands were completely normal. There were no vasomotor, sudomotor or dystrophic changes, and she was able to fully straighten her fingers and make a fist on both sides. However, further examination was impossible due to the plaintiff’s pain response on the left.
243 Dr Kostos concluded he had not seen anything on examination that day to change his previous opinion, and it was quite clear in his view that non physical factors were entirely responsible for the plaintiff’s presentation. Accordingly he thought she did not require any treatment for physical problems, and he considered she was not incapacitated for work as a result of any physical problems.
244 Having reviewed the surveillance video, Dr Kostos commented the plaintiff was observed driving a car and using her left arm and hand in a normal manner, including using a mobile phone and even carrying a bag of shopping in her left hand. He noted the plaintiff held her left arm in her jacket in a sling position, and that at the gaming venue she was wearing a black support but was able to operate a poker machine with her left hand.
245 On every examination when Dr Kostos had seen the plaintiff she had told him she was unable to drive, but he noted she was shown driving a car in the video.
246 Dr Gary Davison, occupational therapist, examined the plaintiff in June 2009.
247 On examination, the plaintiff wore a Velcro wrist support. Grip strength was markedly restricted in the left hand. However, there was no evidence of muscle wasting in the intrinsic muscles. Examination of the left upper limb was very limited because the plaintiff reported hypersensitivity over the whole of the left upper limb to even the lightest of light touches. Skin colouration, however, was normal, as was skin temperature and perspiration pattern, and there were no obvious trophic changes.
248 Noting the operative procedures undergone by the plaintiff, Dr Davison also noted there was a history of temperature and colour change in the left upper limb with tenderness to very light touch and trophic changes; symptoms consistent with a diagnosis of CRPS Type 1.
249 Dr Davison was unable to confirm such a diagnosis on clinical examination, but noted that was not an uncommon scenario, given the intermittent nature of the symptoms and the fact that there was no diagnostic test for that condition. He did, however, observe there was no evidence of disuse atrophy in the non-dominant left upper limb; nor was there any evidence of disuse atrophy in the intrinsic muscles of the left hand.
250 Dr Davison thought there were no non work related factors that contributed to the plaintiff’s original medical condition; noting, however, that carpal tunnel syndrome was not considered to be an injury, but rather a medical condition that in the vast majority of cases was unrelated to employment.
251 Noting the tenderness to the very lightest of touch and the limited examination possible, Dr Davison gained the impression there was some degree of symptomatic exaggeration, given that there were no objective signs consistent with a diagnosis of CRPS Type 1, and there was also no evidence of disuse muscle wasting.
252 Dr Davison thought the plaintiff had a capacity for part time self paced duties subject to avoiding the use of the left upper limb and unrestricted use of the right upper limb. He thought the plaintiff did not have a capacity to drive, and should not operate moving machinery or work in such an environment. He thought she was only fit for part-time work, and would suggest that she was only likely to tolerate no more than two hours per week on alternate days, three days a week, with hours of work being increased on a gradual basis. He thought she was fit for suitable employment and that her current treatment was deemed reasonable and necessary. Given the plaintiff’s current state, he thought her prognosis was guarded, and suggested it would be useful to obtain some independent visual verification of her day to day activities.
253 Having received the vocational report from IPAR dated 1 June 2009, Dr Davison commented that the jobs suggested of cashier and hospitality worker would not be suitable. He presumed the duties of purchase and supply clerk as well as a customer enquiry clerk would involve computer use, which would also mean bilateral upper limb usage – duties he thought unlikely to be suitable initially. That left the role of a security control room officer, which he thought may be suitable. Dr Davison confirmed it was his view that the plaintiff was only fit for very part time work commencing at two hours a day, on alternate days, three days a week.
254 Associate Professor George Mendelson, clinical psychologist, first examined the plaintiff in December 2009.
255 At that time, he thought the plaintiff’s affect was somewhat anxious, but he did not consider she was clinically depressed, and he thought her emotional distress was understandable in the context of what she was speaking about at that time.
256 During the course of the consultation there were no indications that the plaintiff had any specific problems with either memory or concentration.
257 In Professor Mendelson’s opinion, during that day’s consultation there was no indication the plaintiff was currently clinically depressed, and therefore with a combination of medication and supportive psychotherapy he thought the depressive illness that was present when the plaintiff was examined by Dr Jager six months ago was well controlled.
258 Professor Mendelson considered if the plaintiff did have CRPS the resultant disability was minor, and her description of disability during consultation appeared to have been significantly exaggerated based on surveillance footage taken on 24 November 2009.
259 Based on the information available to him, it was Professor Mendelson’s opinion that there was no indication that the plaintiff had an incapacity to work as a result of any specific work-related mental disorder or psychiatric impairment. In his view the plaintiff was not precluded from doing any of the suggested jobs on a psychiatric basis.
260 On re examination in September 2011, the plaintiff’s affect was mildly anxious, which Professor Mendelson thought was understandable in the context of an independent psychiatric examination.
261 The plaintiff’s demeanour was unremarkable, and there was no evidence of cognitive impairment or any difficulties in that regard. The plaintiff again did not show any indications of formal thought disorder, and there were no indications of any abnormalities of perception.
262 Given the absence of any objective evidence of an organic abnormality, Professor Mendelson thought there was no basis for the plaintiff to be prescribed an opioid. He was not able to agree with the Medical Panel’s view in the absence of the specific symptoms of a major depressive episode and the absence of clinically significant depressed affect on mental status examination.
263 Professor Mendelson noted the plaintiff was entrenched in the role of an injured and disabled person, and from her description it appeared that this had been validated and supported by her family. He thought the plaintiff could be described as showing what had been described as learned pain behaviour. In his view the plaintiff did not have any loss of work capacity as a result of a psychiatric illness.
264 Having received the 2010 surveillance DVD, Professor Mendelson found no reason to change or modify his previous opinion.
265 Professor Stephen Davis, neurologist, examined the plaintiff in March 2011. She then told him that she had an ongoing severe pain syndrome really focused on the left upper limb, and she had little use of her left arm.
266 On examination, the plaintiff held her left arm in a flexed posture. There was no overt sweating or colour change. When her hand was touched she yelled out in apparent pain, suggesting allodynia, although Professor Davis thought there was a striking functional component.
267 The plaintiff would not allow passive movements of her hand, and it was impossible to objectively assess power because of her unwillingness to move her hand. There was no dermatomal pattern in the reduction of pinprick described by the plaintiff.
268 Professor Davis thought the plaintiff initially had some form of soft tissue injury, noting she was diagnosed as having a ganglion and she had a decompression of her carpal tunnel despite nerve conduction studies.
269 Professor Davis thought there were no objective findings neurologically, and there were striking psychiatric features. He thought the major pathology was of a functional nature rather than CRPS, although a component of that syndrome could not be excluded. However, he considered it was very minor compared to the functional presentation exhibited. He also noted the plaintiff appeared to be very anxious and depressed and she had a fixed view of severe permanent injury reflecting her psychiatric status. He could not make any unifying neurological diagnosis to explain the condition.
270 Professor Davis acknowledged he would have to agree with the Medical Panel that it was difficult to envisage the plaintiff performing any work, even work restricted to the use of the right arm, because of a combination of physical and psychiatric factors in which the latter dominated. Given the condition had been present for over four years, he thought it difficult to envisage any early improvement without an improvement in the underlying psychiatric disorder.
271 Having seen the DVD surveillance, Professor Davis agreed that the plaintiff showed no particular signs of apparent difficulty during various activities, and that her appearance was quite different to that exhibited when he saw her in his rooms in March 2011.
272 Professor Davis noted that on the film the plaintiff was shown holding objects under her left arm, putting on a jacket and walking quite normally without features of gait disorder, carrying a bag of fruit in the left hand, texting on a mobile phone with both hands, and speaking on the phone holding it up to her ear with her left hand. He also mentioned that she was using both hands operating the poker machine.
273 Professor Davis thought there was evidence of a major inconsistency between his examination findings and the plaintiff’s activities during the period of observation. He was unable to determine whether that inconsistency was due to psychiatric factors or otherwise.
Vocational Evidence
274 IPAR carried out an NES vocational assessment in June 2009 identifying the jobs of security control room officer, cashier, purchase and supply clerk, customer enquiry clerk and hospitality worker as appropriate for the plaintiff.
275 Weekly gross wages in relation to these suggested jobs were $1,141 for a security control room officer, $721 for a cashier, $779 for a purchase and supply clerk $779, $911 for a customer enquiry clerk $911 and $753 for a hospitality worker.
Video Surveillance
276 Thirteen minutes of video surveillance was taken of the plaintiff on 23 December 2010. Over that time the plaintiff was shown taking some items from her car. For most of the footage the plaintiff was shown walking, carrying a bag of shopping in her right hand with her handbag over her right shoulder.
277 At one stage the plaintiff used her mobile phone, resting it in her left hand whilst she texted. The plaintiff was also shown seated at a poker machine venue. Over about two minutes she was shown using her left hand on about three occasions to operate the push buttons to play. The plaintiff was then again shown walking with her handbag over her right shoulder. In her left hand she initially carried a jacket which she then crooked under her left arm which she supported by holding the strap of her bag.
278 Much of the time when she was shown walking, the plaintiff had her left hand in the pocket of her jacket.
279 The surveillance log relating to 23 December 2010 set out that the plaintiff’s car was driven by a female from the plaintiff’s home to Bridgestone Tyres in Hoppers Crossing at 8.29 am. That female was then observed removing a handbag from the car and walking into the tyre centre.
Overview
280 I accept the plaintiff suffered a compensable injury to her left upper limb in the incident on the said date.
281 Whilst there are non organic features in the plaintiff’s presentation, I accept that she suffers from CRPS as diagnosed by experts in this field - Dr Blombery, Dr Trinca and also Dr Lim.
282 CRPS is a variable condition as Dr Blombery, Dr Lim and Dr Thomas described and it is quite possible that the plaintiff would not demonstrate signs of the syndrome at various times. Accordingly, Dr Davison was not surprised there were no objective signs of the syndrome when he examined the plaintiff in 2009.
283 The presence or lack of bruising on the plaintiff’s left arm is an example of the variable nature of CRPS. Although most examiners did not find bruising on the plaintiff’s arm, Ms Palmer reported that since the plaintiff commenced counselling sessions with her, the plaintiff has presented with bruising of the whole left arm. Mr Troy noted a variation in the normal pigmentation of the skin, like bruising, when he examined the plaintiff in March 2009.
284 When the plaintiff showed me her left arm in re examination, there were two areas of extensive bruising in the elbow region, extending up her arm for a few inches and lower on her left forearm. Further, the plaintiff’s fingers on her left hand were noticeably colder than her right.
285 The consensus of medical opinion is that the plaintiff continues to suffer from CRPS, although Professor Davis thought the contribution of the syndrome to the plaintiff’s present condition was minor.
286 The plaintiff’s claim for compensation was accepted and she continues to be in receipt of weekly payments despite two attempts to terminate them and the payments continue following the determination of the Medical Panel that the plaintiff has no current work capacity.
287 I am mindful of the fact that the defendant accepted liability for the payment of weekly payments and medical expenses. This acceptance of liability may not be binding, but as said by Ashley JA in Ansett Australia Ltd v Taylor [2006] VSCA 171, such admission should ordinarily be regarded as very significant:
“. . . albeit not conclusive because a defendant in a particular case might be able to satisfactorily explain its conduct”.
288 No such explanation has been forthcoming in the present case.
Credit
289 As Maxwell P stated in Haden Engineering Pty Ltd v McKinnon (2010) VSCA 69 at paragraph 12:
“The weight to be attached to the plaintiff account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
290 Counsel for the defendant submitted the plaintiff was not a reliable witness relying principally upon the level of the use of her left hand shown in the surveillance video compared to the description she had given to various doctors of very significant restriction.
291 Whilst the plaintiff was shown using her left hand to hold her mobile phone whilst she texted and spoke, unzipped her jacket and briefly carried a shopping bag with her left hand, activities were predominantly carried out using her right dominant upper limb.
292 The plaintiff’s use of her left hand was not great or for any prolonged period of time. Significantly, she was shown for some minutes clasping the strap of her handbag with her left hand in an attempt to reduce the pressure on her left hand and make her more comfortable as she explained.
293 Pressing the play buttons on the poker machine a couple of times with her left hand was not a particularly forceful or prolonged activity nor was holding her mobile phone in her left hand, in effect cradling it while she texted with her right hand.
294 Views as to the significance of these activities clearly vary amongst the medical practitioners who have commented on the film with Dr Thomas sharing a similar view to my own.
295 Whilst the plaintiff may not be housebound as she has told some doctors and she drives more than she was prepared to admit to various doctors, I am satisfied that generally the plaintiff was a witness of truth who continues to experience significant pain from her ongoing CRPS – pain which she confirmed she suffers in the areas of bruising in her left arm that were very obvious when she gave evidence.
Consequences
296 In addition to the pain and shooting and burning sensation which the plaintiff has described, I accept that there is still some restriction of movement in the fingers of her left hand and also her wrist, although the former has improved somewhat in recent times.
297 The plaintiff continues to require ongoing significant pain killing medication which results in side effects such as drowsiness and difficulties with concentration. Her sleep is also significantly affected by her pain.
298 As a result of her pain and restriction, the plaintiff’s employment capacity is significantly compromised.
299 For six years prior to the incident, the plaintiff worked at the Qantas Club, having returned to the workforce after having her family. She enjoyed her job and also the friendships she made whilst working.
300 I accept the plaintiff is a motivated woman who made genuine attempts to return to work after the incident but she was not able to cope even doing limited right handed duties and has been unable to work since January 2008.
301 I accept that as a result of the CRPS, the plaintiff is unable to return to her pre injury employment in the hospitality industry or any similar manual job requiring the use of both upper limbs, a view supported by the preponderance of medical and vocational opinion.
302 I am satisfied that this inability to return to manual work when the plaintiff has no other training or work experience is a consequence which can be described as serious pursuant to the statutory definition.
303 I am satisfied that the CRPS is permanent given that it has continued, albeit with some improvement, since the incident and despite two surgical procedures and extensive treatment.
304 Having satisfied the narrative requirements, to obtain leave in relation to loss of earning capacity, the plaintiff must also establish that –
(a) at the date of the hearing, she has a loss of earning capacity of forty per cent or more – s.134AB(38)(e)(i); and also
(b) after the date of hearing, the relevant loss of earning capacity will continue permanently – s.134AB(38)(e)(ii).
305 The measurement of loss of earning capacity is set out in paragraph (f) which requires a comparison between:
(i) “without injury” earnings; and
(ii) “after injury” earnings.
306 The former must be calculated by reference to the six year period specified in s.134AB(38)(f).
307 “Without injury” earnings consist of the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion had the injury not occurred.
308 It is to be calculated by reference to that part of the period within three years before and three years after the injury as most fairly reflects the worker’s earning capacity.
309 The plaintiff carries the onus of proof in relation to economic loss and particularly in establishing satisfaction of the criteria in paragraphs (e), (f) and (g) therein: see Barwon Spinners Pty Ltd & Ors v Podolak (supra), at paragraph 70.
310 I am therefore required to determine a “without injury” earnings figure. The parties agreed that the appropriate figure was $43,868 per annum, sixty per cent of which is $26,230 or $504 per week
311 The plaintiff’s present earnings from personal exertion are nil.
312 I am satisfied that the plaintiff does not have a capacity to work for more than a few hours in very light work due to the problems she experiences with CRPS. She is effectively a one armed worker who has a history of only manual work and has no particular training or skills. As Ms Oliver noted that from a recruitment perspective, the plaintiff possessed minimal work ready transferable skills, with no previous administrative office or computer skills or experience, and effectively use of only one arm.
313 Further, the medication the plaintiff requires for the syndrome makes her drowsy and interferes with her concentration.
314 Accordingly, I do not accept that the plaintiff has the capacity to work in the jobs suggested by Flexi Personnel.
315 The consensus of medical opinion is that the plaintiff does not have a capacity for manual work requiring lifting or gripping. The plaintiff’s general practitioner Dr Joshi thought the plaintiff was unfit for all work when she reported in September 2011.
316 Dr Kostos is alone in his view that the plaintiff has no incapacity related to any physical condition.
317 Whilst Dr Lim acknowledged an improvement in the plaintiff’s condition and he considered the plaintiff should be re assessed, he did not consider she was fit for full time work having experienced a persistent pain condition.
318 Following examination in November 2011, Dr Thomas considered that due to her CRPS the plaintiff had a very limited work capacity and that overall she would be reliable for four hours, three days a week, to be able to do work which was predominantly right armed.
319 Ms Oliver held a similar view. She thought that if the plaintiff were to undertake alternative employment it would have to be very restricted duties, and with predominant use of one arm, to allow for her injuries and aggravation of her symptoms, therefore significantly narrowing her capacity to gain suitable employment and be a productive employee.
320 If the plaintiff was able to work twelve hours per week as suggested by Dr Thomas, in the jobs suggested by Flexi Personnel, she would still suffer a loss of forty per cent, not earning in excess of the agreed figure of $504 per week.
321 Therefore, I am satisfied that the plaintiff has a loss of earning capacity of forty per cent. Further, given the duration of her symptoms, I accept that this loss of earning capacity is likely to last into the foreseeable future.
322 I am also required to consider issues of retraining and rehabilitation pursuant to subsection (g).
323 In light of my findings as to the plaintiff’s impairment and her incapacity for employed, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by the plaintiff which would alter the situation that she has a permanent loss of earning capacity of forty per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of his capacity for employment, the plaintiff has satisfied the requirements of s.134AB(38)(g).
324 Having satisfied the test laid down in the Act in relation to loss of earning capacity, then the plaintiff is at large to make a claim for damages i.e. both for pain and suffering and loss of earning capacity – see Forrest J in Acir v Frosster Pty Ltd [2009] VSC 454 (7 October 2009), at paragraph 147, and Advanced Wire & Cable Pty Ltd & VWA v Abdulle [2009] VSCA 170.
325 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering and loss of earning capacity.
326 Having found the plaintiff has a serious injury pursuant to paragraph (a), I am not required to determine her application pursuant to paragraph (c). In any event, in my view any psychiatric consequences would not meet the test of severe and no submissions were made by the plaintiff’s counsel in support of this application.
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