Bogdanoska v Allsmanti Pty Ltd and VWA
[2009] VCC 108
•27 February 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-08-01680
| DRAGANKA BOGDANOSKA | Plaintiff |
| v | |
| ALLSMANTI PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 6, 9, 10 and 11 February 2009 |
| DATE OF JUDGMENT: | 27 February 2009 |
| CASE MAY BE CITED AS: | Bogdanoska v Allsmanti Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0108 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Serious injury application – s.134AB Accident Compensation Act 1985 – bilateral carpal tunnel disease – psychological disorder – nature and extent of contribution to incapacity – disentanglement of physical from psychological – whether reaches “very considerable” level in respect of physical injury – whether reaches “severe” level in relation to psychological injury – work capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R P Gorton QC with | John Dellios & Associates |
| Mr T S Monti | Proprietary | |
| For the Defendants | Mr P D Elliott QC with | Wisewoulds |
| Ms P Cefai | ||
| HIS HONOUR: |
Preliminary
1 In October 2001, the plaintiff had been working over a number of years for the first defendant, a contract cleaning company, specifically at the Northern Hospital, and as a result developed pain in a number of areas of her body, including her neck, lower back, shoulders and left foot. In particular, she experienced pain in her right and left wrists which was subsequently diagnosed as bilateral carpal tunnel syndrome.
2 After a brief attempt to return to work, she claims to be unable to work from that time to the present.
3 As a result of these various physical injuries, she alleges she has a significant psychological disorder in the nature of a chronic pain syndrome, and adjustment disorder which significantly affects her work capacity.
4 This is an application for leave to bring proceedings pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of the plaintiff’s employment over the period from October 1999 until October 2001.
5 Mr Gorton, on behalf of the plaintiff, identified the body function said to be lost or impaired as the left and right arms. In addition, he also stated the plaintiff had suffered a permanent severe mental or permanent severe behavioural disturbance or disorder in the nature of a chronic pain syndrome and adjustment disorder.
6 The application is thus brought under subsections (a) and (c) of the definition of “serious injury” contained in s.134AB(37) of the Act, and leave is sought in respect of both pain and suffering and loss of earning capacity.
7 In order to succeed, the plaintiff must prove, the onus being upon her, that the consequences emanating from the loss or impairment of the body function are at least “very considerable” and more than “significant” or “marked”. In the alternative, the plaintiff must prove, the onus being upon her, that the consequences emanating from the psychological disturbance or disorder may be fairly described as more than “serious” to the extent of being “severe”. The authorities have defined the word “severe” as being a word of stronger force than “serious”.
8 I must consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. I must also compare the impairment arising from injury in this application with other cases in the range of possible impairments or losses of the body function of the upper limbs, alternatively, mental or behavioural disturbances or disorders.
9 Further, in order to be satisfied that the plaintiff has suffered a loss of earning capacity, she must prove, as prescribed by s.134AB(38)(e)(i) and s.134AB(38)(f), that, as a result of injury, she has suffered a loss of earning capacity of 40 per cent or more when a comparison is made between her “without injury” earnings in the three-year period before and after injury, as best reflects her earning capacity, with her earning capacity at the present time from suitable employment.
10 Following Ashley JA’s decision in Grech v Orica Australia Pty Ltd & Anor,[1] the proper analysis to determine whether a plaintiff ought be granted leave is:
[1] (2006) 14 VR 602
(a)
To establish the plaintiff suffered compensable injury after October 1999, accepting injury includes aggravation, acceleration, exacerbation or deterioration of previous injury or disease;
(b) To sufficiently establish what that injury was; (c)
To determine the consequences the plaintiff alleges have resulted and that those consequences were “materially contributed to” by the compensable injury; and
(d)
To determine whether those consequences attain the “very considerable” level in respect of physical injury or the “severe” level in respect of psychological injury, both as to pain and suffering and economic loss.
11 The plaintiff, the plaintiff’s treating general practitioner, Dr Gorgioski, and consultant psychiatrists, Doctors Weissman and Seward, were called to give evidence and be cross-examined. In addition, medical reports, radiological studies, vocational assessments and other material was tendered in evidence. I have read all the tendered material.
12 On behalf of the defendant, Mr Elliott outlined the position of his client in response to the application as follows:
•
He alleged, in relation to physical injury, that the plaintiff suffered a range of claimed injuries, including to the neck, back, leg and arms. He said the plaintiff was not entitled to aggregate such injuries, and there was a disentangling exercise in relation thereto.
•
In relation to physical injury, he stated the plaintiff did not achieve the “very considerable” level in respect of any injury, and noted particularly that there was very little, if any, pathology in respect of injury to those various areas. The plaintiff, he said, had had an excellent result from carpal tunnel release surgery.
•
In relation to psychological injury, there was a significant issue concerning a needle stick injury suffered by the plaintiff in 1999 and that that was a major part of the plaintiff’s psychological presentation.
•
In relation to psychological presentation, there was a significant component of functional overlay and exaggeration.
•
There was a disentangling exercise in relation to, on the one hand physical injury, and on the other hand psychological injury, as contributing to the claimed consequences.
•
Mr Elliott stated that the plaintiff did have a work capacity and did not meet the 40 per cent test as prescribed by the legislation.
•
In relation to psychological injury, he said the plaintiff had not received any psychological treatment, despite being regularly reviewed by her general practitioner, and minimal medication. He said that the plaintiff did not meet the “severe” test.
•
In relation to physical injury, he stated the plaintiff could not accumulate the left and right arms.
Relevant Background
13 The plaintiff was born in Macedonia, is almost forty-nine years, and is widowed with adult children. She came to Australia in 1989 and has only a modest command of English.
14 After arriving in Australia, she obtained employment as a process worker in a meatworks, undertaking manual work on the meat line.
15 In 1997, she commenced employment with the first defendant, a contract cleaning company, and undertook a range of general cleaning duties. Over this period she mostly worked at the Northern Hospital and her duties included mopping, sweeping, dusting, cleaning windows and toilets and, in particular, using a large and heavy scrubbing machine which she claims put considerable stress on her arms and back. There is little issue, particularly in the histories to the doctors, that the work was strenuous and repetitive.
16 Prior to October 2001, the plaintiff enjoyed a range of general domestic and social activities, including vacuuming, mopping, washing, ironing, cleaning and the like, cooking and socialising with her family and members of the Macedonian community.[2] She undertook most of the family’s shopping, although did not drive.
[2] Plaintiff’s Court Book (“PCB”) 33-34
17 She had been educated only to Year 8 level in Macedonia and had not undergone any schooling in Australia. She had always worked in manual jobs, and I am satisfied, having heard the plaintiff in evidence, that her communication skills in English are very modest.
18 In 1999, in the course of her employment with the first defendant, she suffered a needle stick injury while cleaning in the toilets at the Northern Hospital. She was understandably upset and anxious as a result of this injury and sought treatment in the emergency department of the hospital.[3] She underwent a number of blood tests against hepatitis and HIV, all of which were negative. She is described in the medical records as being very anxious and worried as a result of this injury.
[3] See clinical records of Northern Hospital Defendant’s Court Book (“DCB”) 89-95
19 The plaintiff saw her general practitioner, Dr Gorgioski, regularly between 1999 and 2001.[4] There were entries in his clinical notes relating to tests undertaken by him to confirm the plaintiff suffered no diseases or other consequences as a result of this injury. The plaintiff had some initial short period away from employment in 1999, but then resumed full-time work duties until October 2001. In cross-examination,[5] Dr Gorgioski stated that after the initial tests were negative, the plaintiff was assured that there were no infections and that she was satisfied in that regard.
[4] Transcript (“T”) 66-67
[5] T89
20 In cross-examination,[6] the plaintiff admitted that she suffered the injury and underwent various tests. She said that after the tests were negative, “I wasn’t very scared”. This was about three months after the injury occurred. She denied the incident had been a significant source of anxiety thereafter.
[6] T35-37
21 In the histories given to various doctors, the needle stick incident was raised.[7] In particular, to Dr Stern[8] she gave a history, as at 2007, that she was still upset by the incident and avoided public toilets. To Dr Turecek,[9] she stated in 2005 that she was continuously preoccupied with the injury and its effects. Of most significance is the letter of Mr King, orthopaedic specialist, to Dr Gorgioski in September 2003.[10] He received a history from the plaintiff’s daughter that the plaintiff had been anxious and distracted since the injury, could not be reassured on the matter and that it was a “major obsession” for her. As a result, Mr King suggested to the general practitioner the plaintiff should see a psychologist.
[7] See histories to Mr Sherburn, physiotherapist, PCB 95; Dr Castle; PCB 131; Dr Seward, PCB 200; Dr Webb, DCB 1; Dr Turecek, DCB 21; and Dr Strauss, DCB 76d
[8] PCB 208
[9] DCB 26
[10] PCB 29-30
22 It is no easy matter to conclude what the effect of this needle stick incident has been upon the plaintiff’s psychological state. There is conflicting evidence from the plaintiff at one end and Mr King at the other. I conclude that the plaintiff did suffer a needle stick injury in 1999, and as a result was off work for a short period of time. She resumed normal duties over the period from 1999 to 2001, and was able to work in a full-time capacity. However, I conclude, particularly from the report of Mr King, that the incident was a source of ongoing anxiety for her and is a factor to be taken into account in assessing the plaintiff’s current psychological state. I shall refer further to this matter in analysing the consequences to the plaintiff of her psychological condition.
23 Save as aforesaid, the plaintiff was in reasonable health before October 2001, working in full-time employment, and carrying out a range of recreational, domestic and social activities as referred to above.
The Injury and its Consequences
24 In October 2001, the plaintiff began to experience symptoms in her back, neck, left leg and right and left arms, as a result, she claims, of the heavy and repetitive work at the Northern Hospital. She was first seen at the emergency department on 13 October 2001 with pain, including in the fingers of the right and left hand, and legs.[11] There was little to be found on examination, and the plaintiff was given a certificate for a short period of time away from work and referred to her general practitioner. It would appear from the histories provided to most of the doctors that the problems in these various areas of her body all came on in about October 2001. While it would seem unusual that the symptoms commenced at the same time, nonetheless there does not seem to be a significant disagreement, aside from the views of some of the defendant’s consultants, that the symptoms are work-related.
[11] DCB 97-101
25 The plaintiff has remained under the care of Dr Gorgioski to the present time. He provided a report[12] in which he noted the plaintiff complained of pain in various areas of her body and was anxious and depressed. He stated that, in his view, the plaintiff was permanently unfit for any work. Dr Gorgioski gave evidence and was cross-examined. He has treated the plaintiff conservatively both in respect of physical and psychological injuries over that period. He has prescribed pain-relieving, antihypertensive and muscle relaxant medication designed to assist the plaintiff with sleep. He referred the plaintiff to various specialist practitioners, but has not referred the plaintiff to a psychologist nor psychiatrist for treatment, nor has the plaintiff been prescribed antidepressants. In examination-in-chief,[13] he said that despite occasional references in his clinical notes to anxiety and depression, he thought he could adequately treat the plaintiff for her psychological condition and that there was no threat nor suicidal ideation. Had she needed the treatment from a psychiatrist, he said he would have referred her. He said, further,[14] that in relation to her anxiety and depression, she would not be able to return to her former employment and would not be a good candidate for any retraining.
[12] PCB 205
[13] T70
[14] T71
26 In the course of cross-examination, he agreed[15] that the plaintiff did not need referral to a psychiatrist as she was being adequately treated by himself. He agreed that if he had perceived the plaintiff needed psychiatric treatment, he would have referred her. Further, he had been certifying the plaintiff as unfit for any duties over the years from 2001 to the present as a result of her various physical problems, including neck, back, leg, shoulder and bilateral carpal tunnel. Dr Gorgioski has not been certifying the plaintiff unfit for work in respect of any psychological sequelae or disorder.
[15] T75
27 Further, Dr Gorgioski appeared to defer to the opinion of orthopaedic specialists, including Mr King and Mr Barrett, who could find little physically wrong with the plaintiff. The doctor was shown surveillance film to which I shall shortly refer, and stated that what was shown on the film did not affect his opinion, particularly in relation to the plaintiff’s work capacity.
28 I accept that Dr Gorgioski has seen the plaintiff very regularly over a long period of time and has the advantage of speaking the plaintiff’s native language. Nonetheless, I did not find his evidence of particular assistance. He appeared uncertain as to many aspects of the plaintiff’s condition and capacities and generally, I would prefer the opinion of specialist doctors, both physical and psychological, to his opinions.
29 Further, I find it somewhat difficult to explain how, on the one hand, Dr Gorgioski’s view is that the plaintiff is unable to work in her former employment as a result of anxiety and depression, and could not be re- trained, and yet on the other hand, there was only passing reference to depression and anxiety in his report of 30 January 2009 and clinical notes,[16] and more particularly, he had not prescribed any specific treatment for the plaintiff for her psychological problems. As stated, the certificates issued by Dr Gorgioski in respect of the plaintiff’s work capacity made no mention of any psychological disorder. In these circumstances, I find myself unable to accept his evidence that the plaintiff’s psychological condition has any significant adverse affect upon her capacity for employment at the present time.
[16] PCB 205
30 In her affidavit sworn in support of the application, most of the consequences from which the plaintiff claims to suffer at the present time, are related to physical rather than psychological injury. In fact, she states[17] that her back is the worst of her injuries. There is little, if any, reference to anxiety, depression or any other symptoms of a psychological nature. It would appear that those advising the plaintiff sought to base her application on physical, rather than psychological grounds.
[17] PCB 32
31 In October 2001, the plaintiff was referred to Mr Douglas, surgeon, in relation to her carpal tunnel problems. On 24 April 2002, he operated on the plaintiff’s right wrist, and subsequently in August 2003, upon the left wrist. He noted that the first surgery was successful.[18] In a letter to the general practitioner of October 2003,[19] he said the plaintiff was recovering from the left wrist surgery and that he was confident that would continue. To that end, he indicated in a return to work offer[20] that the plaintiff had a capacity to return to work within two weeks to general cleaning duties. There is no further up-to-date report from Mr Douglas.
[18] PCB 87
[19] DCB 112a
[20] DCB 112b-112f
32 The plaintiff was referred by Dr Gorgioski to Mr King, orthopaedic surgeon, in September 2003.[21] He noted that the plaintiff’s right hand symptoms had been completely relieved by the release operation, and there was little to find upon clinical examination in the lower and upper spines. He noted radiology showed no significant abnormality. He thought the orthopaedic problems were of a minimal nature, but noted, as already stated, the plaintiff was extremely anxious as a result of the needle stick incident.
[21] DCB 29-30
33 The plaintiff was referred to Mr Brian Barrett, orthopaedic surgeon, in August 2004 and again in September 2008 by Dr Gorgioski. She complained to him of continuous low-back pain, including pain to her buttocks and left leg. She claimed that she could only manage light housework, and moved in a stiff and slow manner. Mr Barrett examined an MRI scan of the low-back of November 2007 which he said appeared quite normal. He could find no true clinical nor radiological evidence of significant lower back injury, and there was no treatment he could offer.
34 Save as aforesaid, the plaintiff has not been referred to any other specialist practitioners.
35 In terms of her employment, as stated, the plaintiff ceased work in October 2001. Within weeks of the onset of pain, she apparently attempted a return to work but was there for less than a day. She gave evidence that her supervisor told her she was not permitted to return to work until she was fully recovered. She attempted some duties but the pain was severe and she was unable to continue. It is clear Mr Douglas, the plaintiff’s surgeon, certified her as able to return to work after the second carpal tunnel operation in 2003.[22] The plaintiff gave evidence[23] that when she received these documents, she telephoned the employer and was advised that she was only being offered full-time duties. She appeared to decline for that reason. She further gave evidence that she has not attempted any form of alternative employment, nor in fact sought any type of employment.[24] She did not feel there was any employment she would be capable of undertaking.
[22] DCB 112b
[23] T143
[24] T23
36 Reports of various radiological investigations were tendered into evidence.[25] There is no significant abnormality shown in either the cervical nor lumbar spines. Aside from some minor changes, ultrasounds of the left shoulder were within normal limits. Nerve conduction studies in 2001 were said to show evidence of carpal tunnel syndrome in both wrists. Similar tests in September 2004[26] showed evidence of mild right carpal tunnel syndrome and minor abnormalities in the left wrist. A further study in November 2007[27] again showed evidence of mild right and borderline left carpal tunnel syndrome. The appearances had improved from the earlier study.
[25] DCB 114-125
[26] DCB 121-2
[27] DCB 124
37 The consequences that the plaintiff complains arose as a result of injury, as are referred to in her affidavit in support of the application, are concerned only with physical injury. Aside from her incapacity for work, she stated that she suffered ongoing pain and restriction in a number of areas, including her hands, neck, left shoulder and lower back. She was unable to sit or stand for anything other than short periods. She is prescribed a range of medication now including Serapax, Indocid, various cremes, Ducene, Mobic and Digesic. She states that she is unable to undertake domestic activities, including vacuuming, mopping, making the beds and washing. She states that her arms are still sore and that the surgery has not provided relief. She says there is a disturbed sensation in each hand. She claims limited strength in her arms and the fingers stiffen up with pins and needles. She says she cannot perform any repetitive activity or lifting with the arms. Cooking, particularly handling heavier cooking pots is difficult. For these reasons, she does not socialise as she previously did and is limited in the shopping she is able to undertake.
38 In the course of her evidence-in-chief,[28] she said that she did not sleep well, and that she became irritable, nervous and upset. She cried on occasions. The plaintiff took Serapax to “calm her down” and assist with sleep.
[28] T23-25
39 It was accepted that in the year ending 1 July 2000, the plaintiff’s gross income was $46,285, and for the following year, $39,213.[29]
[29] T201
Medical Evidence - Physical
40 I have referred to the evidence of the treating practitioners.
41 The plaintiff has been referred to a range of treating physical and psychological practitioners over the last eight years. Most of those practitioners have seen the plaintiff on one, and some on two occasions. I found this unsatisfactory. There is no one practitioner who has seen the plaintiff regularly and traced the course of her health following injury.
42 The plaintiff was examined by Dr David Fish, occupational physician, in August 2007.[30] He received a history that following the bilateral decompression, the plaintiff claimed no significant improvement with pins and needles in both hands. He noted various other symptoms in the plaintiff’s neck and lower back. He assessed the plaintiff as suffering widespread pain with persistent recurrent numbness and a sensation of swelling in the hands. He could find no significant abnormality in the spine and thought the plaintiff may be suffering some unresolved soft tissue problem. The report appears to have been obtained for the purposes of an impairment assessment pursuant to the AMA Guides and is of limited assistance for that reason.
[30] PCB 98-104
43 The plaintiff was examined by Dr Sedal, neurologist, at the request of her solicitors in October 2008.[31] Dr Sedal noted that the plaintiff’s husband had died in 2008. He received a history that the plaintiff had severe pain in her right and left arms with stiffness in the fingers and pins and needles with numbness. He obtained a history of a range of various other physical symptoms. Upon examination, he could not find any neurological weakness, nor muscle wasting. He examined the radiological reports and concluded that the plaintiff suffered bilateral carpal tunnel with persisting symptoms despite surgical decompression. He said that it was difficult to provide an assessment as he had not seen the nerve conduction studies carried out before surgery. From a physical perspective, he did not think the plaintiff would be able to return to her previous work as a cleaner and would not be able to undertake any work which required repetitive, rapid, forceful or finely manipulative use of her hands.
[31] PCB 124-127a
44 In a further letter to the plaintiff’s solicitors of 4 February 2009,[32] Dr Sedal indicated he had been provided with the nerve conduction studies of 2001. He noted the original studies showed clear evidence of carpal tunnel with definite improvement after surgery. He concluded the plaintiff’s surgery was successful in decompressing the nerve and there had been no recompression. He thought the persistent symptoms were as a result of damage from the original lesions.
[32] PCB 127A
45 The plaintiff was examined by Dr Castle, a specialist in occupational health at the request of her solicitors.[33] He received a history that in respect of the plaintiff’s left hand it “feels as if something is pulling it apart”. Further, the plaintiff complained of stiffness and pain down the whole of the spine and to her left leg. She said she had weakness over the whole of her body and that her back was numb. After examination of the radiological reports, he thought the plaintiff had undergone carpal tunnel release but without a very good outcome. He thought that the plaintiff’s symptoms were quite atypical. The plaintiff was clearly depressed but did not think the depression accounted for her physical symptoms. He was uncertain of the cause of her back pain and was still suffering from bilateral carpal tunnel syndrome but that the swelling was atypical. He considered that her work using the buffing machine was a significant contributing factor to the injury to her arms. For this reason he thought her incapacitated from her pre-injury employment and in fact had no current work capacity due to the carpal tunnel syndrome. He noted that with her English language difficulties and physical restrictions she would be incapable of undertaking any re-training.
[33] PCB 128-138
46 The plaintiff was examined by Dr Webb, rheumatologist, in 2002 at the request of the WorkCover insurer.[34] His report is of little assistance as the plaintiff had only recently undertaken the first of the carpal tunnel surgery.
[34] DCB 1-6
47 Likewise, the plaintiff was examined by Dr Phillip Mutton, occupational physician, in 2002 and 2003.[35] Again, I did not find his reports of significant assistance given their age and that the reports were written before the surgery to the plaintiff’s left wrist.
[35] DCB 7-20
48 The plaintiff was examined by Mr Jones, orthopaedic surgeon, in December 2003 at the request of the WorkCover insurer.[36] He was not able to explain the plaintiff’s symptoms entirely in physical terms. He thought that the carpal tunnel surgery had produced a good result. He was not able to find any restriction in the neck and back and thought the plaintiff capable of a return to full-time employment.
[36] DCB 31-33
49 The plaintiff was examined by Dr Miller, general practitioner, in August 2004. He thought, after examination, the plaintiff had a slight disability to her neck, back and arms. He accepted that the carpal tunnel syndrome was related to her work with the first defendant.
50 The plaintiff was examined at the request of the WorkCover insurer by Dr Chris Baker, specialist in occupational medicine.[37] He received a history that the plaintiff was affected by symptoms over the whole of the left side of her body, including face, trunk, left arm and leg. When he examined the cervical and lumbar spines, there was a full range of movement, evident also at the elbows and wrists. There was no muscle wasting. He could find little evidence of abnormality either upon clinical examination or radiology. He considered the plaintiff was suffering a psychogenic pain disorder with somatic symptoms. He did not think the carpal tunnel syndrome was work- related. He thought the plaintiff had the capacity for suitable employment provided she did not have to lift, push or pull heavy weights or repeatedly used her arms above shoulder height.
[37] DCB 42-49
51 The plaintiff was examined by Dr Wyatt, occupational physician, in January 2007, again at the request of the insurer. Upon examination, Dr Wyatt noted some non-physically based findings with widespread body pain. She thought that 20 to 40 per cent of women in the plaintiff’s age group had generalised aches and pains. She said there was no evidence of ongoing physical problems in the nature of an injury or disease which could account for the widespread pain. There was no significant pathology. Generally, she accepted that the carpal tunnel syndrome as work-related but in relation to the widespread body pain, thought she was suffering a psychogenic pain syndrome unrelated to work. She suggested the plaintiff take simple analgesics and remain active.
52 The plaintiff was examined by Dr Kevin Fraser, rheumatologist, in July 2007 at the request of the WorkCover insurer. He did not consider the plaintiff suffering any work-related injury although she may initially have had some soft tissue strains as well as carpal tunnel. He thought the carpal tunnel had resolved as provocative tests had been negative. He did not think the numbness claimed in her hands was significant and that she was fit for her pre-injury duties.
53 The plaintiff was examined by Mr Nye, neurosurgeon, in April 2008.[38] He noted global weakness in the arms with non-anatomical response to pinprick. Many of the pains he considered were functional in origin. There was no evidence of any cervical nor lumbar spinal condition save for some minor degeneration. He thought that the plaintiff had suffered a psychological reaction and that in relation to the bilateral carpal tunnel, he said the physical findings were mild and the plaintiff would be able to use her hands normally. He did not consider the plaintiff had any incapacity for employment.
[38] DCB 65-76
54 Finally, in relation to the physical doctors, the plaintiff was examined by Professor Stephen Davis, neurologist, in December 2008.[39] He received a history similar to the other practitioners of diffuse pain in the neck, head, shoulders, arms, lower back and left leg. He noted a non-anatomical collapsing type weakness of the left side of the body. There was no specific injury that he could determine although thought it was plausible the plaintiff had suffered a minor low-back strain. He thought that the carpal tunnel syndrome was materially related to her work but that the symptoms he observed were not typical. He thought there was a marked functional component with abnormal illness behaviour to her presentation and thought those aspects ought be addressed by a psychiatrist.
[39] DCB 79-82
55 A vocational assessment was undertaken in March 2004 by Hema Srinivasan, rehabilitation counsellor. The assessment identified a range of employment that the plaintiff was said to be capable of undertaking, including:
ƒ Light cleaning ƒ Butcher’s sales assistant ƒ Food services assistant ƒ Meat packer, trimmer ƒ Leaflet deliverer ƒ School crossing supervisor
Summary of Findings – Physical Medicine
56 As stated, there are many doctors who have seen the plaintiff on only one occasion, and these reports are of little assistance. Mr Douglas, the plaintiff’s treating surgeon, accepted the onset of carpal tunnel as being work-related. Despite the views of some doctors, I accept that to be the case. It is clear from his brief reports that the surgery of 2002 and 2003 was successful. In fact he considered the plaintiff fit to return to work in 2003. I would have expected an up-to-date report from this doctor given the plaintiff’s claim in respect of sub-paragraph (a) is in respect of injury to the upper limbs.
57 The nerve conduction studies of 2004 and 2007[40] indicate mild or borderline carpal tunnel with improvement in the 2007 study. I note that the treating specialist Mr King reported in 2003[41] that he could find no abnormality in the right forearm, wrist nor hand. The report of Dr Sedal of 4 February 2009[42] is helpful. Having examined the various nerve conduction studies, he concluded that the surgery of 2002 and 2003 was successful and that there had been no recompression of the median nerve. He considered the plaintiff’s persisting symptoms as a result of “damage from the original lesions”.
[40] DCB 121, 124
[41] DCB 30
[42] PCB 127A
58 There were a number of practitioners who found the plaintiff’s complaints of pain and altered sensation in the wrists as atypical.[43] Many conclude, particularly given the diffuse pain, that the symptoms are functional. I accept these views and conclude that a significant proportion of the pain and other symptoms in her wrists and arms have a psychological genesis rather than physical.
[43] See reports of Dr Castle, PCB 134; Dr Webb, DCB 3; Dr Mutton, DCB 11; Dr Fraser, DCB 56; Mr Nye, DCB 69
59 My conclusions in relation to physical injury to the arms are as follows:
•
The plaintiff developed carpal tunnel syndrome in both wrists arising out of her employment.
•
She underwent surgery for both wrists in 2002 and 2003 and the surgery was successful in decompressing the median nerve.
•
The plaintiff has suffered some ongoing symptoms in the wrists probably relating to some persisting damage from the original lesions.
•
Those remaining symptoms of a physical nature are relatively minor and the basis for the ongoing symptoms in the plaintiff’s wrists, such as they are, have a functional or non-organic basis.
Medical Evidence – Psychological
60 The plaintiff was examined by Dr Weissman[44] at the request of her solicitors in December 2008. When asked about her husband’s recent death, the plaintiff stated:
“I’m experiencing a lot of hardship because of my injury. Sure I still have feelings for what happened to him. But the injury’s preventing me from doing things.”[45]
[44] PCB 139-151
[45] PCB 145
61 Dr Weissman concluded that the plaintiff was still grieving for her husband after his death in January 2008 and that this was an understandable and appropriate grief. He diagnosed her as suffering a chronic adjustment disorder with depressed and anxious mood, of moderate severity. He thought that her employment was a significant contributing factor to the condition. As a result of her psychological state, he said that the plaintiff was totally incapacitated for all work. She felt unhappy, depressed, tearful, socially withdrawn, had sleep disturbance and a range of other psychological symptoms. These symptoms impacted upon the plaintiff’s occupational functioning.
62 He thought the plaintiff would benefit from treatment by a clinical psychologist and further, by prescription of antidepressant medication. He thought her prognosis as unfavourable. He said that the injury was moderately severe and that the plaintiff would be unable to perform or participate in any rehabilitation or re-training. The injury impacted in a moderate manner upon the plaintiff’s social, domestic and recreational activities.
63 In the course of his evidence in cross-examination, it was noted that he had not received a history of the needle stick injury. When apprised of this, Dr Weissman said it was likely the injury would have caused some anxiety, but it did not alter his opinion that the physical work injury was a contributing factor to her psychological condition. When advised of the opinions, particularly of Mr King, Dr Weissman stated that if indeed the plaintiff was suffering significant anxiety as a result of the needle stick injury in 2003, that may affect the extent of contribution to the psychological disability.
64 Dr Weissman was shown video film to which I shall subsequently refer, and stated that the film was of little assistance in determining the plaintiff’s psychological state. He did not think the plaintiff was suffering from a chronic pain disorder, as had been found by many other doctors, and disagreed particularly with the opinion of Dr Strauss. He accepted further,[46] that the plaintiff might be able to undertake some suitable light jobs, including distributing leaflets or newspapers. It was possible the plaintiff may be able to undertake light cleaning jobs.
[46] T127
65 Dr Weissman confirmed that the various physical injuries, including wrists, back, neck and leg were important contributing factors to the development of her psychological disorder. While he accepted the plaintiff was grieving over her husband’s death, he did not consider that a particularly significant cause of the depression and anxiety. He accepted that organic symptoms were sufficient to cause the psychological condition.
66 While I had the benefit of hearing evidence and cross-examination of Dr Weissman, I was not particularly impressed with his evidence. He appeared to take a rigid view of the plaintiff’s condition, not accepting that there was any evidence of the plaintiff suffering a pain syndrome. He did not make concessions I would expect of a witness giving an even handed account of the plaintiff’s condition.
67 The plaintiff was examined at the request of the WorkCover insurer by Dr Turecek, psychiatrist, in 2002 and 2005.[47] He received an initial history that the plaintiff was distressed and tearful, irritable, felt shaky and nervous. He considered the plaintiff was suffering a psychogenic pain disorder and thought this was contributed to by her work over a period of time. He thought the plaintiff’s symptoms of depression were mild and had developed secondary to the physical injuries. He thought the plaintiff might benefit from low dose anti- depressant medication as well as a return to suitable employment.
[47] DCB 21, 25
68 In his second report, he noted she was again tearful and distressed, and unable to sleep. He confirmed the diagnosis of a psychogenic pain disorder and he noted that she was at that stage still preoccupied with the needle stick injury. From a psychiatric perspective, he thought her capable of undertaking suitable employment within physical limitations.
69 The plaintiff was examined on behalf of the defendants by Dr Strauss, psychiatrist, in April and December 2008.[48] In his first report he noted the plaintiff was very depressed about the death of her husband. He also received a history of the needle stick injury. He said the plaintiff was depressed before her husband’s death but was much more so afterwards. In his first report he concluded that as a result of the chronic pain from various physical injuries she was suffering from a mild adjustment disorder with mixed anxiety and depression. There was, however, no psychiatric incapacity for employment. He noted she was extremely emotionally upset following the loss of her husband. He thought she was not motivated to return to work because of the grief reaction, unrelated to her employment. He said she had no incapacity for domestic activities on psychiatric grounds.
[48] DCB 76a-76v
70 Dr Strauss provided a further report of 2 September 2008[49] as a result of being given various radiological investigations and reports of treating physical doctors. He concluded that there was little doubt that much of the plaintiff’s pain was psychologically based. He had difficulty explaining the pain on psychological grounds but accepted the plaintiff may have a pain disorder associated with psychological factors. There was the possibility of over exaggeration of symptoms. He thought the plaintiff fit for work even though she may have a mild pain disorder, together with a mild adjustment disorder.
[49] DCB 76h
71 He again examined the plaintiff in December 2008. The opinion expressed in this report is somewhat difficult to understand. Dr Strauss stated[50] that:
“Nothing has changed since I last saw this woman.”
[50] DCB 76r
72 He thought she was suffering from a pain disorder associated with a medical condition, and psychological factors. He said she also suffered an adjustment disorder with mixed anxiety and depressed mood. He thought psychological factors had become increasingly relevant and there was the added problem of the death of her husband which caused a grief reaction. He said the plaintiff suffered a range of emotional and physical symptoms and given the lengthy period away from work, her age and personal situation, he determined she would be impossible to rehabilitate and could not see her working again as her motivation was low. From a psychiatric perspective, therefor, she was incapacitated for employment.
73 In his final report of 3 February 2009,[51] Dr Strauss was provided with extracts of the clinical notes of the Northern Hospital in relation to the needle stick injury, including the reports of Dr Le, and Mr King. He stated that he did not obtain a history as was obtained by these doctors. As a result of the additional information, Dr Strauss stated:
“My opinion certainly would change and it does appear that this [the needle stick injury] has been a significant factor in the commencement of her anxiety.”
[51] DCB 76t
74 As stated, the opinion of Dr Strauss is difficult to follow. In the first two reports, he regarded the plaintiff’s psychological condition as being mild to moderate with no work incapacity. In the report of December 2008, despite his statement that nothing had changed, he determined that the plaintiff was incapable of employment on psychiatric grounds alone. That opinion appeared to change further when he was provided with details of the needle stick injury.
75 By reason of these matters I conclude that I am not able to rely upon the opinion of Dr Strauss. His reasoning and change of view in relation to the plaintiff’s work capacity does not appear to me to have a sound basis. I therefore reject his conclusions.
76 The plaintiff was examined by Dr Stern, psychiatrist, on behalf of the WorkCover insurer in December 2007.[52] He noted the plaintiff as being depressed by pain and physical restriction, sometimes tearful and irritable. He obtained a history of the needle stick injury and noted the plaintiff complained she was still upset when reminded of it. He thought the plaintiff was suffering a chronic pain disorder and chronic adjustment disorder with mixed anxiety and depressed mood. The needle stick injury of 1999 was a relevant contributing factor. He concluded that from a psychiatric perspective alone, the plaintiff was fit for employment.
[52] PCB 206-213
77 Finally, the plaintiff was examined by Dr Seward, psychiatrist, at the request of her solicitors in January 2009.[53] In relation to her husband’s death, the plaintiff stated that she missed him and it was difficult now for her as he used to undertake much of the work around the house and particularly drove her around as she did not have a licence. Dr Seward obtained the history of pain in the wrists, back and neck. Further, the plaintiff claimed that the pain made her depressed and because she was disabled, she relied upon her children for assistance. She described sleep disturbance, poor energy levels and tiredness. There was no evidence of suicidal ideation. She noted the plaintiff had not been treated nor received anti-depressant medication. Dr Seward concluded the plaintiff was suffering a chronic pain syndrome, and a chronic adjustment disorder with depressed mood, and bereavement. She thought the plaintiff had been persistently grief-stricken for twelve months. She recommended the plaintiff be prescribed antidepressant medication and be referred to a psychiatrist for counselling. She said the physical injuries at work in 2001 had led to the development of the pain syndrome and adjustment disorder. She stated that the plaintiff had no current work capacity and that this was on both physical and psychiatric grounds. The chronic depression had been compounded by the loss of her husband. She noted that the original work injury of 2001 had made a significant impact on her capacity for employment and led to restrictions in social, domestic and recreational activities.
[53] PCB 197-204
78 Dr Seward attended for cross-examination. She stated that the plaintiff had a chronic pain syndrome as a result of complaints of pain excessive to what one would expect of the organic injuries to the wrists, low-back and other areas.[54] It was put to Dr Seward that given the psychological disturbance arose out of the pain said to come from physical injuries, that if in fact the plaintiff had little, if any, pain and was not actually disabled as she stated, then the basis for the development of the psychological injury would be taken away. Generally Dr Seward agreed with this although she stated that she had not detected any evidence of exaggeration, and accepted the plaintiff as genuine. She noted, however, that she had been fooled on previous occasions.[55] Dr Seward accepted that she had not received the detail in relation to the needle stick injury, as had some other practitioners.
[54] T160-162
[55] T166-168
79 When shown extracts of the video surveillance film, she stated that that did not change her views significantly. She said she had not asked the plaintiff whether she could lift heavy items or perform the range of physical activities as shown. She said that the video did not shed much light upon the plaintiff’s depression. She agreed that the depression was moderate and that the plaintiff could manage a reasonable level of activity. She said the symptomatology from a psychological point of view was moderate. She said the depression the plaintiff suffered had been made worse by the death of her husband. Dr Seward accepted[56] that having seen the videos, it would seem the plaintiff had the capacity for light duties, from a physical perspective. From a purely physical side, there was work the plaintiff was capable of doing.
[56] T189
80 The view of Dr Stern that the plaintiff was not incapacitated from employment on a psychiatric basis was put to Dr Seward. She said[57] that that opinion was before the plaintiff’s bereavement. Dr Stern accepted that the plaintiff’s incapacity was as a result of a number of factors, being a combination of the physical symptoms, psychiatric issues and the bereavement. From a purely psychiatric aspect, she said the plaintiff would be fit for part-time suitable employment, “perhaps”.[58] Dr Seward accepted the plaintiff had taken an invalid sick role, reinforced by her bereavement.[59]
[57] T192
[58] T192-3
[59] T193
81 I was impressed with the evidence of Dr Seward. She gave evidence both in examination-in-chief and cross-examination in a measured manner. Her view appeared to me to be balanced and she made appropriate concessions.
Conclusions in Relation to Psychological Medical Evidence
82 I accept that the plaintiff suffered some minor soft tissue injuries to her lower back and neck and possibly shoulders as a result of her work leading up to October 2001. In addition, the plaintiff suffered carpal tunnel syndrome to both wrists. As a result of these physical symptoms and their effect upon domestic and work activities, the plaintiff developed a depression, and I accept the diagnoses of Doctors Stern and Seward that the plaintiff is suffering a chronic pain disorder and chronic adjustment disorder.
83 I reject the opinion of Dr Strauss for the reasons stated above. Dr Turecek diagnosed a psychogenic pain disorder which I accept as a disorder similar to a chronic pain disorder. I accept the plaintiff’s psychological disorder as comprising a number of elements. I accept that there is a significant work- related element, being the pain she states she suffers as a result of physical injury, to some extent the anxiety relating to the needle stick injury of 1999 which I find is a continuing factor, and in addition the loss of her husband and the consequent grief. In my view, all of these factors are contributing to the plaintiff’s current state.
84 I accept the opinions of Doctors Turecek, Stern and Seward. In essence, there is not a great dissimilarity between the diagnoses, but Dr Seward finds the symptoms from which the plaintiff is suffering are more significant than Dr Stern or Dr Turecek. In fact the real difference is that Dr Seward finds the psychological factors largely incapacitate the plaintiff for work, although accepting she has some light work capacity. What must be said, however, is that to a significant extent, when analysing the plaintiff’s physical symptoms, Dr Seward is reliant upon the accuracy of the description of pain and consequent disability from the physical injuries, as provided by the plaintiff.
Credibility of the Plaintiff
85 An attack was made upon the plaintiff’s credit. Three surveillance films were shown of January 2009, and May and August 2008. In the film of January 2009, the plaintiff was shown with her daughter shopping. Her grandchildren, one a baby and one about two years old were also present. On a number of occasions in the course of this surveillance film, the plaintiff lifted the two year old child into her arms to carry her across a suburban street, and to carry her in a shopping centre. On occasions, the plaintiff leaned into a motor vehicle in order to secure the two year old child in a seat. She walked in a normal manner, was able to open and close shop and car doors and on one occasion reached into the pusher to lift the two year old child out. She carried shopping in both hands on one occasion, including a bag containing a number of litres of milk, and did so in a free and unrestrained manner. There was no sign of any restriction or pain as a result of these activities.
86 Further surveillance film was taken in August 2008 which is brief and showed the plaintiff walking along a suburban street moving without restriction.
87 The plaintiff is shown in surveillance film of 1 May 2008 initially in a car park at a suburban shopping centre. She carried her grandchild from the car and placed her in a pusher.
88 On 22 May 2008, she was shown in a shopping centre carrying her grandchild over a considerable period, again without difficulty. She was seen to push a loaded supermarket trolley and to unload the contents into her daughter’s car. The contents include large boxes of soft drink. It is noted at the time that the plaintiff’s daughter is pregnant and the plaintiff explained that she lifted the apparently heavy articles because of her daughter’s condition.
89 Throughout the various surveillance films, the plaintiff moved in an unrestricted manner and without any sign of pain either in respect of the activities involving her arms, neck or back. I am uncertain of the weight of her grandchild in the video but would accept the child in the video of January 2009 would weigh 8 to 10 kilograms. Of significance is a period when the plaintiff turned and leaned into the car and spent a considerable period securing the child in a car seat, her back bent throughout.
90 Any consideration of surveillance film must take into account the fact that the surveillance film is only a snapshot in time. Further, I accept that persons with injuries as the plaintiff describes would have days where they were able to do more activities than others. I should also note that on one occasion the plaintiff lifted her grandchild while she and her daughter were in the middle of a street in order to avoid traffic. Any person in the plaintiff’s position, regardless of injury, would do the same. Nonetheless, I am of the view that the activities depicted in the surveillance film are inconsistent with the complaints of pain and restriction the plaintiff makes in her affidavit, and in the histories to the various doctors. She regularly describes the pain in her arms and back as constant and restricting her in a wide range of activities. She claims she cannot do heavier domestic duties, and is unable completely to undertake any form of employment. Yet in the video, she is able to lift considerable weights for significant periods of time, to bend into the vehicle and to play a significant and active role in shopping with her family. I am of the view that these activities are inconsistent with her complaints and accordingly I find that her credibility is affected.
91 Further, in the course of her evidence, I formed the view that the plaintiff was not being open and responsive in the course of cross-examination. At times I found the plaintiff to be evasive, even notwithstanding her language difficulty. I found that regularly she would not answer questions directly, and I am of the view that her response to questions in cross-examination further affects her credit.
92 I conclude from these matters that I ought to have significant reservations about accepting the nature and extent of the plaintiff’s claim as to pain, and restriction in activities that she states.
Conclusions as to Physical Injury
93 The plaintiff’s application in respect of sub-paragraph (a) of the definition of “serious injury” relates to bilateral carpal tunnel syndrome, that is, loss or impairment of the body function of the arms. Setting aside for present argument whether the plaintiff is entitled to aggregate the right and left arms, I find I am not satisfied the plaintiff achieves the “very considerable” level in relation to physical injury.
94 I am satisfied that the plaintiff underwent carpal tunnel release surgery arising out of her employment over the period from 1999 to 2001. I accept the opinion of Mr Douglas that the surgery was successful, in that the release decompressed the median nerve. I accept the plaintiff has ongoing mild symptoms in the wrist but excluding, as I am required to do by s.134AB(38)(h), the psychological consequences of injury, I am not satisfied that the physical consequences cause significant pain, nor consequent restriction. I accept the evidence of a range of doctors that the plaintiff has developed a psychological reaction in the nature of a chronic pain syndrome to a range of injuries, including the arms.
95 In fact, Mr Gorton, in final address, while not abandoning the application under sub-paragraph (a), did not pursue it with any vigour.
96 Having observed the surveillance film, I am confirmed in the view that the symptoms the plaintiff claims affecting her arms, back and neck are not as severe as she would have it. It appears to me she is able to undertake a wide range of activities discordant with her evidence and the histories to the doctors.
Conclusion in Relation to Psychological Injury
97 The real issue in this application is the nature and extent of the plaintiff’s psychological injury, and its effect upon her capacity, particularly for suitable employment.
98 At the outset Mr Gorton, correctly in my view, analysed the legal position in relation to psychological injury as follows:
• I should be satisfied that the plaintiff’s employment was a significant contributing factor to the plaintiff’s various physical injuries, including carpal tunnel, cervical and lumbar spines, shoulder and left leg; • I need then be satisfied that that physical injury significantly contributed to the development of the accepted psychological disorder; • That psychological disorder must “materially contribute”[60] to the various consequences claimed by the plaintiff to have been suffered; • Those consequences must achieve the “severe” level as prescribed by the legislation. [60] See Grech v Orica (supra)
99 I am satisfied that the employment over the period from 1999 to 2001 did give rise to a range of physical injuries. The plaintiff suffered carpal tunnel syndrome, and probable mild soft tissue injury to her cervical and lumbar spines. These physical injuries led to carpal tunnel surgery and some ongoing pain and restriction. This of itself led to the plaintiff becoming depressed and anxious and the eventual development of a pain disorder and adjustment disorder.
100 I am satisfied at the present time that the cause of the plaintiff’s psychological symptoms is multi-factorial. There is ongoing anxiety and concern in relation to the needle stick injury which occurred in 1999, although I would not see this as a particularly major contributor. I am satisfied, particularly upon the evidence of Dr Seward, that the grief and bereavement as a result of her husband’s death has been a significant contributor to the plaintiff’s depression and anxiety. I am satisfied, however, that the work-related injuries do “materially contribute” to the consequences claimed to arise.
101 The real question to be determined is whether those consequences, both in respect of pain and suffering and economic loss achieve the “severe” level.
Pain and Suffering Consequences of Psychological Injury
102 The word “severe” has been defined by the authorities as a word of stronger force than “serious”.
103 According to the evidence of Dr Seward, the plaintiff’s pain in the arm and various other areas of her body has been amplified by her psychological condition. That is, it is a psychological condition which is largely responsible for the pain she alleges rather than any organic injury. Further, Dr Seward states the plaintiff has a range of other psychological symptoms, including depression, sleep disturbance, poor energy levels, lethargy and effect upon memory and concentration.
104 Ignoring for the moment that there is very little, if any, reference in the plaintiff’s affidavit material to such psychological symptoms, there are, in my view, two bases upon which it must be said the impairment to the plaintiff does not reach the “severe” level. Firstly, the plaintiff has received no treatment for the psychological symptoms, little, if any, in the way of medication and, obviously, none of the more severe symptoms seen in other cases including suicidal ideation, hospitalisation and the like. It is argued on behalf of the plaintiff that she ought to have been treated by a psychologist and in fact was in need of such treatment. Further, it is said that she ought to have been prescribed anti-depressant medication. It is said these factors ought not tell against her in the final analysis. Although I have reservations about the opinion of the general practitioner, Dr Gorgioski, nonetheless he did not see fit to refer the plaintiff for specialist treatment and thought himself capable of appropriately treating her.
105 The second aspect which mitigates against a finding of “severe” is, having viewed the surveillance film, I am not satisfied that the plaintiff suffers the pain she claims, nor is restricted in the manner she states. The real level of her psychologically based pain, in my view, is not a chronic pain sufficient to significantly restrict her range of activities, but something considerably less.
106 In all the circumstances, I am not satisfied the plaintiff meets the “severe” level. In submission, Mr Gorton conceded that in terms of pain and suffering the barrier was difficult for the plaintiff to achieve.[61]
[61] T238
Loss of Earning Capacity Consequences of Psychological Injury
107 It is put by Mr Gorton that given particularly the evidence of Dr Seward and Dr Weissman, that the plaintiff has very limited, if any, earning capacity when I consider that capacity in the light of the definition of “suitable employment” contained in the Act.
108 It is put by Mr Elliott that given the opinions of Dr Stern of 2007, and Dr Turecek of 2002 and 2005, the plaintiff is not incapacitated for employment on psychiatric grounds. He says further that I should accept the opinions of many of the doctors who find the plaintiff has no loss of earning capacity on physical grounds. Particularly Mr King and Mr Barrett found little in the way of symptoms affecting the plaintiff.
109 In the vocational assessment report earlier referred to,[62] it was suggested the plaintiff had the capacity to undertake a range of areas of work. In a vocational assessment undertaken on 2 March 2006,[63] Ms Ann Joseph, rehabilitation consultant, considered that at the time of the report she did not think the plaintiff would be physically able to sustain employment. She considered that at some time in the future, the plaintiff may have the capacity to undertake work identified, including level crossing supervisor, leaflet and newspaper distributor, meter reader, parking inspector, car park attendant, ticket collector and employment improbably entitled “mystery shopper”.
[62] DCB 82g
[63] PCB 152-169
110 These vocational reports were not of any real assistance. I am of the view that the plaintiff’s work capacity is to be determined by medical opinion, and not by vocational assessment.
111 In determining the plaintiff’s work capacity, that capacity must relate to suitable employment. This requires me to take into account the nature of the plaintiff’s incapacity, her age, education, skills and work experience. In taking these matters into account, Dr Seward considered the plaintiff did not have any significant work capacity, although she may be able to undertake some jobs on a part-time basis. Notwithstanding that I found the evidence of Dr Seward impressive, I prefer the opinions of Doctors Turecek and Stern, both of whom concluded the plaintiff was not incapacitated for work on psychological grounds. It might be said that given Dr Seward’s opinion is more recent, and I had the opportunity of hearing her evidence both in examination-in-chief and in cross-examination, I ought prefer her opinion. Further, she was shown the video film relied upon by the defendants and stated that it made little, if any, difference to her opinion. While it is clear the video evidence showed little insight as to the plaintiff’s psychological state, in my view it did reveal a capacity for physical activities in an unrestricted manner inconsistent with the plaintiff’s evidence. That fact gave me cause to consider that the plaintiff has a capacity to undertake activities in an employment sense beyond her claimed disability.
112 The onus in proving loss of work capacity to the extent of 40 per cent lies with the plaintiff. I am not satisfied the plaintiff has met that onus. I find it difficult to determine precisely what the plaintiff’s work capacity is. Even accepting her age, lack of skills and difficulty with language, I do take the view that she has a significant work capacity well beyond that which she states, on psychological grounds. I am unable to point to any particular form of employment, as referred to in the various vocational reports, which the plaintiff has the capacity to undertake. I am of the view, however, that it is a significant capacity and that the plaintiff has made no attempt to exercise it.
113 In these circumstances, the plaintiff’s claim in respect of loss of earnings on psychological grounds fails.
114 Based upon the reasons above, the plaintiff’s application fails. I shall make consequent orders as to costs.
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