Bui v NCI Packaging Pty Ltd
[2010] VCC 1470
•8 October 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-05927
| THI HUE BUI | Plaintiff |
| v | |
| NCI PACKAGING PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 13 September 2010 |
| DATE OF JUDGMENT: | 8 October 2010 |
| CASE MAY BE CITED AS: | Bui v NCI Packaging Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 1470 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.134AB(16)(b) – serious injury application – identification of nature and extent of both organic injury in the form of Regional Pain Syndrome and psychiatric injury – reliability of evidence given by plaintiff in issue – application in respect of pain and suffering and loss of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison SC with | Clark, Toop & Taylor |
| Mr A Ingram | ||
| For the Defendant | Mr A Middleton | Thomsons Lawyers |
| HIS HONOUR: |
1 In this application, the plaintiff seeks leave to commence a proceeding claiming damages for injuries allegedly suffered by her in the course of her employment with the defendant.
2 The plaintiff now presents with symptoms which she describes as causing “unremitting pain on the left side of the body, left arm, left leg and the left side of the face”.[1] It is the plaintiff’s position that this condition is the result of an organic injury in the form of a Complex Regional Pain Syndrome developed by the plaintiff which stems from “soft-tissue injuries to the neck and cervical shoulder areas”[2] which were sustained in the course of her employment with the defendant. Alternatively, it is contended on behalf of the plaintiff that she is disabled by reason of the development by her of a severe psychiatric illness.
[1] See the report of Dr H Sutcliffe, the plaintiff’s treating occupational physician, at Plaintiff’s Court Book (“PCB”) 65
[2] Transcript (“T”) 5
3 In the course of the application, viva voce evidence was adduced from the plaintiff and from Dr H Sutcliffe, the plaintiff’s treating occupational physician. In addition, both the plaintiff and Dr Sutcliffe were cross-examined. Otherwise, the parties rely upon two affidavits sworn by the plaintiff and various medical reports and other material tendered by them.
4 The plaintiff has sworn two affidavits in support of this application: the first dated 16 June 2009; and the second dated 9 July 2010.
5 In her first affidavit, the plaintiff deposed as follows:
•
She was born on 28 July 1956 in Vietnam and migrated to Australia in 1983. On arriving in Australia, she undertook machinist-type duties until commencing employment with the defendant late in 1998. She said that in the course of her employment with the defendant, she was required to undertake repetitive movements involving both of her hands, and that in the course of carrying out those activities, she commenced to develop symptoms in her right hand and thumb which were such that they caused her to favour her left hand. The plaintiff said that this in turn led to:
“… the development of symptoms on the left side of my body and in particular the neck, left shoulder, arm and particularly the left thumb. I noted that as I remained at work the symptoms seemed to become worse and worse.”[3]
[3] PCB 13
•
With the onset of her symptoms, the plaintiff consulted Dr N C Nguyen, a general practitioner, who prescribed anti-inflammatory medication for her use. The plaintiff said that notwithstanding her symptoms, she continued to work for the defendant, but that by reason of a referral letter from Dr Nguyen, the duties she had previously undertaken which gave rise to her symptoms were altered and packing duties were substituted.
•
Dr A Asthana, a general practitioner, commenced managing the plaintiff’s condition in February 2008. In March 2003, Dr Asthana referred the plaintiff to a surgeon, Mr Clifford, who diagnosed the presence of a “trigger thumb injury”. On 27 May 2003, Mr Clifford surgically treated this condition and the plaintiff said that, whilst there was some improvement in her symptoms following the surgery undertaken by Dr Clifford, she continued to suffer from persisting pain in the bridge of her left thumb “and my other symptoms persisted also”.[4]
•
She returned to work on two occasions. On each occasion the plaintiff said that she was put on alternative duties which aggravated her symptoms.
•
In November 2003, the plaintiff was referred to a psychiatrist, Dr D Parekh, who she consulted on a monthly basis until 26 May 2005. She said that whilst she found these consultations “very beneficial”, she ceased consulting Dr Parekh, because of the distance which she was required to travel in order to see him.
•
In November 2003, the plaintiff was referred to Dr R McBeth who practiced at the Occupational Health Centre in Carlton. Dr McBeth subsequently referred the plaintiff to a rheumatologist, Dr A Stockman. The plaintiff said that Dr Stockman:
[4] PCB 14
“… diagnosed me as suffering from a chronic pain syndrome or fibromyalgia and recommended continuing conservative treatment of my condition. … .”[5]
[5] PCB 16
•
In early 2004, the plaintiff ceased consulting Dr McBeth and commenced consulting Dr Sutcliffe, an occupational physician, whose practice was located at the same clinic as Dr McBeth. Since that time Dr Sutcliffe has continued to manage the plaintiff’s condition.
•
In October 2003, the plaintiff commenced to experience symptoms of lower back pain and numbness in her left leg. These symptoms were investigated by both CT scans and MRI scans which failed to detect any abnormality.
•
Dr Sutcliffe had referred the plaintiff to a psychologist, Dr J Karamanos, who the plaintiff was consulting on a monthly basis at the time at which she swore her first affidavit. The plaintiff said that she found this treatment beneficial. She said that she had also been referred to a psychiatrist, Dr S Kwong, whom she began to consult in early 2009 and whom she continued to consult on a monthly basis.
•
She suffered from constant but variable levels of pain affecting her neck region, which extended into the back of her head and caused headaches. She described her neck pain as extending into her left shoulder and down through her left arm. She described symptoms of pain and numbness in the fingers of her left hand, and lower back pain which extended from her left buttock down into her left leg and foot. She described:
“… All of these problems have been present over a long period of time and I believe they are related to my work with the Defendant. …”[6]
• By reason of her injuries, the plaintiff had not worked since October 2003 and she did not believe that she was capable of returning to work. She said that she believed: “… that the pain particularly in my neck and referred symptoms would be sufficient to preclude me from engaging in any form of employment. I have no vocational skills in this country beyond my capacity to undertake manual work and my linguistic restrictions would preclude me from undertaking any sedentary form of employment. … .”
[6] PCB 18
• Her social, domestic and recreational activities had been significantly impacted upon, in that she had to limit her activity so as to cope with her symptoms. She said that despite using medication to help her sleep, her symptoms were such as to disrupt her sleep pattern, and that she required the assistance of her husband and her son to perform the many chores involved around her house, including vacuuming, mopping, washing of dishes, cleaning and hanging out the washing. 6 In her second affidavit, the plaintiff deposed to the fact:
• She continued to suffer from ongoing symptoms from her injuries and that: “… If anything, my neck pain has continued to gradually deteriorate with the passage of time. It is a constant pain although it varies in severity. …
I suffer from referred symptoms which are far more severe in my left shoulder and extending into my left arm and the fingers of my left hand. To a lesser extent, I suffer from referred symptoms into my right shoulder and upper arm but only rarely do these extend into my right hand. I have been concerned about problems which I suffered in my left leg and on a number of occasions my leg has given way under me. The symptoms in my left leg extend throughout the leg and down into my left foot. … .”[7]
[7] PCB 21-22
•
She continued to consult Dr Asthana, Dr Sutcliffe and Dr Kwong, and presently employed medication in the form of Lyrica (which she used as required) and Tramal, to manage her symptoms. She said that she also took an anti-depressant, Avanza.
•
She had not returned to work and that it was her belief that she would struggle to return to employment in the future. She said that her social, domestic and recreational activities continued to be significantly affected and that she found the best way to control her symptoms was to avoid any activity which placed undue strain on the parts of her body in which her symptoms were present. She said that her sleep was interfered with despite her use of Avanza, which was designed to assist her to sleep, and that she relied upon her husband and son –
“… to assist in many chores around the house, including vacuuming, mopping, cleaning up the house, including of dishes, and also hanging out washing.”[8]
[8] PCB 23
• She described the chronic nature of her symptoms as having caused her to feel anxiety and depression, but it was her physical pain which was the greatest concern to her. 7 In an affidavit sworn 12 August 2010, the plaintiff’s husband, Enmetram Tran, confirmed the content of the plaintiff’s affidavit sworn 16 June 2009. He said that the pain affected the ability of his wife to sleep and that around the house he and his son were required to do most of the household chores, because activity of that type aggravated the plaintiff’s symptoms. He said:
“… I do most of the shopping, cooking and cleaning, activities which my
wife previously would have undertaken herself.”[9]
[9] PCB 26
The Plaintiff’s Viva Voce Evidence
8 The plaintiff was cross-examined and was asked why, in completing her WorkCover Claim Form in February 2003, she referred only to the injury to her left thumb. She said that at the time the form was completed, her left hand was her most painful area but that she also had symptoms in her neck, shoulder and left arm.[10]
[10] T 13
9 It was put to the plaintiff that on the four occasions she consulted Dr Nguyen between early January and early February 2003, she complained to him of only left thumb pain, to which she responded:
“I also felt painful in my neck and all the areas of my left shoulder and hand. I thought at that time that it would be usual for a person who works so hard who had to lift so much of heavy objects and also because my left thumb was most painful so that’s why I complain about that to the doctor.”[11]
(sic).
[11] T 14
10 In challenging the evidence given by the plaintiff that her command of written and spoken English was poor, the plaintiff was taken to two letters which were authored by her on 25 February 2003 and 10 August 2009. She explained the reason for writing the letters by stating:
“I would like to explain something. Why I wrote those letters, because I
could not speak English clearly so I had to write.”[12]
[12] T 16
11 When it was put to the plaintiff that if she was able to write in English she should have been able to understand what had been written in her Claim Form, she responded:
“I understand but my understanding is very limited.”[13]
[13] T 17
12 The plaintiff said that following the surgery undertaken by Dr Clifford in May 2003, she had subsequently consulted Dr Clifford only on two other occasions.[14] She said that in November 2003, she had been referred to Dr Parekh because of the presence of severe insomnia and that Dr Parekh provided her with medication and instructions upon how to manage her pain.[15] She said that her consultations with Dr Parekh were managed with the assistance of her husband, who spoke good English.[16]
[14] T 19
[15] T 20
[16] T 21
13 The plaintiff said that she commenced seeing Dr Sutcliffe in April 2004, who referred her to the Pain Management Clinic at the Western Hospital. In providing this evidence, the plaintiff referred to a note which was subsequently tendered as Exhibit 2.
14 The plaintiff was asked whether her treating doctors had ever explained to her what was causing the pain which was present in the left side of her body, to which she responded:
“My doctors only told me just to keep on following their treatment and
take medication.”[17]
[17] T 24
15 The plaintiff said that she had undertaken hydrotherapy and exercise at home, and that whilst she found these activities to be helpful, they had not reduced her pain. She said that she had been referred by Dr Clifford to Dr McIntosh, a psychiatrist, who she had seen three or four times between 2005 and 2006 and that she had been subsequently referred to another psychiatrist, Dr Kwong.
16 The plaintiff said that at the present time her left leg was painful, weak and numb, that she suffered from low-back pain and from left arm and neck pain.[18]
[18] T 26
17 In terms of her day-to-day existence, she said she was able to shower without assistance and she could wash her hair but she did it very slowly. She said she did not make meals for the family and she could prepare very simple food for herself. She said that she went shopping with her husband but that he chose the items which they purchased and that she undertook very light housework. She said that from time to time she was visited by relatives and that she would visit relatives.
18 It was put to the plaintiff that she had been approached in July 2004 by a vocational consultant who had requested her to sign a release so that a rehabilitation provider could contact her doctors, and that she refused to do so. The plaintiff responded that she could not remember this approach.[19]
[19] T 29
19 When it was put to the plaintiff that she had been contacted by a rehabilitation consultant in 2004 who had suggested a position which involved “hat blocking” and that the plaintiff had failed to respond to that suggestion, the plaintiff replied:
“At that time I was very painful, my leg, I felt as if my leg gave up.”[20]
[20] T 30
20 When it was put to the plaintiff that her main problem at that time was her leg, she responded:
“The pain usually came from my neck downwards … The pain was in my
neck and then it went downwards and my leg was painful.”[21]
[21] T 31
21 The plaintiff was asked whether, at the present time, her left leg was causing her problems, to which she replied:
[22] T 31
[23] T 31
A: “Yes … I felt painful at my neck and the pain went down to my leg – left leg and then my left knee and the underneath of my left foot.[22] Q: Is it reasonable for me to suggest that you have regular pain in your back and left leg as well as pain, but regularly you have pain in your left leg?--- A: Usually, regularly, the pain is also in my neck.”[23]
22 The plaintiff agreed that in October 2003, she experienced a sudden low-back pain and left leg pain which caused her to collapse and that these symptoms had persisted ever since. The plaintiff agreed that this incident occurred whilst she was at home.
23 In re-examination, the plaintiff said that when her neck was very painful, she felt pain in her lower back, around her left buttock and down to the left thigh as far as her knee.
The Issues
24 It is not in issue that the plaintiff has suffered a compensable injury in respect of her left thumb, either late in 2002 or early in 2003. It is put on behalf of the defendant however:
•
that the plaintiff’s subsequent presentation with “left-sided Regional Pain Syndrome” involves simply a diagnosis of subjective symptoms and that it had not established that the plaintiff actually suffered from the level of pain or the level of disability of which she complained.
•
that the plaintiff’s presentation was not one of Reflex Sympathetic Dystrophy or Complex Regional Pain Syndrome in the classic sense and accordingly, that the plaintiff had not established that she suffered from either of those conditions.
•
that issues of credit arose not only by reason of what was suggested was an exaggeration by the plaintiff as to the difficulty which she had in reading and writing English, but also by reason of an inconsistency in her presentation to a number of medical practitioners who had examined her for the purpose of this proceeding.
•
that the plaintiff’s presentation of both physical and emotional disorders was such that disentangling was required and that once disentangled, neither disorder standing alone was sufficient to satisfy the serious injury test as required by the legislation.
Causation
25 It is accepted by the defendant that the injury suffered by the plaintiff to her left thumb was a work-related injury.
26 In her first affidavit, the plaintiff described a process by which the duties she was required to perform in the course of her employment commenced in her right hand and right thumb and that with the onset of those symptoms she began using her left hand more in order to protect her hand, with the result that she developed symptoms in her left thumb, the left side of her body and neck, and in her left shoulder.
27 The plaintiff’s evidence in this regard was not the subject of real challenge and whilst there is some disagreement between the medical practitioners who have assessed the nature and severity of the condition which is present in the plaintiff’s left arm and neck, the combination of this unchallenged evidence given by the plaintiff and the evidence contained in the reports of:
(i)
Dr A K Asthana - report dated 1 August 2003; Dr Robyn McBeth - report dated 19 February 2004; Mr Michael Khan - report dated 24 August 2010 and Mr Rodney Simm - report dated 23 August 2010; each of whom expressed strong statements of support for the causal relationship between the organic symptoms with which the plaintiff presented and the duties she was required to perform in the course of her employment with the defendant;
(ii)
Dr A K Asthana - report dated 1 August 2003; Mr Stephen Stern - report dated 25 September 2007; Dr Rowan McIntosh - report dated 20 April 2009; Dr Stella Kwong - report dated 27 July 2010; each of whom expressed strong statements of support for the causal relationship between the psychiatric symptoms with which the plaintiff presented and the duties she was required to perform in the course of her employment with the defendant;
satisfies me that the plaintiff has established causation in this matter to the
requisite degree.[24][24] Each of their reports contain strong statements of support for the causal relationship between the plaintiff’s current presentation and the duties she was required to perform in the course of her employment with the defendant.
Finding as to the Credit Issue Raised by the Defendant
28 I accept the submission on behalf of the defendant that a discrepancy arises between the evidence given by the plaintiff as to the extent of her difficulty with the English language and her capacity to express herself reasonably in written English, as demonstrated by the documents prepared by the plaintiff[25]. I also note in this regard Dr Kwong’s statement that the plaintiff “spoke quite good English”.[26]
[25] Exhibits 1 and 2
[26] PCB 104
29 Whilst it is put on behalf of the defendant that credit issues arise in this regard, I do not find this point as a telling one against the plaintiff. I do not find it surprising that the plaintiff would employ an interpreter to assist her in providing histories to medical practitioners or whilst giving evidence, when she is required in doing so to speak in her non-preferred language.
30 Further, whilst some medical practitioners have by inference called into question the consistency of the plaintiff’s presentation, repeated statements appear in many of the medical reports to the effect that the plaintiff presented in a genuine fashion, making no attempt to deliberately feign or exaggerate her symptoms.
31 In these circumstances, and given the unchallenged evidence by the plaintiff’s husband as to the severity of her incapacity, I do not accept that it is appropriate to make any adverse finding as to the plaintiff’s credit.
The Medical Evidence as to the Complaint by the Plaintiff of the Presence of
Physical Pain32 In his report dated 17 January 2010, Dr N C Nguyen states that the plaintiff presented to him on three occasions (19 January 2003; 28 January 2003; and 6 February 2003) complaining of the presence of left thumb pain which had been present for three months, was radiating upward to the outer side of the arm and hand, and was worsening with time.
33 In a report dated 20 February 2004, Dr A K Asthana reports:
• that the plaintiff presented to him on 12 February 2003 with a history of left thumb pain which had gradually worsened over a three-month period; that when he reviewed her on 18 February 2003, she also reported symptoms of pain in the cervical spine region and left shoulder and left elbow; and that he had obtained a history that the latter symptoms had had their onset approximately two months ago and were getting worse; • that he commenced the plaintiff on anti-inflammatory medication; referred her for physiotherapy; and on 26 March 2003, referred her to Mr Clifford, • that Mr Clifford operated upon the plaintiff on 29 May 2003, in the course of which the operative findings revealed “quite marked indentation of the long flexor tendon”. • that the plaintiff’s response to the surgery undertaken by Mr Clifford was not satisfactory and that she continued to complain of pain at the operation site and pain in the left forearm. He reported the plaintiff as being quite upset, as being very tearful and as having difficulty sleeping, with the result that he treated her by way of a prescription of anti- depressant in the form of Effexor. 34 On 1 August 2003, Dr Asthana certified the plaintiff as fit for light duties which required the plaintiff to work for two hours a day, three days a week using only her right hand. He reported the plaintiff as performing those duties for a few weeks but as having to give up her work as –
“… she could not work with one hand alone she had to use the other one [hand] with it. And this aggravated her pain in the left thumb and forearm.”[27]
[27] PCB 71
35 Dr Asthana continued:
“In October 2003 she started complaining of pain in the cervical spine, left shoulder and left elbow. She said this pain was mild initially and was gradually getting worse clinically she was tender in the cervical spine. left shoulder and left elbow her movements in these regions were slightly painful. The diagnosis of the soft tissue injury of the cervical spine with tendonitis around the left shoulder and the left elbow was made. She was put on physiotherapy for her cervical spine and left shoulder as well. … .”[28]
(sic)
[28] PCB 71
36 Dr Asthana opined that the plaintiff’s medical problems of:
(i) left trigger thumb; (ii) soft tissue strain to cervical spine, left shoulder and left elbow and forearm; (iii) depression; were all caused by her work, and commented: “… Her soft-tissue strain on the cervical spine, left shoulder and elbow are responding very slowly as well with physiotherapy and analgesic. The fact that she can not speak very good English, she can not explain her condition to her supervisor and the health workers who are trying to help her out is also causing quite a bit of frustration and depression for her. The chronic pain she is suffering from because of her injury is adding on to her depression. She is still under a physiotherapy and psychiatric condition. Her response to this treatment has been very slow. Prognosis is good she is ultimately going to settle down with her neck injury, shoulder injury, trigger finger injuries and depression. … .”[29]
(sic)
[29] PCB 72
37 The plaintiff came under the care of Dr Robyn McBeth on 17 November 2003. In a report dated 19 February 2004, Dr McBeth described the plaintiff as suffering from a chronic soft-tissue injury of her left upper limb, including the left shoulder girdle. She opined that the plaintiff’s employment was a significant contributing factor to this injury which arose by reason of the repetitive nature of her work. She expressed the opinion that the plaintiff was not fit to perform her pre-injury duties but that once her pain improved she would be fit to perform suitable duties which would not include her pre-injury duties.
38 Dr Helen Sutcliffe took over the management of the plaintiff’s condition from Dr McBeth on 26 April 2004. In a report dated 8 October 2004, Dr Sutcliffe opined that the plaintiff had been assessed as having developed neuropathic pain and a Complex Regional Pain Syndrome Type 1, which condition continued to progress. In addition, Dr Sutcliffe was of the opinion that the plaintiff had developed an Adjustment Disorder with Depression and Anxiety as a result of the persistent intense pain and the disability she had developed.
39 In a number of reports,[30] Dr Sutcliffe comments upon the nature of the plaintiff’s presentation and the extent of her disability in the following terms:
[30] See PCB 47 to 69
•
As at 8 February 2005, Dr Sutcliffe maintained her previous opinion as to the plaintiff’s presentation, namely, one of Chronic Regional Pain Syndrome Type 1, together with an Adjustment Disorder with Depression and Anxiety, and opined that the plaintiff had no capacity for employment.
•
As at 22 August 2005 and 31 January 2006, Dr Sutcliffe maintained the position previously expressed by her both as to the plaintiff’s presentation and her capacity for work.
•
In a report dated 8 August 2008, Dr Sutcliffe again repeated her opinion that the plaintiff presented with Complex Regional Pain Syndrome Type 1, together with an Adjustment Disorder with Depression and Anxiety. She opined that the symptoms associated with the latter condition:
“… have limited her functional capacity considerably and these symptoms contribute to her functional incapacity and unfitness for work in a significant manner.”[31]
[31] PCB 63
She further opined:
“She has no capacity for any employment a[t] this stage, and unfortunately I believe that her capacity for employment is limited into the foreseeable future, given the intensity of the symptoms, the level of invalidity, and the limitation her poor English places on her active treatment … .”[32]
[32] PCB 63
• In a report dated 30 August 2010, Dr Sutcliffe opined: “I believe that Mrs Bui continues with Complex Regional Pain Syndrome related to her employment and persisting with severe pain and sensory change (sic). In addition it appears that she has developed some muscular impact from the CRPS.
She has no capacity for employment currently and permanently as
the result of the persisting work related condition.She continues to be provided with medication of Lyrica which continues to modify the pain somewhat and also with analgesia and antidepressant medication.
The depression continues.
Mrs Bui has no capacity to undertake a pain management
program because of her limited English.
She will not return to the work force in any capacity.”[33]
[33] PCB 68
The Viva Voce Evidence of Dr Sutcliffe
40 Dr Sutcliffe gave evidence in the proceeding and was cross-examined.
41 In the course of her evidence-in-chief, Dr Sutcliffe said:
•
that the plaintiff’s history of unremitting pain on the left side of her body, extending from her neck and into her left leg, was part of a “neuropathic or Complex Regional Pain Syndrome” in which pain signals transmitted by nerves to the spinal cord travel up and down the cord causing further signals to be sent out to the trunk or limb which are felt in locations quite distant from the original injury. She described this phenomenon as being well recognised and said that she saw it daily.[34]
•
that the plaintiff’s presentation with allodynia was a significant finding, that this was a well-defined symptom of Chronic Regional Pain Syndrome and that the plaintiff presented with a physical condition which caused her to experience intense pain with no hope of remission.
[34] T 43
42 In the course of Dr Sutcliffe’s cross-examination:
• she stated that it was not until August 2005 that she had conducted a clinical examination of the plaintiff which confirmed her diagnosis of the presence of Chronic Pain Syndrome. She said that in arriving at this diagnosis, she relied upon the plaintiff’s presentation with severe pain; mechanical allodynia; and her complaint of numbness, together with electric-shock-type pain. • she agreed that in the course of the plaintiff’s treatment at the Western General Hospital Pain Management Clinic, the practitioners assessing and managing the plaintiff’s presentation did not arrive at a diagnosis, but that notwithstanding this fact, she was confident in the diagnosis she had arrived at, namely, one which involved an organic presentation of Reflex Sympathetic Dystrophy Type 1. 43 It is put on behalf of the plaintiff that Dr Sutcliffe is the only medical witness to possess the requisite qualifications to express an expert opinion as to the presence or otherwise of Complex Regional Pain Syndrome, having regard to her area of practice and her specific qualification in pain medicine. It is further put that Dr Sutcliffe’s long relationship with the plaintiff puts her in the best position to opine as to the cause and severity of the plaintiff’s presentation.
44 Whilst there is some substance in these submissions, I formed the opinion that Dr Sutcliffe had arrived at her diagnosis as to the cause of the plaintiff’s symptoms largely by accepting the plaintiff’s presentation at face value. The fact that Dr Sutcliffe had opined in her report dated 18 October 2004 that the plaintiff was presenting with Complex Regional Pain Syndrome Type 1, but that it was not until August 2005 that she had undertaken a clinical examination which, in her opinion, confirmed the presence of Complex Regional Pain Syndrome, in my opinion calls into question the objectivity of Dr Sutcliffe and the reliability of the opinion expressed by her as to the presence of that condition.
45 In a report dated 24 August 2010, Mr Michael Khan, an orthopaedic surgeon, expressed the opinion that the plaintiff presented with a flare-up of pre- existing degenerative changes at the C5-6 level of her cervical spine with referred pain or brachial neuralgia down her left arm. He continued:
“… In the presence of associated profound non organic symptoms, Mrs Bui remains totally disabled on account of the condition affecting her left thumb following initially trigger thumb associated with mild synovitis of the thumb and further associated with referred pain from her neck, upper arm, forearm to the thumb and hand. This could be diagnosed as being part of chronic pain syndrome.”[35]
[35] PCB 114
46 As to the influence purely of the plaintiff’s physical presentation, Mr Khan opined that the plaintiff was fit for light duties on a part-time basis which avoided excessive bending, twisting, turning of her cervical spine or repetitive use of her left arm, and avoided lifting any weight of more than two kilograms at a time.
47 In a report dated 21 November 2003, Mr T J Russell, a vascular surgeon, expressed the opinion that the plaintiff had made a good recovery from her trigger thumb release procedure and that her presentation with a complaint of left arm pain, left leg pain, cervical and back pain were:
“… not well explained on the basis of a continued physical injury or a
disease process.”[36]
[36] DCB 7
48 In a further report dated 7 July 2004, Mr Russell opined that the plaintiff presented with physically inexplicable pain but with no physical injury which could relate to her employment.
49 In a report dated 17 February 2004, Dr Gary Davison, a specialist occupational physician, expressed the opinion that the plaintiff presented with a Chronic Regional Pain Syndrome which appeared to be mediated by psychosocial factors. He commented that there was no suggestion that the plaintiff’s presentation was part of deliberate fabrication but that her employment did not materially contribute to her claimed level of incapacity.
50 In a further report dated 3 September 2004, Dr Davison commented that he could detect no clinical findings of the presence of Reflex Sympathetic Dystrophy and opined that the plaintiff’s presentation was functionally-based. He did not, however, suggest a presence of any deliberate fabrication in the plaintiff’s presentation.
51 On 5 May 2004, Dr Kevin Fraser, a rheumatologist, commented that the plaintiff presented with a marked overreaction on physical examination and that her presentation was due to non-organic factors of a psychosocial nature. He further opined that he was not convinced that the plaintiff continued to present with any work-related injury.
52 In a further report dated 17 March 2006, Dr Fraser expressed a similar opinion, commenting that whilst Dr Alex Stockman felt that the plaintiff’s presentation was consistent with Chronic Pain Syndrome, he was of the opinion that the plaintiff’s Pain Syndrome was due to psychosocial factors. He commented that the plaintiff’s prognosis was poor but that this poor prognosis related to non-organic factors which would present “an insurmountable impediment in respect of her rehabilitation for the foreseeable future”.[37]
[37] DCB 22
53 In a report dated 1 May 2006,[38] Dr Peter Stevenson, a consultant physician, opined that the plaintiff’s presentation with generalised but predominantly left- sided pain was associated with a pain amplification syndrome which Dr Stevenson opined had been conveniently labelled as fibromyalgia. He expressed the opinion that this condition involved no physical pathology and was not due to physical pathology or injury.
[38] DCB 23
54 In a further report dated 29 January 2010, Dr Stevenson opined that the plaintiff presented with a syndrome of pain without pathology, that whilst the term fibromyalgia might be employed to describe the plaintiff’s presentation, this syndrome referred to the presence of medically inexplicable pain which involved a psychosocial process and somatisation which he commented “is found prominent in patients of South-East Asian culture”. Finally, commented that the plaintiff presented with no true evidence of Complex Regional Pain Syndrome, which he opined required objective criteria which were not present in the plaintiff’s presentation.
55 I note that
(i)
in expressing his opinion as to the absence of Complex Regional Pain Syndrome, Dr Stevenson relies upon guidelines for the diagnosis of that condition which are set out in the ‘American Medical Association Guidelines to Permanent Impairment’ (5th ed.) - I find it surprising that Dr Stevenson would regard those artificial Guidelines as being an authoritative text;
(ii)
Dr Stevenson makes no attempt to support his statement that fibromyalgia was a condition which was found to be prominent in patients of South-East Asian culture. I consider this to be a statement which should not be made in the absence of providing appropriate justification given its obvious racial undertone;
and his approach in this regard, in my opinion, calls into question the reliability of the opinion expressed by Dr Stevenson generally as to the plaintiff’s presentation. For this reason, I do not find the opinion expressed by Dr Stevenson persuasive generally and I do not rely upon it.
56 In a report dated 19 February 2004,[39] Dr Alex Stockman, a rheumatologist, expressed the opinion that the plaintiff presented with symptoms consistent with a diagnosis of fibromyalgia/Chronic Pain Syndrome. In a further report dated May 2004, he opined that this condition rendered the plaintiff fit only for modified duties on a part-time basis in which she could work at her own pace and have breaks every half-an-hour for between five and ten minutes.
[39] DCB 85
57 In a report dated 25 February 2010, Mr Murray Stapleton, a hand surgeon, expressed the opinion that the plaintiff did not present with Chronic Regional Pain Syndrome Type 1, but rather that her presentation was consistent with the presence of an abnormal illness behaviour.
58 In a report dated 23 August 2010, Mr Rodney Simm, an orthopaedic surgeon, opined that the plaintiff did not present with the clinical features of an organic condition of the neck, left shoulder or left upper limb, but that her presentation was consistent with the diagnosis of a pain illness for which no identifiable underlying physical condition was responsible. He commented that the plaintiff’s severe chronic pain illness required assessment by the appropriate specialist and that it was his belief that her condition was entirely due to functional factors. He commented:
“I am not able to advise you whether there was conscious exaggeration
or whether there were psychological or psychosomatic factors.”
and concluded:
“There is no residual employment related physical injury but there is obviously a very severe chronic pain illness which was initiated by the physical injury to the left thumb.”[40]
[40] DCB 115
59 On 20 November 2007, Mr John O’Brien opined that the plaintiff presented with a substantial non-organic presentation and that this aspect of her condition was clearly paramount in its relationship to her ongoing symptoms. He expressed the opinion that the appropriate diagnosis for the plaintiff’s presentation was one of a Chronic Regional Pain Syndrome.[41] Mr O’Brien concluded that the plaintiff was significantly disabled by her extensive pain syndrome, that she was not capable of returning to her pre-injury occupation and that she was totally and permanently incapacitated, such that she would not return to gainful employment.[42]
[41] In expressing this opinion, I interpret Mr O’Brien to be using that term in a non-organic sense.
[42] DCB 117k
Finding as to the Nature and Severity of the Organic Injury suffered by the Plaintiff
60 When account is taken of:
• the reservation which I have expressed as to the opinion expressed by Dr Sutcliffe in support of the position that the plaintiff presents with an organic manifestation of Complex Regional Pain Syndrome Type 1; • the large body of medical opinion which takes issue with the fact as to whether the plaintiff presents with an organic manifestation of Complex Regional Pain Syndrome Type 1; I am not satisfied that the plaintiff has established that she does suffer from an organic manifestation of that condition.
61 For this reason, I find that the plaintiff is not entitled to the leave which she seeks under part (a) of the definition of “serious injury” appearing in s.134AB(37) of the Act.
The Evidence as to the Nature and Extent of the Plaintiff’s Psychiatric Injury
62 There is a general consensus of opinion between the medical practitioners who have assessed the plaintiff’s mental state that she is currently presenting with a psychiatric illness of considerable moment.
63 The plaintiff came under the care of a psychiatrist, Dr Dinesh Parekh, on 20 November 2003. Dr Parekh treated the plaintiff between that date and 26 May 2005. In a report dated 1 April 2009, Dr Parekh expressed the opinion that during the period in which he treated the plaintiff, she presented with a reactive depressive condition which was secondary to her physical injury and he opined that the plaintiff’s depression would continue for as long as she did not recover from her physical problem.[43]
[43] PCB 30
64 In a report dated 20 April 2009, Dr Rowan McIntosh comments upon the plaintiff’s presentation to him in February 2005 and his management of the plaintiff’s psychiatric condition between that date and February 2006. He opined that diagnostically the plaintiff presented with a “spectrum of affective (mood) and chronic pain syndromes consistent with a diagnosis of an atypical pain disorder with a superimposed depressed (adjustment) component”. He opined further:
“This lady presents with a plausible history, which suggests the presence of a soft-tissue injury in the cervical spine, most likely related to repetitive manual work being at the core of her problems. Thereafter, it sounds to me as if her mood deteriorated and her depressive symptoms became more classical/pervasive. The nature of her subjective pain then started to alter, and thereafter increased. Thereafter, as so often occurs, Mrs Thi Hue Bui’s superimposed depressive illness started to alter the nature and intensity of her pain/other emotional symptoms, with a prominent degree of anxiety-agitation accentuated by various hypochondriacal fears dominating the landscape thereafter.”[44]
[44] PCB 32
65 He concluded:
“In keeping with Mrs Thi Hue Bui having an Adjustment Disorder with an atypical Pain Syndrome, I note a subtle decrease in symptoms – agitation over the eight to twelve months that I had contact with her. However I would have thought that given the background compensation problems that any further progression is likely to be slow although I am anticipating that the intensity of her various neurological and adjustment (mood symptoms) would most likely abate slowly with time.”[45]
[45] PCB 33
66 Dr John Karamanos, a psychologist, commenced treating the plaintiff in February 2007 and has continued to treat her since that date. In a report dated 16 August 2009, Dr Karamanos expressed the opinion:
• that the plaintiff presented with an Adjustment Disorder which was such that it psychologically incapacitated her for all work; • that this incapacity would persist for the foreseeable future. 67 In expressing this opinion, Mr Karamanos commented:
“My opinion is based upon Mrs Bui’s diminished concentration, her psychomotor slowing that I have observed regularly in our sessions, her persistence depressive and anxiety symptoms, her dependence on narcotic medication to control her symptoms and her confusional state being most likely the result of taking narcotic analgesic medication.”[46]
[46] PCB 81
68 In a further report dated 28 August 2010, Dr Karamanos noted that the plaintiff was consulting him once every month and he maintained the opinion expressed in his previous report.
69 Whilst it is submitted on behalf of the defendant that Dr Karamanos was not competent to express an opinion as to whether the plaintiff’s presentation satisfied the relevant DSM-IV diagnostic criteria with respect to either Dysthymic Disorder or Adjustment Disorder, in my opinion, Dr Karamanos is well placed, having regard to his regular interaction with the plaintiff since February 2007, to express an opinion as to the severity of the plaintiff’s psychological incapacity and prognosis.
70 Dr Stella Kwong, a psychiatrist, has been treating the plaintiff since March 2009 and has had the opportunity of reviewing her on no fewer than fourteen occasions during that time. In her report dated 27 July 2010, Dr Kwong opined that the onset of tendonitis in the plaintiff’s left thumb in February 2003, which necessitated an operation on 29 May 2003, precipitated the onset of chronic pain and depression. She described the plaintiff as remaining quite pain focussed and opined that psychologically the plaintiff did not have any current capacity for pre-injury work, that she did not possess a current capacity for work generally and that she was unlikely to undertake work in the future.[47]
[47] In this respect, I note the consistency of a diagnosis between the plaintiff’s two treating medical practitioners, Dr Karamanos and Dr Kwong.
71 Dr Alan Jager, a psychiatrist, examined the plaintiff at the referral of Allianz Australia Workers’ Compensation (Victoria) Limited on 27 August 2004 and 17 March 2008.
72 In his first report, Dr Jager opined:
• that the plaintiff presented with a Major Depressive Disorder consisting of Depressed Mood with some suicidal ideation, anxiety, loss of enjoyment, insomnia in the past with loss of energy, appetite, concentration and libido; and that this disorder was secondary to the surgery which the plaintiff had undergone to her left thumb. • that from a psychiatric perspective, the plaintiff was fit for part-time suitable employment, commenting: “I refer you to others for a determination on what constitutes suitable employment for her but consider the (sic) she is fit for half-time work.”
73 I accept Dr Jager’s opinion as to the nature and severity of the psychiatric condition with which the plaintiff presents, having regard to the consistency of that opinion with those expressed by Dr Kwong and Dr Karamanos. I do not however find his opinion as to the plaintiff’s capacity for work to be persuasive, as this opinion appears inconsistent with the opinion expressed by him as to the nature and severity of the plaintiff’s psychiatric condition.
74 Dr Jager re-examined the plaintiff on 17 March 2008 and opined that the plaintiff presented with a Major Depressive Disorder characterised by Depressed and Anxious Mood and reduced enjoyment, sleep, energy, appetite, libido and concentration. He commented:
“If her widespread symptoms have not adequately explained (sic) by organic causes, she may also have a Chronic Pain Disorder associated with psychological factors and a general medical condition.”
75 Whilst Dr Jager expressed the opinion that the plaintiff’s Major Depressive Disorder was related to her initial work injury “if there is still an active musculoskeletal problem”, his opinion in this regard appears inconsistent with that expressed in his earlier report in which he:
• described the presence of a Pain Disorder in the absence of an identified organic cause: • opined that the plaintiff’s Major Depressive Disorder had stemmed from the initial injury suffered by her to her left thumb and the surgery associated with that injury. 76 In the circumstances, I do not accept the opinion expressed by Mr Jager in the course of his 2008 report which questioned the issue of causation in the absence of a continuing musculoskeletal problem.
77 In a report dated 25 September 2007, Mr Stephen Stern, a psychiatrist, expressed the opinion that the plaintiff presented with a Chronic Pain Disorder and a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood, and opined that her psychiatric state was related to the injury suffered by her in the course of her employment between October 2002 and February 2003. Whilst Mr Stern opined that the plaintiff required long-term anti-depressant medication, he opined that from a psychiatric aspect alone she was fit for work.
78 In a report dated 19 July 2010, Dr Robert Kaplan, a consulting psychiatrist, who examined the plaintiff on 13 July 2010, diagnosed her as suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood. Other than in the expression of this diagnosis, I do not find Dr Kaplan’s report of assistance in assessing the independent impact of the plaintiff’s psychiatric injury upon her capacity to work or to otherwise function, having regard to the way he has structured the expression of his opinion,[48] and my finding that the plaintiff is presenting with primarily an emotional disorder.
[48] See in particular the final three paragraphs of Mr Kaplan’s report at PCB 96-97.
79 In a report dated 22 March 2006, Professor George Mendelson, a psychiatrist, opined that the plaintiff presented with no indication of the presence of any mental illness or any diagnosable mental disorder. Given that Professor Mendelson is the only psychiatrist to express such an opinion, I do not find his report to be persuasive when it is considered in the context of the psychiatric opinions to which I have previously referred, each of which identify the presence of a significant psychiatric illness.
Finding as to the Severity and Consequences of the Plaintiff’s Psychiatric Injury
80 In contrast to the controversy which exists in the various opinions which analyse the nature and extent of the plaintiff’s organic symptoms, there is a general consensus between each of the psychiatrists who have examined the plaintiff that she presented with a genuine psychiatric condition of considerable significance which was secondary to the injury sustained to her left thumb in the course of her employment with the defendant and the subsequent operative treatment she underwent with respect to that injury.
81 Whilst there is a difference of opinion between the various psychiatrists who have examined the plaintiff as to the effect which her psychiatric illness has upon her capacity to work, each of the psychiatrists, with the exception of Mr Stern, expressed the opinion that at the time at which they examined her, the plaintiff had either no capacity for work or a limited capacity for work.
82 In these circumstances, I am satisfied that the plaintiff has established:
(i) the relationship between her present psychiatric state and her work- related injury; (ii) that the severity of her psychiatric state has impacted upon her capacity to work. 83 When account is taken of the long relationship which:
• Mr Karamanos has had with the plaintiff as her treating psychologist; • Dr Kwong has had with the plaintiff as her treating psychiatrist; I am satisfied that both Mr Karamanos and Dr Kwong are in the best position to express an opinion as to the severity of the plaintiff’s work-related psychiatric condition and the effect of that condition upon her capacity to work.
84 Insofar as there is a general agreement between both Mr Karamanos and Dr Kwong that the plaintiff has no capacity to work and that this incapacity is likely to persist for the foreseeable future, I am satisfied that the plaintiff has established that she suffers from a psychiatric illness which is appropriately described as having consequences with respect to her earning capacity which are “severe” in accordance with the provisions of the Act.
85 Given that I am satisfied that the effect of the plaintiff’s psychiatric injury has been to render her effectively unemployable for the foreseeable future, I am satisfied that the plaintiff is entitled to the leave which she seeks, namely, to commence a proceeding claiming damages for both the pain and suffering and economic loss consequences of the psychiatric injury sustained by her in the course of her employment with the defendant.[49]
[49] Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 (28 July 2009)
86 I will hear the parties as to the precise from the orders sought and upon the issue of costs.
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