Carlson v Murray Goulburn Cooperative Limited
[2012] VCC 1399
•28 September 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT WANGARATTA
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-00628
| NICHOLAS CARLSON | Plaintiff |
| v. | |
| MURRAY GOULBURN COOPERATIVE LIMITED | Defendant |
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JUDGE: | HIS HONOUR JUDGE ANDERSON | |
WHERE HELD: | Wangaratta | |
DATE OF HEARING: | 6, 7 & 10 September 2012 | |
DATE OF JUDGMENT: | 28 September 2012 | |
CASE MAY BE CITED AS: | Carlson v Murray Goulburn Cooperative Limited | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1399 | |
REASONS FOR JUDGMENT
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Catchwords: Serious injury – Tip of left little finger amputated after workplace accident – Amputation stump sensitive and painful – Future treatment options included further surgery and other invasive procedures – “Stoic” plaintiff – Whether consequences of injury satisfied the statutory test – s. 134AB Accident Compensation Act 1986.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T. Monti with Mr G. Pierorazio | Nevin Lenne and Gross |
| For the Defendant | Mr W. R. Middleton SC with Ms R. Kaye | Wisewould Mahony Lawyers |
HIS HONOUR:
1 Nicholas Carlson injured his left little finger in a workplace accident on 19 September 2009. Mr Carlson’s finger was crushed when a 25kg transmitter fell directly onto the finger as he was attempting to remove the transmitter from the bottom of a storage silo in order to unblock the silo. Although Mr Carlson sought urgent medical advice from the hospitals at Cobram and Shepparton, no immediate treatment was undertaken. The finger became infected and on 16 November 2009 an orthopaedic surgeon, Mr David Chew amputated the finger just below the first joint.
2 Following the operation Mr Carlson returned to modified duties. He has continued in his employment with the defendant. His complaint is that he experiences “constant aching in the left little finger especially from above the knuckle to the tip… the end of my finger is super tender… the finger tends to protrude and I have to take care that it doesn’t catch. When it does catch the pain is really bad but sometimes I just cannot avoid it. The pain can be excruciating when I knock the finger”.
3 The diagnosis of Mr Carlson’s condition is unclear. One view is that he suffers from a complex regional pain syndrome. Another medical opinion is that his problems are due to “amputation neuromata” and that they “will not be solved without surgical intervention”. Mr Carlson seeks leave pursuant to s134AB of the Accident Compensation Act 1986 for leave to issue a proceeding limited to pain and suffering damages on the basis that he suffers from a permanent serious impairment of the body function of his left little finger. The issue for determination in the application is whether “when judged by comparison with other cases in the range of possible impairments… of a body function, [the impairment to the left little finger is] fairly described as being more than significant or marked and as being at least very considerable”.
Plaintiff’s medical treatment, diagnosis and prognosis
4 An x-ray of the finger on 20 September 2009 showed “a comminuted minimally displaced fracture”. Further x-rays on 7 November 2009 confirmed that the fracture “has not united as yet”. Mr Carlson’s general practitioner Dr Juliet Hillman referred him to Mr Chew who first saw him on 11 November 2009. Mr Chew thought that Mr Carlson had “osteomyelitis and a fracture of his distal phalanx”. He recommended an immediate amputation because of “an abscess affecting the distal phalanx” and “the worry about infection”. The procedure was performed on 16 November 2009.
5 After the operation, Mr Chew saw Mr Carlson regularly. On 9 December 2009, he recorded Mr Carlson’s “sensitivity at the tip of his finger”. Mr Chew referred him for “mobilisation and de-sensitising” the tip of the finger with a hand therapist.
6 In January 2010, Mr Chew considered that Mr Carlson “can go back to his normal duties although he will have to be careful that he doesn’t bump the tip of his little finger”.
7 On 7 April 2010, Mr Carlson’s finger was “still very sensitive on the pulp… tapping the tip of his finger makes him jump”. Apparently, at the consultation at this time Mr Carlson asked Mr Chew about amputation of the finger. Mr Chew said he “cautioned him against the idea of amputation of the finger because of sensitivity because there could be a chance of developing phantom pains”.
8 In a report to the workers’ compensation insurer in December 2010, Mr Chew noted that Mr Carlson had “very severe pain, tenderness and sensitivity in the tip of that finger and there may have been a contribution of reflex sympathetic dystrophy to cause some of these symptoms”.
9 Upon review on 3 May 2011, Mr Carlson’s finger was “still intensely sensitive and uncomfortable [and] that when he taps it or hits it, it hurts enough to bring tears to his eyes”. Mr Chew also recorded a complaint of pins and needles extending “to the rest of his hand”. Mr Chew could not explain why Mr Carlson still had “such extreme sensitivity”. He suggested review by a neurologist to investigate the possibility of chronic regional pain syndrome, and a chronic pain management program for Mr Carlson.
10 In May 2011, Mr Chew referred Mr Carlson to a neurologist, Dr Nicholas Crump, and to a plastic surgeon, Mr David McCombe. Dr Crump considered that there was “some injury to the digital nerves” of Mr Carlson’s finger, “suggesting a limited form of reflex sympathetic dystrophy or chronic regional pain syndrome”. Mr McCombe thought Mr Carlson had “a significant problem” which reflected a “central hypersensitivity rather than a focal neuroma and that a surgical option [digital nerve surgery] is not the best choice”. Mr Chew again did not favour “further amputation” and thought the “only option would be a chronic pain management specialist”.
11 Mr Chew also discussed possible medications but noted that as Mr Carlson “has to work on night shift on some heavy machinery… sedating medications are not the best choice”. Mr Chew has not seen Mr Carlson again. He considered that “the prognosis with respect to sensitivity and pain in the left hand will be poor”.
12 Dr Crump described Mr Carlson’s symptoms as “marked sensitivity of the tip of the little finger to even the lightest touch which would set up severe paroxysms of pain with elements of both sharp, stabbing and shooting sensations along with persistent throbbing… initially these painful sensations were only set off by touching his finger but over recent times have become slightly more generalised, in particular he gets marked sensitivity now with pressure on the ulna nerve at the elbow”. Dr Crump noted that Mr Carlson’s left hand had “become much less effective due to the marked sensitivity to touch in his little finger and the fact that he cannot wear a guard on his hand at work and the pain stops him from holding a grip”.
13 In July 2012, Mr Carlson’s solicitors sought a medico-legal report from a hand surgeon, Mr Greg McCarten. Mr McCarten referred Mr Carlson for treatment to Dr Peter Blombery, a consultant physician (vascular disease). Dr Blombery considered that Mr Carlson had “some features of Complex Regional Pain Syndrome Type I as well as neuropathic pain affecting the little finger”. He suggested that a “stellate ganglion blockade” or “a trial of Amantadine [to] block MNDA receptors” may assist, otherwise he considered that “further amputation” would be “the most appropriate way to go”.
14 Dr Blombery, in a report to Mr Carlson’s solicitors on 30 July 2012, considered that a stellate ganglion block involving the blocking in the neck of the “sympathetic nerve supply to the finger… over the course of three days in hospital” had a “fifty per cent likelihood of success”. Dr Blombery discussed possible “medications used for treatment in neuropathic pain”, though he noted that some “such as Lyrica can cause drowsiness which may not be compatible with his work”. As regards to further amputation, Dr Blombery noted that “this could exacerbate his experience of pain and be counterproductive”.
15 Dr Blombery also suggested as possible treatments, “intravenous Lignocaine, Ketamine infusion in order to break the pain cycle or possible implantation of a spinal cord stimulator”. Dr Blombery noted that Mr Carlson “needs overall multidisciplinary therapy for chronic pain including the use of analgesia, anti-depressant, anticonvulsant and anti-inflammatory drugs, psychotherapy, behavioural therapy and occupational therapy as well as other techniques such as TENS and acupuncture”. Dr Blombery continued, “He has already had most of those forms of treatment when he was attending pain management and these have had little impact on his overall experience of pain”. Dr Blombery said that Mr Carlson’s “prognosis for recovery is poor”.
16 Other medico-legal views are as follows:
a.Mr Murray Stapleton, a hand surgeon, saw the plaintiff at the request of the workers’ compensation insurer on 22 March 2011. He considered that surgical intervention was required to “trim back the stump neuromata”;
b.Mr John Anstee, a plastic and reconstructive surgeon, saw Mr Carlson at the request of his solicitors on 19 August 2011. He considered that the “amputation stump” was “not an acceptable solution” and he suggested the plaintiff should consider “desensitisation” which “should probably be supervised by a hand therapist”;
c.Mr Donald Marshall, a plastic surgeon, saw the plaintiff at the request of the defendant’s solicitors in January 2012. He noted that, “The amputation stump is tender to pressure and pressure over the distal end of the digital nerves causes intense pain radiating up the little finger and into the palm”. He thought that Mr Carlson had “much reduced manual dexterity as a result and also a reduction in the strength of his grip”. Mr Marshall described the sensation of Mr Carlson’s amputation stump as “extremely painful particularly in cold weather and this has a significant impact on his ability to use his left hand normally in both fine manipulative work and in lifting heavy weights in a repetitive manner”. Mr Marshall described Mr Carlson’s presenting condition as “a less than ideal amputation stump of the distal portion of the left little finger with scar formation involving terminal neuromas of the digital nerves of the little finger”. Mr Marshall suggested that “a revision of the amputation stump with freeing of the scarred nerves would be an appropriate procedure with a likely satisfactory outcome”.
Mr Carlson’s credibility
17 Mr Carlson impressed me as a straightforward witness. If anything, he seemed to underplay his injury. The medical examiners who commented on Mr Carlson’s presentation stated:
a. Mr Stapleton said that he believed Mr Carlson’s “presentation is consistent”;
b. Mr Marshall said that “Mr Carlson is clearly distressed by his inability to work normally… There does not appear to be any significant functional component on examination today”;
c. Mr Anstee said that he found Mr Carlson “an apparently cooperative man who does not seem to be exaggerating his problems”.
Effect of the injury on the activities of daily living
18 Mr Carlson returned to his old position as an operator with the defendant soon after he returned to work in early 2010. He said, “I was fearful of remaining on light duties for an indefinite period as I believed this would jeopardise my future employment with the defendant. I am keen to work and need the money as I have a young family and a mortgage to pay off”.
19 Mr Carlson said that he finds many of his work tasks difficult to perform including lifting 15 litre drums of chemicals as he has “a reduced ability to grip the drums; using both hands on a spanner to change pipe work; loading and unloading heavy hoses from trucks, particularly working outside in the cold; lifting 25kg bags of citric acid using two hands”. Because he works with machinery, Mr Carlson is “not permitted to take painkillers to help me get through the day. I simply have to grin and bear it”. Because of the nature of his work involving processing lactose and whey by-products, Mr Carlson is unable to wear protective gloves.
20 Mr Carlson was 30 years old when he was injured. He is now 33. He has young children. Before he was injured Mr Carlson’s health was very good and he was “a very fit and active person”. Mr Carlson’s injury has affected his domestic, social and recreational activities:
a. Mr Carlson’s main recreational pursuit since about the age of 10 had been clay bird shooting. He participated in competitions about once a month and travelled north eastern Victoria and interstate to shoot. He continues to shoot although the recoil of the shotgun caused pain in his finger. Mr Carlson purchased a new gun in about September 2011 which he now uses and which has lessened the pain;
b. Mr Carlson had been a “passionate” fisherman. He used to fish from a boat in the Murray River “as often as possible” – about two to three times a week. He also enjoyed camping along the river with family and friends three or four times a year. Mr Carlson has not fished since his injury. He has difficulty holding a rod. He has problems “lugging” around the camping equipment and has only been camping twice in recent years;
c. Mr Carlson played social golf with family members and friends “every couple of months or so” before his injury. He played backyard cricket and “loved kicking a footy around”. He now rarely engages in these sports because of the risk of knocking his finger;
d. Mr Carlson lives on a one and a quarter acre property with a lot of lawn. He still uses a ride-on mower but when he uses a whipper snipper the pain increases and he must have regular breaks. His wife and father-in-law have assumed most of the gardening responsibilities;
e. domestic chores can be difficult if there is a risk of knocking his finger. Affected activities include “even small things such as picking up a kettle to make a cup of coffee or washing the dishes”. Mr Carlson shares the household tasks with his wife although he does not do vacuuming. Mr Carlson is able to perform his self-care tasks;
f. Mr Carlson must be careful not to bump his finger when “interacting and playing” with his young children including changing nappies. This limits his ability “to fully participate in their activities”;
g. driving the car and changing gears is difficult;
h. the pain affects Mr Carlson’s ability to get a good night’s sleep, particularly if he rolls onto his left hand during the night.
21 Mr Carlson says that, “There are some days I simply wish the finger was completely off. The injured finger really is useless to me and is more of a hindrance than a help and I feel I would be much better having it off. The nerves in the finger whilst crushed are still alive and have feeling and this is what causes me to feel pain. The doctors will not deaden the nerves as this would be dangerous, for example, I would not be able to sense heat…In winter my little finger absolutely kills with pain. When my finger gets cold it throbs”.
22 Mr Carlson said he feels “as though I am at an endpoint in terms of further treatment. I’m only 33 years of age. I have young children. I need to work. I’m going to be reminded of this injury day in and day out for the rest of my life. There is nothing I can do about it. If it was up to me I would have the whole finger taken off. That is how frustrating it is”.
23 Mr Carlson has had only infrequent attendances upon his general practitioner since his injury. Mr Carlson participated in a pain management program with a hand therapist upon referral from Mr Chew. Mr Carlson was later referred to Dr Blombery for what Dr Hillman described as “pain management”. Mr Carlson only uses non-prescription medication Nurofen, Advil and Panadeine. Mr Crump, the neurologist, had suggested an epilepsy medication, the cost of which would have been covered by WorkCover for the first six months. The continuing cost was $180 per month. The medication was “hormonal” therapy with serious side effects.
Conclusions
24 Mr Carlson is still a young man. It is probable, as defendant’s counsel, Ms Kaye, submitted, that some of his previous sporting and recreational activities would have been supplanted by his increasing parental responsibilities. Other activities, like clay shooting, Mr Carlson is still able to pursue. Ms Kaye suggested that Mr Carlson’s activities of daily living had not been “significantly impacted” and he was living a “not too dissimilar life” as to that he previously had. Mr Carlson’s attendances on his general practitioner were limited and his medication was purchased over-the-counter.
25 Ms Kaye referred to a number of “hand” and “amputated” finger cases decided by judges of this Court. In many of those cases, the applications were unsuccessful. I consider, however, that Mr Carlson’s impairment justifies a finding of serious injury as the consequences to him of his injury might fairly be described as “very considerable”.
26 The treating and examining doctors do not agree on a diagnosis of Mr Carlson’s condition and many further treatment options have been canvassed. In my view, this compounds Mr Carlson’s problem as all of the doctors recognise that the result of two operations has been to leave Mr Carlson with an unduly sensitive and extremely painful finger:
a. Dr Hillman recently described Mr Carlson as having “chronic pain, marked sensitivity” and she said “it seems possible that the pain and sensitivity will continue indefinitely“;
b. Dr Chew referred, in his recent report, to “intense sensitivity” and “loss of power grip” and considered that “the prognosis with respect to sensitivity and pain in the left hand will be poor”;
c. Dr Crump accepted that Mr Carlson experienced “marked sensitivity of the top of the little finger to even the lightest touch, which would set up severe paroxysms of pain, with elements of both sharp, stabbing and shooting sensations along with persistent throbbing”;
d. Mr McCarten referred to “significant pain” and “significant loss of grip strength in his left hand” with a prognosis which “is, at best, only fair”;
e. Mr Stapleton reported that Mr Carlson described his finger as “constantly painful and the amputation stump is exquisitely tender”;
f. Mr Marshall noted that “pressure over the distal end of the digital nerves causes intense pain radiating up the little finger into the palm”. He said “the sensation of the amputation stump is extremely painful [and] has a significant impact on his ability to use his left hand normally”;
g. Mr Anstee described the amputation stump as “particularly painful at present” and Mr Carlson’s prognosis as “poor”.
27 Notwithstanding these views, the treatment prospects, although many and varied, do not hold out much hope for any amelioration of Mr Carlson’s position:
a. Dr Hillman said, “I don’t know what further treatment is to take place”. She referred to the suggestions made by Mr Chew and Dr Blombery;
b. Mr Chew said recently, “I don’t think any orthopaedic treatment [i.e. further surgery or amputation] is going to improve Nicholas. I suspect that the best treatment here will be a chronic pain management program”;
c. Dr Crump said in May 2011 that Mr Carlson “could be amenable to some local treatment, such as more extensive amputation or a procedure to the digital nerves” although he conceded the result may “only be partial and could potentially even be worsened”. Dr Crump referred to the possible “use of medication such as Amitriptyline or some of the anticonvulsants in particular Pregabalin and Gabapentin”, although he noted that “these medications are symptom-controlling rather than fixing the underlying problem”;
d. Mr McCarten thought that, if a trial of Amantadine or a stellate ganglion blockade (both suggested by Dr Blombery) should “fail”, Mr Carlson may need “more proximal amputation”;
e. Dr Blombery first suggested a trial of Amantadine, a stellate ganglion blockade or “further amputation”. In a later report, Dr Blombery raised the possibility of:
i. treatment with medication including Lyrica;
ii. “a ray amputation” involving trimming “back to the metatarsal bone or beyond, hopefully with the aim of excising all the affected area”;
iii. “overall multidisciplinary therapy for chronic pain including the use of analgesia, antidepressant, anticonvulsant and anti-inflammatory drugs, physiotherapy, behavioural therapy and occupational therapy as well as other techniques such as TENS and acupuncture”;
iv. intravenous Lignocaine Ketamine infusion;
v. implantation of a spinal cord stimulator;
f. Mr Stapleton was “certain” that Mr Carlson’s condition “will not be solved without surgical intervention”;
g. Mr Marshall considered that “a revision of the amputation stump with freeing of the scarred nerves would be an appropriate procedure”;
h. Mr Anstee said that “desensitisation” of the amputation stump “supervised by a hand therapist” should be considered.
28 In the circumstances, Mr Carlson faces a very difficult decision. He has been presented with a range of treatment options. Most involve surgery or other invasive procedures. Further treatment may possibly improve his symptoms and the functioning of his hand.
29 Mr Carlson is a manual worker. He has young children and tries to perform the activities of daily living which inevitably involve the frequent use of both hands. Not surprisingly, he looks to a future life where his little finger will constantly be an extremely painful reminder of his injury. As Dr Crump said “These days he just grins and bears it when the pain flares up”.
30 Mr Carlson is the epitome of what the courts have recognised as a “stoic” plaintiff. As Buchanan JA said in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at [47] and [48]: “Notwithstanding that the respondent is able to work in a position that requires to some extent movement and dexterity and maintains the pastimes he enjoyed before he was injured, I consider that the evidence as a whole establishes that the respondent suffers pain which is properly described as very considerable. The respondent’s stoicism cannot hide the fact that pain is a major component in the respondent’s life. Pain is not objectively measurable. Experience of and reaction to pain varies from one person to another. Accordingly I share Nettle JA’s doubt as to the utility of comparing the evidence in the case at hand with the evidence in other cases or with a list of commonly encountered indicia of pain”.
31 In Dwyer v Calco Timbers Pty Ltd (No.2) [2008] VSCA 260, Nettle JA at [3] said: “I suspect that, but for the way in which the appellant has been prepared to put up with his pain and suffering and get on with his business as best he can, the respondent may well not have disputed his claim. It is unnecessary for present purposes to reach a concluded view about that and I have not done so. But it would be unfortunate, and in my view wrong headed, if in future such an applicant were treated less favourably than another who, being of less strength of character, simply resigned himself to his injury”.
Orders
32 Accordingly, Mr Carlson will have leave to bring a proceeding for pain and suffering damages in respect of his left hand impairment arising from the workplace accident on 19 September 2009.
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Certificate
I certify that the preceding 10 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 28 September 2012.
Dated: 28 September 2012
Catherine Kusiak
Associate to His Honour Judge Anderson
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