Casha v Victorian WorkCover Authority
[2018] VCC 1497
•19 September 2018
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| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-17-02517
| DENISE CASHA | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE MURPHY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12-13 April 2018 | |
DATE OF JUDGMENT: | 19 September 2018 | |
CASE MAY BE CITED AS: | Casha v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1497 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Application for leave to bring common law proceedings – serious injury – disentanglement – leave refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Carson | Maurice Blackburn Lawyers |
| For the Defendant | Mr D Churilov | Hall and Wilcox Lawyers |
HIS HONOUR:
1 The plaintiff seeks leave to issue proceedings for loss of earning capacity and/or pain and suffering damages consequent upon an injury to her left wrist that occurred in the course of her employment in the textile industry with CLETS Australia Pty Ltd on 2 October 2008.
2 She seeks leave for both a physical injury under limb (a) and a psychiatric injury or condition under limb (c) of the definition of injury in the Accident Compensation Act 1985.
Issues in the proceeding
3 Apart from the nature and extent of the injury claimed, the principal issues in the proceeding arose out of disentangling the claimed injury from other injuries and conditions sustained by the plaintiff in the period since the accident.
The employment, the injury and its sequelae
4 In October 2008 the plaintiff was a 48 year old married woman with two adult children who had worked as an outworker in the textile industry for many years, including with the defendant company. In 2007 she commenced employment with the defendant as a machinist. On 2 October 2008 she, along with a number of other employees, was involved in moving machinery in the factory. Her case is that she sustained a strain injury to her non-dominant left wrist when doing that. The employees were given a day’s annual leave following the move. Despite the pain she was suffering the plaintiff continued to work as a machinist. Her work-rate dropped. As her wrist was not improving she went to a general practitioner on 2 December 2008 and there was an ultrasound and a CT scan investigation. She was referred to a surgeon Mr Westh who she saw on 4 February 2009 and he ordered an MRI scan. She was coping with the work less and less. She started to wear a splint.
5 Due to economic conditions on 18 February 2009 employees were reduced to a four day week. On 24 March 2009 the hours were cut to two days per week. On the next day or the day after the plaintiff obtained a medical certificate of incapacity for three days and ceased work. On 1 April 2009 a number of employees, including the plaintiff were made redundant. She received the relevant letter at home.
6 The plaintiff has not worked since.
7 After being made redundant the plaintiff found that she was getting increasing right hand and wrist pain as well. She was required to use her right hand to do pretty much everything and it became more painful.
8 In July 2009 the plaintiff had a fall and broke bones in her right heel which required her to wear a CAM boot for seven months.
9 She has pain in her left wrist all the time. Although it varies, she only gets two or three days a week where it is more tolerable. Most movements of the left wrist bring on pain and she has to slide shopping bags up her forearm so that the weight does not have to be supported by her hand or wrist. She wears braces on both wrists. The pain in her left wrist spreads throughout the front of her left wrist, into the base of her left thumb and also up into the left forearm. It is only the severity of the pain that varies otherwise it is present all the time.
10 She felt frustrated by not being able to use her hands and arms as she would like. This has worn her down and she has become significantly depressed. She had difficulties with personal grooming. She has difficulties with her sleep and averages only four or five hours’ sleep per night. The pain and dysfunction has affected her social life and only recently has she again started going to the football occasionally.
11 She separated under the one roof from her husband and is on a disability support pension with her son as her carer. Sometimes he even cuts up food for her. She rarely, if ever, prepares meals. She does some light cleaning such as wiping bench tops and loading the dishwasher but the heavier tasks are done by her son or her daughter.
12 The plaintiff has suffered a number of other health issues including being diagnosed with diabetes. After unsuccessful injections, she had a left shoulder arthroscopy in January 2012 and a right carpal tunnel decompression also in 2012. She had surgery on her left knee in 2014. The plaintiff also had a successfully treated brain aneurysm in 2016.
13 The plaintiff is taking Mersyndol Forte every night, and the night strength most days, anywhere between four to six tablets a day. Sometimes the tablets don’t seem to do much at all. She is taking the painkilling tablets for her shoulder, her arm and her left wrist. She is also taking medication for depression.
14 At the present time the plaintiff is seeing a general practitioner every two weeks and a psychologist maybe once a month or twice a month.
15 Under cross-examination the plaintiff maintained that it was her left wrist that was her main impediment to working. She demonstrated how to work as a machinist where significant strength is required of the left wrist to pull the material through the machine.
Medical investigations as to left wrist
16 In final address, the plaintiff’s conclusion from the medical material is that the plaintiff had a frank injury to her wrist in October 2008 and that that injury continues to significantly disable her from employment. The defendant’s position is that any physical injury sustained in October 2008 was relatively minor and has long since resolved. Any continuing pain and dysfunction is not a physical injury but is a psychological response.
17 The plaintiff’s left wrist has been the subject of significant investigation but no surgery. When she saw her GP on 2 December 2008 there was a diagnosis of left wrist strain. An investigation showed a possible fracture of a ligament and degenerative changes. One investigation identified a ganglion. She was referred to a surgeon Mr Westh who referred her for further investigation. He referred her to a hand specialist Mr Pham who advised that he “could not account for the diffuse symptoms.” He recommended no surgical intervention and some work modification, and the occasional use of anti-inflammatory medication.
18 The plaintiff was also referred by the insurer to Mr Troy, a surgeon. In a report dated 22 April 2009, he diagnosed a soft tissue (injury), strain, to the carpal ligament of the left wrist. At that point it had not stabilised. In a further report dated 25 August 2011 he stated that the soft tissue injury to the left wrist had stabilised.
19 The plaintiff was seen by an occupational physician, Dr Wyatt, on 4 September 2009. She noted that the plaintiff had wrist problems prior to the subject episode. This examiner was of the opinion that:
“The clinical picture, taking into account Ms Casha’s symptoms, her ongoing problems, and the investigations performed, is most consistent with some osteoarthritis in the thumb side of the wrist. This would be consistent with the manner in which the problem developed, and the fact that her symptoms have been ongoing. This presents to be a mild to moderate problem, causing ongoing symptoms.”
She was of the view that this was an aggravation of an underlying pre-existing problem.
20 She was of the view that the work contribution was diminishing and would not be expected to continue beyond the 12 months but materially contributes to her current symptoms and incapacity. The work contribution was not expected to be permanent.
21 She was of the view that if the plaintiff had not been retrenched she would still be fit for modified but not full-time pre-injury duties.
22 On 17 June 2010 an occupational physician, Dr Bowles concluded as follows:
“I have no medical diagnosis of Ms Casha’s left-hand complaint. There are a number of inconsistencies and non-organic features and her complaints do not make anatomical sense. There was no history or diagnostic criterion to make a diagnosis of complex regional pain syndrome. Why the complaints have got worse since Ms Casha stopped working is unclear. The medical process is to exclude any serious or treatable problems and Ms Casha out has been extensively investigated and no pathology of any note has been identified.”
…
“I have no medical diagnosis of Ms Casha’s left-hand complaint. There are a number of inconsistencies and non-organic features and her complaints do not make anatomical sense. There was no history or diagnostic criterion to make a diagnosis of complex regional pain syndrome. Why the complaints have got worse since Ms Casha stopped working is unclear.””
…
“The medical process is to exclude any serious or treatable problems and Ms Casha out has been extensively investigated and no pathology of any note has been identified.”
23 The plaintiff gave a history that you used to go to the gym, walk and go to the football but could not any longer. She no longer went to bingo or would shop as much, and stayed at home watching television or reading - “the plaintiff said she did not do much of anything at all.”
24 In a report dated 11 August 2011 this examiner was of the opinion that Ms Casha had the physical capacity to undertake some alternative occupations. He found no physical issues in the wrist or foot.
25 The plaintiff’s general practitioner reported on 10 November 2010 noting that the prognosis was guarded due to the nature of her injury and lack of progress. She was suffering from an adjustment disorder with moderate anxiety and depressed mood.
26 The plaintiff developed left shoulder pain and was assessed by Mr Pang, orthopaedic surgeon. In a report dated 13 May 2011 he noted that the plaintiff had “a chronic wrist pain and disability and as a result requires the use of a wrist brace.” The plaintiff developed frozen shoulder which he opined was a secondary injury to the difficulties that she had encountered with her left wrist.
27 In a second report dated 15 July 2011, in relation to the shoulder condition, he opined that it was possibly a secondary injury to the left wrist problems, but it may however be idiopathic. The plaintiff later developed chronic regional pain syndrome. Mr Pang ultimately performed a decompression.
28 Mr Peter Battlay, surgeon, opined in a report dated 21 April 2011 that:
“Ms Casha has an accepted claim for a left wrist injury. I think it fair to say that the majority of her symptoms are non-physically based. She does have a permanent stabilised impairment of the left wrist, which is assessed in terms of the range of motion model. She has an unresolved wrist strain.”
29 Dr Kevin Fraser, rheumatologist, reported on 8 February 2013 that there was significant overreaction on physical examination. He was of the view that:
“It is possible that she sustained a left wrist strain as a result of the incident at work in October 2008, but if so I consider that that has long since resolved.”
30 He was of the opinion that the plaintiff was fit for pre-injury duties.
31 The plaintiff was the subject of an extensive review by Dr Horsley, occupational physician, on 19 August 2013. She found that the plaintiff presented “with generalised disability involving her left shoulder, left wrist, right wrist and right foot.” She was of the view that the plaintiff had developed a chronic pain syndrome. “She also suffers from significant psychological sequelae. She has been diagnosed with a major depressive disorder by her treating psychiatrist.”
32 She found that her prognosis for return to work, “on the basis of her left wrist alone is poor.”
Later reports
33 The plaintiff was examined by Dr Tony Kostos, rheumatologist, on 11 October 2017. He had access to a number of the investigations including a left wrist ultrasound dated 5 November 2015 reported as normal. He opined that in the absence of any objective diagnosis, “I could not suggest that her current left symptoms are still related to any incident at work from 2008.” He referred to the injury that the plaintiff had sustained falling downstairs to her right foot and did not accept that it related to any problem with her left wrist. Having regard to her presentation he said:
“although she does have some ongoing pain, I have viewed this pain in the context of the overall presentation and suggest that tenderness appears to be exaggerated. I’m certainly not convinced that this is providing her with significant disability.”
34 He referred to the various procedures that had been undertaken in relation to the plaintiff’s left shoulder and noted that the surgery by Mr Pang had failed and that the capsulitis was related to her diabetes. Similarly the carpal tunnel in her right hand was also related to that condition. He noted that there was non-anatomical sensory loss in her right hand, as well as her left side. He concluded that “therefore, if the medical evidence is actually understood, then none of the problems that I have detailed above can be attributed to her work at CLETS.” He confirmed that opinion in a further report dated 5 December 2017.
35 The plaintiff was examined by Dr Joseph Slesenger, specialist occupational physician, on 28 September 2017. He noted a significant psychogenic element to her presentation. In terms of causation, he describes it as a difficult case. He opined there was evidence to support a left wrist soft tissue injury and possible development of a chronic pain syndrome. In relation to the left shoulder there was a possible causal link due to avoidance of the left upper limb but was unable to fully conclude on that point. In relation to the carpal tunnel syndrome he was unable to a tribute that to the workplace. He was of the opinion that “there remains a partial organic component to her left wrist impairment, which can be attributed to the workplace exposure.” He was of the opinion in relation to the left wrist impairment that “there are opportunities for further treatment, particularly in light of evidence of a chronic pain disorder.”
36 He was of the opinion that the plaintiff retained residual capacity for work with restrictions, particularly for four hours a day four days per week. He was of the opinion that there were opportunities for further intervention in terms of pain management. Even with this, there was unlikely to be a significant alteration in her occupational capacity.
37 In closing address Counsel for the plaintiff conceded that if his opinion as to the plaintiff’s light work capacity of a total of 16 hours per week a day was accepted then based on the relevant earning rate, the plaintiff would just fall foul of the 40 per cent reduction in earning capacity required for a loss of earning capacity certificate for her physical injury.
38 In evidence was a comprehensive report dated 26 September 2017 from Clinical Associate Professor of Surgery, Felix Behan. It was not referred to in detail. He finds that the opinion of Dr Fraser “is the most succinct overview of this problem while note discounting the X-ray evidence and the CRPS symptoms in the patient.” He found a continuing link with employment. He noted “there is a cross link between the ongoing pathology of the (L) wrist and the persistent neuropsychiatric indication evident in this patient’s story.” He suggested there has been severe psychological sequelae. He indicated that the plaintiff needs CRPS management “as a baseline before further supervision of the wrist activity.”
39 Dr Kostos examined the report and noted that there does not seem to have been a full examination, nor is there a diagnosis in relation to the left shoulder. He noted that it was unclear whether the examiner was referring to Complex or Chronic Regional Pain Syndrome. He concludes that there was nothing in the report of any use at all and it did not change his opinion.
40 The plaintiff’s general practitioner in a series of reports dated 21 March 2013, 5 March 2016, 25 September 2017 and 18 March 2018 notes the lack of progress or improvement in the plaintiff’s condition. In the report dated 5 March 2016 Dr Yacoub states that the plaintiff has no capacity for suitable employment.
“She is suffering from multiple physical injuries that prevent her from a gainful employment. As noted, she has also suffered from a psychological injury which has resulted in her being on antidepressants for some time and feeling helpless…”
41 In a later report dated 19 March 2018 the general practitioner opined that as a result of the left wrist/right arm injury only the plaintiff had no capacity for pre-injury employment, nor a capacity for other suitable employment. Given that earlier reports had not sought to attribute the incapacity solely to the left wrist, there is an element of “boilerplate” about the later opinion which leads it to be given less weight.
Assessment
42 I do not regard it as necessary to consider the balance of the medical material in relation to the plaintiff’s physical condition in any more detail. The burden of the material considered above is that despite extensive investigations of the plaintiff’s left wrist, conservative treatment was recommended and the opinion was that any injury sustained in October 2008 was relatively minor and temporary. This is consistent with the fact that the plaintiff was able to continue working with her wrist problems until 24 or 25 March 2009 when she ceased work but was a week later retrenched.
43 The plaintiff is required to identify the nature and extent of her left wrist injury. Having regard to the reports of Drs Fraser, Wyatt, Bowles and Kostos, I find that notwithstanding continuing complaints of pain, any physical injury sustained in October 2008 should have well and truly resolved a long time ago. Specialists such as Mr Westh have been unable to identify any significant pathology.
44 There is a significant theme in the medical reports of a psychological response with references to an inability to explain her symptoms by Mr Pham and Dr Kostos, a chronic pain syndrome by Dr Horsley, a significant psychogenic element and a psychological impairment by Dr Slesenger, a psychological injury by Dr Yacoub, neuropsychiatric problems by Prof Behan, non-organic features by Dr Bowles, non-physically based symptoms by Mr Battlay, and exaggeration on examination by Dr Fraser.
45 Drs Slesenger and Yacoub seek to attributed an inability to work to the left wrist alone. Dr Slesenger does note, however, that the plaintiff should be seen by a pain specialist, although he did not anticipate a significant alteration in overall function. Significantly however he did find a residual capacity for work with a number of restrictions including a maximum of four hours per day, for four days a week. Dr Yacoub finds no capacity for work. However, his reports are premised on the plaintiff having work-related injuries to both wrists when the evidence is that the injury to the right wrist, and the left shoulder, is unrelated to her employment. This weakens his conclusions.
46 In the light of the contrary medical evidence that any left wrist condition is minor, if not resolved, I am not satisfied that those two opinions are sufficient to disaggregate the other conditions suffered by the plaintiff including her left shoulder condition, right wrist condition, right heel condition, and left knee condition.
47 I accept the defendant’s submission that the plaintiff is required to separate out the physical injury that she is seeking a certificate for, from any psychological or psychiatric consequences. In view of the broad range of psychological responses just referred to, I am not prepared to find, based on the late opinion by the general practitioner, and the opinion by Dr Slesenger, that the plaintiff has discharged her onus to separate out and identify the physical injury. I am satisfied that the opinions referred to identifying non-physical consequences are to be preferred notwithstanding differences in nomenclature. Thus, having considered all the evidence I accept the defendant’s submission that the plaintiff has not discharged her onus to identify a physical injury to her left wrist giving rise to current consequences.
Combining shoulder and left arm condition?
48 On the basis of the opinion of Mr Troy that the left shoulder condition of adhesive capsulitis was secondary to the left wrist condition, and that of Mr Pang to the same effect, in final address Counsel for the plaintiff submitted that the plaintiff is entitled to combine these conditions and seek a certificate based on an impairment of the body function of the left upper limb. It was submitted that the shoulder condition was a consequence of the frank left wrist injury. It was submitted that the well-known case of Lu v Mediterranean Shoes was distinguishable in these circumstances.
49 The issue is whether the shoulder condition can be combined with the wrist condition such that they constitute a single body function of the upper limb. Mr Pang concedes in his report that capsulitis can be idiopathic, as did Mr Troy. Dr Kostos is of the opinion that the condition is not related to the left wrist or to the plaintiff’s work but is related to the medical condition of diabetes. Dr Fraser is emphatic to the same effect. These two opinions have not been the subject of a report that directly challenges them.
50 On the basis of these latter medical opinions I regard the opinion of Mr Troy, who does not appear to have been advised of the plaintiff’s diabetes condition, as on its own on the question of a causal link, and I am not satisfied that the plaintiff’s left shoulder condition can be attributed to her employment. It must therefore be excluded in considering any pain and suffering and loss of earning capacity consequences of the left wrist injury.
Conclusion on limb (a) claim
51 The two-step process of a “substantial organic basis” for a limb (a) injury essayed in Meadows v Lichmore Pty Ltd [2013] VSCA 201 at [21]-[22] must be undertaken.
52 The plaintiff carries the burden to separate out the pain and suffering consequences, and loss of earning capacity consequences, from conditions other than her left wrist injury. The highest that the evidence can go in relation to the left wrist is the opinions of Drs Slesenger and Yacoub. The former refers to a “partial organic component” but suggests further treatment.
53 As noted above, other examiners whose opinions I prefer, point to a resolution of the physical injury, or a minor contribution, and the plaintiff’s condition being dominated by non-physical factors. The weight of the medical evidence is I am satisfied against the purported separate identification of the consequences of the left wrist injury undertaken by those two latter practitioners. It follows from this that I accept the defendant’s submission that the plaintiff has not discharged her onus to separate out a physical injury to her left wrist alone that is either serious in its loss of earning capacity and or pain and suffering consequences.
54 If I am wrong about that, the plaintiff is also required to separate out from her physical injury the psychological or psychiatric consequences in a limb (a) claim. As I have noted above virtually all examining doctors have identified a psychological or psychiatric condition. No real attempt has been made to exclude those conditions in the assessment of the plaintiff’s physical left wrist condition. On that further basis I accept the defendants submission that the plaintiff has not discharged her onus in relation to her claim for a certificate for either loss of earning capacity or pain and suffering for a limb (a) injury.
Limb (c) psychiatric condition
55 Before closing addresses, the parties set out the issues that were required to be determined in the case. In relation to the limb (c) case the plaintiff identified the task as follows:
(1)Psychiatric (from physical) disentanglement: Has the plaintiff proven that her psychiatric illness, if there is one, has been disentangled from the psychiatric/psychological consequences of the organic condition and other present physical conditions such that her left wrist/hand injury has been disentangled from her non-compensable injuries (including left shoulder, right foot, left knee, bilateral heels, right hip, brain, right wrist) in respect of both P & S and loss of earning capacity consequences?
(2)Causation: Has the plaintiff established what psychological condition, if any, the plaintiff has today resulting only from the left wrist/hand injury and what consequences this has or would have on her daily life and activities and work capacity?
The causal contribution to the plaintiff’s psychological conditions must be excluded where they arise from the variety of physical conditions that the plaintiff suffers from as mentioned in [1].
56 The plaintiff’s case as opened was that she is suffering a severe psychiatric injury that commenced following the original left wrist injury and that continues to the present time. She remains under treatment of a psychologist and it is of a severity that has resulted in her being housebound, being unable to work or enjoy a proper social life and that this ought meet the test as a “severe” mental disorder. The plaintiff relied particularly on an opinion of a psychiatrist Dr Turnbull to link her current psychiatric condition with the original wrist injury.
57 The defendant’s response is that any psychological or psychiatric condition now being suffered by the plaintiff does not arise from the original left wrist injury but is derived from a number of other injuries or conditions – it was multi-factorial according to Dr Entwisle. Thus the defendant argued that according to cases such as Peak Engineering Pty Ltd v VWA [2014] VSCA 67 and AG Staff Pty Ltd v Filipowicz [2012] VSCA 60, the plaintiff is required to disaggregate those other matters from any psychiatric condition that is related to the injury and on the material the plaintiff has failed to do so.
58 To reconcile the competing arguments it is necessary to consider the course of treatment.
The course of psychiatric treatment
59 Although as indicated above there was an early recognition of a psychological response by the plaintiff to her original left wrist injury, the plaintiff was not referred by her GP for psychiatric treatment until 15 December 2010, and according to the medical reports received treatment over the period from that date to 17 August 2011. She subsequently had treatment from a psychologist in 2014, and this was resumed in 2017 and she remains under that treatment, as well as with her general practitioner.
60 The insurer had referred the plaintiff to Dr N Rose, psychiatrist, on 9 September 2009. He saw her shortly after she had fallen down some stairs and fractured her right heel. At that point she was confined to a wheelchair. She was doing little except watching television and playing computer games because of the injuries, as going out was too difficult. Before her fall she had been able to do a little house work. He formed the view that the plaintiff had developed anxiety and depressive symptoms in relation to her physical injuries. She was having no other treatment save medication. The diagnosis was “an adjustment disorder with mixed anxiety and depressed mood.” He was of the view that from a psychiatric perspective she may have a current but reduced capacity but her wrist injury had not resolved. He was of the view that her mental symptoms “are mild and I believe that once the physical injuries resolved, Ms Casha’s depression and anxiety will probably resolve.”
61 Dr Rose saw the plaintiff again on 23 August 2010. He found that the plaintiff’s mental state had deteriorated somewhat since he last saw her, but she was out of the wheelchair and was able to walk short distances but still had pain in her right foot. She was still complaining of pain in her left wrist. She had become withdrawn and reluctant to leave the house. She had not had any treatment and was more preoccupied with her injuries. He was of the opinion that she would benefit from additional psychological treatment aimed at rehabilitation. He found that the plaintiff was suffering from an adjustment disorder with mixed anxiety and depressed mood. If her physical injury had resolved she has an additional pain disorder. At that point he was concerned about the increasing depression, anxiety and demoralisation.
62 Dr Rose was provided with the report of Dr Bowles which indicated that he could find no medical diagnosis for the plaintiff’s left hand complaints. On that basis Dr Rose found that it was more likely that in addition to the plaintiff’s anxiety and depressive symptoms she was suffering from a pain disorder that was:
“exclusively of psychological origin. I note that there is no evidence that Ms Casha did actually fracture her wrist. Her obsessional character is probably the main factor perpetuating her current symptoms. Her symptoms may have initially been precipitated by an injury at work, but I believe that her current symptoms are predominantly psychogenic and related to her personality. She is now preoccupied with a sense of invalidity and pain. Much of this almost certainly represents the presence of abnormal illness behaviour. Unfortunately, however, one must acknowledge that if it were not for the problems at work, there is some possibility that Ms Casha would not be suffering from pain, anxiety and depression. I have some reservations as to the continuing contribution of work to her ongoing symptoms. Her ongoing symptoms are mainly related to her personality and attitudes.” (Emphasis added)
63 The plaintiff saw a psychiatrist Dr Dasanayake on referral from her general practitioner from December 2010 until August 2011. The reports indicate that after the plaintiff sustained her right heel injury she became quite depressed with:
“amotivation, social isolation and lack of interest in pleasurable activities. She reports that she was missing work and also the interaction with other people.”
64 The report also indicates that the plaintiff was having trouble with her relationship with her husband and children.
65 In the second report the plaintiff was complaining of continuing pain in the left wrist but also involving the left upper limb and shoulder. The plaintiff was having continuous tiredness and significant sleep disturbance and difficulties with household activities. The final diagnosis was symptoms of major depression of moderate degree and also comorbidity pain disorder due to general medical condition and psychological causation.
66 She was found to have no capacity at that point for pre-injury duties or other suitable duties. Her ability to return to work would depend on the outcome of her physical injury as well as the psychological injury. The psychological injuries “depend on the recovery from her physical disability; ie pain in her arm and shoulder.” The psychiatrist noted that her depressive symptoms and other psychosocial stressors such as unemployment, social isolation appears to be contributing to her pain syndrome, thus ensuring a vicious cycle. Hence, there is a major psychological component which contributes to her pain syndrome:
“However, in the past, there was a clear physical injury which caused her disability and I am unable to comment as to how much of this physical injury is contributing to her ongoing pain, as it is not in my expertise.”
67 In April 2011 Dr Kornan, psychiatrist examined the plaintiff. He noted that the plaintiff was complaining of problems with her wrists, frozen left shoulder, pain up and down the left arm, and pain in the right foot. The plaintiff claimed to be depressed, was having sleeping problems and did not want to go out. The psychiatric condition was of a major depressive disorder, and an adjustment disorder with anxiety features. The psychiatric condition was at the upper level of chronic, mild severity, although, at times, it has been of moderate intensity.
68 He was of the view that from a psychiatric viewpoint:
“there is no limitation to the workers daily activities of living. Further her psychiatric health condition by itself does not prevent her from working. If she cannot work on medical grounds it would be due to physical factors, which are outside my area of expertise.”
69 He noted that she should continue with her psychiatric treatment probably for 12 months or so. Her psychiatric impairment had stabilised. He assessed the impairment as 20 per cent due to her pains and discomfort, it was a secondary impairment.
70 In May 2011 Dr Entwisle examined the plaintiff. He noted that she was complaining of pain in the left hand, wrist and the left upper limb and shoulder. There was also pain involving the ankle. The diagnosis was “an adjustment disorder with depressed and anxious mood in the context of a pain syndrome (Dr Bowles).” The condition occurred in work circumstances and had improved. She was not work ready but required a further six months of treatment. Her employment continues to contribute to her condition.
71 This examiner was provided with an opinion of Dr Bowles dated 30 April 2011 that stated that the plaintiff’s wrist strain had resolved, that the shoulder condition was idiopathic and constitutional and that the foot fracture occurred at home. On that basis the insurer had determined that the wrist injury no longer materially contributed to any incapacity for employment. With that additional information, Dr Entwisle found that the plaintiff’s employment was not contributing to any psychiatric injury. She was also not suffering from any work-related incapacity from a psychiatric perspective.
72 However, in a later report dated 27 July 2011, he confirmed that while the plaintiff’s psychiatric condition had improved she was still struggling with anxious and depressive symptoms and psychiatric treatment had brought about a partial resolution of those symptoms, that she was not work ready and required a further six months of treatment. He was of the view that she did not have a work capacity at that point but that her incapacity was not likely to continue indefinitely. Given that her condition continued he was of the view that with six months of treatment her employment status can be revisited. He noted an employment report that described a number of possible suitable options for her.
73 The plaintiff saw Dr Weissman, consultant psychiatrist on 26 August 2013. He had access to a wide range of other reports. He was told by the plaintiff that she had ceased her leisure activities and hobbies and did not socialise. She was no longer in a relationship. She had stopped seeing her psychiatrist but was still taking psychiatric medicine. He noted that she had developed and experienced numerous losses and changes to her lifestyle and that these are often key dynamics to the development of depression and grief. His diagnosis was that the plaintiff was suffering from:
“*At least a chronic major depressive disorder with anxiety, of at least a moderate intensity or severity;
*symptoms and features of a chronic pain disorder, associated with psychological factors and a general medical condition; relevant to her employment”
74 The condition had stabilised. He was of the opinion that her medication should be increased and she should recommence with a psychiatrist. He was unable to comment on her work capacity but on purely psychiatric grounds she was suffering from “at least a moderate group of work-related psychiatric conditions and mental injuries.” On purely psychiatric grounds she was totally incapacitated for all work. The prognosis was uncertain and most likely relatively poor. He noted:
“Ms Casha has sustained and developed at least a moderate group of work-related psychiatric conditions and mental injuries which should be added, in a narrative or qualitative sense, to the work-related physical and surgical conditions and injuries that she had also sustained and developed but which are, of course, outside my area of expertise.” (Emphasis original)
75 In closing address the plaintiff’s Counsel conceded that both Drs Kornan and Weissman did not separate out the psychiatric condition linked solely to the left wrist physical injury.
76 This is an important concession as Dr Kornan noted a number of additional injuries, apart from the left wrist, as the basis for the plaintiff’s overall condition.
77 Similarly Dr Weissman refers to work-related psychiatric conditions and mental injuries that need to be added, “on a narrative or qualitative sense to the work-related physical and surgical conditions and injuries that she has sustained and developed…” Thus he is including the plaintiff’s left shoulder, right wrist and according to the letter of instruction noted in his report he was asked to report on “right foot,… Chronic Regional Pain Syndrome and psychological condition and injuries have arisen as a consequence of her left wrist injury.” As I have noted earlier the burden of the medical evidence is that it is only the left wrist that is work-related, thus necessitating opinions based on separating out other physical injuries.
78 A further relevant matter in considering the overall picture as to disentangling the plaintiff’s psychiatric condition is that a number of the early physical examiner’s had reached the view that the left wrist injury was minor or had resolved. These included Drs Wyatt, Bowles, Fraser, and later Dr Kostos.
The attack on the plaintiff’s credit
79 As the plaintiff has to satisfy the court that a psychiatric illness is a result of the injury sustained in her employment the defendant strongly attacked the plaintiff’s credit in cross-examination. The sting of the attack was that the plaintiff would not accept that other medical conditions she had sustained were also impacting on her psychological condition in the period after October 2008 to date. This was to found a basis for an argument in final address that at most after the original wrist injury the plaintiff suffered an adjustment disorder. Subsequently her psychological and psychiatric condition broadened into depression and a pain disorder, such that her current psychiatric condition was “multifactorial”. It was put to the plaintiff in cross-examination that she would not accept the impacts on her psychological functioning as a result of her right foot injury sustained in July 2009, and left shoulder and right wrist conditions that arose in late 2011 and 2012 both requiring surgery causing, and notwithstanding the surgery, continuing pain and disability.
80 In relation to the right foot injury, the sting of the cross examination was that this injury had had a significant impact on her psychological well-being that she is not prepared to fully accept until extracted from her. Included in this was that she had been to see Mr Westh on three occasions in 2010 after the removal of the boot, for continued problems in her right foot yet she was unable to recall those consultations.
81 A second aspect of the attack on the plaintiff’s credit was a comparison of the histories provided by her to Drs Rose and Bowles in 2010, before she had any psychiatric treatment, to the effect that the plaintiff’s hobbies and recreations effectively all ceased when material from Facebook would indicate that the plaintiff was in fact still undertaking and enjoying social activities such as going to the trots, the football and social occasions, over the same period.
82 In assessing the plaintiff’s responses under cross-examination, given the time elapsed since the various examinations, I give significant weight to the histories recorded by the doctors, and what is actually stated in the Facebook material. On that basis I am satisfied that in the period from mid-2009 the plaintiff did downplay the extent of her social activities in the histories she provided to Drs Rose and Bowles. Dr Bowles formed the view that there was significant abnormal illness behaviour. Dr Rose in his report dated 15 November 2010 also found abnormal illness behaviour. It would be consistent with this that the plaintiff would over-emphasise her disability in the history she provided to examiners. Dr Fraser reached a similar conclusion in February 2013.
83 The plaintiff’s response to the inconsistencies between what is recorded that she told Drs Rose and Bowles and what is revealed by the Facebook posts in evidence, was that either she had not been asked about the specific matter or she had been having good days and bad days. This response I found unsatisfactory. Similarly when confronted with a Facebook entry indicating that she was cooking prawns, yet she maintained that she was “overseeing” the cooking, again I found the response unsatisfactory.
84 There were other unexplained aspects of the Facebook material, such as whether the plaintiff had ever been to the Australian Open tennis. While there appears to be a post indicating that she was there, I am prepared to give her the benefit of the doubt on that. On the other hand, while I am prepared to accept that the plaintiff did not travel to the Gold Coast, the fact that she appears to have put up a post suggesting planning for such a trip is an aspect of the inconsistency between what is revealed in the Facebook material as to her social activity and what the plaintiff had been telling her doctors.
85 A further aspect of this attack on the plaintiff’s credit was the conclusion of the psychiatrist Dr Dasanayake who she commenced to see in February 2010. As noted, this examiner found that the plaintiff was suffering from moderate depression and any improvement would depend on recovery from the physical incapacity as the limitations in her physical activities and pain maintain and exacerbate her depression.
86 The sting of the cross examination in relation to the histories provided to Drs Rose and Bowles was submitted to have undermined the opinion of the psychiatrist as the plaintiff’s leisure activities were not as restricted as she was maintaining.
87 In closing address Counsel for the defendant also referred to later concessions by the plaintiff as to social activities between 2013 and 2015 revealed by the Facebook material that undermined her assertion that her psychiatric condition was having a major impact on her social life.
88 A second aspect of the cross examination of the plaintiff, repeated in closing address, was that the plaintiff had had a number of other medical issues that had the ability to impact on her condition. These included problems with her knee locking up ultimately requiring surgery, heel spurs, and a hip problem in September 2017. The defendant criticised the plaintiff on the basis that the number of these other conditions had not been revealed or fully revealed in the affidavit material sworn by the plaintiff, and this was consistent with the plaintiff being an evasive and non-credible witness.
89 Overall, having considered the matters raised by Counsel for the defendant, and the response from the plaintiff’s Counsel that the Facebook material revealed only a limited range of social activities over the years, and that the other medical conditions raised were relatively minor, I remain of the opinion that the cross examination did succeed in significantly abasing the credit of the plaintiff.
Contemporary psychiatric reports
90 The plaintiff saw Dr Turnbull, psychiatrist, on 22 September 2017. In his report he found that the plaintiff gave a straightforward and unremarkable history of her psychological condition “emerging as a consequence of her physical injuries and the unfavourable milieu of her workplace.” He found she has a major depressive disorder with anxiety features. There were obvious features of depression but accompanying that was a pervasive anxiety, a fear of leaving home that manifested itself in a gastrointestinal upset. He was of the view that she was totally incapacitated for work and the prognosis was grim.
91 This examiner accepts the plaintiff’s account that her psychological difficulties began in early 2009 in the workplace due to the attitude of her colleagues and managers. She was finding it difficult to go to sleep and being anxious about going to work. He finds that her psychological condition emerged “as a consequence of her physical injuries and the unfavourable milieu of her workplace.”
92 I have difficulties with Dr Turnbull’s analysis on two bases. First, he does not grapple with or exclude the psychological impact of the plaintiff’s left shoulder injury, the pain in her right wrist, nor the impact of her right foot injury, which I am satisfied did cause a significant decline in the plaintiff’s psychological condition. He also does not exclude psychosocial factors such as the breakdown of her marriage.
93 In final address the defendant criticised the report on that basis, as well as its reliance on an impairment assessment under the Act which required a different mode of analysis. Secondly, the suggestion of workplace stress causing depression as a basis for her subsequent psychological problems seems to have emerged only recently, although she did refer to being yelled at in the workplace. Whatever the difficulties the plaintiff may have had with her left wrist before she was made redundant from 1 April 2009, she continued to work.
94 Dr Entwisle’s final report followed an examination on 12 October 2017. He recorded the surgery to the plaintiff’s shoulder and right carpal tunnel. He noted other conditions including a torn meniscus, and an aneurysm. He also noted that the plaintiff is now on a disability support pension with her son as her carer. His diagnosis was “chronic adjustment disorder with depressed and anxious mood, and chronic pain syndrome.” He summarised the matter:
“Ms Casha’s chronic adjustment disorder is of multifactorial origin beginning with a work related injury complicated by a fall at home subsequently and other injuries and a variety of surgical interventions, medical issues. Ms Casha exists on a disability support pension.”
95 The examiner reviewed a medical panel opinion from March 2015 which indicated that the plaintiff at that point was:
“suffering from a major depressive disorder relevant in part to the accepted psychological injury and in part to unrelated physical injuries, 10% of which arose secondary to or a consequence of the accepted physical injury and 8% was due to the workers unrelated physical injuries.”
96 He concluded that the plaintiff:
“has a chronic adjustment disorder with depressed mood secondary to pain and incapacity involving a number of injuries, surgery and medical health issues as detailed.”
97 It was of mild to moderate severity and “given the multitude of injuries and poor health would not be regarded as in excess of what would be expected in such circumstances.” (emphasis added)
98 He went on:
“There is some contribution to Ms Casha’s psychiatric condition from her wrist injury, the clinical picture having largely been overtaken by a range of other surgical and medical issues and psychosocial contributions (breakdown of marital relationship, cohabitation in difficult circumstances).
“In regard to the original work related injury I consider Ms Casha does have a capacity for employment of a suitable nature but overall due to poor medical health and a variety of other injuries that her work capacity is limited.”
“The prognosis was for her to continue to report some psychiatric symptoms in the context of her experience of chronic pain.” (Emphasis added)
99 In a supplementary report dated 1 November 2017 he repeated his earlier conclusions and affirmed that he was of the view “that the plaintiff” had a chronic adjustment disorder and that in regard to the original work related injury, Ms Casha did have a capacity for full employment of a suitable nature. He found that she would be capable of performing the options identified in the Recovre report dated 20 November 2017.
100 The final report relevant to the limb (c) was from the psychologist Waltraud Tubbesing . She has been seeing the plaintiff for anxiety/depression due to chronic pain since 2014. She saw her for a year and then there was a re-referral in September 2017. The opinion is that there is no way:
“to separate the physical health from the psychological impact. Constant chronic pain and reduced mobility will affect the emotional and mental health of a person.”
101 As this report does not seek to differentiate out work related conditions from any other conditions it is of only limited assistance.
Assessment
102 Reconciling the competing psychiatric reports is no easy task in circumstances where the reports from each side are founded on different diagnoses of the plaintiff’s physical condition relating to her left wrist. As I have noted above the burden of the defendant’s evidence as to the plaintiff’s left wrist injury was that it was relatively minor and temporary, while the plaintiff’s examiners maintain a continuing physical injury although as I have noted the precise physical contribution to the consequences has not been disaggregated.
103 In considering for the purpose of the limb (c) claim, the plaintiff’s psychiatric state, the defendant’s position is that a number of other physical injuries and conditions have overtaken the original psychiatric diagnosis of the plaintiff which was relatively mild. Despite this, her psychiatric condition deteriorated with the intrusion of further medical conditions such as her right foot fracture, her left shoulder problems involving ultimately surgery, and her right wrist where the surgery was unsuccessful. The plaintiff continues to complain of pain and dysfunction in her left shoulder and right hand, and continuing problems with her foot.
104 The plaintiff carries the onus to satisfy the Court that she has a mental or behavioural disturbance arising out of her wrist injury alone. Thus she must exclude psychological or psychiatric consequences that arise out of injuries other than the wrist injury. This is no easy task, particularly given the subsequent conditions including her marriage breakdown. Thus the description by Dr Entwisle that her condition is “multifactorial”. In a much earlier report Dr Horsley had referred to a “multiplicity of conditions.” As I have noted earlier, as far back as November 2010 Dr Rose had “some reservations as to the continuing contribution of work to her ongoing symptoms” in circumstances where the plaintiffs condition deteriorated when physical examiners such as Dr Wyatt were of the view that from a physical viewpoint her wrist would resolve.
105 Also relevant to the challenge facing the plaintiff on the material before the Court is the cross examination material that indicates that in the period from around 2010 to 2015 the plaintiff had overstated the extent of her disabilities in histories provided to the psychiatrists. It was over this period up to 2014 that the plaintiff was not having any psychiatric treatment, and only resumed seeing a psychologist in December 2014.
106 In closing address Counsel for the defendant cautioned against a backward looking analysis: the plaintiff has a depressive disorder, she had a wrist injury, therefore that injury is responsible for her complaints. Rather, as he submitted, and I accept, the plaintiff must identify the consequences of a long term “severe” condition arising out of the original wrist injury. The opinion of Dr Turnbull seeks to do that by reaching back to the workplace pressure subsequent to the original wrist injury as providing an explanation for her present condition. The plaintiff relied particularly on his opinion that he did not:
“see any pathway towards a recovery for this lady. Unless there was a major reversal in her wrist condition, she is likely to remain much the same psychologically.”
107 He regarded the condition as permanent. Further, he was of the opinion that she was completely incapacitated for formal remunerative work, and rehabilitation or further intervention would be unlikely to be success.
108 He has come onto the scene very late given that the plaintiff has not had psychiatric treatment as such since 2010, although she has now resumed seeing a psychologist. While he provides his opinion after having considered much of the earlier medical reportage, unlike Dr Entwisle he has only seen the plaintiff once and has not had the benefit of the attack on the plaintiff’s credit in cross-examination. He also does not seem to grapple with a conclusion that the plaintiff’s left wrist injury was minor with much of the evidence indicating that it should have resolved.
109 There is a conflict as to the exact psychiatric diagnosis with Dr Turnbull identifying major depressive disorder with anxiety features. He makes no reference to a chronic pain disorder and his prognosis is poor for both the condition and employment.
110 In contrast, Dr Entwisle’s view is that there is a chronic adjustment disorder with depressive and anxious mood and a chronic pain syndrome. His assessment is that the condition is of mild-to-moderate severity.
111 Considering the plaintiff’s condition overall, and noting the material that emerged under cross-examination, including that the plaintiff is now going to bingo on a weekly basis and engaging socially with a couple of friends, the plaintiff’s demeanour under cross-examination, and the limited formal psychiatric treatment in the period since the original injury, I prefer Dr Entwisle’s more nuanced opinion. While he has not had the opportunity to consider the cross-examination attack on the plaintiff, the highest he is prepared to go in relation to linking the wrist injury to the plaintiff’s current mental state is “some contribution”. He notes the plaintiff has a work capacity in suitable employment. He notes that from a psychiatric perspective, in relation to her physical work related injury alone, the plaintiff was capable of performing some light jobs identified by a consultant.
112 He refers to the fact that the plaintiff is on a DSP. Inferentially one can conclude that it is for a number of conditions. Dr Kostos refers to the plaintiff wearing splints as “symbols of invalidity.” Dr Rose had referred to a “preoccupation with a sense of invalidity and pain.” On 8 February 2013 Dr Fraser noted that the plaintiff was on the DSP and thus “there is no question of her ever returning to work.” Dr Horsley had reached the same conclusion around the same time on the basis of a “multiplicity of conditions.”
113 As I prefer Dr Entwisle’s opinion that there is some contribution by the plaintiff’s original left wrist injury to her current psychiatric condition, it is only in a qualitative sense, that the plaintiff has disaggregated the condition from other conditions she is suffering and that are giving rise to her current psychiatric condition. On the authorities this is insufficient. The plaintiff must fail in her application for a certificate based on a limb (c) injury.
114 If I am wrong in this conclusion, the plaintiff is still required to identify the pain and suffering consequences or loss of earning capacity consequences of a “severe” mental or behavioural disorder arising out of the original injury. Given Dr Entwisle’s opinion that her overall psychiatric condition is of mild to moderate severity then this is a long way from providing a basis for a severe condition as required for a limb (c) claim. Further, he notes that the prognosis was for the plaintiff to “continue to report some psychiatric symptoms in the context of her experience of chronic pain.”
115 His opinion is contrary to that of Dr Turnbull and her GP who are of the opinion that the plaintiff is totally incapacitated for work.
116 The plaintiff submitted that her condition was such that as a result of her condition she is housebound, dependent on others and unable to engage in any employment. On that basis it was submitted that she had a severe condition that met the requirements for both a loss of earning capacity certificate and a pain and suffering certificate for a limb (c) condition.
117 As I prefer the opinion of Dr Entwisle that the left wrist injury provides only some contribution to her psychiatric condition, then notwithstanding the plaintiff’s evidence as to her restricted social activities, difficulties with her ADL’s, difficulties with sleep, and use of psychotropic medication, I am unable to find that the pain and suffering consequences and or the loss of earning capacity consequences of the “slight” contribution by her wrist injury to her psychiatric condition can meet the “at least very considerable” requirement of a severe mental or behavioural condition.
118 Similarly, Dr Entwhisle is of the opinion that the plaintiff has a capacity for employment of a suitable nature. This precludes her from succeeding in a loss of earning capacity certificate application.
119 For all the above reasons the application for a limb (c) fails.
Conclusion
I will hear the party on the question of costs.120
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