Champness v St Christopher's Parish
[2010] VCC 1827
•20 December 2010
*
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-10-01862
| Adrienne Christine Champness | Plaintiff |
| v | |
| St Christopher's Parish | Defendant |
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| JUDGE: | S. Davis |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 9 December 2010 |
| DATE OF JUDGMENT: | 20 December 2010 |
| CASE MAY BE CITED AS: | Champness v St Christopher’s Parish |
| MEDIUM NEUTRAL CITATION: | 2010 VCC 1827 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – s134AB(16)(b) – permanent serious impairment – injury to the right shoulder - loss of earning capacity - pain and suffering
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J.B. Richards S.C. with | Nowicki Carbone |
| Mr M.J. Walsh | ||
| For the Defendant | Mr J.L. Batten | Minter Ellison Lawyers |
| HER HONOUR: |
1 The plaintiff applies under s.134AB (16)(b) of the Accident Compensation Act 1985 (“the Act”) for leave to issue proceedings for pain and suffering and loss of earning capacity in respect of an injury to the right shoulder sustained during the course of her employment as a child care centre manager with the defendant on 2 June 2008. The injury occurred when she was closing a gate to the premises and the gate snapped off its hinges and struck her on the right shoulder and right knee (“the incident”). The plaintiff says that as a result of the incident she has sustained a permanent serious impairment of the right shoulder in the form of complex regional pain syndrome as well as a permanent severe mental impairment in the form of a conversion disorder. She says she has suffered a serious injury within the meaning of sub- paragraphs (a) and (c) of the definition of “serious injury” in s.134AB(37) of the Act. In particular, she says that due to her organic impairment of the right shoulder and her conversion disorder, she is permanently incapacitated for all employment.
2 In conducting her case before me, the plaintiff relied primarily on the organic impairment under sub-paragraph (a) of the definition of serious injury.
3 The defendant does not contest that an incident occurred on 2 June 2008. However, it says that to the extent that any of her physical symptomatology flows from a psychiatric condition, this must be ignored in the determination of the application under sub-paragraph (a). The defendant relies on the opinions of Mr Jones and Mr Dooley and submits that there is no adequate physical explanation for her ongoing symptoms in the right shoulder. The defendant also says that the plaintiff has not established that her right shoulder impairment is permanent. In this regard, the defendant relies on the plaintiff’s recovery from a hip injury following the resolution of litigation in relation to that injury, which occurred in the course of employment with another employer in 1991. The defendant also relies on the extracts of video surveillance in 2010 which demonstrates, so it says, that the plaintiff has a greater use of her right shoulder and arm, particularly when driving, than she has deposed to in her affidavits or shown to treating or examining doctors. Finally, the defendant says that the cause of any psychiatric impairment is unknown, there is no evidence that the condition is permanent, and in the light of a complete absence of treatment or medication, the plaintiff cannot establish that the psychiatric injury is a serious injury within the meaning of sub-paragraph (c) of s.134AB(37) of the Act.
4 At the hearing, the plaintiff gave evidence and was cross-examined. No other evidence was called. The plaintiff relied on documents including: her affidavits[1] and an affidavit from her husband, Damon Champness;[2] radiological investigations of the right shoulder; reports from her treating general practitioner, Dr Adrian Di Marco and from her treating physician, Dr Clayton Thomas; correspondence from three treating orthopaedic surgeons, Mr Anthony Bonomo, Mr Bernard Lynch and Mr Christopher Pulllen; correspondence from her treating pain specialist, Mr Peter Courtney; and medico-legal reports from occupational physician Dr Charles Castle. The plaintiff also relied on the vocational assessment report of Katrine Green. Finally, the plaintiff relied on the medico-legal reports provided to the defendant’s solicitors by psychiatrist Professor Ivor Jones and occupational physician Dr Gary Davison.
[1] Dated 26 November 2009 and 24 November 2010.
[2] Dated 24 November 2010.
5 The defendant relied on the medico-legal reports of orthopaedic surgeon Mr Michael Dooley and rheumatologist Dr Tony Kostos and on the vocational assessment report of CoWork Pty Ltd. The defendant also relied on extracts of video surveillance undertaken on 29 and 30 March 2010.
Evidence of the plaintiff
6 In her affidavits, the plaintiff stated that since the incident she suffers from pain, stiffness and restriction of movement in her right upper limb. Her right arm and hand shake and often swell, look blue and feel cold. Her right arm is weak and she cannot fully extend or flex the fingers of the right hand. She relies on the medication prescribed by Dr Di Marco, Dr Thomas and Dr Courtney (see below) for her persistent pain in the right shoulder. Prior to her injury she used to walk her two dogs, swim regularly, do most of the housework and loved gardening. She would take her children to and from school and drive to work. As a result of her right shoulder injury she has had to buy an automatic car. She finds driving difficult. She can no longer garden, swim or walk her dogs. She can no longer do most household tasks. She often wakes with right shoulder pain at night. She can no longer bike ride with the children or go bowling with them. She avoids going out at night because her shoulder pain prevents her from enjoying herself and she has trouble using cutlery due to the tremor in her right hand. She is too worried about the discomfort of a long plane flight to go to the United Kingdom to visit her family.
7 At the time of the incident she was working five days per week at the St Christopher’s Parish managing the Childcare Centre during the morning (6.45am to 9.15am) and afternoon (1.00pm to 6.15pm) shifts. She was also working 15 hours per week at the Moonee Valley Council. She was also teaching Adult Education classes about four hours per week (although the contract for that teaching ended around the time of her injury). In total, she earning an average of about $1,500 per week. She continued to work after the incident on light duties and reduced hours. She did not renew the teaching contract because of her right shoulder pain. Over time, however, she found she could not cope with the cleaning up and shopping duties or with typing, writing or filing. She ceased work completely in mid-February 2009.
8 Prior to her injury, she was planning to start her own childcare business. To this end, she completed courses in 2008 including training and assessment qualifications as well as an Advanced Diploma in Children’s Services, which was funded by Moonee Valley City Council. She managed to complete these courses shortly after her injury. She intended to undertake a Diploma of Community Welfare Work followed by a Bachelor’s degree and Master’s degree in education or community work. She would then have sought positions in communal or government organisations, earning between $80,000 and $120,000 per year. Alternatively, she would have opened her own child care business, earning around $120,000 per year.
9 At the hearing, the plaintiff agreed that she suffered a work related injury to her right hip, knee and lower back in 1991 and was off work receiving payments until October 2003, when the matter settled. She said that her hip healed after a few years off work. She agreed that she had been involved in a motor vehicle accident in early 2009 in which she lost consciousness but said that she hit the steering wheel with her left shoulder and left knee.
10 She said that none of the treatments she had tried for her right shoulder injury had made her better and that her condition has worsened over time. She said that she does what she can: she goes to hydrotherapy, drives a little, goes to the supermarket.
11 She said that the defendant had only suggested one position for her, which was too far away for her to drive. She said that she is unable to work because of her right shoulder pain and has not looked for work because she continues to be certified totally unfit for all employment. She was shown the extracts of video surveillance on 29 and 30 March 2010 and agreed that she used her right arm to sort through some shopping and to drive, but said that she usually uses her left hand more when driving and moved the right hand when turning the corner.
12 In re-examination, the plaintiff said that she cannot work because she is in too much pain, and that the medication does not control her pain. She said that one of her treating doctors suggest she wears a sling for support, as she finds that without it there is too much drag on the right shoulder.
13 The plaintiff’s husband confirmed the restrictions suffered by the plaintiff since her right shoulder injury in his affidavit.
Radiology
14 X-ray of the right shoulder on 6 June 2008 was reported as showing no fracture or degenerative changes but noted that the right glenohumeral joint is enlocated.
15 Right shoulder ultrasound on 17 June 2008 was reported with the following conclusion:
Minor inflammatory changes only with slight thickening of the subdeltoid- subacromial bursa but no haematoma or muscle tear identified.
Limited range of movement in all directions possibly related to mild strain injury of the deltoid and/or pectoral muscles, but no definite muscle tear is seen.
Widening of the acromioclavicular joint on the right is similar to the left and is only mildly tender.[3]
[3] Plaintiff’s court book (PCB) 51.
16 MRI of the right shoulder on 16 July 2008 was reported as showing “marked supraspinatus and mild infraspinatus tendinopathy with no discrete tear, associated with AC joint degeneration”.[4] MRI of the cervical spine on the same date was reported as unremarkable.
[4] PCB 52-53.
17 Bone scan study on 11 June 2010 was reported, relevantly with the following conclusion:
1. There is no definite evidence for reflex sympathetic dystrophy on bone scan criteria.
2. There is evidence for low-grade degenerative arthritis in both acromioclavicular joints and both shoulder joints.[5]
[5] PCB 60-61.
Reports of treating doctors
18 Dr Di Marco reported on 18 November 2010 that he has been treating the plaintiff for 11 years and that she had no prior history of right upper limb pain or injury prior to her injury in June 2008. He noted that she presented with acute shoulder pain on 3 June 2008 reporting that an iron gate had fallen from its hinges and collapsed on her right shoulder and arm. The pain became more intense over a number of days and he referred her for x-ray, which was reported as normal, and for physiotherapy. Ultrasound in June 2008 led to a diagnosis of bursitis in the right shoulder and she was treated with Panadeine Forte and Mobic. She then reported weakness, tremor and numbness in her right hand and fingers with pins and needles. He felt these changes were consistent with possible nerve damage and she was referred to specialists who recommended MRI scan of the shoulder and cervical spine. She had a cortisone injection into the right shoulder but this did not relieve her pain. Dr Thomas diagnosed neuropathic pain and prescribed a number of medications on a trial basis (Prednisolone, Endep and Topamax) but her pain persisted. He referred her to another orthopaedic specialist, Mr Pullen, who diagnosed either a brachial plexus injury or chronic regional pain syndrome. Dr Courtney, pain specialist, also felt she had a complex regional pain syndrome, and prescribed her Endep and Lyrica. She began using a TENS machine for pain relief. The dosage of Lyrica was increased. In June 2009 she had a phentolamine infusion performed by Dr Courtney, which helped reduce her resting tremor but did not reduce her level of pain. She continued to report that the right hand constantly felt cold. A simple touch on her shoulder or arm caused pain. She was prescribed Baclofen to relieve muscle spasms and twitches. A reduction in physiotherapy demanded by the insurer did not assist and in fact resulted in her requiring more frequent doses of Endone for pain relief. She had a Ketamine and Magnesium infusion in February 2010 without any benefit to her pain and focal dystonia. In April 2010 Mr Courtney recommended neuromodulation for the plaintiff but the insurer refused permission to proceed.
19 As at 18 November 2010, the plaintiff continues to suffer chronic pain over her entire right upper limb, right shoulder and right shoulder blade and radiating to her neck. The shoulder pain is constant and there is allodynia and hyperalgesia over the right arm. She has a resting tremor in her right hand, and weakness in the right arm and hand with reduced coordination. On examination, Dr Di Marco found her right hand cold with reduced grip strength and stiff fingers. He reaffirmed his earlier diagnosis of complex regional pain syndrome involving her right shoulder and arm, as well as right shoulder AC joint degenerative changes and right shoulder supraspinatus tendinopathy. He found no significant depressive or anxiety symptoms. She was continuing to take Adalat (to improve blood flow to the right arm and hand) twice daily; Baclofen three times per day; Endep at night; Lyrica twice daily; Panadeine Forte, two tablets up to four times per day; and Endone at night if required. He noted that she continues to have physiotherapy twice weekly, hydrotherapy five days per week, and uses a TENS machine for her right shoulder.
20 Dr Di Marco noted that she was involved in a motor vehicle accident on 24 February 2009 when she was hit from behind while stationary at a red light. She hit her head on the steering wheel, and suffered acute neck pain and stiffness.
21 He felt that neuromodulation might assist her in the future to regain some work capacity if it significantly improved her complex regional pain syndrome, but that the plaintiff was incapacitated for all employment due to her severe ongoing pain which prevents her using her right arm at all. He noted that the condition is a chronic one and that it is most likely that the symptoms would be permanent.
22 Mr Anthony Bonomo wrote to Dr Di Marco on 14 July 2008 that there was no major structural damage to the right shoulder but felt that the complaint of pins and needles in the hand were highly suggestive of nerve root involvement. He recommended neurological assessment.
23 Mr Bernard Lynch wrote to Dr Demirdjian on 14 July 2008 to the effect that the shoulder had a full range of motion to passive movement. He recommended MRI to exclude C7 radiculopathy, and MRI of the right shoulder. On 29 July 2008 he noted the MRI scan which showed “significant tendonitis of the supraspinatus and AC joint arthropathy”.[6] He noted that he had injected the subacromial space but that if her symptoms did not improve, arthroscopic decompression and bursectomy would be appropriate.
[6] PCB 101.
24 On 8 October 2008, Mr Pullen wrote to Dr Di Marco after seeing the plaintiff. He noted that she had been treated by Mr Lynch and Dr Thomas. He found a restricted range of active and passive motion in the right shoulder, and found it difficult to assess her because of these limitations. He felt that she was suffering from some impingement and AC joint injury but that the majority of her symptoms related to a chronic regional pain syndrome or perhaps some neurological injury such as a brachial plexus injury. He felt that no shoulder surgery should be undertaken until the other issues had been resolved. He repeated this opinion in December 2008.
25 On 28 October 2008, Dr Courtney felt she may have “some degree of complex regional pain syndrome although not obviously all the symptoms”[7] and he put her on medication. In February 2009 he requested approval for a diagnostic sympathetic block to be followed by three further blocks if the first was effective. In June 2009 he noted that phentolamine infusion did not affect her pins and needles pain and aggravated her tremor. In April 2010 he wrote to the defendant’s insurer requesting approval for a trial of neuromodulation in relation to the complex regional pain syndrome in her dominant right arm.
[7] PCB 132.
26 Dr Clayton Thomas provided a medico-legal report on 19 April 2010. He noted that the MRI of her cervical spine and shoulder were normal. He felt that she was suffering from a neuropathic pain problem to the anterior aspect of her right shoulder secondary to a crush injury in the incident. He prescribed medication and reviewed her in November 2008, where he noted little improvement from taking Topamax. He increased the dosage and referred her to Dr Courtney. On further review in January 2009, he ceased the Topamax and prescribed Lyrica. He noted a discussion with Mr Pullen in which Dr Thomas said that surgery would not be appropriate in the presence of complex regional pain syndrome. He noted the motor vehicle accident in February 2009 and that in March 2009 her right arm pain was similar to what it had been prior to the accident, although she had developed new neck pain. He noted that the Phentalomine infusion which took place in June 2009 did not improve her pain, although it reduced the shaking in the right hand.
27 Dr Thomas diagnosed Complex Regional Pain Syndrome and concluded that the plaintiff has “significant right upper limb pain and disability”.[8] He felt that she had no current work capacity but that neuromodulation might assist her.
[8] PCB 126.
28 On 6 August 2010 he wrote to the defendant’s insurer requesting approval for continued weekly physiotherapy, for spinal cord stimulation/neuromodulation and for a trial of Adalat. On 14 October 2010 he wrote again complaining of the absence of a timely response in relation to the request for approval for neuromodulation. Dr Thomas noted that neuromodulation “may not be the solution for her problem, but her problems are very severe and she presents as a reasonable candidate and she presents as suffering from a significant and progressive pain problem. Further delays will clearly hamper any prospective success with treatment”.[9]
[9] PCB 128.
29 On 29 October 2010 Dr Thomas noted the report of Mr Dooley, who had seen the plaintiff on one occasion. Dr Thomas agreed with Mr Dooley that the plaintiff’s problem was not an orthopaedic one. However, Dr Thomas also noted that Mr Dooley’s opinion that her problems relates to a significant psychological reaction differed from the opinions of Dr Thomas and Dr Courtney.
Medico-legal reports
30 Mr Michael Dooley, orthopaedic surgeon, reported on 19 March 2010 that when he examined the plaintiff he found no obvious wasting of the right upper limb and no discolouration or sweating of the right arm when compared with the left. He noted that she was reluctant to move the right arm. He felt that there was no organic orthopaedic explanation for the constancy and severity of her ongoing right shoulder and right arm pain. He did not believe there was any objective evidence of reflex sympathetic dystrophy. In his opinion, her condition “relates to a significant psychological reaction to injury and/or pain”.[10] He felt the symptoms would improve over time and that no ongoing treatment was required. On 17 November 2010 he noted that he did not believe that the plaintiff was deliberately exaggerating her symptoms and that she presents “as a sensible and genuine historian”.[11] He felt that she had become depressed in response to her injury and that her depressive reaction had become psychosomatic and therefore more difficult to treat. He repeated the conclusions reached in his previous report.
[10] Defendant’s Court Book (DCB) 20.
[11] DCB 23.
31 Dr Tony Kostos, rheumatologist, reported on 25 May 2009 that
…there is little likelihood that this woman has an ongoing musculoskeletal injury in her right upper limb that could be directly attributable to the incident described. It is obvious that her predominant problem is now a pain syndrome and she has a number of features which would make her presentation consistent with a Complex Regional Pain Syndrome Type 1.[12]
[12] DCB 29.
32 Dr Kostos felt that she required ongoing pain management but he was pessimistic about any improvement, noted that her current medication and physiotherapy regime do not appear to be helping her. He felt that although she was then working six hours per week with the Council the plaintiff was unlikely ever to be able to work full time. He felt that provision of home care would be appropriate.
33 Dr Gary Davison, occupational physician, reported on 23 November 2009 that examination of the right upper limb was very limited. He felt that there was no evidence of any structural injury to the neck or right shoulder but that the plaintiff has developed a Complex Regional Pain Syndrome Type 1 subsequent to physical injury sustained at work on 2 June 2008. He felt that her current treatment may continue indefinitely and felt that she was incapacitated for all employment, although he could not say whether this was permanent. On 19 October 2010, Dr Davison found no evidence of muscle wasting in the right forearm or right hand. He found the right hand had a slightly mottled colour and was slightly colder to touch but felt this was “probably consistent with lack of spontaneous movements”.[13] He noted that clinical examination was again very limited with “pain behaviours predominant”.[14] He repeated his earlier diagnosis, although he noted that clinically there was insufficient evidence to support that diagnosis. He felt that psychosocial factors along with the traumatic injury suffered in June 2008 were impacting on the plaintiff. He felt that she had undergone extensive rehabilitation without benefit and that no other treatment was likely to alter her clinical outcome. He felt that she was permanently incapacitated for all employment.
[13] DCB 38.
[14] DCB 39.
34 Professor Jones provided a medico-legal report dated 16 February 2010 in which he noted that apart from the complaint of pain and abnormal movements of the right hand, “which do not appear to conform to a centrally based tremor syndrome”[15], there were no abnormal psychiatric features to her presentation, with no impaired affect and no evidence of depression or anxiety. He felt it was possible that she suffers from a regional pain syndrome but also felt she shows abnormal illness behaviour. He felt that while he could establish no causal basis for a diagnosis of conversion disorder, there did appear to be a significant conversion component to her presentation. Ultimately, he diagnosed a pain syndrome for which he felt her current treatment, including attendance at a pain management clinic, was appropriate. He felt that she had no current work capacity but felt that she should be reviewed in six months in relation to see whether there is sufficient evidence to make a diagnosis of conversion disorder.
[15] DCB 4.
35 On 5 October 2010 Mr Jones stated that she continued to suffer from a regional pain syndrome and “probably”, albeit “incompletely diagnosed”[16] conversion disorder which were precipitated by the physical injuries to the right shoulder sustained in the incident. He felt that her present symptoms precluded a return to work.
[16] DCB 13-14.
36 Dr Castle provided a medico-legal report dated 14 April 2010 in which he noted that on examination her right arm was very sensitive to light touch and her right hand was swollen and discoloured and shook when she tried to move it. He diagnosed neuropathic pain and complex regional pain syndrome and noted that “the extent of these injuries is severe”.[17] He noted that all treatment options had been tried unsuccessfully. The only remaining future treatment might be cervical sympathectomy but he felt this was a major procedure and could make things much worse. He recommended that she continue her present medications. He felt that her right arm was virtually useless and continued to cause her severe pain. He felt that she had no capacity for any employment and, given the severity of her pain and the results of the physical examination, that it was most likely that her injuries would persist indefinitely. On 29 November 2010 Dr Castle found marked hypersensitivity of the right arm with shaking and discolouration, as well as marked wasting of her right suprascapular muscles, right rhomoids and right deltoid. His opinion remain unchanged. She has neuropathic pain and complex regional pain syndrome and is permanently incapacitated for all employment due to her right shoulder/arm pain and restrictions.
Vocational assessment reports
[17] PCB 148.
37 CoWork Pty Ltd provided an assessment dated 30 September 2010 which noted that the plaintiff appeared very motivated to return to work and that she had requested funding for the installation of voice recognition software on her laptop which would reduce the need for repetitive keyboard work. On this basis, three occupations were proposed as suitable employment options for the plaintiff: administration assistant, telephone counsellor and community engagement and programs facilitator.
38 Katrine Green provided an assessment dated 15 November 2010, in which she noted the plaintiff’s training and work history in graphic design and child care and teaching in aged care and disability. She noted that the plaintiff has competent computer skills. She felt that her transferrable skills would lead her to work in graphic design and administration work which would be difficult because there would be considerable need to use a computer and this was not possible with her right arm injury. She considered the suitable employment options suggested by the Workstreams report and concluded that with her right arm pain and restrictions the plaintiff would not be able to perform the occupations of inquiry clerk, telemarketer, or call centre operator. She also noted the medical opinion to the effect that her incapacity for all work was permanent.
Legal principles
39 The plaintiff must establish that she has suffered a permanent serious impairment or loss of a body function whose consequences to her in terms of pain and suffering and loss of earning capacity are, when judged by comparison with other cases in the range of possible impairments or losses of a body function,[18] fairly described as being more than significant or marked, and as being at least very considerable.[19] Decisions as to whether an injury is serious involves elements of fact, degree and value judgement.[20]
[18] See section 134AB(38)(b) of the Act.[19] See section 134AB(38)(c) of the Act.[20] Fleming v Hutchinson (1982) 66 ALJR 211.40 A consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.[21] The proper analysis involves establishing that the plaintiff suffered compensable injury after 20 October 1999, establishing what that injury was, determining the consequences which the plaintiff alleges have resulted and determining that those consequences were materially contributed to by the compensable injury and finally, determining whether those consequences meet the very considerable level in terms of pain and suffering and loss of earning capacity.[22]
[21] Grech v Orica Australia Pty Ltd [2006] VSCA 172 at [58].[22] Ibid at [80].41 The psychological or psychiatric consequences of a physical injury are not to be taken into account in an application confined to paragraph (a) of the definition of “serious injury”.[23] Accordingly, so far as the evidence allows, the Court must identify and exclude from consideration, any pain and suffering consequences which cannot be shown on the balance of probabilities to have an organic or physical basis. This requires exclusion of any pain and suffering consequences which result from or are a manifestation of any recognised psychiatric condition (eg depression, adjustment disorder); chronic pain syndrome or disorder; functional overlay; exaggeration of symptoms, whether conscious or unconscious; or any other aspect of the plaintiff’s psychological response to the physical injury.[24] Where the Court is unable to strip aside the pain and suffering consequences in this way, ordinarily a plaintiff must fail, since the Court cannot be satisfied on the balance of probabilities that the organically-based pain and suffering consequences satisfy the statutory criterion (“more than significant or marked, and….at least very considerable”).
[23] See section 134AB(38)(h) of the Act.[24] Mutual Cleaning and Maintenance Pty Ltd v Anastasia Stamboulakis [2007] VSCA 46 per Maxwell P at p4-
42 However, where the evidence is consistent with the plaintiff having suffered both physical and psychiatric injury, if the nature of the medical evidence permits the conclusion that the consequences of the physical injury constitute a serious injury, then no stripping away may be required.[25]
[25] Biserka Zivolic v Hella Australia Pty Ltd – BC200705132, 3750 of 2006, per Redlich JA at [19]; Shock
43 The whole of the evidence before the court should be considered, not just the medical evidence.[26]
[26] Ibid [85]. See also Sarath Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167 at [170].44 The combined effect of sections 134AB(16), (38)(d),(h) and (i) of the Act is that the plaintiff must establish on the balance of probabilities that she has suffered a work-related permanent severe mental or permanent severe behavioural disturbance or disorder. The consequences of her mental illness or disturbance in terms of pain and suffering and loss of earning capacity must, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, fairly be described as being more than serious to the extent of being severe. The psychological consequences of a physical injury as well as the physical consequences of a mental disorder may be taken into account in determining whether she has suffered a serious injury within the terms of sub-paragraph (c) of the definition of “serious injury” in section 134AB(37) of the Act.
45 Where loss of earning capacity is alleged, leave to issue proceedings is not to be granted unless the plaintiff establishes that, as at the date of the hearing, as a result of the injury she has suffered a permanent loss of earning capacity of 40% when a comparison is made between her without injury earnings in the three year period before and after period as best reflects her earning capacity, and his earning capacity at the present time from suitable employment.[27] The plaintiff will not establish the requisite loss of earning capacity if, after taking into account her physical or mental capacity for suitable employment[28] after the injury and his attempts to participate in rehabilitation or retraining, she has a capacity for any employment which, if exercised, would result in her earning more than 60% of her pre-injury earnings as determined in accordance with paragraph (f) of section 134AB(38) of the Act.29
[27] See section 134AB(38)(e)(i) and (38)(f) of the Act.[28] The definition of “suitable employment” is set out in s.5(1) of the Act and requires regard to the nature of
46 Where a plaintiff claiming to have suffered serious injury consequences in terms of both pain and suffering and loss of earning capacity satisfies the loss of earning capacity requirements of s.134AB, that plaintiff is entitled to claim damages for both loss of earning capacity and pain and suffering. It is therefore not necessary for the Court in those circumstances to determine whether the plaintiff has established the pain and suffering limb of her application.30
Findings and reasons
47 The plaintiff relies, albeit secondarily to the claim under sub-paragraph (a) of the definition of serious injury, on a conversion disorder allegedly diagnosed by Professor Jones. I note that Professor Jones went only so far as to say that there was an incompletely diagnosed conversion disorder, but no other psychiatric condition such as depression or anxiety. He was alone in making this tentative diagnosis. I note that the plaintiff has not received any psychological treatment for this or any other psychological condition. I am not satisfied on the evidence before me that this condition is established, nor that it is permanent. I am therefore not satisfied that the plaintiff has suffered a work-related permanent severe mental or permanent severe behavioural disturbance or disorder.
48 As to the application under sub-paragraph (a) of the definition of serious injury, I am satisfied on the evidence before me for the following reasons that the plaintiff has suffered a permanent serious impairment or loss of a body
return to work plans, and occupational rehabilitation services “regardless” of whether the work is available
| 29 See section 134AB(38)(g) of the Act. | or is of a type or nature that is generally available in the employment market. |
30 See Advanced Wire & Cable Pty Ltd and Victorian WorkCover Authority [2009] VSCA 170 per Redlich JA
and Beach AJA at [63].
function whose consequences to her in terms of pain and suffering and loss of earning capacity are, when judged with other cases in the range of possible impairments of losses of a body function, fairly described as being more than significant or market, and as being at least very considerable.
49 Firstly, I found the plaintiff to be a straightforward witness and I accept her evidence concerning her pain, restrictions and inability to resume employment. I viewed the extracts of video surveillance and do not consider that the activities performed by the plaintiff therein detract in any way from her credit. In particular, although she does use the right arm when turning the corner and when sorting through some objects in a shopping basket, these activities are not inconsistent with the restrictions claimed by the plaintiff. She does not claim that she can not lift the arm or use the right hand at all, but rather that doing so causes pain and she avoids using it.
50 Secondly, the weight of the medical evidence (from Dr Di Marco, Mr Lynch, Mr Pullen, Dr Courtney, Dr Thomas, Dr Davison and Dr Castle) is to the effect that, and I therefore find, the plaintiff has suffered an injury to the right shoulder in the incident which resulted in tendonitis, some AC joint arthropathy, as well as neuropathic pain and complex regional pain syndrome. Mr Dooley felt that there was no organic orthopaedic basis for her ongoing complaints, but I prefer the specialist opinions of Dr Kostos, Dr Thomas, Dr Castle, Dr Davison and Mr Pullen in relation to the appropriateness of the diagnosis of complex regional pain syndrome. I note that even Mr Dooley commented on the genuineness of her presentation.
51 Thirdly, the weight of the expert opinion (from Dr Davison in 2010, Dr Castle, Dr Kostos and Dr Di Marco) was that the plaintiff is permanently incapacitated for all employment by virtue of her complex regional pain syndrome and her neuropathic pain.
52 Fourthly, it is clear from the reports of Mr Pullen, Dr Courtney, Dr Castle and Dr Di Marco that every modality of treatment has been tried, without success in alleviating what have been described by Dr Thomas as her “very severe” problems. She has had injection into the shoulder, infusions of Phentalomine, Ketamine and Magnesium, and trials of medication including Prednisolone, Endep and Topamax. She continues to require substantial daily doses of a variety of medications including: Adalat, Baclofen, Endep, Endone, Lyrica and Panadeine Forte. She continues to require physiotherapy twice weekly and hydrotherapy five times per week. Notwithstanding the medication and allied therapies, she continues to suffer severe persistent right shoulder pain and other symptoms.
53 While most treatment modalities have been tried unsuccessfully, there remains one treatment modality – neuromodulation – which has been proposed but for which approval has not been forthcoming from the defendant’s insurer. There is no suggestion on the part of doctors who propose this trial that it will lead to an abatement of her symptoms sufficient to enable a return to work. On the material before me, therefore, I am satisfied that her work capacity has been permanently extinguished by the right shoulder injury.
54 It follows that the loss of earning capacity consequences of the right upper limb impairment are more than considerable when compared with other cases in the range of right upper limb impairments, and that the plaintiff has made out the required statutory threshold in terms of loss of earning capacity.
Conclusion
55 Leave is granted to the plaintiff to issue proceedings for the recovery of damages for loss of earning capacity and pain and suffering in respect of the injury to the right upper limb sustained on 2 June 2008 during the course of her employment with the defendant. I reserve the question of costs.
5.
Records Pty Ltd & Anor v Matthew James Jones [2006] VSCA 180 per Bell, AJA at [68]-[72]; Sarah
Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167 per Ashley JA at [23]-[30].
the worker’s incapacity, pre-injury employment, age, education, skills, work experience, place of residence,
0
5
0