Gallace, Josephine v Sensis Pty Ltd
[2009] VCC 1002
•13 July 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-07-00036
| JOSEPHINE GALLACE | Plaintiff |
| v | |
| SENSIS PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 18, 19 and 20 May 2009 |
| DATE OF JUDGMENT: | 13 July 2009 |
| CASE MAY BE CITED AS: | Gallace, Josephine v Sensis Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1002 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985,
s.134AB(16)(b) – serious injury application – general damages and pecuniary loss –
Nature and extent of injury - causation and aggregation of injuries.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C J Blanden SC with | M W Law (Mitcham Whitelaw |
| Mr A E Hill | Pty Ltd) | |
| For the Defendant | Mr R J Stanley QC with | Minter Ellison |
| Mr P Kozicki | ||
| HIS HONOUR: |
1 In this proceeding, the plaintiff seeks leave to commence proceedings pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to recover damages for pain and suffering and loss of earning capacity arising out of an injury suffered in the course of her employment with the defendant between December 1997 and April 2001.
The Issues
2 It is alleged by the plaintiff that by reason of the duties which she was required to perform in the course of her employment with the defendant, which involved constant manipulation of a computer mouse, she developed lateral epicondylitis of the left elbow. Additionally or alternatively, the plaintiff alleges that she has developed a permanent severe mental and permanent severe behavioural disturbance or disorder in the form of depression and a chronic pain disorder.
3 It is further put by the plaintiff, that:
• by reason of the condition in her left elbow she ceased working in or about April 2001; • in about July 2001, the plaintiff commenced to experience pain in her right elbow by reason of the fact that she had increased the use of her right arm in order to protect her left arm given the presence of the symptoms in that limb. 4 The plaintiff was diagnosed as suffering from medial epicondylitis of the right elbow in September 2001. In these circumstances it is the plaintiff’s case that the injury and resultant incapacity from which she suffers in her right elbow are a direct consequence of the employment-related injury to her left elbow.
5 The defendant:
•
asserts that the impairment occasioned to the plaintiff as a consequence of the injury to her left elbow, both in physical or psychiatric terms, does not give rise to a “serious injury” within the meaning of the provisions of the Act;
• takes issue with the cause of the plaintiff’s symptoms in her right elbow; •
asserts that, in the absence of a finding that the symptoms in the plaintiff’s right elbow were caused by her need to increase the use of her right arm in order to protect her left arm by reason of the work-related injury to that arm, the impairment to the plaintiff’s right arm cannot be relied upon by the plaintiff in this proceeding.
The Plaintiff’s Evidence
6 In an affidavit sworn 30 January 2006, the plaintiff deposed that:
•
she was right-handed and that before her injury she enjoyed cooking, shopping, gardening, sewing, home duties, and that she was a keen skier and would ski every snow season.
•
she commenced employment with the defendant on 15 December 1997 where her duties required her to use her left hand to operate a computer mouse and to write with her right hand throughout the course of her working day.
•
her symptoms first manifested themselves in or about February 2001 in the form of the gradual onset of pain in her left elbow. The plaintiff deposed that with the onset of her symptoms she commenced to use her right hand to operate the mouse and that thereafter she developed symptoms in her right arm which were brought on by “overuse compensating for the left arm injury”.[1]
•
She returned to work with the defendant in approximately April 2003, performing restricted duties. Initially the plaintiff was working 2 hours a day, 3 days per week and eventually she increased her hours to 15 hours per week. The plaintiff ceased working for the defendant early in 2004. Subsequently, the plaintiff found employment with APB Marketing, which she commenced on 18 July 2005. At the present time the plaintiff is working an average of 15 hours per week in that employment.
•
She presently suffers from pain in both her arms which was aggravated by activities such as pulling, gripping or picking up objects; washing her hair; driving; performing household duties such as cleaning; or any activity requiring the repetitive use or the application of strength by her arms.
•
At the present time the symptoms in the plaintiff’s right elbow are significantly worse than those in her left elbow.
•
The plaintiff suffers from anxiety and depression associated with her injuries. This condition is managed by her general practitioner who has prescribed Prozac for her use.
[1] Plaintiff’s Court Book (“PCB”) 9
The Plaintiff’s Evidence in Cross-Examination
7 The plaintiff gave evidence that she commenced her job as a receptionist with APB Marketing in July 2005. Prior to commencing that employment, the plaintiff applied for a number of jobs, including employment in sales with David Jones. The plaintiff said that she could not remember the jobs for which she had applied, she said however that they would have involved sales work and at the time she applied for those positions she felt she would have been capable of performing them.[2]
[2] T 10 – T 14
8 The plaintiff described the duties involved in her present work as involving taking phone calls from male clients of the escort agency with which she is employed and passing on details to the selected escort. In undertaking this work, the plaintiff was not required to make use of her left hand as she employed a headset to monitor phone calls and made notes with her right hand on a piece of paper. On average the plaintiff received four calls per hour and between calls she could take rests as she required.[3] On average the plaintiff performed her duties for approximately 15 hours per week. Currently the plaintiff is working 3 days per week, namely Sunday, Monday and Tuesday.
[3] T 17 – T 18
9 The specific activities the plaintiff was required to perform in the course of her work were described by her as keying in the program to activate her headset which involved pressing six digits on a keyboard, taking notes with her right hand, dialling the telephone number of the appropriate escort and dialling the telephone number of the client to confirm the booking and to obtain credit card authorisations. This whole cycle was described as taking approximately 10 minutes and would be repeated three or four times on average per hour.[4]
[4] T 34 – T 36
10 The plaintiff generally commenced work at approximately 7.30 am and left her place of employment at 2.30 to 3.30 pm. She described her place of employment as a home away from home. She said that her employer provided her with a television and a bed upon which she could rest and that she was able to lie down and to take breaks according to her needs.[5] The plaintiff said that her work aggravated the symptoms in her elbows.[6] When questioned as to the activities which might aggravate the condition in her left elbow, the plaintiff described activities such as blowing her nose, combing her hair, brushing her teeth – “It could be anything”.[7]
[5] T 29
[6] T 30 – T 31
[7] T 32
11 It was put to the plaintiff, that on various dates during 2008 she remained at work for between 8 and 10 hours a day. This was not disputed by the plaintiff.[8] It was put that this was typical of the sort of time which the plaintiff had spent at work during the period of the last two years, to which the plaintiff generally agreed.[9] The plaintiff said however, that notwithstanding that she might remain at work for periods in the vicinity of 8 hours a day, she was not paid for more than 16 or so hours a week and that she earned in the vicinity of $250.00 per week in this employment.[10]
[8] T 42
[9] T 42
[10] T 43
12 The plaintiff was taken to an application made by her for a personal loan with the Westpac Bank.[11] In submitting the application for a loan in the sum of $384,000, the plaintiff agreed that she had signed a document which described her as being employed on a full-time basis as a self-employed bookkeeper in which occupation her gross annual income was $75,000 per annum. In a personal finance application submitted by the plaintiff on 7 March 2007, the plaintiff made similar assertions as to her employment and level of earnings. The plaintiff said that these documents were prepared for her by a broker to whom she had been introduced by her son. She said that:
[11] T 45
• the broker prepared the paperwork and that she signed it without first reading its contents; • before signing the document she had provided the broker with the full facts relevant to her employment and income. 13 The plaintiff accepted that the statements made in the loan documents were incorrect with respect to the level of her income, the nature of her employment (namely that she was engaged in full-time employment) and the capacity in which she was employed. She said that she did not know where the information contained in the financial application came from and that the first time she became aware that the documentation contained false information was when she was specifically taken to the documentation in the course of her cross-examination.[12]
[12] T 47 – T 53
14 The plaintiff accepted that she had submitted a claim for impairment benefits on 16 October 2002 in which described the circumstances in which she had suffered her injury as follows:
“I was walking to Reservoir station in the morning when I suddenly felt a
sharp pain in my left elbow.”[13]
[13] Defendant’s Court Book (“DCB”) 4
15 The plaintiff said that the report did not accurately describe the circumstances in which her symptoms developed. The plaintiff maintained that the symptoms in her left forearm came on in association with the repetitive use of a computer mouse and that –
“The injury did not occur as I was walking to the station. I said that the pain got more intense walking to the station. The injury was already there and what I said was that it wasn’t a premeditated appointment. I didn’t make an appointment and that’s how come I got to see Dr Szczepanik. I walked into the surgery because the pain got so much more intense that I couldn’t make it to work but the injury was already there. The injury started at work when I asked for an armchair so that I could rest my elbows.”[14]
[14] T 57
16 As to the causation of the symptoms in her right arm, the plaintiff said:
[15] T 57 – T 59
• that she was absent from work by reason of her injuries between March 2001 and April 2003, and that the symptoms in her right elbow did not become a problem for her until approximately August 2001; • that following the onset of symptoms in her left elbow, she commenced operating her computer mouse with her right hand and rested her left arm by employing her right arm for all activities, including dressing and grooming.[15] 17 On returning to employment with the defendant in 2003, the plaintiff undertook modified duties in a position that was only open for a limited period of time. Subsequently, the plaintiff went on a three-month trip to Europe, and upon her return she was told that her employment had been terminated.
18 The plaintiff gave evidence:
• that at the present time her right arm was much worse than her left; •
that the condition in her right elbow is much the same as it was in 2002 and that the condition in her left elbow is better than it was in 2001-2002;[16]
• that she set her hours of work in accordance with her symptoms; •
that she could not tolerate more than 16 hours of work per week as increasing her hours resulted in an increase in the intensity of her pain.[17]
[16] T 76
[17] T 77
The Presentation of the Plaintiff
19 It was submitted on behalf of the defendant that the plaintiff’s credit was seriously undermined by the way in which she gave her evidence. Specifically it was put:
•
That the plaintiff demonstrated a deliberate reluctance to answer questions which she perceived were harmful to her interests.[18]
•
That the plaintiff was deliberately evasive and was prone to making speeches to avoid making admissions.[19]
•
That the plaintiff’s credit was impugned by the “fraudulent” application made by her to secure her loan.[20]
•
That the plaintiff’s true activity at her workplace required close scrutiny. It was submitted on behalf of the defendant that it defied belief that the plaintiff was paid only for 5 hours’ work when she was usually present at the workplace for 8 hours. It was submitted that the absence of corroboration of this point was a significant omission in the plaintiff’s case.[21]
•
That every doctor who has expressed an opinion as to the plaintiff’s capacity for work which was of assistance to her expressed that opinion:
[18] T 145
[19] T 145
[20] T 145
[21] T 147
(i) upon the basis of an acceptance of the plaintiff’s statements that she could not tolerate working more than 15 hours per week having regard to her symptoms;
(ii) in the absence of any knowledge of the precise activities involved in the plaintiff’s work which were described by her in her evidence.
20 I accept the defendant’s submission that the plaintiff was a poor historian. I do not however, regard her failure to be able to recall the names of the employers to which she had applied for work before securing her present job as being of great significance having regard to the obvious anxiety the plaintiff experienced whilst giving her evidence.
21 Observing the manner in which the plaintiff gave her evidence, in the absence of taking into account any of the medical evidence in the case, raised concerns in my mind as to whether the plaintiff was a reliable witness. By the conclusion of the plaintiff’s cross-examination, I was uncertain whether I should generally accept her evidence as being reliable particularly having regard to:
(i)
the absence of any corroboration, by the service of additional affidavit material, which supported her alleged incapacity;
(ii)
the plaintiff’s evidence as to the state of her knowledge of the material contained in her loan application.
The Evidence Relevant to the Plaintiff’s Psychiatric Injury
22 The content of the various psychiatric assessments undertaken upon the plaintiff which are relied upon by the parties in this application may be summarised as follows:
•
Dr George Wahr, psychiatrist, in medical reports dated 6 September 2005, 8 April 2008 and 3 April 2009, described the plaintiff as presenting with an anxious and depressed affect and opined that she had developed an agitated depressive reaction as the result of her injury. The plaintiff described to Dr Wahr that she suffered from a poor memory and a poor concentration span which moved Dr Wahr, after the performance of a mental status examination which showed the plaintiff’s concentration only to be reasonable, to advise the plaintiff that she should not drive.[22]
•
Dr Nathan Serry, psychiatrist, who examined the plaintiff on 20 February 2003, described the plaintiff as suffering from major depression. He also obtained a history from the plaintiff of difficulty concentrating.
•
Dr Barrie Kenny, psychiatrist, who examined the plaintiff on behalf of the defendant on 17 July 2003, obtained a history from the plaintiff that her memory and concentration levels fluctuated, that she felt very down and that “sometimes she just likes to go away and hide”.[23] Dr Kenny opined that he considered the plaintiff was attempting to give a good account of herself, and that she was suffering from a mild adjustment disorder which was secondary to her physical injuries.
•
On 17 March 2003, the plaintiff was assessed by Dr Leon Fail, psychiatrist, on behalf of the defendant, who obtained a similar history to that given to Dr Kenny. Dr Fail expressed the opinion that the plaintiff was suffering from a chronic adjustment reaction which arose as a consequence of and secondary to her physical injury.
•
On 15 May 2008, the plaintiff was examined by Mr Timothy Entwisle, psychiatrist, on behalf of the defendant. Mr Entwisle expressed the opinion that the plaintiff was suffering from a chronic pain syndrome and an adjustment disorder with depressed and anxious mood.
[22] PCB 81
[23] PCB 45
23 In a proceeding in which the plaintiff’s credit has been put in issue, it is significant, in my opinion, that none of the five psychiatrists who have assessed the plaintiff have suggested that the plaintiff was doing anything other than giving a truthful account of her symptoms.
The Medical Evidence as to the Plaintiff’s Physical Disability
24 A significant issue arises as to whether the plaintiff suffers from any organic symptoms associated with epicondylitis in either her left or right elbows. The medical evidence with respect to this issue may be summarised as follows.
25 Mr John Owen, an orthopaedic surgeon, came to treat the plaintiff in respect of her left epicondylitis at the referral of the plaintiff’s general practitioner, Dr Szczepanik. Having regard to his examination of the plaintiff which confirmed the presence of lateral epicondylitis of the left elbow, Mr Owen injected the common extensor origin of the left elbow with local anaesthetic and steroid. In September 2001, he administered ultrasound-guided shockwave treatment to the plaintiff with no resolution of her symptoms. At that time Mr Owen diagnosed the plaintiff as suffering from right epicondylitis which he treated with an injection into the right medial epicondyle. Following his examination of the plaintiff in February 2002, Mr Owen opined:
“I suspect that the patient will eventually settle down. Usually conservative treatment in the form of injections or ultrasound-guided shockwave treatment will modify the patient’s pain substantially. Surgery is reserved for recalcitrant cases and, of course the long-term outlet is usually fine, with no association with degenerative change or loss of function in the elbow in the long-term. The patient remains incapacitated to a mild degree for a period of time. I am not quite clear why this patient has stopped work because of epicondylitis. The symptoms are usually annoying and with modification of job activity it is possible to work, including using a computer.”[24]
[24] PCB 58
26 In the course of cross-examination, Mr Owen described epicondylitis as involving recurrent minor tearing of the tendon and the flexor and extensor forearm masses which do not repair.[25] Mr Owen did not accept the proposition that the onset of the symptoms in the plaintiff’s right arm could not have been associated with the plaintiff’s increased use of her right arm in the course of protecting her left arm. When the plaintiff’s evidence in this regard was put to Mr Owen, he commented:
“I see the picture and I see it commonly and I don’t always understand it. I don’t sit in judgment. You are asking me to sit in judgment. I can’t help you.”
Mr Owen continued:
“What I see often is people, if you like, with a background of this weakness become symptomatic, and they say ‘I became symptomatic at work’. Sometimes it’s obvious, they’re doing a task which is heavy, a labourer, for example, using heavy tools. To someone it doesn’t seem to be very onerous like this. I don’t always understand it. I don’t question it. I just accept that there is an association in the patient’s mind between what they do and their symptoms. It’s not really for me, you know, if you’re asking me what you’re asking me is what ergonomic proof is there that someone using a mouse develops lateral epicondylitis? As an expert I have no evidence. You’re asking me as a layman more or less.”[26]
[25] T 64
[26] T 67
27 When asked whether the plaintiff’s presentation was consistent with the presence of a physical problem in both arms, Mr Owen responded:
A:
“Yes. I mean, I don’t really hesitate. I’m usually very sensitised to that sort of thing that people aren’t – you know – they’ve got pain – we talked about the RSI thing and pain all over the place, you become very sensitised, especially where there’s a condition that you know may end up in surgery, you know, you want to make sure you’re on a winner so you’re very sensitised to matching their story to the physical signs to their response to something like an injection.
Q: So back in 2001 up to March 2002, I think when you last saw her,
you had no doubt about the diagnosis in either side?---A: No.”[27] [27] T 69
28 Mr Owen said that the natural history for epicondylitis was for a resolution of that condition.[28] Whilst he expressed the opinion that he was surprised that the plaintiff’s outcome had been so devastating for her,[29] he was not prepared to accept the validity of medical assessments undertaken in 2008 and 2009 which revealed that there was no evidence of lateral or medial epicondylitis in either of the plaintiff’s elbows without undertaking a re-examination of the plaintiff.[30]
[28] T 71. I understood this evidence of Mr Owen to be indicating an opinion that although the chronicity of the plaintiff’s symptoms surprised him, he was not prepared to rule out the fact that there was an organic basis for those symptoms. Finally, Mr Owen expressed the opinion that surgery was not always successful.
[29] T 71
[30] T 72. I interpreted this comment by Mr Owen as suggesting that whilst the natural history for epicondylitis was for eventual resolution of the condition, this was not always the case.
29 The plaintiff relied on a number of medical reports from her treating general practitioner, Dr Szczepanik, who also gave evidence in the proceeding. In the course of her evidence, Dr Szczepanik:
• expressed the opinion: (i) that the plaintiff’s symptoms in her right elbow were initiated by the plaintiff protecting her left arm;[31]
(ii) that the plaintiff’s employment with the defendant was a contributing factor to the onset of symptoms in her left elbow;[32]
[31] T 88
[32] T 89
•
was of the opinion that the plaintiff suffered from a bilateral organic condition which caused pain and disability in both her arms and was likely to be permanent.[33]
•
was of the opinion that the plaintiff was fit to engage in restricted work for only 15 hours per week by reason of the physical effects of her bilateral condition;[34]
[33] T 97
[34] T 91
30 Dr Szczepanik was clearly of the opinion that the plaintiff’s anxiety and depression was secondary to the plaintiff’s pain and incapacity.[35] She did not however accept that the plaintiff was suffering from agitated depression. Nor did she accept that the plaintiff was suffering from major depression.[36]
[35] T 105
[36] T 107 – T108
31 Whilst it was put on behalf of the defendant that Dr Szczepanik merely accepted the plaintiff as she presented and that her opinion was not persuasive because she had not undertaken a forensic analysis as to the cause or extent of the plaintiff’s organic symptoms, I do not accept this criticism of Dr Szczepanik. To the contrary, Dr Szczepanik impressed me as a competent and caring general practitioner who was in a good position to comment upon the plaintiff’s symptoms and level of incapacity having regard to the period of time during which she had managed the plaintiff’s injuries. Given the chronicity of the plaintiff’s symptoms and the consistency of her complaints, I do not consider it unreasonable that Dr Szczepanik had not recently tested the plaintiff’s upper limbs for the purpose of assessing the presence of organic signs of injury. I note that in the course of her evidence the findings recorded by Mr Tony Kostos[37] in the course of his examination of “collapsing weakness proximally and zero grip strength distally” were put to Dr Szczepanik.[38] While Dr Szczepanik conceded that she had never undertaken the test performed by Mr Kostos, which had elicited the response described by him, she said that she had tested the plaintiff’s movement in her elbows and found them to be restricted and that the plaintiff had never presented to her in the manner described by Mr Kostos.[39]
[37] Mr Kostos examined the plaintiff on behalf of the defendant on 19 March 2008 and 11 April 2009
[38] T 99
[39] T 101. Notwithstanding the fact that Dr Szczepanik had not undertaken the specific strength tests performed by Mr Kostos, I find it highly unlikely that, if the plaintiff had presented to Dr Szczepanik with the disability which was commented upon by Mr Kostos, that such a gross disability would have escaped her attention.
32 In her report dated 7 May 2009, Dr Szczepanik concluded:
“Mrs Gallace suffered significant injury at work and she had all possible conservative treatment and despite that, her improvement is such that she can only work 16 hours per week in a different job to what she was trained. She still suffers pain in both elbows and both shoulders and headaches. Because of all that, she is depressed and had to take anti- depressants and analgesia. Since 2001 the situation has improved but only marginally.
As I mentioned, she is limited to work her job for 16 hours per week, living, (sic) suffers loss of income, position, and has lots of difficulties with her house duties.”[40]
[40] PCB 41
33 Dr Alex Stockman, a rheumatologist, examined the plaintiff on 23 November 2004. He opined:
“Ms Gallace has severe and incapacitating pain in the elbows and pins and needles and numbness in the upper arms. The degree of incapacity is described above. In my view the symptoms may be partially related to epicondylitis (inflammation of the tendons attached to the epicondyles of the elbows), but the degree of disability and the clinical findings are not entirely explained by this condition. It is my opinion that she has a chronic pain syndrome that is hypersensitivity of the nerve fibres around the elbows, perhaps magnified by psychological factors. Presently Ms Gallace has no capacity for full-time work but could perform light, non- repetitive work on a part-time basis perhaps 15 hours per week.”[41]
[41] PCB 47
34 I interpret Mr Stockman to be expressing an opinion that the plaintiff’s symptoms are primarily organic in origin and that psychological factors, if present, magnified a primarily organic condition. I further interpret Mr Stockman’s assessment as to the plaintiff’s capacity to work to be based primarily upon the presence of her organic condition.
35 The plaintiff was examined by Dr Peter Mangos, a general surgeon, on 7 April 2008. Dr Mangos opined:
“It is beyond question that she has developed a tendonitis of the elbows,
lateral epicondylitis on the left side and a medial one on the right side.”
He continued:
“The conditions have smouldered since that time and she has not responded to injections of cortisone on each side and has not had surgery performed. These certainly reveal evidence of symptoms and this no doubt is exacerbated by her mental state with anxiety, depression and frustration. I note that George Wahr stated that this lady is suffering from agitated depressive reaction as a consequence of her work.
I consider that her injuries have well stabilised and that they can be accepted as being permanent.”[42]
[42] PCB 87 - 88
36 As to the plaintiff’s work capacity, Dr Mangos commented:
“I understand she is currently working 15 hours a week in similar work but much less strenuous. I think her working future is in doubt. It is most likely that she will not be able to continue working regularly, even in very restricted work for 15 hours a week. I think her ability to perform any sort of work more than 3 or 4 hours four or five times a week is in doubt and her prognosis for continuation of any work in the future is doubtful. This takes into consideration her physical state, her age and her experience.”
37 Dr Mangos undertook a further assessment of the plaintiff on 11 May 2009 in which he expressed similar opinions to those contained in his earlier report.
38 The plaintiff was assessed by Associate Professor Maurice Wallin, consultant in occupational health, safety, and legal medicine, on 18 October 2006 and 21 May 2008. Following his examination, which elicited symptoms consistent with the presence of bilateral epicondylitis, Professor Wallin opined:
“Whilst most lateral and medial epicondylitis conditions do ‘burn out’, that is recover over a one to two and sometimes longer period, the fact that your client’s condition has not recovered or improved to any significant degree over six years would regretfully point to a long-term poor prognosis and a significant improbability that her condition will actually ‘burn out’ or in other words improve to any significant degree.”[43]
He continued:
“I also confirm that Mrs Gallace did not appear to be engaging in abnormal illness behaviour notwithstanding the fact that she is depressed and stressed by her disabilities, but I have full confidence that she is currently working the maximum number of hours she could realistically work at this stage in the open labour market.”[44]
[43] PCB 101
[44] PCB 102
39 Professor Wallin further assessed the plaintiff on 21 May 2008. On that occasion he reported that palpation of the plaintiff’s left elbow revealed significant discomfort over the lateral aspect of the elbow and produced a degree of muscle spasm. Whilst he commented that the plaintiff had reasonably good grips, he noted the presence of strongly positive left and right resisted wrist flexion and extension which confirmed the presence of very active ongoing inflammation in the left and right lateral and medial epicondyle areas.
40 In describing the plaintiff’s presenting physical and mental condition at the time of this examination, Professor Wallin opined:
“I confirm that on this occasion she most definitely did not exaggerate or fabricate any of her clinical signs. Whilst in relation to her psychological status I confirm on a non-specialist basis that she does appear to be suffering from significant ongoing stress and from some degree of depression.
In spite of the fact that I recorded in my earlier report that she had an ongoing chronic pain syndrome, due to the fact that from my understanding that the words ‘chronic pain syndrome’ are often assessed by medical or non-medical persons as being totally psychogenic in nature, I confirm that your client does definitely have significantly active ongoing organically-based pain. Whilst I confirm that the magnification of her pain due to her stress secondary to her pain could only be assessable as minimal and therefore there is no doubt in my opinion that her actual pain level is very substantially organically- based.”[45]
[45] PCB 113. In the course of this report, Professor Wallin confirmed his previous opinion that the plaintiff’s ability to work was restricted to undertaking on a permanent basis no more than 16 hours per week in very light selected duties. I am of the opinion that the opinions of Dr Mangos and Professor Wallin as to the plaintiff’s capacity for work effectively dispose of the submission made on behalf of the defendant that the medical assessments of the plaintiff’s capacity for work were made purely on a subjective assessment of the plaintiff’s evidence and that had the various medical practitioners been made aware of the specifics of the plaintiff’s work duties, they may have revised their view as to the hours during which the plaintiff was capable of working. The use by Dr Mangos of the term “very restricted work” and the description by Professor Wallin of the plaintiff’s “present work activity”, which appears at PCB 114, supports my finding in this regard.
41 The injuries suffered by the plaintiff have been referred to three medical panels for their assessment. Each panel was comprised of three medical practitioners. As the result of an examination undertaken on 27 October 2003, the first medical panel called upon to assess the plaintiff’s disabilities assessed her as suffering from a 6 per cent whole person impairment resulting from the accepted physical injuries to her elbows and arms. This degree of impairment was assessed as being permanent.[46] As the result of a further examination on 9 March 2004, which related to the level of the plaintiff’s capacity for work, a further medical panel of three members expressed the opinion that the plaintiff was capable of undertaking further hours of work in her current position.[47] This panel assessment led to a further referral in December 2007 in which the issue was raised as to the capacity of the plaintiff to increase her hours of employment. The panel was asked to comment upon whether the plaintiff was capable of further suitable employment within the definition of “suitable employment” employed by the Act. Specifically the panel was asked to answer the following questions:
“Is the worker likely to continue indefinitely to be incapable of undertaking
further or additional employment or work because of the injury?”---
to which the panel responded:
“Yes”.[48]
[46] PCB 48a
[47] PCB 49a
[48] PCB 50. This answer made a response to the second question superfluous.
42 The fact that two separate medical panels, each comprising of three members, have expressed consensus opinions that:
ƒ the plaintiff suffers from a permanent organic impairment; ƒ that the plaintiff is permanently incapable of engaging in further or additional employment to that which she is presently undertaking;
in my opinion provides considerable support for the plaintiff’s case.
43 Dr Warren Kemp, consultant rheumatologist, who examined the plaintiff on behalf of the defendant on 27 July 2001 and 22 January 2002, accepted the fact that the plaintiff presented with left lateral epicondylitis at the time of his first assessment of the plaintiff, and further, that the plaintiff suffered from genuine organic symptoms in both her left and right arms at the time of his subsequent assessment in January 2002. Whilst in February 2003, Mr Kemp felt that the plaintiff’s nervous symptoms were an impediment to a return to employment, he opined that her bilateral epicondylitis, together with symptoms in her upper arms which may be due to secondary capsulitis at her shoulders, would be an impediment to further employment using a computer. I do not interpret Mr Kemp to be expressing an opinion that the symptoms of which the plaintiff complained in her left and right arm were other than organically-based.[49]
[49] DCB 29. It was Dr Kemp’s opinion that the plaintiff’s bilateral epicondylitis together with symptoms in her upper arms which may be due to secondary capsulitis at her shoulders, would be an impediment for further employment using a computer.
44 In a report dated 14 August 2003, Mr David Brownbill, consultant neurosurgeon, accepted the plaintiff was suffering from bilateral medial and lateral epicondylitis.[50]
[50] DCB 31
45 Mr Graham Peck, a general surgeon, in a report dated 1 January 2003, expressed the opinion that the plaintiff suffered from extensor tendonitis in her left elbow in respect of which her work was a significant contributing factor and a similar condition in her right side. Whilst Mr Peck opined that there was “an enormous non-organic apportion to this patient’s symptoms,”[51] it was his opinion at the time of his examination that the plaintiff was not fit for keyboard work involving her left hand and for any activity which involved the strenuous use of her left arm.[52] I interpret Mr Peck to be expressing the opinion, that notwithstanding the non-organic features of the plaintiff’s presentation, it was the organic injury to her left elbow which restricted her employment duties.
[51] DCB 40
[52] DCB 41
46 The defendant relies upon the medical reports of Dr Tony Kostos, rheumatologist, dated 26 March 2008 and 6 April 2009, in which Mr Kostos opines that the plaintiff does not have any evidence of lateral or medial epicondylitis and that her presentation relates to psychological and social factors. I am of the opinion that Dr Kostos has expressed an extreme view of the plaintiff’s presentation which has little persuasive effect. I note, notwithstanding an ultrasound examination of 11 April 2001 which confirmed the presence of tendonosis at the lateral epicondyle, and in the presence of a diagnosis of Mr John Owen, orthopaedic surgeon, that the plaintiff’s presentations to him in May and September 2001 were related to the presence of epicondylitis in her left and right elbows, that Dr Kostos expressed the opinion that it was extremely unlikely that the plaintiff had ever suffered from lateral or medial epicondylitis.[53] This comment made by Dr Kostos raises, in my mind, questions as to his impartiality as a witness.
[53] DCB 11
47 I note that the assessment of Prof Wallin was undertaken only eight weeks after the assessment of Mr Kostos in which he described an inability in the plaintiff to maintain wrist flexion or extension against the slightest resistance. The discrepancy between the findings of Prof Wallin those of Dr Kostos and the fact that Dr Kostos is the only medical practitioner to have elicited the findings which he described, moves me to further question the validity of the findings of Mr Kostos and the value of his opinion. I am not in these circumstances inclined to accept the opinion of Dr Kostos in preference to that of other medical practitioners who have expressed opinions in the case.
Findings as to the Plaintiff’s Credit and Reliability
48 As stated earlier, the plaintiff’s demeanour when giving evidence when combined with:
ƒ the evidence as to the hours which the plaintiff spent at her workplace; ƒ the misrepresentations made by the plaintiff in her loan application; raised in my mind considerable doubt as to the plaintiff’s reliability as a
witness.49 Having heard evidence from the plaintiff’s general practitioner who impressed me as being a competent doctor who was well if not best placed, to assess and comment upon the bona fides of the plaintiff’s presentation; and taking into account the medical evidence which has been submitted on behalf of both of the parties, I am not inclined to the view that the concerns which I had as to the plaintiff’s evidence and demeanour should be given significant weight in determining the issues which arise in this proceeding.
50 Although I accept that each of the criticisms made of the plaintiff on behalf of the defendant to which I have referred have some justification, I am of the opinion that those criticisms are to a large extent explained by the medical evidence as to the nature of the plaintiff’s emotional state for the following reasons:
(i) Each psychiatrist who has examined the plaintiff has opined that she suffers from genuine psychiatric symptoms of depression and anxiety. Dr Serry described the plaintiff as presenting with major depression; Dr Wahr was of the opinion that the plaintiff’s memory and concentration were so poor that she was incompetent to manage a motor vehicle; Dr Kenny, Dr Fail and Mr Entwisle each expressed the opinion that the plaintiff was suffering from an adjustment disorder; In these circumstances I do not accept that the criticisms made on behalf of the defendant of the plaintiff’s presentation and memory, should influence me towards a finding that the plaintiff’s case was undermined to any degree by the plaintiff’s demeanour when giving evidence in a forum which no doubt had a tendency towards heightening any symptoms of anxiety which she normally felt;
(ii) Further, on the basis of the psychiatric evidence to which I have referred, I consider that it is likely that the plaintiff would have been experiencing difficulties in coping with issues which arose in the course of her daily life and that this lessens to some extent the plaintiff’s culpability for failing to correct the details which had been inserted in the Westpac Bank loan application;[54]
(iii) Although the plaintiff’s evidence as to her habit of spending substantial time at work pursuing activities for which she was not paid, which could loosely be described as recreational is unusual in the extreme, the plaintiff made no attempt to hide that behaviour.[55] Whilst it was submitted that the plaintiff’s present employment by reason of the facilities provided to her and the modest nature of the duties which were entailed was a matter which should be viewed as being adverse to the plaintiff’s credit, I am not persuaded by this position.[56] Rather, I consider the fact that the plaintiff has sought to rehabilitate herself and has increased her work hours from an initial 9.5 hours a week to approximately 16 hours per week, to be something which impacts favourably upon the plaintiff’s credit;
(iv) I note that the defendant has admitted that the plaintiff had been subjected to surveillance over forty-eight days involving a total of 560 hours during which 33 minutes of film was taken of her. The fact that no evidence was adduced from those involved in undertaking the aforementioned surveillance is a matter which does not assist the defendant’s submission that I should not accept the plaintiff’s evidence as to her general level of incapacity or her capacity to engage in employment.
[54] In light of the assessment of Dr Wahr, that between September 2005 and April 2008, the plaintiff’s memory and concentration levels were such that they raised concerns as to her capacity to drive and that she was suffering from an agitated depressive reaction, I consider that the plaintiff’s anxiety and depression would make her more likely to accept and execute the loan documentation prepared for her by the broker retained by her son, without first checking its content.
[55] See the history given by the plaintiff to Mr Wallin that she did spend a full working day on site but was able actually to perform duties only for marginally over 5 hours per day: see the report of Associate Professor Wallin dated 21 May 2008, in particular at PCB 114.
[56] It was not suggested by the defendant in closing submissions that the plaintiff was misrepresenting the wage which she derived from her present employment, rather I understood the defendant’s position to be that the fact that the plaintiff was able to spend significant periods of time at work engaged in non work-related activity was an indicator that her capacity for work was greater than her asserted capacity of approximately 16 hours per week. Having regard to the evidence of Dr Szczepanik when combined with the assessment of the Medical Panel convened in December 2007, Professor Wallin and Dr Mangos as to the plaintiff’s capacity for employment, I do not accept that submission.
51 For these reasons I do not find that the plaintiff was deliberately evasive when giving her evidence or that her credit has been so damaged that I ought not to accept her evidence as to the extent of her symptoms and their impact upon her.
Findings as to the Cause and Extent of the Plaintiff’s Incapacity
52 There is no issue that the plaintiff’s left epicondylitis arose in the course of her employment. Nor was any issue taken as to the plaintiff’s evidence that with the onset of the symptoms in her left arm the plaintiff protected her left arm by making greater use of her right arm both in the course of her employment and whilst undertaking non-employment related activity.
53 Whilst there is evidence that epicondylitis is a degenerative condition, there is a general acceptance that the condition can be brought on by repetitive activity. I am satisfied, having regard to the coincidence in timing between the onset of the symptoms in the plaintiff’s right arm and the alteration in her behaviour borne of a need to protect her left arm by unnaturally increasing the activities which she undertook with her right arm, that the plaintiff’s right arm symptoms arose as a direct consequence of the injury to her left arm.[57]
[57] The relationship between the injury to the plaintiff’s left arm and the injury to the plaintiff’s right arm is supported by Dr Szczepanik and Mr Owen. Dr Wallin, Dr Mangos and Dr Stockman did not take issue with this causation point and I interpreted their reports as generally accepting the plaintiff’s history that her symptoms in her right arm came on by reason of her requirement to protect her left arm. Whilst Mr Kemp and Mr Peck expressed the opinion that the plaintiff’s employment was not a significant contributing factor in the cause of the plaintiff’s symptoms in her right arm, I interpret these comments as expressing the opinion that the specific activities involved in the plaintiff’s work did not cause the condition in the plaintiff’s right arm, having regard to the commencement of those symptoms well after the plaintiff had ceased performing the activities which had caused the condition in her left arm to develop. I did not interpret the comments of these two doctors as expressing the opinion that the plaintiff had not developed her right epicondylitis by reason of protecting her left arm( in this regard I note the concession made by Senior Counsel for the defendant at T 125).
54 In making this finding, I am reliant particularly upon the evidence of the plaintiff’s treating doctor, Mr Owen, who made a definitive diagnosis of lateral epicondylitis on the left side in May 2001 and medial epicondylitis on the right side in September 2001, which conditions were persisting at the time at which Mr Owen last saw the plaintiff in February 2002.
55 It was submitted on behalf of the defendant, that if I was satisfied that the plaintiff’s right epicondylitis arose as a direct consequence of the injury to her left arm, that the latter injury could be viewed simply as a consequence of the injury to the left arm in accordance with the approach of the Court of Appeal in Grech v Orica Australia Pty Ltd & Anor.[58] I accept this submission and accordingly I consider it appropriate when assessing the consequences of the injury to the plaintiff’s left arm to take into account the incapacity which is present as the result of the condition in both her left and right upper limbs.
[58] (2006) 14 VR 602
56 Although there is a considerable variance in the medical opinions which are relied upon by the parties as to the level of incapacity from which the plaintiff suffers on an organic-basis at the present time, with the exception of Mr Kostos, each of the medical practitioners who have expressed an opinion in the case, have accepted, at the time of their examinations of the plaintiff, that she suffered from organic symptoms of epicondylitis and the difference of opinion between those medical practitioners related to the presence of and effect of a regional pain syndrome which amplified the symptoms and disability associated with the organic condition.
57 For the reasons outlined in the course of commenting upon the medical evidence as to the organic nature of the plaintiff’s injury, the evidence satisfies me that the plaintiff has suffered and continues to suffer from organic symptoms of epicondylitis in both her left and right upper limbs, the effect of which has been to incapacitate the plaintiff in the manner described by her in her evidence.
58 I have commented earlier, when dealing with the medical evidence as to the plaintiff’s physical disability upon the statements made by some medical practitioners that the plaintiff was suffering from psychological factors which magnified her physical symptoms. With the exception of the opinion of Dr Kostos,[59] I interpret the medical evidence as supporting the finding which I have made that although the plaintiff’s presentation is influenced to some extent by emotional factors, her incapacity for employment stems primarily from the organic symptoms which are present in each of her arms. Although I am satisfied that the plaintiff is suffering from a significant psychiatric injury, I am not satisfied that the evidence establishes that the effects of this injury are such that the injury constitutes a permanent severe mental or behavioural disturbance or disorder as defined by the Act. In making this finding, I note in particular that the plaintiff has had very little treatment for her depression and anxiety and that whilst her general practitioner acknowledged the presence of those symptoms and prescribed medication in management of the same, there was no suggestion in her evidence that the plaintiff’s psychiatric injury was such that it should be regarded as serious in accordance with the criteria set out by the Act.
[59] which I do not accept for the reasons earlier given.
59 Whilst I accept that the general tenor of the evidence supports the proposition that the condition of epicondylitis is one which is generally associated with a reasonable prognosis for recovery, the evidence establishes that this is not invariably the case[60] and that in the present case, having regard to the chronicity of the plaintiff’s symptoms, that her symptoms and incapacity have stabilised at their present level.
[60] See the opinion of Professor Wallin, together with the opinion of the medical panel (a combined assessment of Dr Jane Trinca, Dr Michael Fogarty and Dr Dianne Neill, which, on 8 December 2003, expressed the view that the impairment from which the plaintiff was suffering in her elbows and arms was permanent), I am satisfied, having regard to the evidence of Dr Szczepanik, Professor Wallin, Dr Mangos and Mr Owen that the plaintiff’s epicondylitis falls into this category.
60 I have previously observed that I considered the plaintiff’s general practitioner to be well placed to express an opinion as to the plaintiff’s capacity for work. Her opinion that the plaintiff’s maximum capacity for work had plateaued at between 15 and 16 hours per week was unequivocally supported by the consensus opinion of the medical panel convened at the request of the Victorian WorkCover Authority. This position is also supported by the opinions of Dr Mangos and Associate Professor Wallin. I find the endorsement of Dr Szczepanik’s opinion from these sources to be persuasive and I accept that the plaintiff has established that as a consequence of the employment-related injury to her left arm she has a permanent incapacity for work which limits her to engaging in very light modified duties for no more than 16 hours per week.
61 For the purpose of undertaking the assessment as to the financial consequences associated with the incapacity for work which I have found to exist in this case, I accept the submission put on behalf of the defendant that a gross figure of $44,590.00 per annum (or $857.50 per week) represents the plaintiff’s earning capacity but for her injury in accordance with the provisions of s.134AB(38)(f). Comparing that figure with the income presently available to the plaintiff in association with her 16 hours of work per week, namely $256.00,[61] the plaintiff satisfies the arithmetical formula established by the Act. Having regard to the opinion expressed by the medical panel, the plaintiffs treating General Practitioner, Dr Kostos and Prof Wallin, that the plaintiff’s incapacity in this regard is permanent, I am satisfied that the plaintiff has no prospect of re-training or re-education which would enhance her earning capacity. Accordingly, I am satisfied that the plaintiff has established her entitlement to commence proceedings at common law to claim damages for the loss of earning capacity which arises by reason of the consequences to her of the injury to her left arm sustained in the course of her employment with the defendant.
[61] PCB 12c
62 In circumstances in which I have found that the plaintiff has suffered an impairment of body function, the effect of which is to occasion a permanent loss of income of greater than 40 percent of her gross income had her injury not occurred, I am of the opinion that this finding requires me to grant the plaintiff leave to commence proceedings to recover damages for both pain and suffering and loss of earnings. In doing so, I endorse the judgment on this issue of His Honour Judge Ross in Patterson v Burbank Plumbing and Maintenance Services Pty Ltd.[62]
[62] [2007] VCC 1527
63 On the basis of the foregoing reasons, findings and conclusions I grant the plaintiff leave to bring a proceeding at common law pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 to recover damages for bodily injuries and pain and suffering and loss of earning capacity arising out of her employment with the defendant.
64 After discussion with counsel, I will pronounce formal orders and hear the parties on the question of costs.
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