George, Brett v Adecco Industrial Pty Ltd
[2009] VCC 1776
•11 December 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION
SERIOUS INJURY
Case No. CI-09-00690
| BRETT GEORGE | Plaintiff |
| v | |
| ADECCO INDUSTRIAL PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 2 and 3 December 2009 |
| DATE OF JUDGMENT: | 11 December 2009 |
| CASE MAY BE CITED AS: | George, Brett v Adecco Industrial Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 1776 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1980 – whether the consequences of an injury to the right wrist produced an impairment of the function of the right wrist and arm with consequences which were at the least very considerable in terms of pain and suffering and loss of earning capacity – whether a secondary psychiatric injury produced an impairment with consequences which were severe in terms of pain and suffering and loss of earning capacity: section 134AB (38) (c) and (d)
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Richards SC with | Clark Toop Taylor |
| Ms N Wolski | ||
| For the Defendant | Mr P Rattray QC with | Lander & Rogers |
| Ms M Tsikaris | ||
| HIS HONOUR: |
Introduction
1 Before the Court is an application brought by Originating Motion filed on 24 February 2009 by which the plaintiff applies for leave, pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of the course of his employment with the defendant.
2 The plaintiff seeks leave to bring such proceedings for pain and suffering and loss of earning capacity.
3 Mr J Richards SC appeared with Mr N Wolski of Counsel for the plaintiff, and Mr P Rattray QC appeared with Ms M Tsikaris of Counsel for the defendant.
4 The plaintiff's application was based upon paragraph (a) and (c), and more particularly, an injury to the right wrist and a secondary psychiatric injury.
5 The following evidence was adduced during the hearing:
• The plaintiff gave evidence and was cross-examined; •
The plaintiff tendered the Plaintiff’s Court Book (“PCB”) pages 22-157 and from the Defendant’s Court Book ("DCB") page 216: Exhibit A;
• The defendant tendered:
ƒ a bundle of certificates of capacity of the plaintiff: Exhibit 1 ƒ the Defendant’s Court Book pages 32-38; 63-69; 70-84 and 195-
215: Exhibit 2.
The Statutory Scheme
6 The application is brought under the definition of “serious injury” contained in subsection (37)(a) of the Act which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of a body function”.
7 The relevant considerations which apply to such an application are as follows:
(a)
The plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of the course of his of employment on or after 20 October 1999.[1]
(b)
The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”.[2]
(c)
The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection (19)(a), subsection (19)(b) and subsection (38)(e) impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d)
Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
(e)
Subsection (38)(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.
(f)
Subsection (38)(e) provides that in a claim for loss of earning capacity that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(g)
Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(h)
Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(i)
Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event;[3] an approach which I intend to follow in the appropriate case.
(j)
In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent, that is, likely to last for the foreseeable future; and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in subsection (38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
(k)
In an application where it is alleged that the plaintiff had a pre-existing condition which arose prior to 20 October 1999, I must, in conformity with Barwon Spinners, identify the injury and impairment arising after 20 October 1999, and I must then determine the consequences of that injury and impairment by comparing the plaintiff’s condition before and after that injury: see Petkovski v Galletti.[4]
[1] S.134AB(1), and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
[2] Barwon Spinners, at paragraph 33
[3] Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
[4] (1994) 1 VR 436
8 I am required by section 134AE to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action, and in doing so to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s Background
9 The plaintiff was born on 16 March 1942. He is now 47 years of age. He is married. He has a son who is about 11 years of age.
10 The plaintiff obtained modest schooling. He left school when he was 14 years of age part of the way through Year 7. He last attended the Altona North Technical School.
11 The plaintiff commenced employment with the defendant on 23 October 2000. The defendant is a labour hire company. Whilst it employed the plaintiff, it placed him with employers who required labour.
The Claimed Compensable Injuries
12 In April 2002 the defendant placed the plaintiff with Westgate Transport in Altona. On 19 April 2002 the plaintiff was pulling shrink wrapping off a pallet of orange juice when the shrink wrapping suddenly gave way resulting in his right arm forcefully striking the metal racking.
13 The plaintiff said that he reported the occurrence of the incident, and subsequently completed an incident report on 20 April 2002, which he lodged with the defendant. He said that he obtained medical treatment from a medical practitioner at a clinic at Central Square in Altona Meadows. He was unable to remember the name of that medical practitioner.[5]
[5] Transcript 14-15
14 The plaintiff continued working. He aggravated the injury to his right wrist on 18 November 2002. He was pulling himself onto a forklift with his hands when he felt a sensation like an electric shock in his right arm. He noticed swelling in his right arm. He reported the incident and left his place of work and went home.
15 The plaintiff was later placed with Huntsman chemicals in West Footscray. On 17 February 2004 he was using a crowbar to smash resin into small pieces. He then shovelled it into a wheelbarrow and took it to a crusher. The crushed resin was then placed in a 44 gallon drum which was dragged across the floor to a scale where it was weighed, and then dragged to an area at the premises.[6]
[6] Transcript 22
16 The plaintiff suffered a further aggravation to his right wrist as a consequence of undertaking that work.
17 As a result of the first incident the plaintiff said that he suffered an injury to his right wrist which was aggravated by the other incidents.
The Prior Right Wrist Injury
18 In 1984, when the plaintiff was about 22 years of age, he attended a 21st birthday party. He fell from a chair on which he was standing. He suffered an injury to his right arm. He attended the Western hospital in Footscray where he obtained treatment. His right arm was placed in a plaster cast.
19 As a result of the birthday party incident the plaintiff suffered a fracture of the right ulnar styloid.
20 The plaintiff was referred to Mr Hooper, orthopaedic surgeon for treatment of the injury to his right wrist, which occurred as a result of the work incident. Mr Hooper first saw the plaintiff on 31 January 2003.[7] The plaintiff saw Mr Hooper on four occasions between January 2003 and June 2004.
[7] PCB 38
21 Mr Hooper was convinced that the fracture to the right ulnar styloid was an old injury.[8] Mr Hooper referred the plaintiff to Mr Tham, orthopaedic surgeon for treatment. He first saw the plaintiff on 19 August 2004. He agreed that the fracture was an old fracture.[9]
[8] PCB 45 and DCB 207
[9] PCB 64B. Dr Hampton, general practitioner initially treated the plaintiff. He referred the plaintiff to have an x-ray of his right wrist. He agreed with the report of the radiologist that the fracture was an old fracture at PCB 38
22 Mr Tham operated on the plaintiff's right wrist arthroscopically on 8 November 2004. He observed that the fracture showed non-union. He excised a fragment of bone at the site of the fracture.[10]
[10] DCB 206
23 There seems to be no controversy in the medical evidence that the fracture was an old fracture.
The Plaintiff's Medical Treatment
24 The plaintiff saw Dr Hampton on 18 November 2002 complaining of numbness and pain on the ulnar side of the right wrist. The plaintiff told Dr Hampton that the pain he was experiencing occurred following a blow to his right wrist at work some time in the past.
25 The only blow which the plaintiff had suffered to his right wrist was as a result of the work incident.
26 Initially, Dr Hampton referred the plaintiff for investigations to determine whether there was any nerve damage in the plaintiff's right wrist. Nerve conduction studies were normal.
27 The plaintiff was then referred to Mr Hooper. Mr Hooper also referred the plaintiff to have nerve conduction studies which were performed by Dr Freilich, neurologist on 17 January 2003. The results of those nerve conduction studies were normal.[11]
[11] DCB 213-214
28 Mr Tham undertook a postoperative review of the plaintiff on 22 November 2004. He considered that the plaintiff's prognosis for improvement was relatively good.
29 The plaintiff was referred back to Mr Tham on 20 December 2006. He saw him again on 7 March 2007. The plaintiff was complaining of constant pain on the ulnar border of his right wrist, made worse when exposed to the cold, or when he undertook gripping type activities.
30 On review on 20 December 2006, Mr Tham found a normal range of motion in the right wrist; mild tenderness at the distal radial ulnar joint and also at the extensor carpi ulnaris tendon; and, some suggestion of palmar instability of the distal radial ulnar joint .
31 Mr Tham referred the plaintiff to have a stress CT scan of his right distal radial ulnar joint. It showed no instability. However, there was mild irregularity at the distal radial ulnar joint.
32 Mr Tham then said that the plaintiff suffered a direct impact injury against steel racking on 18 November 2002 which, in his opinion, was the cause of the plaintiff's ulnar styloid fracture.[12]
[12] PCB 66. The reference by Mr Tham to 18 November 2002 is wrong. The incident he described occurred on 19 April 2002
33 The opinion expressed by Mr Tham in that report is to be contrasted with his earlier stated opinion that the fracture was an old fracture, and it is also to be contrasted with the opinions of Dr Hampton and Mr Hooper. The only conclusion I can reach is that when Dr Tham composed that report he had forgotten that the fracture was in fact an old fracture.
34 Furthermore, in the same report Mr Tham referred to the fracture as a previous fracture. There is an obvious internal inconsistency in the composition of the report.
35 In any event, Mr Tham was of the opinion, when he last reviewed the plaintiff, that the plaintiff was capable of resuming work if repeated gripping or lifting activities were restricted. He observed that the plaintiff’s symptoms might be exacerbated by activities requiring repeated pronation and supination, or twisting of the right forearm.
36 Mr Tham referred the plaintiff to Mr Ireland, orthopaedic surgeon for a second opinion. He saw the plaintiff on 21 February 2007. The plaintiff complained of severe pain to the ulnar side of his right wrist with any use of his hand.
37 Mr Ireland examined the plaintiff. He found a full range of motion of the right forearm and wrist. He measured the plaintiff's grip strength at 45 kg on the right side. He commented that the plaintiff attempted to disguise his grip strength on five different attempts demonstrating grip strength from 10 kg to 45 kg.
38 Mr Ireland concluded that there was no major physical diagnosis which could be made to explain the plaintiff's complaints of pain. He confirmed that opinion when he was asked to look at imaging studies by Mr Tham.[13]
[13] DCB 211 and 212
39 Dr Hampton continued treating the plaintiff. He noted swelling in the plaintiff’s right wrist on occasions when he examined the plaintiff from about March 2003.[14]
[14] PCB 38-39
40 Following the referral to Mr Hooper and after the treatment provided by Mr Tham, Dr Hampton was of the opinion that the plaintiff was fit for work not involving lifting in excess of 10 kg, and that he should wear a wrist splint whilst working. It would appear that the plaintiff commenced using a wrist splint by March 2003.[15]
[15] PCB 38
41 The plaintiff said he looked for work in 2004. He applied for over a hundred jobs. He agreed with the cross examination conducted by Mr Rattray that there was work he could have done, but that no one would offer him a job because he was on WorkCover. He last applied for a job in 2004.[16]
[16] Transcript 24 and 33-34
42 Mr Rattray tendered a bundle of certificates of capacity, commencing with a certificate dated 18 February 2004 running through to a certificate dated 4 August 2008.[17]
[17] Exhibit 1
43 The certificates were provided by Dr Hampton. The certificates provided by him in 2004, 2005, and up to the certificate dated 16 March 2006, certified the plaintiff as fit for modified duties, with no lifting above 10 kg, and with the plaintiff to use a splint on his right wrist when working. The certificate dated 16 March 2006 is markedly different. Dr Hampton certified the plaintiff as being unfit for any duties from 16 March 2006. All of the subsequent certificates are the same.
44 The plaintiff said that he continued experiencing increasing pain in his right wrist which is the reason why he returned to see Mr Tham on 20 December 2006. However, Mr Tham did not consider the plaintiff to be unfit for any duties. It was around that time that Mr Ireland also examined the plaintiff. It is obvious from his reports that he doubted that there was much wrong with the plaintiff.
45 Since he last saw Mr Tham and Mr Ireland in early 2007, the plaintiff has not seen any other medical practitioners for treatment other than Dr Hampton.
46 On about 8 March 2006 the plaintiff saw Dr Hampton complaining that the pain in his right wrist had worsened as a result of vacuuming his car.[18] The plaintiff said that he grabbed the hose of the vacuum and when he pulled on it, he experienced a painful sensation through his right arm.[19]
[18] PCB 40
[19] Transcript 28
47 The vacuuming incident appears to have coincided with Dr Hampton changing his opinion from the plaintiff being fit for modified duties to being unfit for any duties. However, there was no mention on the certificate dated 16 March 2006 to an aggravation of the plaintiff's injury.
48 One other matter which occurred at around the time was his apprehension for shoplifting. The plaintiff saw Dr Hampton who referred him to Dr Chau, psychiatrist.
49 Dr Chau obtained a history from the plaintiff that he had committed a number of counts of shoplifting at Kmart and Coles Myer stores between January 2005 and July 2005. He was caught and charged, but committed further offences.
50 Dr Chau also obtained a history from the plaintiff that the surgery undertaken by Mr Tham was unsuccessful and that he was left with shooting pain in his right arm. That history of complaints is contrary to the history taken by Mr Tham and Mr Ireland.
51 Dr Chau understood that the plaintiff had been under a number of pressures, amongst which were: financial pressures; his wife's psychiatric illness, and his work related injury. Dr Chau considered that the plaintiff’s shoplifting behaviour could be explained as "revenge" or "fight back" against Kmart and Coles Myer because when working for Westgate he was performing work in connection with its provision of transport for Kmart and Coles Myer.[20]
[20] PCB 68
52 However, the plaintiff disavowed that his shoplifting behaviour could be explained as revenge or a fight back. When Mr Rattray put to the plaintiff that he had said as much in his first affidavit sworn 21 October 2008 he denied the truth of what he had sworn in that respect. He said he was not blaming anyone for his shoplifting spree. He said what he had done was stupid and that he took full responsibility for what he had done.[21]
[21] Transcript 39
53 The plaintiff was detained in custody on 3 October 2006 on theft charges. He was assessed by a psychiatric nurse. Dr Hampton became aware of the theft charges and the assessment by the psychiatric nurse. He subsequently referred the plaintiff to Dr Wendiggensen, psychiatrist for treatment for depression. He prescribed the plaintiff Lexapro to treat his depression and diazepam to help him sleep. He also referred the plaintiff to Dr Perrett- Abrahams, psychologist.
54 Dr Wendiggensen obtained a history from the plaintiff of his right wrist injury. The plaintiff told him that much of his problems stemmed from the financial fallout after suffering the injury. However, it is obvious from the full history recorded by Dr Wendiggensen that the plaintiff had been accused by Centrelink of obtaining benefits to which he was not entitled. He was also in dispute with Citibank over a credit card debt.
55 Dr Wendiggensen last saw the plaintiff on 24 October 2007 when the plaintiff a dispute with Citibank was of concern to the plaintiff. However, Dr Wendiggensen was of the opinion that the plaintiff's prognosis really depended upon the outcome of his wrist injury and the plaintiff regaining a capacity for work.[22]
[22] PCB 68A-68P
56 Dr Perrett-Abrahams commenced treating the plaintiff on 1 November 2006. She worked on the premise that the plaintiff had suffered chronic right and left arm which resulted in the plaintiff suffering an anxiety disorder with associated depression and anxiety arising from a maladaptive response to the ongoing stress of having a general medical condition in the form of chronic right wrist injury, and a secondary left wrist injury.[23]
[23] PCB 62-63
57 However, much of the opinion expressed by Dr Perrett-Abrahams was based upon conclusions she reached about the gravity of the plaintiff’s right wrist injury and its sequelae. I do not accept that she correctly stated the diagnosis of the plaintiff's physical injuries, and to that extent I do not accept her opinion regarding the plaintiff’s secondary psychiatric problems as reliable.[24]
[24] PCB 63-64
58 Furthermore, her opinion is in contrast to the psychiatric opinions. Neither Dr Chau nor Dr Wendiggensen has put the degree of the plaintiff's secondary psychiatric problems as being as grave as described by Dr Perrett-Abrahams. I prefer the evidence of the psychiatrists who I think are better placed to make a diagnosis of a psychiatric illness than a psychologist undertaking psychotherapy treatment.[25]
[25] Dr Kaplan, psychiatrist expressed a similar opinion to Dr Wendiggensen that the prognosis of the plaintiff psychiatric problems will be determined by the outcome of his physical condition at PCB 77
59 At present Dr Hampton is certifying the plaintiff as unfit for any work as a result of the injury to his right wrist. Recently he has certified the plaintiff as being fit for modified duties with respect to his left wrist. In a certificate dated 4 August 2008 Dr Hampton diagnosed a left wrist and shoulder injury comprising a sprain of the left wrist and a tear of the long head of the biceps muscle due to compensating for his right wrist injury.
60 The certificate provides that the plaintiff is not to use his left hand, but can use his right hand with no lifting of more than 2 kg.[26] Dr Hampton accepted the plaintiff's complaints that he was putting more stress on his left wrist because of the injury to his right wrist.
[26] Exhibit 1
61 Dr Hampton then made a remarkable comment in his report dated 14 June 2009. He said that he has no idea what was causing the plaintiff's problems. Having said that he then referred to the presence of swelling, presumably in the plaintiff's right wrist, and that the plaintiff would never be able to perform manual work with his right wrist. He added that he suspected that the plaintiff’s left wrist would rapidly mirror the changes in the plaintiff's right wrist if he were to use it to any significant degree.[27]
[27] PCB 43 and 44
The Medico-Legal Assessments
62 Mr Behan, plastic and reconstructive surgeon examined the plaintiff on 8 September 2008. On examination he found swelling in the plaintiff’s right wrist. He acknowledged that the assessment of the plaintiff's injuries was not in his particular area of expertise. However, he stated the opinion that the plaintiff had arthritic changes in his right wrist, following damage to the styloid process, as a result of an incident which occurred in November 2002.[28]
[28] Mr Behan obtained a wrong date from the plaintiff. I accept that he was referring to the incident which occurred on 19 April 2002
63 Mr Behan accepted the plaintiff's complaints of ongoing symptoms. He was of the opinion that the plaintiff had suffered an impairment of function in both upper limbs. He was also of the opinion that the plaintiff was not able to work as a consequence of the dysfunction affecting both upper limbs.
64 Mr Behan observed that the plaintiff had developed a recognized psychiatric/psychological condition. He considered that there was a strong psychological overlay in the plaintiff’s presentation.
65 Mr Behan re-examined the plaintiff on 19 October 2009. On that occasion Mr Behan was provided with an x-ray taken in April 2002 demonstrating a chip fracture in the ulnar styloid region of the right wrist. Mr Behan appears to have concluded that the fracture was due to the incident when the plaintiff struck his wrist. The balance of his opinion is consistent with his earlier stated opinion. He repeated that the plaintiff required psychiatric treatment and ongoing therapy.[29]
[29] PCB 102-104
66 Dr Blombery, vascular physician examined the plaintiff on 20 November 2008. It would appear that Mr Blombery concluded that the fracture was due to the incident when the plaintiff struck his right wrist. He was not provided with any x-rays. Dr Blombery concluded that the plaintiff was suffering from a non- specific pain syndrome comprising sensitisation of pain pathways. He noted that the plaintiff had developed a secondary depression with anxiety which was not playing much of a role in the plaintiff's disability as he saw it.
67 Mr Blombery was of the opinion that the plaintiff's prognosis for recovery was poor. He was also of the opinion that the plaintiff had no capacity for employment noting that the plaintiff was developing increasing symptomology in his left arm as a consequence of over using it.
68 Dr Horsley, occupational physician examined the plaintiff on 5 November 2009. Dr Horsley was given a fuller history of the plaintiff's prior fracture; the various incidents which aggravated the previous fracture, the treatment he had been provided, and the opinions of the plaintiff's medico/legal examiners.
69 Dr Horsley noted on examination that there was some reduction in muscle bulk on the right side comprising half a centimetre reduction in circumference of the right forearm. She also noted a loss of grip strength on the right side when compared with the left side.
70 Dr Horsley also noted that the plaintiff had developed dysfunction in his left wrist which was secondary to the injury to his right wrist, and an adjustment disorder with mixed anxiety and depressed mood.
71 Dr Horsley was of the opinion that on the basis of the plaintiff's presentation that he did not have a realistic capacity for work.[30]
[30] PCB 123-129, and particularly 128-129
72 Mr Shannon, orthopaedic surgeon examined the plaintiff for the defendant on 14 November 2005 and 1 June 2009. His opinion is very similar to that of Mr Hooper and Mr Tham. He accepted that the plaintiff had probably aggravated the previous fracture when he struck his right wrist.
73 Mr Shannon did not find any significant muscle wasting, despite the plaintiff's complaints of an inability to use his right arm. Mr Shannon considered that to be an inconsistency in the plaintiff’s presentation. Mr Shannon was of the opinion that the plaintiff would be limited in performing work involving strenuous repetitive use of his right arm. He considered that the plaintiff was capable of much more activity that his presentation suggested. Otherwise he was of the opinion that the plaintiff had a capacity to undertake light work.[31]
[31] PCB 36-38. The defendant obtained other medical assessments of the plaintiff which Mr Rattray submitted were not as relevant as the opinion of Mr Shannon
The Right Wrist Injury
74 Mr Rattray conceded that the plaintiff had suffered a compensable injury on 19 April 2002, and by implication, that the subsequent episodes which the plaintiff said aggravated his right injury were related to the initial work incident.
75 The real issue in this application is whether the consequences to the plaintiff in terms of pain and suffering and loss of earning capacity meet the statutory tests.
76 Mr Rattray carefully took me through all of the medical reports for the purpose of permitting me to understand what histories were provided to the medical examiners by the plaintiff, the product of their examinations, and their opinions.
77 One noteworthy matter which emerged through that exercise was that the medical examiners who were concerned with the plaintiff's physical injury obtained a history that the plaintiff had struck his right wrist, and as a result, had aggravated a previously asymptomatic right wrist fracture.
78 Not all of the medical examiners obtained a history of the initial incident of 19 April 2002, and the subsequent aggravating episodes.
79 I am not convinced that the absence of a full history necessarily makes much difference in determining the questions which are raised for my consideration in this application. I am of that view because of the concession that the plaintiff suffered a compensable work injury, and that the aggravating episodes were not put as separate incidents.
Serious injury
The Right Wrist Injury-Pain and Suffering
80 There is a remarkable contrast between the opinions of Mr Hooper, Mr Tham, Mr Ireland and Mr Shannon when compared with the opinions of Mr Behan, Dr Blombery and Dr Horsley.
81 At the time when Mr Tham last treated the plaintiff there was no doubt in his mind that the plaintiff had a residual capacity to work full time, subject to compliance with the restrictions he considered appropriate to impose upon the plaintiff.
82 The opinion expressed by Mr Shannon is similar to the conclusions reached by Mr Tham.
83 By March 2006 Dr Hampton had changed his opinion regarding the plaintiff's residual capacity to work full-time on modified duties.
84 Dr Hampton does not appear to disagree with the opinions of Mr Hooper, Mr Tham nor Mr Ireland, and no doubt that is why he said that he had no idea what was causing the plaintiff's problems. That was said by him in the context of their treatment of the plaintiff and the conclusions they arrived at regarding the nature of his right wrist injury.
85 It is probable that the Dr Hampton had to weigh up the opinions of the specialists against the subjective complaints of the plaintiff. He gave due account to those subjective complaints and certified the plaintiff as being unfit for any duties.
86 The first matter which I need to deal with is the conflict in the opinions of Dr Hampton and Mr Tham. I prefer the opinion of Mr Tham that when he last saw the plaintiff he was fit for work subject to the imposition of restrictions. I am fortified in reaching that conclusion because it is supported by Mr Hooper, Mr Ireland and the earlier opinion of Dr Hampton.
87 Furthermore, Mr Tham is a surgeon with expertise in hand surgery. His knowledge and experience, together with the very particular treatment he provided the plaintiff, puts him in a vastly superior position to that of Dr Hampton not only in terms of competence to make a diagnosis of the injury, but also the extent of the impairment resulting from it.
88 The aggregate effect of the opinions of Mr Hooper and Mr Tham point to the plaintiff having an actively symptomatic right wrist which was successfully treated leaving him with some pain and disablement, and certainly not of the gravity reported to Dr Hampton in March 2006 and thereafter.
89 The second matter which I need to deal with is whether I accept that the plaintiff suffered a dramatic deterioration following the last occasion he saw Mr Tham, consistent with the opinions of Mr Behan, Dr Blombery and Dr Horsley.
90 Whether I accept the opinions of Mr Behan, Dr Blombery and Dr Horsley depends upon whether I accept the evidence of the plaintiff. At present the plaintiff says that the impairment of function in his right arm prevents him from working, and that if he were to work for an hour or two, his left arm would start aching.[32]
[32] Transcript 56
91 The plaintiff placed a great deal of emphasis on the vacuuming incident. He said that it was after that incident that he was unable to work.[33] However, he did not inform Mr Tham of the vacuuming incident and the increased pain that he experienced following that incident when he saw him in December 2006 and March 2007.
[33] Transcript 56-57
92 If it is true that the vacuuming incident caused such a dramatic increase in the plaintiff’s pain, then it is remarkable that he did not inform Mr Tham of that incident. In any event whatever might have been the cause of the increase in the plaintiff’s pain it did not impress Mr Tham as much as it apparently impressed Dr Hampton.
93 The plaintiff described the extent of the pain and disablement he was suffering in his right wrist and arm in a dramatically different way when he was examined by Mr Behan, Dr Blombery and Dr Horsley. They accepted his complaints at face value.
94 Although Mr Behan says he conducted a thorough examination on each of the occasions he saw the plaintiff, he did not describe the product of the examinations in a conventional way. He proceeded in a rather unusual way by photographing the plaintiff's right wrist in positions said to demonstrate the plaintiff's capacity to undertake various movements of his right wrist. He then stated that the plaintiff was suffering from a disability as a result of his injuries, but his pathway of reasoning is not fully disclosed as to how he arrived at that conclusion.
95 Dr Blombery and Dr Horsley recorded complaints made by the plaintiff of pain and disablement significantly greater than he had reported to Mr Hooper, Mr Tham, Mr Ireland and Mr Shannon. Indeed, if the plaintiff's complaints to Dr Blombery and Dr Horsley are an accurate reflection of his pain and disablement then it must mean that he suffered a dramatic deterioration between the time when he last saw Mr Tham in February 2007 and November 2008 when he saw Dr Blombery, and November 2009 when he saw Dr Horsley.
96 The only explanation advanced by the plaintiff for that deterioration is the vacuum incident, and overuse of his left arm in compensating for the loss of function in his right arm.
97 The curious feature of the plaintiff's evidence that he suffered an overuse of his left arm is that he has not worked since 2004. On the account given by him in his affidavits and in his oral evidence he has done very little since he last worked. He has not described how he has overused his left arm. In his first affidavit he said no more than his inability to use his right wrist and arm resulted in an overuse condition affecting his left wrist and shoulder.[34] He made a similar fleeting reference of that kind in his second affidavit that the additional strain which was placed on his left hand and upper limb resulted in him suffering symptoms in that part of his body.[35]
[34] PCB 29
[35] PCB 35
98 The medical examiners who obtained a history from the plaintiff that he is suffering pain and disablement as a result of over using his left hand and arm did not explain the pathology which is responsible for the pain complained of by the plaintiff, nor how the over use of his left hand and arm occurred.
99 The only hint of any pathological process at work is referred to in a certificate of capacity provided by Dr Hampton dated 4 August 2008. It refers to a sprain of the left wrist and a tear of the long head of the biceps muscle. No other medical evidence was adduced by the plaintiff to confirm the diagnosis made by Dr Hampton. It is not a conclusion reached by any of the other medical examiners who obtained a history of the alleged overuse of the left hand and arm.
100 Mr Richards submitted that much of what the plaintiff deposed to in his affidavits was not challenged during Mr Rattray’s cross-examination. Whilst it is true that Mr Rattray did not challenge each discrete part of the plaintiff’s evidence he did cross examine the plaintiff on his daily activities and the extent that he is able to use a mobile phone; drive a car; undertake general activities of daily living, such as dressing himself, shaving etc; go shopping; sit, stand, catch public transport, and cook if he felt inclined to do that.[36]
[36] PCB 37-39
101 After considering the plaintiff’s evidence and the medical evidence, I am satisfied that the plaintiff did suffer an aggravation of the pre-existing fracture which rendered his right wrist symptomatic.
102 I am satisfied that the plaintiff was unfit thereafter for work which involved suffering strain on his right wrist and arm, but that he was fit for a wide variety of types of employment subject to the restrictions which Mr Tham considered were appropriate to impose on him.
103 I do not accept the opinions of Mr Behan, Dr Blombery and Dr Horsley that the plaintiff suffers from a degree of pain and disablement consistent with him being incapacitated for work. It occurs to me that their opinions are largely based upon histories given to them by the plaintiff. I do not accept that the plaintiff is a reliable historian.
104 I am fortified in reaching the foregoing conclusion by the opinion of Mr Shannon. His opinion is remarkably similar to the earlier opinions of Mr Hooper, Mr Tham and Dr Hampton before he began certifying the plaintiff as unfit for any duties from March 2006.
105 I am not satisfied that the plaintiff has suffered an overuse of his left hand and arm to the degree which he described in his oral evidence. He only made fleeting reference to it in his affidavits. The medical examiners have not unearthed what the pathological process is that has caused the overuse, nor how the plaintiff has overused his left hand and arm.
106 My reference to the plaintiff being an unreliable historian is based upon the conclusion I have reached that the plaintiff has exaggerated the nature and extent of the pain and disablement he has suffered when he was examined by Mr Behan, Dr Blombery and Dr Horsley. Their opinions are very difficult to reconcile with the opinions of Mr Tham, Mr Hooper, Mr Ireland and Mr Shannon.
112 107 Furthermore, the plaintiff also applied for serious injury under paragraph (c). However, in neither of his affidavits did he describe symptoms of a secondary psychiatric injury beyond references to suffering depression, anxiety, insomnia and some behavioural problems.[37] In relation to the treatment which the plaintiff has obtained from Dr Perrott-Abrahams, he described it as counselling for chronic pain and disablementThe plaintiff did not give evidence regarding his secondary psychiatric injury beyond what he said in his affidavits. What references were made during his oral evidence were rather fleeting and made in passing. He gave no evidence of having any psychiatric symptoms anywhere near as serious as those he described to Dr Kaplan.
[37] PCB 29
110 It also occurs to me that the plaintiff has not been entirely truthful in relation to the reasons why he engaged in shoplifting. He swore that the shoplifting was as a result of the development of a psychiatric reaction to his chronic pain and disability arising from the right wrist injury. It is precisely what he told Dr Chau. It seems to me extraordinary that the plaintiff would swear an affidavit making such a connection then later say that it was untrue.
111 The history the plaintiff gave to Dr Chau was obviously provided to try to minimise the real reason why the plaintiff engaged in shoplifting. He was facing criminal proceedings and the inevitable imposition of a penalty. He attempted to make a connection with the shoplifting to revenge or fight back against his employers no doubt to minimise the penalty that would be imposed upon him.
There is one other aspect of the plaintiff’s evidence which is of real strength seems to me to be consistent with someone who was not prepared to co-operate with an examination and give a true indication of his grip strength in order to try to justify his position that he was badly injured.
113 It is for latter the mentioned reasons that I am reluctant to accept much of the plaintiff’s evidence without corroborative evidence.
114 The evidence I do accept which is favourable to the plaintiff is that Mr Tham no doubt anticipated that the plaintiff would continue to be troubled by the injury to his right wrist. Hence the reason why he considered that restrictions should be imposed upon the work the plaintiff could undertake.
115 Dr Hampton and Mr Behan found swelling on examination of the plaintiff’s right wrist.[40] No other medical examiner found swelling. Dr Horsley found a reduction in muscle bulk of half a centimetre in the right forearm when compared with the left forearm.[41] I do not accept Dr Horsley's finding of loss of grip strength as reliable given the observations made by Mr Ireland in that respect.
[40] Dr Hampton at PCB 38-39 and Mr Behan at 88 and 101
[41] PCB 128
116 The presence of swelling and loss of muscle bulk are objective signs of something untoward affecting the plaintiff’s right wrist and arm. However, I do not accept that the presence of each of those objective signs suggest that the consequences to the plaintiff are as serious as he has attempted to make out.
117 The plaintiff is unable to undertake his pre-injury work or work which would place strain on his right wrist and arm. I accept that it is inevitable that having an actively symptomatic right wrist which is likely to be exacerbated must mean that the plaintiff will be restricted in engaging in social, domestic and recreational activities which require the full, free and unrestricted use of his right wrist. I accept that playing golf and engaging in activities with his son are no doubt affected.[42]
[42] PCB 31 and 34-35
118 I do not accept that one of the consequences to the plaintiff is an overuse syndrome affecting the plaintiff’s left wrist and arm. I do not understand from the plaintiff's evidence and from that of the medical examiners how it is that he has suffered that consequence when he has undertaken very little physical activity since he last worked.
119 Whilst I have some misgivings about the plaintiff's evidence it occurs to me that it is undeniable that he has suffered an injury to his right wrist which has impaired the function of his right wrist and arm, and that the impairment is permanent. It is also undeniable that the plaintiff has suffered, and will continue to suffer, consequences of that impairment.
120 Manual activity is of the monumental importance in being able to lead an independent and fruitful daily existence. It is difficult to appreciate how simple activities of daily living can be adequately undertaken when manual function is impaired even to a modest degree.
121 Therefore, I find that the aggregate effect of the evidence of Mr Tham, and the evidence of the plaintiff which I am prepared to accept, demonstrates an impairment of function of the plaintiff's right wrist and arm which deserves the description at the least very considerable when judged by comparison with other cases in the range of possible impairments or losses of a body function, which may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”.
Loss of Earning Capacity
122 I do not accept that the plaintiff has suffered a loss of earning capacity of 40 percent or more.
123 Given that I accept the evidence of Mr Tham, and not the evidence of Dr Hampton, Mr Behan and Dr Horsley, regarding the plaintiff's loss of earning capacity that the only impediment to the plaintiff in obtaining employment was the fact that he was on WorkCover.
124 The statutory test for loss of earning capacity requires the plaintiff to demonstrate that the injury has caused such an impairment of the function of his right wrist and arm, that he is not only incapacitated for his pre-injury work, but is not fit for suitable employment based upon the exercise of whatever residual capacity for work he has.
125 I intend to do no more than refer back to the analysis of the plaintiff’s evidence in which he conceded that he was fit for a wide variety of work, but failed to obtain a job only because he was on WorkCover.
126 For that reason he cannot and does not satisfy the test for loss of earning capacity. I find that he was, at the time when Mr Tham last examined him, fit for suitable employment, and continued to be fit for such employment as at the date of trial.
The Psychiatric Injury
127 The plaintiff's application that he has suffered a psychiatric injury which meets the statutory test has no merit.
128 The plaintiff's evidence relevant to suffering a secondary psychiatric injury was based almost entirely on what he deposed to in his affidavits. I intend to do no more than refer back to the analysis of the plaintiff’s evidence.
129 It cannot be the case, even in a serious injury application, that if the plaintiff gives little evidence on the subject that it can be ignored in favour of a more fulsome history of symptoms given to a medical examiner. It is trite to say that the opinion of a medical examiner is only of any weight if it is supported by the primary evidence.
130 There are three major aspects of the plaintiff’s evidence which I wish to concentrate on at this point. The first is, that the consequences he described do not bear any of the characteristics which one would expect to be present if the consequences are said to be "severe".
131 The second is, curiously the plaintiff described serious psychiatric symptoms to Dr Kaplan, and the same degree to Dr Perrett-Abrahams, but his evidence fell dramatically short of the history recorded by each of those medical examiners.
132 The third is, that the psychiatrists have couched their opinions in a way which makes it difficult to understand what their opinions are in terms of the degree of the plaintiff’s secondary psychiatric injury. For instance, Dr Wendiggensen and Dr Kaplan were of the opinion that the plaintiff's prognosis was dependent upon the outcome of his right wrist injury and the prospect of the plaintiff regaining a capacity to work.
133 The findings I have made are primarily based upon the opinion of Mr Tham. Put simply the plaintiff has a capacity for suitable employment, and therefore, it must logically follow that his psychiatric injury and its consequences are to be measured accordingly.
Conclusion
134 On the basis of the foregoing reasons, findings, and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to section 134AB(16)(b) of the Accident Compensation Act 1985 to recover damages for pain and suffering arising out of his employment with the defendant.
135 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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PCB 34
PCB 82
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3
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