Hallam v Hastings RSL Sub-Branch Inc
[2014] VCC 915
•24 June 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-12-00807
| KIM HALLAM | Plaintiff |
| v | |
| HASTINGS RSL SUB-BRANCH INC | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 and 11 June 2014 | |
DATE OF JUDGMENT: | 24 June 2014 | |
CASE MAY BE CITED AS: | Hallam v Hastings RSL Sub-Branch Inc & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 915 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Physical injury – development of a Chronic Pain Syndrome – development of a psychiatric condition – whether a Chronic Pain Syndrome is part of a psychiatric condition – the need for disentangling or stripping out of the consequences of the psychiatric condition – whether the consequences of the psychiatric condition are “severe”.
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b)
Cases Cited: Ansett Australia Ltd v Taylor [2006] VSCA 171; Meadows v Lichmore Pty Limited [2013] VSCA 201; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
Judgment: The plaintiff has leave to bring a proceeding at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Jewell SC with Mr S Smith | Slater & Gordon |
| For the Defendants | Mr P Hayes | Wisewould Mahony |
HIS HONOUR:
1 The plaintiff commenced this proceeding by Originating Motion seeking leave of the Court pursuant to s134AB of the Accident Compensation Act 1985 (“the Act”) to bring a proceeding at common law to recover damages for injuries she suffered on 27 December 2005.
2 Mr P Jewell QC appeared with Mr S Smith of Counsel for the plaintiff. Mr P Hayes of Counsel appeared for the defendants.
3 The plaintiff claims that as a consequence of an injury she suffered to her left shoulder, she developed a Chronic Pain Syndrome. The proceeding was advanced on the basis that the plaintiff has suffered a permanent severe mental or permanent severe behavioural disturbance or disorder. The mental or behavioural disturbance is said to be a Chronic Pain Syndrome and an Adjustment Disorder with Depressed Mood.
4 The evidence adduced at the trial was as follows:
·The plaintiff gave evidence and was cross-examined.
·Brooke Hallam gave evidence and was cross-examined.
·The plaintiff tendered:
§her Court Book (“PCB”) pages 1-6 and 8-181: exhibit A; and
§a preliminary employer statement to ING dated 3 June 2010: exhibit B.
·The defendants tendered:
§a medical certificate of Dr Ledger, general practitioner, dated 16 November 2009: exhibit 1;
§a Workers Injury Claim Form dated 11 November 2009: exhibit 2;
§the Defendants’ Court Book (“DCB”) pages 2-77 and 82-102: exhibit 3; and
§an extract of the clinical records of the Hastings Clinic: exhibit 4.
Did the Plaintiff suffer a physical injury?
5 On 27 December 2005, the plaintiff was employed by the first defendant as a bar attendant. On that day, she injured her left shoulder when she was moving a beer keg in a storeroom. In the course of doing so, she felt a sharp pain in her left shoulder.
6 The plaintiff saw Dr Mansie, general practitioner, on 29 December 2005 at the Hastings Clinic. His clinical note of that attendance discloses that the plaintiff told him that on 27 December 2005, she was “shifting [a] full barrel” when she felt a pulling sensation in her left shoulder. It further discloses that on the following day when she awoke, she had pain in her left wrist and hand, and that the pain extended across the dorsum of her hand and up the ulnar side of her forearm and upper arm to the axilla. On examination, she was found to have swelling and tenderness, but the power in her fingers, wrist, elbow and shoulder were full and there was no sensory loss. The diagnosis of soft tissue injury was made.[1]
[1]Exhibit 4
7 Mr Hayes referred the plaintiff to the clinical notes and pointed to the fact that the plaintiff next attended the Hastings Clinic on 4 January 2006 relevant to her left shoulder, but then not again until 3 November 2006.[2] Whilst that appears to be the case and was unexplained by the plaintiff, it seems to me to be of little moment.
[2]Transcript 31-37
8 The report of Dr Ledger dated 18 December 2009 demonstrates that the plaintiff was complaining of an actively symptomatic left shoulder from 29 December 2005 to 21 September 2009, which is the last date referred to in that report. In summary, the treatment afforded the plaintiff was:
·4 January 2006 – Tightness on the dorsum of the left hand, extending up the arm and into the left side of the neck. Physiotherapy was recommended.
·3 November 2006 – It was noted that the plaintiff was having chiropractic treatment. She was issued a WorkCover Certificate.
·9 January 2007 – An ultrasound undertaken on 3 January 2007 suggested subdeltoid/subacromial bursal impingement. The plaintiff was given a steroid and local anaesthetic injection into the shoulder joint. An appointment was made for her to see Mr Weber, orthopaedic surgeon.
·19 January 2007 – The plaintiff reported that the steroid injection made no difference to her pain level. Tramadol was added to her analgesia. She had previously been prescribed Panamax, Nurofen and Voltaren.[3]
[3]Exhibit 4
·16 February 2007 – The plaintiff reported a flare-up of pain in her left shoulder lifting a shopping bag. She was referred to physiotherapy.
·26 July 2007 – The plaintiff requested a further steroid injection. The clinical notes do not reveal whether she in fact had the injection or not. She was given a prescription for ibuprofen. She was given a WorkCover Certificate.
·1 October 2007 – The plaintiff complained of continuing left shoulder pain. It was not helped by physiotherapy. She requested another referral to a chiropractor.
·30 October 2007 – The plaintiff reported an exacerbation of left shoulder pain. She was prescribed paracetamol and Meloxicam. She was given a WorkCover Certificate.
·4 December 2007 – The plaintiff reported an exacerbation of pain. It would appear that she was prescribed further analgesia.
·9 July 2008 – The plaintiff was given another steroid injection. She was given a WorkCover Certificate.
·13 August 2008 – The plaintiff was prescribed further anti-inflammatory medication.
·19 August 2008 – The plaintiff was given another steroid injection.
·21 September 2009 – The plaintiff complained of continuing pain in her left shoulder. She apparently reported that she needed regular analgesia and twice-weekly chiropractic treatment.[4]
[4]PCB 58-60
9 Dr Ledger provided a further report dated 9 July 2010,[5] and Dr Frew, general practitioner (from the same clinic), provided further reports dated 10 October 2011,[6] 27 June 2012,[7] 12 March 2013,[8] 13 June 2013,[9] 30 July 2013,[10] 8 August 2013,[11] 17 September 2013[12] and 28 February 2014.[13] Dr Ledger, and then Dr Frew, were of the opinion that the plaintiff was suffering from an injury to her left shoulder which was symptomatic and which required active medical treatment. Indeed, in the last report composed by Dr Frew, he was of the opinion that the plaintiff was suffering from chronic ongoing pain in her left shoulder requiring high doses of opiate analgesia. He considered that she was struggling with her day-to-day life. Furthermore, he was of the opinion that the plaintiff was suffering from a Chronic Pain Syndrome which was difficult to control and which was refractory to medication.[14]
[5]PCB 61
[6]PCB 61A
[7]PCB 62-63
[8]PCB 64-65
[9]PCB 66
[10]PCB 67
[11]PCB 68
[12]PCB 69
[13]PCB 70
[14]PCB 70
10 The clinical notes and the reports emanating from the Hastings Clinic describe referrals to physiotherapy and for chiropractic treatment. The only report from a treating chiropractor is from Mr Ecuyer dated 8 December 2009. He commenced treating the plaintiff on 4 December 2007.[15] The only report from a treating physiotherapist is from Ms Singleton dated 23 November 2009.[16] She commenced treating the plaintiff on 22 October 2009. Both Mr Ecuyer and Ms Singleton treated the plaintiff for left shoulder and neck pain.
[15]PCB 53-54
[16]PCB 51-52
11 My impression from the clinical notes and reports I have just referred to is that the plaintiff was referred to physiotherapy and chiropractic treatment not long after first attending at the Hastings clinic. It would appear that was a feature of her treatment from that time on; however, it is not clear when that treatment ceased.
12 In addition to the foregoing, the plaintiff was referred to a number of specialists who appear to me to have been of the opinion that the plaintiff also suffered an organic injury to her neck, but secondary to it was an emerging Chronic Pain Syndrome, which was later to become the dominant feature of her clinical presentation.
13 Dr Dodic referred the plaintiff to Mr Weber, orthopaedic surgeon. The plaintiff first saw him on 28 February 2007.[17] He provided a report dated 15 July 2012 which appears to be a summary of the treatment he provided the plaintiff.[18] The plaintiff told him that she had pain in her left shoulder and neck. On examination, he found tenderness over the left acromioclavicular joint and limitation of movement of the shoulder. He gave her an injection that day. She failed to attend a review scheduled for 5 June 2007. She returned to see him on 10 December 2009. It would appear that she was complaining of the same problems. It would appear that he referred her to have an ultrasound-guided left subacromial bursal injection, undertaken on 26 March 2010.
[17]In his report dated 23 January 2010 at PCB 74-77, he referred to the first occasion he saw the plaintiff as 28th every 2007, but in his report dated 15 July 2012 at PCB 78-81, he referred to it being 28 March 2007
[18]PCB 78-81
14 Mr Weber had a number of investigations available for his use. Among them were an x-ray and ultrasound taken on 3 January 2007 of the left shoulder; an ultrasound taken on 22 October 2009 of the left shoulder; a report of the ultrasound-guided subacromial bursal injection of the left shoulder; an MRI scan of the left shoulder taken on 1 February 2010, and a CT scan of the cervical spine taken on 22 April 2010.
15 Mr Weber referred the plaintiff to Mr Gassin, musculoskeletal physician, for treatment. That referral appears to have occurred in February 2010. He subsequently reviewed the plaintiff on 11 May 2010. On that occasion, she continued to complain of pain in her left shoulder and neck. She also complained of some problems with her left wrist.
16 Mr Weber considered that the plaintiff was suffering from mild acromioclavicular joint degeneration, subacromial impingement and mild posterior capsulitis of the left shoulder. He also considered that her clinical picture was complicated by the development of a Chronic Regional Pain Syndrome. It would appear that he considered that to be an appropriate additional diagnosis because he was having difficulty explaining all of her pain, and I assume on an organic basis. He added that he observed her to be anxious and distressed.
17 The plaintiff first saw Dr Gassin on 10 February 2010. She subsequently saw him on several occasions between that date and 9 June 2011. He provided a report dated 30 July 2012, which appears to be a summary of the treatment he provided the plaintiff. The plaintiff made very similar complaints to Dr Gassin as she did to Mr Weber regarding pain in her left shoulder and neck. He prescribed her Endep, 10 milligrams, which was increased to 30 milligrams over ensuing weeks.
18 On review on 27 May 2010, Dr Gassin added Lyrica. On review on 7 June 2010, he noted that there was little change in her condition. Lyrica was discontinued. He advised her to continue using Tramal 150 milligrams twice daily which was increased to 200 milligrams twice daily. On review on 7 September 2010, he prescribed her Gabapentin. On review on 5 October 2010, the plaintiff told him Dr Gassin that the Gabapentin had improved the shooting pain that she was experiencing in her neck and left shoulder, but had little impact on the sensory symptoms she was experiencing in her left hand and the pain in the left side of her face and left arm. On review on 9 November 2010, she was prescribed Norspan patches, 10 milligrams. She was advised to discontinue Tramadol (Tramal), and to continue using Panadeine Forte. The dosage of Gabapentin was increased to 1800 milligrams per day. On review on 8 February 2010, the plaintiff told Dr Gassin that she was experiencing improvement on the medication she was taking. On review on 5 April 2011, the plaintiff told Dr Gassin that she was experiencing pain radiating from the left shoulder up into the left side of her face and down her left arm, which he considered to be characteristic of neuropathic pain.
19 Dr Gassin recommended that the plaintiff have neuromodulation, which I understand to be the implantation of a stimulator into the plaintiff’s body. At the time when he made that recommendation, the plaintiff ceased using Norspan and Gabapentin due to side effects. He prescribed her Durogesic patches, but he recommended that she reduce the dosage of Gabapentin to 900 milligrams daily. It would appear that he last reviewed the plaintiff on 9 June 2011.
20 It would appear that Dr Gassin was convinced that the plaintiff’s complaints of pain in her left shoulder and neck were organically based. He considered that she was a candidate for peripheral nerve field stimulation, which I understand to be treated by neuromodulation. However, in his last report dated 28 May 2014, it would appear that the plaintiff saw him on a medico-legal basis. He noted that she complained of pain in her neck, both shoulders, upper back, both arms, and that she had associated headaches. At that time, he was of the opinion that her symptoms were consistent with a Chronic Pain Syndrome affecting her upper body. In the absence of neuromodulation, he considered that the only appropriate treatment for the plaintiff was participation in a structured pain management program.[19]
[19]PCB 100A
21 Dr Frew referred the plaintiff to Mr Broughton, orthopaedic surgeon. The plaintiff first saw him on 1 March 2011. He provided a report dated 7 November 2011, which appears to be a summary of the treatment he provided the plaintiff.[20] The plaintiff made similar complaints to him that she made to Mr Weber. He reviewed her on 9 May 2011, 20 May 2011, 30 June 2011 and lastly on 10 October 2011. It is noteworthy that the plaintiff told him that she had been given thirteen steroid injections. I understand that they were given by the general practitioners at the Hastings Clinic. He also investigated the plaintiff’s right shoulder. An ultrasound showed a full thickness tear in the right shoulder, although he was apparently not convinced that it was accurate. He provided the plaintiff with a steroid injection on 30 June 2011. When he reviewed her on 2 October 2011, she told him that she had experienced improvement for about five weeks before the good effect of it wore off.
[20]PCB 86-88
22 Mr Broughton was of the opinion that a lot of the plaintiff symptoms were due to a Chronic Regional Pain Syndrome. He considered that the pain she was complaining of in her right shoulder was part of the Chronic Pain Syndrome. He considered that because of the incapacity which she suffered with her left upper limb, that she was compensating by overusing her right upper limb, with the result that she began to experience pain in her right upper limb and shoulder.
23 It is convenient to deal with the recommendation made by Dr Gassin for neuromodulation at this point. Mr Broughton supported Dr Gassin’s recommendation; however, the defendants requested Dr Muir, consultant in pain management, to consider its efficacy. He examined the plaintiff in December 2011. In a fairly long report in which he took a history from the plaintiff, he examined a number of radiological investigations and considered the opinion relevant to neuromodulation. He concluded that the plaintiff was suffering predominantly from a soft tissue injury to her left shoulder, and that she had features of fear avoidance, secondary physical deconditioning and some psychological sequelae of the persistent pain from which she was suffering. He was of the opinion that the plaintiff was not suffering from neuropathic pain. He considered that the plaintiff had a significant secondary psychological and physical deconditioning as a consequence of her persistent pain, which would not be assisted by spinal stimulation. He added later in his report that he considered that she had developed a Chronic Pain Syndrome as a consequence of her physical injury, with significant psychological and secondary physical components.[21]
[21]DCB 58-65
Medico-legal experts
1. The plaintiff was examined by a number of medical specialists on a medico-legal basis. On the plaintiff’s side, she was examined by Dr Clayton Thomas, consultant in rehabilitation in pain medicine, on 11 September 2012 and 26 November 2013. Dr Thomas provided two reports dated 25 September 2012[22] and 2 December 2013.[23] Dr Thomas considered that the plaintiff initially had problems with her left shoulder, but it would appear that he was not satisfied that there was any significant organic process which could be identified as the cause of her pain. He also considered that the plaintiff was suffering from a Chronic Pain Syndrome; however, he considered that it was organically based.[24] He observed that there was a degree of pain and suffering, distress and anxiety experienced by the plaintiff, and he considered that the hefty amount of medication she was taking was adding to her burden of suffering. He considered her overall prognosis to be poor.[25]
[22]PCB 165-167
[23]PCB 168-170
[24]PCB 166
[25]PCB 169
24 Mr Westh, orthopaedic surgeon, examined the plaintiff on 11 October 2013. He provided a report dated 18 November 2013.[26] He considered that the plaintiff was probably suffering from underlying rotator cuff tendinopathy with accompanying cervical pain, although he observed that the cause of her ongoing left shoulder pain was not clear. He appears to have then expressed an opinion based upon that diagnosis; however, he also considered that she was suffering from a significant accompanying Chronic Pain Syndrome and, overall, had a poor prognosis.[27]
[26]PCB 128-131
[27]PCB 130-131
25 Dr Sutcliffe, occupational physician, examined the plaintiff on 7 November 2012 and 22 January 2014. She provided two reports dated 7 March 2013[28] and 29 May 2014.[29] She was of the opinion that the plaintiff had suffered a soft tissue injury to her left shoulder, with the subsequent onset of neuropathic pain which had spread to her neck, face, left upper limb and with the subsequent onset of right shoulder pain. She considered that the plaintiff was in effect incapacitated for any work. She considered that neuromodulation was a valid treatment for the plaintiff. She noted that other examiners had referred to the presence of a Chronic Regional Pain Syndrome. She herself did not make that diagnosis, although the finding she made on examination, and the observation she made generally about the plaintiff’s condition, are similar to other physicians, namely Dr Gassin, Dr Thomas and Dr Muir.
[28]PCB 137-151
[29]PCB 152-164
26 The defendants had the plaintiff examined by a number of medical specialists. The first in time was Dr Barton, consultant occupational physician. He examined the plaintiff on 27 June 2011 and 19 February 2013. He provided three reports dated 28 June 2011,[30] 20 February 2013[31] and 27 February 2013.[32] He expressed an opinion seriously doubting whether there was any organic basis for the complaints of pain made by the plaintiff. He observed that she was suffering from a multitude of symptoms, which, to him, made no medical sense and defied any legitimate physical diagnosis. He said that the most appropriate medical term to describe her problem was one of a Chronic Pain Syndrome. He added that he did not believe there was any evidence of injury, and that he would have expected her to have made a complete recovery, and that would have occurred had it not been for the psychological and functional factors which then came into play.[33]
[30]PCB 44-50
[31]PCB 51-55
[32]PCB 56-57
[33]PCB 53-54
27 Mr Dunin, orthopaedic surgeon, examined the plaintiff on 17 July 2012. He provided a report dated 17 July 2012.[34] He was of the opinion that the improvement she obtained after having steroid injections suggested that she might have a rotator cuff tendinopathy with a possible impingement syndrome; however, he was also of the opinion that the degree of pain complained of by the plaintiff was out of proportion to her clinical and radiological features, which suggested to him that she was suffering from a Chronic Pain Syndrome. He considered that the plaintiff had suffered from an adverse psychological reaction which was quite significant. He estimated that 60 per cent of what he saw as her left shoulder condition was contributed to by a psychological component.[35]
[34]PCB 132-136
[35]PCB 134-135
28 Mr Hart, orthopaedic surgeon, examined the plaintiff on 31 January 2012, 8 March 2012 and 12 March 2014. He provided four medical reports dated 31 January 2012,[36] 8 March 2012,[37] 5 February 2013[38] and 12 March 2014.[39] In his last report, he summarised the upshot of the opinions he expressed in the previous reports. After examining the plaintiff and reviewing a body of radiological investigations and medical reports of other medical practitioners, he was of the opinion that the plaintiff had suffered tendinopathy in the left supraspinatus with associated subacromial bursitis related to the episode at work on 27 December 2005. However, although he considered that the plaintiff had suffered tendinopathy of the right rotator cuff, he did not consider that the onset of right shoulder pain was work-related.
[36]DCB 2-17
[37]DCB 18-20
[38]DCB 21-32
[39]DCB 33-43
29 Mr Hart was of the opinion that the symptoms complained of by the plaintiff in her upper extremities were too widespread to be due to tendinopathy. He added that her symptoms were out of proportion to the imaging he examined and his clinical findings. He considered that a diagnosis of a Chronic Pain Syndrome was appropriate.[40]
[40]DCB 41-43
30 The preponderance of the medical evidence supports the conclusion that the plaintiff suffered an injury to her left shoulder. I think that is well supported by the opinions of the general practitioners at the Hastings Clinic, Mr Weber, Mr Broughton, Dr Gassin, Mr Westh, Dr Sutcliffe, Dr Thomas, Dr Muir, Mr Dunin and Mr Hart. What is clear is that when the diagnosis of these medical practitioners is compared, they differ in various ways; however, what is common to their opinions is that the plaintiff suffered an injury to her left shoulder. The preponderance of medical opinion is that the injury is organic, and may be consistent with tendinopathy or acromioclavicular joint degeneration or subacromial impingement or posterior capsulitis. These diagnoses seem to feature in the analysis of many of the medical practitioners to whom I have just referred.
31 Of course, the preponderance of the medical opinions is that the plaintiff’s complaints of pain in her left shoulder, left upper limb, neck, right shoulder and right upper limb are out of keeping with what all of those medical practitioners would expect, and hence the consistent opinion that the plaintiff has suffered a Chronic Pain Syndrome. Perhaps the only medical practitioner who is less consistent with that position is Dr Sutcliffe, who did not expressly accept that the plaintiff had suffered a Chronic Pain Syndrome. Dr Barton is at the extreme, where he simply does not accept that the plaintiff suffered an injury. He used the word “functional”, which is a term of art often used by medical practitioners to denote complaints of pain without a known organic cause or structural change. I reject Dr Barton’s opinion in preference for the preponderance of the medical opinions, that the plaintiff did suffer an injury to her left shoulder.
The right shoulder – causation?
32 The opinions which support the proposition that the plaintiff’s greater reliance on her right arm has led to an overuse of it resulting in injury are as follows:
· Mr Ecuyer was of the opinion that as a result of the plaintiff’s limited use of her left arm that she relied heavily on her right arm to undertake daily activities, which led to her experiencing pain on her right side.[41]
[41]PCB 55
· Dr Frew was of the opinion that the plaintiff’s right shoulder became a problem for her due to her prolonged inability to use her left shoulder, resulting an overuse of her right shoulder. He appears to have been comfortable accepting that proposition, because it was also the opinion of Mr Broughton.[42]
[42]PCB 64
· Mr Triep, myotherapist, was of the opinion that the plaintiff’s long-term constant pain in her left arm and reduced strength in her left hand and fingers led to her suffering constant pain in her right arm and shoulder, with numbness in her fingers due to overcompensating and overuse of her right arm.[43]
[43]PCB 82
· Mr Broughton was of the opinion that the condition of the plaintiff’s right shoulder was a direct result of the injury to her left shoulder and had been aggravated as a result of compensating for her left shoulder.[44]
· Dr Gassin was of the opinion that the plaintiff’s right upper limb pain was most likely due to overuse and, by implication, as a result of the injury to her left shoulder.[45]
[44]PCB 88
[45]PCB 98
33 Dr Barton,[46] Mr Dunin[47] and Mr Hart[48] rejected the proposition that the plaintiff’s complaints of pain in her right shoulder and upper limb could be related to overuse of her right shoulder due to the injury to her left shoulder.
[46]DCB 47
[47]DCB 135
[48]DCB 42
34 The plaintiff’s evidence, and the histories recorded by all of the examining medical practitioners, discloses that the plaintiff has consistently made complaints of significant pain and limitation of movement of her left shoulder. That appears to me to create a basis upon which I can accept that the plaintiff used her right upper limb more. The preponderance of the evidence favours the conclusion that the plaintiff did overuse her right upper limb. It is certainly the opinion of medical practitioners whose opinion should be respected. They being Dr Frew, Mr Broughton and Dr Gassin. Dr Frew has been one of the plaintiff’s general practitioners for a very long time. Mr Broughton is an orthopaedic surgeon who one would expect would have a particular understanding of the causation of injuries of a musculoskeletal nature, as would Dr Gassin. Of course, that is balanced against the opinions of Dr Barton, Mr Dunin and Mr Hart, whose opinions should also be respected, considering their medical backgrounds. However, I prefer the opinions which favour the conclusion that the injury to the plaintiff’s right upper limb is causally related to overuse of it due to the injury to the plaintiff’s left shoulder.
The mediation of the Chronic Pain Syndrome
35 Apart from Dr Sutcliffe and Dr Barton, the preponderance of the medical opinions is that the plaintiff has suffered an injury to her left shoulder and that it is from that injury that the complaints of more widespread pain have occurred. It appears to me that the injury to the plaintiff’s left shoulder has mediated the onset of the more widespread complaints of pain in the plaintiff’s neck, face and arm. The occurrence of the injury to the plaintiff’s right shoulder is due to overuse, but the more widespread nature of that pain extending into the plaintiff’s arm appears to me to be part of the Chronic Pain Syndrome.
36 I have read the opinions of the medical practitioners carefully, and apart from Dr Sutcliffe and Dr Barton, none of them appear to me to say that the more widespread pain of which the plaintiff complains is not mediated by the injury to her left shoulder, in other words, that is where the more widespread complaints commenced.
37 It appears to me that the Chronic Pain Syndrome has an organic basis, although the extent to which that organic basis explains the widespread nature the plaintiff’s complaints is obviously doubted, but not to the extent to be eliminated.
What is the Chronic Pain Syndrome?
38 Mr Jewell submitted that the Chronic Pain Syndrome is a mental or behavioural disturbance or disorder. He submitted that it is a psychiatric disorder, and in that respect, he referred to the opinion of Dr Entwisle, psychiatrist, who examined the plaintiff on 30 January 2012, 8 February 2013 and 20 March 2014. He provided three reports dated 31 January 2012,[49] 12 February 2013[50] and 20 March 2014.[51]
[49]DCB 66-69
[50]DCB 70-73
[51]DCB 74-77
39 In his last report, he expressed the opinion that the following was an appropriate diagnosis following his examinations of the plaintiff:
“Ms Hallam presents with an Adjustment Disorder with Depressed Mood and a Chronic Pain Syndrome.”
40 The only conclusion I can reach, because of the fact that the reference to Chronic Pain Syndrome was part of his diagnosis, is that it is a psychiatric condition. If it is not, then it is curious why Dr Entwisle would include it in a part of his report which is of critical importance; that is, the product of his psychiatric examination of the plaintiff.
41 Dr Entwisle appears then to have referred to the two conditions of Adjustment Disorder with Depressed Mood and Chronic Pain Syndrome collectively when he answered a number of questions on the last page of his third report. He firstly said:
“Ms Hallam perceives the cause of her condition to be the injury at work. That injury has become complicated by various pain behaviours and the development of [a] pain syndrome. She has scored high on the depressed and anxious scales when assessed for anxiety and stress at the Caulfield pain management program. Functional factors play a large part in her presentation. She has a strong illness belief.”
He then added:
“When taking Mr Hallam’s presentation overall it is obvious that she has little in the way of work capacity. She cannot perform her preinjury job. She struggles to complete aspect[s] of her domestic activities. She remains socially avoidant.”
He then added:
“Whilst from a psychiatric perspective alone Ms Hallam would be deemed to have a work capacity for suitable duties when taken in the overall, however any return to work at the present time carries with it a guarded prognosis.”
Lastly, he said:
“Ms Hallam’s pain syndrome continues. Her now isolated life, a lack of social interaction, strong illness conviction have combined to result in a deterioration in her mood with the development of an Adjustment Disorder with Depressed Mood. It is difficult to describe a typical course of such conditions as they vary. Strong motivation and a focus on return to work are associated with a good prognosis in such cases. Unfortunately in Ms Hallam’s case her condition has become entrenched and factors related to a strong illness belief will need to be strongly challenged.”
42 As I follow the way in which Dr Entwisle has structured the expression of his opinion, it would appear that as a result of the injury to the plaintiff’s left shoulder, she made complaints of pain which were out of keeping with that injury, and hence the diagnosis of Chronic Pain Syndrome. He appears to be of the opinion that with the onset of the Chronic Pain Syndrome, it produced a reduction in the plaintiff’s mood, and in turn the Chronic Pain Syndrome, and the reduction in her mood led to the development of an Adjustment Disorder with Depressed Mood. It appears to me that the submission made by Mr Jewell is well supported by the opinion of Dr Entwisle.
43 I will shortly deal with questions of what of the plaintiff’s evidence I accept, but at this stage, the conclusion I have reached is that the Chronic Pain Syndrome is a psychiatric condition. I am fortified in reaching that conclusion for two reasons: Firstly, it appears to me that medical practitioners in this case whose interests lie in the treatment of physical complaints used the expression Chronic Pain Syndrome to demonstrate a mental disturbance or disorder rather than a secondary physical reaction. Secondly, it is consistent with the opinion of Dr Entwisle, who was the only psychiatrist engaged to give an opinion in this case.
44 I should add, as a general comment, that the use of the expression Chronic Pain Syndrome is used too often by the medical fraternity without giving thought to what is meant by the use of that expression. Surgeons tend to use it to denote that the symptoms cannot be necessarily associated with an organic process, and therefore, the symptoms are more consistent with a secondary psychological/psychiatric state. Pain physicians tend to use it to demonstrate a process which is part of an organic process. In the end, how it is used and what is meant in its use is entirely contextual, that is, it depends on the specialty of the medical practitioner using it in order to determine what is meant by its use.
The Plaintiff’s evidence – consequences
45 The plaintiff swore three affidavits on 18 October 2011,[52] 20 February 2013[53] and 27 May 2014.[54] The consequences of the Chronic Pain Syndrome, which she described in both the affidavits and in her oral evidence, can be summarised as follows:
[52]PCB 1-6
[53]PCB 8-9
[54]PCB 10-11
· Constant pain in the left shoulder; pain extending from the left shoulder extending into the left side of the neck, face and head; left-sided headaches; pain extending down the left upper limb into the fingers of the left hand, and numbness, pins and needles in the left wrist and the fingers of the left hand.
· Additionally, constant pain in the right shoulder.
· Interference with sleep.
· Interference with grip and grip strength.
· Interference with personal care, such as raising her hands to wash her hair; to put on jumpers; to do up a bra, and to engage in toileting, presumably due to difficulty extending her hands around her back.
· Interference with her capacity to raise her arms above shoulder level; to engage in repetitive manual movement, and to hold things without dropping them.
· The need for medical treatment of that kind which I have summarised above.
· The onset of frustration, depression, loss of confidence and energy.
· Interference with her capacity to work for the first defendant as a bar attendant and as a cook at a child minding centre.
· The need to rely upon her partner and her daughter to assist her domestic tasks, such as washing and vacuuming her car, with shopping and with gardening.
· Interference with her sexual relationship with her partner.
· Interference with her general social life.
· Interference with her capacity to drive a car.
46 The plaintiff was cross-examined on the consequences referred to in her affidavits. It was put to her that because she was able to prepare meals for children in her work for ABC Learning Centres, that she did not need assistance with cooking at home;[55] that she did not have difficulty with her own personal care and toileting;[56] that she had not pursued medical treatment, for example with Dr Gassin from July 2011, and she did not attempt to attend a pain clinic until May 2013. The general thrust was that the plaintiff has retained a measure of reasonable health and capacity to engage in social, domestic and other activities.[57]
[55]Transcript 77-78
[56]Transcript 79-80
[57]Transcript 81-94
47 During re-examination, in relation to domestic activities in her home and toileting, the plaintiff said that she has a lot of hand and arm pain which interferes with her ability to undertake tasks, for example peeling and chopping and using a beater.
The Plaintiff’s capacity for work
48 At the time when the plaintiff suffered the injury to her left shoulder she was employed as a bar attendant by the first defendant. The plaintiff usually worked 27 hours per week. After seeking medical treatment on 29 December 2005, and then in January 2006, she was off work for a short period of time before returning to work with the first defendant. Her work hours were reduced to 10 hours per week. Although she was expecting to work on modified duties, she in fact continued to work her usual duties. She continued working on reduced hours until March 2008 when she ceased working with the first defendant altogether.[58]
[58]Transcript 37-38
49 In March 2007, the plaintiff obtained a job with ABC Learning Centres as a cook. She said that she worked from 8.30am to 1.00pm five days per week. It was put to her that in fact she worked considerably more than 22.5 hours per week. The parties had access to the plaintiff’s wage records which demonstrated that while she was working for the ABC Learning Centres for the period between 5 March 2007 and 30 June 2007, the plaintiff worked 411 hours, equating to an average of 24.2 hours per week; for the period from 1 July 2007 to 30 June 2008, the plaintiff worked 1,642 hours, equating to 31.5 hours per week; for the period from 1 July 2008 to 30 June 2009, the plaintiff worked 1,116.25 hours, equating to 21.5 hours per week, and for the period from 1 July 2009 to 9 November 2009, the plaintiff worked somewhere between 21 and 26 hours per week.
50 Mr Hayes cross-examined the plaintiff at some length relevant to her capacity to undertake work with the first defendant as a bar attendant, and with the ABC Learning Centres as a cook, given that manual operations would inevitably have been involved in her undertaking that work successfully.[59] The cross-examination elicited that the plaintiff was able to do her work with the first defendant. She said that she was able to do her work as a bar attendant because she had help from another lady. She said that the reason why she finally ceased working for the first defendant was because she was dropping so many hours that she decided to give that job away, but stayed on until the first defendant found someone else to take her place.[60]
[59]Transcript 39- 53 and 55-60
[60]Transcript 43-44
51 The plaintiff worked both jobs between March 2007 and March 2008 when she ceased working for the first defendant. It was put to her that in that period, she was working 10 hours per week with the first defendant, at least 22.5 hours per week with the ABC Learning Centres and perhaps longer hours with the ABC Learning Centres. This was demonstrated by the agreement reached by the parties that between March 2007 and June 2007, she worked an average of 24.2 hours per week, making a total of 34.2 hours.
52 The plaintiff agreed that she worked in a kitchen with ABC Learning Centres. She prepared meals for about 100 children. The meals ranged from cooking pasta and rice to preparing fruit, yoghurts and like foodstuffs. The meals she prepared were morning tea, lunch and afternoon tea. She was responsible for maintaining the kitchen; cleaning it; the whole range of meal preparation involved in the meals just described, and on some occasions meal preparation involved baking cakes.[61]
[61]Transcript 44-53 and 55-59
53 The plaintiff said that she knew that ABC Learning Centres was placed into voluntary administration in November 2008. She denied that she knew much about what was happening in that respect. She did know that the business was sold in December 2009 to a company known as Good Start Early Learning. She denied that the reason why she ceased working for ABC Learning Centres was because of the uncertainty with her employment as a cook, and claimed she did not cease that employment because of any physical or psychological/psychiatric problems that she might have been experiencing.[62]
[62]Transcript 64-65
54 The plaintiff identified an incident which involved her spilling boiling water on to herself, which resulted in her suffering an injury. She said that the injury incapacitated her to the extent that she spoke to her employer (I assume ABC Learning Centres) about finding her a position within her capacity, and it would appear that the reference to capacity was a capacity to perform work given the burns which she suffered. After some communication with the employer, she received a letter informing her that her employment had been terminated.
55 It was put to the plaintiff that the incident involving the burns occurred in a manner quite different from the description she initially gave, that she was carrying a vessel containing boiling water which she spilt while carrying it. She was shown a Worker’s Injury Claim Form which she signed on 11 November 2009. It described that incident differently. She wrote on that form that the stove was not working, which required her to use frying pans to boil vegetables. She moved the frying pan and, as she did so, it fell off the bench on which it was sitting.[63] The plaintiff did not recall filling out the Claim Form, and denied that the description which she wrote on the Claim Form was true. She said she was carrying the frying pan and, while doing so, her left shoulder gave out, resulting in her spilling boiling water down the front of her body.[64]
[63]Exhibit 2
[64]Transcript 67-68
56 It was also put to the plaintiff that the burns she suffered were negligible. She suffered a 1.5-centimetre burn on her left big toe, which blistered. She saw a nurse at the Hastings Clinic on 16 November 2009. It was put to her that she returned and saw that nurse on 11 November 2009. She was unable to recall whether she did or not. She denied being told by the nurse that the burn had healed, and indeed, she could not recall returning to see that nurse on 11 November 2009. It was put to her that she was given a medical certificate dated 16 November 2009 which was relevant to the burn injury which certified her as being fit for normal work. She agreed.[65]
[65]Exhibit 1, and Transcript 67-76
57 The purpose of the cross-examination was to demonstrate that the plaintiff was able to continue working with the first defendant, albeit on reduced hours of 10 hours per week doing the usual work of a bar attendant; that she was able to take on work as a cook with ABC Learning Centres; at least at one stage she was working about 34.2 hours per week; that she was able to undertake that work because she was physically capable of undertaking the physical demands of both of those jobs, and after she ceased working for the first defendant, she was capable of undertaking the physical demands of the work with ABC Learning Centres.
58 Furthermore, that her employment with ABC Learning Centres did not come to an end because of any physical incapacity she was experiencing either because of the burn injury or because of her left shoulder injury, but because the voluntary administration of ABC Learning Centres and the purchase of that business by Good Start Learning Centre was the real reason why that employment came to an end.
59 During re-examination, the plaintiff was asked whether she suffered any interference with her capacity to work with ABC Learning Centres resulting from her injuries. She said that she was experiencing sharp pain in her left shoulder, was struggling and taking a lot of medication, and overall was having a lot of difficulty doing her job. She said that she was trying to work and at the same time trying to control the pain she was experiencing. She said that her left shoulder is much worse now than it was when she was working and that there is no way that she could do that work now.[66]
[66]Transcript 96-97
60 In relation to the incident resulting in the burn injury she said that the pain she was experiencing in her left shoulder had an effect upon her ability to hold the pan. She said that she “sort of let go of it”, and I assume due to that pain.
The Evidence of Brooke Hallam
61 The plaintiff’s daughter, Brooke Hallam, swore an affidavit on 27 May 2014.[67] In summary, she was aware that the plaintiff had suffered an injury in her employment with the first defendant. She described the impact upon the plaintiff of that injury as “things have changed dramatically”, which she meant for the plaintiff. From her observations, she described that dramatic change as:
[67]Transcript 96-97
· Many tasks for which the plaintiff requires assistance in the home, for example hanging out the washing, mopping, vacuuming and gardening.
· Cooking, for example removing a boiling pot of water off the stove and draining it. No longer being able to do the majority of cooking over Easter and Christmas.
· Dressing, for example, struggling to do up her bra and doing up buttons on a shirt.
· Toileting, for example, washing her hair and leaving it to dry rather than using a blow dryer because of the need to raise her hands above head height.
· Loss of her independence and “get up and go”, struggling with things which she previously enjoyed and being slower at doing such things, for example her loss of enjoyment wandering around markets and going on shopping trips for limited periods of time.
· Feeling that her mother has become an old lady before her time.
62 Mr Hayes cross-examined the plaintiff’s daughter, Brooke, challenging the basis of her observations of the downturn in the plaintiff’s health since she suffered injury. He directly challenged the basis of some of her observations, and did so by putting to Brooke some of the evidence of the plaintiff which suggested Brooke’s observations were an exaggeration. Although she considered her mother’s evidence, it appeared to me that she was unshaken, and confirmed that the contents of her affidavit.[68]
[68]Transcript 107-117
Conclusions
63 What is not controversial is that the plaintiff did suffer a compensable injury. So much was conceded by Gallagher Bassett Services Worker’s Compensation Vic Pty Ltd by a determination dated 18 March 2010. By that determination, it accepted liability for the plaintiff’s left shoulder, and the determined that the claimed injuries to the plaintiff’s neck, left arm and left hand are referred pain from the plaintiff’s left shoulder. The claim did not include, or so it would appear, the plaintiff’s right shoulder and arm. The claim for a psychiatric condition was rejected on the basis, or so it would appear, of a report of a Dr Duke, who I assume is a psychiatrist. His report was not included in the Defendants’ Court Book.[69] The extent to which that determination is of any use to the plaintiff was determined by the Court of Appeal in Ansett Australia Ltd v Taylor.[70]
[69]PCB 32-41
[70][2006] VSCA 171
64 On the basis of my analysis of opinions of all of the medical practitioners whose interests lie in treating physical injuries, there appears to be almost no doubt that the plaintiff has and continues to suffer from a Chronic Pain Syndrome. I have quoted directly from Dr Entwisle’s last report in which he deals with the question of medical causation and Chronic Pain Syndrome resulting in deterioration in the plaintiff’s mood, which then led to the development of an Adjustment Disorder with Depressed Mood. The only conclusion that I can reach based upon the whole of the medical evidence, is that the Chronic Pain Syndrome is a psychiatric condition dealt with contextually by Dr Entwisle in the end.
65 The next step I must take is to determine whether the injury to the plaintiff’s right shoulder is causally related to the injury to her left shoulder. I have referred to the medical evidence in that respect. Although there is medical evidence going either way, I am more inclined to accept the evidence in support of the conclusion that it is causally related.
66 In that setting, the physical complaints made by the plaintiff encompass her left shoulder and left upper limb; her neck and part of her face; headaches, and her right shoulder and right upper limb. I have little doubt that it is the widespread nature of her complaints of pain and disablement which underwrite the diagnosis that she is suffering from a Chronic Pain Syndrome.
67 At present, the diagnosis and prognosis are poor in terms of effective treatment to assist the plaintiff in resolving the cause of her Chronic Pain Syndrome, and also her capacity to work, and her capacity to function generally. I think part of that is illustrated very pointedly by the extent to which she is consuming what appears to me to be a significant volume of medication.
68 It appears to me that the Chronic Pain Syndrome is a psychiatric reaction, and to the extent that the more widespread pain experienced by the plaintiff is the result of that psychiatric reaction, then it is to be considered under (c).
69 It has been emphasised by the Court of Appeal in Jayatilake v Toyota Motor Corporation Australia Ltd[71] that the task on which I am now embarking is one in which I must give consideration to all of the evidence in determining whether the plaintiff has established the pertinent aspects of the definition of serious injury, that she has suffered a permanent severe mental or permanent severe behavioural disturbance or disorder. The examples given by Ashley JA in Jayatilake demonstrate that there may be no need to undertake what is described as “disentangling” and “stripping out” where the injury said to constitute serious injury is plainly evident. The examples were given from the perspective of a physical injury where there was the onset of a secondary psychiatric condition.
[71](2008) 20 VR 605
70 It appears to me that it is equally applicable where the injury said to constitute a serious injury is the secondary psychiatric condition. I can see no reason why disentangling and stripping out are necessarily required when the quantum of the secondary psychiatric condition is so obvious as to be plainly consistent with it being a serious injury, or more particularly, a severe mental or permanent severe behavioural disturbance or disorder.
71 In Meadows v Lichmore Pty Limited[72] Maxwell P considered that the County Court Judge’s formulation of a question: “Do the pain and suffering consequences attributed to the relevant impairment have a substantial organic basis?” was a permissible approach and did not involve any error of law. His Honour referred to the County Court Judge’s formulation of that question as being derived from what was said by Ashley JA in Jayatilake.[73]
[72][2013] VSCA 201
[73]at paragraphs [20]-[26]
72 It is clear from my analysis of the medical evidence that I accept that the plaintiff suffered a Chronic Pain Syndrome. It is also clear that I accept the analysis of Dr Entwisle and the part which the physical injury played in causing the Chronic Pain Syndrome, and the part the Chronic Pain Syndrome played in causing the Adjustment Disorder with Depressed Mood. What I must now turn to is whether I accept the plaintiff’s evidence that the consequences are “severe”.
73 The cross-examination demonstrated some aspects of the plaintiff’s evidence which suggest that she is not so creditworthy or reliable. I have carefully considered her evidence, and I have reviewed the transcript of her cross-examination. Having done so, I am not satisfied that the attack on her creditworthiness and reliability is sufficient to persuade me that I should reject her evidence that she is suffering from a psychiatric condition of considerable impact.
74 There is no doubt that the plaintiff continued working for the defendant, and at the same time worked for ABC Learning Centres. It suggests that she was capable of working, and therefore, that fact alone militates against a finding that she was labouring under an emerging psychiatric condition, which ultimately overtook her. I think that evidence needs to be put into its proper context.
75 Firstly, the plaintiff struck me as being rather more a stoic who wanted to soldier on. She was under medical treatment and was prescribed medication at the time she was working. I accept her evidence that she was labouring under real difficulty. That is confirmed to some extent by an observation made by Dr Ledger in his report dated 18 December 2009, in which he referred to seeing the plaintiff on 21 September 2009. He said:
“On that occasion she reported that she continued to have pain and needed regular analgesic and twice-weekly chiropractic treatment. She had a new job in childcare and while she managed the required duties, she did find it a struggle at times.”
76 It was then that he referred the plaintiff back to see Mr Weber.[74]
[74]PCB 60
77 It is understandable why the defendants are reluctant to accept that the plaintiff’s departure from her employment with ABC Learning Centres was more than coincidental with ABC Learning Centres entry into financial difficulty and going into voluntary administration. However, that would be to ignore the reality of the plaintiff’s evidence and the observation of Dr Ledger that the plaintiff was “struggling at times”. According to the plaintiff, it was more than just struggling at times, but real difficulty in maintaining her employment.
78 Secondly, the current medical evidence points to the plaintiff having been overtaken by her psychiatric condition. It would appear that the medical practitioners understood the plaintiff’s history of work, and none saw that as a matter going to her creditworthiness and reliability. They have expressed opinions which impress me as being rather extreme in the sense of describing a psychiatric condition of considerable impact.
79 Thirdly, although I have some misgivings about the plaintiff’s explanation for how she suffered the burn injury, it would appear to me to be less important when I have regard to all of the evidence.
80 Fourthly, the plaintiff’s departure from her employment with ABC Learning Centres must also be seen in the context of her evidence of how she was faring around that time and the medical treatment she was having. I accept that she was not faring well and was labouring under such difficulty that she required active medical treatment, as described by Dr Ledger on 21 September 2009.
81 I propose to deal with the plaintiff’s loss of earning capacity first. A finding that she has suffered the requisite degree of loss of earning capacity does not in turn require me to consider whether the pain and suffering consequences meet the statutory test.[75] At this point I have little doubt that the consequences to the plaintiff of the psychiatric condition described by Dr Entwisle are severe.
[75]Advance Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Ansett Australia Ltd v Taylor (supra)
82 My reasons for reaching that conclusion are:
· I accept that the plaintiff has widespread pain encompassing her shoulders, upper limbs, neck, face and through headaches.
· I accept that almost every aspect of her non-working life has been affected. I accept that her capacity to cook, clean, shop, bathe and toilet are adversely affected by this psychiatric condition.
· I am fortified in reaching that conclusion because of the evidence of Brooke, who struck me as being an entirely believable witness who observed first-hand the extent to which her mother’s health has deteriorated since she first suffered injury.
· I accept that the plaintiff was incapacitated for the work she undertook with the defendant and had to reduce her hours. Although I accept that the plaintiff then took up employment with ABC Learning Centres, she worked with difficulty.
· The plaintiff has undergone a significant amount of medical treatment at the hands of a number of surgeons and physicians, and, of course, at the hands of general practitioners at the Hastings Clinic. She has also undergone a significant amount of treatment at the hands of paramedical practitioners. She consumes a significant amount of medication.
83 Furthermore, the prognosis relevant to the Chronic Pain Syndrome and the Adjustment Disorder with Depressed Mood appears to me to be very poor. None of the medical evidence suggests that the plaintiff has any realistic likelihood of returning to the workforce, and it must be remembered that the plaintiff is essentially a manual worker. She might have worked as a bar attendant and as a cook, but they were both occupations requiring not only bodily strength, but mental strength, which the plaintiff no longer has.
84 For all the foregoing reasons, the conclusion I have reached is that the psychiatric condition under which the plaintiff labours amounts to a permanent severe mental or permanent severe behavioural disturbance or disorder. Furthermore, the conclusion I have reached is that the plaintiff’s loss of earning capacity can fairly be described as more than serious to the extent of being severe.
85 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s134AB(16)(b) of the Act to recover damages for injuries for pain and suffering and loss of earning capacity arising out of her employment with the first defendant.
86 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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