Heffernan v Glad Pty Ltd (T/as Silver Circle Home Support
[2010] VCC 171
•12 March 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-00173
| KAY GWENYTH HEFFERNAN | Plaintiff |
| v | |
| GLAD PTY LTD | Defendant |
| Trading as SILVER CIRCLE HOME SUPPORT SERVICES |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 9 and 10 March 2010 |
| DATE OF JUDGMENT: | 12 March 2010 |
| CASE MAY BE CITED AS: | Heffernan v Glad Pty Ltd (T/as Silver Circle Home Support Services) |
| MEDIUM NEUTRAL CITATION: | [2010] VCC 0171 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985, s.134AB(16)(b) – serious injury application – nature and extent of injuries – identification of consequences of organic injury to the thoracic spine and chronic adjustment disorder – application in respect of pain and suffering and loss of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell SC and | Maurice Blackburn Pty Ltd |
| Mr G Chancellor | ||
| For the Defendant | Mr A Middleton | Thomson Playford Cutlers |
| HIS HONOUR: |
1 In this proceeding, the plaintiff seeks leave to commence a proceeding claiming damages for the pain and suffering and loss of earning consequences associated with injuries suffered by her in the course of her employment with the defendant.
2 The injuries relied upon by the plaintiff in this application are:
(i) the impairment of function of the thoracic spine; (ii) a Chronic Adjustment Disorder with Depressed Mood. 3 In the proceeding, the plaintiff gave evidence and was cross-examined. Otherwise the parties rely upon the material contained in their respective Court Books, together with a number of tendered documents, including extracts of the plaintiff’s medical records.
The Evidence Relied on by the Plaintiff
4 The plaintiff has sworn two affidavits. In her first affidavit dated 21 August 2008, the plaintiff deposed that:
•
She was a fifty-seven year old widow who resided with her daughter and granddaughter;
•
Having attended school to Year 9 level, she worked in stores and factories until 1970 when she left the workforce in order to raise her family. The plaintiff returned to the workforce in 1992. Between 1992 and 1999, she worked as a larder chef. In 1999, the plaintiff gave up work to care for her husband who was suffering from cancer. The plaintiff’s husband died in November 2000, and in 2001, the plaintiff commenced employment with the defendant. In that employment the plaintiff worked on a casual basis, working the hours that she was offered, between four and thirty hours per week;
•
She suffered an injury in the course of her employment with the defendant on 17 August 2003. She said that following that injury she developed pain in her mid-back and between her shoulder blades. She also described the presence of pins and needles bilaterally but, more into her right hand and fingers;
•
She initially consulted her general practitioner, Dr Nicolettou, who referred her for physiotherapy and for nerve conduction studies. In January 2004, the plaintiff underwent a right carpal tunnel release performed by the hand surgeon, Mr Slattery, and in April 2004, she underwent a left carpal tunnel release, also performed by Mr Slattery;
•
In mid-2004, she returned to light duties with the defendant, the relevant restrictions being that she was to lift no more than 5 kilograms and was not to engage in homecare work;[1]
•
In February 2006, Dr Merigan referred her to Dr Thomas, a consultant in rehabilitation and pain medicine, who subsequently referred her to Dr McCarthy, a specialist anaesthetist. Dr McCarthy administered nerve blocks and also performed a radio-frequency denervation. Notwithstanding this treatment, the plaintiff said that by November 2006, by reason of the presence of intense pain in her upper back and pain in her hands and wrists, she ceased work with the defendant and has not worked since that time;
•
In 2007, the plaintiff completed a Pain Management Course at The Victorian Rehabilitation Centre. She said that the course did not cure her pain but gave her some insight into the cause of her symptoms and how to manage them. Since that time her condition had been managed by Dr Merigan, who had prescribed medication in the form of Panadeine Forte, Celebrex, Panadol and Aropax. In addition, the plaintiff was receiving physiotherapy;
•
Before her injury, the plaintiff described a love of gardening and the enjoyment of a hobby of making wooden furniture for children. She said she had taken up lawn bowls as it was a gentle sport which “gets me out of the house”. She described an increase in her hand and back pain however, being associated with that activity and the need to take extra tablets the night before, on the day and the day after playing bowls;
•
She suffered from symptoms of pain in her mid-back which was always present but which varied in intensity. She suffered from pain in both her wrists and hands, the right being worse than the left. She described difficulty performing household chores such as vacuuming, cooking and gardening. She said that her back injury made bending and lifting difficult. She described having difficulty hanging out clothes, sitting or standing for too long. She described her ability to drive as being limited to about thirty minutes, by which time she suffered an increase in back pain. She said that her pain occasionally affected her ability to sleep.
[1] 5 In a further affidavit dated 9 September 2009, the plaintiff deposed:
•
That her symptoms and restrictions remained as outlined in her previous affidavit;
•
That but for her injury she had intended increasing her work to full-time employment;
•
That she continued to attend Dr Merigan who prescribed Cymbalta for her depression, together with a daily mix of Panadeine Forte, Panamax, Panadol and Nurofen, which the plaintiff used on a daily basis depending on her level of activity and symptoms. In addition, the plaintiff described using Celebrex tablets to “assist me through my game of lawn bowls and on occasions when my pain is really bad”. She said that she made occasional use of sleeping tablets and that her sleep remained disturbed by reason of pain;
•
That she attended a psychologist, Ms Mizzi, every two to three weeks. That she suffered from depression, which she described in the following terms:
“Sometimes I go into a deep depression. Some days I don’t want to get out of bed. At times I am teary. At times I have felt very anxious. My memory and concentration are poor. I have low energy and I have lost my drive. I am very frustrated and get very angry with what has happened to me. My mental state reduces my capacity to work.”
6 The plaintiff relies upon evidence contained in two further affidavits.
• In an affidavit dated 13 May 2009, Leesa Heffernan, the plaintiff’s daughter, contrasted the difference between her mother prior to her injury, in which she coped not only with the loss to cancer of her partner of thirty one years, but her own fight with cancer, with that of her mother’s behaviour following her injury in which she described her as: “A broken, older, sad woman who hardly ever leaves the home. … Mum wakes up most mornings crying from pain after not sleeping well the night before. … Mum has to take all sorts of tablets now for pain relief which often makes her like a zombie – forgetful and dopey. … She no longer is able to enjoy gardening, hobbies, she has difficulty cleaning, she can no longer go on long drives. She has lost many of her friends. She cannot work. All the things that used to give Mum pleasure she can no longer do.”
• In an affidavit dated 13 May 2009, Thelma Wohlgehagen described the difference in her sister, both before and after the accident, in the following terms: “Now I go round to see her and she is either in bed or on the couch, not able or wanting to do anything and sometimes I think she doesn’t even want to see me. I just want my sister back, the one who loved life and could put her mind to almost anything.”
The material in these affidavits was not the subject of any challenge by the defendant.
7 In the course of the proceeding, the plaintiff gave evidence and was cross- examined. In the course of evidence-in-chief, the plaintiff said:
• That she was currently making use of Cymbalta and Avanza to manage her depression, and Panadol and Nurofen on a daily basis to manage her back pain.[2] In addition, the plaintiff was making use of Natrosan SR 1000, an anti-inflammatory, and Nexium, a stomach settler. The plaintiff said that she was also taking Rivotril, an anti-anxiety medication, which she had used since approximately 1990. She said that she had been required to write out a list of her current medication because she experienced difficulties with her memory and that she had trouble with both her concentration and her memory; • That she loved the work she performed in the course of her employment with the defendant as a personal carer, commenting: [2]
“It was a social activity, it got you out of the house, and fulfilled your life, you know, it’s like you, if you had to stay at home and you couldn’t come into work, you wouldn’t feel very well.”
When asked to comment upon how she felt about not being able to work, the plaintiff said:
“I lost my self-esteem, my reason to get up in the morning really,
yeah, it’s great to be wanted and needed.”
8 In cross-examination, the plaintiff said:
•
That in working with the defendant she was engaged on average in approximately fifteen to twenty hours of work per week, that she was happy with the number of hours she was working, as at August 2003, but that it was her intention to get back into full-time work.
•
That following her accident she performed restricted duties in which she was not required to lift anything of greater weight than 5 kilograms and was not to do any home care work or home help.
•
That it was her understanding that her back pain was caused by nerve and tendon damage. She described her back as causing –
“a lot of pain there and it causes me grief – and I can’t lead a
normal life.”
•
Her pain was always present but that it varied in intensity. She said it restricted her ability to work, to undertake her hobbies and to garden. The plaintiff readily conceded that she did bits and pieces in her garden, that she was able to manage her own personal care and that whilst she was able to cook, her back injury caused her pain and her daughter did most of the cooking. Equally, the plaintiff said that whilst she could go to the supermarket and was capable of doing large loads of shopping, she said she did so only occasionally and that her daughter did most of the shopping.
• The plaintiff was asked:
“Q: What is it, is it your hands, is it your back or what is it that
prevents you driving long distances?---A: My back, my hands. Q: And about your back?--- A: And my concentration. Q: And about your back, what is it about your back that
interferes with your driving?---
A: It hurts down my right side, well in the middle of my back on
the right hand side.Q:
When you say you are talking about these things that you do, the driving, the shopping, the dressing, the preparing of meals, and you talk about your back, are you saying that it’s all related to your thoracic spine?---
A: Yes.”
•
She suffered from low-back pain and that she has consulted Dr Dunne, who treated the whole of her spine. When it was put to the plaintiff that her lumbar spine restricted her ability to engage in daily activities of life, she disagreed with this proposition.
•
That prior to this injury she had never been referred to a psychiatrist or a psychologist but that she had been prescribed anti-depressant medication by her general practitioner during the period in which her husband was ill. She said that she had recently attended a number of excursions conducted by the Probus Community Group and that whilst she had attended three excursions with that group which involved travelling to Marysville, Warburton and Mornington, she suffered from pain the course of those excursions.
•
She had not sought any re-training or looked for employment since ceasing work in 2006. She did not accept that she could work in suitable employment for up to thirty hours a week, and when asked whether she could undertake receptionist work, she responded:
“Probably not now, no … ’cause I’m too bloody depressed.”
9 In re-examination, the plaintiff said that she had loved her work as a personal attendant and that she would love to return to that work.
10 In the course of cross-examination, three DVDs of video surveillance undertaken of the plaintiff were shown. The activities undertaken by the plaintiff as depicted in this surveillance were generally consistent with the level of activity which she had described as being within her capabilities both in her affidavits, her evidence-in-chief and her cross-examination.
11 It was submitted on behalf of the defendant that the surveillance evidence demonstrated the plaintiff to be behaving in a manner which was inconsistent with that of someone suffering from a significant depressive illness. The surveillance depicted the plaintiff as engaging in short periods of conversation in which she was smiling and laughing, together with activities which included her in socializing or walking or undertaking supermarket shopping. Contrary to this submission on behalf of the defendant, I do not consider that the surveillance evidence revealed the plaintiff to engage in any activity, or to behave in any manner, necessarily inconsistent with the capabilities of someone suffering from a significant depressive illness.
12 Whilst the plaintiff’s credit was not put in issue by the defendant, it is appropriate that I comment upon the impression I gained of the plaintiff, both as to her reliability as a witness and an historian. In this regard it is appropriate to note that much of the evidence given by the plaintiff in her two affidavits and the totality of the affidavit evidence of Leesa Heffernan and Thelma Wohlgehagen were not the subject of real challenge. Further, the plaintiff presented as a witness who was ready to make appropriate concessions as to her ability to engage in various activities and as to the multiplicity of factors which impacted upon her emotional state.
13 Generally I consider the plaintiff’s life history and employment history as indicating that she was a person who, before her accident, had been able to absorb the pressures to which she had been exposed and maintain a normal life, notwithstanding the considerable adversities which she had experienced.
14 I am influenced in this view by:
(i)
the way in which the plaintiff managed the illness of her husband and her own illness and was then sufficiently motivated to re-enter the workforce at a relatively mature age;
(ii)
that fact that there is no suggestion that the plaintiff was anything other than a competent worker during the period of her employment with the defendant prior to her injury;
(iii)
the fact that the plaintiff returned to employment with the defendant following the performance of her bilateral carpal tunnel operations and that she continued in that employment during the period in which she was being treated by Dr McCarthy, who performed his initial dorsal ramus blocks on 14 July 2006. The plaintiff continued working for the defendant until November 2006. Her cessation of employment appears to coincide on a temporal basis with the performance by Dr McCarthy of the radio-frequency denervation on 3 November 2006.
These factors in my opinion provide support for the evidence given by the plaintiff as to:
(i) the importance of her work to her; (ii) the relationship between her thoracic injury and the cessation by her of her employment.
The Medical Evidence Relied upon by the Parties as to the Injury to the
Plaintiff’s Thoracic Spine
The Plaintiff’s Medical Evidence
15 The plaintiff attended Dr Nicolettou on 18 August 2003 complaining of pain which was present between her shoulder blades after lifting a heavy client the day before. Dr Nicolettou initially diagnosed a soft-tissue injury of the back, suggested the plaintiff undergo physiotherapy and placed her on restricted duties involving lifting of no more than 5 kilograms. In his report dated 13 November 2007, Dr Nicolettou described the plaintiff as continuing to complain of thoracic pain; opined that both x-rays and a CT scan of her thoracic spine did not reveal the presence of an acute injury and only the presence of minor degenerative changes; and commented that the plaintiff’s condition had not changed significantly up to the occasion of his last examination of the plaintiff in February 2003.[3]
[3] at which time he was continuing to certify the plaintiff as being fit for restricted duties.
16 In early 2005, the plaintiff first consulted Dr Merigan, a general practitioner, who at that time took over the management of her condition.
17 In a report dated 10 April 2007, Dr Merigan commented that CT scans and MRI scans of the plaintiff’s spine had not shown the presence of definitive disc injury and had demonstrated only degenerative changes which were present throughout the plaintiff’s cervical and thoracic spines. He opined that the plaintiff continued to suffer from loss of function, paresthesia and pain; that she had not worked since November 2006 and that she remained unable to work. He reported that the plaintiff lived with her thirty-two year old daughter who helped with many of the household chores which the plaintiff was unable to complete, including vacuuming, washing, ironing and cooking. He described the plaintiff as suffering from Reflex Sympathetic Dystrophy and opined that her condition was chronic, stable and permanent.[4]
[4] In arriving at his diagnosis of the presence of Reflex Sympathetic Dystrophy, Dr Merigan appears to have relied upon a diagnosis of the presence of that condition by Dr Thomas and Dr McCarthy. I note that in their reports neither of these specialists refers to the presence of Reflex Sympathetic Dystrophy. For this reason I find a diagnosis of the presence of this condition by Dr Merigan unconvincing.
18 In subsequent reports dated 14 May 2008, 25 August 2008 and 20 October 2009, Dr Merigan effectively re-stated the opinions expressed in his report of 10 April 2007. Given the way in which Dr Merigan has structured his reports which comment upon the global effect of the plaintiff’s injuries upon her, I do not find his reports helpful in identifying the discrete consequences of the injury to the plaintiff’s thoracic spine, as distinct from the bilateral condition in her arms associated with her carpal tunnel syndrome upon her level of disability. It is clear however that Dr Merigan considered the plaintiff to be considerably disabled by her injuries.
19 In a report dated 28 March 2007, Dr Clayton Thomas, a consultant in rehabilitation and pain management, opined that the plaintiff was suffering from pain in her thoracic spine which was mechanical in origin as it was quite localised to the mid-lower thoracic spine. He said that the plaintiff was also presenting with residual symptoms consistent with a previous carpal tunnel syndrome involving her left hand.
20 In a further report dated 2 December 2008, Dr Thomas opined:
“Diagnostically, she had pain from her thoracic spine area. As is often the case, the aetiology of the pain in this area was not clear-cut. It probably represents symptomatic spondylosis, being pain arising from facets and discs at that region. She also developed bilateral carpal tunnel syndrome. She has been left with some residual symptoms on the left hand more so than on the right. ….
He continued:
Your client has work capacity. I think that working as a patient care attendant would be problematic for her. I think that patient handling would be difficult. I think she could lift 7.5 kilograms between waist to chest height frequently. I think she could lift an occasional 7.5 kilograms below waist height and above chest height. Within these restrictions I think she could work up to thirty hours per week.”
21 Dr Thomas further opined that the plaintiff’s condition was likely to continue into the foreseeable future.
22 In a report dated 27 April 2006, Dr T McCarthy expressed the opinion that the plaintiff presented with right thoracic pain which was typical of thoracic facet pain. In a further report dated 1 September 2006, Dr McCarthy stated that he performed a thoracic dorsal ramus block upon the plaintiff on 14 July 2006 and that for a number of reasons a repeat block was delayed until 3 November 2006, at which time he undertook a radio-frequency denervation at thoracic levels T6 through to T9. At the time at which he authored his report, Dr McCarthy noted that the plaintiff was exhibiting an increase in pain following this procedure, which he noted was not uncommon.
23 Dr Peter Blombery, a consulting physician specialising in pain management, examined the plaintiff on 7 May 2009. On that occasion he obtained a history from the plaintiff of the presence of ongoing back pain which fluctuated in severity but was always present. He expressed the opinion that the mechanism of the injury responsible for these symptoms involved an aggravation of pre-existing asymptomatic changes in the thoracic spine which became symptomatic, and that this condition had been ongoing since that time. He also noted that the plaintiff had developed quite marked secondary depression and anxiety as a consequence of her injury.
24 In a further report dated 27 April 2009, Dr Blombery opined that the plaintiff had no capacity for work by reason of :
(i) the physical injury to her thoracic spine; (ii) the physical injury to her hands and wrists; when each condition was considered independently.
25 Although the reports from Dr Blombery post-date the reports from Dr Thomas by in excess of two years, Dr Blombery comments, in the course of his report, that the plaintiff’s symptoms have now been present for almost six years and have remained quite stable. I am satisfied, in those circumstances, that the way in which the plaintiff presented to Dr Blombery was similar to that in which she presented to Dr Thomas.[5]
[5] This being consistent with the opinion of Dr Thomas expressed on 2 December 2008 that the plaintiff’s condition was likely to continue into the foreseeable future.
26 The opinion expressed by Mr Blombery as to the consequences of the plaintiff’s injury upon her capacity to work is to be contrasted with that of Dr Thomas. Having regard to the fact that Dr Thomas was a treating specialist who supervised the plaintiff’s treatment by Dr McCarthy and thereafter her rehabilitation, I prefer the opinion of Dr Thomas to that of Dr Blombery as to the extent of the plaintiff’s capacity for work. I note however that Dr Thomas, Dr McCarthy and Dr Blombery are consistent in their analyses as to the cause of the plaintiff’s symptoms of back pain, namely that they stem from an aggravation of a pre-existing asymptomatic degenerative condition which was present in the plaintiff’s thoracic spine.
The Defendant’s Medical Evidence
27 Dr Peter Battlay, orthopaedic surgeon, examined the plaintiff on behalf of the defendant on 16 February 2004. On that occasion he opined that the plaintiff had suffered a back strain and that she was fit to work with the lifting limit of 5 kilograms.
28 Dr David Barton, occupational physician, examined the plaintiff on 22 July 2004 and 15 July 2005. In his initial report, he expressed the opinion that the plaintiff’s back condition was somewhat questionable but that it may be that she had suffered a mild soft-tissue back injury. In his second report, Dr Barton expressed the opinion that the plaintiff did not present with any clear evidence of ongoing physical injury.
29 On 19 October 2005, the plaintiff was examined by Mr Anthony Buzzard, general surgeon specialising in spine and upper and lower limbs. He expressed the opinion that the plaintiff had suffered a back strain in association with the incident of 17 October 2003 and that had she suffered an aggravation of any degenerative disease present in her mid-back at the time of this injury, he would not have expected this to have remained symptomatic.
30 In a further report dated 22 November 2005, Mr Buzzard expressed the opinion that the plaintiff was physically capable of carrying out her pre-injury employment.
31 In a report dated 11 May 2007, Mr Owen Deacon, orthopaedic surgeon, opined:
“There may well be some degenerative changes present in her neck and thoracic spine, which this accident significantly aggravated and symptoms from that area have persisted. This is unusual as a joint strain is usually fully recovered from with time but having triggered off symptoms from an underlying degree of degeneration involving discs and joints, may be the reason why the pain has continued.”
32 Mr Deacon further commented that the plaintiff had a bad outcome from her carpal tunnel surgery and that she probably needed more surgery, and said that whilst it was unlikely that the plaintiff would be able to get back to the normal work of a personal carer, there would be some work that she would be incapable of, such as respite, supervising or light showering.
33 Dr Roy Karna, rheumatologist, in a report dated 4 March 2008, accepted that the plaintiff may well have sustained a thoracic spine injury –
“Perhaps emanating from the facet joints in the lifting incident.”
34 Dr Karna opined that the plaintiff continued to suffer from sensory disturbance in her right hand associated with her right carpal tunnel injury and from thoracic facet joint pain which affected her thoracolumbar spine.
35 On 4 May 2009, the plaintiff was examined by Mr Rodney Simm, orthopaedic surgeon, who expressed the opinion that the plaintiff had suffered a back strain injury which caused an exacerbation of symptoms from her underlying degenerative thoracic pathology. Whilst he expressed the opinion that the plaintiff’s physical injury was complicated by the development of a Chronic Pain Syndrome, I interpret his report as expressing the opinion that the organic pathology present in the plaintiff’s thoracic spine was such that it restricted her to undertaking relatively light employment and precluded her from returning to work as a personal care attendant.
Findings as to the Consequences of the Injury to the Plaintiff’s Thoracic Spine
36 There is a general consensus in the medical evidence that in the course of her employment with the defendant, the plaintiff suffered an injury to her thoracic spine which involved an aggravation of pre-existing asymptomatic degenerative changes at that level of her spine. This is the opinion held by Dr Thomas, Dr McCarthy, Mr Blombery, Mr Deacon, Dr Karna and Mr Simm. I find the opinions of this group of doctors well reasoned and I accept them in preference to the opinions expressed by Mr Buzzard, Dr Barton and Mr Battlay.
37 It is the general consensus of the medical evidence relevant to the plaintiff’s physical disability, that the injury which the plaintiff has suffered to her thoracic spine does not preclude her from engaging in appropriate restricted employment duties. I accept this evidence.
38 In any event, it is not put by Mr Mighell SC, who appeared on behalf of the plaintiff, that the evidence as to the consequences to the plaintiff of the injury to her thoracic spine is such as to support the contention that the plaintiff has suffered a loss of earning capacity which was “serious” as defined by the Act.
39 Whilst I accept that the plaintiff suffers from continuing symptoms of organic thoracic pain, for the reasons to which I have earlier referred, I am of the opinion that the description by Dr Thomas in his report of 2 December 2008 as to the level of the organic symptoms from which the plaintiff suffers remain apposite. I find the opinions of Dr Karna, Mr Deacon and Mr Simm to broadly support that opinion.
40 Whilst I am satisfied that the plaintiff continues to suffer from organic symptoms of pain emanating from her thoracic spine, I am also satisfied that there is a degree of augmentation of those symptoms which is psychologically based. In these circumstances, when considering the effect of the physical injury to the plaintiff’s thoracic spine independently
(i) of the augmentation of those symptoms by her emotional state, (ii)
independently of the pain and disability from which the plaintiff suffers in her hands and arms
I am not satisfied that the plaintiff has established that the consequences of this condition are such that they are appropriately described as being more than “significant” or “marked” and at least “very considerable”.[6]
[6] I am satisfied however that the plaintiff suffers from continuing symptoms of genuine physical pain emanating from her thoracic spine which are organically-based and are of considerable moment.
The Medical Evidence Relied upon by the Parties as to the Plaintiff’s Chronic
Adjustment Disorder41 The medical material relevant to the plaintiff’s emotional injury is of relatively short compass.
42 In his report dated 10 April 2007, Dr Merigan described the plaintiff as suffering from a high level of depression which was being managed with the prescription of Aropax and “psychology counselling”. In his report of 25 August 2008, Dr Merigan commented that the plaintiff had been formally diagnosed as suffering from:
“An Adjustment Disorder (secondary to pain, loss of function etc.) –
resulting in anxiety and depression”.
43 In his report dated 20 October 2009, Dr Merigan commented:
“The depression is unlikely to resolve, but she should remain treated with active counselling with her treating psychologist over the next twelve to eighteen months. She will require to take her Cymbalta and Avanza anti-depressant during this period and indefinitely into the future.”
Dr Merigan concluded this report with the following comments:
“The comorbid depression is chronic and as such unlikely to improve greatly even with intensive psychological counselling and her recent changes of medication.”
44 In a report dated 9 August 2009, Ms Melissa Mizzi, who has acted as the plaintiff’s treating psychologist since 19 April 2007, opined:
“On initial presentation and in relation to Mrs Heffernan’s current functioning, symptomology is consistent with (309.0) Adjustment Disorder with Depressed Mood, Chronic, according to the diagnostic criteria of DSM-IV-TR(2000).
The onset and development of emotional symptoms, including Depressed Mood, appear to be in response to a series of stressful events experienced as a result of the workplace injury sustained. This includes the onset of daily pain requiring ongoing medical attention, loss of employment and financial security and loss of capacity to perform a wide range of activities.”
45 Ms Mizzi concluded her report, expressing the opinion that it was unlikely that the plaintiff would return to her pre-injury employment as a personal care assistant or work within the hospitality industry, and that due to her current psychological counselling it was unlikely that she will engage in paid employment in the foreseeable future.
46 In a report dated 20 August 2009, Dr Nigel Strauss, a consulting psychiatrist, opined that the plaintiff presented with a Chronic Adjustment Disorder and a Pain Disorder associated with medical conditions and psychological factors. He commented:
“There is no doubt that most of her pain is organically-based but there is a non-organic contribution at the level of 20 to 25 per cent to her overall pain picture.
I believe that the contribution to pain and suffering from a psychiatric point of view is significant and her depression is profound. As stated, she has suffered from a number of losses and certainly she has lost her capability to work and to enjoy recreational activities and from a psychological perspective this is significant. Therefore apart from any pain and suffering due to psychologically-based pain, her emotional state is contributing significantly to her loss and enjoyment of life.”
47 In a further report dated 9 September 2009, Dr Strauss opined:
“Taking only psychiatric factors into account, I do accept that this woman has to be considered to be totally and permanently incapacitated. The chances of rehabilitating her considering her psychiatric problems are minimal.”
48 Dr Anthony Sheehan, psychiatrist, in a report dated 6 March 2008, described the plaintiff as presenting sitting in a semi-hunched position, exhibiting slow speech which was delivered in a monotone. He described her affect as being mildly depressed and said that the plaintiff was preoccupied in describing chronic back pain, persistent lowered mood, irritability, sleep disturbance and impaired memory and concentration. He diagnosed the plaintiff as presenting with a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood consistent with the DSM-IV coding 309.28. Dr Sheehan excluded bereavement as being a basis for his DSM-IV diagnosis and expressed the opinion that the plaintiff’s psychiatric impairment had stabilised. Whilst he described the plaintiff as presenting with mildly depressed mood, anxiety, irritability and negative thoughts and with a mild impairment of her concentration, he expressed no opinion as to the effect of the plaintiff’s emotional state upon her ability to work.
49 Professor George Mendelson, a psychiatrist, examined the plaintiff on 11 December 2009. In contrast to the opinions expressed by Ms Mizzi, Dr Sheehan and Dr Strauss, Professor Mendelson expressed the opinion that the plaintiff was not suffering from any specific diagnosable depressive illness and that there was no psychiatric contraindication to the plaintiff undertaking gainful employment within the limitations of her physical condition.
Findings as to the consequences of the plaintiff’s Chronic Adjustment
Disorder50 Having regard to the general consistency in the opinions expressed by Dr Strauss, Dr Sheehan and Ms Mizzi, who have each opined that the plaintiff presents with a Chronic Adjustment Disorder, I prefer the opinions of those doctors to that of Professor Mendelson. In arriving at this position, I have particular regard to the fact that Ms Mizzi, as the plaintiff’s treating psychologist, had had the opportunity of monitoring the plaintiff’s progress during thirty five sessions conducted over eighteen months at the time at which she prepared her report. In these circumstances, I consider that Ms Mizzi is best placed to opine as to the nature and severity of the plaintiff’s psychiatric illness. I accept her evidence on these issues and that of Dr Strauss, whose opinion is in broad agreement with that of Ms Mizzi .[7]
[7] Whilst it was put on behalf of the defendant that the history obtained by Dr Strauss that before her injury the plaintiff had been a long term user of an anti depressant, this history does not accord with the plaintiff’s sworn evidence and I am satisfied that it most likely represents a misunderstanding on
51 It is put on behalf of the defendant that the state of the evidence is such that I should not be satisfied that the plaintiff has established that her Chronic Adjustment Disorder has arisen by reason of her response to a compensable injury and that as such it should not be characterised as a compensable injury. In this respect, it is the defendant’s submission8 that the plaintiff has not established that her bilateral carpal tunnel syndrome was a compensable injury; that the effect of this condition must be excluded when the issue as to whether the plaintiff’s Chronic Adjustment Disorder arises by reason of a compensable condition is considered; and that the evidence is such that the plaintiff has not established the causal connection between her compensable injury, namely the injury to her thoracic spine, and the development by her of her Chronic Adjustment Disorder. I do not accept the submission made on behalf of the defendant in this regard. I am satisfied that the injury to the plaintiff’s thoracic spine has materially contributed to the development by her of a Chronic Adjustment Disorder by reason of the symptoms and incapacity associated with that condition and its effect upon the plaintiff’s ability to work. In making this finding I rely in particular upon:
(i) The plaintiff’s unchallenged evidence that she ceased work in November 2006 by reason of the presence of intense upper back pain and pain in her hands and wrists, which symptoms were aggravated by her work;9 (ii) The fact that the plaintiff, in the course of the evidence to which I have previously referred, repeatedly identified her thoracic pain as being constantly present and as adversely impacting upon her ability to
such relevance that it should influence the findings I have made given the plaintiff’s obvious capacity to work and to function generally in her day to day life. In this respect the material contained in the affidavits of Leesa Heffernan and Thelma Wohlgehagen is telling.
in respect of which no issue was taken on behalf of the plaintiff.
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work[10] and generally engage in the activities of day-to-day life;
(iii) My finding of fact that the plaintiff continues to suffer from organic thoracic pain of considerable moment;
(iv) Finally, I am influenced in this regard by the fact that in the histories provided by the plaintiff to Ms Mizzi, Dr Strauss and Dr Sheehan, the plaintiff emphasized the impact of the condition present in her thoracic spine upon her level of pain, her ability to function and her ability to work,[11] and I accept that this evidence accurately represents the plaintiff’s true belief as to this issue.
[10] I refer specifically in this regard to the plaintiff’s evidence that her back pain has not improved since the denervation procedure undertaken in November 2006 but rather that it has become worse and that she was required to manage that pain by the ingestion of Panadol and Nurofen of up to eight tablets a day, and Panadeine Forte when her symptoms are “really bad”.
[11] see in particular: the history obtained by Ms Mizzi that the plaintiff ceased work in 2006 due to chronic back pain caused by muscle and nerve damage; the history obtained by Dr Sheehan (at Defendant’s Court Book 45 and 46) as to the extent of the plaintiff’s back pain at the time at which she ceased employment in November 2006 and the history obtained by Dr Strauss as to this issue (at Plaintiff’s Court Book 81).
Findings as to the consequences of the plaintiff’s Chronic Adjustment
Disorder Upon her capacity for employment52 As I have earlier stated, I accept the opinion of Ms Mizzi, as supported by Dr Strauss, as to the consequences of the plaintiff’s Chronic Adjustment Disorder upon her capacity to engage in suitable employment. I am satisfied that this Disorder presently renders the plaintiff unfit for any form of employment and is likely to do so for the foreseeable future.
53 In the circumstances, I am satisfied that the effect of the plaintiff’s injury has been to cause the plaintiff to decompensate from a person capable of remunerative employment to one who is presently unfit for any form of employment and who is likely to remain so for the foreseeable future. In these circumstances, I am satisfied that the loss of earning capacity consequences of the plaintiff’s psychiatric injury satisfy the criteria established by the Act, in that when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders they may fairly be described as being more than “serious” to the extent of being “severe”.
54 Having made these findings, I am satisfied that it is appropriate to make an order granting the plaintiff leave to commence a proceeding at common law seeking damages for the pain and suffering and economic loss consequences of the Chronic Adjustment Disorder which she developed by reason of her employment with the defendant .[12]
[12] Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 (28 July 2009).
55 I will hear the parties as to the precise form of the orders sought and upon the issues of costs.
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During 2005, the plaintiff consulted Dr Merigan, a general practitioner, who thereafter undertook the The plaintiff also said she made use of Panadeine Forte when her pain was severe.
the part of Dr Strauss. Even were it to be an accurate history I would not have considered to be of
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