Jones v Dair Industries Pty Ltd
[2012] VCC 444
•26 March 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-11-00022
| SUSAN JONES | Plaintiff |
| v | |
| DAIR INDUSTRIES PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 March 2012 | |
DATE OF JUDGMENT: | 26 March 2012 | |
CASE MAY BE CITED AS: | Jones v Dair Industries Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 444 | |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985; s134AB Application under paragraph (a) serious injury definition; Pain and suffering; Claimed injury to right upper limb causing ongoing pain; Whether pain caused by organic or psychogenic reasons – Stamboulakis principles applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Hutchinson | Robinson Gill |
| For the Defendant | Mr Miles | Lander & Rogers |
HIS HONOUR:
Background
1 Ms Jones was born in 1961.
2 She left school at the end of Year 9. After a short period working as a child worker, she worked for a couple of years as a machinist. She married for the first time in 1980.
3 Ms Jones began employment with Dair in 1994 as a tea lady. Subsequently, her duties switched to those of process worker in around 2000/2001. Her duties entailed the assembly and packing of jack handles, which Dair supplied to the Ford Motor Company. The handles were packed 20 to a crate. She said she used to assemble 600 jack handles a day.
4 In or about May 2002 Ms Jones said she noticed bruising and swelling over her right thumb which she said “gradually spread to my right forearm and right arm over a 12 month period”.
5 She consulted Dr John Grimshaw, who provided medical services to the company. Dr Grimshaw told her that she had tendonitis of the right thumb and she was given two days off work “with light duties”. After two days she resumed work on the jack handles.
6 Dr Grimshaw gave Ms Jones a certificate assigning her to light duties, but according to Ms Jones “despite the certificate I continued to be provided jack handle duties”.
7 In December 2002 she consulted her own general practitioner, Dr Steer, who referred her to a rheumatologist, Dr Thevathasan. Dr Steer provided her with anti-inflammatory medication together with Zoloft and Prednisolone. Ms Jones had to cease taking Prednisolone “due to some side effects”. She was eventually assigned to light duties about July 2003. She said “these duties included making tea and coffee, packing slips, data entry, helping out with files and sweeping and mopping”. She said the sweeping and mopping aggravated her injury “and I had to cease that”.
8 Her employment was terminated in January 2005. Nevertheless, she continued to receive period payments under the WorkCover scheme until August 2005.
9 In October of that year she gained employment working at a BP petrol station/food outlet. She operated the cash register and provided general retail services, including making sandwiches, serving other items and carrying out light cleaning duties. She said that whilst generally able to cope, she did have “periodic flare-ups of pain in my right thumb, right arm and right neck”.
10 She said that these problems persist until today. She experiences what she describes as a “stabbing” pain in her right thumb, a burning pain in her forearm and elbow and a cramping pain in her right hand. She said “for some time I noticed a colour change in the skin of the right hand and a cold feeling of the hand”. She says she has lost grip power in her right hand and cannot rely on her ability to hold things with that hand.
11 She has been referred to a variety of practitioners for treatment, opinion and medico-legal purposes. Various scans and investigations have yielded no evidence of any particular pathology in her right arm, hand or shoulder which would account for the pain and restrictions of which she complains.
12 Dr Peter Blombery, a consultant physician specialising in vascular disease, has diagnosed Ms Jones as suffering Complex Regional Pain Syndrome, a somewhat controversial disorder previously referred to as Reflex Sympathetic Dystrophy.
13 In this proceeding Ms Jones seeks a determination pursuant to s.134AB of the Accident Compensation Act 1985 (“the Act”) that she has suffered a serious injury relative to the matter described above and that she had leave to issue common law proceedings.
14 At present, Ms Jones works approximately 28 hours per week as a kitchen hand/tea lady at the St John of God Hospital and carrying out similar duties at an old people’s home. She said that at both institutions the people with which she was dealing were difficult and ungrateful and generally she preferred the atmosphere and satisfaction which she derived from the process work she was carrying out at Dair Industries before her injury.
Legal considerations
15 The effect of the elaborate provisions of s.134AB of the Act in these circumstances is that, absent the determination which Ms Jones seeks, she is precluded from commencing any claim for damages for negligence against her former employer, Dair.
16 Success in this proceeding requires Ms Jones to obtain a finding that she had suffered a “serious injury”. That phrase is defined in s.134AB (37) of the Act as follows:
“(a)permanent serious impairment or loss of a body function; or
(b)permanent serious disfigurement; or
(c)permanent severe mental or permanent severe behavioural disturbance or disorder; or
(d)loss of a foetus.”
17 In this proceeding, according to her counsel, Mr Hutchinson, Ms Jones relies solely on paragraph (a) of the definition. That is, she says that she has suffered a permanent impairment or loss of a body function. She places no reliance on other elements of the definition. In particular, she does not claim that she has suffered any severe mental or permanent severe behavioural disturbance in accordance with paragraph (c) of the definition or any mental or behavioural disturbance at all.
18 It is also necessary to note the provision appearing in sub-s.(38) of s.134AB as follows:
“(h)the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise;
(i)the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise;”
19 In Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46 Maxwell P described the effect of this paragraph in the section as follows at paragraph 9:
“For the assistance of judges, the applicable principles may be summarised as follows:
(1)Where an applicant for leave under s 134AB(16)(b) relies on physical injury – "permanent serious impairment or loss of a body function" – the Court in assessing the "pain and suffering consequences" must exclude "the psychological or psychiatric consequences" of the injury: s 134AB(38)(h).
(2)Accordingly, so far as the evidence allows, the Court must identify, and exclude from consideration, any pain and suffering consequences which cannot be shown on the balance of probabilities to have an organic or physical basis.
(3)The Court must therefore exclude any pain and suffering consequences which result from or are a manifestation of –
• any recognised psychiatric condition (e.g. depression, adjustment disorder);
• chronic pain syndrome or disorder;
• functional overlay;
• exaggeration of symptoms, whether conscious or unconscious; or
• any other aspect of the injured person’s psychological response to the physical injury.
(4)Where the Court is unable to "disentangle" the pain and suffering consequences in this way, this will ordinarily mean that the application must be refused, since the Court cannot be satisfied on the balance of probabilities that the organically-based pain and suffering consequences satisfy the statutory criterion ("more than significant or marked, and ... at least very considerable").
(5)For the assistance of the Court in deciding such matters, any medical witness who is of the opinion that there are both organic and non-organic contributors to the pain and suffering should be asked to quantify, so far as possible, the respective contributions to the pain and suffering of the organic and non-organic causes.
(6)The reasoning in Richards v Wylie[1] has no application to proceedings under s 134AB.”
[1][2000] VSCA 50; (2000) 1 VR 79 at [16], [17], [24], [28].
20 Nevertheless, Ashley JA, in his Judgment as a member of the Court of Appeal in Jayatilake & Toyota Motor Corporation Australia Ltd [2008] VSCA 167 [24] [146] [161], seems to indicate that it is something of an overstatement to say that a plaintiff who cannot achieve the process described by Maxwell P in Stamboulakis as “disentangling” must necessarily fail.
Expert opinions
21 It was common ground that the various investigations, scans and so forth did not disclose any significant pathology relative to the pain and restrictions complained of as constituting the “serious injury”.
22 Ms Jones has been attending Dr Steer as her treating general practitioner for a number of years. In a report dated 4 May 2005, Dr Steer described Ms Jones as having “widespread right sided upper limb tenderness”. She referred to pain in the right thumb and forearm region which she said “has persisted since the time of her regional injury”. Dr Steer said that Ms Jones has “Chronic Regional Pain Syndrome”. She suggested assessment by a psychiatrist “to determine the extent that her ongoing symptomatology relates to post-injury psychological sequelae”.
23 In a letter dated 29 September 2005, Dr Steer referred to a “soft tissue injury to the right thumb and forearm” with an “extension of her symptoms to include upper arm, shoulder, neck and even chest wall pain”. This extension she said suggested “an element of super added Regional Pain Syndrome”.
24 In a report to Ms Jones’ solicitors dated 15 June 2009, the doctor reported a finding on examination on 12 May 2009 of “decreased grip strength of the right hand, and decreased flexor and extensor forearm strength. Her right hand was cold compared with the left side, and the skin had a mottled appearance”. The doctor continued “the final diagnosis is Complex Regional Pain Syndrome (reflex sympathetic dystrophy) caused by soft tissue injury to the right thumb and forearm extending to the upper arm…the condition has improved with time. Surgery is not required at any time.”
25 In a final report dated earlier this month (3 March), Dr Steer noted “examination reveals no swelling or deformity in the right hand and arm. She was mildly tender over the first metacarpophalangeal joint, dorsum of the right wrist, flexor aspect of the right forearm and right lateral upper arm”. The doctor noted that Ms Jones’ symptoms extended “well beyond the area of the initial injury”.
26 In a report dated 4 April 2005, Dr Steer noted that Ms Jones had been prescribed Zoloft by a Dr Thevathasan . Dr Steer observed “it was clearly stated in his report that this medication was prescribed because of its usefulness as a pain modulator i.e. it was not prescribed for depression”.
27 Dr Thevathasan, a rheumatologist, saw Ms Jones for opinion and treatment on a number of occasions commencing 2 May 2003 ending 10 September 2007. At initial examination the doctor diagnosed “capsulitis, tenosynovitis, or because it was so tender [he considered] the diagnosis of neuroma”. In 2007 he diagnosed right golfer’s elbow (medial epicondylitis) “with a moderate muscular component”. He also diagnosed and treated her for Achilles tendonitis, which was not suggested to be related to her employment with Dair. The doctor said “when I first saw her, Susan Jones was quite incapacitated because she is right handed and the injury involved her right thumb. My impression seeing her subsequently was that it was no longer an impediment to normal living, though it might impede playing by [sic] sport (e.g. tennis and golf) and some housework (e.g. mopping)”.
28 Jane Aarons, occupational therapist/hand therapist, reported to Ms Jones’ solicitors in a letter of 5 June 2011 as to various attendances by Ms Jones upon her in the period 15 October 2004 to 15 December 2004. She said “with regard to prognosis, I am unable to comment on how Susan’s situation progressed but I have no reason to doubt that a soft tissue overuse injury such as this would not heal given appropriate treatment including modification of tasks, self management strategies to reinforce gains from therapy and reasonable timeframes”.
29 There seemed to be too many negatives in this expression of opinion. It would seem to indicate that Ms Aarons was confident that Ms Jones’ problem was a soft tissue injury which would heal.
30 Dr Daniel Lewis, consultant physician, saw Ms Jones on four occasions from 4 November 2002 to 13 January 2003. Ms Jones said that she sought consultant advice from Dr Thevathasan in preference to Dr Lewis.
31 Dr Lewis reported in a letter of 16 September 2011 to Ms Jones’ solicitors that “at the time of her last assessment his [sic] symptoms were substantially improved and there were no objective signs for [sic] any tendon or muscle abnormality”. He said that at that examination he thought it was “unlikely that her condition would deteriorate and [he] expected full recovery”.
32 Ms Jones was assessed for medico-legal purposes at the request of her solicitors by consultant psychiatrist, Dr Nigel Strauss. In a report dated 11 August 2011 he described the results of an assessment that he carried out of Ms Jones on the same day. He concluded that Ms Jones did not suffer from any psychiatric illness.
33 Mr Hunter-Fry, a specialist hand surgeon, examined Ms Jones at the request of the WorkCover Authorised Agent on 5 November 2003. In a report of the same date he diagnosed Ms Jones as having suffered a painful musculoligamentous overuse injury which she said was related to her work. He believed that the condition would “eventually resolve if she avoids all activities which cause or aggravate. This may take 18 months but she has to be absolutely assiduous both at home and in the workplace”.
34 Dr Wyatt, occupational physician, saw Ms Jones on 28 July 2004. In a report dated 5 August 2004 the doctor observed there were “non-physically based signs present”. She said “Ms Jones demonstrated a limited range of movement at her wrist, elbow and shoulder, with around half normal movements demonstrated at her right shoulder…There was virtually no grip demonstrated in the right hand, this was inconsistent with her ability to open a door or drive a car with her right hand”. According to the doctor, Ms Jones was “fit for a fairly wide range of employment”. She observed “Ms Jones’ problem has responded to Zoloft, which can be used for pain and can be used as an anti-depressant”.
35 Ms Jones was also assessed by neurosurgeon, Mr Darrell H Nye. He reported in a letter to the WorkCover Authorised Agent dated 10 March 2005:
“The neurological examination revealed a global weakness affecting the right upper limb more marked distally with functional features and particularly an increase in resistance to an applied force. Both upper limbs were noted to be used normally for support when getting on to and off the examination couch. Upper limb reflexes were all brisk and symmetrical and I could determine no sensory impairment to pinprick appreciation in either upper limb [my emphasis].”
36 Mr Nye said that he believed there had been a soft tissue injury suffered by Ms Jones. He continued, “I suspect natural recovery has occurred”. He concluded:
“I would comment that examination revealed a number of features which were considered not to have an organic basis, and it is relevant that anti-depressant medication has been prescribed”. Mr Nye conducted a follow-up examination on 11 April 2011 and reported by letter of the following date to the defendant’s solicitor “in all probability the claimant’s suffered a work-related soft tissue injury, with some special investigation, evidence of pathology in the right shoulder and elbow regions. There is no clinical symptom or physical finding to suggest that the claimant suffers from a neurological condition, and as noted cervical movement was normal, and apparently an investigation other than those referred to has been undergone.”
37 Ms Jones was referred for assessment by the WorkCover Authorised Agent to rheumatologist, Dr Roy Karna, on a number of occasions. He interviewed and examined her for the first time on 13 May 2003. Dr Karna accepted that Ms Jones had suffered a compensable right thumb injury. He observed nevertheless “she has a superadded pain syndrome which is presumably psychogenically driven”. He said “pain syndrome aside, her prognosis from a musculoskeletal perspective is good”. Following a further examination on 15 April 2005 he reported to the Authorised Agent by letter of 18 April 2005 “examination of her hands revealed a normal keratinisation pattern and she has no features of carpal tunnel syndrome or De Quervain’s tenosynovitis, and indeed had preserved thenar muscle bulk and preserved key pencil grip. Reflexes were preserved”. He noted widespread right upper limb tenderness. He was not convinced that there was an “intrinsic right shoulder problem”. He continued “I believe her entire presentation is due to psychogenically driven pain syndrome”. Dr Karna said he believed the soft tissue injury around her right thumb had “long since healed. Her presentation thus, relates to a psychogenically/psychosocially driven pain syndrome, that is to say arguably psychosomatic symptomatology occurring post-initial soft tissue injury”. He suggested a psychological or psychiatric assessment.
38 Dr Karna conducted a final assessment on 24 March 2011 reporting by letter to the insurers’ solicitors by letter dated 29 March 2011. He observed that she had full neck movements and full movement in left shoulder “but her right shoulder movements allegedly were restricted at about 90-100 degrees of abduction and forward elevation with some minor restriction of internal rotation suggesting impingement”. His use of the word “allegedly” is presumably an indication that he doubted there was an organic basis for the demonstrated restriction. He also said that a “collapsing weakness” that he found “did not appear organic and I note that the circumference of her right forearm was one centimetre greater than it was on the left and upper arm circumference was equal, right and left arms”. He observed the continued use of Zoloft. He concluded:
“Her prognosis on structural musculoskeletal grounds in absolute terms is good. Her entrenched pain behaviour and abnormal illness behaviour over such a protracted period of time however, does not auger well in terms of the vocational prognosis generally, but I believe this relates to psychological rather than physical factors”.
39 Consultant psychiatrist, Dr Ian V Jackson, assessed Ms Jones at the request of the WorkCover Authorised Agent. Dr Jackson did not diagnose any distinct psychiatric impairment. He said:
“At face value this woman is fed up and angry to do with what she clearly sees as mistreatment and denial of an appropriate job by her long-term employer. That is, she gives an account of psychological distress secondary to the situation as she perceives it as above. However, this does not amount to depression, anxiety or any significant psychiatric illness or injury.
There are considerable hints of factitious illness or a conversion reaction but I certainly cannot make such a diagnosis.”
40 He reached these conclusions following a consultation with Ms Jones on 27 June 2005. He had a subsequent consultation with her at the insurer’s request on 24 March 2011, reporting in a letter dated 7 April 2011. He concluded “there is no major change in Susan Jones but she has been successful in finding suitable employment and she has ceased narcotic analgesics”.
41 Ms Jones was assessed by another consultant psychiatrist, Dr Stephen Stern, at the request of the insurer on 25 November 2009. He carried out an assessment in accordance with the guide to the evaluation of psychiatric impairment for clinicians concluding that Ms Jones was “suffering from an adjustment disorder with depressed mood. The DSM IV criteria have been satisfied”.
42 Finally, Ms Jones was assessed by consultant occupational environmental physician, Dr David Fish. Following consultation on 10 December 2009 he furnished a report by letter to the Authorised Agent dated 10 December 2009. He noted Ms Jones’ complaints about pain in her thumb, forearm and elbow and recorded “she said generally her fingers feel cold, she has noticed no swelling, there has been no colour change, hair or nail change”. He observed the fact that the right arm was slightly larger than the left, concluding that there was no swelling but that this was as a result of “right hand dominance”. He concluded that:
“She presents with widespread soft tissue pain in the right arm after she first developed pain in the right thumb MP joint that previously spread to her forearm, upper arm, shoulder and now the neck and pectoral muscles. That is, in a four quarter distribution. The outstanding features after examination are the lack of any significant pathology. Apart from widespread tender points and some signs of continual use of the arm, there are no features of any identifiable pathology present. A number of investigations have been performed and these have all been negative to date.
I therefore conclude that she is suffering from a chronic pain syndrome, relevant to the accepted right arm and neck injury with complaints and symptoms of the neck without evidence of injury.”
43 He concluded that in accordance with the AMA Guides, Ms Jones suffered a zero per cent whole person impairment.
Conclusions
44 If the extensive and emphatic opinions expressed by a number of the defendants’ medico-legal experts are accepted, this application must fail.
45 Section 134AB is, by virtue of the provisions quoted, clear in determining whether a serious injury exists based on organic, as distinct from psychiatric or behavioural grounds, pain or restrictions which are psychiatrically driven. Section 134AB(18)(h) makes this absolutely plain.
46 Mr Miles on behalf of the defendant submitted that what is excluded from consideration is not merely the psychological or psychiatric consequences of a diagnosed psychiatric disorder but psychological or psychiatric consequences generally.
47 Mr Hutchinson on behalf of Ms Jones placed heavy reliance on the finding made by Dr Strauss excluding any psychiatric disorder as suffered by Ms Jones. He contended therefore, as I understood his submission, that in the absence of a finding of a distinct psychiatric disorder there would be no occasion to resort to the exclusionary operation of s.134AB(18)(h). I prefer the interpretation advocated by Mr Miles on behalf of the defendant. This view accords with the analysis of Maxwell P in Stamboulakis’ case quoted above.
48 In any event, even in the absence of s.134AB(38)(h), the contrast between paragraph (a) of the definition of serious injury – the one which is relied upon here – and paragraph (c), would be likely to lead to the conclusion that paragraph (a) deals solely with organically caused impairments and not with those arising from any mental disturbance which are separately and exclusively dealt with in paragraph (c). To refer to the terminology used in some of the authorities, it is necessary to resort to the problematic process of “disentangling” only if one is satisfied that there are organic factors in play tending to create the relevant pain and restrictions. If I accept the evidence relied on by the defendant, I would exclude that possibility.
49 Dr Karna, in particular, is quite downright in his opinion that the soft tissue injury to the right thumb area which he concedes occurred has long since healed and that what presents now is psychogenically driven. There is extensive other expert opinion to support that view.
50 Regrettably, none of the practitioners gave evidence before me. It was impossible for me therefore to probe any of the difficult issues which arise in the present case and, in particular, I did not have the opportunity to ask Mr Blombery to enlarge upon the Regional Pain Syndrome which he diagnosed. His diagnosis seems to have been made on the basis of a diagnosis published by an international pain management practitioners organisation.
51 Mr Hutchinson said that he had carried out research on the internet as to the criteria for the relevant syndrome which he read out to me in the course of final submissions. This is “evidence from the Bar Table” in the most literal sense. In the circumstances I felt I should treat it with the utmost caution in the absence of any medical expert to give me guidance as to the application or validity of these criteria. Apart from Dr Steer, this diagnosis does not seem to have particularly commended itself to any of the other experts.
52 Even in the absence of the opportunity to probe these issues in cross-examination it seems to me that, based on the weight of the professional opinion and upon what I believe I should regard as objective observations, I would accept the opinion of Dr Karna that the problems suffered by Ms Jones are psychogenically and not organically driven. The observation was made by a number of examiners that there was a disconformity between demonstrated strength of the right arm on informal as distinct from formal presentation. Moreover, there was no evidence of muscle wasting, as one might have supposed, if the right arm was guarded or underused, as Ms Jones’ complaints would have led one to suppose it would be. Per contra, the right arm is slightly larger as one would expect in a right-handed person.
53 I should record that without necessarily suggesting that Ms Jones was other than a candid witness, I found her evidence on a number of points wayward to say the least. It seemed to take a number of attempts, both in examination and cross-examination, to establish something as simple and basic as the precise places at which she had resided over the relevant periods.
54 She said that her electoral enrolment and her drivers licence gave incorrect addresses, namely, her parents’ house at a time when she had set up house with her formerly estranged second husband. She said this was for fear of her first husband who “had friends in the police”. It seemed to me that this was an unconvincing explanation since, if her first husband had such malignant intent and was so well-connected, the pretences as to her true residence would be a relatively feeble defence against those malign intentions.
55 The circumstances in which she parted initially from her second husband were also relevant. They arose out of allegations of sexual abuse against one of her daughters. This led to a court case in which Ms Jones lost her matrimonial home. She had to undergo psychiatric treatment in the wake of these events. This was all unsurprising and yet she did not make full disclosure of these matters to examiners for the purposes of her present claim and this proceeding. She told one examiner that she left employment at the BP service station for personal reasons and not because of strain on her injured right arm. Yet, without denying that she had referred to “personal reasons” in the interview with the examiner, she gave evidence to me that the reason she left BP was because changes in her duties put unreasonable stress on her right arm.
56 The absence of any identifiable pathology means that the seriousness of Ms Jones’ pain and restriction cannot be corroborated by any third party or disinterested source. The matters to which I have made reference above mean that one must be at least cautious in uncritically accepting her account of her situation.
57 Some elements of her presentation clearly are not related to her work for Dair. The “golfer’s elbow” diagnosed by Dr Thevathasan seems to have emerged for the first time years after she ceased employment with Dair.
58 Even in the absence of the finding that Ms Jones’ pain and restrictions are psychogenically driven, there are serious reasons to doubt that her presentation as a whole, and treated as having an entirely organic cause, would constitute a serious injury.
59 She has been able to continue to function in her life and continue in employment. It is axiomatic that in judging whether an injury is sufficiently serious to meet the requirements of the “serious injury” criterion, one must have regard not only to the functions which have been lost but also of those which have been retained (see Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181 [44]). An ability to continue in employment is not a conclusive bar to a finding of serious injury but it is a significant negative (cf Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292.
60 For all these reasons this application fails.
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