Kalenjuk v Victorian WorkCover Authority
[2016] VCC 948
•8 July 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-02945
| OLGA KALENJUK | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE BOWMAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 and 8 June 2016 | |
DATE OF JUDGMENT: | 8 July 2016 | |
CASE MAY BE CITED AS: | Kalenjuk v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 948 | |
REASONS FOR JUDGMENT
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Catchwords: Accident Compensation Act 1985 – s134AB – injury to the right arm as a result of repetitive work, together with psychological or psychiatric consequences – application in respect of pain and suffering only – reliance upon paragraphs (a) and (c) of the definition – greater emphasis upon paragraph (a) – pre-existing psychiatric problems – “disentanglement” – whether statutory tests satisfied – factors to be considered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Carson | Maurice Blackburn Lawyers |
| For the Defendant | Mr C Miles | Wisewould Mahoney |
HIS HONOUR:
General background
1 This matter comes before me by way of an application pursuant to s134AB(16)(b) of the Accident Compensation Act 1985, hereinafter referred to as “the Act”. The plaintiff seeks leave to bring proceedings in respect of pain and suffering damages only. In so doing, she relies upon both paragraphs (a) and (c) of the definition of “serious injury” contained in s134AB(37) of the Act. While the plaintiff did not abandon reliance upon paragraph (c), it was conceded in her counsel’s closing address that “… that’s certainly not put as the plaintiff’s strongest point in this case” – see Transcript (hereinafter referred to as “T”) 68.
2 The relevant physical injury is to the plaintiff’s right arm. She is right-hand dominant. Essentially, it is asserted that the injury to the plaintiff’s right arm arose from the work which she was doing as a cleaner. At the relevant time, she was an employee of an entity called Enterprise Contract Services (Vic) Pty Ltd and was performing cleaning work, such as vacuuming, at the premises of the Ford Motor Company, her employer having had a cleaning contract with that corporation. The work in question shall hereinafter be referred to as “the Ford work”.
3 Essentially, there was no dispute about the occurrence of the injury in the course of the plaintiff’s employment. The claim was accepted and payments made – see T9-10. It was foreshadowed on behalf of the defendant that issues of “disentanglement” would loom large and that the plaintiff had a significant psychiatric history. Whether or not the statutory tests were satisfied was also in dispute.
4 Mr S Carson of counsel appeared on behalf of the plaintiff. Mr C Miles of counsel appeared on behalf of the defendant. The plaintiff gave oral evidence, adopting two affidavits as being true and correct, and was cross-examined. The balance of the evidence was documentary in nature and was tendered either by consent or without objection.
5 I say at the outset that I am not of the view that the plaintiff has satisfied the statutory test insofar as paragraph (c) of the definition is concerned. I am not of the opinion that consequences sufficient to meet the requirements of s134AB(38)(d) have been established. I shall deal with my reasons for this subsequently. As stated, that the plaintiff might struggle to satisfy the statutory requirements had been effectively foreshadowed by her counsel. In summarising the medical evidence, some attention will still be required to be given to the psychological and psychiatric consequences for the purposes of “disentanglement” and s134AB(38)(h).
Factual background
(a)The plaintiff’s background, training and employment prior to the Ford work
6 The plaintiff is aged 45 years, she having been born in June 1971. She is a divorced woman with five children. She was educated to Year 10 level. She seems to have worked in a retail role for some years, before raising her family. She worked briefly for a telephone company, before not working for a period during which matrimonial problems were occurring. She then worked very briefly for a bakery. She commenced the Ford work in May 2009. This was on a part-time basis, two hours per day, five days per week. These working hours fitted in with the social security benefits which she was receiving. Apparently the plaintiff received a Disability Support Pension because of mental health problems following her marital break-up.
(b)The plaintiff as a witness
7 I accept the plaintiff as a witness of truth. Her credit was not the subject of any significant attack. This is a case where the plaintiff’s pre-existing and ongoing mental health problems potentially could raise some issues, but the impression which I have formed is that there was no attempt on the part of the plaintiff to mislead the Court.
(c) The state of the plaintiff’s health prior to the Ford work
8 That the plaintiff had pre-existing mental health problems is not disputed. She was treated for a depressive state in 2001. She was diagnosed with a Bipolar Disorder in 2005. To Dr Matthew Tagkalidis, consultant psychiatrist, who saw the plaintiff at the request of her solicitors, she gave a history of having suffered from clear episodes of hypomanic and manic symptoms for weeks at a time in the past. She had been treated with lithium from approximately 2007 and over the years had taken antidepressant medications. The taking of this medication dates back to 2001 – see the report of 28 June 2013 of Dr John Hodgson, the plaintiff’s treating general practitioner. There had been problems following her marital breakdown in 2004, which was followed by lengthy legal proceedings. There were also problems with two children, one of whom was involved in a motor vehicle accident and the other having a quite serious illness. These contributed to her emotional instability over time. Without going into further details, it is quite apparent that the plaintiff suffered from significant mental health problems and took medication in that regard for some years prior to the Ford work. The plaintiff had been on an invalid pension for some time. For the purposes of that pension, when performing the Ford work, she was allowed to work up to 15 hours per week – see T17.
9 For many years, the plaintiff has had very limited vision in her left eye. She has suffered from hypertension. She has also had some sleeping difficulties. She also had problems with her knees and suffered from some migraines.
10 In February 2009, she was an innocent bystander when an altercation broke out in a café. She was struck in the face by a chair and was conveyed by ambulance to hospital. Following this, she complained of headaches and shoulder pain. She also suffered some emotional upset.
11 The plaintiff has also suffered from hypertension and from plantar fasciitis.
(d) The injury, its treatment and diagnosis
12 For the purposes of this application, the injury occurred as a result of the Ford work and, in particular, vacuum cleaning. The plaintiff has sworn that she first suffered from right elbow problems while working during 2010. At times, these extended to other parts of her dominant arm. It would seem that the first time that she sought medical treatment was on 4 March 2011, when she attended at the Coolaroo Clinic and saw Dr Joe Slesenger. He diagnosed lateral epicondylitis, or tennis elbow, referring the plaintiff for physiotherapy and providing her with a light duties certificate. She saw a physiotherapist, Ms Amira Kanianthra, who provided her with a physiotherapy management plan dated 10 March 2011. On 13 March 2011, the plaintiff lodged a Claim Form in respect of her injury, the injury being described as right tennis and golf elbow. Her claim was accepted. She ceased work at about this time.
13 Also at about this time, Dr Lilia Ilina, a general practitioner at the Coolaroo Clinic, was looking after the plaintiff, but shortly thereafter her management was taken over by Dr John Hodgson, also of that Clinic. He has remained her treating general practitioner since approximately 13 March 2011.
14 The report of Dr Hodgson of 20 April 2012 indicates that the plaintiff saw another physiotherapist, Ms Liliana Valicek, in or about March 2011. This led to a discussion concerning a possible MRI. Dr Hodgson organised for this to take place.
15 On 24 June 2011, an MRI scan of the plaintiff’s right elbow was carried out, this being at the request of Dr Hodgson. The conclusion of the radiologist was that the plaintiff had higher grade extensional origin tendinosis, with tendon breakdown and proximal delamination and articular surface tear. There was also mild degeneration and thickening of the radial collateral ligament without an acute tear, and features of medial epicondylitis, but with no current inflammation or tendon tear. There was also mild brachialis enthesitis and mild ulnar neuritis at the level of the cubital tunnel and distally, without a secondary compressive lesion being identified. In the opinion of the radiologist, an autologous blood injection of the common extensor origin should be considered.
16 Dr Hodgson reviewed the MRI scan referred to above. To him, it showed a fairly extensive injury and a likely explanation for the failure of treatment.
17 At this time, there was an additional problem, in that the plaintiff informed Dr Hodgson that her supervisor had behaved towards her in a somewhat inappropriate manner, making threats. The plaintiff was referred to a consultant psychiatrist, Dr Seyed Assadi. Dr Assadi was not of the view that her problems were related to her Bipolar Disorder, but thought that she was suffering an acute situational crisis caused by her elbow pain and the behaviour of the supervisor. There also seems to have been some worsening of her Bipolar Disorder as a result of stressors relating to medical examinations.
18 On 13 March 2012, the plaintiff had a further MRI of the right elbow. This was at the referral of Dr Chun Zhang, whose address is also the Coolaroo Clinic. On this occasion, the conclusion of the radiologist was that there was a high grade intrasubstance partial tear of the common extensor tendon origin of the right elbow. Dr Hodgson has commented that this seems to be unchanged from the findings on the previous MRI.
19 Dr Hodgson then referred the plaintiff to Mr Stephen Doig, orthopaedic surgeon. The date upon which Mr Doig first saw the plaintiff is unclear. However, on 5 June 2012, Mr Doig reported to Dr Hodgson to the effect that the plaintiff had “fairly significant lateral epicondylitis of her right elbow”. He also diagnosed some medial epicondylitis. In July 2012, at the request of Mr Doig, the plaintiff had an ultrasound of her right elbow, which revealed small tears to the common extensor tendon. On 23 July 2012, the plaintiff had an ultrasound-guided right elbow injection. On 26 September 2012, she had an autologous blood injection in the right extensor tendon origin.
20 The plaintiff saw Mr Doig, again, on 23 October 2012. The autologous blood injection had been of no assistance. She had received four injections in total, without benefit. Accordingly, on 8 January 2013, surgery was performed by Mr Doig. This was in the nature of a right elbow arthrotomy, with partial synovectomy and right tennis elbow release.
21 Following the surgery, the plaintiff continued to be limited in the function of her right arm. She was referred for further physiotherapy, also performing exercises at home.
22 In a report of 3 October 2013, Mr Doig stated that the plaintiff seemed to be steadily improving, but that it might take her 9 to 12 months to get the full benefit of the surgery. After that period, it was unlikely that there would be any further significant improvement. There had been no problems in relation to the plaintiff complying with the post-surgery regime of treatment. Mr Doig regarded the long-term prognosis as being moderate, as it was likely that the plaintiff was going to continue to have some ongoing aches and pains in the right elbow. He had some hopes that she would be able to return to work, but it was not possible to state, at that stage, that she had improved enough to be able to do that. It would not appear that Mr Doig has seen the plaintiff since his report of 3 October 2013.
23 The plaintiff has continued to attend on Dr Hodgson quite frequently for various complaints, including epicondylitis of the elbow on a comparatively regular basis. In a report of 22 November 2013, Dr Hodgson stated the plaintiff was unfit for work and was unlikely ever to work again. A reason for this unfitness was ongoing pain caused by the right elbow lateral epicondylitis, this in turn being related to her employment as a cleaner. Dr Hodgson stated that the plaintiff had undergone all appropriate forms of treatment, listing these, and including eventual surgery. None had improved her pain, suffering or function. He was also of the view that, because of the elbow problem, the plaintiff’s pre-existing bipolar illness had been aggravated.
24 In his most recent report of 26 April 2016, Dr Hodgson said that little had really changed since his report of 22 November 2013. The plaintiff’s elbow function was limited by her pain, weakness of grip and lack of endurance when trying to use it. The limitations on her lifestyle and quality of life were unchanged. She remained unable to work. The prognosis was that the elbow function was not going to improve, and Dr Hodgson was of the view that she would never work again. He was not recommending any further active treatment of her elbow, as none had been effective in the past.
25 Since January 2016, the plaintiff had been seeing Dr Nylanda Ma, clinical psychologist. She assessed the plaintiff as experiencing symptoms consistent with Bipolar Disorder and exacerbated by ongoing environmental stressors, including physical health problems and parenting a child with mental health problems. Dr Ma expressed the view that the right elbow injury had a direct impact upon the plaintiff’s psychological wellbeing, essentially because of her inability to work. She also expressed the view that, from a psychological perspective, the plaintiff’s existing condition does not preclude her from working in the foreseeable future. However, she regarded it unlikely that the plaintiff would be able to engage in full-time work.
26 The plaintiff has also been seen for medico-legal purposes. In relation to her physical injury, she was seen by Associate Professor Kenneth Myers, consultant general surgeon, on 15 March 2016. The plaintiff complained of pain in the right elbow and, to a lesser degree, in the right shoulder and wrist, the pain being present most of the time, depending on how much she used the arm. She described the various domestic and the like activities in which she could not engage or which she found difficult. The diagnosis of Associate Professor Myers was one of lateral and medial epicondylitis of the right elbow. He implicated the Ford work. Whilst he considered that there may be a psychiatric component to the plaintiff’s disability, he considered that most of the problems relating to the right elbow result from the organic injury. His overall conclusion was that the disability in question was now permanent. He was not anticipating any future improvement with conservative treatment.
27 The defendant has also had the plaintiff examined. Mr J Kendall Francis, consultant surgeon, provided a number of reports to the defendant between 8 August 2011 and 25 July 2013. Mr Francis first saw the plaintiff on 8 August 2011. Amongst other things, Mr Francis considered the MRI report of 24 June 2011, commenting that a multiplicity of abnormalities were demonstrated, including what was described as a high-grade common extensor original tendinosis with proximal delamination and articular surface tear.
28 Essentially, Mr Francis found little or no abnormalities on physical examination of the plaintiff’s right arm. He thought that cessation of work, combined with simple analgesics, had rendered her relatively symptom free. He suggested some added treatments, such as possible use of a splint, improved lifting techniques and the like. He foreshadowed the possibility of an autologous blood injection. Indeed, he commented that the physical signs were far milder than one would anticipate on viewing the MRI report. He also referred to her bipolar psychiatric problems. He thought that she could perform her previous duties, with the exception of the vacuuming work.
29 Mr Francis reported again on 14 February 2012. He does not appear to have seen the plaintiff again. He observed some surveillance material. No surveillance videos were shown during the conduct of the case, nor were they tendered.
30 Mr Francis saw the plaintiff again on 14 February 2012. Again, many aspects of the examination by Mr Francis revealed normal results, although he did refer to quite localised medial and lateral condylar tenderness. On this occasion, there was also a degree of shoulder symptoms, consistent with possible rotator cuff-type tendinitis. He felt that problems with the attitude of the plaintiff’s supervisor were affecting her increasingly. Whilst the findings by Mr Francis were described as not being gross, he thought that the time had come for the plaintiff to be referred for a specialist orthopaedic opinion. He diagnosed aggravation of epicondylitis, gradually developing in the course of her cleaning activities. He felt that, with appropriate restrictions, she did have a current work capacity. He also suggested psychiatric assessment. He felt that her current treatment was achieving no success. A brief letter of Mr Francis of 20 February 2012 again recommended referral to a specialist.
31 Mr Francis reported again on 24 February 2012, again without seeing the plaintiff. He referred once more to psychological factors and interpersonal relationships in relation to a work return. He thought that the plaintiff could return to working 10 hours per week, but not to vacuuming. Mr Francis felt that the major problem was the psychiatric/psychological background.
32 Mr Francis saw the plaintiff again on 6 December 2012. By this time, the plaintiff had had a further MRI scan of the right elbow. Mr Francis commented that this again demonstrated the described high-grade intrasubstance partial tear of the common extensor origin, but other findings did not seem to be evident any longer. In addition, by this time, the plaintiff had been referred to Mr Doig and an ultrasound had been performed. A follow-up ultrasound-guided autologous blood injection had had unfavourable results. Mr Francis reported that his findings on examination were, to a large extent, normal. He did not feel that any further treatment would be of assistance. He could find no specific injury or physical condition. He thought that she had a physical capacity to engage in her previous work. He suggested initial restrictions which could later be lifted.
33 Mr Francis examined the plaintiff yet again on 25 July 2013. By this stage, surgery had been performed on the right elbow by Mr Doig. Mr Francis noted that the plaintiff was not using anti-inflammatory medications, as these affected her bipolar situation. On examination, Mr Francis found some limitation of movement of the right shoulder. He noted the operational scar on the right elbow and some slight tenderness of the medial condyle. There was some pain over the lateral epicondyle region on the right side on resistance and some weakness of the musculature. Essentially, he found something close to full mobility of the right elbow. He thought that the plaintiff would be fit for alternative, non-physical work. He did not consider her to be fully recovered from her original complaint. Any return to work would need to be on the basis of some restrictions. There was also a continuation of some psychiatric problems which caused restrictions. Much of the opinion of Mr Francis concentrates on the plaintiff’s capacity for employment.
34 Mr Michael Troy, surgeon, saw the plaintiff on 28 July 2012. The principal reason for this examination seems to have been an assessment of permanent impairment pursuant to the AMA Guides. Mr Troy in fact made an assessment of zero per cent. Whilst Mr Troy seems to have implicated employment, he felt that the plaintiff had recovered. However, he also noted that she continued to have pain in the right lateral elbow. In any event, to a very considerable extent this report has been overtaken by events. It predates the surgery performed by Mr Doig.
35 The plaintiff placed in evidence the report of Associate Professor Anthony Buzzard, orthopaedic surgeon, who saw the plaintiff at the request of the defendant on 12 November 2013. A considerable part of Associate Professor Buzzard’s attention was also addressed to an assessment of impairment pursuant to the AMA Guides. In any event, he found that the plaintiff had not responded well to any of the treatments given and that she still had right elbow lateral epicondylitis. He was aware of the surgery performed by Mr Doig in January 2013. He also thought that the plaintiff was precluded from her pre-injury work as a cleaner. He implicated employment. He was prepared to make an assessment according to the AMA Guides to the Evaluation of Permanent Impairment, noting, in essence, a loss of strength in the plaintiff’s dominant right arm.
36 At the request of the defendant, the plaintiff was also seen by Dr Roy Karna, rheumatologist. The original examination was on 8 April 2015. The plaintiff described her symptoms, including that there was a low-grade ache in her elbow at rest, but that it became a more severe pain with activity. I note that Dr Karna recorded that the plaintiff was taking Endone for her plantar fasciitis. As the plaintiff has stated that this also assisted her in relation to her right arm pain, it is a topic to which I shall return. Dr Karna failed to find any clinically reproducible objective physical findings suggestive of ongoing structural musculoskeletal pathology in the right upper limb. In essence, he diagnosed a Chronic Pain Syndrome driven by psychogenic factors. He did not believe that there was any conscious malingering or feigning of injury, but rather that the plaintiff had become entrenched in her pain syndrome role driven by psychogenic factors.
37 Dr Karna saw the plaintiff again on 16 February 2016. In essence, Dr Karna could find no change in the plaintiff, referring to non-localising symptoms which could not be attributed to any defined structural musculoskeletal injury. He believed that the plaintiff had become entrenched in an invalid role, and could not explain her upper limb symptoms on the basis of any injury. His diagnosis remained that of a psychogenically-driven Pain Syndrome. I note that Dr Karna recorded that the plaintiff had undergone gynaecological surgery towards the end of 2015. As a result of this, she required increasing doses of analgesics and felt that these masked some of her elbow symptoms.
38 Dr Karna provided a brief supplementary report of 10 May 2016 without again seeing the plaintiff. In this report, he commented upon the report of Associate Professor Myers and material in relation to the treatment by Mr Doig. He repeated that he could find no evidence of any organic pathology and, in essence, disagreed with the opinion of Associate Professor Myers.
39 The defendant has also had the plaintiff seen by Mr Damian Ireland, a surgeon specialising in surgery of the hand. Mr Ireland first saw the plaintiff on 8 April 2015. To Mr Ireland, the plaintiff complained of generalised pain circumferentially around the right elbow, but at its maximum on the posterolateral aspect. She also described constant pain, worse with any use of the right hand. She described various tasks concerning which her function had diminished or which she could not perform. The medication taken by her was Panadeine, one to two per day, and Endone, an opioid, which was prescribed for her plantar fasciitis. The diagnosis of Mr Ireland was of a Chronic Pain Syndrome associated with the right elbow following surgical treatment for lateral epicondylitis. He was of the view that there was currently no longer any evidence of lateral epicondylitis at the right elbow. He was of the opinion that there was a discrepancy between the severity of the subjective symptoms of which the plaintiff complained and the presence of corresponding, objective, physical findings.
40 Mr Ireland saw the plaintiff again on 2 March 2016. Essentially, the plaintiff stated that there had not been any substantial change in her clinical status since the previous examination. There was a constant dull ache in the right elbow, aggravated by the use of the right hand. Mr Ireland again diagnosed a Chronic Pain Syndrome, with there being no residual evidence of lateral epicondylitis at the right elbow. He felt that she was able to engage in her pre-injury job description without restriction and indeed, could perform such work on a full-time basis.
41 In a brief letter of 12 May 2016, Mr Ireland commented upon the report of Associate Professor Myers. Mr Ireland stated he was not sure on what basis Associate Professor Myers made his diagnosis of right lateral and medial epicondylitis, as he seemed to have noted only normal examination findings. The opinion of Mr Ireland remained that the previous lateral epicondylitis had now fully resolved.
42 That concludes my summation of the medical evidence, leaving to one side for the moment reports of a psychiatric nature.
43 The diagnosis, which I accept, is that of Dr Hodgson and Associate Professor Myers. Dr Hodgson has seen the plaintiff on numerous occasions and continues to be her treating general practitioner. As was discussed during the conduct of the case, the impression given from his reports and clinical notes is that Dr Hodgson is a thorough and careful general practitioner. This is a proposition with which Mr Miles, on behalf of the defendant, agreed – see T51.
44 The diagnosis of Dr Hodgson throughout has, in essence, been one of chronic lateral epicondylitis. He has repeated that as recently as in his report of 26 April 2016. That is the last of some 11 reports and letters provided by Dr Hodgson since March 2011. Dr Hodgson has had regular contact with the plaintiff over the years and his quite detailed clinical notes were put before me. I accept his evidence and his diagnosis. I find that the plaintiff does have chronic lateral epicondylitis. I accept the observations that the limitations on the plaintiff’s lifestyle and quality of life have remained unchanged. She remains unable to work and, in the opinion of Dr Hodgson, will never be able to work again. I note that he is not recommending any further active treatment for her elbow, as none has been effective in the past.
45 The opinion of Dr Hodgson is largely consistent with the findings of Associate Professor Myers. He has also diagnosed lateral and medial epicondylitis of the right elbow. He believes that most of the plaintiff’s problems relating to the right elbow result from organic injury. He believes the disability to be permanent. I note that Associate Professor Myers agrees with the diagnosis of Associate Professor Buzzard, examining on behalf of the defendant, to the effect that the plaintiff has a diagnosis of right elbow lateral epicondylitis that has not responded to any treatment and that there is no place for any further surgery. Associate Professor Myers added the observation that he suspected that there was no alternative employment option available to the plaintiff that would fit in with the restrictions imposed by Associate Professor Buzzard.
46 It seems to me that the conclusions of Dr Hodgson and Associate Professor Myers are consistent with what was found on radiological investigation. Such findings are consistent with what was found by the operating surgeon, Mr Doig, and the fact that symptoms are ongoing is consistent with Mr Doig’s prediction that, after 9-12 months from the date of surgery, it would be unlikely if there was going to be any further significant improvement. The findings are also consistent, at least to some extent, with the observations of Associate Professor Buzzard.
47 Importantly, and as stated, the impression gained from material supplied by Dr Hodgson is that he is a careful practitioner who has seen the plaintiff a multitude of times over the years and who knows her problems well. She is a woman who has undergone a considerable amount of treatment, including surgery. I accept the opinion of Dr Hodgson and the diagnosis of chronic lateral epicondylitis, with there also being some medial epicondylitis, as noted by Associate Professor Myers.
48 There is no suggestion that the plaintiff previously suffered from an injury or condition of this kind. The injury is not in the nature of an aggravation. It arises from the plaintiff’s activities when performing the Ford work.
49 I also accept that the injury and its consequences are permanent within the meaning of the Act. Associate Professor Buzzard was prepared to make an assessment pursuant to the requirements of the AMA Guides, an ingredient of which is permanence. The most recent report of Dr Hodgson indicates that the plaintiff’s prognosis is that the limitations on her lifestyle and quality of life, and upon her employability, are not going to improve. In this regard, he does not believe that she will ever work again. Associate Professor Myers has stated that the disability from the organic injury to the lateral and medial epicondyle of the right elbow is permanent and that there is no reason to anticipate that there will be any future improvement. I accept the opinions of these examiners in relation to diagnosis and I also prefer it in relation to prognosis.
50 Further, it is now almost three and a half years since the surgery was performed. The operating surgeon, Mr Doig, expressed the view in his report of 3 October 2013 that there was unlikely to be any significant improvement after some 9-12 months from the performance of the surgery. I accept that there has been basically no improvement. I am satisfied that the consequences of injury are permanent within the meaning of the Act.
51 The question of “disentanglement” is one that received considerable attention. For the purposes of s134AB(38)(h), psychological and psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition. As I have already observed, I am not of the view that the claim pursuant to paragraph (c) has been made out. Accordingly, consequences of a psychological or psychiatric nature are not to be taken into account in relation to the remaining claim pursuant to paragraph (a). Such consequences and other injuries, both physical and mental, remain relevant for the purposes of “disentanglement” and identifying the consequences which flow from the physical injury.
52 In arriving at my conclusion, I shall leave to one side all consequences of a psychological or psychiatric nature that arise from the physical injury, the subject of this application. I shall also leave to one side all symptoms, restrictions and the like which are caused by or result from injuries or conditions, physical or mental, other than those which are consequential upon the workplace injury to the right elbow.
53 I note that the treating psychiatrist, Dr Assadi, expressed the view that the plaintiff’s mental illness was pre-existing and was not secondary to work-related issues. However, the work-related stressors, along with other unrelated factors, had precipitated the escalation of symptoms. Dr Assadi expressed this view in May 2013. He was then of the view that the plaintiff was currently experiencing an escalation of psychological symptoms, but he believed that she would recover if she received and followed appropriate treatment.
54 Dr Hodgson, in his more recent reports, has clearly delineated between the plaintiff’s elbow problems and her mental condition. He has expressed the opinion that the plaintiff’s pre-existing Bipolar Disorder has been aggravated by the right elbow problems, but has spelled out clearly the consequences and limitations created by such physical problems.
55 Since January 2016, the plaintiff has been seeing a clinical psychologist, Dr Ma. She felt that the plaintiff’s Bipolar Disorder had been exacerbated by various stressors, including the right elbow injury. However, she also stated that, from a psychological perspective, the plaintiff’s condition had not precluded her from working. This also seems to have been the view of Dr Timothy Entwisle, consultant psychiatrist, who apparently saw the plaintiff for the defendant on 19 March 2013 and felt that, from a psychiatric perspective, she was fit for her pre-injury work duties.
56 Dr Matthew Tagkalidis, consultant psychiatrist, examined the plaintiff at the request of her solicitors, reporting on 8 March 2016. During the conduct of the case, his opinion was described as being “one out”. This was because he expressed the view that the plaintiff had been functioning quite well prior to the right elbow injury and that this caused a substantial detrimental effect upon her mental health and functioning. He thought that there were no other unrelated issues that had contributed to her psychiatric condition and that she was not fit for her pre-injury employment on the basis of her psychological state. He also thought that she was not fit for alternate duties.
57 The defendant has had the plaintiff seen by Dr Alan Jager, forensic psychiatrist. He diagnosed a Bipolar Disorder, which predated the plaintiff’s injury. He believed that her depressed anxiety and lower energy interfered with her ability to work full-time. She was also restricted in relation to social activities, but was able to undertake domestic tasks within her physical restrictions. Dr Jager expressed the view that the plaintiff was fit for half-time employment within her physical restrictions. Dr Jager wrote to the solicitors for the defendant on 22 April 2015. This was without seeing the plaintiff again and was for the purpose of answering specific questions. In answer to a question, he gave the opinion that the plaintiff’s Bipolar Disorder had been aggravated by her work injury, but qualified this by saying that she would have had that illness in any event. He estimated that 15 per cent of her mood symptoms related to the aggravation caused by the pain associated with the physical injury. Her psychiatric presentation was 85 per cent due to non work-related matters.
58 Dr Jager reported again on 6 May 2016. He had seen the plaintiff again before sending this report. His opinion was that her Bipolar Disorder was currently in a depressive phase. He noted that she was being treated without the guidance of a psychiatrist. He expressed the view that her Bipolar Disorder rendered her unfit for full-time employment, but she could undertake work for 30 hours per week within her physical restrictions. Dr Jager provided another report to the defendant’s solicitors, this being dated 15 May 2016. It would not appear that he had seen the plaintiff again. In particular, he noted the reports of Dr Karna and Mr Ireland, with which reports he had been provided. Dr Jager observed that, if the opinions of those examiners were accepted, the plaintiff’s psychiatric condition was unrelated to and unaffected by any work injury.
59 As I indicated at the outset, I am not of the view that the plaintiff has discharged the burden of proof in relation to her application insofar as it relies upon paragraph (c) of the definition. I prefer the views of those who have been treating the plaintiff to the opinion of Dr Tagkalidis. In those circumstances, as stated, I shall leave to one side all consequences of a psychological or psychiatric nature that arise from the physical injury to the right elbow. That is also consistent with the opinion of Dr Jager, although I do not accept the opinions of Dr Karna and Mr Ireland in relation to the plaintiff’s physical injury. I have discussed this previously. I also note that, in the opinion of Associate Professor Myers, whose evidence I accept, most of the problems relating to the plaintiff’s right elbow result from an organic injury.
Other developments since the injury
60 The plaintiff ceased performing the Ford work in March 2011 and has not worked since. For a period she lived with her mother, who needs physical assistance. That has now ceased.
61 The plaintiff has experienced other distressing events. A very close friend died from cancer in late 2015 and her son’s fiancée died in Lebanon late last year. She saw a psychologist, Ms Ma, for grief counselling. In addition, one of her daughters has had some mental health issues.
62 The plaintiff has also had plantar fasciitis and chronic ankle pain. She takes Endone for this, although it is also of benefit in respect of pain from her elbow.
63 Whilst the plaintiff was living at her mother’s house, her sister was the certified carer for the mother. For approximately one year, the plaintiff’s oldest daughter was certified as her carer. This was in respect of the Bipolar Disorder. The plaintiff also takes Panadeine Forte, which assists with her elbow pain. The plaintiff stated that the main reason she moved out of her mother’s house was because she could not take care of her – see T35.
64 In 2015 the plaintiff also underwent a gynaecological procedure at the Northern Hospital. There were some problems encountered in relation to this and to the anaesthetic used. The plaintiff stated that this had had no effect on her elbow – see T36. However, she did experience some pain with her right arm when used for the checking of her blood pressure.
Ruling
65 This is a case where the plaintiff has a quite complex medical history, apart from having lived a life complicated by various personal and family problems, some of them quite serious and understandably distressing. I am indebted to counsel for the thorough, but tactful, manner in which this case was conducted. It was of great assistance to me in identifying and isolating the issues to be determined.
66 I shall now set out the conclusions at which I have arrived.
(a)The application pursuant to paragraph (c) of the definition – permanent severe mental or permanent severe behavioural disturbance or disorder
67 As I previously indicated, I am of the view that the plaintiff has not discharged the burden of proof in relation to this aspect of the case. There was essentially little disagreement between counsel that, for the plaintiff to succeed in this regard, the opinion of Dr Tagkalidis would have to be accepted. In any event, that is certainly how I read the material and interpret the situation. As indicated I do not accept his opinion.
68 As previously stated, I prefer the opinions of those treating the plaintiff. Her Bipolar Disorder and associated mental health problems long-preceded the performance of the Ford work. Dr Tagkalidis seems to have opined on the basis that the Bipolar Disorder was previously well-controlled, but whether that was in fact the case seems doubtful. In any event, I find that the plaintiff has not satisfied the statutory requirements in relation to a permanent severe mental or permanent severe behavioural disturbance or disorder.
(b)The permanent severe impairment or loss of a body function – the injury to the right elbow
69 In relation to the right elbow injury, I find that the plaintiff has discharged the burden of proof and has satisfied the statutory test. I have come to that conclusion for the following reasons, which are not set out in order of importance or significance.
(i) I accept what the plaintiff has sworn to the effect that there is always some pain in the right elbow and that it flares-up to a sharp or severe level a number of times every day. She also has what would appear to be related pain in the right shoulder and, possibly, in the right wrist, but such pain, whilst it may be related to the elbow pain, would seem to be very much secondary to it in terms of intensity. Persistent, ongoing pain is an important factor – see Haden Engineering v McKinnon [2010] VSCA 69 and subsequent cases, such as Sutton v Laminex Group Pty Ltd [2011] VSCA 52. In Tatiara Meat Company Pty Ltd v Kelso [2010] VSCA 12, the Court of Appeal stated that:
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”
The plaintiff’s ongoing and constant pain, which, several times a day, flares-up to the level of being sharp or severe, is a factor of importance which I take into account in the present case.
(ii) The injury is to the plaintiff’s dominant arm. Thus, pain and difficulty is associated with what she has described as “most day-to-day tasks”. She has sworn that things such as vacuuming and mopping cause sharp pain in the elbow and that even simple tasks such as peeling vegetables or combing her hair are painful.
(iii) In applications of this nature, the credit of the plaintiff is usually important. As was said by Brooking J in Palmer Tube Mills (Aust) Pty Ltd & Anor v Semi (1998) 4 VR 439 at [448]:
“Moreover, in "serious injury" applications the credit of the applicant is of great importance, …”
This observation was referred to more recently by the Court of Appeal in Papamanos v Commonwealth Bank of Australia [2014] VSCA 167.
As earlier stated, I accept the plaintiff as a witness of truth and her credit was not the subject of any significant attack. Thus, I accept what she has sworn in her affidavits and the histories and descriptions of symptoms which she has given to medical examiners.
(iv) The age of the plaintiff is another matter which I have borne in mind. She is aged 45 years. Whilst she has suffered from various health problems, such as hypertension, there is no suggestion that physical conditions of this nature are likely to impact upon her life expectancy. Her problems of mental illness are under the care of Dr Hodgson. It is not suggested in the medical material that she has anything other than a normal life expectancy. If that be so, she probably faces several decades of pain and suffering as a result of the injury arising from the Ford work.
(v) In relation to medication consumed, the plaintiff takes one to two Panadeine Forte per day and two to three Endone, an opioid. True it is that the Endone was prescribed for the plaintiff’s foot problem, but she has sworn that this helps her elbow problem and that she has informed her doctor of this. She gave evidence that she is not supposed to mix the Panadeine with the Endone, so that she usually takes the Panadeine early in the day and the Endone later on in the day and at night – see T31 and 32. Thus, whilst the Endone is used for her pain, both in the foot and in the right arm, she is consuming comparatively powerful medication to assist with her elbow pain. This is some barometer of her pain level.
(vi) The plaintiff is now unable to work. I appreciate that there is no claim before me based upon economic loss. The plaintiff seems to have worked quite restricted hours in order to supplement her disability pension within the permissible limits. However, the ability to supplement her income in this fashion has been removed, along with any satisfaction or enjoyment she may have obtained from being able to do some part-time work.
(vii) In summary, the consequences of the injury to the plaintiff’s dominant arm – an injury established or confirmed by radiology and the subject surgery – are present on a daily basis. They include pain which is constant and which rises to the level of being sharp or severe every day. There has been quite gross interference with her capacity to perform simple, everyday tasks.
Conclusion
70 In relation to the right elbow injury, the plaintiff is successful. She has discharged the burden of proof. I am satisfied that the consequences of her impairment or loss of a body function could, when the relevant comparison is made, be fairly described as being more than significant or marked, and as being at least very considerable. Leave is given to her to bring proceedings for pain and suffering damages.
71 In relation to the claim based upon mental or behavioural disturbance or disorder, the plaintiff has failed to discharge the burden of proof.
72 I shall hear the parties as to any ancillary orders that are required.
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