Karami v Victorian WorkCover Authority
[2023] VCC 894
•5 June 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-22-03595
| ESHAN SEID KARAMI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE CARMODY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 and 23 May 2023 | |
DATE OF JUDGMENT: | 5 June 2023 | |
CASE MAY BE CITED AS: | Karami v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 894 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – physical injury to the left little finger – Complex Regional Pain Syndrome – Regional Pain Syndrome – whether pain and suffering consequences are “serious” under the Act – psychological injury: Depression and Adjustment Disorder – whether “severe” under the Act – loss of earning capacity – credit of the plaintiff
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s325, s327 and s335
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Church v Echuca Regional Health (2008) 20 VR 566
Judgment: The plaintiff’s application to bring common law proceedings to recover damages for pain and suffering only arising out of the physical injury to his left little finger in the course of his employment on 13 May 2019 with Hume Doors & Timber (Vic) Pty Ltd is dismissed. The plaintiff’s application for loss of earning capacity as a result of his physical injury is dismissed. The plaintiff’s application for pain and suffering and loss of earning capacity in respect of a psychological or psychiatric injury is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin SC with Ms A Smietanka | Zaparas Lawyers |
| For the Defendant | Mr C A Miles | Wisewould Mahony |
HIS HONOUR:
1This is an application brought by Originating Motion dated 31 August 2022, whereby the plaintiff applies for leave pursuant to s325 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to bring proceedings to recover damages by him arising out of his employment with Hume Doors & Timber (Vic) Pty Ltd (“Hume Doors”). The plaintiff alleges he was injured in the course of his employment on 13 May 2019. The plaintiff seeks leave to bring proceedings to recover damages for pain and suffering and loss of earning capacity as a result of the injury to his little finger during the course of his employment on two bases:
(a) a physical injury to the plaintiff’s left upper limb and hand, meeting the definition of “serious injury”, in the sense of a long-term impairment or loss of body function to the left hand; and
(b) a permanent severe mental or permanent severe behavioural disturbance or disorder as a result of the injury at his work.
2The following evidence was adduced in the course of the hearing:
· The plaintiff tendered the following exhibits:
§Exhibit “A” – two letters from the ANZ Bank to the plaintiff dated 19 May 2023.
§Exhibit “B” – the Plaintiff’s Court Book (“PCB”), pages 18 to 31, 36 to 100 and 104 to 139, and the substituted page 145.
· The defendant tendered the following exhibits:
§Exhibit 1 – a statutory declaration sworn by the plaintiff on 10 October 2011.
§Exhibit 2 – a statutory declaration sworn by the plaintiff on 10 November 2021.
§Exhibit 3 – copies of CCTV surveillance footage for 9 January 2023.
§Exhibit 4 – photographs of the plaintiff taken on 22 May 2023.
§Exhibit 5 – bank statements from ANZ Access Advantage Account ending in account number 397.
§Exhibit 6 – bank statements from ANZ Online Saver Account ending in account number 418.
§Exhibit 7 – bank statements from National Australia Bank Account ending in account number 540.
§Exhibit 8 – Plaintiff’s Court Book, pages 103 to 104.
§Exhibit 9 – Defendant’s Court Book (“DCB”), pages 1 to 145 and 147 to 202 (specifically pages 156 to 161).
3The plaintiff gave evidence and was comprehensively cross-examined.
4At the commencement of the proceeding, Mr Miles, on behalf of the defendant, identified the following issues as relevant in this application:
(a) the plaintiff does not satisfy the statutory test for pain and suffering damages as a result of the physical injury to his left little finger;
(b) the plaintiff had a longstanding psychiatric condition prior to the alleged injury with the defendant employer and any aggravation of this pre-existing psychiatric condition is not “severe” as required under the Act;
(c) the plaintiff is required to disentangle the consequences between the physical and psychological injuries alleged by him;
(d) the plaintiff has an erratic work history and, consequently, his pre-injury earnings are much less than the alleged loss of earning capacity by the plaintiff; and
(e) the credit of the plaintiff is in dispute.
The statutory scheme
5The application is brought under the definition of “serious injury” contained in s325(1) of the Act, which requires the plaintiff to prove that he has suffered a “permanent serious impairment or loss of body function”.
6The relevant considerations which apply to such an application are as follows:
(a) the plaintiff must prove that he has suffered a compensable injury; that is, an injury which he suffered arising out of or in the course of his employment on or after 1 July 2014;[1]
(b) the injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[2]
(c) the plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d) subsection 2(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may be fairly described as being “more than ‘significant’ or ‘marked’”, and as being “at least very considerable”;
(e) subsection 2(h) provides that the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise;
(f) a mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of this application unless the pain and suffering consequence or the loss of earning capacity consequence is, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe;
(g) in conformity with Barwon Spinners,[3] I must identify the injury and the impairment said to be produced in consequence of the injury; whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss2(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[1] See s1 of the Act, and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
[2] Barwon Spinners (ibid) at paragraph [33]
[3] ibid
7I am required to give detailed reasons which are as extensive and complete as the Court would give on the trial of an action and in doing so, to disclose my pathway of reasoning in dealing with the evidence and the issues raised by the application.
The Plaintiff’s background
8The plaintiff was born in Iran in 1986. He is now thirty-six years old.
9The plaintiff is presently in a relationship with Eliana Abril. Ms Abril was expecting a child at or around the time of the hearing of this proceeding. The plaintiff gave differential evidence about whether Ms Abril lived with him, or lived with her parents in North Melbourne.
10The plaintiff was educated to a Year 12 equivalent in Iran. He obtained diploma-level qualifications in electrical work and worked in that capacity in factories in Iran.
11In 2011, the plaintiff came to Australia via Indonesia. He came to Australia as a refugee. The plaintiff stated that he had previously attempted suicide while living in Iran.
12While in immigration detention in Australia as an asylum seeker, the plaintiff sought the assistance of psychologists and psychiatrists.[4]
[4]PCB 19
13The plaintiff stated that his employment had included working as a packer in a meat factory, a carpet cleaner and as a buggy driver.
14The plaintiff commenced work with the defendant employer in this proceeding in March 2019. He was injured on 13 May 2019 and has not worked since. The plaintiff’s evidence was that he had not applied for or attempted to engage in any employment since 13 May 2019.
Injury with the employer
15The plaintiff, in his affidavit sworn 12 April 2022, sets out the circumstances of the injury to his left little finger:
“On or about 13 May 2019, I was pushing a trolley stacked with metal door frames when the door frames began to fall and crushed my left little finger.”[5]
[5]PCB 19 at paragraph 13
16The plaintiff has not returned to any form of employment since that day.
Medical treatment
17The plaintiff initially attended at the Sunshine Medical Clinic for treatment to his left little finger. He was then referred to the Footscray Hospital by that medical clinic. Upon attending at the Footscray Hospital, he underwent some scans to his left little finger, and it was determined that his finger had been fractured. A cast had been placed on his finger.
18The plaintiff has been treated at the Sunshine Hospital as an outpatient. He has received hand therapy and was fitted with a wrist splint and finger splint. The plaintiff has been prescribed pain management medications of Panadeine Forte, Lyrica and Celebrex.
19By June 2019, the plaintiff was referred to a pain management clinic. The plaintiff has undergone two separate treatments under pain management clinics in 2019, 2020 and 2021.
20The plaintiff has always been engaged with psychiatric support through the Midwest Area Mental Health Service. The plaintiff has been prescribed Mirtazapine, 60 milligrams per day, and Endep, 25 milligrams per day.
21The plaintiff continues to seek hand therapy treatment and psychological and psychiatric support from the Western General Hospital.
22The plaintiff has continued to be prescribed medications of Lyrica, Palexia, Mirtazapine and Endep, together with Effexor.
23The medical treatment and support the plaintiff receives depends heavily on his reporting of symptoms and difficulties to his medical practitioners.
Credit of the Plaintiff
24Mr Miles, counsel for the defendant, challenged the credibility of the plaintiff very directly in this case. It was a proper and appropriate attack on the plaintiff’s credit.
25The plaintiff, in his histories to the psychological and psychiatric medical practitioners in this case, stated that he had no prior psychiatric history. The evidence in this case reveals that the plaintiff has had prior psychiatric difficulties when he lived in Iran prior to coming to Australia. He agreed that he had attempted suicide in Iran.
26In Australia, the plaintiff has been treated for, and placed on, two mental healthcare plans in May 2014 and May 2016. Both of these mental health care plans were administered years before the plaintiff’s injury, the subject of this case. The plaintiff did not tell any of his medical examiners about this prior history. I do not accept that the failure by the plaintiff to advise his medical examiners of his prior psychiatric history was an oversight or simply because he “did not want to talk about it”. I formed the view that the plaintiff was deliberately trying to hide his previous psychiatric conditions in order to enhance his claim in respect of this proceeding for psychiatric and psychological injury.
27The plaintiff was challenged about his place of residence. When the plaintiff gave evidence, he stated that his address was in Mossfield Drive, Hoppers Crossing. The plaintiff has sworn two affidavits, dated 12 April 2022 and 5 May 2023, stating that he lived at that same address. In a statutory declaration[6] which was sworn by the plaintiff on 10 November 2021, he declared that he lived in Mossfield Drive, Hoppers Crossing. In his evidence, after being cross-examined, the plaintiff conceded that he had signed a lease for a property in Koroneos Drive, Werribee South on 18 November 2020. He agreed that he lived there with Ms Chen. After extensive cross-examination, lasting pages in the transcript, the plaintiff finally conceded that he now lived in Margaret Street, Werribee. The plaintiff was unable to give an explanation as to why he continued to maintain that his address was in Mossfield Drive, Hoppers Crossing, when he had not lived at that premises since 2020. I find that, in respect of the plaintiff’s evidence concerning his address, he was prepared to obfuscate, dissemble and simply mislead the Court.
[6]Exhibit 2
28The plaintiff has been subjected to surveillance by the defendant. The defendant stated in open court, through its counsel, that it had two separate very short pieces of surveillance showing the plaintiff with a bandage and/or splint on his hand. Those two pieces of surveillance were not shown in the proceeding. There was no other record relating to the extent or time of the surveillance of the plaintiff put before this Court. That statement is not to be taken as a criticism of the defendant in this case.
29The defendant relied upon surveillance taken on 9 January 2023 by what were described as “three operatives”. On 9 January 2023, the plaintiff attended upon Dr Tim Hwang, a consultant occupational physician, for a medical examination on behalf of the defendant. Dr Hwang’s rooms are in the north tower, level 3, of 485 La Trobe Street, Melbourne. Dr Hwang prepared a report dated 13 January 2023.[7] In that report, Dr Hwang reports the plaintiff’s current status, as set out in the following manner:
“… [The plaintiff] described ongoing pain throughout his left hand mostly on the ulnar aspect of his hand and to a lesser extent the radial aspect of his hand. The pain is present at all times. He has virtually no use of his left hand. The pain is worse in cold. He has difficulty sleeping. He also described significant depressive symptoms. He described being unmotivated. He stays at home most of the time. He does have an automatic car. He drives short distances using predominantly his right hand, holding on to the steering wheel also with his left hand thumb and index fingers as a pincer grip.
His uncle visits him regularly and may help with household chores. He described that he does not do much around the house. He cannot cook. He picks up takeaway from a nearby shop and he is able to walk there and back. He does not go for walks recreationally; however, he does not have any trouble walking if he has his left hand wrapped up in a bandage or put in his pocket regularly when it is cold.”[8]
[7]DCB 125-31
[8]DCB 127
30He also states that he relies heavily on his uncle for assistance and has virtually no social life other than catching up with his uncle.
31An observation of the plaintiff by video surveillance were shown prior to the medical examination by Mr Hwang. The surveillance commences at 9.45am. The plaintiff is seen with a hoodie on and his left hand thrust into the pocket of the hoodie. He is walking and talking on a phone, which is held in his right hand.
32On the same day, immediately after the medical examination, the plaintiff is observed doing the following:
· At 11.10am, the plaintiff is seen walking down the steps of the building of the medical examiner, with his left hand in his hoodie pocket.
· At 11.14am, the plaintiff is walking along the street with his left hand in the pocket of his hoodie.
· At 11.16am, the plaintiff is seen looking back in a direction behind him. He is then observed putting something in the left pocket of his hoodie, using his left hand.
· At 11.47am, the plaintiff is seen driving his black Ford Territory vehicle. The plaintiff has his full left hand on top of the steering wheel, using it to steer the vehicle. His hand does not have any bandage on it.
· At 12.26pm, the plaintiff is observed walking along a footpath at the exterior of the shopping centre, with the phone held up to his left ear by his left hand. His left hand has no bandage or splint on it.
· At 12.27pm, the plaintiff is observed to change his phone to his right hand, and he has used his left hand to place a vape up to his face for use.
· At 12.30pm, the plaintiff is seen using his vape with his left hand up to his mouth without any difficulty. He continued to speak on his phone, which was held by his right hand.
· At 12.39pm, the plaintiff continues to be speaking on the phone, which is held in his right hand. The plaintiff uses his vape with his left hand without difficulty. The plaintiff also raised his left hand up to the right elbow. At no stage does the plaintiff have any bandage or splint on his left arm or hand.
· At 3.15pm, the plaintiff was observed walking normally in a shopping centre area, swinging his left arm in a normal fashion. His left hand or wrist does not have any bandage on it.
· At 3.37pm, the plaintiff is observed at the Donut King counter, speaking on a phone held in his right hand. The plaintiff’s left hand is leaning on the counter with his fingertips down on the top in a weight-transferring-type action. The plaintiff is observed scratching at his crotch, using his left hand intermittently.
· At 3.38pm, the plaintiff is holding the phone in his left hand and appears to be texting by using his right hand.
· At 3.40pm, while still at the Donut King counter, the plaintiff picks up two cups of coffee, one in either hand. There appears to be no difficulty for the plaintiff to pick up and hold the coffee cup in his left hand as he turns to walk away from the counter.
· At 3.40pm, the plaintiff is then observed walking through the carpark of the shopping centre, with the two cups of coffee held in a stacked-up manner in his left hand.
· At 3.41pm, the plaintiff is observed taking one cup with his right hand from the left hand, and is seen drinking coffee from a cup which is held in his left hand.
· At 3.56pm, the plaintiff is observed carrying two cups of coffee and his sunglasses in his left hand. The little finger, which is the subject of the injury, appears to be under the bottom of the bottom cup, supporting the weight of the two cups held in that hand. The plaintiff is then seen getting into the passenger side of a grey Mitsubishi vehicle, which is his friend’s car. The plaintiff still has his sunglasses in his left hand, and he uses his left hand on the top of the door to ease himself into the car seat and close the door.
· At 4.29pm, the plaintiff is observed opening the passenger-car door of the grey Mitsubishi with his left hand. This action is done without any difficulty whatsoever. The plaintiff does not have any bandage or splint on his hand.
· At 4.33pm, the plaintiff is seen walking in a park area with a friend. He is using his left arm normally. The plaintiff can be observed with his left hand up to his right elbow. He was holding the phone in his right hand.
· At 7.08pm, the plaintiff is observed walking with the same friend in a park area. The plaintiff opens the left-hand front passenger door, using his left hand in a normal manner. The left hand did not have any bandage or splint on it.
33The surveillance of the plaintiff on 9 January 2023 shows the plaintiff being able to use both hands in a normal manner in the conduct of obtaining or buying a cup of coffee and moving around in a social setting. At no time was he showing any signs of being in pain or incapable of using his injured left hand. This surveillance is a complete and direct contradiction to his history to Dr Hwang, given in the morning of the same day that he used a pincer-type movement with his left hand to steer the vehicle of the car and that he did not go for walks recreationally.
34I have set out the detailed observations of the surveillance film in compliance with the pronouncements made by the Court of Appeal in Church v Echuca Regional Health.[9] I have done so because, to use surveillance film in the manner of a one-day observation to make an assessment of the credibility of the plaintiff, requires caution on behalf of the fact finder. I find that the plaintiff was seeking to portray a severely debilitated state to Dr Hwang when, later in the same day, he was observed to be living a very normal life.
[9](2008) 20 VR 566
35The plaintiff, when giving his evidence in Court on the first day, wore an elastic band and a splint over his left hand. The plaintiff’s presentation in Court was consistent with the observations set out in the medical reports tendered in this case. In short, the plaintiff presented himself in Court as someone who could not use his left hand in any way at all. On the second day of the hearing, the plaintiff was shown photographs of himself at the luncheon adjournment of the previous day. These photographs were part of Exhibit 4. In those photographs, the plaintiff was seen with his splint and bandage still in place. However, he is using his left hand to hold the telephone, and to smoke his vape while on the telephone, which was in his right hand. The plaintiff agreed that it was him in the photographs and that he was performing those tasks shown in the photographs. This was a clear example of how the plaintiff was prepared to present himself as a complete invalid in respect of his left hand but, the reality of the situation is different, as shown in the photographs.
36I find that the plaintiff is not a credible witness. The plaintiff, in his evidence, was prepared to prevaricate, mislead and deceive the Court and his medical examiners. The findings I make in this proceeding are based solely on the independent observations of the medical practitioners. I place no weight on the evidence or history given by the plaintiff.
Psychiatric and psychological injury as a result of the incident on 13 May 2019
Medical opinions of the Plaintiff’s doctors
37The starting point in the determination of whether the plaintiff satisfies the requisite test in respect of psychological and psychiatric injury is his condition prior to the injury in May 2019. The plaintiff had previously attempted suicide while residing in Iran. This occurred prior to 2010. When the plaintiff was in detention at Christmas Island, he also received the assistance of a psychologist and psychiatrist, which occurred in 2011. The plaintiff has subsequently been treated by mental health care plans in 2014 and 2016. In 2018, the year immediately before the subject injury, the plaintiff was again diagnosed as being depressed as a result of his diagnosis of Guillain-Barré disease.[10]
[10]PCB 36
38In the conduct of this proceeding, the plaintiff has given histories to the medico-legal and treating psychologists and psychiatrists that he had no prior psychiatric condition or difficulties. This is plainly wrong.
Dr Babak Farr, physician at Western Health
39In a report to the plaintiff’s general practitioner, Dr Vijay Navani, Dr Farr states that the plaintiff was referred to Western Health on 2 August 2019 due to anxiety, depression and chronic suicidal ideation. The assessment was that the plaintiff was not actively suicidal at that time. The plaintiff was then referred to the Harvester Clinic for management of his mental health issues. Dr Farr was of the view that the psychological condition was all in relation to his work-related accident, being the crush fracture to his little left finger.[11]
[11]PCB 45
40In a later report to Dr Navani, Dr Farr, as at 9 December 2021, stated:
“His analgesic regime currently includes Pregabalin 150mg bd and Tapentadol p.r.n. He also has got anti-depressants, including Amitriptyline 25mg nocte, Mirtazapine (unsure about the dose) and Effexor (unsure about the dose) advised and prescribed by his psychiatrist.
With the current antidepressant resume (sic) his mood has been quite stable. Today we spoke about ongoing psychology and psychiatry input and continuing his antidepressant medication as that would be the main trigger for his pain.”[12]
[12]PCB 52
Dr Symon McCallum, pain physician and specialist
41Dr McCallum, in his report to the general practitioner, Dr Navani, dated 24 October 2019, stated that the plaintiff’s mood was still very poor. He noted the plaintiff was stressed, depressed and anxious.
42It was Dr McCallum’s opinion, at that time, that the plaintiff continue with his hand physiotherapy, psychology and psychiatry.[13]
[13]PCB 62
Community Risk Assessment and Plan
43The NorthWestern Mental Health Community Risk and Assessment Plan was prepared in respect of the plaintiff. It was dated 21 August 2019. The plaintiff gave a history that he had one suicide attempt in Iran eight or nine years ago with no further details. The plaintiff stated it was a difficult time for him in Iran and he was in trouble with the government. The community risk assessment was that the pain from the plaintiff’s left little finger and Complex Regional Pain Syndrome was the cause of his mental health problems.[14]
[14] PCB 65
Dr Thilini Jayasooriya
44In a report dated 9 January 2020 to Dr Navani, Dr Jayasooriya stated as follows:
“He [the plaintiff] presented with symptoms of moderate depression and prominent anxiety in the context of prolonged adjustment since suffering from work related injury to his hand and prior to that he was recovering from Guillian (sic) Barre Syndrome which affected his ability to function.”[15]
[15]PCB 69
45In the records of the NorthWestern Mental Health service, a document headed “Transition / Discharge Summary” maintained a history as follows:
“No history of contact with mental health private or public in Australia. His assessment document during new patient assessment mentions a suicidal attempt while in Iran 8-9 years ago.”[16]
[16]PCB 71
Dr Barry Slon
46Dr Slon prepared two reports, dated 6 December 2021 and 10 December 2021. Both of these reports were prepared for the purposes of other treating practitioners, in particular, Dr Navani, the plaintiff’s treating practitioner; Ms Lisa Costa, psychologist; Dr Kalpana Balgobind, psychiatrist, and Mr Arun Sharma, the hand therapist. The plaintiff did not tender these reports as part of his case. The defendant relied upon them.
47Dr Slon noted that the plaintiff was on the following medications:
· Pregabalin, 150 milligrams twice daily
· Amitriptyline, 25 milligrams
· Mirtazapine, 30 milligrams
· Tapentadol slow-release, 50 milligram BD
· Venlafaxine.
48Dr Slon noted that the plaintiff was requesting Tramadol for further treatment. Dr Slon refused to prescribe Tramadol for the plaintiff on this occasion.[17]
[17]PCB 101
49In his report dated 10 December 2021, Dr Slon expressed some frustration due to the plaintiff not permitting him to examine the injured hand on that day. He noted that the plaintiff was softly spoken, and the plaintiff found it difficult to provide details pertaining to other medical practitioners involved in his care. The plaintiff indicated that he did not want to be engaged in a pain management program.
Dr Kalpana Balgobind, psychiatrist
50Dr Balgobind is the treating psychiatrist for the plaintiff. He prepared three reports, dated 24 March 2022, 24 November 2022 and 9 February 2023. In his most recent report, Dr Balgobind took a history from the plaintiff denying mental illness prior to his workplace injury. The plaintiff also denied any genetic vulnerability to mental illness.[18] In the initial report, dated 24 March 2022, Dr Balgobind diagnosed the plaintiff as suffering a Chronic Adjustment Disorder with Depressed Mood.[19]
[18]PCB 109
[19]PCB 104
51In the report dated 24 November 2022, Dr Balgobind diagnosed the plaintiff as suffering from severe Major Depression secondary to a workplace injury, causing Complex Regional Pain Syndrome. He noted that the plaintiff was difficult to engage in therapy. Dr Balgobind noted that the plaintiff’s mood fluctuated according to his pain levels.
52In his final report, Dr Balgobind diagnosed the plaintiff as suffering from Major Depression secondary to a general medical condition (Complex Regional Pain Syndrome following workplace injury).
Dr Albert Kaplan, psychiatrist
53Dr Kaplan examined and prepared a report in respect of this matter for medico-legal purposes on 23 March 2023. Under the heading “Past Psychiatric History”, Dr Kaplan noted that the plaintiff told him he had no other past history of psychiatric illness or treatment.[20]
[20]PCB 136
54Dr Kaplan diagnosed the plaintiff as suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He stated the condition was directly related to the injury that the plaintiff suffered during the course of his work, his chronic pain and the physical limitation imposed on him by that injury.[21]
[21]PCB 137
55The plaintiff has given an incorrect history to his treating psychiatrist and the medico-legal psychiatrist, Dr Kaplan. These two experts are unable to differentiate the plaintiff’s condition prior to the injury, the subject of this proceeding, and the plaintiff’s current position psychiatrically. Further, the treating psychiatrist, Dr Balgobind, diagnoses the condition as being secondary to the physical condition of Complex Regional Pain Syndrome. Dr Kaplan, in part, agrees with that connection between the psychiatric presentation by the plaintiff and his physical injury. Neither psychiatrists have adequately disentangled the physical consequences of the injury from the psychiatric consequences. The explanation is the plaintiff’s incorrect history to them.
The Defendant’s doctors
Dr Steven Stern, psychiatrist
56Dr Stern prepared a report dated 28 October 2019. The plaintiff told Dr Stern that his mother had been murdered when he was four. The plaintiff stated that he did not know who had murdered his mother or why that had happened. He gave no history of psychiatric illness. The plaintiff also stated he had no past medical or psychiatric history.[22] The history given by the plaintiff to Dr Stern is plainly inaccurate. In 2019, Dr Stern diagnosed the plaintiff as suffering from Major Depressive Disorder with Anxiety. As Dr Stern was given a plainly wrong history in relation to psychiatric symptoms for the plaintiff, it is of little assistance to the Court in determining this application.
[22]DCB 26-27
Dr John Gill, psychiatrist
57The plaintiff was examined by Dr Gill on behalf of the defendant. Dr Gill prepared a report dated 24 December 2020. At the time of his attendance upon Dr Gill, the plaintiff told him that he had no history of a psychiatric condition prior to the work injury, the subject of this proceeding.[23] Dr Gill diagnosed the plaintiff as suffering from:
“… a psychiatric diagnosis of major depressive disorder developing secondary to the sequalae to his physical injury sustained at work. I also consider that he has some of the elements of a post-traumatic stress disorder although not meeting the full diagnostic criteria for PTSD.”[24]
[23]DCB 40
[24]DCB 43
Associate Professor Saji Damodaran, consultant psychiatrist
58Associate Professor Damodaran examined the plaintiff in May 2021 for the purposes of medico-legal reporting on behalf of the defendant. In his report dated 18 May 2021, Associate Professor Damodaran noted the plaintiff denied any past history of any mental illness, any alcohol or any psychoactive substance abuse.[25] Associate Professor Damodaran diagnosed the plaintiff as suffering from a Major Depressive Disorder of moderate severity, along with an Anxiety Disorder, not otherwise specified, with features of traumatisation. Dr Damodaran noted, at that stage, that the plaintiff had no current work capacity from a psychiatric point of view.[26]
[25]DCB 84
[26]DCB 86
Dr Edmond van Ammers, psychiatrist
59Dr van Ammers examined the plaintiff in November 2022 for medico-legal reporting purposes on behalf of the defendant. He prepared a report dated 17 November 2022. The plaintiff told Dr van Ammers that he had no prior history of psychological problems.[27] He went on further to state that he did not try to actually kill himself in Iran, but that he had a hard time there.[28] Dr van Ammers set out his opinion, and he stated:
“The examiner did not think that there was a clinical depression and the mood symptoms described are secondary. Although there certainly is a somatised manifestation to his physical symptoms, the character of these symptoms and presentation would not justify a Pain Disorder. The most reasonable diagnosis in this context is an Adjustment Disorder with Anxious and Depressed Mood.”[29]
[27]DCB 115
[28]DCB 115
[29]DCB 119
The clinical notes
60On 21 May 2014, the plaintiff attended upon Dr Edmond Ng. The complaints at that stage were of Mixed Anxiety and Depression for a few weeks. On the following day, 22 May 2014, the plaintiff was seen by Dr Ali Ziabari. The diagnosis is Depression. The plaintiff gave a history to Dr Ziabari as follows:
“long standing depression and anxiety symtposm , unhappy childhood his mum died when he was young , the step mum was not god with him ,
back in Iran he had depression symtpoms and hx of self inflicted injuries to wrist.
here feels depressed and anxious , gets angry ,”[30]
(sic)
[30]DCB 160-61
61The plaintiff was placed on a mental health plan by Dr Ziabari.
62On 20 May 2016, the plaintiff attended upon Dr Anoop Thayavalappil-K. He records:
“c/o low mood, no motivation or energy levels 6 years
slashed his left wrist in past in iran
anhedonia.”[31]
[31]DCB 155
63A past history of Depression was given, with a referral to see a psychologist. The plaintiff did not get to see a psychologist in May 2014.
64The Mental Health Plan for 2014 was set out in the documentation.[32]
[32]DCB 174-5
65I find that the plaintiff has failed to establish the requisite standard for serious injury certification for psychological and mental disturbance as a result of the injury to his little finger on his left hand in May 2019. The basis for such a finding is twofold. First, the plaintiff has not given an accurate history to any of the medical practitioners about his prior mental health condition and status. The effect of that is that the opinions given by all of the psychiatric medical practitioners is based on a false premise and they have been denied any chance of appropriately assessing the level of aggravation between the plaintiff’s pre-injury mental status and his current mental status.
66The medical opinions of Dr Kaplan and Dr Balgobind, who were the psychiatrists relied on by the plaintiff, stated that his mental health condition is secondary to the physical condition of Complex Regional Pain Syndrome. The history and symptoms described to Dr Kaplan and Dr Balgobind by the plaintiff are in contradiction of the activities and outlook shown in the surveillance video of 9 January 2023. The plaintiff has misled the medical examiners, and their opinions are based on a false history.
67The plaintiff has failed to establish that he has a psychiatric injury arising directly out of his employment with the defendant. The application for serious injury under sub-paragraph (c) of the definition is dismissed.
The physical injury to the Plaintiff
Injury to the left hand and little finger
68The physical injury to the plaintiff is to his fifth digit on his left hand. The plaintiff is a right-hand dominant person. The plaintiff’s first treating medical practitioners were at Western Health at Footscray Hospital.
Western Health
69The plaintiff attended at the Footscray Hospital on 13 May 2019. The plaintiff was x-rayed on that day. The diagnosis was a volar avulsion fracture of his left 5th PIP. The plaintiff’s hand was placed in a slab and sent home with simple analgesia.[33]
[33]PCB 38
70On 11 June 2019, the plaintiff re-attended at Western Health. He was seen by Dr Nilay Yalan. The plaintiff attended at that clinic for the purposes of plastic surgery. Dr Yalan diagnosed the plaintiff as suffering from a Chronic Regional Pain Syndrome after sustaining a little finger PIPJ volar plate injury. Dr Yalan noted that the plaintiff was on the following medications at that time:
“– Lyrica 50mg BD …
– Panadol 1g QID …
– Oxynorm PRN …
– Nexium …
– Celebrex
– Vitamin C.”
71On 25 July 2019, the plaintiff was seen at the Pain Clinic in the Sunshine Hospital. In a report prepared by Dr Babak Farr, rehabilitation physician and pain medicine specialist, he noted the following on examination:
“… he presents with fear avoidance behaviour and keeps his arm in and very close to his body and avoids any movement in his left wrist and fingers. There was swelling of his left hand and fingers present on examination with excessive sweating without any discolouration.
He was wearing a very tight band right above his wrist which I have asked him to remove as that might be contributing to the swelling in his hand.”[34]
[emphasis in original.]
[34]PCB 43
72Dr Farr, again, reviewed the plaintiff at Western Health on 18 March 2021. At that time, Dr Farr noted that the plaintiff was on mirtazapine for his psychiatric problems. Dr Farr recommended that the plaintiff take the medication of gabapentin in place of his previous medication of pregabalin. On that occasion, Dr Farr noted:
“Today we again discussed the nature of his problem of being complex regional pain syndrome and this is a condition that he should learn to live with as there is no specific treatment for it. … .”[35]
[35]PCB 50
73On 9 December 2021, Dr Farr noted that the plaintiff’s medication regime included:
“… Pregabalin 150mg bd and Tapentadol p.r.n. He also has got anti-depressants, including Amitriptyline 25mg nocte, Mirtazapine (unsure about the dose) and Effexor (unsure about the dose) advised and prescribed by his psychiatrist.
With the current antidepressant resume his mood has been quite stable. Today we spoke about ongoing psychology and psychiatry input and continuing his antidepressant medication as that would be the main trigger for his pain.”[36]
[36]PCB 52
Dr Symon McCallum, pain physician
74Dr McCallum prepared a report dated 2 August 2019. On examination, Dr McCallum noted that the hand was a bit blue and sweaty. The plaintiff had a decreased range of movement.[37] Dr McCallum’s opinion was as follows:
“I agree that Ehsan meets the criteria for complex regional pain syndrome. He is extremely depressed and anxious and has suicidal ideation, with a history of attempted suicide and unpleasant events.
The differential diagnosis would be a pain somatisation disorder or a conversion disorder. It is clear that his depression and mental state are making the pain and disability considerably worse.”[38]
[37]PCB 58
[38]PCB 58
Dr Christopher Chan, pain physician
75Dr Chan prepared a report dated 23 December 2019. Dr Chan noted:
“On examination, he had hyperalgesia to pinprick in the left hand with reduced sensation throughout the hand and wrist. There was also some subtle increased swelling, colour change and temperature change in the left hand compared with the right. There was quite significantly reduced range in finger flexion, difficulty with thumb opposition as well as wrist flexion-extension and radial and ulnar movements. … .”[39]
[39]PCB 77
76Dr Chan’s impression was:
“Ehsan is a 33-year-old gentleman with signs and symptoms meeting the Budapest criteria for complex regional pain syndrome of the left hand. Significantly modulating his pain experience are quite severe mood symptoms which have yet to be fully stabilised but Ehsan has very helpful inputs from the mental health team at Sunshine Hospital currently and ongoing.”[40]
[40]PCB 77
Dr Andrew Muir, consultant in pain management
77Dr Muir prepared a report dated 5 March 2020. Dr Muir noted, in his report:
“A diagnosis of CRPS type 1 has been made and this seems to be the best working diagnosis.
Examination does demonstrate a sweaty left hand with allodynia and dysaesthesias (sic).”[41]
[41]PCB 82
Dr Vijay Navani, general practitioner
78Dr Navani is the plaintiff’s general practitioner, and many of the reports in the Court Book are directed to him. In his report dated 10 July 2020, Dr Navani set his diagnosis out as follows:
“Fracture left little finger bone of middle phalanx with development of complex regional pain syndrome and in my opinion, there are aspects of somatisation with somatic symptom disorder consistent with predominant pain of moderate nature with persistent thoughts and severe anxiety.
Associated Adjustment Disorder with Major Depression.”[42]
[42]PCB 85
79Dr Navani noted that the plaintiff had developed sympathetic dysfunction with increased sweating, dusky colour change and some puffiness of the left hand.[43]
[43]PCB 85
80In his later report, dated 12 January 2023, Dr Navani notes as follows:
“… He has developed sympathetic dysfunction with increased sweating, dusky colour change and some puffiness of the left hand. A number of pain specialists including the plastics registrar at the hospital have confirmed that he had developed complex regional pain syndrome.”[44]
[44]PCB 96
81Dr Navani then states:
“Mr. Ehsan Seidkarami has developed complex regional pain syndrome and in my opinion, there are aspects of somatisation with somatic symptom disorder consistent with predominant pain of moderate nature with persistent thoughts and severe anxiety, associated Adjustment Disorder with Major Depression and he remains significantly distressed and in chronic pain and left with no work capacity.”[45]
[45]PCB 96
82Dr Navani set his diagnosis out as follows:
“Fracture left little finger bone of middle phalanx with development of complex regional pain syndrome and in my opinion, there are aspects of somatisation with somatic symptom disorder consistent with predominant pain of moderate nature with persistent thoughts and severe anxiety.”[46]
[46]PCB 97
Dr Brian Uye, Western Health
83In a short report dated 2 July 2020, Dr Uye stated that the plaintiff suffered from left-hand Chronic Regional Pain Syndrome from the left PIPJ volar injury. Dr Uye noted that the plaintiff was seeing a pain specialist, Mr Muir.[47]
[47]PCB 99
Dr Richard Sullivan, Interventional Pain Specialist and Specialist Anaesthetist
84Dr Sullivan examined the plaintiff for medico-legal purposes. He prepared two reports dated 10 January 2023, and a third report dated 9 May 2023. Dr Sullivan noted in his first report that, on examination, the plaintiff had the following:
“The appearance of the left and right forearms, wrists, hands (dorsal and palmar surfaces) were essentially similar. There was a slight clamminess of the palm on the left side that was absent on the right side that could represent increased diaphoresis.
Temperature testing of the distal upper limbs revealed these to be symmetrical.”[48]
[48]PCB 123
85Dr Sullivan gave his opinion as follows:
“[Mr] Karami … who has chronic pain with neuropathic elements affecting his left upper limb, his presentation will be consistent with a digital nerve injury of the left fifth digit with associated neuropathic pain of the left fifth digit.
…
As such, the diagnosis is posttraumatic neuropathic pain of the left upper limb as per the international classification of disease volume 11 code MG 30.20 and 30.25. The diagnosis of Complex Regional Pain Syndrome cannot be confirmed on today’s examination. This is not to say that your client does not have this condition as clinical signs and presentation can fluctuate over time with this condition. Re-examination at a future date is recommended.”[49]
[49]PCB 23
86In his supplementary report dated 10 January 2023, Dr Sullivan stated as follows:
“His clinical examination was defined at the time of his initial assessment as being borderline for meeting the diagnostic criteria for complex regional pain syndrome of the left upper limb (he met the diagnostic criteria of the symptoms and was borderline in terms of clinical signs on the date of assessment).
The provisional diagnosis was therefore post traumatic neuropathic pain of the left upper limb … .”[50]
[50]PCB 128
87On 9 May 2023, Dr Sullivan prepared a further report in respect of the plaintiff. In that report, he noted that the plaintiff –
“… continues to report colour change affecting his hand wherein it can appear reddish or bluish and he also reports hyperhidrosis (sweatiness) in an asymmetrical fashion affecting predominantly his left hand.”[51]
[51]PCB 131
88On that day, Dr Sullivan examined the plaintiff. He noted the following:
“There was a dissimilar appearance comparing the left and right hands wherein the left hand on the palmar surface appeared paler and bluish tinged compared to the right.
I measured the temperatures with digital thermography. There was a discrepancy of approximately 0.5 to 1°C with the left hand warmer compared to the right.
This temperature difference persisted after leaving the hands exposed to ambient temperatures for approximately 15 minutes.
On observation wherein your client placed hands palms down on the desk and then removed them revealed that there was increased hyperhidrosis (increased sweating) of the left but not the right palmar surface.”[52]
[52]PCB 132
89Later in his report, Dr Sullivan stated:
“Today I reapplied the diagnostic criteria for complex regional pain syndrome as per the International Association for the Study of pain. I can confirm that your client on today’s date does fulfil these criteria having pain extending the expected area and extending beyond the expected time of tissue healing with associated cutaneous hypersensitivity, sensory disturbance, pseudomotor and vasomotor change as well as movement disturbance.
There is no other reasonable explanation for your client’s pain and as such he meets the diagnostic criteria as per the aforementioned protocol.”[53]
The Defendant’s doctors
[53]PCB 132
Mr Thomas Robbins, hand, plastic and reconstructive surgeon
90Mr Robbins examined the plaintiff on behalf of the defendant for medico-legal purposes. He prepared three reports, dated 27 June 2019, 17 July 2019 and 14 May 2021. Mr Robbins stated his examination findings as follows:
“On examination the worker was vague, looking away and complaining of pain. The splints and bandages were removed for inspection and examination. This took a long time as the patient slowly removed it and complained of extreme tenderness and pain in the process.
On examination the finger was straight. He refused to bend it and was unable to apparently bend the other fingers as well.”[54]
[54]DCB 2
91Under the heading of Diagnosis, Mr Robbins stated:
“My impression was that the worker was greatly exaggerating difficulties and pain.”[55]
[55]DCB 2
92In his later report, Dr Robbins stated that the diagnosis was as follows:
“The work-related diagnosis is a small evulsion fracture of the middle phalanx of his left little finger. The x-ray report did not mention which finger, but I assume it was his left little finger. This was the finger that was indicated to be injured when I saw him on 27.06.2019.”[56]
[56]DCB 11
93In Mr Robbins’ opinion, there was no physical treatment required for the plaintiff, and from a physical viewpoint, the plaintiff’s incapacity for work-related injury had ceased.[57]
[57]DCB 11
94Mr Robbins went on to state:
“The worker’s reaction and complaint are out of kilter with the history of the injury and the findings on examination. I suspect the worker is malingering or has had a hysterical reaction to the injury that makes him believe that the injury is more serious than it is.”[58]
[58]DCB 12
95Mr Robbins re-examined the plaintiff on 13 May 2021. He reported to the defendant’s insurers on 14 May 2021. Dr Robbins noted, under the heading of Examination:
“On examination, the worker was withdrawn and morose. His complaint was severe pain and severe tenderness and sensitivity to touch of the whole of his left hand and distal forearm.
He was wearing a splint which was removed for examination. Attempts to touch these areas were responded by a rapid withdrawal and claim of tenderness. He had poor finger flexion of his left hand. His hand was sweating compared to his other hand.
It is difficult to say whether this represented chronic pain syndrome or from wearing the splint. He complained of numbness of his fingertips.”[59]
[59]DCB 71-72
96In the conclusion part of his report, Dr Robbins was unable to determine whether the plaintiff was malingering of suffering from chronic reflex sympathetic dystrophy (Chronic Pain Syndrome) or hysteria. Dr Robbins recommended a period of surveillance.
Mr Geoffrey Littlejohn, rheumatologist
97Mr Littlejohn examined the plaintiff on 31 July 2019 and 19 May 2021 for medico-legal purposes.
98On 31 July 2019, Mr Littlejohn reviewed the x-ray of the plaintiff’s left hand performed on 13 May 2019 and noted there was a small avulsion fracture to the 5th PIP joint on the left hand.[60]
[60]DCB 18
99Mr Littlejohn’s impression was that the plaintiff did not exhibit any abnormal pain behaviour. On examination, Mr Littlejohn found that there was mild puffiness of the fingers, but they were not abnormally cold or hot. The colour was a little duskier on the left side than the right. He noted there was no abnormal hair or nail growth. Mr Littlejohn noted there was limited movement of the wrist due to pain and general tenderness in the hand itself, up to the lower forearm.[61]
[61]DCB 19
100The diagnosis and opinion of Mr Littlejohn was:
“As a consequence of that injury, he has developed complex regional pain syndrome affecting the left hand and lower forearm. This manifests as widespread hand and finger pain and sensitivity.”[62]
[62]DCB 19
101Mr Littlejohn went on to state that the plaintiff had no current work capacity at that time and that he thought there were significant psychosocial factors contributing to the clinical presentation by the plaintiff.[63]
[63]DCB 20
102Mr Littlejohn noted that the medication profile of Lyrica and Endep was appropriate but the use of short-term opioid medications such as codeine was not ideal.[64]
[64]DCB 20
103Mr Littlejohn re-examined the plaintiff on 19 May 2021. His report was dated the same date.
104Mr Littlejohn noted on examination as follows:
“… He had two hand support devices on his left hand and all fingers were kept straight. He said he could not bend them. The fingers were not swollen and the hand was slightly warmer on the left than the right, but it had been enclosed in the splint and jacket prior to examination. There was no abnormal hair or nail growth. There was extreme sensitivity to gentle touch on the front and back of all fingers and also front and back of the hand and lower forearm.
He could not move his wrist because of discomfort.
There was slight trembling of the left little finger. There was increased sweating on the left side compared to the right.”[65]
[65]DCB 97-98
105Dr Littlejohn’s opinion was the plaintiff:
“… continues to have clinical features of a chronic pain syndrome affecting the left lower arm and hand. He fulfils the Budapest criteria for complex regional pain syndrome. I note that many of the symptoms that are included in those criteria are subjective.”[66]
[66]DCB 99
Dr Clayton Thomas, pain physician
106Dr Thomas examined the plaintiff on 2 December 2019 for the purposes of medico-legal reporting. His report was dated 4 December 2019. Dr Thomas’ opinion was as follows:
“He has continuing pain which is disproportionate to any inciting event. He complains of significant sensitivity in the affected area. When you examine him he does have hyperalgesia and indeed allodynia but there is no temperature differential, no skin change or nail change. His left little fingernail is longer than the others because of pain in cutting it. There is no evidence of pseudomotor disturbance or motor problems.
Overall he does not meet the diagnosis for complex regional pain syndrome. He does, however, present as suffering from an organic pain syndrome involving his left upper limb. He certainly has evidence which would support central sensitisation.”[67]
[67]DCB 34
107Dr Thomas goes on to state:
“The worker is suffering from a chronic pain syndrome with likely central sensitisation involving his left little finger and left hand. On today’s examination he does not meet the criteria for CRPS. This does not mean he does have CRPS and CRPS is possible but he does not meet the criteria based on today’s examination of him.”[68]
[68]DCB 35
Mr John Buntine, hand, plastic and reconstructive surgeon
108Mr Buntine examined the plaintiff on 10 February 2021 and prepared a report dated 19 February 2021 for the purposes of medico-legal reporting.
109In his examination, Dr Butine noted:
“The hair of the left forearm is slightly longer and darker than that of the right forearm and there appears to be some swelling of the left hand but I did not observe any other definite abnormality except for a curved depression across the base of the thenar eminence resulting from pressure from the end of the wrist immobilising splint. However, I did not observe any other effect on the skin of apparently almost continuous wearing of the splint (such changes are often quite obvious).”[69]
[69]DCB 58
110Mr Buntine’s observation was that due the behaviour of the plaintiff in his presence, he formed the view that the plaintiff was more likely to be malingering than suffering from some conversion disorder which had been described by Dr McCallum. Mr Buntine recommended a period of surveillance on the plaintiff.
Dr Tony Kostos, rheumatologist
111The plaintiff was examined by Dr Kostos on 22 November 2021. A report dated 23 November 2021 was relied upon by the defendant.
112On examination, Dr Kostos noted:
“There is some wasting of his left forearm musculature just below the elbow crease.
His right wrist is normal. His left wrist shows very slight degree of flexion and extension, but no active radial or ulna deviation. All movements are accompanied by pain. Passive movements couldn’t be assessed. There was diffuse tenderness to light touch all around the left wrist.”[70]
[70]DCB 108
113Dr Kostos’ opinion was:
“It is quite apparent that he does not meet the revised Budapest criteria for the diagnosis of complex regional pain syndrome type I, and I note that this was the same opinion expressed by Dr C. Thomas in his report dated 4" December 2019.
Although other doctors have apparently diagnosed complex regional pain syndrome, they have not specified type I or type II, and if they believed it was type I they did not describe features consistent with the Budapest criteria.
Therefore on this basis it appears as though he has a chronic pain syndrome with psychiatric factors predominating. I have noted the unusual choice of his garment that required considerable effort to get over his left hand and wrist in someone who has marked tenderness to light touch, when obviously looser clothing would be far more appropriate.”[71]
[71]DCB 108-109
Dr Vijay Navani, general practitioner
114Dr Navani reported to the insurers for the defendant employer. The report dated 11 February 2022 was in the Defendant’s Court Book.
115Dr Navani, in his report dated 11 February 2022, stated as follows:
“Mr. Ehsan Seidkarami has developed complex regional pain syndrome and in my opinion, there are aspects of somatisation with somatic symptom disorder consistent with predominant pain of moderate nature with persistent thoughts and severe anxiety, associated Adjustment Disorder with Major Depression and he remains significantly distressed and in chronic pain and left with no work capacity.”[72]
[72]DCB 112
Dr Tim Hwang, consultant occupational physician
116Dr Hwang examined the plaintiff on 9 January 2023 for the purposes of medico-legal reporting.
117Mr Hwang examined the plaintiff’s left hand and made the following findings:
“His left hand was in an elastic bandage. This was removed for the purpose of examination.
There was obvious trophic changes on the left hand compared to the right. It was pale, more sweaty and the skin was noted to be thin, shiny and of a slightly conical appearance particularly over the little and ring fingers. There was allodynia in this area associated with withdrawal reaction on light touch. He also described hypersensitivity over the thumb, index and middle fingers but to a lesser degree. There was no hypersensitivity proximal to the wrist joint.
He demonstrated very little movement of the index, middle, ring and little fingers of approximately one quarter of normal. He demonstrated thumb movement of about half of normal. He was unable to close his hand, undertake any gripping or undertake a pincer grip.”[73]
[73]DCB 128
118Dr Hwang noted that the plaintiff had what appeared to be a crush injury to his left hand. He noted that the main ongoing symptoms relate to Chronic Regional Pain Syndrome Type I which appears to be a complication following the injury.
119Dr Hwang went on to state that the plaintiff had virtually no use of his left hand from a physical point of view.[74]
[74]DCB 130
120I have previously noted other statements made by the plaintiff to Dr Hwang prior to him being filmed on that day subsequent to the examination by Dr Hwang.
121While it is understandable why the defendant’s lawyers did not show the video surveillance footage of the plaintiff taken on 9 January 2023 to Dr Hwang and ask him for comment, it leaves the Court in a position where Dr Hwang’s opinion stands as described in his report.
Dr John Crock, plastic and reconstructive surgeon
122Dr Crock examined the plaintiff by way of videocall conference in combination with a physical examination of the plaintiff on 1 March 2023.
123It was noted on examination that the plaintiff’s skin on his left hand was shiny, atrophic, smooth, and there was no evidence of any wear and tear on any of the finger volar pads or palm which is consistent with very little use of the hand. The plaintiff did not have the build up of skin consistent with a hypersensitivity state that prevents him from washing or drying his hands. The plaintiff was unable to perform a grip strength with his injured hand using the Jamar dynamometer set on 2.[75]
[75]DCB 134
124Dr Crock diagnosed the plaintiff as suffering from:
“Mr Karami appears to have developed chronic regional pain syndrome Type 2 as a result of the crush injury to his left hand. Typically, in my clinical practice, patients with hand injuries like this are referred to a pain specialist for ongoing management and as such, for a further expert opinion on his condition, I refer to the opinion of a qualified pain specialist.”[76]
[76]DCB 135
125Dr Crock went on to state that crush injuries commonly result in a Regional Pain Syndrome in susceptible individuals, and x-ray findings are often normal.[77]
[77]DCB 135
126Dr Crock was asked to provide a supplementary report, which he did on 5 April 2023.
127Dr Crock noted that in the case of the plaintiff, he was unable to confirm whether he has fixed deformities of his joints or not; however, the physical appearance of his hand was consistent with Chronic Regional Pain Syndrome precipitated by trauma (Type II) and his skin did look shiny, atrophic, and had no evidence of wear. Dr Crock stated:
“… As mentioned in my report, a chronic pain clinician would be best qualified to recognise a chronic regional pain syndrome from a psychological reaction which has caused somebody to mimic the condition.”[78]
[78]DCB 144
128The preponderance of the medical opinions in respect of the physical examination of the plaintiff’s left hand is that a diagnosis of Complex Regional Pain Syndrome or Regional Pain Syndrome is appropriate. I note that both Dr Clayton Thomas and Dr Richard Sullivan have given different opinions about the plaintiff’s diagnosis between first and second examinations. Dr Sullivan, in his first report dated 10 January 2023 (the day after the video surveillance), opined the plaintiff had chronic pain with neuropathic elements affecting the left upper limb. On that day, he could not confirm a diagnosis of Chronic Regional Pain Syndrome. Dr Sullivan said:
“This is not to say that your client does not have this condition as clinical signs and presentation can fluctuate over time with this condition.”[79]
[79] PCB 123
129I further note, that on 10 January 2023, the plaintiff presented to Dr Sullivan with both the splint and elasticised compression bandage on his left wrist.
130Dr Sullivan, on 9 May 2023, examined the plaintiff. The plaintiff presented with both a bandage and splint on his left wrist. On this occasion, Dr Sullivan diagnosed the plaintiff as suffering Chronic Regional Pain Syndrome. In his report dated 10 January 2023, Dr Sullivan stated the plaintiff’s condition was likely to continue for the foreseeable future. The plaintiff would not be able to work.
131The video surveillance of the plaintiff on 9 January 2023 showed a person using his left hand in a normal manner and without restriction. The video showed no signs of movement restrictions or use of the left hand. The plaintiff’s presentation to Dr Hwang on the morning of the video surveillance (9 January 2023) and to Dr Sullivan the day after the surveillance, portrays a completely different person in the sense of movement and use of the left arm, wrist and hand when compared with the surveillance.
132The plaintiff bears the onus of proof on the balance of probabilities that the consequence of his physical injury to his left hand and wrist are permanent, in the sentence of continuing into the foreseeable future.
133Unfortunately, none of the medical examiners have been afforded the opportunity to see the video surveillance footage taken of the plaintiff on 9 January 2023. In particular, Dr Hwang and Dr Sullivan have not seen this film; they had examined the plaintiff immediately before and after the filmed events. The plaintiff presented to both of these medical examiners as severely physically incapacitated and protective of his left hand and wrist. Taking into account the extreme difference in the presentation to doctors compared with the filmed activities, the plaintiff has failed to satisfy the Court, on the balance of probabilities, that the consequences outlined in his affidavits are permanent as required under the Act.
134The plaintiff’s ability to use his left hand as shown on the surveillance film of 9 January 2023 casts a long shadow of doubt over the extent of the impact of the initial injury on the plaintiff’s ability to engage in life and employment.
135The application for serious injury certificate for physical injury to the plaintiff’s left hand and wrist for pain and suffering damages is dismissed.
Loss of earning capacity
136The plaintiff had only been working at his employer for three months prior to the injury. In the years prior to that, the plaintiff had not been fully employed in a consistent manner for the three years. I reject the plaintiff’s submission that the plaintiff’s “without injury” earning capacity was $960.00 per week gross. The plaintiff had only engaged in employment for such a short time at that level of pay. In the previous period for the three years, as required under the Act, the plaintiff had long periods of not working due to his Guillain-Barré disease and other factors.
137The plaintiff has not attempted to re-engage with the workforce since his injury on 13 May 2019. I do not accept that the plaintiff is totally incapacitated for all employment, as submitted by his counsel. The plaintiff has presented himself to medical practitioners in a way that maximises his chances of compensation. The surveillance film of 9 January 2023, immediately following his examination by Dr Hwang, are a clear indication of the plaintiff’s real capacity to engage in activities of normal living including employment. The plaintiff has failed to satisfy the Court that, on the balance of probabilities, he has suffered a 40 per cent loss of earning capacity as a result of the injury to his left little finger.
Conclusion
138The plaintiff’s application for serious injury certification for physical injury to the plaintiff’s left hand and wrist in respect to pain and suffering and for loss of earning capacity is dismissed.
139The plaintiff’s application for serious injury certification for psychological or psychiatric injury in respect of both pain and suffering and loss of earning capacity is dismissed.
140I will hear the parties on costs.
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