Keser v Innovia Security Pty Ltd
[2016] VCC 447
•15 March 2016
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
COMMON LAW DIVISION
Revised
Not Restricted
Suitable for PublicationSERIOUS INJURY LIST
Case No. CI-15-00072
SEMAHAT KESER Plaintiff v INNOVIA SECURITY PTY LTD
(formerly SECURENCY AUSTRALIA PTY LTD)Defendant
---
JUDGE:
HIS HONOUR JUDGE CARMODY
WHERE HELD:
Melbourne
DATE OF HEARING:
18 and 19 February 2016
DATE OF JUDGMENT:
15 March 2016
CASE MAY BE CITED AS:
Keser v Innovia Security Pty Ltd
MEDIUM NEUTRAL CITATION:
[First revision 19 April 2016]
[2016] VCC 447
REASONS FOR JUDGMENT
---Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – physical injury – chronic pain to left shoulder – psychiatric injury – Adjustment Disorder with Mixed Anxiety and Depressed Mood together with Pain Disorder – pain and suffering damages – loss of earnings damages – whether the physical injury to the shoulder has resulted in psychiatric injury – whether the physical injury satisfies the threshold test – whether plaintiff has disentangled psychiatric or psychological factors from the physical injury – whether the psychiatric injury reaches the “severe” threshold test required under the legislation
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622
Judgment: Application for serious injury certificate for pain and suffering and loss of earning capacity granted in respect of the physical injury. Application for serious injury certificate in respect of the psychological and psychiatric disorder is dismissed.
---
APPEARANCES:
Counsel Solicitors For the Plaintiff Mr A D B Ingram Melbourne Injury Lawyers Pty Ltd For the Defendant Ms M Britbart SC with
Mr D ChurilovHall & Wilcox Lawyers HIS HONOUR:
Introduction
1 This application is brought by Originating Motion dated 9 January 2015 in which the plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for an injury suffered by her arising out of or in the course of her employment with the defendant between January 2007 and April 2011.
2 The application made by the plaintiff in this case relies on a physical injury to the left and right shoulders and a psychiatric injury resulting from her work. The physical injury to the shoulders is one of chronic pain. The psychological and psychiatric impairment or disorder is a Chronic Pain Disorder or Adjustment Disorder with Mixed Anxiety and Depressed Mood.
3 The plaintiff seeks leave to bring proceedings for pain and suffering and loss of earning capacity in respect of both the physical and psychiatric impairment.
4 The plaintiff alleges that whilst in the course of her employment with the defendant, she was required to separate polymer sheets, and that the separation and pulling the sheets apart required significant force to be used by her. As a result of the continual force required by her to do her work, she has suffered severe injury to her left shoulder and experienced pain in that region. The plaintiff has subsequently been diagnosed with a Chronic Pain Disorder and the psychiatric diagnosis of Chronic Pain Disorder with Adjustment Disorder with Mixed Anxiety and Depression.
5 The following evidence was adduced during the hearing:
· The plaintiff gave evidence and was cross-examined.
· The plaintiff tendered the following documents:
§ Exhibit A, a complete record of the psychologist, Ms M Selvi, covering the dates 17 March 2011 to 5 May 2014; and
§ Exhibit B, the Plaintiff’s Court Book (“PCB”), pages 6–19, 23–125 and 136–142.
· The defendant tendered the following documents:
§ Exhibit 1, the Defendant’s Court Book (“DCB”), pages 13–130.
6 Ms Britbart, Senior Counsel, on behalf of the defendant, identified the issues in this application as follows:
(i) The first issue was to determine what actual consequences and impairment followed from the physically-based injury of Chronic Pain Syndrome;
(ii) Whether the central nerve sensitisation referred to by Dr Lim is an organic condition;
(iii) Whether the Chronic Pain Syndrome is an organically-based condition;
(iv) Whether the Chronic Pain Disorder, which is a psychiatric condition, is sufficient to qualify as “severe” as required under the Act; and
(v) Whether the psychological/psychiatric symptoms or causes have been disentangled from the physical condition in respect of the paragraph (a) claim for serious injury.
The Statutory scheme
7 This application is brought under the definition of “serious injury” contained in ss37(a) of s134AB of the Act, which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function”. The application is also brought under the definition of “serious injury” contained in ss37(c) of s134AB of the Act, which requires the plaintiff to prove that she has suffered a “permanent severe mental or permanent severe behavioural disturbance or disorder”. In this case, the diagnosis the plaintiff relies upon is one of Chronic Pain Disorder and Adjustment Disorder with Mixed Anxiety and Depressed Mood.
8 The relevant considerations which apply to such an application are as follows:
(a) The plaintiff must prove that she has suffered a compensable injury; that is, an injury which she suffered arising out of or in the course of her employment on or after 20 October 1999;[1]
[1]Section 134AB(1) of the Act, and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
(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]
[2]Barwon Spinners Pty Ltd & Ors v Podolak (supra) at paragraph 33
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities;
(d) Sub-section (38)(c) provides that the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being “more than significant or marked”, and as being “at least very considerable”;
(e) Sub-section (38)(d) provides that the impairment for mental or behavioural disturbance or disorder shall not be held to be severe for the purposes of the pain and suffering consequences and loss of earning capacity unless, when judged by comparison with other cases in the range of possible mental or behavioural disturbance or disorders, it can be fairly described as being more than serious to the extent of being severe;
(f) Sub-section (38)(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;
(g) Sub-section (38)(e) provides that in a claim for loss of earning capacity, such a loss must be to the extent of 40 per cent more, both at the date of hearing and permanently;
(h) 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 ss(38). I have applied the principles set forth therein in reaching my conclusions in this application.
[3]Supra
9 I 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
10 The plaintiff was born in Turkey in 1973. She is now forty-three years old. She originally came to Australia in 1986 but returned to Turkey in 1987.[4] The plaintiff returned to Australia in 1989 and commenced Year 11 education. In 1990, the plaintiff returned to Turkey and was married. She then returned to Australia in 1992.[5]
[4]PCB 6–7
[5]PCB 7
11 Upon her return to Australia, the plaintiff worked in a number of factory type jobs. She worked as an assembler and a machine operator in the Campbellfield area. In 2006, she originally commenced work as an agency worker for Securency Australia Pty Ltd. In 2007, she became a full-time worker, and her duties involved manually handling reams of polymer which is used in the production of banknotes. The banknote material came in large sheets, and generally in lots of 500 sheets which weighed between 18 and 24 kilograms. The plaintiff’s duty was to loosen the reams of polymer paper and count them. This involved considerable physical force to separate the pages before they were used.[6]
[6]PCB 8
Injury with the Defendant
12 The plaintiff, in the course of her employment with the defendant, was working in October 2010 in the counting area. Her duties at that time involved separating out the polymer sheets and pulling the sheets apart, using some force to do so, in order to ready them for printing. In the course of her employment, the plaintiff experienced pain which was severe and to the front of her chest and to her left shoulder area. The plaintiff thought she was having a heart attack. She was taken to the Northern Hospital in Epping, and received treatment and exploration for a heart condition. The results of the ECG was that there was no abnormality with the plaintiff’s heart.
13 The plaintiff then consulted with her general practitioner, Dr Vu, on 7 October 2010, and was diagnosed with soft tissue injury, and an order was made for an ultrasound to her left shoulder. The ultrasound to the left shoulder took place on 14 October 2010.
14 The plaintiff received medical treatment from Dr Andrew Ramsay from the clinic, and ultimately she was referred for a CT scan of her cervical spine. The plaintiff was prescribed Panadeine Forte for pain.
15 The plaintiff was then referred to the occupational physician, Dr Yong, and she was prescribed Mobic and later, Brufen.
16 The plaintiff had an MRI scan of her neck on 12 January 2011 which demonstrated some mild spondylosis without any frank neural compromise in her cervical spine. The plaintiff had continued to work, but ultimately ceased to work in April 2011. She has not returned to work due to her pain and inability to remain at work.
The psychiatric injury
17 Mr Ingram, on behalf of the plaintiff, opened the applications on the basis that the plaintiff’s primary position was that her injury and incapacity arose from a physical condition. He submitted, as a secondary position for the plaintiff, she relied upon a diagnosis of a psychiatric injury of Chronic Pain Disorder with Adjustment Disorder and associated Anxiety and Depression.
18 In an application for a serious injury certificate under a mental or behavioural disturbance or disorder, the plaintiff has to satisfy the Court on the balance of probabilities that the pain and suffering consequences or the loss of earning capacity consequences, when judged by comparison with other cases in the range of possible mental or behavioural disturbance or disorders, can be fairly described as being more than serious to the extent of being severe. This test is a higher test than that required to establish a physical injury which is a serious injury under the legislation.
Medical opinions of psychiatrists
Dr Paul Kornan
19 Dr Kornan examined the plaintiff for the purposes of this application on two separate occasions. He prepared reports dated 15 October 2013 and 7 October 2015.
20 In his first report Dr Kornan diagnosed the plaintiff as suffering from a pain disorder with associated psychological factors including anxiety and depression.[7] In the course of his examination, he noted that the plaintiff appeared to, in the front of her chest, have a point of swelling and redness on both sides of the sternum.[8] At that stage, his opinion was that the plaintiff’s condition was moving into a chronic stage, and that she would remain in that condition for the foreseeable future.[9]
[7]PCB 97
[8]PCB 97
[9]PCB 98
21 At the time of his first report, Dr Kornan described the plaintiff’s condition as a significant secondary psychiatric ill-health condition, consisting of the Pain Disorder with psychological factors. He noted that he agreed with a Medical Panel assessment and diagnosis dated 29 May 2012.[10] In Dr Kornan’s opinion, the plaintiff was not capable of her pre-injury duties or suitable for alternative employment at that time.
[10]PCB 98
22 Dr Kornan, in his later report dated 7 October 2015, diagnosed the plaintiff as suffering from:
(i) Adjustment Disorder with Mixed Anxiety and Depressed Mood; and
(ii) Pain Disorder with associated psychological factors and, evidently, a general medical condition.[11]
[11]PCB 107
23 In Dr Kornan’s opinion, the plaintiff’s psychiatric ill-health was totally preventing her from performing her pre-injury duties or being suitable for any alternative employment.[12] Interestingly, Dr Kornan noted as follows:
“The prognosis is poor. The outlook with people who develop a significant chronic pain syndrome is uniformly poor. She will certainly not return to work in the foreseeable future and for, possibly, significantly longer.”[13]
[12]PCB 108
[13]PCB 107
24 This comment by Dr Kornan indicates that he was of the opinion that her complaints of pain had a physical cause consistent with his observations of physical changes to the plaintiff as previously noted in these reasons.
Dr Albert Kaplan
25 The plaintiff was sent to Dr Albert Kaplan for psychiatric assessment by her solicitors. Dr Kaplan prepared a report dated 23 December 2015. He diagnosed the plaintiff with a psychiatric diagnosis of Pain Disorder associated with both psychological factors and a general medical condition. He went on to state that this psychiatric condition is a diagnosis of exclusion, and, to be invoked, a physical or organic cause of pain needs to be partially excluded by the appropriate medical specialist.[14]
[14]PCB 117
26 Dr Kaplan stated that the plaintiff had also developed an Adjustment Disorder with Mixed Anxiety and Depressed Mood, and that this condition is related to a Pain Disorder resulting from the changes that have occurred in her life. Dr Kaplan’s opinion was that the plaintiff was incapacitated from her pre-injury duties or other suitable or alternative employment as a result of her Pain Disorder.[15]
[15]PCB 118
Dr Rasanjali Ratnayake
27 The plaintiff was sent to Dr Ratnayake for psychiatric assessment by the defendant. Dr Ratnayake prepared a report dated 27 February 2011. Dr Ratnayake’s opinion was that the plaintiff had focused on her pain symptoms and had adopted a sick role. He noted that the plaintiff appeared to have some underlying personal issues that had contributed to her entrenched sick role. Dr Ratnayake stated:
“She has developed a pain disorder. I recommend the use of Endep 25mg initially and gradually increasing to 50mg daily. Endep is effective in the treatment of neuropathic pain.”[16]
[16]DCB 16
28 Dr Ratnayake stated that the plaintiff was suitable to return to alternative duties with her current employer at that time. It was his opinion that the plaintiff had formed the view that she was unsupported by her employer, and that that was the major problem for her continuing to work.[17]
[17]DCB 18
29 Dr Ratnayake’s opinion is now very dated, being some five years prior to the determination of this application. I also note that Dr Ratnayake recommended that the plaintiff be prescribed Endep for the treatment of neuropathic pain. This opinion is consistent with the treatment recommended by Dr Terence Lim for the plaintiff.
Dr Shashjit Varma
30 The plaintiff was referred to Dr Varma for psychiatric examination by the defendant. Dr Varma has examined the plaintiff on three separate occasions. His first examination was on 19 December 2012. Dr Varma prepared a report dated 19 December 2012 in respect of that consultation. At the time of that consultation and examination, Dr Varma assessed that the plaintiff had no symptoms of Depression or Anxiety. He noted that the plaintiff was still suffering from a dull aching pain and said that she was currently taking Panadeine Forte and Panadol Osteo on a needs basis to manage that pain.[18]
[18]DCB 79
31 In the opinion of Dr Varma, the plaintiff had suffered from chronic shoulder pain and suffered from an Adjustment Disorder which is now in remission.[19] In Dr Varma’s opinion, the plaintiff could return to alternative duties which did not involve physical activity.[20]
[19]DCB 80
[20]DCB 82
32 In a follow-up report dated 2 May 2013, Dr Varma stated that:
“From a psychiatric point of view I felt, as her mental state was clear, that she had a capacity for work for either pre-injury duties, modified duties or alternative duties.”[21]
[21]DCB 89
33 In a further follow-up report dated 3 May 2013, Dr Varma stated:
“As I mentioned in my earlier report, the worker’s mental state is psychiatrically clear and she is fit for work. I can also confirm that from the perspective of the chronic pain disorder, that the worker has improved and she is fit to work in an alternative job. This is also confirmed by the Medical Panel report which concluded the Panel is of the opinion the worker is suffering from chronic pain disorder with psychological factors and a medical condition, namely a soft tissue injury to the neck which has now resolved, in the setting of cervical spine degeneration relevant to the injury.”[22]
[22]DCB 90
34 Dr Varma examined the plaintiff on 31 December 2014. Dr Varma prepared a report dated the same date. In that report, Dr Varma stated that from a psychiatric point of view, he did not consider that the plaintiff suffered from any diagnosable psychiatric illness.[23] He went on to state:
“The patient is receiving painkillers, but as far as psychiatric treatment is concerned, she is not receiving any psychiatric treatment and I feel she does not need it either. Even her psychologist has stopped seeing her around three months back because she feels she does not have anything more to give her.”[24]
[23]DCB 94
[24]DCB 95
35 Dr Varma finally examined the plaintiff on 8 January 2016. In his final report, Dr Varma states his opinion as follows:
“As far as diagnosis concerning DSM‑IV Diagnostic Criteria, Mrs Keser does not suffer from any diagnosable mental illness; however, she continues to suffer from chronic shoulder pain, which according to her has become worse.”[25]
[25]DCB 100
36 In a clarification to questions asked of Dr Varma, he stated:
“The worker does not suffer from any diagnosable psychiatric condition. She suffers from chronic pain in the shoulder.”[26]
[26]DCB 101
37 Dr Varma’s final opinion was that the plaintiff’s psychiatric condition is good, and she does not need any further psychiatric treatment or medication. Dr Varma deferred to other medical and surgical colleagues to comment on the plaintiff’s ability to engage in work.[27] Dr Varma has had the advantage of examining the plaintiff over three separate occasions, ranging in years from 2012 to 2014 to 2016. On each of those occasions, Dr Varma was of the opinion that the plaintiff did not suffer from any psychiatric injury as a result of her employment. He did, however, note that the plaintiff suffered from chronic pain in her shoulder region.
[27]DCB 102
Medical treatment – for psychiatric condition
38 Initially, the plaintiff was referred by her general practitioner, Dr Vu, to see Muradiye Selvi, consultant psychologist, for treatment. Ms Selvi consulted with and treated the plaintiff from 17 March 2011 until 5 May 2014. On the last occasion that the plaintiff attended Ms Selvi, it was mutually agreed that the psychological treatment would cease and that the plaintiff would be referred back to Dr Ramsay.[28]
[28]Exhibit A
39 Ms Selvi prepared two reports, dated 26 August 2011 and 26 April 2013.
40 In her report dated 26 August 2011, Ms Selvi noted the high level of motivation by the plaintiff to return to work. In Ms Selvi’s opinion, a return to work for the plaintiff would have had a therapeutic psychological benefit, as long as she had modified duties as requested by her general practitioner. Ms Selvi stated that the plaintiff would benefit psychologically if she was given the opportunity to return to work, even in an alternative role, as she was highly motivated and had a high work ethic, the plaintiff missed her job and the work environment.[29]
[29]PCB 83
41 In a later report dated 26 April 2013, Ms Selvi noted that the plaintiff’s condition had stabilised and that the plaintiff was in a position to self-manage her condition. Ms Selvi’s opinion was that, based on her psychological reactions alone, the plaintiff had the capacity to retrain and take on suitable employment. Ms Selvi noted that the plaintiff always had been motivated to return to work in gainful employment, but had been unable to do so, due to her physical injuries.[30]
[30]PCB 85
42 The plaintiff’s other treatment in relation to her psychological and psychiatric condition has been the prescription of Cymbalta and Prozac. The plaintiff started taking Cymbalta but was unable to continue with it, because it gave her the side-effects of nausea and some dizziness. The plaintiff, in her evidence, stated that she had been prescribed Prozac on one occasion in 2013 but had not continued to take it.[31]
[31]Transcript (“T”) 66
43 At no stage has the plaintiff been referred to a psychiatrist for treatment.
44 In conclusion, I am not satisfied that the plaintiff currently suffers from a psychiatric or psychological condition which can properly be described as a Chronic Pain Disorder. The psychiatrists that have assessed the plaintiff for the purposes of this application have different opinions about the plaintiff’s condition. In the case of Dr Kornan and Dr Kaplan, each of them mentions that the plaintiff has physically-caused pain, as well as their own psychiatric diagnosis of Adjustment Disorder with Anxiety and Depression. Dr Varma has had the advantage of seeing the plaintiff over a long period of time on three separate occasions. In Dr Varma’s opinion, the plaintiff does not have any psychiatric condition that can be diagnosed.
45 On the balance of probabilities, I am not satisfied that the plaintiff has established that she has a Chronic Pain Disorder diagnosis. That conclusion is reaffirmed by the fact that the plaintiff ceased voluntarily any psychological treatment in May 2014. The plaintiff has only had short-term use of psychiatric drugs, Cymbalta and Prozac, in 2013.
46 The application for serious injury certification for pain and suffering and loss of earning capacity under the heading of psychiatric or psychological disorder is dismissed.
The Plaintiff’s evidence
47
The plaintiff relied upon two affidavits dated 4 September 2014 and
15 December 2015. In the course of the hearing, the plaintiff was cross-examined.
48 The plaintiff adopted the contents of her two affidavits as being true and correct. In the course of her evidence, the plaintiff stated that she could have lumps on her left clavicle area and across the central sternum.[32] The plaintiff stated that the pain that she now suffered was worse than it used to be at the time after her original injury.[33] The plaintiff described the pain as being sharp.[34] The plaintiff stated that she was having more pain flare-ups now than she did in 2012 when attending the Pain Rehabilitation Clinic.[35]
[32]T31
[33]T32
[34]T33
[35]T49
49 The plaintiff stated in her evidence that she cannot use her arms in the way she would like to.[36] When describing the onset of pain, she stated that the continuous action of using her arms actually triggers her pain and the pain is really severe. She went on to state that she is doing everything with pain in her left arm.[37]
[36]T73
[37]T73
50 The plaintiff confirmed that she presently takes Panadeine Forte, Mobic and Panadol as medications prescribed by her doctor to manage the physical pain.[38]
[38]T78
51
The plaintiff confirmed her affidavit evidence that she had attended at the North Eastern Rehabilitation Centre for pain rehabilitation under the care of
Dr Terence Lim in 2012.[39] The plaintiff stated that the rehabilitation program had helped her understand her pain, but had not reduced the pain.[40] She stated that she continued to take medication for the purposes of moderating the effect of the pain on her.
[39]T37
[40]T39
52 The plaintiff was questioned about the reasons for her not engaging in the retraining and attempts to get her to return to work. She stated that she would forget appointments.[41] The plaintiff went on to say that she felt disconnected from everything.[42]
[41]T44
[42]T45
53 The plaintiff’s description and complaints of pain in the course of her evidence are consistent with the histories that she had given to the numerous doctors that she has been asked to be examined by for both the plaintiff, herself and for the defendant.
The Plaintiff’s credit
54 The defendant attacked the credit of the plaintiff on the basis that she was a poor historian and exaggerated the pain symptoms that she was suffering. In particular, the defendant relied upon the opinion of Dr Peter Scott, who stated that the plaintiff was amplifying her pain symptoms.[43] The defendant also relied upon the notation in exhibit A, where the psychologist, Ms Selvi, had noted that the plaintiff and Ms Selvi had mutually agreed to terminate the psychological treatment in May 2014. The plaintiff, in her evidence, disagreed strongly with the proposition that the psychologist, Ms Selvi, and herself, had agreed to cease the treatment. The plaintiff insisted that she wanted to continue on with the treatment and needed it from Ms Selvi.[44]
[43]DCB 77A
[44]T63
55 The plaintiff, in its Court Book, had the following entry in the index:
“Surveillance
Video surveillance of the plaintiff brought into existence for the dominant purpose of use in litigation since the Victorian WorkCover Authority’s determination under the relevant Victorian legislation and in respect of which privilege is not waived.”[45]
[45]DCB Index, page 3
56 The plaintiff was not shown any surveillance film or cross-examined about any surveillance film that had been taken of her by, or on behalf of, the defendant. It is common in cases of this nature that surveillance film is shown to plaintiff’s in order to attack their credibility in respect of complaints made by the plaintiff about their physical capacities or how the injury and its consequences impact upon them. In this case, clearly, there was surveillance film of the plaintiff. None of that film was shown to the plaintiff. It can be put no higher than that the surveillance film would not have assisted the defendant’s case in this instance.
57 I have had the opportunity to observe the plaintiff in the course of her evidence and note that she, on occasion, required the assistance of an interpreter. I accept that the plaintiff was doing her best and gave her evidence in an honest and straightforward manner. It would be a fair assessment to say that the plaintiff has decompensated considerably in respect of her injury to her left shoulder and chest area. I do not accept that she has consciously exaggerated or amplified the impact or consequences of the injury and, in particular, the pain that she has suffered as a result of that physical injury.
58 The plaintiff, after her original injury in October 2010, made a number of attempts to re-engage with her employment with the defendant. The plaintiff, in her own evidence, stated that she was very keen to continue to go back to work and tried to do so. She stated that it was in April 2011 that the defendant stopped her from working.[46] I accept that the plaintiff genuinely wanted to go back to work and, in fact, sought to do so; however, the impact of her Pain Syndrome has precluded her from doing so.
[46]T35
Medical opinions
59 In this proceeding, the parties relied on numerous medical opinions. I have previously dealt with the psychiatric/psychological medical opinions in respect of the plaintiff.
60 After the plaintiff had attended at the Northern Hospital on 4 October 2010, she had been cleared of suffering from any heart condition or heart attack. On 7 October 2010, she attended her general practitioner, Dr Vu, who diagnosed her with a soft tissue injury to the left shoulder. On 14 October 2010, the plaintiff had an ultrasound to her left shoulder which reported a normal study.[47] On 14 October 2010, the plaintiff had a CT scan of her cervical spine. That radiological finding was that there was a mild scoliosis convex to the left and with reduced lordosis, but without disc herniation or nerve root compromise.[48] The plaintiff, on 12 January 2011, then had an MRI scan of her cervical spine. The finding of the MRI scan was that the plaintiff suffered from a mild spondylosis of C4-5 and C5-6 associated with minor disc bulging, with no cervical canal stenosis or neural impinging lesions.[49]
[47]PCB 23
[48]PCB 23
[49]PCB 24
61
Finally, on 29 March 2011, the plaintiff underwent a bone scan and a CT scan of the sternoclavicular joint.[50] The bone scan noted that there was a superficial palpable thickening located just inferior to the medial end of the clavicle, but no bone scan abnormality is apparent in that region. The
CT scan noted that there was calcification present in the upper costal cartilage and that that was a normal finding. It was also noted that there was mild irregularity and sclerosis at the manubriosternal junction which suggests minor arthropathy.
[50]PCB 25
62 The reporting doctor for the CT scan, Dr Coral Tudball, suggested that an ultrasound of the sternoclavicular joint and an MRI scan of that joint be performed. It does not appear from the evidence in this case that such radiological tests were carried out. It is noted that these radiological examinations all took place immediately prior to the plaintiff ceasing her work in April 2011.
Dr Terence Lim, Consultant in Rehabilitation and Pain Medicine
63 The plaintiff attended on Dr Lim in August 2011. Dr Lim prepared a report dated 9 February 2012.
64 In his report, Dr Lim stated as follows:
“Physical examination revealed evidence of irritable, tender muscles affecting the region of her paracervical/shoulder girdles and perhaps her left pectoral girdle as well as both upper limbs associated with exquisitely tender and multiple trigger points in a regional distribution reflecting the development of central sensitisation (see below for explanation) which I believed was perpetuating as well as amplifying her pain.
She was focussed on the left pectoral region but I did not find any obvious trigger points on initial examination.”[51]
[51]PCB 41
65 Dr Lim went on to diagnose the plaintiff as follows:
“It was my opinion that as a consequence of the mechanism as Ms Keser had described, it would seem that she had suffered a muscle strain injury which has subsequently developed into a chronic or persistent pain condition due to the development of central sensitisation.
This has presented clinically as a chronic or persistent pain disability (by definition, whole person dysfunction as a consequence of a previous impairment (her original injury) with a combination of the experience of persistent pain and associated physically by evidence of irritable muscles and associated muscular trigger points reflecting the development of central sensitisation which is perpetuating and amplifying her pain. In the process, she had become increasingly anxious as well demoralised, as life was no longer and continues not to be the same as previously.”[52]
[52]PCB 42
66 Dr Lim then described the condition of central sensitisation. He states:
“Central Sensitisation or central nervous system pain pathway sensitisation is due to scientifically-proven organic changes that occur in the pain pathways of the spinal cord, a consequence of having suffered acute pain caused by an original injury.
This means that the chronic pain sufferer’s pain threshold has effectively been lowered and once well-established, the pain sufferer is not only primed to suffer chronic or persistent pain but prone to experience spontaneous flares of increased pain, independent of any other factors or pathology.”[53]
[53]PCB 42
67 In the earlier report, Dr Lim stated:
“My concern is that if she continues along this track, she will become increasingly entrenched in a Chronic Pain Syndrome where her whole life is totally focussed on and dominated by her pain, leaving her increasingly dependent on others, demoralised/depressed and increasingly disabled.”[54]
[54]PCB 45
68
This statement has proved to be prophetic and unfortunate for the plaintiff.
Dr Lim’s opinion was finally expressed as follows:
“… it is currently not her original injury that is preventing her from pursuing her usual activities of daily living but the consequences of the original injury i.e. the development of a chronic or persistent pain condition due to the development of central sensitisation, her psychological reaction to the persistence of the pain and her belief system surrounding this persistence.”[55]
[55]PCB 46
69 Dr Lim prescribed the plaintiff Lyrica at the initial consultation time in August 2011.[56] Dr Lim’s recommendation was that the plaintiff should undergo a three-week Pain Management Program under his care.
[56]PCB 10 and 44
70 Whilst there are a number of reports form Dr Lim to the plaintiff’s general practitioners, Dr Muy Lim and Dr Andrew Ramsay, there is not a report prepared subsequent to the plaintiff undergoing any Pain Management and Rehabilitation Program at the North Eastern Rehabilitation Centre.
Dr Andrew Ramsay, General Practitioner
71 The plaintiff remains under the care of her general practitioner, Dr Andrew Ramsay. Dr Andrew Ramsay prepared a total of six reports in respect to this application dated 18 August 2011, 5 April 2012, 20 April 2013, 1 February 2014, 4 November 2014 and 1 February 2016. In his final report, Dr Ramsay stated:
“The current treatment now includes analgesics (Panadeine forte and Panadol) and anti-inflammatory agents (Mobic). In the past she has had extensive treatment with anti-depressant medication and medication to modify pain pathways all of which have not resulted in symptomatic benefits. In the past, she also had extensive psychological counselling and physiotherapy which are now ceased but she continues to see an exercise physiologist in order to restore her functioning. However, she is very pain focussed and finds that when she does some exercise or heavy home duties she has a delayed onset muscle soreness which takes a long time to recover.
…
Her Diagnosis is consistent with a Chronic Pain Disorder associated with Depression following a soft tissue injury at work.
On physical and psychological grounds, Semahat is permanently unfit for all employment this incapacity still results from her injury at work in 2010.”[57]
[57]PCB 38-9
72 I accept the submission made by Mr Ingram, on behalf of the plaintiff, that the general practitioner is separating the physical effects of the Pain Disorder from the psychological grounds he refers to as being responsible for the plaintiff’s incapacity to work.
Dr Alex Stockman, Rheumatologist
73
Dr Stockman prepared a report for the purposes of this application dated
12 November 2013. Dr Stockman’s diagnosis was that the plaintiff suffered from a Regional Pain Syndrome involving the left side of her neck, left sternoclavicular joint, left scapula and shoulder. In Dr Stockman’s opinion, the plaintiff would not be able to perform duties as a product sorter, console operator, cashier or packer, but could consider retraining as a receptionist on a part-time basis. In his opinion, the plaintiff’s condition was a permanent impairment.[58]
[58]PCB 52-3
Dr Helen Sutcliffe, Occupational Physician
74
Dr Sutcliffe prepared two reports in respect to this application, dated
25 February 2014 and 4 February 2016. In her first report, Dr Sutcliffe stated that the plaintiff had sustained musculoligamentous injury to her left shoulder, left neck and left side of the chest with some findings consistent with left shoulder derangement. She has also developed onset of persisting pain with neuropathic qualities in increasing intensity and increasing distribution of pain.[59] In Dr Sutcliffe’s opinion, the plaintiff had no capacity for her pre-injury employment or any other suitable employment. In her most recent report,
Dr Sutcliffe noted that the plaintiff had demonstrated a red discolouration in the border of the scapula on the left, with red discolouration sensitive to touch.[60] In Dr Sutcliffe’s opinion, she noted the plaintiff had developed the onset of persisting pain with neuropathic qualities, increasing in intensity and increased distribution of pain. Dr Sutcliffe noted that the plaintiff had some areas of swelling and discolouration. In her opinion, the plaintiff was unable to do her pre-injury employment or alternative employment for the foreseeable future.[61]
[59]PCB 60
[60]PCB 65
[61]PCB 67
75 Dr Sutcliffe went on to say that the plaintiff has persistent pain related to a musculoligamentous condition in the neck and left shoulder girdle and she now has the onset of neuropathic pain which will persist into the future given the length of time she has had these symptoms.[62]
[62]PCB 68
Dr Peter Blombery, Consultant Physician
76 Dr Blombery examined the plaintiff for the purpose of this application and prepared a report dated 10 December 2015. Dr Blombery took a careful history from the plaintiff and noted as follows:
“When I saw her, she complained of ongoing pain which was present in the left shoulder girdle, left neck and left clavicle over the medial end. She said she sometimes developed some swelling in the area of the clavicle as well. There was also pain in the left scapula and pain radiating down the left arm. She found that deep breathing caused increased pain in the scapula. She said her left arm did not feel the same as her right arm, as though something was missing from it. She said the left arm became hot and cold and became darker in appearance. The upper left chest also became red and blotchy in appearance. There was numbness and pins and needles in the left arm. She had been depressed as well and had seen a psychologist for quite a period of time.”[63]
[63]PCB 72
77 Dr Blombery noted that the plaintiff was taking the following medications: Panadol, two to six daily, as well as Panadeine Forte, and the anti-inflammatory Mobic at night.[64] Dr Blombery examined the plaintiff and he found that she was profusely tender on pressure over left shoulder girdle, over the trapezius muscle and the medial aspect of the scapula and, to a much lesser extent, on the right side. There was no obvious swelling over the clavicle. The left medial clavicle, however, was more prominent than that on the right side. There was no difference in colour and there was less than one degree difference in temperature between the two arms.[65] In Dr Blombery’s opinion, he stated:
“It is my opinion that the work she was doing in the course of her employment had resulted in previously asymptomatic changes in the cervical spine being rendered symptomatic. In regard to the shoulder pain, it is my opinion that she had soft tissue injuries to the shoulder area as well and these had resulted in a process of pain pathway sensitisation, both in the periphery as well as in the brain and spinal cord, such that non-painful stimuli become interpreted by the cerebral cortex as being painful.
…
Such a sensitisation process is an organic disorder of pain nerve pathways and not a psychological disorder.”[66]
[64]PCB 72
[65]PCB 73
[66]PCB 73-4
Dr Timothy Wood, Sports and Exercise Medicine Physician
78 Dr Wood examined the plaintiff on behalf of the defendant’s insurer. Dr Wood noted, in response to specific questions, as follows:
“Ms Keser presents with widespread pain affecting her left shoulder girdle, chest wall and left arm at varying times. No specific pathoanatomical diagnosis can be given, apart from a chronic regional pain syndrome with elements of myofascial pain.
…
I do not believe that Ms Keser has an ability to participate in retraining or new employment services. She has been assessed twice by the medical panel and considered unfit indefinitely for any further work. I would concur with these recommendations, given her poor prognostic signs demonstrated today and a failure to progress with any form of treatment over the last five years.”[67]
[67]PCB 79
79 Dr Wood stated that from a purely physical point of view, Ms Keser is very pain focussed, but due to language barriers, I do not believe that a Pain Management Program or an understanding of pain mechanisms is likely to yield significant improvement given the entrenchment of her current medical condition.[68]
[68]PCB 81
Dr Tony Kostos, Rheumatologist
80
The plaintiff was referred to Dr Kostos, rheumatologist, by her general practitioner, Dr Vu. Dr Kostos reported on two occasions to Dr Vu, dated
29 March 2011 and 12 April 2011. In Dr Kostos’ initial report, he stated that he thought it was appropriate for a bone scan and CT scan of the left sternoclavicular joint region to isolate the cause of the symptoms the plaintiff was complaining about. In his view, the symptoms that the plaintiff was suffering from related to a Regional Pain Syndrome.[69] In the later report,
Dr Kostos recommended that the plaintiff would be best treated by a Pain Management Program.[70] I note that, in the course of her evidence, the plaintiff stated that she did not respond well to Dr Kostos’ advice to her general practitioner, given that he had previously told her that he understood her condition.
[69]PCB 139
[70]PCB 140
81 The plaintiff has been examined by Dr Phillip Mutton and Mr Peter Scott on behalf of the defendant. These two medical practitioners were engaged to provide an opinion for the physical aspects of the plaintiff’s symptoms and condition.
Dr Phillip Mutton, Consultant Occupational Physician
82
Dr Mutton prepared two reports for the purpose of this application, dated
19 February 2011 and 8 March 2011. Dr Mutton’s opinion was that the diagnosis was unclear. He thought it was unlikely to be a primary shoulder condition or a primary cervical condition. In his opinion, there is some element of fibromyalgia or Myofascial Pain Syndrome. He thought it was important that the plaintiff be assessed by a rheumatologist to explore both of these types of conditions, including connective tissue disorders.[71]
[71]DCB 24
83 In his later report dated 8 March 2011, Dr Mutton had been to a worksite inspection to determine what processes or work the plaintiff could then perform. I note that this Worksite Report was conducted before the plaintiff ceased her employment, at the request of the defendant in April 2011.
Mr Peter Scott, Senior Consultant Surgeon
84
Mr Scott prepared six reports for the purpose of this application. The reports are dated 19 December 2012, 9 January 2013, 14 October 2014,
15 December 2015, 27 January 2016 and 4 February 2016. In his initial report of December 2012, Mr Scott noted that the outstanding feature of the plaintiff was the hypersensitivity or hyperalgesia affecting the left side of her face, the left anterior chest wall, the left sternoclavicular joint and her left upper limb. He also noted that there appeared to be some slight swelling over the left sternoclavicular joint where pain was experienced to light touch (allodynia).[72] At that time, Mr Scott stated that the plaintiff would appear to have developed soft tissue or musculoligamentous strain in the cervical spine and the left shoulder girdle and possibly a pectoral musculature of the left anterior chest wall as a result of the nature of the work performed by her and, particularly, on 4 October 2010. He went on to state that any organic problem would appear to have resolved and ongoing symptoms relate to an abnormal pain response and the development of what can be best described as a Chronic Pain Syndrome or abnormal illness behaviour with marked psychosomatic symptoms, the latter requiring an interpretation by a consultant psychiatrist. Mr Scott noted that the plaintiff did appear to have some minor swelling at the left sternoclavicular joint which was hypersensitive to light touch.[73]
[72]DCB 50
[73]DCB 51
85 In his second reported dated 9 January 2013, Mr Scott stated that he believed the prognosis for the plaintiff was poor and her apparent working capacity relates to non-organic factors which he described as representing an abnormal pain response.[74]
[74]DCB 57
86 On 14 October 2014, Mr Scott reported to the defendant’s solicitors. Mr Scott noted that the plaintiff’s current complaints were worsening in nature without evidence of any features of ongoing work-related organic disability, with the possible exception of some minor cervical spondylosis which could be a factor with the neck symptoms. Mr Scott diagnosed the plaintiff with a Chronic Pain Syndrome and abnormal illness behaviour, with features suggestive of Anxiety and Depression which in turn requires clarification by a consultant psychiatrist, together with possible mild chronic neck pain related to aggravated cervical spondylosis without evidence of any upper limb radiculopathy.[75]
[75]DCB 64
87 Mr Scott was of a strong belief that the plaintiff’s ongoing symptoms represented an abnormal pain response with abnormal illness behaviour which requires interpretation by a consultant psychiatrist. He noted that the abnormal pain response by the plaintiff is affecting her ability to return to the workforce. In his opinion, on the basis of the cervical spondylosis alone, the plaintiff was fit to return to the workforce with minimal restrictions.[76]
[76]DCB 65
88 In his more recent report of 15 December 2015, Mr Scott diagnosed the plaintiff as suffering from initial soft tissue injuries or muscular strains to the cervical spine, and possibly the shoulder girdles. The development can best be described as a Chronic Regional Pain Syndrome with features suggestive of an associated Anxiety or frustrated response, the latter requiring an interpretation by a consultant psychiatrist in a situation where there is no significant ongoing work-related organic disability.[77]
[77]DCB 74
89 In Dr Scott’s report dated 27 January 2016, he noted that the plaintiff had an exaggerated response which appears to be unrelated to ongoing significant organic disability. It may well be due to conscious pain amplification.[78]
[78]DCB 77A
90 In Mr Scott’s final report dated 4 February 2016, he noted that there was no diagnosis of psychiatric illness found by Dr Varma, psychiatrist. Mr Scott went on to say that despite his finding of a 50 per cent reduction in the range of movement, together with complaints of occasional numbness in the left upper limb, that there was an absence of features suggestive of a Complex Pain Syndrome Type 1, where all the investigations showed no evidence of any significant underlying work-related organic disability and, most particularly, no features suggestive of adhesive capsulitis or frozen shoulder syndrome. He went on to repeat his previous opinion, that the plaintiff was amplifying her symptoms in a conscious way.[79] Mr Scott has provided no opinion or comment on Dr Lim’s diagnosis of central sensitisation of the plaintiff’s central nervous symptom.
[79]DCB 77C
Conclusion
91 I accept the evidence of Dr Lim, Mr Blombery and Dr Sutcliffe in respect of the organic cause, which is the substantial cause of the plaintiff’s Pain Syndrome or symptoms. Dr Scott has noted the sensitivity in the sternoclavicular region, together with similar observations by Dr Helen Sutcliffe, and they provide independent confirmation of the physical basis for the plaintiff’s complaints of pain. The diagnosis made by Dr Lim of central sensitisation resulting in the amplification of the pain symptoms suffered by the plaintiff, on the balance of probabilities, is the most likely explanation for the plaintiff’s symptoms.
The consequences of the organically caused injury to the Plaintiff
Sleep
92 The plaintiff states that her sleep has been disturbed by the pain that she suffers to her left clavicle and mid-chest area, rising up into her neck.[80] In her evidence, the plaintiff confirms that her sleep is disturbed and it is a persistent complaint she has made to the medical practitioners who have examined her for the purposes of this application.
[80]PCB 15 at paragraph 2
93 I accept the plaintiff’s sleep is disturbed, leaving her tired and unrested as a result.
94 I accept that for the plaintiff to be continually in a position where she is unable to get proper rest through an undisturbed sleep pattern is a very considerable consequence for her and impacts on her activities of daily living.
Pain
95 The plaintiff has set out in her affidavits and in her evidence in this hearing, the effect of the pain upon her. She describes the pain as sharp and it affects her ability to use her arms in an ordinary way. An observation by medical practitioners is that the plaintiff is focussed on her pain. I accept that that observation is correct; however, it does not take away from the serious effect that the pain suffered by the plaintiff has on her life. I accept that the pain consequences to the plaintiff arise directly from the original physical injury she received at work in October 2010 and that it has continued until the present time, and will continue into the foreseeable future.
96 The pain consequences for the plaintiff in this case can only properly be described as “more than very considerable”.
Medication
97 The plaintiff has been treated by way of prescription for Panadeine Forte and Mobic. That medication has been prescribed for a long period of time by her general practitioner and is continually prescribed to her at present. In the past, the plaintiff had been prescribed Lyrica to assist in her treatment of pain but this was unsuccessful due to the side-effects of nausea and dizziness. The requirement for the plaintiff to take such medication as Panadeine Forte and Mobic on a continual basis is a very considerable consequence.
Activities of daily living
98 The plaintiff appears to have decompensated in respect of her ongoing daily activities. I accept that she receives assistance from her mother in the care of her children. I also accept that her friend, Serap Cosgun, assists her in the housekeeping and cleaning activities in the house.[81] The plaintiff has become dependent upon her son to assist her in activities of shopping and on the one occasion they went to Turkey in 2013. The need for this assistance is a clear indication that the plaintiff’s activities of daily living have been severely limited and those limitations are a very considerable consequence for her.
[81]PCB 21
Employment
99 I accept that the plaintiff is unable to return to her pre-injury employment. I also accept that due to her ongoing pain and disability, she is unable to engage in any suitable employment. In effect, the plaintiff has gone from being a very active and willing participant in the workforce to being completely unable to participate in any form of employment for the foreseeable future as a result of her ongoing disability resulting from the pain that she now suffers. The plaintiff’s capacity to work has been completely destroyed as a result of the original injury to her left shoulder and chest area.
100 The finding that the plaintiff is unable to engage in any paid employment is a very considerable consequence for her. I assess that she has suffered a total loss of ability to work into the foreseeable future.
Conclusion
101 It was submitted on behalf of the defendant, in respect to the physical injuries, that the plaintiff had failed to disentangle the psychological impact or effect of these injuries upon her from the physical effects. On the balance of probabilities, I find that the plaintiff has satisfied, that the consequences both of pain and suffering and loss of earning capacity has a substantial organic basis. On that basis, there is no need for disentangling to be engaged in by the plaintiff in this application. I base that finding on the opinions of Dr Terrence Lim, Dr Blombery and Dr Helen Sutcliffe. I find that the plaintiff’s condition will continue for the foreseeable future.
102 On the basis of the foregoing reasons, I grant the plaintiff leave to bring proceedings for common law damages for both pain and suffering and loss of earning capacity arising out of the injuries she received at her work in October 2010.
103 The application for serious injury certification for pain and suffering and loss of earning capacity under the heading of psychiatric or psychological disorder is dismissed.
104 I will hear the parties on costs.
---
0
1
0