Kotev v Britax Child Care Products Pty Ltd
[2012] VCC 1096
•28 August 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-05444
| SAZDO KOTEV | Plaintiff |
| v | |
| BRITAX CHILD CARE PRODUCTS PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10, 13 August 2012 | |
DATE OF JUDGMENT: | 28 August 2012 | |
CASE MAY BE CITED AS: | Kotev v Britax Child Care Products Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1096 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Complex Regional Pain Syndrome Type 1
LEGISLATION CITED – Accident Compensation Act 1985, s134AB
JUDGMENT – Leave granted in respect of pain and suffering and economic loss.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J A Jordan SC with Mr M A Nightingdale | Patrick Robinson & Co |
| For the Defendant | Mr B R McKenzie | Herbert Geer |
HIS HONOUR:
Preliminary
1 The plaintiff commenced work for the defendant in 2003 which work involved the rapid and forceful use of his arms to produce child capsules for motor vehicles. In August 2006, he began to experience pain in his right arm and elbow. Subsequent investigation showed he was suffering from a tear to the supraspinatus tendon of the shoulder, right epicondylitis and right carpal tunnel syndrome. The physical picture has been overwhelmed, according to a number of practitioners, with the development of Complex Regional Pain Syndrome Type I (“CRPS”). In addition, he has suffered a reactive depression. He has not worked since August 2006, and alleges he has suffered a significant disability involving the right arm and leading to interference with his domestic, recreational and work activities.
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of the plaintiff’s employment with the defendant over the period from 2003 until August 2006.
3 The body function said to be lost or impaired is the right arm. In addition, the plaintiff claims to have suffered a permanent severe mental or permanent severe behavioural disturbance or disorder in the nature of Major Depression or Adjustment Disorder. However, Mr Jordan, on behalf of the plaintiff, candidly admitted that if the plaintiff was unsuccessful in respect of the physical injury, he would not be successful in respect of the mental disorder. The application is thus brought under subsection (a) of the definition of “serious injury” contained in s134AB(37) of the Act and leave is sought in respect of pain and suffering and economic loss. Although the plaintiff suffered from a range of injuries to his right arm, including a tear of the supraspinatus tendon of the right shoulder, right lateral epicondylitis in the elbow and carpal tunnel syndrome, Mr Jordan stated that all of those physical injuries were overwhelmed by the development of a CRPS. This was the injury relied upon by the plaintiff.
4 The plaintiff and a treating physician, Dr Blombery were called to give evidence and be cross-examined. In addition, three affidavits of the plaintiff, reports from treating and consultant practitioners, radiological investigations and other relevant material was tendered in evidence. I have read all the tendered material. I shall not refer to all of this material in the course of this judgment, but rather those reports and opinions which appear to me to be of most relevance in determining the issues in dispute. I shall not refer to all of the evidence of the plaintiff, but rather those parts of his evidence which I have relied upon in coming to the conclusions later referred to in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature is well known and it is unnecessary for me to revisit the various relevant sections.
Relevant Background
5 The plaintiff was born in 1956 and is now fifty-six years of age. He is married with two adult children. He went to school in Macedonia until sixteen, and immigrated to Australia in 1974 when he was eighteen years of age.
6 From that time until his injury in 2006, the plaintiff was employed in regular full-time employment in a range of labouring jobs. He has worked as a labourer, machine operator, driver and in the hide and skin industry. He commenced working with the defendant in 2003. His work involved performing various functions relating to child capsules for use in motor vehicles. According to his affidavit, the work was strenuous and repetitive. He would assemble over two hundred such capsules each shift, an average of approximately sixty seconds per capsule. He said the work:
“… involved work which was extremely repetitive and involved forceful movements of my upper limbs, especially my right dominant arm.”[1]
[1]Plaintiff’s Court Book (“PCB”) 16
7 He said he made complaints about the rapidity of the work, but these were largely ignored.
8 To the financial year ended June 2006, he earned $39,981.00 gross. This was an average of approximately $769.00 gross per week.[2] According to his affidavit, he enjoyed a good family and social life in the Macedonian community. He undertook a range of outdoor domestic duties and enjoyed growing vegetables. He regularly worked in his vegetable patch over the weekend. He attended family functions and gatherings and supported his local soccer club. He was in general good health, and in particular, had suffered no injury nor pain to his right arm.
[2]PCB 158
The Injury and its Consequences
9 In about August 2006, he began to experience pain in his right arm, in particular, the right elbow. The pain came on while he was performing the repetitive duties to which I have referred. On 24 August 2006, he went to see his general practitioner, Dr Andrianakis, and was referred for physiotherapy and prescribed medication. An ultrasound of the right elbow showed a detachment or tearing of the common extensor origin at the right elbow. The condition is described by a number of specialists as right elbow epicondylitis.
10 In September 2006, he was referred to Mr Peter Mangos, general surgeon, who injected the elbow on six occasions. This provided temporary relief. An initial ultrasound of the right shoulder showed no rotator cuff abnormality,[3] but a subsequent CT scan of July 2008 showed right shoulder osteoarthritis and a full-thickness tear to the right supraspinatus tendon, measuring 7.5 millimetres. There was further right subacromial bursal thickening.[4]
[3]PCB 152
[4]PCB 155-156
11 The plaintiff continued to see Mr Mangos, although on a number of occasions for the purposes of medico-legal report. In addition, he discerned the plaintiff was suffering from right carpal tunnel syndrome, confirmed by nerve conduction studies undertaken in October 2006.[5] On a number of occasions, Mr Mangos noted the plaintiff was suffering from symptoms including swelling of the right hand, sensitivity to touch and was flushed in appearance. He said that it was “probable and almost certain” the plaintiff was suffering from CRPS.
[5]PCB 154
12 The plaintiff was referred by his general practitioner to Mr Timothy Bennett, hand surgeon, in October 2006. He referred to the epicondylitis and carpal tunnel. In his reports of 10 May 2007 and 3 October 2007,[6] he said that he could find no clinical evidence of CRPS. However, by his report of 3 October 2008,[7] he said the plaintiff –
“… certainly has CRPS which is causing a large degree of symptoms within his hand.”
[6]PCB 59-61
[7]PCB 62
13 This was confirmed in subsequent reports. He noted that by examination in July 2012, he said:
“Examination confirms that his arm and hand are sweaty, swollen, stiff and tender all over. There is no specific area of tenderness. He appears very frustrated and has a lowered mood.”[8]
[8]PCB 64
14 The plaintiff was referred to Dr Peter Blombery in February 2007 by his general practitioner. Dr Blombery has seen the plaintiff on twenty four occasions since. He describes CRPS in detail[9] and confirmed that it was a physical condition affecting the sympathetic nervous system. He said the diagnostic criteria included:
[9]PCB 70
· Pain out of proportion to the injury
· Changes in temperature, colour and sweating
· Swelling.
15 Dr Blombery is an acknowledged expert in the area, having seen or treated approximately three thousand patients over the last twenty to twenty five years. It was his clear view that the plaintiff suffered from CRPS, although on not every occasion that he examined the plaintiff did he record diagnostic findings consistent with the syndrome.
16 The plaintiff has remained under the care of Dr Andrianakis through to the present time. That doctor referred to the various symptoms of CRPS which he observed over the course of treatment, and, in addition to the problems with his shoulder, elbow and wrist. He diagnosed the plaintiff as suffering CRPS. He confirmed the plaintiff was unfit for any form of work, took a range of medication and was severely disabled by his condition.
17 According to his affidavit,[10] the plaintiff takes up to sixteen capsules of prescribed medication per day, including Temazepam, Seroquel, Codalgin Forte, Endep and Lyrica.
[10]PCB 26
18 He described in detail that he has difficulty freely using his right arm, which is his dominant arm. He suffers ongoing pain and is restricted in almost all use of the hand and fingers. He described his arm as feeling hot, swollen and at times changing colour. He said that his sleep is affected and he has difficulty dressing and undressing. His wife has effectively become his carer. He suffers pins and needles and numbness in the fingers and thumb of his right hand on occasions. He does drive his motor vehicle, although not as much as before injury. He suffers a loss of self-esteem and independence and said that in the Macedonian culture, persons who claim to be disabled from work were looked down upon. As a result, he said that had suffered a significant psychological reaction, and was treated on a regular basis both by a psychologist, Mr Tsironis, and a psychiatrist, Dr Byron Rigby. He continues to see each of those practitioners and his general practitioner through to the present time. He said that all of the consequences referred to in his affidavit caused very substantial impediment to his domestic and recreational life. He has been unable to return to any form of employment since August 2006, although he said he had made enquiries in the Macedonian community about the prospect of some form of part time work.
19 According to various reports of Dr Clayton Thomas, a rehabilitation and pain management specialist, the plaintiff suffered both physical and psychological symptoms. Dr Thomas considered the condition was based upon organic components, although said the non-organic factors were significant, and it was difficult to discern what the underlying organic problem was. Although he did not observe any of the diagnostic criteria for CRPS, he noted that the condition had been accepted by Dr Blombery and –
“… I accept, therefore, that more likely than not there is an element of Complex Regional Pain Syndrome here.”[11]
[11]PCB 128
20 Mr Robert Pianta, orthopaedic surgeon, saw the plaintiff in 2008 upon the referral of his general practitioner. He also said that his “impression” was that the plaintiff had CRPS, although did not detail his examination findings.
21 On behalf of the defendant, the plaintiff was examined in 2009 by Mr Brendan Dooley, orthopaedic surgeon. He found the plaintiff’s right hand to be swollen and discoloured. He concluded the plaintiff was suffering CRPS.
22 A similar finding was made by the defendant’s consultant, Dr Ho, who, in 2006[12] found the plaintiff’s right hand swollen and discoloured, which he accepted suggested possibly CRPS, although found the plaintiff’s presentation and symptoms exaggerated.
[12]DCB 4
23 The practitioner relied upon by the defendant, Dr Fraser, rheumatologist, saw the plaintiff on five occasions over the years from 2007 to 2012. On no occasion did he detect the plaintiff suffering from any of the symptoms consistent with CRPS. He concluded that the plaintiff was exaggerating his condition and that there were findings upon examination which were inconsistent and unreliable. He concluded the plaintiff was not suffering from CRPS, and had a capacity to resume his pre-injury employment.
Credibility of the Plaintiff
24 I had the opportunity to observe the plaintiff in the course of his evidence and cross-examination. He appeared to me to be an honest witness giving a fair account of his injury and its consequences. In particular, I was impressed by the fact that the plaintiff had a consistent history of manual work since coming to this country thirty years ago. I accept that he has had little time away from work, and worked long hours, including nightshifts and over the weekend in order to provide for his family. This, in my view, enhances his credibility.
25 Mr McKenzie, for the defendant, submitted that I ought to have significant reservations about the plaintiff’s credibility for the following reasons:
· The plaintiff accepted that he visited a local shopping centre for coffee and spoke to ten or fifteen Macedonian men, but was unable to describe to a social worker[13] whether those men were employed or otherwise.
[13]PCB 138
· He said the plaintiff’s wife’s role as a carer was inconsistent with the fact that she had a heart condition, and had recently spent some months away overseas.
· He said it was inconsistent that the plaintiff acknowledged that he preferred to drive rather than allow his wife to drive, and yet she was responsible for administering his various medications.
· He said the plaintiff’s complaint that he was suicidal was inconsistent with the lack of any such finding in the reports of his treating psychologist and psychiatrist.
· The plaintiff had been in Australia for a considerable period and was able to converse in English with his treating general practitioner and psychiatrist. Mr McKenzie said this was at odds with the fact that he required an interpreter in court.
· The plaintiff had refused a Ketamine infusion from Dr Blombery, which Mr McKenzie said was at odds with his claimed disability.
· The exaggeration observed by Dr Ho and Dr Fraser in the course of examination affected the plaintiff’s credibility.
· The plaintiff’s claim to significant pain in the right arm and lack of use was inconsistent with various findings that there was no muscle wasting to that limb.
26 I do not regard any of these credit issues as significant. There were minor inconsistencies in the plaintiff’s evidence but, as stated, by and large I found him a witness of truth and reliability. I do not see the issues raised by the defendant as having any impact upon the plaintiff’s credibility. I accept the claims of pain and disability as set forth in his various affidavits, and accept as accurate the history provided to the various doctors.
Conclusions
27 The issue to be determined in this application is a narrow one. On the one hand, there are the opinions of Dr Blombery, and a range of other practitioners, that the plaintiff suffers symptoms consistent with the diagnosis of CRPS. That diagnosis is largely reliant upon the observations of swelling, temperature change, colour change and sweatiness over the right arm and hand.
28 On the other hand, there is the opinion of Dr Fraser that in the course of his five examinations there were no symptoms of CRPS observed, and rather he determined the plaintiff as exaggerating.
29 In my view, and overwhelmingly, the plaintiff has CRPS. I accept the opinions of Dr Blombery, his general practitioner, Dr Andrianakis, Mr Bennett and Dr Mangos as to the plaintiff’s condition. Dr Clayton Thomas, although he did not observe any of the symptoms himself, accepted the diagnosis of Dr Blombery. Over the course of the examinations of the various treating and consultant practitioners, even psychiatric and psychological practitioners, there were regular physical findings consistent with the symptoms of CRPS.
30 I accept the plaintiff’s complaints of ongoing and significant pain throughout the right arm and hand and that as a consequence he has been unable to work since 2006. He is required to take large quantities of pain-relieving and other medication, and I accept the condition has had a very significant affect upon his recreational and domestic tasks. I accept his sleep is affected. I accept the condition is permanent. There is no doctor offering any solution to nor any improvement in, the condition in the foreseeable future.
31 In these circumstances, the plaintiff’s application succeeds, both in respect of pain and suffering and economic loss.
32 I shall make the appropriate orders.
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