Lim v Siemens Ltd
[2011] VCC 132
•10 February 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-10-01233
| SOU HOA LIM | Plaintiff |
| v | |
| SIEMENS LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 30 November, 1 and 2 December 2010 |
| DATE OF JUDGMENT: | 10 February 2011 |
| CASE MAY BE CITED AS: | Lim v Siemens Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 132 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – psychiatric impairment – pain and suffering conceded – date of compensable injury.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J R Moore QC with | Zaparas Lawyers |
| Mr B C Chessell | ||
| For the Defendant | Mr B Anderson | Hall & Wilcox |
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the defendant after 20 October 1999 (“the relevant date”) and in particular on 8 November 1999 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.
3 The plaintiff brings this application pursuant to clause (c) of the definition of “serious injury” to be found in s.134AB(37) of the Act, claiming to have suffered a permanent severe mental or permanent severe behavioural disturbance or disorder.
4 The impairment of body function relied upon in this case is psychiatric impairment.
5 The defendant conceded at the start of the hearing that the plaintiff has a permanent psychiatric impairment which satisfies the “severe” test.
6 However, it was submitted by Counsel for the defendant that the plaintiff did not suffer a psychiatric injury arising out of or in the course of or due to the nature of her employment on or after the relevant date pursuant to s.134AB(1), and on that basis her application should fail.
7 The defendant’s case was essentially that the plaintiff’s psychiatric condition resulted from her physical injuries which had their onset in mid 1999, prior to the relevant date.
8 As there is only this discrete issue in dispute, I do not propose to deal at any length with the consequences of the plaintiff’s psychiatric impairment and the medical evidence in relation thereto. The focus of this judgment is clearly on the evidence in relation to the date of compensable injury.
9 The plaintiff relied upon two affidavits and was cross examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
10 The plaintiff is aged fifty five, having been born on 8 February 1956 in Cambodia. She left school after six years to help out at home.
11 At the age of seventeen, the plaintiff was allocated to work in the countryside when Pol Pot came to power. Her father died in 1977 and she left Cambodia in 1979 with her mother, brothers and sisters (“the family”), first going to Thailand, where they were housed in refugee camps.
12 After seven months, the family was transferred to the Philippines where they stayed for thirteen months, before coming to Australia in 1981.
13 The plaintiff is married with three adult children.
14 In 1983, the plaintiff found some factory work for three months, but then had to look after her mother who was sick. In 1986, the plaintiff worked with the defendant for two years, assembling phones, and then ceased work to have her second daughter.
15 In 1995, the plaintiff returned to the defendant’s employ. Until she was made redundant four years later, the plaintiff worked in a job involving winding wire onto coils for computers. In about mid 1999, the plaintiff and another worker were re-hired by the defendant to work in the cable system.
16 As at the said date, the plaintiff was earning $560 gross per week.
Affidavit Evidence as to the Work Duties and Date of Injury
17 The plaintiff deposed in some detail in her first affidavit as to the nature of her duties with the defendant. She had two jobs: firstly, assembling electrical components to make parts for computer cable; and secondly, cutting cable using a cutting machine.
18 When the plaintiff first began working in the cable section, on average she worked for three days assembling and for two days cutting. After about three months however, she was doing three days of cutting and one to two days of assembly work, and the rest of time she spent packing, although there was no set pattern of work.
19 The most difficult part of the plaintiff’s job involved pulling the cable free of the drum, reaching and scooping out lengths of cable from the cutting machine with her left arm, and forcing several cables into the frame when assembling, using her right hand and thumb.
20 In early November 1999, the plaintiff developed pain in her left shoulder and arm and also in her right wrist and thumb. She attended her regular doctor, Dr Too at the Access Medical Group (“the Clinic”) whom she had attended for some years.
21 On 7 November 1999, the plaintiff saw Dr Soliman at the Clinic who gave her pain medication.
22 The plaintiff tried to work the next morning. She was given packing duties, putting plugs on the end of cut cable and putting them both in a plastic bag and then on a trolley.
23 At about 9.30 am on the said date, the plaintiff’s supervisor, Patricia O’Halloran (“Patricia”), asked her to do some assembly work. The plaintiff told her she had pain in her right wrist and thumb, and also her left shoulder and arm, and she did not think she could do this work.
24 Patricia seemed angry and the plaintiff did not believe Patricia thought she was injured. The plaintiff then went to first aid, where it was suggested she rest. The plaintiff left work and then saw Dr Too, who put her off work and gave her more medication.
25 In her second affidavit sworn on 30 November 2010, the plaintiff gave more detail in relation to the events on the said date. She repeated that Patricia seemed angry because she appeared not to believe the plaintiff was injured and unable to perform certain tasks.
26 More particularly, on that occasion, the plaintiff recalled Patricia threw away the plaintiff’s job card when she told her she could not perform a particular task, and accused the plaintiff of always complaining (“the incident”). This occurred in front of a number of other workers who stopped work and looked on in silence at what was happening. This made the plaintiff feel very embarrassed and humiliated.
27 In her first affidavit, the plaintiff deposed that from that time on she felt very different at work. She felt everyone was staring at her and it made her feel ugly. She also felt that nobody wanted to talk to her. She began to eat her lunch alone. After she made her WorkCover claim, she felt very guilty, because everyone seemed to avoid having anything to do with her.
28 In her later affidavit, the plaintiff deposed that up until the time she was made redundant, she remained embarrassed about the incident with Patricia and lost confidence in relating to her work colleagues.
29 Following the redundancy, the plaintiff became even more depressed. She felt ugly and humiliated, and at different times wanted to kill herself.
30 The plaintiff withdrew from her friends and some family members, and still avoids contact with them as she does not want to see them in her current condition.
31 The plaintiff has become increasingly argumentative and irritable and that has contributed to the breakdown of her marriage.
32 The plaintiff’s motivation and energy levels remain low and she has memory and concentration problems which hamper her ability to cook meals and undertake domestic tasks.
33 The plaintiff generally feels very anxious and nervous, particularly if she has to interact with someone she does not know. Even unexpected loud noises can make her very jumpy and she always feels on edge.
Evidence-in-Chief
34 Before she was injured, the plaintiff thought the job with the defendant was good and she was happy. It was a light job and the supervisor was very good to her.
35 Things changed in June 1999. In July 1999, the plaintiff went to see Dr Too with a headache, minor pain in her hand (which would come and go) and women’s problems. However, she was able to continue working.
36 The pain came on in November in relation to a change of work position, when the plaintiff had pain in her hand and the symptoms got worse and worse.
37 Between July and November 1999, the plaintiff worked full time, commencing work at 7.00 am and finishing at 3.30 pm. She sometimes did overtime. There was normally overtime at the end of the year.
38 Between July and November 1999, the amount of overtime varied – sometimes three days a week; sometimes less. The hours of overtime varied between two and four hours. There was overtime work on Saturdays which the plaintiff worked when it was available, of roughly about four hours.
39 Between July and November 1999, sometimes when the plaintiff did not feel well, she did not go to work. She was not being prescribed any medication in that period and did not have any time off work. She was not having any trouble doing her duties. She was not having any personal problems with upset, anxiety or worry.
40 On Friday, 5 November 1999, the plaintiff had a problem with her right hand. It was swollen and painful because the work she was doing at that time was heavy and involved pushing with her hands. She continued to work the rest of that day but did not work overtime. She worked the following Saturday for four hours.
41 During that time, both her hands and thumbs were swollen and very painful, but the right “was more serious” than the left. The plaintiff also developed headaches. The worsening pain caused her upset and she was not happy.
42 The plaintiff developed more pain in her hands on the Saturday and she saw her doctor the following day. On the Monday she went back to work doing a lighter job. The supervisor gave her a different job involving a lot of pushing with her right hand and thumb. The plaintiff told the supervisor she could not do the job and she would do it tomorrow. The supervisor refused to change her job. In front of fellow workers, she threw away the work card and said: “You can’t do this; you can’t do that. You don’t have to do anything.” At that stage the plaintiff was feeling very upset.
43 The plaintiff became tearful when describing these events. She added that she went to first aid and said to the supervisor, “Well I want to go home and see my own doctor”, and at that stage she was feeling extremely upset.
Cross-Examination of the Plaintiff
44 In cross-examination, the plaintiff said she remembered clearly the period from July to November 1999.
45 Even on 5 November 1999, the plaintiff was in pain but she was working so she did not have time to see her doctor.
46 When asked about an attendance at her doctor in July 1999 for pain in her hands, the plaintiff said she did not remember. When it was put to her what she had said in examination-in-chief, she could recall that attendance.
47 The plaintiff explained that she went to see Dr Too because she felt “headache, and you know, discomfort in my body”. She went mainly for the headache, and also her period was late. There was no neck pain. There was a little bit of pain through her arms but she continued to work, “no problem”.
48 The plaintiff mentioned to Dr Too she felt “a little bit sore, very minor, you know”. It did not bother her so she did not ask for medication.
49 The plaintiff confirmed that in the middle of 1999 she switched working from the coil section to the cable section where the new duties were more difficult.
50 When asked about the history reported by Dr Too of the onset of pain one month after this move, the plaintiff said:
“On that time all I told him to my memory was I feel discomfort, a little bit of aching here and there. I can’t remember which particular section. I just let him know what problem I have.” (sic)
51 In about July 1999, the plaintiff was having minor pain in both thumbs. It was not bad. She continued to work, pushing without any difficulty. She felt minor pain in both wrists and that is why she mentioned it to the doctor. Her left shoulder pain had not started in July 1999 because the work she was doing was not that heavy or bad.
52 Since the plaintiff was transferred to the cable section, there was a lot of carrying and pulling the cable, and gradually she felt pain. To her memory, this was first in November because of a lot of cutting and quite heavy work involved.
53 From June to July 1999, the work in the coil section was “light job and starting from September, October, November it gets a lot of cutting and so heavier”.
54 The plaintiff was not suffering pain in both knees in July 1999. That pain came on after a lot of cutting, but not when she was first transferred in May to June. She thought that pain started in November and then gradually got worse. She could not remember what particular day it started: she could remember clearer when her hands became swollen.
55 When the plaintiff had these minor pains, she did not complain to the defendant but did mention it to fellow workers.
56 The plaintiff first complained to her supervisor, Patricia, about the pains in her hands and wrists on the said date when the pain was agonising and she could not tolerate it. The plaintiff denied she complained to Patricia of these pains in the middle of 1999.
57 When asked whether the way she was being treated by work upset her between July and October, the plaintiff said she did not complain about the nature of work, she only got upset when Patricia treated her like a dog and said, “You do this; you do that”.
58 In answer to my question as to when this happened, the plaintiff replied that it was when she was changed to working in the other section.
59 The plaintiff agreed that she was upset at being treated like a dog after being moved into the cable section, and because she was transferred to the new section and did not want to lose her job, she “just sort of continued to tolerate it”.
60 When the history taken by Dr Too of the plaintiff being shattered when ill treated by her supervisor in about June was put to her, she said she had not seen him yet. She thought she told him that at work the supervisor was not good to her. She continued to work and enjoyed working. She told him she continued to work although the supervisor said “do this; do that”.
61 The plaintiff then said she could not remember what she told Dr Too if it was in June that she had this trouble with her supervisor but all she knew was Patricia did not treat her very well. Nothing happened to her, she just continued to work, which she enjoyed, and she was not having any problems at all between July and September.
62 The plaintiff disagreed she had ongoing pain during that time. When she saw the doctor it was very minor, but since she transferred, the workload was heavier and then, by November, her symptoms got very bad.
63 From October there was a lot of lifting, around ten kilograms of cable, and every day she was required to cut more than two hundred cables. At the end of October she was required to cut more and more cable.
64 The plaintiff took holidays in December 1999 and cannot remember having gone away.
65 When asked whether her present complaints were the same as when she saw Dr Too in July 1999, the plaintiff said her present symptoms were a lot worse than then and there are now more severe headaches.
66 As of July 1999, the plaintiff hardly felt pain. She did not complain of neck pain in the middle of 1999. All she complained about to Dr Too was of a headache.
67 When asked about the history in July 2001 to Mr Thien that she had had pain in her left shoulder for the previous two years, the plaintiff said she did not complain to her doctor of such pain in the middle of 1999.
68 She could not remember what the doctor said. She remembered she continued to work and coped with her work very well and “so by July the symptom aggravated” and then she went to see her doctor again.
69 The plaintiff then confirmed that despite this unclear answer, she continued to work in the middle of 1999 with no particular problem in her shoulder or neck. She coped with her work very well. She confirmed she was not doing heavy work during June to July 1999.
Re-Examination of the Plaintiff
70 In re-examination, the plaintiff said that in the last month or so prior to the hearing, the main areas of pain were her neck and left shoulder, pain in her thumb and wrist area comes and goes, and sometimes there is swelling. She did not have that swelling in her wrists, hands or thumbs in November 1999 and only had minor pain.
71 The plaintiff confirmed that when she started in the cable section she was happy. Her life was shattered, especially after the way the supervisor treated her on the said date, pointing fingers at her, and she felt very low.
72 When the plaintiff was initially transferred to another section, it was not as bad. The plaintiff said that Patricia said to her, “Do this job; do that job”.
73 When asked by her Counsel, “When did Patricia start treating you like a dog?” the plaintiff said, “On the 8th of November she yelled at me in front of everybody and threw the paper away”. Patricia never treated her like that at work afterwards, because since that day the plaintiff had been feeling extremely upset.
74 Since that day, fellow workers did not want to talk to the plaintiff and it seemed like she had done something wrong, and that was the situation every day when she was back at work, and she just had her lunch by herself.
The Plaintiff’s Medical Evidence
75 Given serious injury has been conceded, the medical evidence is relevant only as to the date of compensable injury and its contribution to the plaintiff’s present psychiatric condition which is conceded by the defendant to be severe.
76 Dr Too’s clinical files were not available, therefore there are no notes of any attendances prior to November 1999.
77 Dr Too advised Allianz on 28 May 2009 that the plaintiff sustained WorkCover injuries on 8 November 1999, diagnosing Chronic Regional Pain Syndrome, Anxiety and Depression.
78 Dr Too reported on 16 September 2009 that the plaintiff advised him that she worked for the defendant for five years before a work-related injury in 1999. She used to work in the coil section where the job was easy and light. In June 1999, she was transferred to the cable section where she had to cut cables with her hands. This work was heavy, hard and repetitive.
79 About a month later, the plaintiff complained of neck pain; pain in both thumbs; pain in both wrists; pain in both knees; pain in left shoulder and left elbow. The plaintiff complained to Patricia, the work supervisor, about her pains.
80 Dr Too noted that the plaintiff was very upset that Patricia did not listen to her complaints and did not believe she was in pain. Patricia told the plaintiff’s friends that the plaintiff always complained about her job and said, “You can’t do this job and that job”. Patricia yelled and abused the plaintiff verbally. The plaintiff believed she was treated like a dog. She was very hurt and distressed when Patricia threw her job card paper at her.
81 The plaintiff presented to Dr Too for a work-related injury on 8 November 1999, at which time she was reluctant to be treated as WorkCover.
82 The plaintiff first saw Dr Chong at the referral of Dr Too on 6 November 2000.
83 On 22 May 2009, Dr Chong reported to Allianz that the plaintiff’s employment with the defendant contributed significantly to her current psychiatric disorder. In addition to physical injury, he also referred to work pressure (to do a heavy job) abusive remarks from her supervisor, Patricia, and loss of employment in August 2001. He advised that the plaintiff’s psychiatric condition had continued unabated since the development of her injury.
84 Dr Chong reported to the plaintiff’s solicitors on 24 December 2009 that in 1999, the plaintiff suffered pain and swelling in her right wrist and pain in her neck associated with her employment.
85 In that year, the plaintiff was transferred to work in the cable section under Patricia for seven months. Patricia was very bad. She treated the plaintiff like a dog, ordering her about and scolding her.
86 The work in the cable section was heavy and hard. The plaintiff had to cut and carry cables that were long and heavy. After working there for a few months, the plaintiff’s hands were sore and she explained this to Patricia, but Patricia did not listen to her. The plaintiff saw a Chinese physician on her own because she was afraid to claim for WorkCover, and she continued working.
87 In November 1999, Patricia gave the plaintiff a job where she had to clip cables with her hands. This job was too difficult and both her hands were unbearably painful. The plaintiff saw a doctor on 7 November 1999, who recommended restricted duties.
88 The plaintiff returned to work the next day in the packaging section. Patricia told her to work in the cabling section when she finished packaging. The plaintiff explained she could not do cabling because her hands were painful. Patricia shouted at her, saying:
“This paper [job card] says you can’t do this and you can’t do that. You
are always complaining about your job.”
89 Patricia threw the paper at the plaintiff and caused the plaintiff to be very hurt, distressed and humiliated. The plaintiff went to see the first aid lady later that day. The plaintiff also saw Dr Too, who put her on WorkCover and recommended light duties.
90 On mental state examination on 6 November 2000, the plaintiff was depressed in her mood, she was upset and angry that she was injured and that she had been pressured and abused by Patricia. Dr Chong noted there was morbid pain preoccupation and behaviour.
91 Dr Chong thought the plaintiff’s mental condition was consistent with stressors at work, namely the unsympathetic and verbally abusive remarks directed at her by Patricia and the pressure to be productive and do heavy duties and the loss of her employment in August 2001.
92 Mr Thien, neurosurgeon, first saw the plaintiff on 12 July 2001.
93 He noted that the plaintiff had been complaining of left shoulder pain for at least two years prior to that consultation. She worked in a factory as a process worker and in 1995, she worked in “the coil section”.
94 Recently that section had been closed down and the plaintiff had been working in “the cable section”. Her work involved applying connections to the cables, putting them into rolls and packing them onto a trolley. The plaintiff estimated those coils weighed between two and ten kilograms. She complained to Mr Thien that the application of these connectors was difficult and caused pain at the base of her right thumb. With constant lifting, she had been complaining of left shoulder pain for at least two years.
95 Mr Thien noted in his discussions with the plaintiff that her pain had been persistent for such a long period of time and was causing considerable dysfunction in her family life. He thought she also appeared to be suffering from a reactive depression to her current situation when he reported in December 2009, having last reviewed the plaintiff on 23 August 2002.
96 Dr Lim, consultant in rehabilitation medicine, wrote to Dr Phong on 3 May 2002, after having seen the plaintiff.
97 Dr Lim thought the major cause of the plaintiff’s pain was myopathic in origin and due to a myofascial pain syndrome.
98 Dr Lim advised, obviously the cause was related to the plaintiff’s work where she changed from working on circuits, which was a lighter, more fiddly task, to the physically more taxing one of cutting cables. She was then required to carry the cables with her left upper limb on the non-dominant side.
99 After seven months of this work, the plaintiff complained of pain. Unfortunately, she claimed to not being well treated by her supervisor, who it would seem spoke extremely harshly to her. Dr Lim thought the plaintiff was still suffering from the impact of that event or events.
100 Dr Lim thought the plaintiff’s emotional state was more significant than the myofascial pain component, in particular related to her perceived mistreatment by her previous supervisor. Dr Lim noted, obviously that was compounded by the fact the plaintiff was a refugee who came from Cambodia about twenty years ago.
101 The plaintiff first saw Dr Kornan, psychiatrist, for medico-legal purposes on 27 November 2009. The plaintiff told him at work there was neck pain and it went into her left arm and hand, and then to her right arm, and the wrist was swelling and then it got to both legs. Those symptoms came on slowly from repetitive work. The symptoms built up and the plaintiff stopped work in 2001.
102 The plaintiff told Dr Kornan she always had a dream that the lady boss had abused her and was chasing after her.
103 Dr Kornan concluded the plaintiff was a woman who gave a history of developing pain in 1999 in her neck which had subsequently gone into both arms. She felt she was in repetitive work and the pain came on slowly.
104 From a psychiatric viewpoint, Dr Kornan felt the plaintiff presented with Major Depression and a Chronic Pain Disorder, a diagnosis he confirmed after a further examination on 21 October 2010.
105 Mr Charles Flanc, vascular and general surgeon, examined the plaintiff for medico-legal purposes on 18 August 2010 on behalf of her solicitors.
106 Mr Flanc noted it was extremely difficult to obtain a comprehensive history from the plaintiff because she was so upset. With perseverance he obtained a history, with assistance also from the plaintiff’s affidavit and Dr Too’s report.
107 The plaintiff told Mr Flanc that she was moved to the cable section in 1999. The work was performed while standing and alternating between two jobs, assembling and cutting.
108 The plaintiff stated that after seven months she gradually developed pain in her left shoulder, neck, right thumb and both knees. She could not remember the exact sequence of those symptoms.
109 The plaintiff attended Dr Too in November 1999, who advised her to start working four hours a day, three days a week, but the plaintiff was pressurised by her supervisor to do more work and increase her working hours.
110 The plaintiff told Mr Flanc that she took annual leave in December 1999 and returned to light duties after a month.
111 Mr Flanc concluded the plaintiff was a dominantly right-handed woman who developed left-sided neck pain, spreading into the left shoulder and left upper extremity during 1999 whilst working in the cable section with the defendant. She also developed pain in her right thumb and knees.
112 Mr Flanc noted that an assessment of the plaintiff’s physical injuries was particularly difficult because of a Major Psychiatric Disorder.
113 Dr Nathar, psychiatrist, examined the plaintiff for medico-legal purposes on 2 March 2010.
114 Dr Nathar noted the plaintiff was recurrently upset in the interview when describing what happened at work.
115 In a very upset, agitated and tearful state, the plaintiff told Dr Nathar her problems began in 1999 when she was changed to the cable section. There the job was more difficult and she had to push cables and small parts into boxes. She started to develop pain in the left shoulder, arm and neck area. At the same time even her right thumb was painful and recurrently swollen.
116 At times the plaintiff had to pull some heavy cables and the heavy forceful nature of her work forced her to have pain and recurrent swelling in both knees.
117 However, the plaintiff did not go on WorkCover but kept working as long as possible until one day she described that the supervisor, Patricia, asked her to do a particular job.
118 At that stage, the plaintiff was experiencing a lot of pain and thought she could not cope with that particular job of using both hands to push cables or coils into a compartment. The plaintiff told Patricia she could not do the job but when she got better the next day, she hoped she would be able to do it.
119 The plaintiff claimed that Patricia became angry at her and threw away her job card and said something along the lines of: “You are always complaining you can’t do this; you can’t do that; there’s nothing you can do.”
120 This took place in front of all the other workers and they stopped and there was silence as they watched on. The plaintiff felt very embarrassed and humiliated and started to cry. She then went to first aid and was sent home.
121 The plaintiff saw her doctor, had a few days off work then returned to work. However, from that moment onwards she felt very different at work. She looked around her and thought everyone was just staring at her and she felt ugly and no one wanted to talk to her.
122 Dr Nathar thought the plaintiff initially developed a problem with pain due to the nature of her duties and she also claimed then a significant deterioration in her relationship with her supervisor who humiliated her in front of other workers.
123 Dr Nathar considered the combination of these two incidents at work precipitated the original physical problems which were then compounded by a rather significant anxiety and depressive reaction which then combined to produce a pain disorder leading to a chronic state of psychiatric ill health.
124 Dr Nathar thought the plaintiff had a combination of a major depressive illness with a Chronic Pain Disorder involving psychological factors and general medical conditions.
The Defendant’s Medical Evidence
125 A number of Dr Too‘s reports to the worker’s compensation insurer were relied upon by the defendant.
126 Dr Too reported to MMI on 9 March 2000. In addition to diagnosing soft- tissue injuries, he mentioned one episode of anxiety secondary to an incident at work with the plaintiff’s supervisor.
127 In that report, and also a report dated 3 October 2000, Dr Too set out the plaintiff first presented to Access Medical Centre on 7 November 1999 with left shoulder pain where she was seen by Dr Soliman, who prescribed her Voltaren.
128 The next day the plaintiff consulted Dr Lim. The plaintiff was then in tears and upset as her work supervisor did not believe her claim of bilateral wrist pain and left shoulder pain. The plaintiff was certified unfit for work from 8 November until 10 November 1999.
129 The plaintiff consulted Dr Too on 10 November 1999. Dr Too obtained a history from the plaintiff which he described as adequate enough for the purpose of treatment. He noted the plaintiff had been a process worker with the defendant for about five years and during 1999 she was transferred to the cable cutting section.
130 About a month later, she complained of pain in both forearms, both wrists and the left shoulder. She was very upset with her work supervisor who did not believe her pain. The work supervisor told the plaintiff’s friends that the plaintiff was complaining about how she “cannot do this job and that job”. The plaintiff claimed the supervisor yelled at her. The plaintiff believed that she was being treated like a dog.
131 The plaintiff had been asked to produce a statement that she had consulted Dr Soliman on 7 November 1999, and a certificate to this effect was issued by Dr Too.
132 Dr Too reported to Allianz on 10 April 2001, describing the attendance with the plaintiff on 7 November 1999 in further detail. In addition to her physical injuries, the plaintiff complained of difficulty falling asleep. She was anxious, depressed, tearful and easily upset. She was very keen to return to normal duties but her pains prevented her from doing so. She was afraid she would lose her job.
133 Dr Too referred the plaintiff to Dr Chong, psychiatrist, on 16 November 2000 for further management of her work related anxiety and depression. The plaintiff was found to suffer from depression, reactive to work injury, pressure and abuse.
134 Dr Too noted in that report that the plaintiff found her new supervisor to be more understanding and sympathetic towards her injuries, but the plaintiff was still abused by her workmates as of 6 November 2000.
135 Dr Too reported to Allianz on 2 October 2001 that the plaintiff complained of pain in her neck, left shoulder, left forearm, both thumbs and wrists and both knees – injuries sustained due to her work on 8 November 1999. He thought the plaintiff suffered from anxiety and depression secondary to a work injury, work pressure and work abuse.
136 On 18 May 2001, the plaintiff was very upset, stressed and anxious when somebody wrote a message on her locker reading: “Don’t be greedy, take so many lockers, take the key back”.
137 Dr Too reported to Allianz on 19 June 2002, noting the history of the plaintiff working as a process worker with the defendant.
138 He noted that in about June 1999, the plaintiff’s life was shattered when she claimed she was ill-treated by her supervisor. She was then afraid to go out for fear that she may meet her friends who may ask her why she was not working. She was too ashamed and embarrassed to tell them the reasons and her medical condition.
139 One of the plaintiff’s objectives in coming to Australia was for gainful employment and she, at that time, felt so depressed and guilty about being unemployed.
140 Dr Too thought that in addition to her physical injuries, the plaintiff was suffering anxiety and depression secondary to work injury, work pressure and work abuse.
141 Dr Chong reported to Allianz on 13 June 2003.
142 Having described the plaintiff’s problems on having been transferred to the cable section in May to June 1999, Dr Chong noted that the plaintiff explained her problems to her supervisor who did not listen to her.
143 In November 1999, having given up clipping cables because it was too painful for her, the plaintiff attended a doctor on 7 November 1999 who recommended restricted duties.
144 On her return to work the following day, the plaintiff had an humiliating encounter after she told Patricia she could not do cabling because her hands were too painful. Patricia shouted and threw the plaintiff’s job card at her. As a result of the incident, the plaintiff was very hurt and distressed.
145 Dr Chong concluded that the plaintiff suffered injuries to her hands and left shoulder working in the cable section from May-July 1999. Since then she had suffered chronic symptoms of pain, distress, anxiety, irritability and depression. He thought mentally her symptoms were consistent with Chronic Pain Disorder associated with psychological factors and Major Depression.
146 Dr Jackson, psychiatrist, examined the plaintiff on 6 September 2001.
147 When Dr Jackson asked the plaintiff about her injury of 8 November 1999, she told him she was lifting a cable for eight hours a day when she injured her left shoulder and arm.
148 Dr Jackson noted his entire assessment was dominated by the plaintiff’s extraordinary response to questions.
149 For example, when he asked her what was the sequence of events after she was injured, the plaintiff repeatedly said that she “told the supervisor” and later indicated that the supervisor was not sympathetic regarding her plight.
150 Having had such difficulty with the interview, Dr Jackson initially concluded that under those extraordinary circumstances, he could only offer the opinion that the plaintiff did not have any psychiatric condition which was significantly related to her work, at least in terms of the Act.
151 During re-examination on 13 May 2002, the plaintiff regularly returned to the theme that her work supervisor did not believe her regarding her symptoms, disabilities and inability to work.
152 Dr Jackson thought that the plaintiff’s chronic problem which, at face value, was basically chronic pain, could not be attributed to any organic pathology, particularly any organic pathology that arose at her work. He thought, at face value, the plaintiff had chronic depression which presumably was the basis for her treatment by Dr Chong.
153 Dr Jackson re-examined the plaintiff on 9 January 2006. He again took a medical and work history, particularly to do with the date of injury – 8 November 1999. This history was essentially consistent with what had been taken in prior reports.
154 The plaintiff said, however, around that date, she described developing pain in the left shoulder, as well as pain in her neck and left hand. By her account, she reported this to her supervisor.
155 The plaintiff told Dr Jackson that her supervisor had responded in an inappropriate and angry manner. Using some notes she had brought with her, the plaintiff demonstrated that her supervisor had thrown the job card at her by throwing the notes across her desk. The plaintiff seemed to be saying that the supervisor had made it clear that she could not accept the need for restrictions given the type of work.
156 Dr Jackson concluded he remained of the opinion that the plaintiff had a very fluctuating presentation consistent with depression secondary to chronic pain. He noted it was obviously increasingly difficult to attribute her chronic pain to her employment around 1999; however, her treating psychiatrist and others still attributed her pain to an ill defined physical injury, which in turn was related to her employment at that time. He noted there was also general agreement that the behaviour of her supervisor in 1999 with the associated demands of the plaintiff’s work and also the eventual loss of her job, contributed to her current psychological state.
157 Dr Jackson commented that the plaintiff remained very difficult to assess but it was his basic opinion that the only links between her work around November 1999 and her present state were secondary to a physical injury that in the past at least was attributable to her employment.
158 His diagnosis remained that of a very unusual depressive illness where the only connection with the plaintiff’s employment was secondary to an unusual and ill defined chronic pain, which in turn is attributed to her employment.
159 Dr Fail, psychiatrist, examined the plaintiff on 9 February 2001, at which time she was working four hours a day, three days a week.
160 The plaintiff told him of her injuries to her left shoulder, arm and knee, and also her right thumb.
161 The plaintiff told him she was previously very happy with her work, which was easy until she was transferred to heavier duties.
162 When she injured herself, her supervisor was very unsympathetic to her and was irritated with her when she complained that her hands were sore. This upset the plaintiff every much.
163 On examination, Dr Fail found the plaintiff to be suffering from a chronic adjustment reaction arising secondary to her physical injury. He thought she was suffering no current work incapacity in that regard.
164 The plaintiff was examined by Mr Moran, orthopaedic surgeon, on 11 August 2000, 8 October 2001, 20 May 2002, 6 April 2004 and 21 December 2005.
165 On the initial examination, the plaintiff told Mr Moran that in May or July 1999, the section where she worked was closed down and she was transferred to the cable section. There she had to cut over ten kilograms of cables per day and put the cables on a table on her right side. The work was very repetitive and she developed pain and swelling in both wrists, pain around her left shoulder, which radiated up to her neck, and pain in her left eye. She also said she developed a bit of pain in both knees when she was working standing and pulling the cables.
166 The plaintiff reported her symptoms to her supervisors and her duties were changed but this made no difference.
167 On 5 November 1999, the plaintiff had severe arm pain, and on 7 November 1999, she consulted her doctor, who prescribed tablets. The plaintiff had three days off work and then worked one day, but her pain became worse so she had a further week off work.
168 Mr Keith Elsner, orthopaedic surgeon, examined the plaintiff on 20 September 2001.
169 The plaintiff told him that from 1995 until early 1999, she was involved in the assembly of small coils and apparently had no problems coping with that work.
170 A few months prior to the onset of her symptoms, the plaintiff was moved to the cable assembly area and around May 1999, she started to develop pain in both hands, particularly the thumbs, and in the left shoulder and at the back of the neck.
171 Mr Elsner noted there was no isolated injury, but rather the plaintiff felt that the repeated bending, stretching, cutting cable and lifting rolls of cable weighing from two to ten kilograms, about twenty rolls per hour from a machine whilst standing, produced the symptoms.
172 The plaintiff told Mr Elsner that her symptoms first started in about May 1999 but apparently she did not seek any medical attention until she attended the Access Medical Group in November 1999 with left shoulder pain, according to Dr Too’s report.
173 Mr Polke, orthopaedic surgeon, examined the plaintiff in May 2002 and December 2005.
174 The plaintiff told Mr Polke that from 1999 she was moved to the cable assembly area and started to develop pain in both hands, particularly in her thumbs, her left shoulder, the back of her neck and left knee.
175 Her work was repetitive and included repeated stretching, lifting coils of cables weighing between two to ten kilograms to the cutting machines, having to work on some twenty rolls an hour.
176 The plaintiff said although her symptoms commenced around May 1999, she did not seek any medical attention until November 1999. She was then put off work until a return to light duties in February 2000.
177 Mr Polke thought the plaintiff suffered from a Chronic Pain Disorder associated with psychological factors and Major Depression, as documented by Dr Chong.
178 Mr Brian Davie, orthopaedic surgeon, examined the plaintiff on 24 June 2009 and 23 September 2010.
179 The plaintiff told him of her later work making cables which included assembly work, cutting and sitting and standing tasks.
180 The plaintiff told Mr Davie that sometimes the cables needed to be lifted and they might weigh up to ten kilograms. She was also required to push heavy trolleys.
181 The plaintiff described an injury as occurring on 8 November 1999 when she was cutting cables and using her left hand to put the cable on her trolley. Apparently the cables were quite heavy, weighing up to ten kilograms, and she was handling many of them, as well as pushing wires with her thumbs in a repetitive manner.
182 The plaintiff told Mr Davie that she developed swelling of her hands, particularly around the thumbs, as well as symptoms of pain in the left shoulder and in her left arm and neck. She described pain as being of gradual onset, reporting the symptoms at the workplace and being told to keep working.
183 The plaintiff told Mr Davie she was unable to manage her work duties due to her symptoms of pain, at which time she was apparently abused and went home. The plaintiff consulted her general practitioner, who provided a certificate, with her resting for several days, but her symptoms did not improve.
184 Mr Davie concluded the plaintiff had sustained a strain of both thumbs and arms. In his opinion, that may have arisen in the manner described at work on 8 November 1999.
185 Mr Davie thought the plaintiff had physically recovered from her injuries, with her present symptoms related to psychological factors, litigation, anxiety and depression.
Vocational Evidence
186 The plaintiff’s workplace was assessed by Combrook on 31 January 2000 to identify suitable duties and to prevent the risk of symptom aggravation.
187 The plaintiff stated that in August 1999, she was placed in the cable department where she was trained to operate the cable cutting machine. She reported that after three to four weeks in this area, she developed pain and inflammation to both her forearms, and stated that the pain radiated into her left shoulder.
188 The plaintiff reported this to her supervisor, who subsequently recommended that she not undertake the cable cutting duties. The plaintiff stated that despite her complaints, she continued to undertake these tasks.
189 During this time, the plaintiff reported she was moved to a battery cable area recommended by her supervisor in an attempt to alleviate the symptoms.
190 On 5 November 1999 however, the plaintiff stated her symptoms became increasingly worse and she consulted a Chinese naturopath.
191 On 8 November 1999, the plaintiff stated that her supervisor delegated her the task of packing twenty-five metre cables. The plaintiff reported that she communicated to her supervisor that she was not able to undertake these duties due to severe pain in her forearms, and stated that her supervisor became verbally aggressive, saying she wanted the plaintiff to undertake the duties.
192 The plaintiff stated she continually reported her pain to her supervisor on several occasions, but reported that her concerns were not being addressed.
193 On 8 November 1998, the plaintiff saw her general practitioner, who issued a certificate of incapacity for three days.
194 As at the time of the assessment, the plaintiff was being certified fit for light duties.
Overview
195 The onus is on the plaintiff to establish that she has suffered an injury arising out of or in the course of or due to the nature of employment on or after the relevant date to bring proceedings pursuant to s.134AB of the Act.
196 In Barwon Spinners v Podolak [2005] VSCA 33, the Court of Appeal considered it critical for a worker to identify:
“... for the purposes of subs (1), compensable injury that is referable to employment on or after 20 October 1999 but not to employment before it. Without that identification, the plaintiff fails to establish how far and to what extent s 134AB applies and in particular to what specific injury the section applies (including the leave provision in subs (16)(b)), which means in turn that the plaintiff fails to establish just what was the injury that has to satisfy the description ‘serious injury’ if leave is to be given. To put it another way, it is that injury which is linked to employment on or after 20 October 1999, and only that injury, which s 134AB addresses — first, in prohibiting a common law proceeding for damages in respect of it ‘otherwise than as permitted by and in accordance with this section’ and, secondly, in authorising such a proceeding, but only on the strict conditions laid down by the section.”
197 As the Court of Appeal stated in Barwon Spinners, in that part of the judgment concerning the appeal in St Laurence Community Services v Gledhill at paragraph 139:
“In our opinion it was critical in this instance for the plaintiff to identify, for the purposes of subs (1), compensable injury that was referable to employment on or after 20 October 1999 but not to employment before it. Without that identification, the plaintiff could not establish how far and to what extent s 134AB applied to her case and accordingly could not establish to what specific injury the leave provision in subs (16)(b) might apply — which meant in turn a failure to establish just what was the injury that had to satisfy the description ‘serious injury’ if leave was to be given. As earlier noted, so much appears to have been accepted by the plaintiff in her originating motion, for she was seeking there, in so many words, leave to bring a proceeding against her employer for ‘personal injuries suffered during the course of her employment … on very frequent occasions between the 20th October 1999 and approximately 27th April 2001’. Unfortunately for the plaintiff, the evidence simply failed to establish just what those injuries were.”
198 Thus, it is incumbent on the plaintiff to establish by probative evidence and with some specificity:
(a) what injury is relied upon; (b) further, that that injury is referable to employment on or after 20 October 1999. 199 Therefore, the plaintiff cannot rely upon an injury sustained prior to October 1999 to underpin a claim under s.134AB.
200 Counsel for the defendant submitted this was the situation in the present case and that there was no compensable injury after the relevant date, that the plaintiff suffered mental injury as a result of an ongoing physical injury process starting in mid 1999. As part of that physical injury, there were expected psychiatric consequences such as anxiety and frustration, upset about the heavier nature of her work and general unhappiness at work, about which the plaintiff had complained to fellow workers.
201 It was submitted that “the genesis of the plaintiff’s ultimate medical condition was in mid 1999. It clearly had its seed in mid 1999, both from a physical and mental basis, and it is obvious enough that from that seed a very large tree had grown, in the sense that injury had led to one thing after another, and to a severe mental condition with widespread kind of chronic pain, it seems, in conjunction with severe depression”.
202 On that basis, it was submitted that the plaintiff’s problems were associated with work before the relevant date rather than an isolated incident on the said date, and that Dr Too and Dr Chong were supportive of an earlier onset, as was the history given by the plaintiff set out in the Combrook report.
203 In such circumstances, Counsel for the defendant submitted that Chernov AJ, at paragraph 2 in Grech (supra), really summed up the issue and that the facts in this case fell into the first scenario described by him, namely that there has been an ongoing or evolving injury beginning prior to the relevant date which manifested itself thereafter and could therefore not be regarded as a compensable injury for the purposes of subsection (1) of s.134A.
204 In this regard, Counsel for the defendant also relied upon paragraphs 121 and 122 of Jovanovska v Betta Foods Pty Ltd [2009] VSCA 98.
205 However, taking into account all the evidence, I do not accept that there was an injury evolving from before the relevant date requiring an analysis of the principles set in Grech in relation to a pre-existing condition with its origins in the statutory “black hole”, as in the present case there was a discrete injury on the said date.
206 In my view, the incident on the said date was a new supervening event founded on a whole new compensable injury. It was not part and parcel of the workplace issues which had been ongoing since the plaintiff had been transferred to the cable section.
207 Taking into account all of the evidence, I am satisfied that the plaintiff suffered a compensable psychiatric injury which has been accepted as “severe” when she was involved in an altercation with Patricia on the said date.
208 Whilst her duties had been changed to the cabling section some time between May and July 1999, and the plaintiff had developed increasing problems of a minor degree with both upper limbs and thumb before the relevant date, save for a visit to the doctor in July 1999, the details of which are unclear and seem to relate more to headaches and women’s problems, she did not require medical attention for those conditions until the first week of November 1999.
209 Whilst there may have been the onset of these physical problems as early as June 1999 and the transfer to the cable section (Dr Too noted one month after June and Dr Chong after the transfer in August 1999), although at times her evidence was at times confusing, the plaintiff insisted that her physical problems arose much later, leading to the need for medical attention in November 1999.
210 I accept, as submitted by her Counsel, that the plaintiff’s work history in that period, working full time and overtime on Saturdays, was not indicative of a person experiencing much in the way of symptoms. Further, there was no evidence of the plaintiff having difficulty at work before November 1999.
211 In that period, although she may have been unhappy about the change in her duties and also upset by the increase in her physical symptoms, the plaintiff did not require any medical attention or medication, complain of any psychiatric problems or require any time off work until after the incident on the said date, 8 November 1999.
212 Further, whilst the plaintiff may have been treated badly by her supervisor, Patricia, before the relevant date, until the said date, I do not consider that she had suffered a compensable psychiatric injury relating thereto or to any other work factors prior to the relevant date.
213 I do not accept that as of June 1999 the plaintiff was shattered by her relationship with Patricia, as Dr Too mentioned in his report to Allianz in June 2002. This reference was made by Dr Too in the context of the plaintiff ceasing work and comments made by fellow workers critical of her and wanting to ask her the reason for her absence from work. Clearly, the plaintiff did not stop work until after the said date, not in June 1999.
214 When the history of being shattered in June 1999 was put to the plaintiff, her reply was simply that she, Patricia, did not treat her very well.
215 The plaintiff’s evidence is unclear as to when Patricia treated her like a dog. On one view the plaintiff’s evidence was that this occurred on the said date. Whilst it may be that Patricia treated her like a dog before the relevant date, the plaintiff continued working full time with overtime and she enjoyed her wok. She did not seek medical attention after the relevant date and had no requirement for medication until November.
216 Whilst the plaintiff said the supervisor at work was not that good, “She wasn’t that friendly, but I continued to work. I enjoyed working, so not much pain in my body”.
217 Whilst the onus is on the plaintiff to establish compensable injury after the relevant date, there is no evidence from Patricia or any other evidence from the defendant disputing the plaintiff’s version of the incident.
218 I accept the submission of Counsel for the defendant that the issue of the date of compensable injury has not really been tackled by any medical specialist whose evidence is before the Court.
219 Messrs Polke, Moran, Elsner, Thien and Flanc simply addressed the plaintiff’s physical injury and its onset, making no reference to the incident on the said date.
220 Dr Nathar puts the incident and problems with Patricia later on in 1999, as does Dr Lim and Dr Jackson, who link them to the said date. Doctors Fail and Kornan did not mention an incident date.
221 There are no contemporaneous clinical notes in evidence detailing any examination by Doctors Chong or Too before November 1999. I consider their reports written at a later time are vague as to the date of onset of the plaintiff’s mental problems in particular insofar as they relate to her treatment by Patricia.
222 As counsel for the plaintiff submitted, this is not a trial by medical reports but a trial on all the evidence available.
223 At times the plaintiff’s evidence was confusing, but not unreliable and selective, as submitted by Counsel for the defendant. I accept that on the whole she was truthful and that there were language difficulties when she gave her evidence in somewhat disjointed English.
224 Whilst harassment or bullying of the nature that took place on the said date was not claimed specifically in the Statement of Claim, this application was brought on the basis of a psychiatric claim arising from work with the defendant after the relevant date
225 I find the incident on the said date is a material cause of the plaintiff’s present psychiatric condition, diagnosed by most medical practitioners as a severe depressive reaction.
226 Having found the plaintiff suffered a compensable injury on the said date and the defendant having conceded the plaintiff has a severe psychiatric impairment, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering.
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