Lorenzo v QBE Management Services Pty Ltd
[2015] VCC 1028
•31 July 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-01960
| ZENAIDA LORENZO | Plaintiff |
| v | |
| QBE MANAGEMENT SERVICES PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 and 30 June 2015 | |
DATE OF JUDGMENT: | 31 July 2015 | |
CASE MAY BE CITED AS: | Lorenzo v QBE Management Services Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1028 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to right and left wrists – Chronic Pain Syndrome – disentangling of physical from psychological consequences – pain and suffering and economic loss – whether consequences “very considerable” – whether 40 per cent loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(37), s134AB(16)(b)
Judgment: Leave granted in respect of pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The plaintiff appeared in person | - |
| For the Defendant | Mr I Gourlay | Wisewould Mahony |
HIS HONOUR:
Preliminary
1 In late 2005, the plaintiff, Ms Lorenzo, developed pain in her right hand and wrist, and a short time later, felt the same pain in her left hand and wrist, in the course of her employment duties with QBE Management Services Pty Ltd (“QBE”). Those duties involved data entry and filing, processing claims files, carrying files and photocopying. She remained working, although her hours were reduced to 30 hours a week.
2 Ms Lorenzo has consulted a range of practitioners and been prescribed various medications. She has undertaken a rehabilitation program in 2006 and 2007.
3 As a result of the ongoing pain, she has developed a depressive condition. According to many practitioners, she has also developed a Chronic Pain Syndrome. Her employment in February 2012 was terminated and she has not worked since. She claims a range of recreational, domestic and social activities have been lost or restricted.
4 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injuries suffered in Ms Lorenzo’s employment with QBE from 2004. The body functions said to be lost or impaired are the left and right wrists. In addition, Ms Lorenzo claims to have suffered a permanent severe mental disturbance or disorder in the nature of a Chronic Pain Syndrome; and/or a Major Depressive Disorder. The application is thus brought under ss(a) and (c) of the definition of “serious injury” contained in s134AB(37) of the Act and leave is sought in respect of pain and suffering and loss of earning capacity.
5 Ms Lorenzo, and the defendant’s consultant rheumatologist, Dr Kostos, were the witnesses called to give evidence and be cross-examined. In addition, several affidavits of Ms Lorenzo, medical and radiological reports and clinical notes were tendered into evidence. I shall not refer to all of this material in the course of this judgment, but rather those parts of the evidence and reports which appear to me to be most relevant and which I have considered in coming to the conclusions referred to later in this judgment. That is particularly so, given that on behalf of Ms Lorenzo, there were thirty-two reports from eleven medical practitioners tendered into evidence, and for the defendant, twenty-eight reports from eighteen practitioners.
6 The statutory scheme set forth in the Act, which prescribes and regulates applications of this nature, and the principal authorities of the Court of Appeal are well known, and it is unnecessary for me to revisit the various relevant sections and those authorities.
Relevant background
7 Ms Lorenzo was born in the Philippines and she is now fifty-seven. She migrated to Australia in 1989. She completed her secondary education in the Philippines and completed a Bachelor of Science/Commerce degree at the University of the Philippines. She was married in 1980, but her husband died in the Iran/Iraq War. She was married twice more in Australia and in each relationship, she suffered domestic violence.
8 Between 2000 and 2005, Ms Lorenzo worked as an advocate and case manager for women’s immigration services. This involved supporting, and advocating for migrant women.
9 In March 2004, Ms Lorenzo commenced work for QBE, initially as an accounts manager in the pharmacy division. In 2008, she became an “access to information officer”, and in 2010, an administrative assistant in the impairments benefits team. Her employment was terminated in February 2012.
10 Up to 2004, she enjoyed a range of domestic pastimes, in particular cooking. She had obtained a certificate in hospitality while her children were at school in about 1999. She was able to do all work around the house including washing and ironing. She socialised with friends and enjoyed gardening.
11 In October 2006, she was involved in a transport accident. The vehicle she was travelling in was struck from behind. She suffered injury to her neck, lower back and left shoulder. To the present time, she still suffers pain in her neck and lower back, with referred pain down the left leg. She is anxious in cars, particularly when cars are following close behind. In cross-examination, she said that the transport accident and consequent injuries were now “not part of my life”.
The injury to the left and right wrists and the consequences
12 From the commencement of her employment with QBE in March 2004, Ms Lorenzo was required to undertake data entry, which she said was repetitive and required her to process large volumes of data material. In December 2005, she developed pain in her right wrist and thumb. In March 2006, she began to feel pain in the left wrist. By July 2006, the pain had increased to the level where she sought medical treatment from her general practitioner and made a WorkCover claim. According to that practitioner, Dr Makar, she attended on 21 July 2006 complaining of pain in both wrists radiating to the elbows. He noted some tenderness over the forearm muscles, but there was a normal range of movement. He diagnosed tenosynovitis and prescribed analgesics and anti‑inflammatory medication. She was off work for a day or two. She returned to work on lighter duties with some restriction in repetitive movement and her hours were reduced, initially to 5 hours, three days per week, then increasing to 30 hours per week. She remained working on data entry, and in August 2008, became an “access to information officer”. This also required data entry and filing, and reorganisation and processing of WorkCover claim files. There was also lifting of heavy files.
13 In August 2008, she was off work for a short period, and after she resumed, her condition continued to deteriorate. She was told in September 2008 that there were no further duties, and she remained off work for about ten weeks. She returned to work in December 2008 as an administrative assistant in the impairment benefits area and again, her hours increased to about 30 hours per week. This work involved preparation of letters, arranging travel forms and payments and processing of information.
14 Ms Lorenzo felt unsupported at work in these tasks and said the pressures placed upon her were unrealistic, given her injury. She had to use her left and right arms to do photocopying and file documents.
15 In February 2012, her employment was terminated. As I have said, there were no duties available to her. She has not worked in any capacity since that time. In the course of cross-examination, she said she was unable to undertake any form of employment because of the constant pain and restriction in movement of her wrists.
16 In terms of treatment, she was referred by Dr Makar to Dr Mark Patrick, rheumatologist, whom she saw in October 2006. He obtained a history of constant and increasing discomfort in both wrists, hands and forearms. There was some numbness and paresthesia at night, although subsequent investigations ruled out carpal tunnel syndrome. His impression was that Ms Lorenzo was suffering a myofascial repetitive use pain syndrome. He prescribed Endep for use at night as a muscle relaxant. Nerve conduction studies to both wrists were normal. He said her condition was work-related and that “the persistence of symptoms beyond 12‒18 months can suggest [contribution by] other factors including personality traits, perceptions of pain and cultural responses, stress/anxiety, dependence and [joint protection]”.[1] He suggested she should avoid manual handling tasks and repetitive use of the hands. He last treated Ms Lorenzo in September 2008, although he provided a further report of May 2015, having again examined Ms Lorenzo the month before. He noted serological tests, nerve conduction studies, and ultrasound studies of both wrists and elbows were all normal. He said her clinical condition had not changed over the years, and despite a multi-disciplinary pain management program, she still suffered constant pain in both arms. When he examined her, he noted normal movements of her wrists, fingers and elbows. Neurological examination was normal. He continued to be of the view that she was suffering a myofascial pain syndrome.
[1]Court Book (“CB”) 75
17 Ms Lorenzo continued to attend Dr Makar and was prescribed a range of medication, including Panadol Osteo, Nurofen, Avapro, Mobic and Voltaren.
18 In late 2006, and for a considerable period in 2007, Ms Lorenzo was treated under a rehabilitation program at the Epworth Rehabilitation Centre in Dandenong. This involved a range of modalities including physiotherapy, massage, osteopathic treatment, acupuncture and psychological assessment. It was recommended Ms Lorenzo increase her hours of employment and undertake home exercises. It was assessed that she could perform manual handling tasks, lifting up to 5 kilograms, and that overall, her mood, sleep, energy and stress levels improved as a result of the program. She continued to see Dr Mithu Palit, rehabilitation physician at Epworth, from time to time in 2008, and it was noted that despite the best efforts at rehabilitation, she continued to suffer pain in both wrists and forearms.
19 Ms Lorenzo remained under the care of Dr Makar and in 2008, was treated by an osteopath. In March 2011, she undertook a further rehabilitation program at the Victorian Rehabilitation Centre in Glen Waverley at the suggestion of Dr Clayton Thomas, to whom she had been referred by Dr Makar. He observed that she had tenderness in a non-specific pattern over both wrists and forearms and thought that the problem was work-related. He thought there was a psychological component to her problems.
20 In June 2012, Ms Lorenzo was referred to Ms Bernadette Kelly, occupational and hand therapist, for treatment. There was some improvement in the levels of pain, and she was provided with exercises to strengthen and maintain functional use of her hands, together with pain management. Ms Kelly thought Ms Lorenzo would have long-term problems with her hands. The treatment provided only moderate relief.
21 Dr Makar continued to provide medication, including Endep and Tramal. Her psychological condition deteriorated, and she was referred for psychological counselling in 2013 and 2014. Ms Megan Williams, psychologist, considered in 2014, she was suffering from a Major Depressive Disorder which included reduced mood, loss of interest in usual activities, reduction in feelings of pleasure, hopelessness and helplessness, social withdrawal, insomnia and reduced concentration and decision making. It was noted that she was unable to do the garden and her ability to be involved in dancing, which she had previously enjoyed, was reduced.
22 In October 2014, Ms Lorenzo changed to another general practitioner, Dr Catherine Tenni of Chadstone. She said she was not satisfied with Dr Makar, who was unable to provide any treatment to relieve her problems. When seen by Dr Tenni in October 2014, she had pain in the hands and lower arms on each side, which was “burning and aching [in] nature with electric shock-like pains and worse with activities”. A full range of movement was noted. There was general weakness of both hands. Dr Tenni concluded the plaintiff was suffering from a Regional Pain Syndrome and from Anxiety and Depressed Mood. She received a history that Ms Lorenzo had difficulty with cooking, cleaning and other domestic duties. Driving was painful. With treatment, Ms Lorenzo’s mood and anxiety improved to some extent and, more recently, the Regional Pain Syndrome was treated with Lyrica, which did not make any significant difference. Dr Tenni concluded:
“I believe that Zenaida has considerable impairment of function in the workplace and in her personal life which is attributable to her workplace injury in 2005/6.
In thinking about a return to work I believe that Zenaida can never go back to any employment which involves repetitive or heavy use of her arms or hands. She also has low back pain secondary to a car accident in 2006 and so cannot sit or stand for prolonged periods. Her ongoing adjustment disorder means that she is not suited to a stressful occupation. Practically Zenaida has no capacity for work.
In summary, Zenaida has a longstanding regional pain syndrome involving both her lower arms and hands and an adjustment disorder with significant anxiety and depressed mood. These problems stem from overuse of her arms and hands while doing data entry work in 2005/6. These conditions affect her day to day functioning and reduce her quality of life considerably. Due to the longevity of her condition I do not think her condition is going to change. I believe it to be permanent.”[2]
[2]CB104
23 Dr Tenni also provided Certificates of Capacity dated March and May 2015, which diagnosed Ms Lorenzo as suffering from a Regional Pain Syndrome and Depression, and which concluded that she had no capacity for any employment.[3]
[3]CB 105, 116
24 At the present time, the plaintiff continues under the care of Dr Tenni. She was referred for further counselling to Ms Annie Piper, psychologist, more recently. According to that practitioner, there has been some improvement in her psychological symptoms with treatment. She said that the symptoms, including low mood, loss of pleasure in activities, social isolation, feelings of hopelessness and worthlessness, effect upon appetite, sleep and concentration, with heightened levels of anxiety, constituted a diagnosis of Major Depressive Disorder.
25 Ms Lorenzo presently takes Lexapro, Mobic, an anti-inflammatory, and Lyrica at night. She also takes Valium from time to time, and Panadol Osteo.
26 According to her affidavits and evidence, at the present time, Ms Lorenzo still suffers pain in both wrists, extending up the arms to the elbows. The pain is constant and worse on the right side. She describes it as a burning pain in both arms, with electric shocks to the forearm. The pain fluctuates and is worse with activity, but is always present. She avoids sitting for long periods and standing for long periods. Walking is difficult.
27 Ms Lorenzo says she cannot lift objects of more than 2 kilograms and wears a special wrist support regularly. Her domestic activities are affected, including vacuuming, ironing, loading the washing machine, hanging out the washing, chopping vegetables, cooking, opening jars and undertaking personal care activities. She is able to drive, but is restricted to about 30 minutes. She is unable to undertake activities which she previously enjoyed including dancing, gardening, painting and drawing. She has had to pay for lawn mowing and gardening.
28 In addition, Ms Lorenzo feels depressed and anxious and becomes short tempered. She lives with her daughter, who helps with the housework. Her sleep is disturbed and she has to regularly change positions in bed to avoid discomfort. She finds it difficult to concentrate and think clearly. She has been on a Newstart Allowance since July 2012 and says she is unable to undertake any employment. Her social life is reduced and she has lost her best friend.
29 In the course of cross-examination, it was put to Ms Lorenzo that she was far more capable domestically than she portrayed. She was taken to two photographs from a social media site[4] which suggested that she had been able to prepare food dishes. I do not regard these photographs as significant and do not accept they impeach Ms Lorenzo’s credit.
[4]CB 242‒243
Consultant medical opinions
30 Ms Lorenzo was examined by Dr Kumar, psychiatrist, in May 2015. She presented to him as agitated, intermittently teary, depressed but cognitively intact, with good insight and sound judgment. In a rather short and abbreviated opinion, Dr Kumar considered Ms Lorenzo as suffering a Major Depressive Disorder.
31 QBE arranged for Ms Lorenzo to be examined by a number of practitioners.
32 The reports of Mr Stapleton, hand surgeon, are old and of little relevance; likewise the opinions of Dr Clark.
33 Dr Stern, psychiatrist, in 2010, thought Ms Lorenzo was suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He thought employment was a significant contributing factor.
34 The report of Dr Rose, psychiatrist, is also dated. He could not find any psychological or psychiatric condition from which Ms Lorenzo was suffering.
35 Dr David Fish, occupational physician, could find no clinical pathology, in particular no de Quervain’s tenosynovitis. He thought she was suffering from a Chronic Pain Syndrome.
36 Dr Karna examined Ms Lorenzo in 2010, 2012 and, finally, in 2014. He was unable to identify any structural musculoskeletal pathology to explain her pain in the forearms and wrists. He thought she was suffering a psychologically-driven Pain Syndrome. On each examination, he found no patterns of disuse in the forearms, no evidence of tendonitis, tenosynovitis, nor peripheral nerve entrapment. She had a normal range of movement, but was unable to exert any pressure on grip strength measurement. He said there were psychogenic stressors relevant to generating the Pain Syndrome and the extent to which they were work related was in the province of the psychiatrists.
37 Finally, Dr Tony Kostos, rheumatologist, examined Ms Lorenzo in May this year. He also attended Court to give evidence and be cross-examined. Like other practitioners, his physical examination was completely normal. She described to him constant pain in the hands, wrists and elbows which caused her sleeplessness and reduced grip strength. When he examined her wrists, movement was restricted by pain on both sides. He confirmed there was no evidence of tenosynovitis, and the appropriate medical test for de Quervain’s tenosynovitis was negative. In short, he said she suffered from no physical disabilities. He said:
“She has a chronic pain syndrome which is influenced by psychological and social factors with the roles of inherent personality traits, previous life experiences and the adaptability to cope with anxiety and stress becoming increasingly appreciated.”
38 In evidence, he said that he was speaking generally as to the reasons for Chronic Pain Syndrome, rather than referring to Ms Lorenzo’s case specifically. He said the Chronic Pain Syndrome was not related to her employment.
The transport accident and its consequences
39 On 13 October 2006, Ms Lorenzo was involved in a transport accident. The car she was travelling in was struck by another vehicle. She suffered injury to her neck and lower back. Pain and restriction to those areas has persisted through to the present time.
40 Mr Gourlay, for the defendant, submits the transport accident is relevant for two reasons: The first is that, to a range of doctors who have examined Ms Lorenzo for the purpose of the Transport Accident Commission (“TAC”) claim, she has said that she has suffered restriction to a range of social, domestic and recreational activities of the same or a similar nature to the restrictions she claims in respect of her work-related claim. Further, Mr Gourlay submits her credibility is affected in that, on the one hand, when she is examined by doctors in respect of the TAC claim, she attributes all of her problems to that claim, and when she sees doctors in respect of the WorkCover claim, she attributes all of her problems to that claim. It is necessary then to examine the reports of the doctors that she has seen for the purposes of the TAC claim.
41 In 2008, Ms Lorenzo was examined by Dr Clive Kenna, a pain management specialist. According to his report,[5] she said that prior to the transport accident, she was in good health. He diagnosed a discogenic injury to her lower lumbar spine. There is no reference in the report to any problem with her wrists.
[5]CB 159
42 Ms Lorenzo was treated by Mr Chris Xenos, neurosurgeon, in 2008. There is no reference to any wrist or hand problem.
43 According to a report of her general practitioner, Dr Makar, Ms Lorenzo was already off work in relation to the wrist claim.[6]
[6]CB 166
44 Dr Geoffrey Littlejohn, rheumatologist, examined Ms Lorenzo on behalf of the TAC in September 2009. She gave a history of symptoms in her hands prior to the transport accident and that she was only able to do modified computer duties as a result. According to the history —
“Nevertheless, Zenaida tells me she can arise, wash, toilet, dress, move about, shop, cook, clean by herself with only mild to moderate difficulty … She said she has decreased many activities that she previously did. She said she was active in the community but no longer is doing that type of activity. She finds gardening and vacuuming aggravate her low back.”[7]
[7]CB 171
45 He noted a normal range of motion of her shoulder, elbow, wrist and small joints of her hand.
46 Ms Lorenzo was examined by Dr Timothy Entwisle, psychiatrist, in September 2009. She gave a history of the development of pain in her wrists and forearms in the course of her work duties. The report records:
“Ms McColl (Lorenzo) described her interests as drawing, painting, movies, dancing, talking to friends and family gatherings. She notes since the problem with her wrists and later since the accident there had been a steady decline in the degree and nature of the quality of her relationships. She still goes dancing but not to the same degree.”[8]
[8]CB 176
47 She claimed that her sleep was interrupted by her wrist and back symptoms. He diagnosed an Adjustment Disorder with Mild Depressed and Anxious Mood.
48 Ms Lorenzo was treated over a period by Dr Richard Clements, rehabilitation physician. She complained of pain in her back and referred pain down to her left foot. According to the report —
“It interferes with her daily life making activities such as gardening, driving and doing domestic chores very uncomfortable. She is still at work in her job as a typist. She is on reduced hours due to a previous WorkCover claim (this caused bilateral hand symptoms and had nothing to do with her back).”[9]
[9]CB 180
49 He said that her back condition would not interfere with her work.
50 Ms Lorenzo was examined by Mr David Brownbill, neurosurgeon, in 2010 at the request of her then solicitors. She referred to her wrist injuries and that she was working reduced hours as a result.
51 Ms Lorenzo was examined by Mr Kenneth Brearley, general surgeon, in May 2010. She referred to the injury to her wrists. According to the report, and as a result of her back injury —
“She has difficulty with her housework, particularly vacuuming, floor and bathroom cleaning. She says she has difficulty doing her hair as that involves bending over.
She has been restricted socially. She used to attend dancing classes regularly but that is no longer possible because of her back pain. She says that dancing was her main social activity and was important for her. She is unable to do her craft activities as she cannot sit for long periods now. She is unable to drive for more than short distances.”[10]
[10]CB 213‒214
52 Mr Brearley said there was doubt about her long-term capacity for employment, as she was having gradually increasing back and leg pain, making it difficult for her to do her work. He said that this was as a result of the transport accident.
53 Ms Lorenzo was examined by Dr Barrie Kenny, psychiatrist, in 2010. She told him of her wrist problems. As a result of pain in her back and neck, the report records:
“She said she has pain that keeps her awake at night and wakes her up during the night. She said she used to like walking a lot but now can’t walk much at all so walks but little. She said she was very active and used [to] attend dancing classes and was a very active person socially, now she can’t do that.
She still works but said that sitting for long periods causes a problem with her back and so she sees herself as considerably restricted in that and in her household duties too.
She said she sleeps badly, pain keeps her awake. She said she can’t sleep on her left side and she has relatively short periods of sleep. She said she has had bad dreams about accidents once or twice a week, relives the experience of the accident whenever she’s on the road. She drives a car and is more nervous than she used to be. She tended to avoid driving at first.
She said she is miserable, cries a lot, not every day. Life is worth living. She said food tastes bland but she comfort eats and she’s gained weight. Her memory and concentration are affected. She is anxious; she is on edge; she feels worried when she’s driving and has pins and needles and shortness of breath and palpitations sometimes, especially when she’s driving.”[11]
[11]CB 220
54 Dr Kenny noted she was distressed while talking about the transport accident. He diagnosed her as suffering an Adjustment Disorder with some lowering of mood and Anxiety, and a significant component of Post-Traumatic Stress Disorder arising from the transport accident.
55 To some of the doctors Ms Lorenzo saw for the purposes of the transport accident, she did not disclose her work injury. However, I do not see that as a matter of significance. She did disclose the history of injury to her hands to many of the doctors and I did not form the impression she was hiding the fact. However, I accept Mr Gourlay’s submission she was attributing many of her problems to the transport accident when it was convenient to do so, and then to the workplace injury when that suited her purpose. That was particularly so in relation to her domestic activities, social interests, in particular dancing, her driving and her ability to get a good night’s sleep. That was the clear history given to a number of practitioners. Yet in her affidavit, and in the course of her evidence, no such detail was disclosed. In fact, when she was cross-examined on these issues, she said that she had put the transport accident, and the issues which arose, behind her. While the medical reports in relation to the transport accident are now old, she admitted in evidence that she still suffered pain in her neck and her back, with referred pain into her leg.
56 In my view, these issues do compromise Ms Lorenzo’s credibility. Further, at least up until 2010, she was prepared to tell doctors that many of the activities which she now claims are restricted because of her wrist injuries, were restricted because of her back and neck problems.
Credibility of the Plaintiff
57 Ms Lorenzo appeared unrepresented. She had difficulty explaining her case to the Court and was unfamiliar with its practice and procedure. However, that does not affect her credibility.
58 Ms Lorenzo was, however, not responsive in cross-examination, as I would expect of an honest witness. She was extremely focussed upon the injury to her wrists and concerned to express what she claimed was very substantial pain and disability from that injury.
59 For these reasons, I do have reservations about her credibility. In my view, she was very keen to emphasise that all her problems were related to her workplace injury. While I do not reject all of her evidence in that regard, I do have reservations about whether the injury to her wrists is as significant as she would have it.
Organic or psychological injury?
60 Ms Lorenzo claims injury to her right and left hands, wrists and arms arising out of repetitive data entry keyboard operation from March 2004. She brings an alternative claim for psychological injury.
61 In the early course of her treatment, Ms Lorenzo was diagnosed by the general practitioner, Dr Makar, with tenosynovitis, which was related to her work. By 2011, that practitioner said her condition had developed into a Regional Pain Syndrome.
62 Dr Patrick, rheumatologist, carried out a battery of tests, none of which showed any physical abnormality. His diagnoses varied, but in his final report, he concluded Ms Lorenzo was suffering from a “Myofascial Pain Syndrome”.
63 There was reference in the materials to an assessment by a Medical Panel of aggravation of bilateral de Quervain’s tenosynovitis, together with a Chronic Pain Syndrome.
64 However, almost all of the other treating and consulting practitioners, in particular those who have examined Ms Lorenzo of more recent times, conclude that she has a psychologically-based Chronic Pain Syndrome. This is determined because of the complete lack of any wrist or arm pathology after all appropriate tests have been conducted, and the continued complaint, now over many years, of debilitating pain and loss of use of both arms. Such complaints do not follow any organic or neurological pathway. Further, many practitioners find a full range of movement in the hands, wrists and arms, quite inconsistent with the complaints of pain, and the complete lack of grip strength.
65 I prefer the opinions of the practitioners who have more recently assessed Ms Lorenzo to the earlier assessments. In my view, she does suffer a Chronic Pain Syndrome which has a psychological basis, and cannot be explained in any physical context.
66 The real question to be determined is the nature and extent of the psychological injury, and whether the effect upon her is as significant as she claims.
Nature and extent of psychological injury
67 There are two aspects to Ms Lorenzo’s claim for psychological injury. The first is a Major Depressive Disorder; alternatively, an Adjustment Disorder, carrying with it a range of psychological symptoms and consequences. The second aspect is the Chronic Pain Syndrome, being the pain, limitation and disability in her hands and wrists.
68 I shall first deal with Depressive/Adjustment Disorder. Ms Lorenzo’s first psychologist, Ms Williams, diagnosed a Major Depressive Disorder with a range of psychological symptoms.[12] Consultant psychiatrist, Dr Kumar, in May of this year, in a relatively brief and uninformative report, assessed her symptoms as constituting a Major Depressive Disorder, as did her current treating psychologist, Ms Piper.[13] She referred to a range of symptoms, including low mood, loss of pleasure in activities, social isolation, feelings of hopelessness and worthlessness, loss of appetite, difficulty sleeping and problems with concentration. There were also heightened levels of anxiety. Other consultant psychiatrists, particularly those who examined the plaintiff earlier, diagnosed an Adjustment Disorder. However, I prefer the diagnoses of those later treating practitioners. In my view, they are in the best position to make an accurate assessment. However, it is not the label nor the diagnosis which is to be borne in mind, but rather the symptoms or consequences from which the plaintiff suffers. Her condition has required treatment from time to time by a psychologist, including at the present time. She has been prescribed anti-depressant medication. However, I am not satisfied, looked at alone, that the symptoms and consequences are sufficiently significant to meet the “severe” test. In my assessment, that test requires symptoms and consequences usually seen in very significant psychological cases, including psychiatric treatment, even admission to a psychiatric institution, symptoms at the more severe end of the spectrum, and even suicidal ideation. These are not apparent in Ms Lorenzo’s case.
[12]CB 100
[13]CB 115
69 However, that is not the end of the matter. Ms Lorenzo also has a psychologically-based Chronic Pain Syndrome. I am satisfied that her complaints of pain and restriction in her arms and hands are overstated. I am of the view that Ms Lorenzo is so focussed upon her injury that it is difficult to make an objective assessment of the real extent of her disability. I do accept that she suffers some pain in the area and disability, but it is not as significant as she would have it.
Conclusions
70 This application falls to be determined under subparagraph (c) of the definition of serious injury, both as to pain and suffering and economic loss.
71 I am satisfied from the evidence that Ms Lorenzo suffers pain in both arms and that results in some disability and restriction in a range of social and recreational activities. I further accept it restricts her capacity to work as a data input operator. However, I am not satisfied that the restriction is as significant as she says. Many of the activities which she claims to be restricted in, including driving a car, dancing and social activities, she also claims to be restricted by reason of her neck and back injuries arising from the transport accident.
72 Mr Gourlay submits that up until the time she was terminated from her employment with QBE in 2012, she was able to carry out her duties in a satisfactory manner, working 30 hours a week. He says it is reasonable to suggest that she has retained the same capacity for work through to the present time, given that nothing about her symptoms and treatment have changed significantly over the last three years. If that is the case, says Mr Gourlay, then she does not meet the 40 per cent loss of earning capacity the legislation requires, given she was working 40 or so hours per week before injury. Ms Lorenzo’s evidence is that she is no longer able to work. She claims to have no work capacity and has not applied for employment, even of a part-time like nature.
73 Significant to the assessment of Ms Lorenzo’s work capacity are the reports of her current treating psychologist, Ms Piper, and her current general practitioner, Dr Tenni. I found each report informative and thorough. Dr Tenni is aware of the symptoms arising from the transport accident. She said by reason of the combination of the Regional Pain Syndrome and the psychological disorder, both related to her employment, her day-to-day functioning is significantly affected and the condition is unlikely to change. Both in March and May of this year, she certified Ms Lorenzo as having no work capacity. Likewise, Ms Piper said that her Chronic Pain Syndrome significantly limits her ability to participate in day-to-day activities. Mr Gourlay was critical of both of these practitioners on the basis that they had only become involved in her treatment of relative recent times and were not in a position to make a comprehensive assessment. I do not accept this submission. The determination of the Court must be made upon the plaintiff’s condition as at this day. In my view, given the general practitioner has treated Ms Lorenzo since September of last year, she is in an ideal position to make that assessment.
74 Even accepting there is a not insubstantial element of exaggeration in the symptoms of which she complains, looking at the whole of the evidence, I accept the opinions of these practitioners that her psychological state significantly interferes with her day-to-day activities and that she has little, if any, work capacity. I am therefore satisfied that, as a result of her psychological injury, a combination of a Depressive or Adjustment Disorder and a Chronic Pain Syndrome, she has suffered a loss of earning capacity of more than 40 per cent. Her claim in relation to economic loss thus succeeds.
75 The authorities make it clear that if a person has a loss of earning capacity of 40 per cent or more, then the claim as to pain and suffering also succeeds.
76 The plaintiff’s application is successful.
77 I shall hear from the parties as to costs.
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