Lu v 1 Plus 1 Pty Ltd
[2019] VCC 292
•18 March 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-16-00929
| JUN LU | Plaintiff |
| v | |
| 1 PLUS 1 PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 January 2019 | |
DATE OF JUDGMENT: | 18 March 2019 | |
CASE MAY BE CITED AS: | Lu v 1 Plus 1 Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 292 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment of the right wrist – substantial organic basis - Chronic Regional Pain Syndrome – psychiatric impairment – pain and suffering – loss of earning capacity
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335(2)(d)
Cases Cited:Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227; Barwon Spinners & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Peak Engineering v McKenzie [2014] VSCA 67; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Dordev v Cowan & Ors. [2006] VSCA 254
Judgment: Applications dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J Forbes QC with Ms V Katotas | Zaparas Lawyers |
| For the Defendant | Mr M Clarke | Wisewould Mahony |
HER HONOUR:
Preliminary
1This is an application for leave to bring proceedings pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the WIRC Act”) in relation to an incident at work with the defendant on 10 September 2010 (“the said date”).
2The body function said to be impaired is the right wrist. The claimed psychiatric impairment relates to a Major Depressive Disorder and also a Pain Syndrome.[1]
[1]Transcript (“T”) 2
3The plaintiff bears an overall burden of proof upon the balance of probabilities.
4By s325(2)(b) of the WIRC Act, the impairment must have consequences in relation to pain and suffering which:
“… when judged by comparison with other cases in the range of possible impairments, or losses of a body function or disfigurement, as the case may be, fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable.”
5I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
6Subsection s325(2)(h) of the WIRC Act provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
7I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
8 In this application, where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
9 Subsections (2)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
10 Subsection (2)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
11 The judgment of the Court of Appeal in Mobilio v Balliotis[2] resolved the meaning of “severe”. Brooking JA held, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[3] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.
[2][1998] 3 VR 833 at 846
[3](1995) 21 MVR 314
12 Winneke P, in Mobilio,[4] agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of ss(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act.[5]
[4]Mobilio v Balliotis (supra) at 833
[5]see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect
13 A Chronic Pain Syndrome can result in an impairment under ss(c) if a plaintiff can establish a sufficient causal link between an initial compensable physical injury and a Chronic Pain Disorder which meets the severe criteria of a claim under definition (c).[6]
[6]per Ashley JA in Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227
14I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[7] and Grech v Orica Australia Pty Ltd & Anor[8] in reaching my conclusions.
[7](2005) 14 VR 622
[8](2006) 14 VR 602
15The plaintiff swore two affidavits and was cross-examined. Further, she relied on an affidavit sworn by her daughter, Ting Chen (“Ting”), on 5 March 2017. Also in evidence were medical reports and other material. I have read all the tendered material.
16My judgment in this matter is somewhat lengthy and detailed given the nature of the compensable condition and the numerous examinations in relation thereto and also credit issues involving the film, the plaintiff’s affidavits and her many histories to doctors of her restrictions.
The Plaintiff’s evidence
Background
17The plaintiff is sixty-six, having been born in November 1952 in China. She completed secondary school in China. She married in 1978 and in 1992, her daughter, Ting, was born.
18From 1970 to 1985, the plaintiff worked as an administrative assistant in a factory. In 1983, she completed a three-year accounting degree via correspondence. Thereafter, she worked for five years as an accountant at the same factory. She then worked in a similar role for a real estate and development company until about 2005 or 2006.
19Ting came to Australia in about 1999, when she was sixteen years old, to study. Having completed high school in Melbourne, she remained to study and work. In about 2007, she sponsored her parents to migrate to Australia. They borrowed $70,000 from her to migrate. They intended to repay her by working in Australia. The plaintiff’s husband did not enjoy living in Australia, and returned to China after about six months. The plaintiff remained in Australia. She and Ting no longer have much contact with him. After her husband returned to China, the plaintiff intended to repay Ting the cost of the sponsorship.
20 The plaintiff’s first job in Australia was with the defendant known as “Noodle Dumpling” in Footscray, making dumplings. She commenced this job in 2007 and worked there for about a year, full time.
21 As part of her job making pastry and dough and then the noodles, the plaintiff was required to lift heavy pots of ingredients which could weigh up to 25 kilograms.
22The plaintiff then worked in a very similar role at “Kaimei Dumpling” in Chinatown. In both jobs, she spoke Mandarin to her co-workers. She worked at “Kaimei Dumpling” for a few months. She then re-commenced work with the defendant at “Noodle Dumpling” in about September 2009.
23The plaintiff made around 1,000 dumplings each day. Preparing the ingredients was heavy work and making the dumplings involved repetitive use of her hands, especially when kneading dough.
24When she commenced with “Noodle Dumpling”, the plaintiff worked full time but in 2009, her days were reduced to four days a week. Her usual hours were 11.45am to 3.30pm and then 5.00pm to 9.30pm. She often worked in excess of her scheduled hours, up to ten hours per day. She earned $16.25 per hour.
25All of the plaintiff’s co-workers spoke Mandarin, as did her boss. She was not required to speak English very often at her workplace.
Pre-injury health
26Prior to injuring her right wrist on the said date, the plaintiff was generally in good health. She attended the Western Hospital periodically for heart check-ups, as there was a family history of heart problems; however, the doctors did not find anything significant wrong with her.
The incident
27On the said date, the plaintiff was working making steamed buns. A co-worker who was making sauce for the noodles, spilt oil on the floor. Although the dish washer was told to clean up the spill, the plaintiff, whilst carrying a tray of dumplings to the steamer, slipped suddenly on the substance on the floor and fell, putting her right hand out to try and break her fall. As she did so, she landed on her right hand and felt a sudden pain in her right wrist (“the incident”).
Treatment
28After the incident, the plaintiff’s boss took her to Footscray Hospital. As there was a very long wait in Emergency, the plaintiff instead saw Dr Yang, general practitioner, in the city, a friend of the plaintiff’s boss. Dr Yang sent the plaintiff for an x‑ray and strapped her wrist.
29On 11 September 2010, the plaintiff had an x-ray of her right wrist. She understood it showed a fracture. She returned to Dr Yang, who put her wrist in plaster. This felt very uncomfortable. The plaintiff’s right hand started to swell and she developed a rash.
30On 12 September 2010, Ting completed a Worker’s Injury Claim Form on the plaintiff’s behalf which she signed and had delivered to her boss.
31On 16 September 2010, on referral from Dr Yang, the plaintiff first attended the Fracture Clinic at the Western General Hospital, Footscray (“the Hospital”). There, the Orthopaedic Registrar arranged for her to undergo x‑rays before and after he removed the plaster. The plaster was then reapplied. After the plaster was removed, the fingernails of the plaintiff’s middle and ring fingers were discoloured and eventually the fingernails dropped off but later regrew.
32On two occasions during September 2010, the plaintiff had further x-rays at the Fracture Clinic as she was experiencing numbness and pins and needles in her fingers and her thumb.
33On 5 October 2010, on referral from her Footscray general practitioner, Dr Salter, the plaintiff attended Dr Blombery, consultant physician. She understood that Dr Blombery diagnosed her with Complex Regional Pain Syndrome Type 1 (“CRPS”).
34On 6 October 2010, the plaintiff attended the Fracture Clinic and had another x‑ray. Two weeks later, she returned to the Clinic and had a further x‑ray of her right wrist. The cast was removed and she was advised to return in two months. She had physiotherapy at the Hospital on 25 October 2010.
35In November 2010, Dr Salter referred the plaintiff to Dr Wilson Cui, acupuncturist, for treatment. That month, Dr Salter organised a further right wrist x-ray. It was difficult to communicate with him but Ting came with the plaintiff to appointments and interpreted for her. The plaintiff understood that the radiologist recommended she have a CT scan of her right wrist, which took place on 5 November 2010. Two days earlier, the plaintiff had a bone density test, arranged by Dr Salter.
36From 8 November to 24 December 2010, the plaintiff was in China visiting family. She sought a second opinion whilst there, having taken her x‑rays with her, and more scans were done.
37On 6 January 2011, the plaintiff underwent a further x‑ray. There were ongoing investigations because she continued to experience pain and swelling in her right wrist as well as numbness and tingling into her fingers. On 30 May 2011, she had a nuclear bone scan, organised by Dr Salter.
38On 12 January 2011, the plaintiff commenced physiotherapy with Natasha Joe, at LifeCare Footscray Physiotherapy. She attended that practise until early 2012; however, her English is not very good and it was difficult to communicate with Natasha. As such, the plaintiff tried to find another physiotherapist, starting treatment with Melanie Lim at Back in Motion in Braybrook some time in 2012.
39Ms Lim also suggested Fisiocrem for temporary relief of muscle and joint pain. The plaintiff used that cream every day for the pain in her hand, wrist and arm. She attended Ms Lim for a few months but stopped after she moved house as it was too difficult for her to attend. The plaintiff did hand exercises at home every day as directed by Ms Lim.
40In about August 2011, Dr Salter referred the plaintiff to orthopaedic surgeons, Mr Li and Mr Pianta. The plaintiff cannot recall why she did not see either specialist.
41The plaintiff had frequent reviews with Dr Blombery until about late 2015. He gave her various different medications to try and improve her pain, including Prednisolone, Epilim, Endep, Lyrica and Amantadine. Some of the medication helped the pain, but some did not. Lyrica and Amantadine, which continue to be prescribed, have been the most helpful.
42In about late 2012, Dr Blombery suggested that the plaintiff undergo a Ketamine infusion. After discussing the risks and possible side effects with Ting, the plaintiff decided that she did not want to undergo this procedure.
43On 4 February 2014, the plaintiff had an x‑ray of her right thumb, as she was getting a lot of pain at the base thereof. She understood this x‑ray was normal.
44As of October 2015,[9] the plaintiff was taking Lyrica 75 milligram prescribed by Dr Blombery and Dr Salter. She also took Symmetrel 100 milligram, Endep 25 and Panadol. The medication caused problems with her stomach and bowel movements. She experienced constipation and bleeding.
[9]First affidavit
45After the plaintiff moved from Footscray to Maribyrnong, Dr Salter referred her to a new physiotherapist closer to her home; however, she did not attend for treatment as her previous physiotherapy treatment had not helped much.
46The plaintiff saw Dr Tang, a Mandarin-speaking doctor in Chinatown, from time to time, but not for her right wrist injury, as Dr Salter dealt with that injury.
47In early 2017, the plaintiff told Dr Tang that she was feeling very down and depressed. She did not tell him why, and he did not ask her why. He prescribed an anti-depressant, Citalopram. She took one tablet a day and her mood improved. Around that time, the plaintiff had also taken a friend’s anti-depressant medication which also helped her mood a bit.
48The plaintiff had acupuncture treatment with Dr Cui for about a month, but it did not help her right wrist pain, so she stopped attending.
49As at March 2017,[10] the plaintiff was taking two 75-milligram tablets of Lyrica every day, one in the morning and one at night, for her right wrist pain. If she had not done much that day and her right wrist pain was not too bad, then she sometimes did not take the second tablet. That drug made her feel a bit dizzy and sick, so she tried to avoid taking it if she could. She also took one Endep 50-milligram tablet every night and one Amantadine tablet every morning for her right wrist pain.
[10]Second affidavit
50The plaintiff also took two Panadol tablets about three or four days each week, when her right wrist pain was particularly bad, for example if she had gone grocery shopping or done housework that day. She took one 20-milligram Citalopram tablet every day for her psychological symptoms. She also took medication for high blood pressure.
51The plaintiff then attended Dr Salter regularly and she did her exercises daily.
52The plaintiff’s doctors had recently recommended that she attend a pain management program and a psychologist. She wanted to attend the program, but no interpreter was available and Ting was too busy at work to attend with her, so she was not able to participate in the program. The plaintiff did not want to attend a psychologist or a psychiatrist. She did not want to talk about her problems. She did not find it helpful to talk about her injury and how she was feeling.
53WorkCover continued to pay for the medical expenses associated with the plaintiff’s right wrist injury.
54Dr Salter left the Footscray practice in March 2017. Thereafter, the plaintiff started treatment at SIA Medical Centre in Footscray with Dr John He.[11]
[11]T5
55In May 2017, Dr Blombery referred the plaintiff to Dr Clayton Thomas, pain management specialist. She saw him on 9 October 2017, when he referred her to the Dorset Rehabilitation Centre (“Dorset”).
56On 12 February 2018, the plaintiff attended Dorset for an assessment for a pain management course. It was recommended that she undertake the course; however, this was not approved by the insurer and she has therefore not attended.
57In March 2018, Dr He made a General Practitioner Chronic Disease Management Plan for the plaintiff. She was referred to a physiotherapist, Annabel Law at Edgewater Physiotherapy. In about April or May 2018, the plaintiff attended this physiotherapist but was not seen, as she did not have an appointment. When the plaintiff was due to go back again, she had the flu and was unwell for some time, so she did not go. She had not told Dr He she had not made any further appointments.[12]
[12]T6
58Since about April 2017, the plaintiff has attended sessions with a psychologist, Dr Shu‑Huei Lin. Initially, she attended every two weeks, and is now attending monthly.
59It had been suggested that carpel tunnel decompression surgery could be undertaken on the plaintiff’s wrist. She did not want to have that surgery as she understood from discussions with Dr Salter and Dr Blombery that there were no guarantees the surgery would fix her wrist pain.
60In December 2017, the plaintiff went to China with Ting who was on a work trip. With Ting’s assistance, the plaintiff was able to visit her mother. The plaintiff was in China for approximately one-and-a-half months. During her stay, she received massage treatment on her wrist and saw a Chinese herbalist. The massage only gave her some temporary pain relief.
61On the trip, Ting helped with carrying the plaintiff’s luggage. Whilst in China, the plaintiff mainly visited friends or stayed indoors. She had also travelled alone to China to see a Chinese herbalist.[13]
[13]T28
62The plaintiff will see Dr Blombery in the future. She now takes the following medication:[14]
[14]T5
· Amantadine (Symmetrel) 100 milligram, one daily
· Panadol, occasionally
· Citalopram (Cipramil) 40 milligram, one at night
· Amitriptyline (Endep) 50 milligram, one at night
· Pregabalin (Lyrica) 150 milligram, once a day
· Nexium, 40 milligram when needed
· Gastric problem tablets when needed
· Reaptan, 5 milligram for hypertension
· Crestor, 5 milligram for high cholesterol.
Right wrist pain
63As of October 2015,[15] the plaintiff continued to experience frequent pain in her right wrist and up her right arm. She had pain radiating up her right arm almost every day. The pain most often came on in the afternoon and at night. She could not lie on her right side as it was too painful. She was woken by the pain three to four times a week. Her wrist regularly swelled.
[15]First affidavit
64In addition to pain in her right hand and wrist, the plaintiff’s right hand often felt colder than her left. Her right wrist pain was worse in cold weather. Her right hand was often a darker colour than her left and it often sweated more than her left hand.
65When the plaintiff used her right hand and right arm, her right wrist pain tended to increase. She denied she told Mr Flanc in October 2011 that she could not carry anything weighing more than a kilogram, such as a carton of milk. She could do so, but if required to carry such items for long periods, her right wrist pain was aggravated.[16]
[16]Second affidavit
66As of March 2017, this situation continued. The plaintiff’s wrist pain was constant but the severity thereof fluctuated, depending on the weather and how much she used her right hand. The pain was mainly on the back of the wrist. It was usually about 4 out of 10, but it could increase to about 7 out of 10 in cold weather or on frequent use. It was usually an intense aching pain, but sometimes it became a shooting pain when she had used her right wrist a lot.
67The plaintiff’s right wrist also swelled after frequent use or if she bent it suddenly or if she carried anything heavy. Taking medication and gently massaging or rubbing her right hand reduced the intensity of the pain, but it never went away.
68When the pain in the plaintiff’s right wrist was particularly severe, it spread over the back of her hand. The more intense the pain in her right wrist, the further the pain spread into her hand. Some of her fingers on her right hand sometimes felt numb.
69The pain from the plaintiff’s right wrist radiated up her right arm, all the way to her shoulder, almost every day. She had had this type of pain since about early 2011, but it was becoming more frequent. It usually started in the afternoon or the evening, when she had used her right hand a lot during the day.
70The plaintiff’s right wrist pain has become worse since she swore her March 2017 affidavit. Her right hand continues to be a bit sweatier than her left. It is usually the same colour as her left, although she thinks it goes a bit bluer in cold weather. She has not noticed any significant difference in temperature between her hands in recent months.
71The plaintiff continues to suffer pain. She has improved compared with the first year after the injury. She agreed following such improvement, she thought she was capable of some light work.[17]
[17]T8
72The plaintiff indicated her pain was from the fingers on her right hand to her shoulder. Basically it is there all the time, “but sometimes mild, sometimes more”.[18]
[18]T8
73The plaintiff agreed in the early stages, she described her right hand pain as intermittent. Later on it became worse to her. Now it is more or less the same: “not, you know, very bad or not very good, you know, but the pain is still there”.[19] She cannot move her right arm fully. She can raise it over shoulder height, but she then feels pain and sore. She can, if she tries to, swing her arm as directed by her doctor. It is difficult to touch the middle of her back, and doing so, she gets a pulling sensation in her upper right arm.[20]
[19]T9
[20]T10
74The plaintiff can brush her teeth “okay” and can touch the back of her head. Activities using her right hand cause an increase in pain. She can still lift things with her right hand, and agreed she had told some doctors she had a lifting tolerance of 1 to 2 kilograms.[21]
[21]T10
75The plaintiff can walk; however, sometimes it feels a bit uncomfortable when walking long distances.[22]
[22]T11
Other pain
76The plaintiff started having pain inside her right shoulder in about mid 2012. She gets the pain if she raises her right arm above shoulder height or puts her right arm behind her back. She can still do these movements, but with pain. The pain inside her right shoulder feels different to the pain that radiates up her arm from her right wrist to her shoulder.
77In about late 2012, Dr Salter referred the plaintiff for an ultrasound of her right shoulder, which she had on 8 November 2012. Having seen the results, he referred her for an injection. She cannot recall whether she had this injection. She had another ultrasound of her right shoulder on 2 April 2015, and an injection in her right shoulder on 1 May 2015. This injection helped her right shoulder pain a lot, but the pain gradually returned.
78In about early 2016, the plaintiff started having left shoulder pain.[23] It has gradually worsened, and she now has a mild pain in her left shoulder almost all the time. It is aggravated by lifting with her left hand, reaching above her head and putting her left arm behind her back.
[23]T9- Left shoulder symptoms came on from the start of last year
79The plaintiff has a bit of neck pain from time to time, but this is not too bad and it does not stop her from doing any activities.
80The only activity that her shoulders stop the plaintiff from doing is washing her back in the shower and doing her bra up behind her back, as reaching behind her back is very painful for her shoulders. If Ting is home, the plaintiff sometimes asks her to wash her back and do up her bra. Other than this, the plaintiff’s shoulders do not impact too much on her daily life. The pain in her shoulders is bothersome, but it is nowhere near as bad as the pain in her right wrist.
81The plaintiff has also developed low back pain, and she also has pain in her left arm now - her left shoulder and arm. The low back pain comes and goes. She has a massage and uses a Chinese heat pack. That pain stops her doing heavy lifting.[24]
[24]T9
Work since the incident
82The plaintiff has not worked in any capacity since the incident.
83For about six months in 2016, the plaintiff attended an English course, three days per week, two hours per day. She struggled a lot in the course as the level of English was too high for her, and she could not concentrate on what the teacher was saying. Writing and typing caused increased pain in her right wrist, so she did not take many notes during the course.
84The plaintiff does not remember much of what was taught in this English course and she does not think her English improved as a result of it. She speaks very little English and can only speak a few simple sentences. She is not confident at all. She and Ting speak Mandarin at home.
85The plaintiff remains unemployed. In early 2017, she attended Nabenet twelve times for assistance to get back to work. She is unsure whether she would be able to handle working; however, she wanted to give it a try. She applied for a lot of jobs in Chinatown but was advised they did not have any light duties’ positions.
86The plaintiff was applying for jobs as a restaurant cashier or answering the phone, taking orders in a restaurant or working in a gift shop in Chinatown where Mandarin was spoken, so she could communicate with the customers.[25]
[25]T7
87The plaintiff agreed she would be capable of doing lighter jobs on a full-time basis. She did not know how much such jobs paid. She has not made any job applications since 2017. She is currently in receipt of Centrelink benefits. She denied she was not motivated to return to work, because with her symptoms she had applied many times and everyone turned her down. She may have applied for between ten and twenty jobs, all with the assistance of Nabenet, which she thought was engaged by the insurer. After that, she tried maybe a couple of times, but could not remember how many, but with no success.[26]
[26]T7
88 In re‑examination, the plaintiff confirmed the nature of jobs suggested by Nabenet involved her speaking Mandarin.[27] The lady from Nabenet said since her English was no good, the plaintiff had better go and find a job suited to her where they spoke her language.[28]
[27]T47
[28]T48
89 The plaintiff went on her own to apply for a number of jobs. Some were advertised in the Chinese newspaper. She could not do physical work making dumplings, and did not go or talk to such employers, but some of the advertisements were for casual light jobs like a cashier or taking orders from customers. She remembered a newspaper advertisement for a cashier job, but when she applied she was then told the job was “not just standing there”, she was required to do other jobs like taking out the dishes. She was not offered that job. If she had been offered it, she thought she could cope, but she did not know for how long. If she was asked to carry dishes, it would be difficult for her.[29]
[29]T49
90 When the plaintiff applied for a job in a Footscray gift shop, she was told her English was not good. She did not think she could do the job.[30]
[30]T50
Consequences
91As of October 2015, since injuring her right wrist, the plaintiff’s ability to carry out daily household activities had been affected. She then lived with Ting. The plaintiff tried to do some housework, because Ting worked full time and had limited time to help.
92The plaintiff tried to use her left arm as much as possible. Pre-injury, she frequently vacuumed and mopped the floor and cleaned the windows. Now, the floors were only cleaned around once a month and the windows had not been cleaned since the incident. She then had to hire a cleaner to carry out these tasks.
93The plaintiff also used to make dumplings at home and enjoyed cooking for Ting. Then, Ting mostly bought takeaway food or the plaintiff cooked simple things such as heating up noodle soups or congee.
94In addition to working and looking after the house, pre-incident, the plaintiff also enjoyed playing sports such as badminton and table tennis, around once per week, mostly with Ting or friends. Also, when Ting had a day off, they played golf, around once or twice per month.
95The plaintiff played badminton pre-incident very often, just in front of her house, and would sometimes play at a gym not far from where she lived.[31]
[31]T27
96The plaintiff played table tennis with Ting and sometimes with friends at a facility near the library. She played sometimes once, and at other times more, during the week. It was just a casual thing, and not part of any club. She had had a hit of golf on a practice range infrequently.[32]
[32]T28
97The plaintiff had not been able to play table tennis, badminton or golf since the incident. All those sports required use of her right hand and holding a racquet or a club and she was not able to do this for long periods of time.
98The plaintiff learned how to use a computer in China and she used to be quite good at typing. Now typing caused increased pain in her right hand and she tried to use her left hand as much as possible.
99The plaintiff is right hand dominant. As of March 2017[33], despite the pain in her right wrist, she still tried to use her right hand as much as she could manage on medical advice. She had also experienced pain in her left shoulder for the past year or so, and was careful not to use her left arm too much as she thought that would make her left shoulder condition worse.
[33]The plaintiff had seen the 2015 surveillance before she wore this affidavit
100The plaintiff’s right wrist pain continued to impact on her ability to perform household chores. She tried to do as much as she could manage as Ting was busy at work. She could do light household chores, such as dusting, washing the dishes and doing laundry. She now tried to use both her hands equally when she did these tasks, but she often suffered increased pain and swelling in her right wrist afterwards. Ting paid for a cleaner to do the heavier household chores and the chores that took a long time, such as vacuuming, mopping and cleaning the windows, as doing these tasks would cause the plaintiff too much right wrist pain.
101The plaintiff understood that in his report dated 15 February 2017, Dr Doherty recorded that she cannot do the laundry, that she cannot carry anything with her right arm, and that she does not use her right hand when eating. She thought he must have misunderstood her, as this was not correct. She can do the laundry at home and can carry things in her right hand, but these activities cause worse pain in her right wrist. She does use her right hand when she is eating. She holds a spoon in her left hand and uses chopsticks in her right.
102The plaintiff could do some light cooking, but she could not make dumplings or cook complex Chinese meals as she did before the incident as the repetitive movements of her right wrist caused her too much pain. She usually just heated up some noodle soups or congee, or made herself a sandwich.
103The plaintiff could go grocery shopping by herself. She did not drive as she did not have a licence, but if she needed to do a small shop, she caught public transport to the shops. She usually took a trolley with her when she went shopping alone, so that she did not have to carry the shopping bags home. She usually alternated between her left hand and right hand when wheeling her trolley to and from the shops, even though wheeling it with her right hand caused her increased right wrist pain. She tried to use her right hand as much as she could bear, on her doctor’s advice. When she went grocery shopping alone, she tried not to buy too many things or anything too heavy, as the heavier the trolley was on the way home, the worse the pain and swelling she experienced in her right wrist.
104If the plaintiff needed to do a large grocery shop, her neighbour or Ting took her as she could then be driven to the shops and put the groceries in the car, rather than having to wheel them in her trolley all the way home. If she had to, the plaintiff could lift heavy grocery bags and push a heavy shopping trolley, but it caused her increased pain in her right wrist and often it swelled afterwards. Her neighbour has bad arthritis and had told her that lifting and carrying caused her pain, so the plaintiff often did these things when she went shopping with her even though it caused her worse pain too. The neighbour was doing the plaintiff a favour by taking her to the shops, so the plaintiff did not want her to suffer as a result of it.
105Now, on a typical day, normally the plaintiff gets up pretty late, makes a simple breakfast and watches a little bit of television, gets a chance to walk around, do a little bit of massage on herself, and a little bit of dusting, light chores, and then at lunchtime, maybe cook simple noodles, and then takes a nap, “so basically that was it”.[34]
[34]T11
Sleep
106As of March 2017, the plaintiff continued to be woken up by her right wrist pain about three or four times per week. She had a lot of difficulty sleeping because of that pain. She found it difficult to fall asleep because she could not stop thinking about the pain and how it had affected her life. If she rolled onto her right side during the night, she was woken by pain. She usually only slept for a few hours every night. She felt very tired during the day. Often she tried to nap in the afternoon.
Mental state
107In her March 2017 affidavit, the plaintiff described that after about six months after the incident, she started to feel depressed about her situation as her right wrist injury had not improved as she thought it would. She felt demoralised that she still had pain in her right wrist and that the treatment was not helping very much. She started feeling guilty because she felt like a burden on Ting.
108The plaintiff’s depression had worsened over time. She used to be a happy and outgoing person. She was enjoying her new life in Australia. Now she felt down all the time. She often felts like there was no meaning to her life. She was grumpy and became angry and irritable with Ting for no reason. She felt anxious about the future and worried that she is a burden on Ting. She did not like talking to people anymore. She preferred to stay at home. She spent a lot of time thinking about her pain and the impact that the injury had had on her life.
109The plaintiff had a lot of difficulty concentrating and was very forgetful. Recently, she left the front door unlocked after leaving home, and she had left the stove on. Ting was angry with her about this because she was worried about her.
Cross-examination – Histories and surveillance
110There was lengthy cross-examination about the plaintiff’s history to various examiners of her restrictions, her viva voce evidence in this regard and what she was shown doing on the surveillance film.
111In general terms, when the description of significant disability given by the plaintiff to medical examiners was put to her, she denied having given that history. She also denied having tried to paint a picture of disability that was untrue.
112The plaintiff confirmed she told Dr Doherty in January this year that she was weak every day and her whole body was weak. He also noted the plaintiff told him that when Ting asked her to go for a short walk for just a few minutes, she could not persist.
113The plaintiff explained she did not feel like going out. She could last 10, maybe 20 minutes. She denied she told Dr Doherty she could not persist after just a few minutes. She could walk longer. She agreed she told him that her low back was sore.[35]
[35]T11
114The plaintiff agreed generally, she had told doctors she was in significant pain in her right hand, that it was of limited use, and that she tried to avoid performing tasks with it, and she spent a lot of time indoors at home.[36]
[36]T12
115The plaintiff was asked about Mr Flanc’s examination in early 2011. It was accurate, as he recorded, any activity aggravated the pain in her wrist. Maybe she told him then she could not grab or carry anything greater than a kilogram, but it was wrong that she was not able to carry a carton of milk, and that was what she had stressed in her second affidavit.[37]
[37]T12
116The plaintiff agreed before the incident, she frequently vacuumed and mopped the floor and cleaned the windows. When it was put to her that she told Mr Flanc she was now unable to do that, she said it was difficult. She tries vacuuming or mopping a few times, but it is difficult, so Ting now pays someone to do the cleaning.[38]
[38]T13
117The plaintiff was asked about the history taken by Dr Blombery in October 2016 that she did not undertake any sweeping or vacuuming or any cleaning activities. Occasionally she might do light sweeping in a small area in the kitchen.[39]
[39]T13
Surveillance film – 19 and 23 June 2015
118On 19 June 2015, the plaintiff agreed she was shown walking along normally with a shopping trolley.[40] Sometimes she feels pain, sore and tired, when she goes for a walk, and has to have a rest. She agreed she was shown walking along, swinging her right arm freely. There is still some pain, because every time she goes out, she “tries to take some medication to reduce the pain dramatically”. She could carry the trolley freely in her right hand because it was very light and it was empty. She would use her left hand, and then when tired, go back to using her right. She could lift the trolley off the ground using her right hand because it was very light. She agreed there were no restrictions shown on the film, but actually she had some pain, but she “just tried to control it to tolerate it”. She could use a mobile phone in her right hand with no problem.[41]
[40]T17
[41]T18
119The plaintiff then said that she actually was not intending to buy anything that day, and got out of the house with the trolley for a bit of exercise.[42] She then said she went out with the trolley and bought some small items.[43]
[42]T18
[43]T19
120The plaintiff was shown on 23 June 2015 shopping with a friend at Costco. She agreed she was shown putting a number of items into a trolley using both hands. One was a 2‑kilogram bag of rice. She could not remember having three items in the trolley, but the items were not heavy.[44]
[44]T19
121When it was suggested there was no restriction shown, the plaintiff said on particular days, when sometimes she felt good, when the weather was good, she tried to do something, but it did not mean she did not have any pain. On that day, she went with her friend who was able to drive. That friend was unwell and had asthma and also a problem with her intestines. That was why she did not help the plaintiff put the items in the trolley or unpack them, as the plaintiff did not want her to do extra work and cause problems. The plaintiff agreed that she unpacked the items by herself into the car.[45]
[45]T20
122When it was suggested to the plaintiff that she had deposed that this friend had different health problems, she said the friend had some sort of arthritis or rheumatism.[46] The friend has arthritis and asthma.[47]
[46]T20
[47]T21
123The plaintiff agreed at the time she swore her second affidavit, she had seen this surveillance film.[48]
[48]T20
124 The plaintiff agreed there was nothing on the film showing her having any issues, but she was actually doing things with pain, not extreme pain, and after, when she arrived home that night, she felt worse. That was not only that day. Even on a normal day now, if she tries to do something, at night she feels more pain.[49]
[49]T21
125It caused the plaintiff pain, “a mild dull pain inside”, to push the shopping trolley with her right hand. She then gave a convoluted explanation that the wheel was no good on the trolley, and that she could remember this specific occasion where the trolley was not working properly, so she could not use it with her left hand only. She then said she normally just used both hands “to keep the balance”.[50]
[50]T22
126The plaintiff was asked about the examination with Dr Fraser in August 2015. He then noted, although it has improved somewhat over the years, the plaintiff said she still cannot use her right arm without pain. She could not remember what she said on that visit, but that was the situation.[51]
[51]T22
127Dr Fraser reported the plaintiff claimed not to use the right hand very much, and could not do much anyway. She could not remember what she told him, it was quite a few years ago, but that was her situation, it was accurate, as was the history. She cannot do any housework, and Ting usually brings pre-cooked meals which she heats up. Sometimes, the plaintiff does some light cooking using her left hand. Sometimes she goes shopping on her own, but did not use her right hand at all when doing so. She tries to use the right hand sometimes on small things. As Dr Fraser noted, she uses her left hand to carry any bags.[52]
[52]T23
128When it was suggested the plaintiff was exaggerating her symptoms and restrictions, she said she could not remember exactly what she told Dr Fraser, but she just told the truth, what she felt at that time. She never thought her history to him was completely inconsistent with what was seen on the film, nor did she give him that history to assist her case.[53]
[53]T23
129When asked whether she held her right hand and arm immobile in an exaggerated fashion walking to and from the office, as Dr Fraser reported, the plaintiff did not know what the doctor wrote. She was telling the truth. Sometimes, when it became worse, she could hardly use her right arm at all. Sometimes she just used the left hand to support her right hand and wrist. Sometimes she tries to manage her right arm or hand with her left hand.[54]
[54]T24
130When the plaintiff was asked about the history to Dr Doherty in September 2015 that she could not do anything with her right hand, she said she could not remember exactly what she told that doctor, any doctor, “but all along I told the doctors that I could do something, you know, with my right hand and arm”.[55]
[55]T24
131Whilst Dr Doherty recorded she could not even do any cleaning, the plaintiff said she did cleaning with some difficulty and was not completely disabled. Since the injury, “to be honest,” she had hardly done any cleaning.[56]
[56]T24
132Whilst Dr Doherty noted that she did not see anyone, had no friends and no contacts, the plaintiff agreed social contact was very seldom. She did not think she said to anyone she did not have any friends. She has them, but does not want to visit them or be social with them since the injury.[57]
[57]T25
133It was suggested to the plaintiff she was attempting to give a picture of being severely disabled to Dr Doherty and that what she told him was not true. The plaintiff could not remember exactly each time she went to see a doctor, but she told them she could do something with her arm, but when the pain became severe she was not able to do anything. Otherwise she could do some light things, and try to do exercise.[58]
[58]T25
134The plaintiff’s social life for the last two years has almost ceased completely. She leaves the house, but seldom. That means on a monthly basis, maybe sometimes once, twice, maybe three times a month. This is because she feels no motivation. She feels down, and people talk, and she does not want to talk about her things. Also, her whole body feels weak, no energy, and she “does not feel like going or moving to somewhere else”.[59]
[59]T26
135The plaintiff goes by herself when she leaves the house, or mainly walks in the local area. Sometimes when Ting has time and is not busy with work, she drives her to the shopping centre.[60]
[60]T26
Surveillance film – 16 February 2017
136The plaintiff agreed she was filmed for about five minutes sweeping the footpath area outside her house. When it was suggested she was doing so in a completely unrestricted fashion, she said every now and again she does some sweeping inside. She forgot to mention earlier doing sweeping outside, but it does not mean she does not have any pain when doing it.[61]
[61]T29
137The plaintiff had said to doctors that if she did heavy or repetitive activities she had more pain.[62]
[62]T29
138The plaintiff was asked about the history to Dr Bloom in October 2016 of not doing any sweeping. She did tell a lot of doctors she could do something with her hand.[63]
[63]T29
139The plaintiff agreed she was not shown having any problems on the film, but she actually did have pain. But, even though she did, she still tried to do some sort of work. On that day, it was a bit windy, and she was just trying to sweep up some leaves. It was a good day, so she went outside. The weather was fine and she was feeling a bit better that day. She does not do that sort of sweeping very often, maybe once or twice, and might have done it once or twice this year, maybe.[64]
[64]T30
140On that day, the plaintiff was also shown going out for lunch with a relative who had come from China. They went to a yum cha restaurant. The plaintiff does not go to yum cha often. She agreed it was a happy experience. She did not have any difficulty going, but such occasions were very seldom. She has not been to yum cha this year.[65]
[65]T31
141 The plaintiff was asked about the examination with Dr Ingram in January 2017. She did not think she told him she was unable to do simple things like washing dishes or carrying objects because of her hand. She said on many occasions to doctors that she could do light things and carry things for a short period of time.[66] She thought she told doctors that tasks like washing clothes were hard, as she could not rub with her hand.[67]
[66]T31
[67]T32
142 The plaintiff agreed, as Dr Ingram recorded, that she had been unable to engage in most physical activities at home, and now relied on her daughter to do the cooking and cleaning. She spent most of her time lying down, resting or watching TV. She also did a little bit of light chores.[68]
[68]T32
143 When it was suggested that history was to create an impression she was significantly disabled, the plaintiff said she just told the doctor her actual situation. She agreed she did not tell any doctor about sweeping outside her house or going for lunch with friends, but she could remember telling doctors that she very seldom went out.[69]
[69]T32
144 The plaintiff agreed, as Dr Ingram reported, that she needed help from her daughter with showering, and had difficulty reaching her hand towards her back. The plaintiff has now developed a problem with her left arm and shoulder. The doctor had suggested she have an injection, but it was too expensive, so she did not go ahead with it.[70]
[70]T33
145 The plaintiff was asked about the history to Dr Doherty in February 2017 that she could not carry anything with her right hand (the January footage having just been shown). The plaintiff did not think she had told him that. She said she could carry something. She did not mislead him or any other doctors.[71]
[71]T33
Surveillance film – 2 May 2017
146 The plaintiff was shown at midday where she was shown walking to Footscray station, catching a train to Flinders Street, attending a building in Elizabeth Street, then going back on the train. She was then shown at Footscray Market.[72]
[72]T38
147 The plaintiff agreed she was shown at the market using both hands to pick up vegetables, and that she was using both arms in a totally unrestricted way. She did carry things, but they were light. She appeared to be doing so unrestricted, but she actually carried something with some pain. Carrying light items is not difficult.[73]
[73]T39
148 The plaintiff was asked about the history to Dr Karna, on examination two months after that film, that she could do no house cleaning or gardening. She said to the doctor she was not completely disabled to perform certain tasks, but at home she could not do heavy household chores, but she could do the shopping.[74]
[74]T39
149 The plaintiff was asked whether, on that examination, she did not register any right hand grip when asked by Dr Karna to do a hand grip test. She did grab, and she was able to squeeze, but it caused pain. She could not use much force with her right hand. She agreed that her grip was strong enough to carry a light shopping bag, but she could not carry things with her right arm for long lengthy periods.[75]
[75]T40
150 The plaintiff was asked about the history to Dr Mehr in January 2017 that she could not do domestic activities of daily living, including cooking or cleaning. She said to every doctor she could not do heavy household chores, but she could do light chores. She again denied exaggerating the extent of her symptoms and restrictions.[76]
[76]T41
Surveillance film – 3 October 2018
151 At the start of the film, the plaintiff was shown carrying a bag in her left hand. She explained it was not heavy. She then carried the bag in her right.[77]
[77]T42
152 The plaintiff agreed she went to Essendon Fields DFO. Whilst in various shops there, she picked up clothes and looked at them using both hands. Doing so was fine for her right hand, “not a problem”.[78]
[78]T45
153 The plaintiff was filmed at DFO from 11.30am to 3.07 pm.
154 The plaintiff was asked about the history to Dr Ingram in November 2018 that she rarely went out of the house. She could not remember what she said. She told all doctors of her daily routine, and what she could and could not do. She does not go out very often. Whilst she might be shopping with friends, she did not go out of the house for quite a long time. She went to lunch once with a relative from China.[79]
[79]T45
155 The plaintiff was asked about the history to Dr Doherty in January this year of maybe not leaving the house for two weeks. She does not go out very often, but does so occasionally. She never thought she was giving the impression that she was very isolated to assist her case. She really does not go out often.[80]
[80]T46
156 The plaintiff explained her difficulties with public transport to Dr Doherty. She often has to wait 45 minutes for the bus. Her problems with public transport are a bit to do also with her right hand. She also has no interest in going out often, and does so when she has to. She does not go out because her mood is not that good, and she is reluctant to go out and meet other people. Also, with her hand, sometimes she always feels some pain inside, discomfort, especially when she swings it along when walking. Her walking is not 100 per cent restricted. Her doctors have told her to try and exercise her hand, and she always takes medication before she goes out.[81]
[81]T47
157 The plaintiff confirmed the first reason for not leaving the house often was lacking motivation, and the second was that people always ask her what is wrong with her, and she does not feel like talking about it.[82]
[82]T50
Summary of the Plaintiff’s taxation returns
Financial year Income from personal exertion 2006-2007 Wei Ke Zhang - $7,020 2007 – 2008 1 Plus 1 Pty Ltd - $8,640
Wei Ke Zhang - $1,050
Total - $9,690
2008-2009 Not available: income tax return not lodged 2009-2010 1 Plus 1 Pty Ltd - $13,575 2010-2011 1 Plus 1 Pty Ltd - $18,772
VWA - $3,328
2011-2012 VWA - $22,862 2012-2013 VWA - $15,347 2013-2014 VWA - $26,703 2014-2015 VWA - Not available 2015-2016 VWA - $14,200
Lay evidence
158The plaintiff’s thirty-five year old daughter, Ting, swore an affidavit on 2 March 2017. She lives with the plaintiff in Maribyrnong. She works very long hours as an office clerk in a shipping and logistics company.
159Ting confirmed the circumstances of her migration to Australia and sponsoring the plaintiff. She also confirmed the plaintiff’s difficulties with English.
160Ting had noticed a very big change in the plaintiff since the work injury. The plaintiff used to be a very happy, bubbly and outgoing person. She was independent and was a great support to Ting; however, she then seemed down and depressed all the time. She needed Ting to look after her and support her now, rather than the other way around. The plaintiff did not like going out or speaking to people. She was angry and grumpy. Ting did not really like being around her any more, as she often became annoyed at her for no reason.
161Ting confirmed the plaintiff’s problems with her memory.
162Ting confirmed the plaintiff’s problems with heavy housework and that she now paid a cleaner to do these tasks, as even lighter chores caused the plaintiff a lot of pain in her right wrist.
163The plaintiff did some light cooking for herself. Ting was not usually home for lunch or dinner as she was at work, so the plaintiff had no choice but to cook for herself.
164The plaintiff also often did her own grocery shopping, as Ting usually did not have time to shop for groceries. Sometimes their neighbour drove the plaintiff to the shops.
165Ting had observed that when the plaintiff had had a busy day, such as going to the supermarket or doing some house chores, her right wrist was swollen. She also lay down and when Ting asked her what was wrong, the plaintiff told her that she had a lot of pain in her right wrist and up her arm. Ting often observed her taking extra medication in the evenings after a busy day.
166When the plaintiff first injured her right wrist, Ting noticed that she relied mainly on her left arm to do most tasks, but in the past couple of years she observed the plaintiff making more of an effort to use her right hand. The plaintiff told her that her doctors had advised her she needed to use her right hand as much as possible. The plaintiff also told her that she had left shoulder pain now, and she was worried that if she used her left arm too much, her left shoulder condition would get worse.
167Ting and the plaintiff used to enjoy playing table tennis, badminton and golf together, but they did not do these activities together anymore. As far as Ting was aware, the plaintiff had not participated in these activities since her right wrist injury.
168Ting sometimes helped the plaintiff wash her back in the shower or did up her bra when she was getting dressed. The plaintiff had told her that she had pain in her shoulders and it hurt a lot to reach behind her back.
169Ting wished that the plaintiff had never injured her right wrist at work. It had had a huge impact on the plaintiff’s life and she was not the person that she used to be.
The Plaintiff’s treaters
170 Ms Natasha Joe, physiotherapist, treated the plaintiff during 2011 and 2012 and reported on 17 June 2011.
171 On examination, mild swelling was apparent in the dorsal aspect of the plaintiff’s wrist. There was some restriction of wrist movement and associated pain. Shoulder movement was not limited but some movements brought on upper limb neural discomfort. There was mild tenderness of the distal radius and through the radiocarpal joint. Dynamometer grip strength on the left was 24 kilograms and 15 kilograms on the right.
172 Associated neural involvement had developed, causing right upper limb discomfort.
173 The plaintiff reported difficulty and pain with housework and cooking. Her upper limb symptoms fluctuated. She described moderate severity wrist pain consistent with her fracture.
174As of June 2011, Natasha Joe considered the plaintiff would be able to do light duties, up to 3 kilogram lifting for a duration of three hours, three non-consecutive days per week to start off, with regular rest breaks as required.
175 Dr Salter, general practitioner, treated the plaintiff in 2015 and completed a WorkSafe General Practitioner Standard report on 20 July that year.
176 Dr Salter diagnosed CPRS due to the fracture. He then thought the plaintiff was unable to do any pre-injury jobs and her pain impacted on day to day living.
177 Dr John He, general practitioner, has treated the plaintiff since March 2017. He last reported on 29 September 2018.
178 Dr He noted despite treatment after the fracture, the plaintiff was left with chronic wrist and hand pain evolving into a Chronic Pain Syndrome, subsequently diagnosed with CRPS in 2014. In addition, she was also diagnosed with neuropathology pain around the same time of her CRPS.
179 The plaintiff initially presented with a long standing history of mixed anxiety and depression, symptomatic for low mood, anhedonia, excessive worries, insomnia, loss of appetite, and lack of concentration. These symptoms are still present today. She has chronic insomnia, with late onset and early waking during her sleep cycle. She often wakes from sleep with pain.
180 In addition, the plaintiff also presented with a history of chronic pain syndrome, with right wrist pain and stiffness, burning pain in the right hand, stiffness of the right hand and wrist, and reduced range of motion and reduced gross and fine motor functions. She has severe weakness of the right hand and wrist. These symptoms are still present today.
181 Dr He considered the prognosis for the plaintiff’s injuries remains poor. She has failed to make any significant improvement in her pain symptoms and mood symptoms despite dedicated medical, physical, and psychological treatment by a multi-disciplinary team. He would not expect her symptoms to improve in the foreseeable future. In fact, her right wrist pain, weakness and swelling are likely to be persistent into future.
182Dr He thought the plaintiff had no capacity to perform any of the duties of a dumpling chef.
183 Dr Blombery, consultant physician, continues to treat the plaintiff last having seen her in July 2018. He has reported on numerous occasions from October 2011 and most recently, October 2018.
184On the initial examination, Dr Blombery thought the plaintiff had classical features of CRPS Type 1 (the right hand was slightly cooler and different in colour from the left, no swelling, and some limitation of wrist movement, reduced grip and tenderness) but that was relatively mild although she did have some autonomic disturbance.
185The plaintiff was re-examined a number of times during 2012. As of October that year, Dr Blombery reported that she had ongoing features of CRPS Type 1. Her pain was stable and quite severe averaging 6 to 7 out of 10 despite the use of medication to try and reduce the pain. He thought she was unfit for any work.
186On re-examination in 2013, Dr Blombery thought the plaintiff’s pain had improved a little with Lyrica and Amandine. Her prognosis for recovery was relatively poor and he thought she was going to be left with a very significant disability affecting her dominant right hand.
187When seen in early 2014, the plaintiff was complaining of right thumb shaking, which Dr Blombery thought was part of her Pain Syndrome.
188The plaintiff was seen again in early 2015. When seen on 3 August that year, Dr Blombery thought she had ongoing features of CRPS and that her prognosis was very poor.
189On March 2017, having been provided with surveillance film taken in May 2013 where he thought the plaintiff was shown to be using her right hand to a significant degree, Dr Blombery commented that overall, the utility of her right hand was somewhat more than he would have expected given her complaints to him of right hand limitation; however, he noted his findings of reasonable movement on examination were not incompatible with what was shown on film.
190Dr Blombery thought the plaintiff had ongoing features of mild CRPS. In his view, the limitations imposed by her hand were relatively minimal functional restrictions and it was unlikely her clinical situation was going to change in the foreseeable future; however, noting her pain was worse at night when it as not possible to obtain surveillance, indicated that her lifestyle was in fact significantly altered.
191On examination in May 2017, the plaintiff told Dr Blombery her pain was unchanged. Her right hand was slightly cooler than the left and a little darker. Range of movement was reduced and grip power was weaker on the right.
192Dr Blombery considered that overall, the plaintiff did not appear to be markedly impaired, although there was significant pain in the affected area.
193Dr Blombery thought the plaintiff would benefit form a pain management program. He considered she then had a capacity for alternate duties not involving heavy or repetitive work with her right hand.
194Dr Blombery referred the plaintiff to Dr Thomas in May 2017. He then advised Dr Thomas that the plaintiff could do light tasks with her right hand but was keen to have a pain management program.
195When Dr Blombery last saw the plaintiff in July 2018, she continued to have pain in the right hand and also numbness in the fingers. This however was not very common at night. She had some pins and needles in the dorsum of the wrist but not in the fingers.
196Dr Blombery then thought the plaintiff continued to have features of CRPS. He considered she also had symptoms suggestive of carpal tunnel syndrome of the median nerve and he suggested nerve conduction studies in this regard, following which surgery may be considered, although there would be a significant risk of aggravating the CRPS.
197Dr Blombery thought the plaintiff would be restricted in a range of physical activities to a marked degree.
198 Dr Blombery considered the plaintiff’s prognosis for recovery at this stage is poor. Her symptoms have now been present for eight years and are essentially stable. He thought it is very unlikely there will be any significant change in her level of disability in the future.
199 Dr Blombery thought the plaintiff has no capacity to perform suitable employment on a permanent basis given the severity of the ongoing pain, together with her lack of English understanding and her age.
200 Dr Clayton Thomas, rehabilitation and pain medicine consultant, saw the plaintiff once in October 2017 and reported later that month.
201The plaintiff then complained of pain in the right upper limb, mainly the right wrist. She indicated pain levels were 7 at best, 8 at worst.
202 On examination, the plaintiff had well-preserved range of movement of her elbow and shoulder and mild limitation of dorsiflexion of her right wrist. Although the nails looked to be symmetrical, she did indicate the nails on the right hand grew more slowly than the left. She was tender non-specifically over the right wrist area.
203 Dr Thomas thought the plaintiff did not have enough signs to meet the diagnosis of CRPS based on that examination. He would accept the diagnosis as described, being CRPS Type 1.
204Dr Thomas did not comment on the plaintiff’s work capacity.
205 Dr Shu-Huei Lin, psychologist, continues to treat the plaintiff, having first seen her in April 2017. She most recently reported on 18 December 2018.
206 On initial interview, the plaintiff advised of a history of anxiety and depression dating back to 2010 following the fracture. Despite a general recovery from the injury, she stated that she continued to experience pain in her wrist, and that she had not been able to use her wrist to its pre-injury extent.
207 The plaintiff also reported that she had experienced a lowered mood, insomnia, social withdrawal and memory difficulties. She described feelings of guilt for having to depend upon her daughter for many day-to-day practical matters. She denied any suicidal ideation.
208 Dr Shu-Huei Lin thought, given the plaintiff’s psychological difficulties were directly related to her physical injury, it was anticipated that she would continue to experience psychological difficulties and require ongoing pharmacological and psychological treatment and support.
209When she reported in July 2017, Dr Lin noted the plaintiff’s willingness to return to work although that was largely dependent on her physical state.
210Dr Shu-Huei Lin was unable to comment on the plaintiff’s current physical fitness for work as this was beyond her area of expertise.
211 The plaintiff was assessed at Dorset in February 2018, which reported that month.
212 A right fracture distal radius following a fall at work in 2010 was noted. There was some restriction on right constant movements secondary to pain on assessment. It was suggested the plaintiff would benefit from hydrotherapy and an individualised exercise program.
213 It was noted the plaintiff avoided using her dominant right hand in daily activity, pain being her main barrier. It was suggested she would benefit from a practical focus to encourage right upper limber use in chores and recreational activity.
Investigations
214Right wrist x‑ray 11 September 2010:
“Comminuted, impacted fracture through the distal right radial metaphysis with a sagittal component extending to the articular surface.”
215Right wrist x‑ray 3 November 2010:
“Minor sclerosis and linear lucency noted in the distal end of the right radius which is most likely related to a healing or healed fracture, although, clarification with a CT scan is recommended to exclude any recent hairline fracture in that region.”
216Right wrist CT scan 5 November 2010:
“1.When compared with plain film series dated 03.11.10, the findings are consistent with a healing fracture of the right distal radius.
2.No associated convincing intra-articular fracture extension is identified.”
217Right wrist x‑ray 6 January 2011 – no finding
218Right wrist x‑ray 11 January 2011:
“There is a tiny bony density distal to the tip of the ulnar styloid and there is some very faint sclerosis across the distal radius. There are no other features to suggest old trauma, although bony density is at the lower normal limits. If there is persisting clinical concern, CT is indicated.”
219Right shoulder ultrasound 8 November 2012:
“1.Right supraspinatus tendinosis/tendinopathy without focal tear.
2.Right subdeltoid-subacromial bursitis with bursal impingement on abduction during dynamic scanning. Ultrasound guided right shoulder steroid injection may be of therapeutic benefit.”
220Right thumb x‑ray 4 February 2014:
“No significant abnormality detected.”
221Right shoulder ultrasound 2 April 2015:
“Minimal bursal thickening with no obvious bunching seen. No rotator cuff tendon tear.”
222Right shoulder injection 1 May 2015:
“Uneventful ultrasound guided right subacromial bursal steroid injection was performed.”
The Plaintiff’s medico-legal evidence
223 Dr Mary Wyatt, occupational physician, examined the plaintiff on behalf of the insurer on 29 April 2011.
224 The plaintiff then reported soreness at the right wrist over the dorsal and ventral aspects. It was sore with pressure and carrying weight and could swell with a lot of exercise. She had soreness in the forearm, upper arm and shoulder when her wrist was worse, and the wrist was sorer with a change in the weather. She had numbness in the long and ring fingers of the right hand and the right arm felt generally weak. She reported her sleep had improved.
225 The plaintiff carried shopping bags in her right hand. She did some cooking, relying most on her left.
226 On examination, there was no obvious swelling of the right wrist. Tape measurements confirmed the right forearm was equal in circumference to the left, suggesting relative wasting of the right and dominant forearm.
227 The plaintiff had close to normal movement at her right wrist, with minor loss of palmar flexion only. The right long and index fingers were slightly cooler than the left.
228 At the distal nailbed, there was a ridge across the nail at the long and ring fingers of the right hand. This was consistent with an insult to the finger some months prior. There was normal movement of the digits and a healthy grip strength. The plaintiff had mild tenderness over the right wrist, particularly over the dorsal aspect, and there was some discomfort on movement of the distal radio ulnar joint.
229 Dr Wyatt noted the plaintiff’s right wrist fracture had healed satisfactorily. Unfortunately, she developed a problem which is known by different terms, such as Reflex Sympathetic Dystrophy or Regional Pain Syndrome.
230 Dr Wyatt noted the plaintiff had objective evidence of a specific problem. She described typical features with the digits changing colour, ongoing pain and there was ridging of the nail, consistent with the described response of her body to the insult.
231 Dr Wyatt explained RSD is a reaction of the internal nervous system to trauma. It might be in response to surgery or it might relate to a specific traumatic episode, such as the fracture. It tended to improve over time, but can often take a few years to settle down – there is typically gradual improvement. She noted it was important people were encouraged to remain active, notwithstanding the ongoing problem. Dr Wyatt thought the plaintiff’s continued problem was a gradually improving RSD condition.
232 Dr Wyatt then considered the plaintiff had a limited work capacity and taking into account her language skills, ongoing physical problems and work background, she did not believe the plaintiff had a capacity for suitable employment. She could, however, return to work on specially pre-arranged modified duties not involving intense or repetitive use of the right hand. If such duties were available at the workplace, Dr Wyatt thought the plaintiff would be able to return to part-time work, such as three or four hours a day.
233 Dr Wyatt re-examined the plaintiff on 6 July 2012.
234 The plaintiff indicated there had not been a great deal of change in her condition since the previous examination. She reported ongoing soreness in her right hand and forearm, with further pain extending into her shoulder girdle. She said the pain continued to be associated with sweating in the arm, particularly in the hand, and she noticed this more at night.
235 On examination, inspection of the upper limbs revealed no obvious trophic changes of the right hand or forearm. The right hand felt colder than the left and this extended up to the mid right forearm. No wasting was noted in the right forearm and the forearm measured a centimetre greater in circumference than the left.
236 The plaintiff demonstrated significantly reduced grip strength in her right hand which Dr Wyatt felt was a non-organic finding. She in fact demonstrated reduced grip strength in both hands but with a weaker grip in the right than the left.
237 There was no significant tenderness noted over the plaintiff’s right upper arm or shoulder but there was mild tenderness generally through the right forearm and she had further tenderness of the right wrist. There was no wasting of the small muscles of the hand and no swelling of the small joints of the right hand. There were no colour changes noted between the hands.
238 Dr Wyatt thought the plaintiff’s fractured wrist had been treated appropriately but she developed persistent pain and had features of CRPS or RSD. She believed the plaintiff had a mild case of this condition.
239 Dr Wyatt thought the plaintiff was unfit to return to her usual job which involved required upper limb activities. She did not believe the plaintiff had a current work capacity. She had limited English skills and only limited work experience in Australia. Dr Wyatt thought it difficult to see the plaintiff getting a job at the age of sixty where she was not required to use her right arm repeatedly.
240 Dr Wyatt did not believe any jobs suggested in a May 2011 vocational report were suitable for the plaintiff. Whilst further English training may help her employability, effectively, Dr Wyatt did not believe the plaintiff was fit to return to repetitive work so such training would not enhance her ability to get back to assembly or process work duties. She would require substantial levels of training, initially in English and then in a role which did not require a lot of physical work, and it was difficult to see that occurring at the age of sixty.
241 Dr Charles Flanc, vascular and general surgeon, examined the plaintiff on 14 October 2011 and 7 December 2012.
242 On the first date, the plaintiff reported a painful right wrist was her main problem. It was aggravated by any activity. She could not grab or carry anything even greater than one kilogram. She was unable to carry a carton of milk. There was minimal pain in the wrist at rest. The pain occasionally radiated up the arm towards the right shoulder on activity.
243 The plaintiff’s right hand felt “cooler than the left hand” most of the time. She had not noticed any recent colour changes in her right hand.
244 Mr Flanc did not find any abnormality in the appearance of the plaintiff’s hands, fingers, fingernails or nail beds.
245 Mr Flanc thought it likely the plaintiff had some degree of a Chronic Pain Syndrome which would explain the radiation of pain up her arm. He was unable to explain the history of numbness of the middle and ring fingers which was originally present. He thought the plaintiff’s condition had then not stabilised.
246 On re-examination in December 2012, the plaintiff reported pain inside the wrist and forearm. It occasionally radiated up towards her shoulder. It was more severe on any forceful use of her hand. Her symptoms were more severe in cold weather and especially when doing housework or sweeping the floor. Her right hand felt colder than the left at times but she had not noticed any recent temperature changes.
247 The plaintiff had a full range of movement of both shoulders and movement was easily performed. She had a full range of movement of the right elbow, including supination and pronation.
248 Mr Flanc did not detect any deformity of the right wrist and in particular, there was no angulation. There was still diffuse tenderness around the whole wrist. Movements were still moderately restricted by pain. Ulnar deviation had improved slightly to 30 degrees.
249 The plaintiff was still able to make a full fist but there was slight weakness of handgrip, as pain radiated up the arm. The palms of both hands were very pink but equally so. Both hands were equally warm. There was no suffusion. Neither hand was sweaty.
250 The fingernails were of normal appearance. The upper limb reflexes were all present and equal. Sensation to touch was now slightly diminished circumferentially over the whole of the right forearm and hand.
251 Despite the normal findings at the time of the examination, Mr Flanc thought the history of the plaintiff’s symptoms and particularly the history of temperature and colour changes would be consistent with a diagnosis of a mild degree of CRPS Type 1. In his opinion, this condition had developed as a result of the incident injuries.
252 In Mr Flanc’s opinion, the plaintiff would not be able to cope with any work involving rapid and repetitive or heavy use of her right hand and wrist. In particular, she would not be able to return to work as a kitchenhand or as a dumpling maker in a Chinese restaurant. She had a theoretical capacity for light duties, but he could not identify any particular occupation which would be suitable for her.
253 Dr Ali Kian Mehr, rehabilitation specialist and pain fellow, examined the plaintiff in January 2017 and November 2018.
254 On initial examination, the plaintiff complained of significant pain, especially in the posterior aspect of her wrist, which spread to the upper arm and also to the hand. The quality of this pain was pins and needles and shooting pain. It was aggravated by cold weather, activity, holding or picking up objects and it was relieved by medication, specifically Lyrica, and compression of her right hand under her arms. The pain was worse at night. The intensity of the pain was between 4 to 7 out of 10.
255 On examination, the plaintiff’s hands were symmetric. There were no atrophic changes in the nails or hair growth. There was no colour change. There was no temperature asymmetry. There was no colour asymmetry between the two hands. The right hand was sweatier than the left. There was tenderness on the posterior aspect of the right wrist and also on the lateral aspect of the elbow and the distal arm, also proximal arm.
256 Range of motion of the right wrist was globally limited. Range of motion of the fingers was limited. The plaintiff could not make a complete fist.
257 Dr Mehr thought there was a chronic pain in the right wrist and hand, which met the Budapest criteria for CRPS Type I. The plaintiff had hyperalgesia in her right hand.
326 Dr Doherty considered there maintained a material contribution the injury made to the plaintiff’s current psychiatric condition.
327 Having seen the film of 19 and 23 June 2015, Dr Doherty thought the psychiatric conditions suffered by the plaintiff were not currently severe and that she had a functional capacity greater than she reported. In his view, she had the capacity to return to her pre-injury duties and hours from a psychiatric point of view. She had the capacity to do the jobs identified in the 2012 assessment. He considered that her presentation was not consistent with the surveillance activity.
328 Dr Doherty then thought the plaintiff’s psychiatric conditions did not incapacitate her from work and she was fit to undertake the jobs suggested by the vocational assessor.
329 In a supplementary report, Dr Doherty advised that should the Panel not have come to the conclusion it reached, he would have concluded the plaintiff’s claimed mood symptoms do not, in themselves, taken in light of the DVD footage, reflect the presence of a psychiatric condition and she does not have a diagnosable Depressive Disorder. He noted the small dosage of antidepressant medication was given for the purposes of assisting sleep, and maybe augmenting the experience of pain, and was not given for the purposes of treating a Depressive Disorder.
330 In a further supplementary report, Dr Doherty advised the symptoms reported by the plaintiff could well be feigned, noting the level of movement on the June 2015 film.
331 When asked whether the plaintiff’s behaviour was conscious and unconscious, Dr Doherty commented; however, it was never easy to work out and be confident of a person’s motivation behind a complex action as wishing to portray herself as sicker or more impaired than others would suggest she should be.
332 On re-examination on 8 February 2017, Dr Doherty continued to be of the view the psychiatric conditions diagnosed by the Medical Panel were mild in severity. He thought available information indicated the plaintiff’s current symptoms were of a sufficient level to constitute a psychiatric condition marked by adjustment to the minor residual dysfunction of the right wrist. He then thought her presentation was that of an adjustment reaction to the previous, now resolved fracture and CRPS conditions. He considered a diagnosis of a Major Depressive Disorder in partial remission was an appropriate current psychiatric diagnosis.
333 Dr Doherty thought the psychiatric conditions that have arisen in consequence of the symptoms and diagnosis of CRPS should have resolved by now, as that condition has resolved. In his view, Dr Blombery’s ongoing diagnosis maintains and prolongs the plaintiff’s worry, fear and perception of pain.
334 Dr Doherty thought the psychiatric conditions do not affect the plaintiff’s capacity for work as there is no current work capacity. Other factors mitigating against employment would be age, English language, qualifications, transferable skills and the presence of complaints of mild functional loss and problems with mood.
335 On re-examination in June 2017, the presenting symptoms were largely unchanged. The plaintiff was then having an average dose of a mild antidepressant.
336 In Dr Doherty’s view, the psychiatric conditions, as diagnosed, do not, in their own right, cause a no current work capacity status or incapacitate the plaintiff for her usual duties. He thought she has the capacity to perform duties in an alternative workplace and with a different employer. He also considered her psychiatric conditions had a minimal impact on her daily activities.
337 In Dr Doherty’s view, the significant contribution to the plaintiff’s current mood state is the deteriorated relationship with her daughter, concern about her mother’s health, and feelings of loneliness. His diagnosis remained that of a Chronic Pain Syndrome in partial remission, along with a Major Depressive Disorder in partial remission. He considered the history of the psychiatric conditions was they would improve over time, and that they appeared to have done that. There were non-work-related issues that maintained the plaintiff’s unhappiness and the individual outlook for her was less favourable.
338 The plaintiff was last seen in January 2019.
339 On re-examination, the plaintiff quantified the level of pain at 7 out of 10 and Dr Doherty thought there were no evident pain-related behaviours.
340 When asked about motivation and energy, the plaintiff said she was weak every day and her whole body is weak. Even when her daughter asks her to go for a short walk, just a few minutes, she says she cannot persist. She told him her low back is now sore and she sits all day. The plaintiff described that she continued to live in suffering. She does not see friends and is not motivated to do so.
341 In Dr Doherty’s view, the plaintiff continued to overstate and over-emphasise symptoms. She did not use her right arm during the interview but, outside was able to swing it in a normal fashion when walking.
342 Dr Doherty diagnosed a pain-related condition, now titled a Somatic Symptom Disorder with predominate pain, and a Major Depressive Disorder.
343 Dr Doherty thought if the plaintiff’s reported symptoms and functional loss is as the plaintiff told him on examination, she could not undertake pre injury duties and that she claimed an inability to perform similar duties elsewhere.
Overview – (a) impairment
344 There is no dispute the plaintiff suffered a compensable injury to her right upper limb, namely a comminuted impacted fracture of the right distal radius/ wrist (“the fracture”) in the incident. Her claim was accepted and she was also paid an impairment benefit.
345 The issue however is whether any ongoing consequences of the impairment to the plaintiff’s right upper limb are organically based and serious.
346 The consensus of medical opinion is that the fracture has healed.
347 However, counsel for the plaintiff submitted the initial fracture has been complicated by the development of CRPS Type 1 (“the syndrome”) which treating vascular surgeon, Dr Blombery, has continued to diagnose, most recently in 2018, albeit complicated by a secondary depression.
348Counsel for the defendant submitted there is no CRPS Type 1, or indeed no organic injury explaining the symptoms or restrictions complained of.
“Just generally, the medical evidence, when viewed in total, strongly supports the conclusion that there is no ongoing organic injury here that explains the level of symptoms and restrictions complained of. There is simply a Colles fracture in 2010 that has healed satisfactorily.”[83]
[83]T58
Credit
349 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[84]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[84](2010) 31 VR 1 at paragraph [12]
350 Counsel for the defendant submitted credit is a significant issue in this case. The ultimate submission was that the plaintiff’s credit is so far impugned by the video in which it was submitted she was shown clearly behaving in a manner that was totally inconsistent with the way she presented to the doctors over a long period of time, that it totally undermines the opinions supportive of the plaintiff in her (a) application and it also undermines her case in respect of her (c) claim.[85]
[85]T53
351 Further, it was submitted there were a lot of convenient responses by the plaintiff to the surveillance footage which should cause the Court to have concern about accepting her evidence.[86]
[86]T67
352 Examples relied upon were the plaintiff saying she did not intend to go shopping when shown on film carrying her shopping trolley, her explanation about why she used her right hand to operate the trolley at the supermarket on a later occasion, and also her evidence about sweeping.[87]
[87]T68
353 Further, it was submitted there was over exaggeration in each and every medical report which was key to the findings of the relevant doctor.[88]
[88]T68
354 In answer to my question as to how to deal with the plaintiff’s responses to suggestions she was exaggerating, it was submitted the plaintiff “kept to the script” and her answers were deliberately vague in terms of going to the doctor and telling the truth. There were a lot of comments that she “could not” do things, not “did not” do things with her right arm.[89]
[89]T54
355 It was submitted this is not a case where the plaintiff has given these exaggerated histories to a doctor or two. There was generally quite a dramatic emphasis by her on being unable to do things with her right arm.[90]
[90]T55
356 During the hearing, I indicated I thought the plaintiff was not dishonest but had over exaggerated the level of her disability. Further, I thought there was some inconsistency between her history to doctors and her later viva voce evidence. [91]
[91]T83
357 In response to my question about the plaintiff’s viva voce evidence that she was not a cripple and her explanation of the histories she had earlier given to doctors, counsel for the plaintiff submitted the histories had to be read as a whole.[92]
[92]T83
358 Although not blaming the interpreter, counsel submitted medico-legal examinations were just a question and answer scenario.[93] It was submitted, at the end of the day what was given by the plaintiff was a history that is “nuanced to a degree about what she can and cannot do. It is not a history that is ultimately elicited by the doctor of absolutes such as ‘I can’t do it, I don’t do it’”.[94] Passages in Dr Doherty’s most recent report were relied on in this context.[95]
[93]T84
[94]T85
[95]T85
359 Further, counsel for the plaintiff submitted there was no suggestion by any practitioner the plaintiff was feigning her symptoms. Whilst the plaintiff had apparently failed to cooperate with Dr Karna on the grip test, findings of reduced grip strength made by other examiners were relied upon and Dr Karna’s examination was questioned; however, counsel pointed out the plaintiff did tell Dr Karna she was able to carry things in her right hand. Whilst the film showed the plaintiff doing so, it was submitted she was shown carrying predominantly with her left hand.[96]
[96]T89
360 In my view, whilst the plaintiff was never seen doing any particularly vigorous activity with her right hand or lifting anything that was heavy,[97] there was nothing shown on the various films of her having any particular difficulty with using her right hand or any guarding of it by her.
[97]T54
361 As I commented during the hearing, the film was probably more helpful in relation to the (c) claim as it did not support the plaintiff’s evidence that she was largely housebound because of her depression.[98]
[98]T53
362 Overall, and having reviewed the film post hearing, it remains my view that the plaintiff has overstated her level of disability in her affidavits and particularly in her histories to various doctors. As counsel for the defendant submitted, it was not a case of isolated histories being inaccurate - the whole flavour of what the plaintiff consistently told doctors suggested a significant level of disability, inconsistent with what was shown on the film and to some extent at odds with the plaintiff’s later viva voce evidence,
Is any current impairment organically based?
363 In Meadows v Lichmore Pty Ltd,[99] Maxwell P set out the two-step manner in which I ought to approach the task in this case:
“… The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative — and, of course, if the pain and suffering consequences satisfy the statutory criterion — then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.
If, however, that first question is not — or cannot be — answered affirmatively, then the applicant will need to take the next step and ‘disentangle’. That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.”
[99][2013] VSCA 201 at paragraphs 21-22
364 Counsel for the defendant submitted the diagnosis of the syndrome should be rejected on two main grounds: Firstly, support for the diagnosis was based on the plaintiff’s subjective complaints and an acceptance of a history of significant disability; secondly, there were no findings of the syndrome on a number of examinations, with many of those examiners noting non-organic factors in the plaintiff’s presentation.
365 Counsel for the defendant submitted both Dr Blombery and Dr Mehr had subjective elements to their diagnosis of the syndrome – such as the report of radiating pain, rather than continuing observation.[100] In those circumstances, it was submitted I should be very concerned about the diagnosis, given its subjective basis.[101]
[100]T55
[101]T56
366 It was submitted that Dr Blombery stepped back from his initial stronger diagnosis of the syndrome, having seen the 2013 film.[102] He then described the syndrome as mild.[103] He then became somewhat of an advocate, saying that a lot of the plaintiff’s pain is at night when she would not be filmed.[104]
[102]T59
[103]T56
[104]T57
367 It was submitted that Dr Mehr took a history of very significant problems, such as the plaintiff not being able to cook, clean or even shower herself without assistance. It was submitted that was totally inconsistent with the person seen on video and perhaps inconsistent with the plaintiff’s evidence in the witness box that she can do all these things.[105]
[105]T59
368 It was submitted a number of doctors, including Dr Thomas and also Mr Grossbard, found no features of the syndrome, and Dr Karna had normal examination findings over a number of years.[106]
[106]T56
369 Further, Dr Karna did not find any signs of the syndrome on a number of occasions and concluded there was a major functional component to the plaintiff’s presentation and no musculoskeletal basis. Dr Fraser made similar comments on examination in 2015. Mr Reid, in November 2011, found no evidence of Reflex Sympathetic Dystrophy.[107]
[107]T62
370 Dr Davison, and also Mr Grossbard, had a similar view. Further, Mr Grossbard commented there were some differences in the history he obtained from the plaintiff compared to that earlier obtained by Dr Wyatt. He noted the only feature suggestive of RSD was radiation of pain which was a subjective complaint.[108]
[108]T63
371 Dr Bloom thought the plaintiff presented with a chronic pain state in her arm which, it was submitted, was essentially based on self-report, with no organic basis.[109]
[109]T64
372 Mr Flanc, who examined the plaintiff early on, did not identify features to support a diagnosis of the syndrome. Dr Thomas thought there were not enough signs to meet that diagnosis.[110]
[110]T65
373 It was submitted there are doctors all the way though from 2011 consistently saying there are not enough features to diagnose the syndrome, save for Dr Blombery and Dr Mehr.[111]
[111]T65
374 On that basis, it was submitted on a Meadows v Lichmore Pty Ltd[112] analysis, the (a) claim “failed straight off”.[113]
[112][2013] VSCA 201
[113]T64
375 Counsel for the plaintiff’s primary submission was that the syndrome continues and the consequences are attributable to that condition.[114]
[114]T71
376 In support thereof, reliance was placed on the opinions of general practitioners, Dr Salter and later, Dr He, the Medical Panel in 2013, albeit that the condition had then resolved, Dr Blombery, Dr Thomas and Dr Wyatt.[115]
[115]T71
377 Further, medico-legal examiner, Dr Mehr, on clinical examination, found evidence of the syndrome based on objectively verifiable issues, delineating subjective findings.[116]
[116]T73
378 Dr Bloom accepted early on there was or could have been CRPS but he thought it had resolved.[117]
[117]T73
379 It was submitted the first leg of Meadows v Lichmore Pty Ltd,[118] namely a substantial organic basis had been established.
[118]ibid
380 In the alternative, if the plaintiff’s present impairment lacks a substantial organic basis, counsel for the plaintiff submitted the remaining organic consequences are serious - the second limb of Meadows v Lichmore.[119]
[119]T74
Findings
381 It is not disputed that the original injury, the fracture, has healed. The only organic explanation for the plaintiff’s present complaints is the syndrome. Whilst there was some support for this diagnosis at an early stage from Dr Wyatt, the Medical Panel, the plaintiff’s general practitioners and Dr Blombery, in more recent times, there has been little found on clinical examination to support this diagnosis.
382 On examination in May 2017, Dr Blombery thought the plaintiff continued to have features of the syndrome with the Autonomic Disorder not being marked. When he reported in October 2018, having last seen the plaintiff in July that year, he noted she continued to have some features of CRPS – though not particularising any relevant findings of this syndrome at that time. His most recent diagnosis was threefold: the fracture complicated by CRPS Type 1, and secondary depression and possible carpal tunnel compression of the median nerve.
383 Other objective findings of the syndrome are limited. Dr Mehr, in 2017, noted the plaintiff’s right hand was more sweaty than the left although he also found there were no atrophic changes and no colour or temperature difference. Whilst findings on re-examination in 2018 were not specifically particularised, Dr Mehr again noted over sweating of the right hand.[120]
[120]T61
384 In forming his opinion, Dr Mehr also relied on the plaintiff’s description of a significant level of disability and restrictions.
385 I am mindful of what was said by Chernov JA in Dordev v Cowan[121] in relation to the plaintiff’s credit in this type of case:
“A plaintiff’s credibility is relevant not only to whether his evidence should be accepted but it is also relevant to the reliability of the medical evidence because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.”
[121]Dordev v Cowan [2006] VSCA 254 at paragraph [14]
386 Accordingly, in this case, what appear on their face to be medico-legal opinions supportive of the plaintiff’s claim must be looked at in the light of my views as to the plaintiff’s credit.
387 The preponderance of medical opinion is that the diagnosis of CRPS Type 1 cannot be made on the clinical findings.
388 In August 2011, Mr Grossbard found no signs of an RSD and expected full recovery. In November that year, Mr Reid reported there were no findings to support an RSD.
389 In December 2012, Mr Flanc’s examination was normal, although noting the history of colour change would be consistent with a mild degree of the syndrome
390 In May 2013, Dr Davison found no objective evidence to confirm the syndrome and found global weakness of a collapsing nature. Similar findings were made by Dr Karna in July 2013, September 2016, July 2017 and June and December 2018. On later examinations, Dr Karna noted clinical inconsistencies and abnormal illness behaviour on the plaintiff’s part.
391 Earlier, on examination in August 2015, Dr Fraser found no features of RSD and noted the presence of non-organic factors.
392 In October 2016, Dr Bloom found no objective signs of autonomic dysfunction but accepted the possibility the plaintiff initially developed a mild form of the syndrome and she was now suffering from a CRPS.
393 Dr Thomas, in October 2017, thought the plaintiff did not have enough signs to meet the diagnosis of CRPS Type 1, although he accepted the diagnosis as described being CRPS Type 1.
394Whilst Dr Wyatt, in 2012, thought the syndrome was present, she described it as mild and noted non-organic features in the plaintiff’s presentation. Further, on examination the previous year, she found a healthy grip strength.
395I am also not satisfied there is an organically based compensable right upper limb impairment given the widespread and variable nature of the plaintiff right upper limb complaints. Further, post injury, she has experienced problems specifically with her right shoulder. From 2012, she has had right shoulder pain and was sent for an ultrasound and an injection that year, and again in 2015. That injection helped her right shoulder pain a lot, but the pain gradually returned. In her affidavit, Ting confirmed the plaintiff’s ongoing right shoulder problems.
396 Further, Dr Blombery has recently raised the possibility of a right carpal tunnel syndrome as being responsible for some of the plaintiff’s current wrist complaints. There is no medical evidence whatsoever that this new condition is referrable to the plaintiff’s compensable injury.
397 Taking into account all the evidence, including the plaintiff’s presentation to doctors, her viva voce evidence and medical opinions, I am not satisfied any present right upper limb impairment has a substantial organic basis. Further, I am not satisfied that she has successfully disentangled the physical contribution from the psychological to establish that the pain and suffering and loss of earning capacity consequences attributable to the physical injury satisfy the statutory test of seriousness.
398 Accordingly, the application for pain and suffering is dismissed. Further, I am not satisfied that any loss of earning capacity is related to an organically-based condition, therefore I am not required to consider whether the plaintiff has suffered a 40 per cent loss.
Clause (c) application
399 Having made this finding, the plaintiff’s application in relation to mental impairment must be considered.
400 As noted in the preamble to my judgment, a Chronic Pain Syndrome can result in an impairment under ss(c) if a plaintiff can establish a sufficient causal link between an initial compensable physical injury and a Chronic Pain Disorder which meets the severe criteria of a claim under definition (c).[122]
[122]per Ashley JA in Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227
401Counsel for the plaintiff submitted that if the right wrist condition was not found to be organically based, the plaintiff would succeed on the psychiatric impairment based on the opinions of Dr Doherty and Dr Ingram.[123]
[123]T88
402 In written submissions, counsel for the plaintiff relied on the ongoing psychological treatment and medication which had been prescribed that was described by counsel as suboptimal. Whilst the plaintiff had not received psychiatric treatment, Dr Ingram thought such treatment was appropriate.
403 Further, Dr Ingram considered the plaintiff’s prognosis was poor. He diagnosed a psychiatrically-based condition of a Depressive Disorder – not a Pain Syndrome. On that basis, he thought the plaintiff was unemployable.
404 Alternatively, Dr Doherty diagnosed a Pain Disorder in addition to a Major Depressive Disorder, the combination of which rendered the plaintiff unemployable.
405 It was submitted on either psychiatric approach, the plaintiff’s condition was severe. She had lost the capacity for meaningful employment. In addition, she is socially isolated and largely alone. She feels and is a burden to her daughter.
406 In oral submissions, counsel for the plaintiff submitted there was little social interaction, with one occasion in 2017 and then the next, eighteen months later, in October 2018. In light of the surveillance log provided, there were numerous occasions where the plaintiff was not sighted, supporting her evidence that she spends a lot of time at home.[124]
[124]T86
407 It was submitted the reality is the plaintiff is, without ongoing employment, socially isolated, as she has reported to doctors and psychologists, and she feels a waste and burden on her daughter.[125] Her limited social interaction and loss of interest in other activities were mainly to do with her lack of motivation.[126]
[125]T87
[126]T88
408 Counsel for the defendant submitted the psychiatric claim was reliant, very heavily, on an acceptance of the accuracy of the plaintiff’s history to the medico-legal psychiatrists. It was submitted what Dr Doherty and Dr Ingram had been told was based on a history wholly inconsistent with what was shown in the film and, to a fair extent, the plaintiff’s viva voce evidence.[127]
[127]T66
409 It was submitted the history to Dr Ingram was quite extreme, leading him to the diagnosis of a Major Depressive Disorder based on an acceptance of the plaintiff’s report that she rarely went out of the house, employing a cleaner, only cooking simple meals and staying in her pyjamas, sometimes for three or four days.[128]
[128]T66
410 Counsel for the defendant further submitted any psychiatric consequences were not severe. There was no psychiatric treatment, only recent referral to a psychologist, only in more recent times some antidepressant medication which was a small dosage given to treat sleep and maybe pain but not for the purposes of treating a depressive disorder. Further, there had been no inpatient hospitalisation.[129]
[129]T69
411 It was submitted the surveillance film displays the plaintiff as a person capable of going out, catching public transport, socialising and functioning in all general respects. Further, she does not present as someone who is severely depressed and in court, did not present the way she presented to the medico-legal psychiatrists.[130]
[130]T69
412 Reliance was also placed on Dr Ingram’s view that there had not been enough antidepressant medication and the plaintiff’s condition was not stable and, therefore, could not be said to be permanent.[131]
[131]T69
413 It was submitted, in respect of any claim the plaintiff could not work on a psychiatric basis that, again, was based on an acceptance of what it was submitted was an exaggerated history.[132]
[132]T70
414In my view, any psychiatric condition as at the date of hearing is not severe.
415 There is little evidence as to the plaintiff’s psychiatric condition in the early years after her injury. On 2 December 2013, the Medical Panel considered her to be suffering from a Pain Disorder associated with psychological factors, a now largely resolved general medical condition, and a major depressive episode relevant to the right wrist; however, on 4 September 2015, the Panel considered there to be a zero per cent psychiatric impairment.
416 As of September 2015, in Dr Doherty’s opinion, should the plaintiff have a pain disorder as the Medical Panel had earlier found, that condition was significantly lessened in severity and significantly improved. Should she have suffered a Major Depressive Disorder, that was also improved and was then largely remitted.
417The only report from the plaintiff’s general practitioner in the first seven years after the incident was the Standard Report prepared by Dr Salter. There was no mention of depression or any other psychiatric issues in this short report of July 2015.
418There was no mention in the plaintiff’s first affidavit sworn October 2015 of any psychiatric issues. In her second affidavit sworn March 2017, she described the onset of depression six months after the incident. That depression was worsening and affected her concentration. She was anxious and preferred to stay at home. Anti-depressant medication had been prescribed six months earlier with some improvement.
419Significantly, the plaintiff has not been referred for psychiatric treatment. Psychological counselling with Dr Lin only started in April 2017. When she reported in July 2017, Dr Lin noted the plaintiff’s willingness to return to work although that was largely dependent on her physical state. She made no suggestion of the need for psychiatric treatment at that time or in her later report of December 2018.
420Whilst the plaintiff continues to take anti-depressant medication, it has not been suggested the dosage is particularly significant.
421Dr Ingram raised the issue of permanency after examination in both January 2017 and November last year – noting that without trial of other anti-depressants he would not consider the plaintiff’s condition stable.
422I accept that largely the medico-legal support for a psychiatric diagnosis and a resultant incapacity for work is based on the extreme histories of the plaintiff’s level of depression and her resultant inability to socialise and enjoy her life.
423An example thereof was the plaintiff’s history to Dr Ingram that she felt in turmoil and worthless and had lost interest in everything.
424Although Dr Doherty considered the plaintiff to have no work capacity when he last saw her in January this year, he stressed that this view was “based on her reported symptoms and functional impairments”, noting “she appeared to overstate and over emphasis impairment”.
425Whilst the film is a snapshot of the plaintiff’s life, it did not show a woman who was housebound and socially isolated. Clearly, she can go shopping with friends, not only for groceries but also as a social activity for some hours, as the most recent film demonstrated. She is able to use public transport without difficulty. This situation is not consistent with her description to Dr Doherty of being housebound, not getting dressed and staying in her pyjamas for days.
426In my view, the plaintiff’s presentation whilst giving evidence was not of a woman in any distress and she was able to understand and answer all questions with the assistance of an interpreter.
427 Further, in terms of work capacity, the plaintiff said she felt capable of doing light work full-time because of her right arm pain, not any psychiatric problems.[133]
[133]T65
428When Dr He reported in August 2018, he thought any incapacity for work was physically based.
429Taking into account all the evidence, I am not satisfied any psychiatric impairment as at the date of hearing is severe or results in a loss of earning capacity of 40 per cent.
430Accordingly, the application pursuant to clause (c) is also dismissed.
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