Lual v Victorian WorkCover Authority
[2017] VCC 1821
•8 December 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-02445
| Andrea Robert Lual | Plaintiff |
| v | |
| Victorian WorkCover Authority | Defendant |
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JUDGE: | S. Davis | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8-10 November 2017 | |
DATE OF JUDGMENT: | 8 December 2017 | |
CASE MAY BE CITED AS: | Lual v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1821 | |
REASONS FOR JUDGMENT
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Subject: Common Law
Catchwords: Serious Injury Application
Legislation Cited: Accident Compensation Act 1985 (Vic)
Cases Cited: Richter v Driscoll [2016] VSCA 142Acir v Frosster Pty Ltd Judgment: Leave granted to the plaintiff
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Coldwell with Mr R Lewis | Ryan Carlisle Thomas |
| For the Defendant | Mr T Ryan | IDP Lawyers |
HER HONOUR:
1 Mr Lual applies under s 134AB(16)(b) of the Accident Compensation Act 1985 (Vic) (‘the Act’) for leave to issue proceedings for the recovery of damages for pain and suffering and economic loss flowing from an injury to the right arm suffered during the course of his heavy employment cutting, grinding, sandblasting and polishing bluestone for Melocco Pty Ltd (‘Melocco’) between 15 November 2006 and 16 February 2011. He says that he suffered an organic injury to the right arm in the form of right carpal tunnel syndrome which was diagnosed in September 2010. The plaintiff kept working on light duties but lost his job in February 2011 as he could not perform his normal duties. He underwent a carpal tunnel decompression in August 2011, which improved the numbness in his right hand but left him with pain in the right forearm. He also developed a tremor in early 2012 which is still present. The plaintiff made an Impairment Benefits claim pursuant to s 98C of the Act on 24 November 2014 and the defendant accepted liability for right carpal tunnel injury and psychiatric injury on 8 April 2015.
2 The plaintiff relies on the opinion of Dr Peter Blombery to the effect that the ongoing pain and other right arm symptoms, apart from the tremor, attract a diagnosis of complex regional pain syndrome type 1 (‘CRPS 1’), an organic condition which is a direct complication of the carpal tunnel surgery. The plaintiff says, and Dr Blombery agrees, that as a result of the CRPS 1, the plaintiff’s work capacity has been permanently extinguished. The plaintiff also says that the pain and suffering consequences of his injury are more than considerable than other cases in the range of permanent impairments of the upper limb.
3 Alternatively, the plaintiff says that if the court is not satisfied that the condition suffered by the plaintiff is organic, or is satisfied that it was at first organic but was subsequently overtaken by a chronic pain disorder or conversion disorder, the consequences of that psychiatric disorder meet the narrative test for serious injury.
4 The defendant concedes that the plaintiff suffered an organic work-related injury by way of carpal tunnel syndrome but says that this condition was successfully treated with surgery on 26 August 2011 and has resolved. The defendant relies on the opinions of Dr Barton, Associate Professor Littlejohn, Dr Freilich, Dr Williams and Dr Stevenson to the effect that there is no subsisting carpal tunnel syndrome; that the plaintiff does not have CRPS type 1; that his current tremor is non-organic; and that the symptoms of pain, weakness and sensory changes are non-organic, accompanied by abnormal illness behaviour, and suggestive of either unconscious psychological factors, such as a chronic pain disorder or somatoform disorder, or of deliberate malingering for financial reward. On this basis, the defendant says there is no nexus between any psychological condition now suffered by the plaintiff and the work he performed between 2006 and 2011.
5 The defendant also relies on surveillance footage showing the plaintiff moving and driving in an unrestricted fashion, as well as gambling. The defendant says that the footage contradicts the plaintiff’s claim that he does not gamble, and also shows that the picture he painted to various doctors of his claimed day-to-day restrictions was grossly exaggerated.
The plaintiff
6 The plaintiff swore three affidavits[1] in support of his application, and their contents are briefly summarised as follows.
[1] Plaintiff’s Court Book (PCB) 21-38
7 He is 41 years old, married with four children, speaks Arabic and limited English, and is right hand dominant. He was born and educated in Sudan to Year 12. He then obtained a certificate in fitting and turning. He lived in Sudan until 2002, when he moved to Egypt to work as a cleaner and then as a handyman performing heavy manual work. He migrated to Australia in August 2005, completed 510 hours of basic English language tuition at AMES College, and commenced full-time work with Melocco in November 2006, as a grinder and sandblaster of bluestone bricks. He worked between 10-12 hours per day, along with frequent overtime, earning $56,255 gross in the 2009/2010 financial year.
8 In August 2010 he developed pain, swelling and numbness in his right arm and hand. He saw his general practitioner, Dr Dawood, who arranged a nerve conduction study which confirmed a diagnosis of carpal tunnel syndrome. The defendant’s doctor, Dr Nash,[2] recommended that he undergo surgical decompression and certified him fit for light, non-repetitive duties. The plaintiff was not provided with any information concerning how to make a WorkCover claim. His duties were repetitive, fast paced and not light. Over the next month, his employers told him he was not doing his job properly. On 16 February 2011, his employment was terminated, and he has not worked since then. He made a WorkCover claim on 23 February 2011.
[2] PCB 69-75
9 Dr Dawood referred him to a hand surgeon, Mr Tham, who recommended[3] and then performed a right carpal tunnel release on 26 August 2011. Mr Tham reported[4] on 9 September 2011 that the surgery had gone to plan and that the right carpal tunnel syndrome had “resolved”. Mr Tham noted however, that when reviewed in October 2011,[5] the plaintiff complained of “a burning sensation in ring and middle fingers” and that when reviewed in November 2011 he complained of numbness of his fingertips.[6]
[3] PCB 95
[4] PCB 95
[5] PCB 95
[6] PCB 96
10 In his first affidavit,[7] the plaintiff stated that the carpal tunnel release helped relieve the numbness but his right forearm pain increased and remained quite severe. He had a tremor in his right arm and hand which made it difficult for him to pick things up or carry heavy things. His right arm and hand were weak, and his forearm painful. His sleep was disturbed. He was able to drive for about 30 minutes.
[7] PCB 21-25
11 In his second affidavit,[8] he noted that his sleep had worsened, that he was waking at night with pain in his right arm. His right arm was getting hot and cold from time to time, and his tremor was still present when he tried to grip moderately heavy items. He was most troubled by his right arm pain, which was constant, at a level of 8/10, and which was not relieved by medication, but was relieved for a short time by physiotherapy. The right arm pain restricted his movement and was waking him up. He was relying more heavily on his left arm for most activities. He was able to drive short distances, mainly using his left arm.
[8] PCB 26-31
12 The work that he did prior to his employment being terminated was very physical work and he could no longer do that work as a result of his right arm pain. He had been linked to three different employment agencies but none had been able to find him work within his skill-set.
13 Prior to his injury, he played soccer twice weekly with a club, and used to run twice per week. He has stopped both activities and has put on weight. He and his wife have problems with physical intimacy as a result of his right arm pain.
14 In his third affidavit,[9] he stated that the tremor, which has been present since 2012, does not occur when his right arm is at rest. He ceased having hand therapy or massage as he cannot afford it. He still has constant right arm pain, which varies in intensity, and is worse in the cold. He also has pain in the right hand and fingers, and notices that some days the right hand is darker and cooler than the left. He tries to keep his right hand warm by keeping it in his pocket during the day and wearing a thermal wrist splint at night. He takes medication as prescribed by Dr Dawood. His memory and concentration have diminished. He has become socially isolated and hardly ever enjoys himself anymore.
[9] PCB 32-38
15 He is currently in receipt of social security payments in the form of Newstart Allowance. He has been to a recruitment centre to seek employment, but was told that no-one would employ him due to his injuries. Centrelink had referred him to an employment agency, but that agency had closed his file. He enjoyed working for the defendant and is unsure what job he would be able to perform given his physical restrictions, limited education, poor computer and English skills, and work history in manual occupations. He is anxious and worried about his future.
16 At the hearing, in cross-examination, the plaintiff agreed that he did not see any doctors for his symptoms between December 2010 and 8 February 2011. The plaintiff said that after he was given a light work certificate on 8 February 2011, his employers did not comply with the certificate and gave him heavy work to do. He was unhappy that he had to perform such duties, but denied behaving aggressively or demanding to be sacked when he attended the meetings with his bosses in early February 2011. He said that after his boss terminated his employment, he was to return the next day to get his entitlements and he did so. He said he wanted to keep his job, because he earned well from it and now gets only $450 per fortnight from Centrelink. He agreed that he lodged proceedings in the Magistrates’ Court in May 2011 alleging discrimination on the basis of his injury, and said that the proceedings had settled on confidential terms.
17 The plaintiff agreed that, in the extracts of surveillance footage from 2016 and 2017, which were viewed in court,[10] showed him walking, swinging his right arm freely, driving, standing, talking, putting meat on a barbeque at the park, and playing a poker machine at a licensed venue. He agreed that in the footage shown he did not have his right hand in his pocket, but said he does this when walking long distances, to help with his right hand pain, as swinging the right arm causes him pain. He said that he sometimes puts $5.00 on the poker machines, but does not have a gambling problem.
[10] Exhibit 2
18 In re-examination, the plaintiff said that Dr Nash gave him a certificate on 8 February 2011 which provided that he not do any activities involving grinding, or any sustained gripping, highly repetitive or jarring use of the right hand, but that nevertheless his employer gave him heavy duties to perform. In relation to the surveillance footage shown in court, he said he was doing many things with his left hand which he used to do with his right hand, such as holding petrol pumps, shopping baskets, and crates. He said that because of the pain these activities caused him when performed right-handed, he had retrained himself to do many things with his left hand.
The plaintiff’s wife
19 Alliza Laki, the plaintiff’s wife, swore two affidavits[11] in support of the plaintiff’s application. She stated that prior to the plaintiff sustaining his injuries he was friendly and sociable, houseproud and hardworking, and heavily involved in community events. Since being injured, he can longer assist with performing domestic chores such as washing, ironing and gardening around the home. The plaintiff now spends most days at home, sitting down and protecting his right arm. He no longer socialises much. His sleep is often disturbed. He often complains of pain radiating from the right shoulder blade down to his right arm to his right wrist. She regularly massages the plaintiff’s right arm and wrist to help ease his pain.
[11] PCB 39-42
Medical Evidence
20 Dr John Nash, general practitioner, examined the plaintiff on 14 November 2006 before he commenced employment with the defendant and found no abnormalities.[12]
[12] PCB 69
21 Dr Fouad Dawood, general practitioner, has been treating the plaintiff since August 2008, when the plaintiff first complained of right thumb numbness. At that time, Dr Dawood diagnosed carpal tunnel syndrome.[13]
[13] Defendant’s Court Book (DCB) 71
22 On 8 September 2010, Dr Nash noted[14] a history from the plaintiff of 1 month of altered sensation in his right hand and some fingers of that hand. Dr Nash diagnosed carpal tunnel syndrome and referred the plaintiff for a nerve conduction study. He notified the plaintiff’s manager that it was necessary to remove the plaintiff from using grinding and other vibration tools.[15]
[14] PCB 69
[15] PCB 69
23 Nerve Conduction study performed on 7 September 2010[16] showed a right carpal tunnel syndrome. Dr Nash advised the plaintiff to remain on modified duties and referred him to Mr David Ross.
[16] PCB 47
24 The plaintiff saw Mr David Ross, plastic surgeon, in October and November 2010 in relation to his carpal tunnel compression.[17] Mr Ross did not feel surgical intervention was warranted. On the second occasion, his symptoms had improved somewhat. The plaintiff did not present for further review in March 2011.
[17] PCB 43
25 On 8 February 2011, the plaintiff complained to Dr Nash of “an increased workload causing increased pain and numbness, which was also involved in the 3rd and 4th fingers, in the right hand.”[18] Dr Nash advised the plaintiff to consider surgery, noting that with surgery “a complete resolution of symptoms would be expected,” but that “the longer the median nerve is compressed in the tunnel the chance of full recovery of symptoms diminishes”. Dr Nash indicated that the plaintiff’s condition was work-related.
[18] PCB 69
26 On 15 April 2011, a Vocational Assessment Report by Healthe Work[19] identified a number of possible employment options for the plaintiff: car-park attendant; meter reader; parking inspector; pathology courier; and packer.
[19] DCB 166
27 The surgical note concerning the carpal tunnel decompression performed on 26 August 2011 recorded “adequate release was performed.”[20]
[20] DCB 31
28 On 9 September 2011, the treating surgeon, Mr Stephen Tham, found no evidence of post-operative complications and was told by the plaintiff that his that his symptoms had resolved.[21]
[21] PCB 95
29 On 11 October 2011, the plaintiff complained of “a burning like sensation of his right ring and middle fingers.” Mr Tham told the plaintiff that it was unusual to suffer a recurrence of carpal tunnel syndrome after successful decompression.[22] On 8 November 2011, the plaintiff complained of “symptoms of numbness of his fingertips”, but Mr Tham felt this did not warrant any further investigation or treatment.
[22] PCB 96
30 Dr Simon Kennedy, clinical and forensic psychologist, undertook a psychological evaluation of the plaintiff[23] and provided a report to the plaintiff’s solicitors dated 7 March 2012. He diagnosed:
…Adjustment disorder with mixed anxiety and depressed mood with the causes of his Adjustment Disorder being shared between his loss of work, the treatment in the workplace as well as the physical injury. The treatment within the workplace represents a significant contributing factor.[24]
[23] PCB 76-90. This was based on three attendances on 27 February 2012, 5 March 2012 and 6 March 2012
[24] PCB 85
31 Dr Kennedy indicated that the plaintiff’s prognosis was uncertain but felt his psychological condition was likely to improve and recover if the plaintiff had counselling, took antidepressants, and found alternative employment.[25]
[25] PCB 85
32 On 16 March 2012, Dr Victor Gordon, neurologist, performed a further nerve conduction study and noted:
Right carpal tunnel release surgery in 8/11, sensory symptoms somewhat improved but subsequent course complicated by action tremor of the hand and limb and pain from axilla distally.[26]
…The findings in the right median nerve are improved to those of the pre-surgical study; electrophysiological parameters may not return to normal after even clinically successful carpal tunnel syndrome.[27]
[26] DCB 32
[27] DCB 32
33 Dr David Barton, consultant occupational physician, provided a report to QBE Workers Compensation dated 22 March 2012.[28] Dr Barton considered that the physical examination “pointed to a degree of functional overlay.” He considered gross weakness on muscle power testing and non-anatomical sensory changes were “feigned.”[29] Dr Barton opined that the plaintiff’s carpal tunnel syndrome had resolved and that he displayed non-specific symptoms that did not fit with any recognised physical problem. He believed that the plaintiff had features of abnormal illness behaviour.
[28] DCB 1-6
[29] DCB 3
34 On 20 April 2012, the plaintiff presented to Mr Tham with tremor of the fingers of the right hand which materialised while lifting or when making a fist.[30] Mr Tham considered[31] that the tremor was unrelated to the surgical procedure and suggested the plaintiff seek a neurological opinion.
[30] PCB 96
[31] PCB 96
35 On 18 May 2012, Dr Dawood noted[32] that the plaintiff continued to have symptoms many months after his surgery, and had “developed a tremor of his right hand when he makes a fist or carries with his right hand.” He repeated his opinion that the plaintiff was not fit to return to pre-injury duties but was perhaps able to perform other duties that did not require gripping or lifting with the right hand.
[32] PCB 59
36 Dr Udaya Seneviratne, neurologist, saw the plaintiff in relation to his tremor and wrote to Dr Dawood on 19 September 2012, noting the history of onset – 4 to 6 weeks after surgery – of a tremor in the right forearm which did not occur at rest, but when the plaintiff applied pressure with the right arm or held a heavy object in his right hand. Dr Seneviratne felt that the most likely diagnosis was that of orthostatic tremor, a poorly understood condition involving tremor in the arms or legs when a person was stationary.[33]
[33] PCB 92
37 Dr Seneviratne reviewed the plaintiff in late January 2013[34] and noted that the tremor was persisting. He referred the plaintiff to a movement disorders specialist, Dr David Williams.
[34] PCB 96
38 On 13 May 2013, Dr Williams wrote[35] to Dr Seneviratne noting that when he examined the plaintiff he found a “mild action tremor affecting the right side with much associated discomfort around the hand and the forearm.” He felt there was “much psychogenic weakness on examination with evidence of give way weakness throughout the right upper limb.” Dr Williams felt there was “an element of central pain syndrome which may be related to his work” affecting the plaintiff’s presentation. He planned on reviewing the plaintiff in four months, after having performed a tremor analysis. He prescribed Lyrica for the plaintiff’s pain.
[35] PCB 101
39 On 16 September 2013, Dr Williams wrote[36] to Dr Dawood that, on review, the plaintiff continued to complain of right upper limb pain and a tremor. On examination, Mr Williams felt that the plaintiff’s tremor was psychogenic and non-organic and could be related to his work injury and his loss of employment.
[36] PCB 102
40 Dr Robert Hjorth, neurologist, reported to the plaintiff’s solicitors on 26 November 2013[37] that the plaintiff complained to him of a number of symptoms: weakness and shaking of the right hand when he tried to do anything; pain extending from the right elbow down to the hand; and a pins and needles-like sensation that appeared sometimes during cold weather in the 3rd and 4th fingers of the right hand. On examination, Dr Hjorth found “collapsing weakness of all movements in the right upper limb” which “appeared to be functional”, as well as an intermittent tremor which occurred “only when attention was focused on the right hand and when it was held rigid”.[38] He felt that “psychological ‘functional’ factors” may be playing a role in producing the tremor.[39] In any event, however, Dr Hjorth felt that the plaintiff was not fit to return to his pre-injury duties, and that while in theory he could return to alternative duties, his poor English made it unlikely that he would find suitable employment.
[37] PCB 105-108
[38] PCB 106
[39] PCB 107
41 On 1 September 2014, Dr Williams further reviewed the plaintiff and reported that there were no clear neurological explanations for his symptoms and that his condition was “a functional movement disorder possibly related to a chronic pain disorder or mild regional pain syndrome”, and that the tremor was “superimposed on top of a chronic pain in the right limb”.[40] He noted that the tremor was having a “big impact” on the plaintiff’s ability to work and function.
[40] PCB 103
42 The plaintiff had hand therapy between 2014 and mid 2016 but this did not appear to improve his hand strength or function.[41]
[41] See the letter of Ms Amelia Clarke, occupational and hand therapist, to Dr Dawood on 7 November 2014 at PCB 104 and a letter to similar effect from Dr Kelly Bartram, neurologist at the Alfred Hospital, to Dr Dawood on 2 May 2016 at PCB 159
43 On 3 December 2014, Dr Dawood reported[42] that, on physical grounds due to the plaintiff’s chronic symptoms, which were unlikely to improve significantly, the plaintiff was not fit for his pre-injury duties or for any work requiring upper limb strength and a certain degree of dexterity.
[42] PCB 64
44 Dr Stephen Stern, consultant psychiatrist, provided a report to QBE Workers Compensation dated 4 February 2015 for the purposes of the plaintiff’s s 98C claim.[43] He diagnosed the plaintiff with a chronic adjustment disorder with mixed anxiety and depressed mood which was developed as a result of the physical injury to the right wrist sustained at work on 1 August 2010. He noted that the plaintiff’s social and leisure activities had been reduced, and that his activities of daily living “are not limited by psychiatric factors alone”.
[43] DCB 19-26
45 On 31 March 2015, Associate Professor Geoffrey Littlejohn, rheumatologist, provided a report[44] to the defendant’s insurer the purposes of the plaintiff’s s.98C claim. Associate Professor Littlejohn considered that the plaintiff’s forearm pain and tremor occurred in the context of his treated carpal tunnel syndrome. He noted the plaintiff reported no swelling, colour change, sweating or other features in the right hand that could link to complex regional pain syndrome.[45] He considered that the key symptoms of the carpal tunnel disorder had resolved after surgery, but that the plaintiff now had “clinical features of a chronic pain syndrome affecting the right upper quadrant, more so the right forearm region comprising persisting and significant pain and sensory dysaesthesia in that region”, as well as a “fine tremor affecting the forearm and hand which affects function”.[46] He noted that the forearm pain and tremor “have occurred in the context of his treated carpal tunnel syndrome”, but whereas “the carpal tunnel syndrome has been treated appropriately surgically and has resolved”, the “pain syndrome persists”.[47]
[44] DCB 7-18
[45] DCB 9
[46] DCB 13
[47] DCB 14
46 Professor Littlejohn felt that the plaintiff’s condition would improve over time but that his chronic pain syndrome was affecting his occupational and daily living activities in that he had significant levels of sleep disturbance and high levels of fatigue; poor memory and concentration; suffered headaches and got frustrated with some mood change; could not do much in the way of exercises; was paying for hand therapy but without significant relief; could drive for only less than 15 minutes, and could not lift heavy shopping. He stayed at home most of the time.
47 On 23 July 2015, the Medical Panel noted in its Reasons for Opinion[48] that the accepted right median carpal tunnel syndrome had been successfully treated by surgery and had now resolved. There was no longer any work-related medical condition. The Panel also determined that the plaintiff’s tremor was of non-organic origin. The Panel agreed with Dr Stern and Dr Kennedy that the plaintiff suffered from an Adjustment Disorder with Mixed Anxiety and Depression secondary to his physical injury. The Panel also agreed with Associate Professor Littlejohn that the plaintiff’s physical symptoms of right forearm pain and numbness were consistent with a chronic pain syndrome.
[48] PCB 150
48 Dr Nirosen Vijaratnam, movement disorders fellow, reviewed the plaintiff at the Alfred Hospital and wrote[49] to Dr Dawood on 2 November 2015. He described the plaintiff’s symptoms as representing “what seems to be a chronic regional pain syndrome in his right upper limb with associated functional weakness and a psychogenic tremor.”
[49] PCB 158
49 Dr Louise Seward, psychiatrist, reported to the plaintiff’s solicitors on 13 December 2016[50] that, given the consensus among neurologists that the plaintiff’s tremor was functional or non-organic, the plaintiff would qualify for a diagnosis of conversion disorder.[51] She considered that the plaintiff had developed three work-related psychiatric conditions: an adjustment disorder with depressed and anxious mood (moderate severity); a chronic pain disorder associated with both psychological factors and a general medical condition; and a conversion disorder. Dr Seward considered that, as a consequence of psychiatric injury alone, the plaintiff was permanently incapacitated for all work. She noted that he is socially withdrawn, has reduced motivation and has difficulty completing simple domestic tasks. His concentration is impaired, and he has given up doing voluntary community work or playing local community soccer. She felt that he required psychiatric treatment, and referral to a pain management clinic.
[50] PCB 126-136
[51] PCB 134
50 Dr Peter Blombery, vascular physician, reported to the plaintiff’s solicitors on 9 December 2016[52] that the plaintiff complained of ongoing pain in the right forearm which was rated as 8/10 in intensity. On examination, he found that the plaintiff’s right hand sweated excessively compared to the left hand and there was also swelling of the right hand; and that the right hand was darker and 2.5 degrees cooler than the left hand. He diagnosed “carpal tunnel compression of the right median nerve complicated by complex regional pain syndrome type 1 (CRPS 1) and a functional tremor”.[53] He noted that CRPS 1 was “a well-known complication of carpal tunnel decompression”. He considered that the plaintiff was permanently incapacitated for his pre-injury duties and, given his language difficulties and work history in manual labour, for any suitable employment. He would require ongoing treatment for chronic pain.
[52] PCB 109
[53] PCB 112
51 On 21 February 2017, in answer to the question whether CRPS 1 was an organic complication of the plaintiff’s carpal tunnel decompression, Dr Blombery responded:
Complex regional pain syndrome, type 1 is an organic disorder of the pain nerve pathways with much experimental evidence supporting that concept. The are no major psychological factors causing it.[54]
[54] PCB 115
52 Dr Louise Barberis, occupational physician, reported to the plaintiff’s solicitors on 22 February 2017[55] that the plaintiff “is suffering from a chronic pain condition, possibly Complex Regional Pain Syndrome Type 1 (CRPS)” and the tremor is a manifestation of sympathetic nervous dysfunction.[56] She considered that the condition “has arisen secondary to the nature of his work and as a result of CT release surgery which is a risk factor for CRPS”.[57] Dr Barberis concluded that, due to his physical injury, the plaintiff permanently had no capacity for his pre-injury work, and would require unskilled work of a non-physical nature. She recommended that a vocational assessment be undertaken to identify any suitable employment options. She felt his prognosis was uncertain, but that his condition could improve over time.
[55] PCB 122
[56] PCB 122
[57] PCB 122
53 On 13 March 2017, Dr Dawood reported[58] that the plaintiff had suffered from carpal tunnel compression of the right median nerve (requiring surgery) complicated by a complex regional pain syndrome and a functional tremor, as well as the development of an adjustment disorder and mixed depression and anxiety secondary to his initial condition. Dr Dawood considered that the plaintiff would be permanently unfit for his pre-injury duties due to the pain syndrome combined with the tremor of the right upper limb. Given the plaintiff’s work history, education and English skills, Dr Dawood considered that he had very limited options for suitable employment.
[58] PCB 66-68
54 On 8 March 2017, Dr David Freilich, neurologist, reported[59] to the defendant’s solicitors that the symptoms of apparent weakness of the muscles of the right hand, numbness in the whole of the right upper limb, as well as the tremor of the right hand, and ongoing pain in the whole of the right arm, are non- organic and are due to functional overlay and psychological factors. The remainder of the neurological examination was normal. He noted that nerve conduction studies comparing right median nerve conduction before and after the surgery showed an improvement in right median nerve conduction, and that there were no ongoing symptoms of carpal tunnel syndrome. He was unable to comment on CRPS as the diagnosis of this condition lies outside his expertise, but noted that the pain which may form part of that condition commenced after the carpal tunnel surgery. Dr Freilich considered that, given the current symptoms have been present for 5 years, the plaintiff’s prognosis was not good and that he had no capacity for work at the present time, although a graduated return to work “may be considered”. He concluded that most, if not all, of the plaintiff’s symptoms are due to “functional overlay and psychological factors”.[60]
[59] DCB 27-29
[60] DCB 29
55 On 1 June 2017, Dr Barberis reported[61] to the plaintiff’s solicitors that Mr Lual’s “orthostatic tremor” is a tremor triggered by a change in posture or function of the upper limb. Dr Barberis considered that the plaintiff’s tremor, which was associated with the plaintiff’s complex regional pain syndrome, has “primarily arisen as a result of the physiological or organic changes in the nervous system secondary to physical injury.”
[61] PCB 124
56 On 5 June 2017, at the request of the plaintiff’s solicitors, Dr Blombery responded to the findings of Dr Freilich that the plaintiff’s right upper limb was of normal colour, temperature and moisture. Dr Blombery noted that he was unsure how Dr Freilich had measured these parameters, but indicated that, in any event:
The criteria for diagnosis of complex regional pain syndrome can vary quite markedly from day to day and there are many patients in whom I have seen no significant difference in colour and temperature on one day and marked differences on an alternate day.[62]
[62] PCB 116
57 On 15 June 2017, Dr Blombery reaffirmed the opinion, expressed in his earlier report, that the plaintiff did not have a capacity to perform suitable employment due to the “organic problem of” CRPS 1 affecting the right arm”, and again stated that this incapacity would be permanent.[63]
[63] PCB 117
58 In a second report[64] dated 27 July 2017, Dr Stern noted that there had been no improvement in the plaintiff’s chronic adjustment disorder with mixed anxiety and depressed mood, and that his psychiatric state remained causally connected to the work injury to his right wrist on 1 August 2010. Dr Stern considered that, from a “psychiatric aspect alone (not including his physical symptoms)”, the plaintiff was fit for pre-injury duties and other duties including the job options identified in the Vocational Assessment of 15 April 2011.[65] He found no evidence of any intentional exaggeration by the plaintiff of his symptoms.[66]
[64] DCB 29A-29F
[65] DCB 29F
[66] DCB 29F
59 Dr Peter Stevenson, occupational physician, reported[67] to the defendant’s solicitors on 31 August 2017 that the plaintiff’s carpal tunnel syndrome may have temporarily affected his capacity, but that it resolved after surgical treatment.
[67] DCB 29G
60 On examination, he found the following:
There is a coarse tremor which was dramatic when the arm was exhibited and observed. It was not confirmed at rest on tremor study. There was no abnormal swelling. There was no convincing neurological sensitivity. There is some increase in pigmentation on the dorsum of his hand which was not really typical of a complex regional pain syndrome. There was a manifest collapsing weakness affecting the right arm globally…it very strongly suggested a psychosocial presentation, abnormal illness behaviour in the context of financial reward.[68]
[68] DCB 29M
61 Dr Stevenson stated that CRPS 1 is a contentious condition and that the differential diagnoses include somatoform disorders and malingering. He considered that severity of the condition would be determined by objective changes such as wasting, discoloration, oedema, contracture “which are agreed on by several observers over a protracted period”. He considered that the “minor temperature variation” recorded by Dr Blombery was not in itself an objective sign of complex regional pain syndrome, was not confirmed by other observers, and was therefore “non-diagnostic”.[69] He also considered that functional collapsing muscle weakness “is not part of true organic severe CRPS”.[70] He stated that he was unable to confirm a diagnosis of organic CRPS. He agreed with neurologists that the tremor was of a non-organic nature, but noted that it occurred “in context of reward for disability”.[71]
[69] DCB 29N
[70] DCB 29P
[71] DCB 29M
62 He considered that the plaintiff’s symptomatology and apparent level of disability are due to psychosocial factors, and had been amplified in the context of the litigation process.[72]
[72] DCB 29O
63 Dr Stevenson considered that the plaintiff had a capacity for “work reducing the use of the right arm”,[73] and stated that he could not identify any ongoing neurological condition which would prevent the plaintiff from working as a parking inspector, courier or packer.
[73] DCB 29O
64 Dr Geoffrey Hogan, psychiatrist, assessed the plaintiff at the request of Dr Dawood on 29 October 2017. He noted the plaintiff’s “quite significant depressive symptoms”[74] and recommended that the dosage of Pristiq should be increased to 200mg daily to manage the plaintiff’s chronic pain and depression. He thought a diagnosis of CRPS was appropriate and recommended referral to Dr Blombery.
[74] PCB 159B
65 In a second report dated 31 October 2017[75], Dr Seward noted that the plaintiff has been taking Pristiq for his depression, and was only taking Endep (which was being used more to treat his chronic pain condition) as required. He had only recently been referred to a psychiatrist despite ongoing moderate symptoms of depression with suicidal thoughts. Dr Seward’s conclusions were similar to those set out in her previous report.[76]
FINDINGS AND REASONS
[75] PCB 137-149
[76] PCB 148
Sub-paragraph (a) – long term impairment of the right upper limb
66 The plaintiff was cross-examined at length. I found him to be a straightforward, understated witness. I viewed extracts of surveillance footage taken in March, May and June 2016 and May 2017. The footage shows him carrying an empty crate in his left hand; walking with his right hand swinging freely; driving; carrying a small shopping bag in his left hand; talking to people; waving with his left hand; holding a phone in his left hand; holding a petrol hose in his left hand; carrying an empty bucket for a few seconds in his right hand then switching it to his left hand; using his right hand to put sauce on a barbeque. I consider that his presentation in the surveillance footage is consistent with the picture painted by the plaintiff of his pain and restrictions, both to this court and to the various doctors who examined him and I accept his evidence in this regard. While the footage does not show the plaintiff with his right hand in his pocket, it does show him, on separate occasions, favouring his left, non-dominant arm to hold and use various objects.
67 In the light of the dispute between the parties concerning the circumstances of the plaintiff’s termination of employment, and the plaintiff’s assertion that the documents purporting to record his behaviour at meetings are inaccurate, I draw no inferences adverse to the plaintiff from this material, and I have put it to one side. On the plaintiff’s evidence, which I accept, notwithstanding any emotional impact from the circumstances surrounding the termination of his employment, his right hand injury continues to be a cause of his ongoing pain and restrictions.
68 Dr Blombery is specialist in vascular disease, with a special interest in CRPS 1. His diagnosis of CRPS 1 is echoed by Dr Barberis. Dr Williams and Dr Vijaratnam also considered that this was the appropriate diagnosis. Dr Blombery and Dr Barberis opined that CRPS 1 is a complication of carpal tunnel syndrome, which was work-related. In these circumstances, I put to one side the opinion of Dr Stevenson, who not only questioned the existence of the condition but opined that in any event the plaintiff’s presentation was not organic but “psychosocial”. For the same reason, I put to one side the opinion of Dr Barton, which is also quite old. I am satisfied on the medical evidence that the plaintiff suffers from CRPS 1 which is a complication of his work-related and surgically treated carpal tunnel syndrome. The medical opinions to which I have referred make it clear that the plaintiff’s symptoms have persisted over a number of years and are likely to do so for the foreseeable future.
69 I note that the weight of the neurological opinion (from Dr Williams[77], Dr Vijaratnam[78], Dr Hjorth[79] and Dr Freilich[80]) is to the effect, and I therefore find, that the plaintiff’s tremor is psychogenic and not organic in nature. Among neurologists, only Dr Seneviratne felt that the tremor was probably organic (whether orthostatic or post traumatic in nature) and occurred secondary to carpal tunnel surgery.
[77] PCB 102, PCB 103
[78] PCB 158
[79] PCB 106
[80] DCB 28
70 I turn to consider the sequelae of the plaintiff’s permanent impairment of the right upper limb.
71 I note that the vocational assessment material provided in 2011 was not updated, that the plaintiff was not cross-examined about any capacity for suitable employment and that no submissions were made by the defendant in this regard. It is clear that the plaintiff has sought work but that those agencies who have tried to help him have closed his file. He has very limited English, and very limited computer skills; he can turn a computer on and off but cannot send an email. He can send only a brief English text message on his phone.
72 There was general medical consensus from doctors who found an organic impairment in the function of the right upper limb (Dr Blombery, Dr Barberis, Dr Dawood) that, as a result of this impairment, the plaintiff is permanently incapacitated for his pre-injury employment. Dr Blombery and Dr Dawood considered the plaintiff’s limited English, and his work history limited to manual labour, and concluded that he is permanently incapacitated for any suitable employment.[81]
[81] This was also the conclusion of Dr Hjorth, although in his opinion this incapacity was based on a functional rather than organic condition
73 I am therefore satisfied that, as at the date of the hearing, due to the organic impairment of function of the right upper limb, the plaintiff is permanently incapacitated for his pre-injury and any suitable employment. It follows that the plaintiff has established that as a result of his impairment he will permanently suffer a loss of earning capacity of 40% or more. It also follows that the loss of earning capacity consequences of his permanent impairment of the right upper limb are more than considerable when compared with other cases in the range of permanent impairments.
74 For the sake of completeness, I turn to consider the question of pain and suffering.
75 The pain and suffering consequences of the plaintiff’s right upper limb impairment are set out above at paragraphs 10-14 as well as in the histories given to many doctors as summarised above and it is not necessary to repeat them in detail. The plaintiff suffers from constant pain, takes regular medication (Endep most days) and, leaving aside the tremor, is limited in what he can do with his dominant right hand. There has been a substantial impact on his daily activities, his intimacy with his wife, and his ability to do things around the house or outside the house. He is distressed that he can no longer work in manual occupations and support his family as he once did, and that he has to live on benefits. In all the circumstances, I am satisfied that, in terms of pain and suffering, the consequences of the plaintiff’s impairment are more than considerable when compared with other cases in the range of permanent impairments of the upper limb.
76 It follows that leave is granted under sub-paragraph (a) of the definition of serious injury.
Sub-paragraph (c) – long term mental disorder
77 Prior to suffering his right hand injury at work, the plaintiff had no psychiatric history.
78 Dr Simon Kennedy diagnosed the plaintiff in 2012 as suffering from an Adjustment Disorder which resulted partly from his physical injury.
79 Associate Professor Littlejohn opined in 2015 that the plaintiff had a chronic pain syndrome which was having a substantial impact on his life, but felt that the plaintiff’s condition would improve over time.
80 Dr Stern opined in 2017 that the plaintiff suffered from a chronic Adjustment Disorder with mixed anxiety and depressed mood, but felt that from a psychiatric perspective alone, he was fit for pre-injury duties or suitable employment.
81 On the other hand, as outlined in paragraphs 49 and 65 above, in 2016 and 2017 Dr Seward considered that the plaintiff has developed three work-related psychiatric conditions as a response to his physical injury: an adjustment disorder of moderate severity; a chronic pain disorder; and a conversion disorder. She concluded that as a consequence of his psychiatric condition alone, the plaintiff is permanently incapacitated for all work. She referred to his lack of motivation, social withdrawal, poor concentration, and difficulty performing simple domestic tasks. This is the situation in spite of daily ingestion of 200 mg of antidepressant medication, Pristiq. She recommended that the plaintiff have psychiatric treatment and be referred to a pain management clinic.
82 I prefer the opinion of Dr Seward as she has carefully considered all of the plaintiff’s symptomatology. Her opinion is consistent with the neurological opinions (from Dr Williams and Dr Freilich to the effect that the chronic pain symptoms and tremor are of psychogenic origin), with the opinion of Dr Stevenson that his symptomatology and resulting disability are due to “psychosocial factors”, and with the opinion of Associate Professor Littlejohn to the effect that there is a chronic pain syndrome. It is clear from the medical evidence that the plaintiff’s psychological condition resulted from the aftermath of the surgical treatment of the work-related carpal tunnel syndrome.
83 For these reasons, I am satisfied that the plaintiff has a permanent, work-related mental disorder. I find that as a result of this disorder, his work capacity has been totally and permanently extinguished. It follows that the plaintiff has established a permanent loss of earning capacity of 40% or more. It also follows that the loss of earning capacity consequences of his permanent mental disorder are more than serious, to the extent of being severe, when compared with other cases in the range of permanent impairments.
84 Again, for the sake of completeness, I turn to consider the pain and suffering consequences of his mental disorder, which are described above at paragraphs 10-14, briefly in paragraph 81 above, as well as in the histories given to many doctors. I consider that these consequences are fairly described as more than serious, to the extent of being severe, when compared with other cases in the range of possible mental or behavioural disturbances or disorders.
Conclusion
85 For the above reasons, I am satisfied that the plaintiff has suffered a serious injury under each of sub-paragraphs (a) and (c) of the definition of serious injury.
86 Leave is granted to the plaintiff to issue common law proceedings in respect of the injury to the right upper limb sustained during the course of his employment with the defendant between November 2006 and February 2011.
87 I will hear counsel as to the appropriate form of orders.
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