Mahmud v Compass Group (Australia) Pty Ltd

[2012] VCC 1320

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CIVIL DIVISION

Revised
Not Restricted
Suitable for Publication

DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION

Case No.  CI-11-01070

ZEINEB MAHMUD	Plaintiff
v
COMPASS GROUP (AUSTRALIA) PTY LTD	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	5, 6 and 7 June 2012
DATE OF JUDGMENT:	20 June 2012
CASE MAY BE CITED AS:	Mahmud v Compass Group (Australia) Pty Ltd
MEDIUM NEUTRAL CITATION:	[2012] VCC 1320

REASONS FOR JUDGMENT

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SUBJECT – ACCIDENT COMPENSATION

CATCHWORDS – Serious injury – injury to the right arm - Chronic Pain Syndrome - pain and suffering only – whether consequences to the plaintiff are “serious”

LEGISLATION CITED – Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38).
CASES CITED – Mobilio v Balliotis (1998) 3 VR 833; Turner v Love (1995) 21 MVR 314; Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Grech v Orica (2006) 14 VR 602; Jayatilake v Toyota Motor Corporation Australia Limited [2008] VSCA 167; Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69.

JUDGMENT – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T P Tobin SC with Mr N Griffin	Patrick Robinson & Co
For the Defendant	Mr S Smith	Wisewould Mahony

HER HONOUR:

1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the defendant on 3 March 2006 (“the said date”).

2         The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering only.

3 The plaintiff initially brought this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. The body function relied on was the right arm.

4         However, in his closing address, Junior Counsel for the plaintiff withdrew this application and the application proceeded solely pursuant to subsection (c), with the plaintiff claiming to have suffered a severe psychiatric impairment in the form of a Chronic Pain Syndrome.

5         The judgment of the Court of Appeal in Mobilio v Balliotis [1998] 3 VR 833 resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love (1995) 21 MVR 314, 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” to “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”.

6         Winneke P, in Mobilio, agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of subsection (17) of the Transport Accident Act, was of stronger force than the word “serious” where used in that Act (see Phillips JA at 858 and Charles JA at 860 to 861 to similar effect).

7         I accept however that a Chronic Pain Syndrome can result in impairment under subsection (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 subsection (c), per Ashley JA in Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227.

8         Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.

9         The impairment of the body function must be permanent.

10       The plaintiff bears an overall burden of proof upon the balance of probabilities.

11       By subsection (38)(c) of the 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, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.

12       I 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.

13       I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica (2006) 14 VR 602.

14       The plaintiff relied upon one affidavit and was cross examined.  The plaintiff’s general practitioner, Dr Rowais, and her treating orthopaedic surgeon, Mr Pullen, were required for cross examination.  In addition, both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material.

The Plaintiff’s Evidence

15       With the assistance of an interpreter, the plaintiff swore an affidavit on 22 October 2010. 

16       The plaintiff was born in Eritrea in April 1967 and is presently aged forty five.  She went to Sudan as a refugee, where she remained and finished school, and then went to university.  There the plaintiff obtained qualifications in psychology and preschool education in 1993.  She then migrated to Australia, arriving in around 1994.

17       The plaintiff is married and has no children.

18       In Australia, the plaintiff undertook some English studies and began work in order to support her family at home.  For a long time she worked as a room attendant in hotels before doing a further English course which enabled her to undertake an aged care certificate and qualifications in catering and small business management. 

19       In addition to her work and study, the plaintiff enjoyed doing voluntary work, cooking at a non profit restaurant.  She had a few cooking jobs along the way and for a few years ran her own small restaurant in Brunswick, but that was not viable. 

20       The plaintiff planned to work in the area of cooking, which she loved.

21       The plaintiff then went overseas for about four months and on her return, she did voluntary cooking at a non profit restaurant and worked in another restaurant.  She then registered with the defendant, an employment agency, and was placed through it at Janet Clark Hall (“the College”) at Melbourne University.

22       In cross examination, the plaintiff confirmed that in the three years before she started work with the defendant, she worked for two weeks at the Vegetarian Orgasm restaurant in Fitzroy and she also did some work as a hotel cleaner at Rydges and Citigate.

23       In 2004, the plaintiff considered doing the Masters course in which she is presently enrolled but she realised her English skills were inadequate so she did further English language studies.

24       In the years prior to the said date, the plaintiff was not earning enough to lodge taxation returns.  Otherwise, she was going to school or going overseas.

25       In February 2006, the plaintiff commenced work with the defendant, cooking breakfast and lunch for students at the College.  She worked thirty two hours per week from 6.00 am to 2.00 pm. 

26       Over the three weeks the plaintiff worked with the defendant, the number of students at the College increased significantly.   

27       The plaintiff told the defendant and the College that the work was too demanding for one person and she wanted to finish up.  However, following her complaint, a second person was provided to help the plaintiff in the third and final week she worked. 

28       By that stage, the plaintiff was already suffering from right arm and hand symptoms.  She was using her right hand to do all the slicing and chopping.  She was working with industrial sized pots, pans and trays and found all that work very heavy. 

29       On the said date, when pouring a beef curry into a larger pan to mix, the plaintiff suddenly felt a sharp pain in her right elbow (“the incident”).  She reported the incident to her immediate boss, John, who assisted her and gave her ice and arranged for the plaintiff to see the work doctor, Dr Bloom.

30       On 6 March 2006, the plaintiff attended Dr Bloom and he informed her she suffered from a tennis elbow.  Three days later, at the suggestion of the defendant, the plaintiff completed a WorkCover claim with respect to her right arm injury.  The claim was initially rejected.

31       When the plaintiff was unable to continue even with light duties, she spoke with her employer and was pressured to withdraw her claim and leave employment and go to Centrelink.  The plaintiff was very upset with this situation. 

32       The plaintiff made a statement to the WorkCover investigator which she signed on 6 April 2006.  Some time later, her WorkCover claim was accepted. 

33       The plaintiff’s claim in relation to impairment benefits was also accepted in relation to her right elbow and arm and psychiatric injury.

34       During the time she was at the College, the plaintiff earned $5,746, including WorkCover payments. 

Treatment

35       Following the incident, the plaintiff attended the Bridge Street Clinic, where she saw Dr Bloom and other doctors on a few occasions.  She was referred for physiotherapy and prescribed anti-inflammatory medication and certified fit for restricted duties only.  She was also given a brace to wear.

36       The plaintiff also consulted her own doctor, Dr Rowais, who diagnosed a tennis elbow and advised her to continue wearing the brace.  He recommended steroid injections and discussed with the plaintiff an option of having an injection of blood into her elbow.

37       In cross examination, the plaintiff agreed she felt stressed when she first saw Dr Rowais after the incident and she was very concerned about her arm.  She agreed she got no better despite not working.  She agreed that when Dr Bloom examined her in late March, she had pain with very light touch of her right arm. 

38       The plaintiff was asked about the medico-legal examination with Mr Marshall in April 2006.  She agreed during the examination she supported her right arm with her left.   She then could have had problems undoing tight buttons.  Any fine movement of her fingers is still a problem.  She could not really remember hanging her arm by her side but she had never said she could move her hand around. 

39       The plaintiff confirmed that at that stage she had pain from her shoulder to her palm and of much more recent times she also has had swelling in her left shoulder.

40       The plaintiff agreed when she saw Mr Marshall in April 2006 that she could not grip with her right hand.  The plaintiff has done her best when her grip has been tested and pressed as requested until she felt pain.

41       Dr Rowais certified the plaintiff unfit for work and organised an x-ray and ultrasound in July 2006.  He also referred the plaintiff to an orthopaedic surgeon, Mr Goldwasser who recommended the plaintiff continue with physiotherapy and medication.

42       Dr Rowais then referred the plaintiff to Mr Pullen, another orthopaedic surgeon, who specialised in elbow and arm conditions.  She first saw him on 3 July 2006.  He confirmed the diagnosis of tennis elbow and recommended an  injection of blood and the plaintiff accepted his advice. 

43       The plaintiff underwent a right lateral epicondylar injection on 10 July 2006, which did not improve her situation.  A second injection was carried out on Mr Pullen’s recommendation on 3 October 2006.  Prior to that injection,   Mr Pullen advised the plaintiff if it was not successful, then she may have to consider an operation.

44       The plaintiff did not obtain any relief from the second injection.

45       Shortly thereafter, the plaintiff needed to go overseas to visit her family to help her deal with the stress of her injuries.  She had difficulty trying to arrange a further appointment with Mr Pullen and she did not return to see him again.

46       In cross examination, the plaintiff confirmed she missed appointments with Mr Pullen after the two injections and despite an attempt to see him again, she had been unable to get another appointment. 

47       The plaintiff agreed Mr Pullen told her surgery had a seventy per cent chance of success, but he did not tell her he was going to operate.  She did not refuse to have surgery as it was never offered to her. 

48       The plaintiff explained that she had been dealing with her problem medically.  She had had injections, but had not been told to have surgery.  She had not gone to any other doctor to ask for surgery.

49       Since the second injection, the plaintiff had not seen any improvement in her right arm and it became worse than it was at the start.

50       In 2007, the plaintiff was referred to a rheumatologist, Dr  Laska, who recommended she continue with physiotherapy, exercise, muscle strengthening and perhaps further injections, but the plaintiff was not keen on the latter course.

51       As at the time she swore her only affidavit in October 2010, the plaintiff took Panadol for pain relief.  She had previously used stronger analgesic medication but that caused a flare up of her longstanding gastric reflux condition, which she could not control whilst on stronger painkillers.

52       Prior to her injury, the plaintiff had been taking Nexium which controlled her symptoms.  However, once she began taking anti-inflammatory medication, her reflux symptoms became much worse and in December 2007, she underwent a gastroscopy which confirmed severe reflux and gastritis. 

53       Confining herself to Panadol did not give the plaintiff the best pain relief possible but it avoided side effects. 

54       The plaintiff confirmed in examination-in-chief that she takes Panadol Osteo prescribed by Dr Rowais.  She has been told to live with the pain and she just has to ease it with Panadol because nothing more can be done.

55       In October 2008, the plaintiff was assessed by The Royal Melbourne Hospital pain management program (“the program”).  She attended the program for about three months, during which time she was shown exercises for her right arm and neck.  She also had hydrotherapy and did relaxation exercises, but they did not really help her elbow pain.

56       In cross examination, the plaintiff maintained that she had finished the program.  It did not really do much for the pain in her arm, but it strengthened her muscles.

57       The plaintiff had not been asked by her doctor to go back to the program and, if she had, she would have done so.  She confirmed she thought the program had finished and at the completion thereof, she was given tablets. 

Consequences

58       Prior to the incident, the plaintiff was very much involved in the Eritrean community, especially doing catering.  She was active in the women’s group, in social networking and preparing food for festivals, weddings and other occasions.  Since the incident, she had maintained some involvement in the group but had not continued to help catering on those occasions. 

59       The plaintiff had trouble with domestic chores.  She was unable to vacuum and had great difficulty ironing because of the movement of her right arm.  She had difficulty cutting her fingernails and required her sister’s assistance in this regard. 

60       The plaintiff cooked for herself because she had to.  She had a particular knife which she used, as other knives caused her arm to become swollen when she used them.  The knife was very sharp and she cooked small amounts, just for herself, to limit the chopping she needed to do.

61       The plaintiff had difficulty with fine pinching movements and with pressing or pushing movements, both of which aggravated her elbow pain.  Although she was right handed, generally she found herself carrying things in her left hand to protect her right arm. 

62       Since the plaintiff had been unable to return to work, she had become very anxious and depressed.  She was very upset about the way in which the defendant managed her injury and that really shook her confidence.

63       Because the plaintiff felt so depressed, she travelled overseas in 2006 to be with her family, where she remained for about nine months.  During that time her WorkCover payments were suspended.  It was, however, very helpful for her to spend time with her family rather than being alone in a new country. 

64       In cross examination, the plaintiff agreed that she had travelled overseas on three occasions since the incident.  She was away from October 2006 to July 2007, April to July 2009 and December 2010 to February 2011.

65       On the first trip, the plaintiff went on holidays to London.  Whilst in London, a family problem arose in the Sudan and she then travelled there.  The plaintiff met her husband on that trip and married him four months later on 16 April 2007.  The marriage took place in the context of a close and loving relationship.

66       The plaintiff agreed on her first trip and when she returned to Australia in 2007, she was better psychologically, but not physically.

67       As of October 2010, the plaintiff continued to suffer pain in her right elbow and throughout her right arm.  It felt like her arm was being squeezed and was full of needles.  She had difficulty gripping or holding things with her right hand and even gripping to shake hands caused her to wince sometimes. 

68       The plaintiff then had trouble sleeping.  She woke at different times in the night and had to change her position regularly to deal with her arm pain.  She had trouble managing her hair as she could not use her right arm to look after it.

69       In cross examination, the plaintiff described how she now generally uses her left arm more.  Specifically she always carries things in her left arm.  She does the housework and she is capable of living by herself but with family assistance.  The greatest problem is washing clothes and hanging them on the line.  She cannot vacuum and she does very limited mopping.  She forces herself to try and iron, but then ends up doing so with her left hand.

70       Possibly sometimes when the plaintiff starts an activity, her right arm “goes into action automatically”, but then she does things with her left arm.

71       The plaintiff is able to wash herself in the shower.  She still does bits and pieces of cooking and can knead a small ball of dough with her right hand.  She does not lift anything heavy or do any pulling or grasping.

72       The plaintiff does not require financial help from her family, but such help is available if needed. 

73       In cross examination, the plaintiff agreed that she complained to the Director of Housing about the state of her house in October 2008.

Return to Work and Rehabilitation

74       After the incident, the plaintiff was asked to perform some light duties in a kitchen at International House, but she struggled with pain and was not able to do so for more than a couple of hours one day late in March 2006.  When the plaintiff tried to explain her problems, she was pressured into withdrawing her WorkCover claim and going to Centrelink, a situation which upset her very much.

75       Whilst the plaintiff initially said she had not done any work or looked for work since leaving the defendant’s employ, she in fact returned for one day a week to the volunteer job she was doing before the incident.  She helped with managing and supervising the restaurant run by East African women at ‘Africa As Anything’ but she did not do any cooking as was the case before the incident.

76       The plaintiff agreed she did not declare to WorkCover she was doing this volunteer work at the African restaurant for the six to eight months after the incident before she went on the first trip overseas.  She was not earning anything and it was voluntary and social work.    

77       The plaintiff also recalled she had registered with Job Match for about a year for vocational assistance and was looking for work; however she was not successful in obtaining work.  The plaintiff remained on Job Match’s books until she was put on the Disability Support Pension.

78       When the plaintiff’s WorkCover payments stopped in 2008, she commenced studying for a Masters in International Development and she was trying to look forward to some new direction in her life.

79       The plaintiff commenced this study part time, studying one subject per semester.  In 2009, she took leave of absence.

80       To complete the Masters, the plaintiff has to complete twelve subjects.  She found with study, typing was very difficult because it aggravated her right elbow pain.  Using a mouse was very difficult and she changed to working on a laptop and was able to use the touch pad with her left hand, which made things a little easier.

81       The plaintiff had trouble concentrating and remaining focussed.  This limited her ability to concentrate in class and to work in the library preparing assignments.

82       The plaintiff deposed in October 2010, that she had cut back study from a Masters to a Diploma as she believed she would not be able to cope with completing all the requirements for a Masters degree because of her injury. 

83       In cross examination however, the plaintiff confirmed that she had always been enrolled in the Master’s Degree.

84       The plaintiff deposed that as she was studying in a second language, everything seemed to take much longer and required much greater concentration.  That meant that an already difficult task was made even harder by her pain and inability to concentrate.

85       The plaintiff deposed that if she could obtain this diploma, it would allow her to work with development agencies in developing countries doing evaluation rather than practical work.  She selected subjects that would gear her to advisory work that would not require much administration or practical experience so that she did not have to make use of her right arm.  She did not know how feasible it would be to find such a job within the development community.

86       In examination-in-chief, the plaintiff confirmed that in December this year, she is going to finish her Master’s course in International Development in which she had been enrolled since 2008.  She hopes to get work in evaluation projects, designing projects, advocating for gender inequality and helping people in crisis.  Such a job might involve working overseas.

87       The plaintiff has a passion to enhance women’s positions in Australia or anywhere.  On completing her course, she would like to work with an organisation like the United Nations.  She does not know how she will cope when she actually gets a job.

88       The plaintiff is currently doing one subject for two hours a week.  She has assistance from family members with typing as she wears her arm out after typing two or three lines and she then types with her left finger. 

The Plaintiff’s Medical Evidence

89       The plaintiff has been a regular patient of Dr Rowais’ practice since 2003. 

90       In March 2006, the plaintiff consulted him with regards to right sided elbow pain.  She told him of the demands of her work at the College and that on 2 March 2006, she experienced pain affecting her right arm and elbow as she was stir frying beef.  The plaintiff told him she attended a company doctor who gave her a steroid injection and anti inflammatory medication and imposed a lifting restriction of five kilograms.  Dr Rowais noted, unfortunately, the plaintiff’s supervisor mentioned to her she should resign and that he was unhappy with the work restrictions.

91       The plaintiff initially complained to Dr Rowais of painful right lateral epicondyle, pain radiating to the upper arm and neck, pain and aches affecting the mid scapular area and anger, stress, frustration and anxiety about her health and her future.

92       On examination, the plaintiff was a very anxious woman focussed on her right arm.  There was tenderness experienced along the right epicondyle which extended upward and downward to the pronotars and flexion muscles.  There were multiple trigger points affecting the right scapulohumeral area.

93       Dr Rowais diagnosed overuse syndrome, right lateral epicondylitis, tennis elbow and features of post traumatic stress and deepened anxiety. 

94       The plaintiff was advised as to future treatment and an ultrasound and x-ray was carried out on 22 April 2006.

95       When Dr Rowais reported in May 2006, no improvement had occurred and he considered the plaintiff’s psycho emotional reaction was severe and uncontrollable and she had become severely symptomatic and pessimistic.  He then thought the plaintiff was currently unfit for any work and further treatment was required, including psycho emotional support. 

96       In his second report dated 16 October 2006, Dr Rowais noted he had referred the plaintiff to Mr Pullen, orthopaedic surgeon, who recommended blood injections.

97       Dr Rowais thought there were multi functional reasons for the plaintiff’s protracted condition and continued disability over the previous six to eight months, including chronic non remittent elbow pain, psycho emotional reaction, post traumatic stress and depression, poor handling of her WorkCover claim and mistreatment of rehabilitation system, work, supervisor and return to work.  The plaintiff told him all rehabilitations were “forceful”.

98       Dr Rowais noted Mr Pullen had recommended surgery with a seventy to eighty per cent success rate if conservative measures failed.

99       Dr Rowais thought the plaintiff was then unfit for any work and her depression was not controlled.  He noted further treatment may be necessary in the form of surgery.

100      When he reported in August 2007, Dr Rowais noted that, unfortunately, in October 2006, the plaintiff had to leave to go overseas for social and family commitments. 

101      On her return, the plaintiff consulted with him on 30 July 2007.  She then stated her condition had showed moderate improvement with rest overseas.  Her pain was intermittent and not completely resolved. 

102      On examination, Dr Rowais noted the tenderness over the right epicondylitis had extended to the upper arm and forearm area and the plaintiff’s hand grip was slightly weak. 

103      Psycho emotional assessment demonstrated persistent features of Post-Traumatic Stress Disorder (“PTSD”) and the plaintiff was referred back to Mr Pullen. 

104      Dr Rowais then thought the plaintiff was unfit for her pre injury duties.

105      Dr Rowais reported again in December 2007, noting the plaintiff had been referred to Dr Laska, rheumatologist, who recommended conservative treatment, including physiotherapy, exercise, muscle strengthening, steroid injection and, as a last resort, surgical intervention. 

106      Dr Rowais considered that as a result of heavy manual and repetitive work as a cook at the College, the plaintiff sustained right tennis elbow, fully documented on x-ray and ultrasound.  He noted she was then currently under treatment and unfit for her pre injury duties and further treatments were recommended by specialists.

107      In early 2008, Dr Rowais was asked to comment whether the plaintiff’s gastric pain had been aggravated by the injury subsequent to taking large amounts of analgesics and anti-inflammatories.

108      Dr Rowais advised the plaintiff had had severe reflux prior to her injuries in 2006 which was managed by a high dosage of Nexium.

109      After the incident, the plaintiff’s condition flared up due to analgesic usage, anti inflammatories and stress.  In his opinion, the plaintiff’s pre-existing gastric symptoms were aggravated by analgesic usage. 

110      In March 2008, Dr Rowais reported the plaintiff had moderate to severe reflux oesophagitis since commencing at that practice in 2003, treated with Nexium, 40 milligram tablets, prior to the incident.  After the incident, her symptoms became more persistent and she was taking the same dose of Nexium.

111      Due to persistent symptoms of gastritis and reflux, the plaintiff underwent a gastroscopy in December 2007 which confirmed severe reflux with inflammation at the lower oesophagus and helicobacter type gastritis.

112      Dr Rowais advised the exacerbation of reflux and gastritis presented as persistent severe symptoms and gastroscopy demonstrated inflammation, whereas prior to the incident, the plaintiff’s symptoms were moderate to severe with episodic exacerbation.  He thought the plaintiff’s prognosis in terms of this condition was fair with periods of exacerbation and quiescence. 

113      Dr Rowais most recently reported in April 2012.

114      He noted over the last four years the plaintiff’s condition was well established to be Chronic Pain Syndrome with associated depression and Regional Pain Syndrome.  He noted the plaintiff continued to experience severe right elbow pain, radiating to the right shoulder and distally to the forearm, associated depression, and anxiety was evident with multiple pain, ache and headache.

115      Dr Rowais noted the plaintiff was referred to the program at The Royal Melbourne Hospital but unfortunately she failed to attend her appointment and her name was removed from the list.  He advised the plaintiff’s depression was deepened and she became socially isolated and not motivated to proceed with her appointment.

116      Dr Rowais reported the plaintiff was able to find refuge in her studies and was motivated to proceed with a course of social work; however, even this enthusiastic approach was also affected by her depression and pain.

117      Dr Rowais confirmed as a result of her work, the plaintiff sustained a right tennis elbow.  He noted, unfortunately, complicated work management to her injuries led to further deterioration which established over the years to severe right Regional Pain Syndrome, chronic pain and major PTSD and depression.  He noted the plaintiff’s depression had deepened over the years and she had become helpless, hopeless and lost motivation.

118      In cross examination, Dr Rowais confirmed the initial diagnosis of lateral epicondylitis and that he had found features of early PTSD and anxiety on the initial examination.  He agreed that his findings at that stage of psycho social factors were similar to those reported by Dr Bloom. 

119      Dr Rowais agreed with Mr Pullen’s description of the site of lateral epicondylitis.  He also agreed that he was aware of no pathological condition affecting the plaintiff’s neck, shoulder and upper arms, of which she complained on the initial attendance in late March 2006.

120      Dr Rowais confirmed no improvement had occurred at all in the plaintiff’s psycho emotional reaction which was still severe and uncontrollable as he reported in 22 May 2006.  The reaction was persisting and continued to play a role in the plaintiff’s current presentation.

121      Dr Rowais thought that once there is soreness or pain in the elbow, the brain registers that the arm is in pain and a patient recreates a cycle of what is called Reflex Sympathetic Dystrophy (“RSD”) or Regional Pain Syndrome that is definitely aggravated by psycho social reaction.  He described it as like a phantom pain. 

122      Dr Rowais denied having any expertise in Chronic Regional Pain Syndrome.  On examination, he had seen to some extent hypersensitivity and coldness of the plaintiff’s arm but he deferred to a specialist in the field to make a diagnosis.  He agreed the hypersensitivity he found could fit within a diagnosis of either Chronic Pain Syndrome or RSD.

123      Dr Rowais confirmed the plaintiff declined shoulder surgery.  He noted a very small number of his patients had had the surgery but they had a good result.  He considered surgery a last resort after conservative treatment was exhausted.  However, he was not keen on surgery for the plaintiff because of her psycho social responses.

124      Dr Rowais agreed there had been some improvement in the plaintiff’s condition after she returned from overseas in 2007.  In his view, when the plaintiff’s depression decreased, so did her pain.

125      Dr Rowais confirmed he had sent the plaintiff back to Mr Pullen in 2007 but she did not attend.  He also confirmed that the plaintiff failed to attend a few appointments at program.

126      In matters orthopaedic, Dr Rowais essentially deferred to Mr Pullen.  When recent normal medico legal examination findings were put to Dr Rowais, he said it was difficult for him to know whether there had been a resolution of the plaintiff’s condition. 

127      Dr Rowais thought the plaintiff would still have some residual tennis elbow, having noted on examination on 8 October 2011, tenderness of the right lateral epicondylitis.  However, he had not conducted provocation tests since the initial examination.  Dr Rowais relied on the plaintiff’s complaint of pain which he agreed was of one of pain in the whole of her arm.

128      Dr Rowais thought a Chronic Pain Syndrome was when a patient had long lasting and recurrent pain that was aggravated by psycho emotional factors.  He agreed the plaintiff had pain continuously but she did have some good days.

129      Dr Rowais agreed Chronic Pain Syndrome could be a cause of the pain going up the plaintiff’s entire arm.  He explained that Chronic Pain Syndrome could outlast the initial injury.  In his view, it was impossible to identify what part of the plaintiff’s current condition related to an organic cause and what was non organic.

130      Dr Rowais prescribed antidepressant medication for about six months soon after the incident to good effect, but the plaintiff had not taken such medication for many years.  She currently takes just Panadol Osteo and analgesics.

131      Dr Rowais disagreed that the plaintiff had abnormal illness behaviour.  Further, he disputed she had secondary gain, noting she had an established family and a good life before the incident, so he did not think she wanted to be stigmatised in her community.  He knew her family very well and he did not think that the plaintiff was “of that kind”.

132      Dr Rowais confirmed the plaintiff was keen on doing study and was motivated to do something, helping in a field in which she was particularly interested.  He agreed work in that field would help with a decrease in the plaintiff’s depression and that would then lead to a significant reduction in pain but she would have to achieve that change.

133      In re-examination, Dr Rowais explained regional pain referred to pain in a particular region whereas chronic pain could be anywhere.  Regional pain locates the region where the initial insult occurred, then the complication of promoting into a progress to chronic pain is established.

134      Dr Rowais agreed that the plaintiff complained of pain certainly beyond the lateral epicondyle, but the injury in that region was the precipitating event of her Chronic Pain Syndrome.

135      Dr Rowais did not think instantaneous improvement would occur in the plaintiff’s condition if she got a new job.  In his view, it was difficult to know what was going to happen.  He thought the plaintiff might even feel miserable after she graduated and it was possible her pain would be subject to recurrences in times of stress. 

136      Dr Rowais considered restrictions involved in the plaintiff’s right elbow injury would include difficulty in typing, difficulty in driving, raising her arm above her shoulder and any repetitive use.  He thought there would always be some residual tennis elbow pain that would be affected by any stress in the plaintiff’s life or environment.

137      In Dr Rowais’ view, after two years, the plaintiff’s situation could be re-evaluated to see if there was any improvement or not in a new environment.  It was appropriate in his view to give the plaintiff two years at least to change psycho emotionally. 

138      Mr Pullen, upper limb orthopaedic surgeon, reported in August 2007, having seen the plaintiff on 3 July and 9 August 2006.

139      On the initial consultation, the plaintiff indicated she was suffering with right lateral elbow pain present since the incident and due to her heavy work at the College.

140      On examination, the plaintiff was tender over the lateral epicondylar region.  She had a full range of movement of her right elbow and no evidence of ulnar neuropathy.  She was neurovascularly intact.  There was no evidence of instability and no crepitus.  However, she did have positive provocative tests for right tennis elbow.

141      Mr Pullen noted review of the plaintiff’s April 2006 x-rays and ultrasound suggested common extensor tendinosis.

142      After that consultation, Mr Pullen felt the plaintiff was suffering from right elbow lateral epicondylitis and that it was worth pursuing conservative treatment.  He discussed with her the possibility of either a cortisone or blood injection.  The plaintiff indicated she was keen to try the latter on his advice.

143      The plaintiff underwent an injection of blood on 10 July 2006 which proceeded without complication.

144      On review on 9 August 2006, the plaintiff was still troubled by her right tennis elbow and the injection had only given her partial improvement.

145      Mr Pullen then suggested a second injection and indicated if the plaintiff failed to respond to it, the only remaining option would be surgery.  He suggested the chances of success from surgery were approximately seventy to eighty per cent and the plaintiff indicated she was aware of that.

146      The plaintiff underwent a second blood injection on 3 October 2006.

147      Without explanation, the plaintiff failed to present for two further appointments following that injection.

148      In cross examination, Mr Pullen described the lateral epicondyle as the bony sort of prominence on the outside of the elbow, extending perhaps a little bit more towards the forearm but not very far. 

149      On his initial examination of the plaintiff, Mr Pullen confirmed he did not record pain in any part of the plaintiff’s body other than her right elbow.  He agreed that lateral epicondylitis would not normally cause pain in the lower forearm or up to the shoulder.

150      Mr Pullen explained the provocative test involved pain with restricted wrist extension.  Usually he has the patient with their arm extended or slightly flexed and asks they extend their wrist.  He then pushes against it and asks the patient to try and resist that pressure.  The patient then tends to get an exacerbation of pain if the test is positive.

151      Mr Pullen thought lateral epicondylitis only causes a problem in grip strength secondary to decreased use.

152      When the lack of muscle wasting was put to Mr Pullen, he agreed prolonged disuse could lead to muscle wasting.  When told that the plaintiff’s right forearm was half a centimetre greater than the left and asked whether that was a strange finding, he guessed it would depend on whether the plaintiff was right hand dominant and how big her forearm was beforehand.

153      Mr Pullen explained the ultrasound finding and the echogenicity of the tendon reflected on x-ray by colour.

154      Mr Pullen described the clinical indicators of lateral epicondylitis as tenderness on examination and the positive provocation test.  He considered in the absence of a finding of tenderness, it would make the diagnosis much less likely.  If, on recent examination, there has been no complaint of tenderness that would suggest the plaintiff’s condition had improved.

155      Mr Pullen explained that there are two types of lateral epicondylitis: one which is a chronic problem and does not recover; and the other, the vast majority, tends to improve with time with recovery anticipated within a year.

156      Mr Pullen preferred blood injections to treat the lateral epicondylitis as they brought around some sort of healing, whereas a cortisone injection was just an anti-inflammatory in the tendon.

157      Mr Pullen explained the aim of surgery was to improve the plaintiff’s condition to a functional level rather than a complete resolution.  He left the question of surgery with her to consider.  She would not have been waiting for him to call her back.

158      Mr Pullen thought Chronic Pain Syndrome was a persistent pain syndrome that did not respond to treatment despite perhaps improvement in the initiating cause.  He agreed that it entailed pain experienced in parts of the body for which there was no anatomical or pathological cause.

159      In Mr Pullen’s view, the fact that the plaintiff’s pain was diffuse was certainly not consistent with just a lateral epicondylitis diagnosis and it could be related to Chronic Pain Syndrome.  If he had a patient in that position, he would refer them to a pain management specialist. 

160      Mr Pullen agreed that there was no anatomical explanation for the widespread nature of the plaintiff’s pain.  He thought the only relevance of the lateral epicondylitis in this regard may be that the plaintiff was using her right elbow awkwardly which would cause widespread pain but that was not consistent with a situation that had continued over a six year period.

161      If the plaintiff had chronic tennis elbow, Mr Pullen thought the common symptoms would be lateral sided elbow pain and difficulties with activities requiring wrist extension, making a fist and similar actions.

162      If the situation was one of widespread diffuse pain in the upper limb, Mr Pullen could not say whether a separate lateral epicondylitis condition could be identified.

163      Mr Pullen agreed that no localising tenderness and negative provocative tests would suggest there was no ongoing problem with lateral epicondylitis as Dr Karna found.

164      In re-examination, Mr Pullen explained that if a person was using their right hand relatively normally, that would be sufficient to prevent wasting.

165      Mr Pullen did not find any non anatomical condition present on his examinations of the plaintiff.

166      In Mr Pullen’s view, thickening of the tendons was not diagnostic of lateral epicondylitis.  There may be swelling initially, however, the absence of a finding of thickening did not exclude a diagnosis.

167      Mr Pullen confirmed the findings on the two 2006 ultrasounds were consistent with a tendon problem.

168      Mr Pullen could not recall that he had at any stage told the plaintiff she should have surgery.  However, he would have suggested she come back after the second injection and they decide her response based on that.  They would then have discussed the surgery and talked about risks and rehabilitation and various other relevant matters.

169      In 2008, the plaintiff was referred by a social worker to the program at The Royal Melbourne Hospital.

170      Dr Kim from The Royal Melbourne reported to Dr Rowais on 30 October 2008.  He advised the plaintiff’s most likely diagnosis was primary lateral epicondylitis which had been resistant to treatment.  In Dr Kim’s view, there was no evidence of Complex Regional Pain Syndrome or cervical pathology and no neurological signs on examination.

171      Dr Kim noted the plaintiff was clinically depressed with poor psycho social support.  There was a marked functional impairment with a feeling of helplessness in the setting of increased reliance on others and family support, with the background of a lady who had been previously highly functioning and active in the community.

172      Dr Kim reported the plaintiff had been seen by the Rheumatology Clinic, who referred her to CTS Physiotherapy at Royal Park.  It was noted the plaintiff was diagnosed previously with Clinical Depression and was seen by a psychiatrist in 2006 at the time of her injury and that she wished to be seen by a clinical psychology service.

173      The plaintiff described the onset of pain with a fluctuation of three to six out of ten on the pain scale.  It was noted there was significant stressors associated with WorkCover.

174      On examination, there was a full range of neck, shoulder and elbow movement.  There was local tenderness over the right lateral epicondyle region as well as extensive myofascial trigger points, including the plaintiff’s right brachioradialis insertion of biceps and right trapezius muscles in the shoulder.  There was no evidence of autonomic involvement of the hands.  Brief peripheral neurological examination was normal. 

175      Given those findings, it was recommended to the plaintiff that she continue her active physiotherapy.  From an analgesic point of view, Dr Kim recommended she restart paracetamol and trial topical Voltaren specific to the area. 

176      Dr Kim wondered whether Dr Rowais would consider starting the plaintiff on an antidepressant such as Effexor and consider referring her to a community psychologist for ongoing management.  He noted in the future she may be a candidate for a formalised pain management program if symptoms were ongoing.

The Royal Melbourne Hospital Documents

177      There were a number of documents tendered in relation to the program at The Royal Melbourne Hospital.

178      The plaintiff was initially assessed in July 2008.

179      On 10 July 2008, rheumatologist, Dr Chatfield, wrote to Dr Rowais diagnosing lateral epicondylitis of the right arm, depression and gastric problems.  Dr Chatfield referred the plaintiff for physiotherapy and occupational therapy regarding her arm.  He advised whilst there may be some persistent epicondylitis, he agreed a Chronic Pain Syndrome related to that area was also very likely.

180      There was an occupational therapy and a physiotherapy musculoskeletal chronic pain assessment on 8 August 2008.  The physiological assessment was for the purposes of determining pain with a view to attempting to treat, where possible, by way of physiotherapy.  A pain diagram was included.  There was also an assessment in respect of problems identified with the plaintiff, client goals and the process that was intended to be instituted.

181      The clinical progress sheets from 17 July to 15 October 2008 and the physiotherapy progress notes from 20 August to 18 December 2008 were tendered.

182      In the course of the plaintiff’s treatment, she was given advice as to how to conduct certain physical movements, namely, mopping and the insertion and removal of washing from a washing machine.

183      Dr Chatfield again wrote to Dr Rowais on 4 December 2008.

184      Dr Chatfield then that advised the plaintiff had been attending Royal Park for rehabilitation, as well as being referred on to the pain clinic.  It was noted at that stage that the pain was still significant, but perhaps there was less radiation.  Further, notably the plaintiff was starting to do more activities and found activities less painful for her.

185      On examination, Dr Chatfield found there was no swelling of the elbow.  There was still a localised tenderness at the lateral epicondyle region.  On forced resistance pronation, there was some discomfort but flexion and extension of the plaintiff’s wrist did not reproduce discomfort.

186      It was concluded that even though this was a chronic problem, the plaintiff did seem to be having some functional improvements with therapy and Dr Chatfield thought it was certainly worthwhile persisting with pain management services.  He noted the pain management service also provided a multi-disciplinary approach addressing psychosocial aspects which he thought were important for the plaintiff.

187      The discharge summary of 19 January 2009 set out a diagnosis of Regional Pain Syndrome and chronic tennis elbow.

188      It was noted that the plaintiff’s local doctor was to monitor her mood and there would be a referral to a community psychologist.  It was reported mood and motivation were affecting the plaintiff’s outcome.

Medico Legal Examinations

189      Mr Brearley, orthopaedic surgeon, first saw the plaintiff on 16 September 2009. 

190      The plaintiff then told him of ongoing problems with her right elbow comprising discomfort or pain over the outer side of the right elbow, upper arm and forearm.  She was then taking the occasional Panadol.

191      On examination, there was no deformity or swelling of the right elbow.  There was slight tenderness over the lateral epicondyle.  There was no tenderness over the medial epicondyle or elsewhere and there was no obvious wasting.  Movements of the elbow joint were normal in all directions and the plaintiff had a full range of pronation and supination in addition to flexion and extension.

192      There was reduction in strength as measured with the dynamometer.  On the left side the plaintiff registered twenty kilograms of force compared with three kilograms on the right.  There was normal sensation.

193      Mr Brearley noted there was a normal x-ray on 22 April 2006 and the ultrasound of that date indicated some hypoechogenicity in the region of the right common extensor tendon.  He thought the findings were consistent with lateral epicondylitis.  Further, he noted findings on an ultrasound injection on 10 July 2006 were of a diffuse hypoechoic tendon which was thickened, and numerous neovascularity was seen.

194      Mr Brearley diagnosed right epicondylitis which was chronic, noting a minimal improvement in the condition since injury.  In his view, that condition had been caused by the plaintiff’s work at the College.

195      Mr Brearley then thought the plaintiff’s prognosis was not good, noting her symptoms had been present for a long time and were now well entrenched.  He considered the plaintiff was not able to do any work as a cook, or any other manual work.  He noted she was doing a course and that administrative work was possible, although she would need to avoid excessive keyboard use.

196      Mr Brearley re-examined the plaintiff in March 2012.

197      The plaintiff then stated she had continued to have problems with her right arm.  She had pain over the outer side of the right elbow as before, but the pain had now spread to involve the whole of her right arm, from the hand to the shoulder.  She said she was aware of some swelling in the right side of her neck and she had some numbness and pins and needles at times in her right hand.

198      On examination of the right arm, there was no tenderness over the outside of the elbow or elsewhere in the arm.  There was still no obvious wasting.  Sensation throughout the arm and over the hand appeared normal.  Testing with the dynamometer indicated weakness of the right arm with the left hand measuring twenty two kilograms of force and on the right, eight kilograms.  The plaintiff had a full range of painless neck movement.

199      In conclusion, Mr Brearley noted there had been no improvement and the plaintiff now had ongoing pain, but throughout the whole of her arm.  However, her neck movement was full.

200      Mr Brearley noted there was no abnormality defined in the right arm on examination and the cause of the plaintiff’s ongoing symptoms was not clear.  He thought it may be possible she had significant functional overlay, or alternatively, there was an outside possibility there was some referred pain in the right arm as a result of nerve compression in the cervical spine, despite the fact that neck movements were full.

201      Mr Brearley diagnosed lateral epicondylitis of the right elbow which was chronic.  He thought the plaintiff’s prognosis was not good, with her symptoms having been present for so long they would probably continue. 

202      Mr Brearley thought the physical injury would prevent the plaintiff from doing her previous work as a cook and it would also interfere with everyday activity.

203      Mr Brearley however, commented that the involvement of the right upper limb was not consistent with the initial diagnosis.  He thought the reason for its involvement, in addition to the elbow, was not evident and it may be related to psychological overlay or there was an outside possibility of a cause in the neck which would presumably not be work related.  He noted the involvement of the whole right upper limb was contributing to the plaintiff’s difficulty with domestic duties and her enjoyment of life.

204      Mr Brearley was forwarded Dr Kostos’ and Dr Karna’s 2012 reports.  Mr Brearley disagreed with the remarks made by Dr Kostos, accusing him of quoting his reports incompletely, inaccurately and unfairly from the plaintiff’s point of view.

205      Mr Brearley confirmed there appeared to be no doubt the plaintiff was suffering primarily from right lateral epicondylitis, a diagnosis made by the company doctor; Mr Pullen, the treating orthopaedic surgeon; and Dr Laska, rheumatologist.

206      Mr Brearley noted the plaintiff had continued to have pain over the right side of the elbow and the fact she had no tenderness did not rule out the diagnosis at all, noting that the amount of tenderness in such patients varied from time to time. 

207      With regard to confirming the diagnosis, Mr Brearley pointed out the ultrasound in April 2006 indicated some hypoechogenicity in the region of the right common extensor origin and that finding was considered consistent with the diagnosis.  There was no abnormality in the flexor origin.  Further ultrasound on 10 July 2006, when the injection was administered, also showed a diffuse hypoechoic tendon which was thickened, and numerous neovascularity was observed.

208      Mr Brearley noted that the plaintiff had since developed pain throughout the whole of the right arm and it was the spread of that pain that was not readily explainable.  He noted she appeared to have developed aspects of a Chronic Pain Syndrome. 

209      Mr Brearley also noted the remarks made by Dr Karna and disagreed with his conclusions for similar reasons.

210      Mr Myers, vascular surgeon, first examined the plaintiff on 22 September 2009.

211      The plaintiff told him there was still pain with some movements and if she used her fingers, she got pain all over the right arm and neck, which got puffy.  Mr Myers had available the x-ray and ultrasound of April 2006 and reports from Dr Rowais, Dr Kim and also Mr Pullen.

212      On initial examination, Mr Myers found normal range of apparently painless movements of all joints of both upper extremities into the neck.  There was no tenderness over the medial or lateral aspect of the right elbow.  Pressure over the front of the right wrist was said to cause pain going up the forearm. 

213      Mr Myers thought the plaintiff had right tennis elbow with lateral epicondylitis and tendinosis into the common extensor origin of the right elbow and also secondary overuse syndrome with Chronic Pain Syndrome.  He thought the injury to the elbow resulted from the plaintiff’s employment with the defendant.  He diagnosed past lateral epicondylitis leading to Chronic Pain Syndrome.  He noted there had been no improvement apparently so there was no reason to anticipate any in the future. 

214      Mr Myers considered the plaintiff should never return to work as a cook and she should be encouraged to continue her present studies.  He thought she had a genuine disability due to physical injury with secondary psychological overlay.

215      Mr Myers reviewed the plaintiff on 2 May 2012, at which time he noted there appeared to have been little change in her condition. 

216      On examination, there was a normal range of movements of the cervical spine.  There was a normal range of movement of all joints of both upper extremities.  There was apparent tenderness over the whole of the right arm, maximal over the region of the lateral epicondyle of the elbow. 

217      Mr Myers had available Dr Nathar and Mr Brearley’s 2012 reports and the vocational assessment of February 2012.

218      Mr Myers confirmed a diagnosis of lateral epicondylitis consistent with the stated cause.  He thought there was no point in considering anything more than ongoing analgesia with Panadol Osteo and there would be no further improvement.  In his view, the right elbow injury would permanently interfere markedly with the plaintiff’s everyday activities, enjoyment of life and capacity to work, and that incapacity would be permanent.

219      In terms of the right upper limb alone, Mr Myers diagnosed a Chronic Pain Syndrome consistent with the stated cause in relation to which there was no active treatment possible now and there would be no future improvement.

220      Mr Myers thought the diffuse pain in the right upper extremity due to Chronic Pain Syndrome would markedly interfere with the plaintiff’s everyday activities, enjoyment of life and work capacity in a manual sense.

221      Dr Nathar, psychiatrist, examined the plaintiff on 23 October 2009.

222      On psychiatric examination, there was normal form, stream and content and thinking but the plaintiff had a tendency to be preoccupied with physical problems and losses with a degree of sadness and she was very concerned about her present and future health.  However, she was not delusional or suicidal and there were no perceptual disorders such as hallucinations.  She was correctly orientated in time, person and place with no overt memory or concentration difficulty.  Her insight was very good and her judgment intact.

223      Dr Nathar noted on examination the plaintiff appeared to be intermittently and mildly depressed and anxious.

224      In his view, in diagnostic terms, the plaintiff suffered from two interrelated conditions.  She had a Chronic Adjustment Disorder with Anxious and Depressed Mood and a Chronic Pain Disorder involving psychological factors and general medical conditions.  He thought both conditions were mild to moderate and varying in intensity.

225      From a psychiatric point of view, Dr Nathar was hopeful the plaintiff would eventually be able to finish her studies and seek work in a non physical area and psychiatrically cope with the proposed work.  He thought residual psychiatric symptoms should be mild and the plaintiff would probably not benefit from the introduction of any psychiatric or psychological treatment. 

226      Dr Nathar re-examined the plaintiff on 20 March 2012, at which time she told him nothing much had really changed.  She continued to suffer from pain affecting the whole of the right limb.  However, she had a tendency for the area of the right side of the neck and right collar bone to swell up and be puffy.

227      Dr Nathar noted there had not been any major improvement or change in the plaintiff’s psychiatric problems and injury since the previous examination.  He thought she was still suffering from a combination of the two conditions which were mild and at times moderate in degree. 

228      Dr Nathar thought overall the prognosis was poor, in the sense that the plaintiff would have long term chronic pain and therefore continual difficulty emotionally adjusting and coping.  He believed any residual problems would be permanently at a mild degree and the end of medico legal proceedings would aid to stabilise the residual problems to a mild degree. 

229      Dr Nathar did not see the plaintiff as having any psychiatric work incapacity, noting the university course, apart from any psychiatric based pain amplification of her Chronic Pain Disorder and that latter problem would therefore reduce her ability to cope with any physical demands of future employment.  He thought the plaintiff’s residual psychiatric problems had, to some extent, reduced her capacity to enjoy her normal range of leisure, social and recreational activities permanently.  He believed the psychiatric or psychological treatment was not likely to benefit her situation, which had become intractable and chronic.

Investigations

230      On 22 April 2006, Dr Rowais organised an x-ray and ultrasound of the plaintiff’s right elbow.

231      The ultrasound showed hypoechogenicity of the common extensor origin consistent with an area of tendinosis.  No increased vascularity was seen.  Examination of the common flexor original showed no abnormality and there was no elbow effusion. 

232      It was concluded focal tendinosis was seen of the common extensor origin at the lateral epicondyle consistent with lateral epicondylitis. 

233      In terms of the x-ray, it was noted the elbow joint had a normal appearance without elbow effusion and there was no bony abnormality.

234      Mr Pullen organised a right lateral epicondyle injection on 10 July 2006. 

235      Ultrasound examination of the common extensor origin demonstrated a diffuse hypoechoic tendon which was thickened and numerous neovascularity was seen.  There was a further similar injection on 3 October 2006 after which it was noted there were satisfactory results.

The Defendant’s Lay Evidence

236      Jan Adams, area manager of the defendant, swore an affidavit on 16 March 2011. 

237      Ms Adams deposed as to the plaintiff’s work conditions with the defendant and arrangements for various meals and assistance in the kitchen.

238      When the plaintiff reported suffering an injury, the defendant tried to offer alternative duties, but the plaintiff ceased work, saying she could not undertake the duties offered at the College.  Alternative sites were also offered (International House) but the plaintiff did not always turn up to perform her shift.

239      The person who took over from the plaintiff earned $18,643 in the 2006/2007 financial year.

240      Ms Adams exhibited to her affidavit a job profile, hours worked summary, Bridge Street Clinic return to work plan dated 12 April 2006, rehabilitation report of Dr Bloom dated 3 April 2006 and a bundle of return to work plans and rehabilitation reports.

Other Documents

241      Physiotherapy progress notes dated 16 December 2008 from the program were tendered with notes of a case conference held on 22 January 2009.

242      On 6 October 2008, a social worker from The Royal Melbourne Hospital wrote to Ascot Vale Public House Office on the plaintiff’s behalf complaining of the condition of her housing.

243      The RMH Pain Management Service advised Dr Rowais on 30 January 2009 that the plaintiff had failed to attend two successive appointments at the program.  Dr Rowais was asked to provide a further referral if he wished the plaintiff to attend the program on the future. 

The Defendant’s Medical Evidence

244      Dr Bloom, occupational physician from the Bridge Street Clinic, first saw the plaintiff on behalf of the defendant on 6 March 2006.

245      The plaintiff told him that at work on the said date she experienced sudden onset of right elbow pain when manipulating a heavy hot cooking tray and tipping the contents out.  Whilst doing so, her right arm became somewhat extended and with the wrist probably in extension. 

246      The plaintiff reported her pain but continued working despite some persisting difficulty with carrying and gripping.

247      On examination by Dr Bloom, there was pain with flexion of the right elbow.  There was tenderness to palpation overlying the common extensor origin just distal to the elbow, and challenge to the extensor muscles in the form of resisted extension and resisted pronation causing a pain response.

248      Dr Bloom thought the history and clinical findings were consistent with an extensor tendinopathy of the right elbow – an inflammatory condition of the common extensor origin of the extensor muscles of the forearm.  He noted the inflammation was sometimes associated with degeneration, particularly in middle aged and older people.

249      The plaintiff was reassured and treated with an injection of anti-inflammatory medication, as well as oral anti-inflammatories, and given a tennis elbow brace.  She was certified fit to work with a five kilogram lifting restriction, no heavy gripping and avoiding use of her right arm with the elbow in extension and particularly avoiding use of the arm in the palm down position.

250      The plaintiff was reviewed at the Bridge Street Clinic by Dr Gross three days later.  The plaintiff then told him she was no better and she had had two days off due to pain.  She also told him she had ceased anti-inflammatory medication due to feeling tired.  Clinical examination that day was unchanged.

251      The plaintiff was again reviewed by Dr Gross on 16 March 2006, when she told him she had not really improved and she was now experiencing nocturnal pain.  He referred the plaintiff for physiotherapy and certified her fit for appropriate modified duties.  She told him she felt her supervisor was unreasonable, failing to offer her such duties.

252      Dr Bloom reviewed the plaintiff on 29 March 2008, when she told him her condition was no better, and that it was even worse despite avoidance of any work duties.  By that stage, the plaintiff had seen Dr Rowais, who had certified her unfit for all work and referred her to Mr Goldwasser, orthopaedic surgeon. 

253      The plaintiff told Dr Bloom she thought her job was far too hard and the tasks were unreasonable.  Being the cook, she only wanted to cook, and she felt too pressurised.  She also resented the fact her supervisor shouted at her and apparently suggested she resign.  She felt unable to return to that sort of work.

254      Dr Bloom reported that the clinical examination on 29 March 2008 gave the impression of behavioural signs with over exaggerated response and tenderness to extremely light touch and over exaggerated weakness to extensor muscle challenge. 

255      Dr Bloom contacted Dr Rowais, who agreed with him that there were significant psycho social issues associated with the plaintiff’s presentation and he also agreed the plaintiff displayed significant behavioural signs.  Dr Rowais then offered to contribute to the plaintiff’s rehabilitation by supporting a return to work program.

256      Dr Bloom thought the plaintiff was suffering from extensor tendinopathy of her right elbow, with a history and clinical signs consistent with that condition.  However, he thought her condition was now complicated by psychosocial issues and she had developed behavioural signs and was clearly reluctant to return to work.  He thought it was difficult to determine the nature and depth of these issues, but he believed that there were work related factors such as the degree of harassment and poor communication from the supervisor.  He believed the plaintiff’s condition was consistent with the stated cause and her work served as a significant contributing factor.  However, he could not explain the severity of the plaintiff’s perceived disability on purely physical grounds and he believed there were significant psychosocial factors acting as a barrier to rehabilitation. 

257      Dr Bloom advised conservative treatment with passive physiotherapy with a combination of reassurance and modified duties.  He suggested the plaintiff be offered a return to work plan adhering closely to his constraints with the assistance of a general practitioner.  He noted that unfortunately, he could identify significant barriers to rehabilitation in the plaintiff.

Medico-Legal Examinations

258      Mr Robert Marshall examined the plaintiff on 6 April 2006.  The plaintiff told him of the incident and her attempts to return to work lasting only for an hour on 30 March 2006 at a different work site.

259      Mr Marshall described that on examination (most ostentatiously), the plaintiff held her right arm hanging by her right side and did not move it at all.  She used her left hand to open the office door and attempted to use it to unbutton her shirt on examination.  She was most reluctant to move her hand or wrist and complained of diffuse tenderness on the dorsum of her forearm.  She was not tender over the origin of the extensor muscles from the lateral epicondyle.  She also complained of pain on moving her hand.

260      Mr Marshall noted the circumstances report which referred to a bit of pain in the right arm, at first, and noted that a diagnosis of tennis elbow had been made. 

261      Mr Marshall reported that the plaintiff continued to complain of severe and intractable pain in her forearm in a distribution which was not completely characteristic of tennis elbow and not at all characteristic of lateral epicondylitis.

262      Mr Marshall believed there was a very strong psychosomatic element in the plaintiff’s presentation.  He had no doubt she had some muscle soreness in the extensors of her right wrist, but he thought her presentation was grossly exaggerated and her disability presented was far greater than consistent with this diagnosis.  He accepted that the unaccustomed muscle exercise involved in the plaintiff’s duties must undoubtedly have caused some muscle soreness.  Nevertheless, her presentation with what appeared to be a completely useless arm hanging by her side was grossly excessive and completely inconsistent with the relatively minor injury.  He then thought her condition had not completely resolved and he considered she was suffering from minor muscle strain, but her presentation of total incapacity was not consistent with examination findings.

263      Mr Marshall did not believe the plaintiff was fit for all work, but thought she was fit for modified duties, wearing a wrist support, and doubted whether that would do much, given the very severe non organic overtones which were present.  He thought the plaintiff then appeared immersed in an injured role.  She also presented as being extremely critical of what she perceived as grossly inappropriate duties for her to perform.

264      On 19 April 2006, Mr Marshall reported to Cambridge that he thought the plaintiff was suffering from trivial, quite minor muscular injury which should not prevent her from performing her normal kitchen duties. 

265      Dr John Douglas, psychiatrist, examined the plaintiff on 11 July 2006.  The plaintiff then had pain in her right arm.  She felt helpless and could not do anything, even for herself.

266      On mental examination, there were no disorders of perception, such as illusions or hallucinations.  The plaintiff was focussed on her hand and the difficulties it caused her.  Dr Douglas thought the plaintiff did not have a psychiatric diagnosis and accordingly there was no psychiatric reason why she should not undertake her normal duties.

267      Dr Douglas commented on a work plan in a letter of 30 October 2006.  He thought the duties seemed quite reasonable, but noted the plaintiff may be somewhat resistant to the idea of returning to work.

268      Dr Bowles, occupational physician, examined the plaintiff on 3 January 2007.

269      The plaintiff told him that she had difficulty holding anything heavy, opening jars or using nail clippers.  She felt different pains at different times with every movement of her arm giving a different pain.

270      On examination, the plaintiff’s complaints were vague and non specific.  She described that she had different pains with different movements, also reinforcing the lack of a specific problem. 

271      There were no localising complaints, with the plaintiff noting discomfort in the right side of her neck and right shoulder generally, with discomfort medially at the elbow with right thumb use, and also laterally at the elbow with general arm use through the forearm musculature and into the palm of the hand.  There were no neurological complaints. 

272      To palpation, there was no localising tenderness.  There was no tenderness over the AC joint subacromially into the right shoulder, nor the medial or lateral epicondyle of the right elbow.  There was no sensory loss in the upper limbs.

273      Dr Bowles noted the x-ray and ultrasound of May 2006.

274      Dr Bowles concluded the history and examination were not suggestive of any specific medical condition in terms of upper limb girdle pathology.  He thought there was no medical evidence of a neck injury or any definable shoulder or elbow complaint, nor any specific medical conditions in the right upper limb.  Noting the vague and non specific nature of the plaintiff’s complaints, Dr Bowles commented that all those issues would suggest that the epicondylitis had resolved, noting in particular, there was no evidence of point tenderness of the epicondyle, nor discomfort to resisted wrist movement and right little finger extension.  Therefore, Dr Bowles concluded any injury sustained in the course of employment had resolved. 

275      Dr Bowles thought the plaintiff had some vague activity related right arm complaints which did not amount to a medical condition.  He thought she had the capacity to return to any employment that she wished to undertake in the absence of any medical condition.  He thought contributing factors to the plaintiff’s presentation included over vigilance and over reporting of normal bodily symptoms. 

276      Dr Bowles considered the plaintiff’s current condition was not a medical problem.  In his view, there was no evidence of any injury or disease going into the right upper limb and any work component had resolved.  He concluded he could find no evidence of employment with the defendant as being a contributing factor to the plaintiff’s injury, particularly given the absence of any medical evidence of an ongoing injury. 

277      In Dr Bowles’ view, there was no medical condition as such.  He thought there may be some relative physical deconditioning preventing the plaintiff from performing some work duties.  However, that was a constitutional issue and not, in his opinion, related to any work issue.

278      Dr Kostos, rheumatologist, first examined the plaintiff on 30 August 2006. 

279      On examination, both elbows showed a full range of pain free movement.  There was some minor thickening and tenderness over the right lateral epicondyle with some discomfort on resisted middle finger extension.  Neurologically, the plaintiff had marked weakness in her right upper limb with a grip strength of zero compared to fifteen on the left. 

280      A right elbow x-ray and ultrasound of April 2006 was available.

281      Dr Kostos thought, based on the plaintiff’s presentation, it was certainly possible she could have right lateral epicondylitis.  In accepting she had a problem, he would have to accept her employment could have been a significant contributing factor. 

282      Dr Kostos commented he was surprised the plaintiff did not respond to a corticosteroid injection which was usually enough to resolve pain.  He thought it was even more surprising that she was sent for a blood injection, as he thought it was nowhere near as efficient as a steroid injection.  He considered the plaintiff should have a repeat corticosteroid injection.  If she did not settle, he thought surgery would obviously have to be considered, but it needed to be understood anecdotal evidence suggested the outcomes of this procedure in a worker’s compensation setting was dismal.

283      Noting the complaint of ongoing pain for six months, Dr Kostos thought there was clearly dissatisfaction with the plaintiff’s treatment by her employer and he thought there were significant psychosocial factors involved.  He thought those factors were likely to lead to the plaintiff becoming a long term claimant, with the only hope of resurrecting the situation being immediate treatment by a rheumatologist.

284      Dr Kostos noted the plaintiff’s presentation to Mr Marshall was in complete contrast to her presentation to him, and that if she presented in the manner that he described, Dr Kostos would have arrived at the same conclusion.  He thought the plaintiff may be able to do some of the duties suggested, provided she avoided any lifting or carrying.

285      Dr Kostos was provided with the return to work plan prepared by Crawford in August 2006.  He noted a number of tasks could be performed predominantly with the left upper limb.  He believed those duties, together with graduated increased hours would be within the plaintiff’s physical capacities, but as he previously indicated, he did not really have any objective way of assessing this precisely and all that was being relied upon was the subjective assessment of her own symptoms.

286      Dr Kostos was provided with a further return to work plan dated 20 October 2006.  Dr Kostos repeated his suggestion that the plaintiff needed to see a rheumatologist and have a corticosteroid injection and he did not believe physiotherapy or hydrotherapy was appropriate treatment.  In his view, whilst the plaintiff may be able to physically undertake the duties suggested, he doubted whether such a program would be successful without dealing with her underlying problem.

287      Dr Kostos re-examined the plaintiff on 4 March 2009.

288      The plaintiff then told him that since the earlier examination, she had noticed deterioration in her symptoms, with pain spreading throughout her right upper limb and into her right shoulder and the right side of her neck.

289      On examination, the elbows showed a full range of pain-free movement.  On the right side, the plaintiff had lateral epicondyle tenderness and thickening but resistance testing was inconclusive.  On the left side, she did not have any lateral epicondyle tenderness or thickening, but had some non specific forearm muscle tenderness.  Neurologically, the plaintiff had collapsing weakness proximally, and distally her grip strengths were zero on the right and five on the left.

290      Dr Kostos noted his previous examination findings and opinion.  He commented that since he last saw the plaintiff, she had developed widespread pain throughout her right upper limb which she confirmed was not present at the time of the earlier examination.  Given that the previous review was some five months after the plaintiff stopped work, he thought it was therefore impossible for such problems to be related to her previous work.  He thought the plaintiff clearly did not have any injury in these areas and the only objective abnormality related to her right elbow. 

291      Dr Kostos noted, despite attending the program, there was little likelihood of any further improvement in the plaintiff’s condition because she had become entrenched in her invalid role.

292      On the muscle strength demonstrated on examination, Dr Kostos thought it would be quite impossible for the plaintiff to maintain a household and drive.  Dr Kostos confirmed he did not believe the plaintiff was totally incapacitated.  However, in order to demonstrate what type of work she was capable of undertaking, he thought it was necessary for her to demonstrate her true physical capabilities.

293      Dr Kostos re-examined the plaintiff on 20 April 2011, at which time she stated she believed her condition had further deteriorated.

294      On examination, the elbows showed a full range of pain free movement.  There was not any tenderness or thickening over the right lateral epicondyle, although there was limited tenderness in the region of right brachioradialis muscle adjacent to the intercondylar ridge of the humerus.  Confirmatory testing for lateral epicondylitis was negative.

295      Neurologically, the plaintiff had collapsing weakness proximally.  Distally her grips strengths were one on the right and three on the left.

296      On examination, Dr Kostos thought the plaintiff did not have any evidence of right lateral epicondylitis and therefore it had resolved.  In his view, she did not have any ongoing evidence of a physical injury.

297      Dr Kostos noted once again the plaintiff had features of a Regional Pain Syndrome with diffuse pain and quite clearly the strength she displayed that day would make it possible for her to do tasks such as driving, which she claimed she was able to do.

298      Dr Kostos did not believe the plaintiff had any physical injuries that would restrict her return to work capacity.  However, he thought her presentation appeared to be significantly influenced by non physical factors and as a result her prognosis remained poor. 

299      Dr Kostos was provided with the 2009 reports from Mr Brearley and Mr Myers.

300      Dr Kostos noted the examination by Mr Myers was completely normal.  Therefore, his examination findings differed, in that when Dr Kostos saw the plaintiff he felt she had some right lateral epicondyle tenderness and thickening but resistance testing was inconclusive.

301      Dr Kostos could not support Mr Brearley’s statement that finding tenderness over the lateral epicondyle without other features supported a diagnosis of lateral epicondylitis in the strict sense.

302      Dr Kostos noted that Mr Brearley had not appreciated significant non physical factors and had not made any comment about them at all. 

303      Dr Kostos noted, on the other hand, Mr Myers suggested the plaintiff had past lateral epicondylitis leading to Chronic Pain Syndrome. 

304      Dr Kostos thought the second part of Mr Myers’ statement could not be substantiated.  The simple fact of having lateral epicondylitis did not lead to a pain syndrome and pain syndromes relate to non physical, psychological and social factors.  Therefore, in Dr Kostos’ view, clearly Mr Myers’ statement in this regard could not be substantiated.

305      Dr Kostos concluded it was quite apparent that Mr Brearley had not appreciated the complexities of this case, whereas Mr Myers had attempted to explain the widespread nature of the plaintiff’s symptoms, even though some of his assertions were actually incorrect.

306      Dr Kostos also commented upon the 2012 reports from Mr Brearley and Dr Nathar.

307      Dr Kostos noted Mr Brearley confirmed there was no abnormality to find in the right arm on examination.  Dr Kostos commented that Mr Brearley therefore appeared to completely contradict himself by stating the plaintiff had lateral epicondylitis of the right elbow – which Mr Brearley had described as a chronic condition present now for over five years.  Therefore, in Dr Kostos’ view, Mr Brearley’s entire report could be discounted.

308      Dr Kostos confirmed his view that the plaintiff did not have any objective signs of a physical injury when asked to comment on the restrictions described by the plaintiff to Dr Nathar. 

309      Dr Kostos confirmed that on the last review there was a good range of pain free movement and he did not believe there was any physical abnormality in the plaintiff’s neck.

310      Dr Kostos was then provided with Mr Myers’ report of 4 May 2012 in which Mr Myers recorded a very brief examination and noted full range of elbow movements with diffuse tenderness over the whole right arm, maximal over the region of the lateral epicondyle of the right elbow.

311      Dr Kostos noted, however, Mr Myers concluded the plaintiff now had right epicondylitis and therefore Dr Kostos could only assume Mr Myers somehow believed that the lateral epicondylitis had reappeared, as it was not present when he saw the plaintiff in 2009. 

312      In Dr Kostos’ view, the recent examination findings of Mr Myers would not be sufficient to make that diagnosis.  Mr Myers had found diffuse tenderness throughout the right arm and this included all the bony prominences and therefore without confirmatory evidence, the plaintiff could not have that diagnosis substantiated.  Dr Kostos also thought Mr Myers was incorrect in saying the plaintiff’s Chronic Pain Syndrome was associated with her work, as this related to psychological and social factors, with the role of inherent personality traits, previous life experiences and the adaptability to cope with anxiety and stress becoming increasing appreciated. 

313      Dr Kostos noted in fact Mr Myers mentioned that the plaintiff divorced last year and that she believed it was as a result of injury, which meant that she could not undertake any housework.

314      Dr Kostos concluded therefore it was apparent that Mr Myers, as a vascular surgeon, lacked expertise in musculoskeletal medicine and did not understand the subtleties and nuances of the plaintiff’s condition such as right lateral epicondylitis or a Chronic Pain Syndrome, for that matter, and clearly his opinions could not be substantiated.

315      Dr Edward Cole, psychiatrist, examined the plaintiff on 5 October 2007.  His opinion was not included in the court book and no submissions were made in relation thereto. 

316      Dr Karna, rheumatologist, examined the plaintiff on 17 October 2007. 

317      On examination, the plaintiff had a five degrees valgus tendency at each elbow.  She had a full range of movement at the right elbow in all planes.  Resisted right wrist extension produced no elbow pain and, equally, resisted wrist flexion produced no elbow pain.  The plaintiff had no features of ulnar neuritis.

318      To direct palpation, the plaintiff was not specifically tender in the right lateral epicondyle region, but rather in the extensor muscle valley per se. 

319      Dr Karna thought the plaintiff may well have developed a right lateral epicondylitis lesion in the context of cooking duties, albeit for a very short period of time when she developed symptoms. He noted that her presentation that day really just suggested right forearm muscular discomfort, rather than being a true lateral epicondylitis.  For the purposes of the impairment assessment, he suggested the plaintiff had a full range of movement of the right elbow.

320      Dr Karna suspected the majority of the plaintiff’s symptoms related to her underlying psychological state as part of a pain syndrome.

321      In his opinion, the plaintiff had a healed right lateral epicondylitis lesion and now presented with features of a Chronic Pain Syndrome related to psychological factors.  He believed the plaintiff’s impairment and clinical situation had stabilised from a musculoskeletal perspective.  He noted there may well be psychogenic factors relevant, but that was outside his area of expertise.

322      Dr Karna re-examined the plaintiff on 24 April 2012.

323      The plaintiff then told him her right arm symptoms had become more global and now involved her entire right arm, from her fingers down to the right side of her neck.

324      On examination, provocation manoeuvres for epicondylitis, both medial and lateral, were negative bilaterally.  The plaintiff alleged some minor tenderness on both the extensor and flexor forearm on the right, extending to the right cervico trapezius ridge, but nonetheless demonstrated a full range of movement at the small joints of her hand, wrist, shoulder and neck. 

325      The plaintiff’s right forearm was half a centimetre greater in circumference than the left and there was no evidence of muscle wasting.  There was no sensory loss and no pathological swelling.

326      Assessment of power revealed no grip strength whatsoever in the right hand, which was totally out of keeping with the general state of the plaintiff’s hands and her ability to perform any functioning whatsoever, in the general extracurricular context.  There were no features of autonomic dysfunction.  With distraction, the plaintiff had no localising tenderness of either epicondyle at the right elbow and the test for carpal tunnel syndrome and ulnar nerve irritation at the elbow were negative. 

327      Dr Karna was unable to identify the presence of any specific injury and certainly did not believe there were any contraindications for the plaintiff returning to pre injury duties.

328      Dr Karna found the recent diagnosis by Mr Brearley of right lateral epicondylitis somewhat incongruous with examination findings which revealed no tenderness.  Dr Karna also noted Mr Brearley found there was no abnormality to find in the right arm on examination and thought the cause of the plaintiff’s ongoing symptoms was not clear.

329      From Dr Karna’s perspective, the plaintiff had no pathology and was capable of unrestricted pre injury duties.

330      Dr Karna concluded examination findings failed to reveal any evidence of either primary pathology, right lateral epicondylitis or otherwise or of disuse.

331      Dr Karna thought the plaintiff did not have any structural musculoskeletal injury he could identify and that she had the capacity to return to normal duties.  He also noted she had a full range of neck movements and no localising tenderness over the cervical spine processes or facet joints and he could not find any evidence of cervical neck pathology.

332      Dr Karna provided a further report, having read Mr Myers’ report of 4 May 2012.  Dr Karna confirmed he could find no evidence of localising tenderness and further noted a number of clinically inconsistent findings, including alleged absolute lack of grip strength, despite there being no features of disuse.  He also noted, with distraction the plaintiff had no specific features of epicondylar tenderness and the symptoms were diffuse rather than localising.  He did not believe the plaintiff had features of lateral epicondylitis and would disagree with Mr Myers’s findings accordingly.

333      Dr Shan, psychiatrist, examined the plaintiff on 30 March 2009.

334      On examination, the plaintiff was despondent about her situation and the fact she could not work normally.  Her perception, insight, judgment, cognition and intelligence were normal.

335      Dr Shan noted, from a psychiatric viewpoint, the plaintiff spoke of her situation in a despondent and briefly tearful fashion.  However, it was not evident that psychological symptoms were prominent or contributed to an impediment to functioning. 

336      Dr Shan noted the plaintiff socialised and had commenced a part time course, hoping it would lead to non manual work.  He thought she did not suffer from a psychiatric or abnormal psychological condition.  Accordingly, there was no incapacity for work from an entirely psychiatric or psychological viewpoint. 

337      Dr Shan considered counselling by a psychologist could help any person going through a period of stress.  He thought, therefore, the plaintiff was entitled to up to fifteen sessions of counselling to help her cope with her situation.

338      Dr Nigel Strauss, psychiatrist, examined the plaintiff on 23 March 2011. 

339      Dr Strauss reported that the plaintiff may have suffered from some strain at work a number of years ago, but it appeared she had no ongoing organic condition. 

340      On examination, thinking was a little negative but there was no evidence of any psychosis, delusions or thought disorder.  The plaintiff was not particularly anxious or depressed at interview and she was orientated in time, place and person.

341      Dr Strauss was not convinced the plaintiff had a psychiatric illness related to her work, noting how little time she spent in her last job.  He did not believe she was suffering from any psychologically based pain and from a psychiatric point of view she had no incapacity.  He considered she had no identifiable psychiatric condition, although she was anxious and upset because of her personal circumstances.  She did not require any significant treatment from his perspective.

342      Dr Strauss was provided with Dr Nathar’s report of October 2009.  He noted the plaintiff may have had a psychological condition when Dr Nathar saw her, but not when he did.  Rather, Dr Strauss felt the plaintiff was emotionally upset because of her life circumstances and tended to blame an injury for her current state.  Although Dr Strauss felt the plaintiff had focussed on her injury as the cause of her distress, he felt ultimately she did not have a psychiatric condition and he noted in particular, she was not taking psychotropic medication and did not want any psychological or psychiatric treatment.

343      Although Dr Strauss accepted Dr Nathar believed the plaintiff had a psychiatric condition, that was not his impression and therefore they had taken quite different approaches in this case and reached different conclusions.

344      Dr Jakobivits, gastroenterologist, examined the plaintiff on 28 August 2009 to give an opinion regarding her ulcer condition and comment how it related to her right arm injury. 

345      Dr Jakobivits noted after the injury the plaintiff had taken Voltaren initially for pain, but over the last three years, she had only been using Panadol.  When the plaintiff took Voltaren, she developed some epigastric pain which probably was the exacerbation of her pre existing ulcer problem.  He noted she had been diagnosed in 2004 with a duodenal ulcer and had had helicobacter eradication therapy. 

346      Dr Jakobivits reported the plaintiff also described symptoms when she did not take the Nexium which he thought were compatible with the diagnosis of gastro oesophageal reflux.  He noted, whilst on Nexium, the plaintiff had no ulcer symptoms.

347      Thus, Dr Jakobivits did not believe any liability need be accepted for the plaintiff’s gastro intestinal symptoms which predated her injury by at least a couple of years.  He concluded that the gastro intestinal condition of duodenal ulcer plus or minus gastro oesophageal reflux was not work related.

Overview

348 This application was ultimately brought only pursuant to sub-section (c) of the definition of serious injury under the Act. The application pursuant to sub-section (a) was withdrawn in closing submissions after junior counsel for the plaintiff conceded that once psychological consequences were removed from the physical impairment, there would not be sufficient impairment pursuant to subsection (a) to meet the test of seriousness.

349      In such circumstances, it is not necessary to consider whether any physical impairment is serious.  My focus therefore is on the application pursuant to sub-section (c). 

350      In this regard, the principles enunciated by Ashley JA in Veljanovska, supra are applicable. 

351      In taking the approach adopted by Ashley JA, firstly I must be satisfied that there is an initial compensable injury.

352      Whilst the condition of lateral epicondylitis plays little part in the plaintiff’s current presentation, I accept that she suffered this condition in compensable circumstances whilst working for the defendant.

353      Save for the medico legal examiner, Mr Marshall in 2006, all treating and medico legal examiners in the first few years after the incident agreed the plaintiff suffered from this condition with Mr Pullen orthopaedic surgeon giving her two blood injections in relation thereto.

354      Whilst I am satisfied that the plaintiff suffered right lateral epicondylitis as a result of her work duties with the defendant, within a month of the said date, there were significant psycho social factors featuring in the plaintiff’s presentation on examination as noted by Dr Bloom and Dr Rowais, although Mr Pullen never made findings of this nature.

355      Having found an initial compensable physical injury, the next issue is whether there is a sufficient casual link between that condition and a chronic pain syndrome, relied upon by the plaintiff.

356      Whilst the claim pursuant to paragraph (c) was brought in relation to a chronic pain syndrome there is little support for this diagnosis amongst the psychiatrists who have provided an opinion in this case.

357      Dr Nathar is the only psychiatrist who supported such a diagnosis together with psychological factors and a general medical condition.  He also diagnosed a Chronic Adjustment Disorder with Anxious and Depressed Mood. 

358      However having reached this diagnosis following examination in October 2009 and more recently in 2012, when he thought nothing had really changed in the plaintiff’s condition, Dr Nathar considered these conditions were mild to moderate and varying in intensity. 

359      Dr Nathar considered the plaintiff’s residual psychiatric symptoms should be mild and she would probably not benefit from the introduction of any psychiatric or psychological treatment. 

360      Dr Nathar is the only psychiatrist who has found any psychiatric impairment let alone chronic pain syndrome.

361      In July 2006, Dr Douglas thought the plaintiff did not have a psychiatric diagnosis and considered there was no reason why she could not do her normal work  

362      Having examined the plaintiff in March 2009, Dr Shan considered she did not suffer from a psychiatric or abnormal psychological condition. 

363      In March 2011, Dr Strauss was not convinced the plaintiff had a work related psychiatric illness.  He did not believe she was suffering from any psychologically based pain and thought she did not require any significant treatment.  Having been provided with Dr Nathar’s 2009 report, Dr Strauss confirmed his earlier view noting the plaintiff was upset when she saw him and  personal problems were upsetting her but not to the point where she had a diagnosable psychiatric problem.

364      Whilst Dr Strauss has not seen Dr Nathar’s 2012 report, Dr Nathar commented therein that nothing much had changed since his earlier examination and he confirmed his opinion set out in his earlier report. 

365      The other medical evidence is not generally supportive of a diagnosis of chronic pain syndrome. 

366      On his initial examination in September 2009, Mr Brearley diagnosed lateral epicondylitis finding slight tenderness in the lateral epicondyle and a lack of grip strength.  He did not carry out any provocative testing.  On re-examination in March 2012 he reached a similar diagnosis having found no tenderness or abnormality in the right arm.

367      However on that later examination, the plaintiff’s right arm complaints were more widespread.  Mr Brearley considered the more diffuse right arm pain was not consistent with lateral epicondylitis.  Whilst noting that the plaintiff required psychological assessment, Mr Brearley did not mention chronic pain syndrome following this examination.  However, when asked to comment on Dr Kostos and Dr Karna’s 2012 reports, Mr Brearley noted the plaintiff appeared to have developed aspects of a chronic pain syndrome.

368      Mr Myers findings are also somewhat unclear.  On the first examination in September 2009, he found no tenderness and what appeared to be a positive provocative test.  He diagnosed past lateral epicondylitis leading to a chronic pain syndrome, although providing no explanation as to the latter diagnosis.

369      On re-examination in May 2012, the plaintiff reported more extensive right arm pain.  Mr Myers noted apparent tenderness of the whole of right arm maximal over the lateral epicondyle.  He did not carry out any testing.  He diagnosed lateral epicondylitis and a chronic pain syndrome in relation to the right upper limb. 

370      When Dr Bloom examined the plaintiff in March 2006, he accepted the plaintiff was suffering from lateral epicondylitis but he noted the presence of psycho social factors.

371      In March 2006 Professor Marshall found a minor muscle strain and a very strong psychosomatic element.

372      Dr Bowles in January 2007, having been told by the plaintiff that she had different pains in her right arm and neck at different times, found no elbow tenderness on examination and provocative testing was negative.  He considered the lateral epicondylitis had resolved and that the plaintiff was not suffering from a medical problem. 

373      On examination in October 2007, Dr Karna found no specific tenderness in the lateral epicondyle and provocative testing was negative.  He thought the lesion had healed and the plaintiff now presented with features of a chronic pain syndrome relating to psychological factors.

374      On re-examination in April 2012, the plaintiff’s right arm complaints were more global.  Provocative testing was normal.  The plaintiff had no grip strength whatsoever.  There was no localised elbow tenderness on distraction.  Dr Karna could not identify any specific injury and in his view there was no pathology.  He did not mention the presence of a chronic pain syndrome.

375      Dr Kostos has examined the plaintiff three times between 2006 and 2011.  On the first examination he accepted the diagnosis of lateral epicondylitis having found minor thickening and tenderness in that area and positive resistance testing.  He also thought there were significant psycho social factors present.

376      In 2009, testing was negative although tenderness was present.  Dr Kostos noted that the plaintiff’s pain had become more widespread since the last examination and that she had become entrenched in her invalid role. 

377      On the most recent examination in April 2011, Dr Kostos found no tenderness in the right elbow and very weak grip strength.  Provocative testing was normal.  Following that examination, Dr Kostos considered the plaintiff did not have any ongoing evidence of a physical injury and once again he thought she had features of a regional pain syndrome with diffuse pain.

378      Dr Kostos rejected Mr Myers’ opinion that the past lateral epicondylitis had led to a chronic pain syndrome.

Consequences

379      The question whether the plaintiff has suffered a serious injury should be decided by a consideration of all the evidence – “it is not trial by doctors opinions nor a trial in which the relevant questions are to be decided on this footing” – see Ashley JA in Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167 at paragraph [17].

380      In terms of the plaintiff’s evidence, as Maxwell P said in Haden Engineering Pty Ltd v McKinnon [2010] VSCA 69 at paragraph [12]:

“… 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.”

381      I found the plaintiff to be an intelligent woman who did not appear to have difficulty understanding the questions that were put to her or any particular difficulty answering them with or without the assistance of an interpreter, although the presence of the latter was of assistance on the second day of the hearing.

382      Whilst the plaintiff claimed to have restriction of right hand movement and strength, effectively not using her dominant right hand, it was clear from her evidence that her level of activity was inconsistent with her claimed disability. 

383      On her own evidence, the plaintiff is able to manage most household tasks, save for heavier ones, in relation to which she obtains assistance from family members.  Accepting her evidence in this regard, it is hard to understand why her grip strength was very poor to non existent on a number of examinations. 

384      As both Dr Kostos and Dr Karna commented, such findings were totally at odds with the plaintiff’s ability to drive and do housework and were totally out of keeping with her ability to perform any functioning whatsoever in the general extra curricular context.

385      As Maxwell P said in HadenEngineering Pty Ltd (supra) at paragraph [11], the evidentiary basis of a plaintiff’s pain assessment will ordinarily take into account what the plaintiff does about her pain in terms of medication, rest and seeking treatment.

386      At no time since the incident has the plaintiff’s general practitioner or any other doctor seen the need to refer her for psychiatric treatment.  There has been no psychological referral save for the plaintiff’s limited treatment in that regard during the program at The Royal Melbourne Hospital in late 2008.

387      Save for a six month period of the prescription of the anti-depressant, Endep in the year after the incident, the plaintiff’s general practitioner has not prescribed any antidepressant or other similar medication.

388      There is no support from any psychiatrist who has examined the plaintiff for the purposes of this case that she requires any ongoing psychiatric treatment or medication.

389      Another relevant factor Maxwell P considered relevant in making an assessment of the plaintiff’s condition was what the objective evidence showed about the disabling effect of the plaintiff’s pain. 

390      In my view the plaintiff is able to maintain a lifestyle, albeit with experience of right arm pain, which is inconsistent with a severe psychiatric impairment.

391      Significantly, the plaintiff has demonstrated an ability to plan and look forward to a new career path undertaking a Masters Degree, in a second language, which she expects to complete at the end of the year after four years study.

392      Whilst she may have some difficulty with typing, she confirmed she had done the Masters Degree throughout, contrary to what she deposed to in her affidavit.

393      Prior to enrolling in the Masters, the plaintiff had undertaken further English language studies to enable her to participate in her higher studies.

394      Whilst I accept that the presence of cognitive difficulties is not necessarily part of a Chronic Pain Syndrome, the plaintiff’s ability to participate in these activities at this level does not paint the picture of a person entrenched in pain and unable to get on with their life. 

395      Further, the plaintiff is not studying for the sake of it.  As she confirmed in her viva voce evidence, she intends to work in a field which she appreciates may involve work overseas.   

396      Dr Nathar did not see the plaintiff as having any psychiatric work incapacity but thought her Chronic Pain Syndrome would reduce her capacity to cope physically with work.  To some extent he also thought pain amplification reduced the plaintiff’s capacity to enjoy her normal range of leisure social and recreational activities.  However, he considered these restrictions, although permanent, were of a mild degree.

397      The plaintiff is able to manage her daily activities quite reasonably although she has some difficulty in the fine movement of her right hand, required for activities such as cutting her own fingernails.  Otherwise, she is able to care for herself.  Her reliance on others for household assistance is really only for heavier tasks.

398      In my view, the consequences of the plaintiff’s perceived level of pain and restriction cannot be described as “severe”.

399      Further, since the incident, the plaintiff has been able to travel extensively on three prolonged trips overseas.  She confirmed she initially went to London for a holiday, having deposed she went overseas to deal with the stress of her injury.  Whilst on that trip, having then travelled to the Sudan, she met a man whom she married four months later.  The plaintiff confirmed that that union was based on affection and love.

400      Whilst the plaintiff no longer does cooking in the Eritrean community, she continues to socialise and be involved in various community activities and was able to return to supervisory and managerial role at the African restaurant on a voluntary basis after the incident until the restaurant closed some six months or so later.  In those circumstances, I do not accept that there has been a profound interference with the plaintiff’s level of activity in her own community as her counsel submitted.

401      Taking into account all the evidence, I am not satisfied that any psychiatric impairment the plaintiff has relating to a Chronic Pain Syndrome or an Adjustment Disorder diagnosed by Dr Nathar meets the higher test of “severe” as the Court set out in Mobilio (supra). 

402      Accordingly, the plaintiff’s application is dismissed.

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