McDonald, Sean v M J and a LPercy Transport Pty Ltd

[2009] VCC 1782

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST

SERIOUS INJURY DIVISION

Case No. CI-08-04294

SEAN McDONALD	Plaintiff
v
M J & A L PERCY TRANSPORT PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE O'NEILL
WHERE HELD:	Melbourne
DATE OF HEARING:	7, 8, 9 October 2009
DATE OF JUDGMENT:	23 October 2009
CASE MAY BE CITED AS:	McDonald, Sean v M J & A LPercy Transport Pty Ltd
MEDIUM NEUTRAL CITATION:	[2009] VCC 1782

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – S.134AB Accident Compensation Act 1985
– fracture injury to left arm – development of complex regional pain syndrome type 1

physical, alternatively psychological injury – pain and suffering and economic loss.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P A Jewell SC with	Nowicki Carbone
Mr T J Ryan
For the Defendant	Mr P B Jens	Herbert Geer
HIS HONOUR:

Preliminary

1          The plaintiff suffered a fracture to the scaphoid bone of his left wrist on 23 October 2006 in the course of his employment with the defendant. After the fracture knitted, he suffered increased pain to the area, and subsequently the pain spread to his right wrist. Of more recent times the spread of the pain has included both his feet, and the right side of his face. Most of the medical opinion supports a diagnosis of chronic regional pain syndrome - type 1 (“CRPS”).

2          The plaintiff has had extensive treatment and investigation. Eventually, he left employment with the defendant, and, apart from a short attempt to return to work in March 2009, he has not worked since.

3 This is an application for leave to bring proceedings pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of the plaintiff’s employment with the defendant on 23 October 2006.

4          Mr Jewell on behalf of the plaintiff identified the body function said to be lost or impaired as the sympathetic nervous system. Mr Jewell stated that the CRPS was an organic injury. In the alternative, if I were to find the CRPS to be a psychological disorder, then Mr Jewell submitted the plaintiff had suffered permanent severe mental or permanent severe behavioural disturbance or disorder.

5          The application is thus brought under sub-ss.(a) and (c) of the definition of “serious injury” contained in 134AB(37) of the Act, and leave is sought in respect of both pain and suffering and loss of earning capacity.

6          In order to succeed, the plaintiff must prove, the onus being upon him, that the consequences emanating from the loss or impairment of the body function are at least “very considerable” and more than “significant” or “marked”.

7          In the alternative, the plaintiff must prove, the onus being upon him, that the consequences emanating from the psychological disturbance or disorder may be fairly described as more than serious to the extent of being severe. The authorities have defined the word “severe” as being a word of stronger force than “serious”.

8          I must consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. I must also compare the impairment arising from injury in this application with other cases in the range of possible impairments or losses of body function, or alternatively mental or behavioural disturbances or disorders.

9 Further, in order for me to be satisfied that the plaintiff has suffered a loss of earning capacity, he must prove, as prescribed by s.134AB(38)(e)(i) and s.134AB(38)(f), that, as a result of injury, he has suffered a loss of earning capacity of 40 per cent or more when a comparison is made between his without-injury earnings in the three-year period before and after injury, as best reflects his earning capacity, with his earning capacity at the present time from suitable employment.

10        The plaintiff and a treating specialist, Dr Peter Blombery, were called to give evidence and be cross-examined. In addition, affidavits of the plaintiff and his sister, and various medical reports and clinical notes, were tendered into evidence. I have read all the tendered material.

11        On behalf of the defendant, Mr Jens outlined the position of his client in response to the application as follows:

• He said there was a distinct difference within the medical opinions as to whether the plaintiff was in fact suffering from CRPS;

• Whatever the plaintiff’s condition, it was psychological in nature, and the consequences which he currently claimed were affected by a range of other conditions, unrelated to his employment;

• The credit of the plaintiff would be called into issue;

• Regardless of the nature of the injury, the consequences did not achieve the serious level in respect of physical injury, and not the severe level in respect of psychological injury;

• The plaintiff did not meet the criteria for a 40 per cent loss of earning capacity as required by the Act.

Relevant Background

12        The plaintiff was born in October 1967 and is almost 42 years of age. He left school after Year 10 and worked for a period as a waiter. He joined the Australian Army in 1985 and remained there until 1996, save for approximately one year working and living overseas. He then remained with the Army Reserve until approximately 2000. Between 1996 and 2001 the plaintiff travelled overseas and worked in a number of jobs, including teaching English in the Czech Republic, and working in London as a courier driver.

13        The plaintiff married in 2001, but later separated. Between 2001 and 2003, he worked as a driver/armed guard for Chubb Security, and for Border Express, again as a driver.

14        In April 2005, he commenced work with the defendant.

15        He suffered a number of injuries while in the Army, including to his left arm, but all resolved without ongoing disability. He had surgery to the ulnar nerve of that arm. The surgery was successful, and, apart from some pain and physiotherapy to his left elbow, he had no further difficulty with his left arm.

16        In February 2006, while working for the defendant, the plaintiff was driving along a road when he came upon a transport accident. He was the first upon the scene, and the two occupants of the damaged vehicle were significantly injured. The cabin of the vehicle was filled with smoke, and he dragged one passenger away. He could not remove the other occupant, but remained with him for reassurance, despite the engine of the vehicle still running and the risk of fire. The driver was eventually freed by emergency workers, but the passenger later died.

17        While he was at the scene, he was telephoned by his employer, and reprimanded for stopping at an accident, which was apparently against company policy. He was later admonished by Mr Percy, his employer, for his efforts. No counselling nor other assistance was offered by his employer for the trauma he had been through.

18        As a result of his involvement in this transport accident, he commenced to suffer memories, flashbacks, and nightmares. He recalled thinking that the car would explode. When he drove past the site of the accident he became upset. For a period, his sleep was affected, he indulged in alcohol, and suffered anxiety, particularly when seeing or hearing of motor-vehicle accidents. His focus and concentration became affected. His reaction to the incident was aggravated by lack of sympathy from his employer. He was diagnosed as suffering from post-traumatic stress disorder (PTSD) and received treatment.

19        He said that his symptoms eventually diminished, although they still affect him, in mild form, to the present time. He remained in full-time employment with the defendant from February 2006 until 23 October 2006 when he suffered the subject workplace injury.

20        In 2006 and before the work injury, he made application to rejoin the Australian Army. He had determined to leave his employment with the defendant, partially out of a desire to return to the Army, and partially because of the treatment he had suffered following the transport accident.

21        In the year ended June 2006, the plaintiff earned gross wages of $48,500, less $3,750 expenses. This translates to $860 gross per week. At the time of the workplace incident, 23 October 2006, the plaintiff stated that he was earning over $1000 gross per week, working approximately 60 hours.

22        Prior to injury, the plaintiff claimed that he would go to the gym, play touch football with friends, and go swimming. He enjoyed reading and watching movies.[1]

[1]             Plaintiff’s Court Book (“PCB”) 22

The Injury and its Consequences

23        The plaintiff was employed to deliver gas cylinders around the State. On 23 October 2006 he was delivering those cylinders to a Bunnings store in Croydon. The cylinders were retained in a large metal cage, and, when he opened the door, one of the gas cylinders fell, striking his left wrist. He reported the matter to his employer, but remained working.

24        A few days later, he consulted his general practitioner, Dr Jellinek, of the St Kilda Super Clinic, who referred him for an x-ray at the Alfred Hospital. It was found that he had fractured the scaphoid bone of his left wrist.[2] The arm was put in a plaster cast.

[2]             PCB 39

25        The plaintiff kept working, doing his normal duties, expecting that the fracture would resolve unremarkably. When the cast was removed after approximately 12 weeks, the pain in his arm continued. At an early stage, a doctor at the Alfred Hospital raised the prospect of either avascular necrosis of the scaphoid, or the onset of CRPS, to explain the continued pain and restriction in the wrist.[3]

[3]             PCB 41

26        In April 2007, the plaintiff was referred to Mr David McCombe, plastic surgeon, who considered the plaintiff was suffering CRPS, and referred him to the Barbara Walker Centre for Pain Management at St Vincent’s Hospital where he was assessed by Dr Andrew Muir.[4]

[4]             PCB 43, 45

27        In the history provided to Dr Muir in July 2007,[5] the plaintiff said he recently commenced to suffer pain in his right hand, as well as the left. He said that he had noticed colour change, particularly in cold weather, and a loss of dexterity of the left hand. Dr Muir noted sweatiness in the left limb, but no change in size, colour, or temperature. Power and sensation were normal. Dr Muir diagnosed a mild case of CRPS. He commenced the plaintiff on Amitriptyline. He further prescribed paracetamol and tryptanol, and referred the plaintiff for physiotherapy.

[5]             PCB 45

28        In October 2007, the plaintiff underwent a cognitive behavioural program at the Barbara Walker Centre to assist him in coping with the pain. A stellate ganglion block infusion was undertaken, which gave some temporary reduction in pain. Dr Muir also noted that at that time he was suffering PTSD as a result of his involvement in the transport accident.

29        Earlier in 2007, the plaintiff had been unable to resume employment. In cross-examination, he conceded that this was not solely as a result of his difficulties with his hand, but rather a combination of factors, including that he had wished to rejoin the Army, had suffered some depression as a result of his marriage breakdown, and was still suffering the effects of PTSD from the transport accident. The injury to his left wrist and the subsequent development of CRPS was “the straw that broke the camel’s back”.

30        Dr Jellinek referred the plaintiff to Ms Dowse, psychologist, in September 2007 because of the PTSD. The plaintiff complained to Dr Jellinek of nightmares, nervousness, depression and difficulties with concentration and motivation relating to the motor vehicle accident. In relation to the CRPS, Dr Jellinek has continued to treat the plaintiff through until earlier in 2009. That treatment has included the prescription of analgesics, together with exercise and physiotherapy. At the present time the plaintiff takes Zoloft, an anti- depressant, Temazepam, one to two at night to assist with sleep, an anti- hypertensive medication, and two to six Panadeine Forte tablets per day for pain.

31        Dr Jellinek confirmed a diagnosis of CRPS, and his reports record observations of swelling, red, sweaty and blotchy hands on both the right and left sides.[6] As stated, the plaintiff claims that the pain has moved from his left arm and hand to the right arm and hand, and as at the present date, the right hand is more painful and more restricted. In addition, he has had pain in his feet, and to the right side of his face. In October 2008, Dr Jellinek referred the plaintiff to Dr Peter Blombery for treatment of the CRPS, and further to Dr Lawrence Cher, neurologist. In his report of 30 August 2009, Dr Jellinek described the plaintiff’s condition to both hands as being unchanged. He said that on his last review of 19 August 2009 he noted that there was mild swelling in the palm of both hands, increased redness, slightly raised temperature with some minimal sweating. On other occasions there was redness and mottling to the hands. All of these signs, he said, were consistent with CRPS. Dr Jellinek considered that the PTSD from the car accident and depression had played a major role in his chronic pain management. His condition was both organic and non-organic in nature. He considered the plaintiff incapacitated for his pre-injury duties.

[6]             PCB 57, 59, 60

32        The plaintiff was treated by Ms Dowse, psychologist, from 2007 until recently. She noted that her treatment of PTSD had reduced symptoms over that period of time to the point that by September 2009[7] the plaintiff no longer had sufficient symptoms for a full diagnosis of that condition. She considered the plaintiff was suffering a major depression, which was in partial remission because of the anti-depressant medication he was using.

[7]             PCB 80

33        The plaintiff was seen by Dr Cher, neurologist, in November 2008. He noted significant sweating of both hands and the plaintiff complained of pain more in the right hand than the left. Although not really being his area of speciality, he considered the plaintiff was suffering CRPS.

34        The plaintiff was referred by his solicitors for a report from Dr Blombery in May 2008, and subsequently was treated by Dr Blombery through to the present time. When he initially examined the plaintiff[8] he found the right hand a little swollen but with a full range of movement. Upon the history, he determined the plaintiff was suffering CRPS. He trialled a medication, Cymbalta, but this left side effects. He trialled Epilim, but the plaintiff complained of drowsiness and he then treated him with Lyrica. His reports record various findings consistent with the symptoms of CRPS, including redness and mottling.[9] Dr Blombery considered the prognosis for recovery was poor, and that he was incapacitated for any pre-injury employment. The plaintiff still remains under the care of Dr Blombery who he sees from time to time as needed.

[8]             PCB 89

[9]             PCB 93-94

35        The plaintiff complains of ongoing constant pain in his left arm and hand, and his right arm and hand. Any form of physical activity, he claims, increases the pain. He says that he is able to drive, but finds it difficult. When he gave evidence, he admitted that he had moved to live in Mildura in June 2009, and had driven to Melbourne from Mildura, a drive of approximately seven to eight hours, on a number of occasions. He said he stopped from time to time and took additional medication. He claims the heavier domestic tasks are beyond him and has difficulty with simple shopping. He has been unable to resume a number of activities, including going to the gymnasium, swimming, reading and watching movies. He says he has trouble sleeping, and feels anxious and stressed that his condition will not improve.

36        He claimed that he moved to Mildura as he was unable to continue to afford the rent he was paying in St Kilda. Initially, he lived at a caravan park, but then moved to the house of a friend. He says he has recently burnt his hands accidentally by pouring boiling water on them. He says he has pain on the right side of his face, which becomes red and feels swollen. He said that the symptoms of PTSD which he had suffered over a period following the motor vehicle accident, had reduced considerably, and he had now come to grips with the situation and his reaction to it. In April 2009, he obtained the disability support pension.

37        An affidavit of the plaintiff’s sister, Ms Weymouth, was tendered into evidence.[10] She supports the various claims and symptoms of the plaintiff.

[10]           PCB 31-33

38        In March 2009, the plaintiff attempted some courier work but lasted only a very short time claiming that he was unable to undertake any of the duties.

39        He was cross-examined extensively by Mr Jens in relation to a number of aspects of his claim, including the nature and extent of the symptoms of PTSD. He accepted that some of the symptoms, to a minimal extent, were still with him but decreased very substantially after treatment by Ms Dowse. He accepted that he drove regularly, in any weather, and from time to time from Mildura to Melbourne. He said that the pain was constant, and affected simple tasks such as using a computer, writing or fine movements of the hands. He said that the pain generally was becoming worse.

40        Video surveillance film taken over a short period of time in November 2008 was shown. This showed the plaintiff reaching with his left hand into a large garbage bin, removing a plastic bag, and sorting through various papers contained in the bag. He used both hands in this process, more so the left than the right. It was put to the plaintiff that the activities shown in the film were inconsistent with his complaints to the Court, and the histories to various doctors. The film was only of very short duration, something in the order of three minutes, and while I did think the activities were somewhat inconsistent with his complaints, I do not regard the surveillance film as having any significant impact upon the plaintiff’s credit, given its very short duration. Further, the defendant admitted that it had retained investigators for the purpose of surveillance on a significant number of occasions in 2007, 2008 and 2009. However on most of those occasions the plaintiff was not sighted.

41        The plaintiff acknowledged that he had taught basic English while in the Czech Republic over a period of approximately two years. It was suggested that he could do the same work at the present time, even on a part-time basis. He denied he had that capacity. He was questioned by Mr Jens about the sensitivity of the pain in his hands, and it was noted that he had been sitting upon his hands over a period while giving evidence, and this was inconsistent with such sensitivity. I have significant reservations about in court demonstrations and do not consider the plaintiff’s actions while giving evidence are of any significance.

42        Over the period from February to October 2006, after his attendance at the transport accident and before the work injury the plaintiff said that he had not had any time off work for the PTSD symptoms from which he was suffering.

Medical Evidence

43        I have already referred, in part, to the opinions of various of the treating practitioners. Dr Peter Blombery provided a number of reports, and attended to give evidence and be cross-examined. I accept that he is an expert in the area of the diagnosis and treatment of CRPS. He described the disorder as an organic disorder affecting the nerve pathways in particular in the spinal cord. He said the disorder had the capacity to spread to other parts of the body, although that was unusual. He said the signs and symptoms of the disease fluctuate considerably and it is not always the case that examiners will regularly see the signs.

44        He noted that the disorder had achieved international acceptance, although there were bodies of opinion from some specialists both in the United States of America and Australia who did not accept the condition. He described the criteria for the condition established by the International Association for the Study of Pain, of which he was a member.[11] He said the plaintiff fulfilled the relevant criteria.

[11]           Exhibit B

45        In cross-examination by Mr Jens, he stated that the plaintiff’s presentation throughout his treatment was consistent with CRPS, and no other disorder. It transpired, however, that in November 2008 he had written to the plaintiff’s treating practitioner saying that the signs and symptoms were more consistent with fibromyalgia. I did find Dr Blombery’s evidence in this regard somewhat unimpressive. However, I accept that he is an expert in the field of CRPS, and accept his assessment of the plaintiff’s various symptoms as constituting the disorder. Dr Blombery’s concluded diagnosis[12] was that the plaintiff fulfilled the criteria for CRPS in the right hand, and to a lesser extent in the left hand. He thought the prognosis for recovery was poor given the condition had persisted over several years, and he considered the plaintiff was incapacitated for any form of suitable employment.

[12]           PCB 95

46        The plaintiff was examined on behalf of both his solicitors, and the defendant’s solicitors, by a number of psychiatrists and psychologists. I shall not refer to the opinions in those various reports in detail. The opinions vary but generally speaking, accept that the plaintiff had suffered PTSD as a result of the motor vehicle accident, but that his symptoms had considerably improved. In addition, he suffered an adjustment disorder, or depressive disorder because of the pain from the CRPS. Generally speaking, the opinions of most psychiatrists and psychologists were to the effect that from a psychological perspective alone, the plaintiff had a moderate incapacity, and was able to undertake a range of employments.

47        The plaintiff was examined by Dr Helen Sutcliffe at the request of his solicitors in March 2009.[13] She noted that upon examination, the plaintiff’s right hand had a dusky discolouration and was red and sweaty. She noted dullness to light touch with obvious temperatures sensitivity. She diagnosed CRPS as a direct result of the fractured scaphoid. She considered the plaintiff had no capacity for work given the complaints of pain and had suffered a very substantial loss of domestic, social and leisure activities because of the CRPS.

[13]           PCB 110-121

48        The plaintiff was examined at the request of the defendant by Mr Murray Stapleton, hand surgeon.[14] He noted, in July 2008, the plaintiff’s hands were sweaty and mottled. He considered that the plaintiff was suffering CRPS with a poor prognosis. The condition was related to his employment. He thought it would be in the plaintiff’s interests to obtain employment which involved some activity of his hands and suggested work as a car park attendant or a job involving some form of supervision.

[14]           PCB 135-138

49        The plaintiff was examined by Mr Ham, plastic surgeon, in February and July 2007.[15] He did not find any obvious features of CRPS, at least in its florid stage. His examination and opinion were at a very early time, and thus are of little assistance. Dr Peter Stephenson examined the plaintiff in September 2008.[16] He could not find any symptoms consistent with CRPS and noted that the fracture of the scaphoid had healed uneventfully. He referred to various criteria said to be guidelines for a diagnosis of CRPS[17] and various studies which had investigated the syndrome. He said the plaintiff’s symptoms, when examined by him, did not give rise to such a diagnosis.

[15]           DCB 58-65

[16]           DCB 71-77

[17]           DCB 75

50        The plaintiff was examined by Dr Michael Bowles, occupational physician, in September 2008.[18] Likewise, upon examination, he found that the plaintiff’s hands showed no symptoms consistent with CRPS. In particular, there were no trophic changes, the hands were similar in colour and temperature, and there was no sweating nor swelling. He was unable to diagnose any condition and said that the plaintiff’s scaphoid fracture had resolved and that if he had a chronic regional pain syndrome, that, too, had resolved. He thought the plaintiff had a capacity for his pre-injury duties.

[18]           DCB 81-87

Submissions on behalf of the Defendant

51        Mr Jens submitted that the plaintiff had a complex psychological history. Most significant was the development of PTSD following the motor vehicle accident, and particularly his employer’s attitude towards his attendance at that accident, and the disharmony which followed.

52        Mr Jens submitted I should not be satisfied the plaintiff was suffering from CRPS, and that if he suffered from any condition, it was psychologically and not physically based. He said that psychologically, the plaintiff’s condition had a number of constituent elements. Principally there was the PTSD, and possibly a chronic pain syndrome. He submitted it was not common to have CRPS transfer from one hand to another.

53        He said there were aspects of the plaintiff’s current presentation which were inconsistent, including the capacity to sit for long periods on his hands while complaining of intense pain. Further, the surveillance film showed the plaintiff as having the capacity to move his hands without restriction.

54        He was critical of the diagnosis by Dr Blombery, given his opinion to the general practitioner in November 2008 of fibromyalgia as an appropriate diagnosis. Because of the inconsistent presentation of symptoms, I should accept the opinions of Drs Bowles and Stephenson.

55        Even if I was to accept a diagnosis of CRPS, Dr Blombery’s view was that it was at the milder end of the scale.

Conclusions

56        I have little difficulty accepting that the plaintiff developed CRPS as a result of the scaphoid fracture which occurred in the course of his employment in October 2006. That is the opinion of the majority of the practitioners, including some who have examined the plaintiff on behalf of the defendant.

57        The course of the disorder in the plaintiff is somewhat uncommon. He suffered a fracture to his left wrist, and then developed CRPS in that wrist and hand. In early 2007, he commenced to suffer symptoms in the right wrist and hand, and this has now become the dominant feature of his presentation. He also suffers pain into both feet, and to the right side of the face.

58        It is an unusual condition in that a debilitating disorder can be triggered by only a minor traumatic event. Nonetheless, I accept the opinion of various of the practitioners, including Dr McCombe, Dr Muir, the plaintiff’s general practitioner, Dr Jellinek, Dr Blombery, Dr Sutcliffe and Mr Stapleton, all of whom observed various symptoms consistent with the diagnosis. The opinions of Drs Stephenson and Bowles are largely based on failing to observe any symptoms of redness, swelling, sweating or blotchiness at the time of their examinations. However, they examined the plaintiff only on one occasion each, and I accept the evidence of Dr Blombery that those signs and symptoms are not always evident.

59        Generally, I found the plaintiff to be an honest and credible witness. I did not see the video surveillance as significantly impacting upon his credit. I accept his complaints of pain into both wrists and hands, particularly the right. I accept that this gives rise to significant restriction in his ability to use the hands, although I note that he is able to drive regularly, and considerable distances.

60        I accept the opinion of the bulk of the medical practitioners that he has no capacity for any form of employment. He takes considerable quantities of pain relieving medication and he is now leading a somewhat solitary and sad life. I accept his evidence that a range of domestic, recreational and social activities have been lost to him, or that he is considerably restricted in those areas.

61        Given the CRPS has been prevalent now for two years, I accept the opinion of the various practitioners that it is permanent in that it is likely to persist for the foreseeable future. While the plaintiff does not receive a great deal of active treatment at the present time, he does return to Dr Blombery for review periodically, and has been treated regularly by Dr Jellinek until the plaintiff’s move to Mildura. He said that he has been seeing a general practitioner in Mildura on a monthly basis since June.

62        I reject the defendant’s contention that the plaintiff’s problems are psychologically based. I find CRPS is an organic condition and that the plaintiff’s pain and restriction and the use, particularly of his hands, are a result of that condition. I accept that the plaintiff has suffered PTSD as a result of his involvement in the transport accident in February 2006, and that for a considerable period he was troubled by symptoms arising therefrom. However, I accept the opinions of his treating psychologist, Ms Dowse, that over time her treatment led to an improvement, and that he no longer fulfils the criteria for that diagnosis.

63 In all the circumstances, I am of the view the plaintiff does achieve the “very considerable” level in terms of the consequences that have resulted from the workplace incident. I further find that the plaintiff has suffered a loss of earning capacity far in excess of the 40 per cent required by the Act. In fact, I am of the view that at the present time the plaintiff has no work capacity for suitable employment because of the symptoms.

64        In all the circumstances, I am satisfied the plaintiff achieves the statutory test, and will grant leave for him to bring proceedings at common law and make consequent orders.

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