Mickovska v Ardeer Cleaning Services Pty Ltd and VWA
[2009] VCC 541
•7 April 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-08-02463
| ICA MICKOVSKA | Plaintiff |
| v | |
| ARDEER CLEANING SERVICES PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 23 and 24 March 2009 |
| DATE OF JUDGMENT: | 7 April 2009 |
| CASE MAY BE CITED AS: | Mickovska v Ardeer Cleaning Services Pty Ltd & VWA |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0541 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Serious injury application – s.134AB Accident Compensation Act 1985 – chronic pain syndrome as physical injury – extent of seriousness.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V A Morfuni SC with | Vincent Verduci & Associates |
| Mr A D B Ingram | ||
| For the Defendants | Mr R H Smith SC with | Hall & Wilcox |
| Ms M B Bylhouwer | ||
| HIS HONOUR: |
Preliminary
1 The plaintiff commenced work with the first defendant in early 2002. On 23 July 2002, she was working as a cleaner at a hotel in Melbourne when she lifted a mattress in order to change linen. The mattress slipped and she claims her right hand became caught between the mattress and base, causing injury. She is right hand dominant.
2 The plaintiff remained at work but again struck her hand some days later, causing an aggravation of symptoms. She ceased work at that time, and has not worked since. As a result, it is claimed she has contracted Complex Regional Pain Syndrome (“CRPS”) in relation to the right arm and required extensive treatment.
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 employment on 23 July 2002.
4 Mr Morfuni, on behalf of the plaintiff, identified the body function said to be lost or impaired as the right arm.
5 In addition, he also stated the plaintiff had suffered a permanent severe mental or permanent severe behavioural disturbance or disorder. This claim was put in the alternative in the event I was not satisfied that the CRPS was a physical injury.
6 The Application is thus brought under subsection (a), alternatively, subsection (c) of the definition of “serious injury” contained in s.134AB (37) of the Act and leave is sought in respect of both pain and suffering and loss of earning capacity.
7 In order to succeed, the plaintiff must prove, the onus being upon her, that the consequences emanating from the loss or impairment of the body function are at least “very considerable” and more than “significant” or “marked”.
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 the body function of the arm.
9 Further, in order to be satisfied that the plaintiff has suffered a loss of earning capacity, she must prove, as prescribed by s.134AB(38)(e)(i) and s.134AB(38)(f), that, as a result of injury, she has suffered a loss of earning capacity of 40 per cent or more when a comparison is made between her without injury earnings in the three year period before and after injury as best reflects her earning capacity, with her earning capacity at the present time from suitable employment.
10 The plaintiff and her treating general practitioner, Dr Wilkinson, were called to give evidence and be cross-examined. In addition, medical reports, radiological reports and other affidavit material was tendered into evidence. I have read all the tendered material.
11 On behalf of the defendants, Mr Smith outlined the response of his clients in relation to the application as follows:
•
It was contested that the plaintiff suffered CRPS. If the plaintiff had any incapacity, it was functional in nature.
• The plaintiff did have a work capacity significantly greater than claimed. • The credit of the plaintiff would be called into issue.
Relevant Background
12 The plaintiff was born on 11 August 1951 and is currently fifty-seven years. She is married with two adult children. She was born in a rural village in Macedonia and completed schooling to about fifteen years. She then worked on the family farm.
13 She came to Australia in 1972 when she was about twenty. She obtained employment at Borthwick’s Meats as a packer and process worker for a number of years, followed by various factory work. Between 1978 and 1982, she worked as a sewing machinist at a factory in Richmond. She then worked in a processing factory but suffered an abdominal crushing injury and did not work for about ten years. She then worked in a scallop processing plant over about eight years. Before commencing work with the first defendant in February 2002, she worked for about a year part-time in office cleaning duties.
14 She worked for the first defendant from February to August 2002 undertaking cleaning work in hotels, including vacuuming, making of beds, mopping and cleaning of the bathrooms. Before the incident in question, she was in good health, and in particular had suffered no injury nor any other condition to her right arm. Mr Dooley, who examined the plaintiff on behalf of the defendants in June 2004,[1] noted there were two scars on the back of the plaintiff’s right hand. The plaintiff in evidence, however, denied any injury and aside from this reference, there is no evidence to indicate any surgery or trauma to that area.
[1] Defendant’s Court Book (“DCB”) 13
15 There is no comprehensive description in the plaintiff’s supporting affidavit of the recreational, domestic and social activities the plaintiff enjoyed before injury. However, in an affidavit of her husband sworn 4 March 2009[2] he states that the plaintiff was in good health, attended work regularly and carried out a range of domestic work at home, including cooking, cleaning and washing. He states she enjoyed social functions, knitting and embroidery.
[2] PCB 151
The Incident and Its Consequences
16 On 23 July 2002, the plaintiff was working at the Enterprise Hotel in Spencer Street, Melbourne. One of her tasks was to change the linen on the beds in the various rooms. She was doing this and was lifting a mattress in order to tuck in a fitted sheet. In evidence, she described she lifted the mattress a distance of about a foot. The mattress apparently fell and her right hand was caught between the mattress and the wooden base. She claimed to suffer immediate pain and observed some swelling of the hand.
17 The plaintiff kept working until 6 August 2002, undertaking apparently the same duties, although she claimed in evidence that the pain in her hand as a result of the incident gradually increased. Some days after the first incident, the plaintiff claims she again struck her hand which caused an aggravation of the pain.
18 In the course of submission, Mr Smith said that I could not be satisfied the incident described could have caused injury which has resulted in the plaintiff’s present disability. He submitted, particularly given the reference to scarring on the hand in the report of Mr Dooley, that it was likely some other incident gave rise to the present pain and restriction of the right arm. However, even accepting the incident appears relatively slight and a mattress falling about a foot would not create substantial force, there is no medical opinion to support Mr Smith’s proposal, and no other incident identified as being potentially responsible for injury. In these circumstances, I reject that contention.
19 On 7 August 2002 (incorrectly described as 17 August 2002 in the report),[3] the plaintiff attended her general practitioner, Dr Korman. He noted a blackened nail on the third finger of the right hand. An x-ray demonstrated no fracture, but mild degenerative change in one of the finger joints. He prescribed various medication and applied a plaster of Paris slab, thinking there may have been some tendon bruising. Subsequently, he referred her to Mr Ireland, hand surgeon, who in turn referred her to a physiotherapist practising as a hand therapist, Ms Campbell-Smith. She remained under treatment of this practitioner until approximately 2007. Ms Campbell-Smith provided the plaintiff with an exercise program and established self- management principles to be followed.
[3] Plaintiff’s Court Book (“PCB) 88
20 In about November 2002, Dr Korman referred the plaintiff to Mr Salmon, orthopaedic surgeon. He arranged a bone scan[4] which again showed degenerative changes in one of the joints of the right hand.
[4] PCB 144
21 The plaintiff ceased treatment with Dr Korman as she claimed his treatment was not helping, and in February 2003, came under the care of Dr John Parkes and Dr Roy Wilkinson at OccWest Clinic in Sunshine. I understand these doctors to practice in the area of occupational medicine. She has remained under their care to the present time. Their treatment has been conservative and involves referral to various pain management specialists, and the prescription of medication, including presently Lyrica, two per day, and Endep, one tablet per day.
22 In July 2003, the plaintiff’s condition had not improved, and if anything her pain was worse. She was referred to Professor Helm, neurologist, in July 2003. He could find no nerve damage and noted the plaintiff had not used Amitriptyline which had been prescribed by her general practitioner, and when the drug was again prescribed by him, the plaintiff again refused to take it. He could find no clinical evidence of nerve nor orthopaedic injury.[5]
[5] PCB 99-100
23 In August 2003, Dr Wilkinson referred the plaintiff to the Barbara Walker Centre for Pain Management where she was assessed and treated by Dr Jane Trinca, a specialist in pain management and anesthesia. Dr Trinca considered the plaintiff to be suffering a form of CRPS. She considered injection by stellate ganglion block, but the plaintiff refused this.[6] Dr Trinca suggested an active physiotherapy program with the provision of opioid medication to assist with pain during the program.[7] The plaintiff trialed this medication over a few days but it caused drowsiness and she did not persist. It would also appear at this point the plaintiff was reluctant to undergo the proposed hand therapy program as she was under the care of Ms Campbell- Smith at the Footscray Physiotherapy Clinic.[8]
[6] PCB 74
[7] PCB 127
[8] PCB 127
24 When first examined by Dr Trinca in August 2003, that doctor noted obvious swelling over the fingers of the right hand with evidence of motor dyskinesia of the right arm. Dr Trinca also noted that an MRI of the cervical spine showed diffuse posterior disc bulge at C5-6 with significant foraminal stenosis. She also recommended the plaintiff undergo treatment at Olympia Private Rehabilitation Hospital under the care of Dr Lim, rehabilitation and pain specialist. Dr Trinca continued to see the plaintiff in 2003 and 2004. She was again consulted in September 2007.[9] More recently, Dr Trinca has treated the plaintiff in December 2008 and February 2009[10] where she thought there had been improvement in the plaintiff’s functional capacity, including less swelling.
[9] PCB 131
[10] PCB 134
25 The plaintiff has also been treated by Dr Terence Lim, rehabilitation and pain medicine specialist, at the referral of Dr Trinca. He first saw the plaintiff in March 2004. He also diagnosed CRPS and recommended to the claims agent that the plaintiff attend the Olympia for a Chronic Pain Rehabilitation Program. He stated[11] that the insurer did not respond to the request, despite regular enquiries by his staff. Subsequently, he noted that a psychiatrist (Dr Alan Jager, who saw the plaintiff on behalf of the defendants) had diagnosed a conversion disorder and not CRPS. Apparently on the basis of that diagnosis, the insurer refused the plaintiff’s admission to the program. Dr Lim was critical of that refusal.[12]
[11] PCB 44
[12] PCB 45
26 Subsequently, the agent apparently accepted the plaintiff’s admission to the program[13] but by that time the plaintiff declined to participate as it was an inpatient program and required her to live in at the hospital over a period of four weeks.
[13] PCB 57
27 The plaintiff remains under the care of Dr Wilkinson and receives conservative treatment. He stated in evidence that he was attempting to wean the plaintiff away from the Lyrica and Endep medication. The plaintiff said[14] that she does not believe she would be capable of undertaking any form of employment. She attempted to return to work on several days in August 2002 undertaking light cleaning jobs for three hours a day. She claimed to have considerable difficulties undertaking even light work and only using her left hand as she was concerned that she might fall and be unable to support herself with her right hand, particularly when cleaning the bath. There appears to have been some disagreement with her supervisor during this return to work program and the plaintiff states that she was told to leave work. She has not returned since.
[14] PCB 38
28 The plaintiff states that she has ongoing severe pain in the right hand and significant loss of movement in the fingers. She states the pain goes up her arm to the shoulder and into the neck and that it is constant. It affects her sleep and she is not able to undertake her domestic duties as she used to do. Any activity using the arm causes an aggravation of pain.
29 In the course of evidence, I viewed the plaintiff’s right hand. I noted the hand and the fingers were puffy or swollen. The plaintiff appeared to present her hand in a guarded manner and when asked to display a movement, she was able to move the fingers to a limited extent, but was unable to make a complete fist. She said she could lift between 1 and 3 kilograms with the right hand.[15]
[15] Transcript (“T”) 49-50
The Plaintiff’s Credibility
30 Surveillance film of the plaintiff was shown and tendered into evidence. In the first video film of 15 September 2008, the plaintiff was seen shopping at a department store with her family. She inspected sheets and valances over a period of five to ten minutes and appeared to move her right arm freely, including pulling material from a box, lifting a box containing sheets and gesturing with the right hand. The movements with the right hand appeared without restriction, or sign of pain.
31 Further video surveillance was shown of 18 March 2009. The plaintiff was seen walking along the street swinging her right arm in a normal fashion. She entered a shopping centre and used her left and right hands to sort through dresses on a rack. She was seen to hold items in her right hand at a counter. These appeared relatively light. She used her right hand to open her handbag and extract something from within. She opened a gate, presumably to her house, with her right hand.
32 In relation to the first film, it was put to the plaintiff that the movements and activities shown were in contrast generally to her complaints of pain and lack of movement, and in particular histories given to two doctors at about that time. In his report of 23 September 2008 and referring to a review of 12 September 2008,[16] Dr Wilkinson noted that the plaintiff complained of pain in the right hand, and on examination the plaintiff was not using that hand and in fact could not use her right arm to open her handbag. He noted the fingers were stiff and swollen and she could not make a fist. Further, on the same day that the surveillance film was taken, the plaintiff was examined by Dr Stevenson.[17] The plaintiff claimed to him that she could do “nothing” with the right hand. She said she occasionally used the right hand but that it was “no good. It was too stiff to cut vegetables and could not use it to eat with a knife or a fork”. She said she could carry nothing with the right hand.
[16] PCB 85
[17] DCB 20
33 In response to these matters, the plaintiff claimed that she had been encouraged by her treating practitioners to use the hand regularly, and she did what she could with it.
34 I am of the view that the use of the right hand, particularly in September 2008, is inconsistent with the complaints of pain made to particularly Drs Wilkinson and Stevenson. It is clear that the plaintiff has the capacity to use the hand in a more extensive manner than described to those doctors. I note however, the activities did not involve heavy lifting, nor repeated use of the right hand. Mr Morfuni points out that the defendants had arranged for the plaintiff to be under surveillance for a period of approximately 126 hours. He suggests I should infer that given no other film was taken save as referred to above, the activities of the plaintiff during all of those hours was not inconsistent with her complaints to the Court and to the doctors. Mr Smith says that for a considerable part of those 126 hours, no observation of the plaintiff was made. In fact the plaintiff was only under observation for a shorter period of time, as is evidenced by the surveillance reports of T J Investigations.[18] He says that if the plaintiff was not under surveillance, she may or may not have been undertaking activities compatible with the claimed restriction. On occasions, the plaintiff was not observed at all.
[18] Exhibit 3
35 In considering the surveillance video material, and the circumstances under which it was obtained, I have formed the view that the activities displayed by the plaintiff, particularly in September 2008, were inconsistent with the complaints of pain and restriction to the doctors, particularly those who examined the plaintiff at that time. I note however that the activities did not show the plaintiff lifting heavy weights, on a consistent basis, nor use her hand rapidly over a considerable period. I further take into account the fact that the plaintiff was under surveillance for a considerable period and that the video which was eventually shown to the Court was in the order of twenty minutes or so. I am of the view the credibility of the plaintiff is affected by what is shown on the video and I therefore must exercise caution when accepting the subjective complaints of pain and restriction of movement that the plaintiff claims. I note the evidence of Dr Wilkinson, who was also shown the video film, that the activities depicted in the film did not change his opinion about the plaintiff’s pain and restriction of movement as had been described to him. He noted that he had not asked the plaintiff specifically to use her right arm or hand and did not believe that picking up a box with the right hand or extracting sheets from it were necessarily inconsistent with what he had been told. He noted the opinion of Dr Trinca that there had been, more recently, an improvement in the plaintiff’s functional capacity.
36 Mr Smith is further critical of the plaintiff for failing to undergo a range of suggested treatments by practitioners whom she had consulted. In particular, she had refused the ganglion block, and had only trialed the opioid medication as suggested by Dr Trinca.[19] She had refused entry to the Olympia Rehabilitation Program as an inpatient in July 2006.[20] Although she had trialed Amitriptyline, when prescribed by Professor Helm and her general practitioner, she had refused the drug on an ongoing basis. These matters affect the plaintiff’s credit says Mr Smith, and further, they demonstrate that the plaintiff’s pain and restriction is not as she would have it, otherwise she would have accepted this treatment. I note the plaintiff has limited education and would expect she would be nervous and even distressed by some of the treatment that was suggested. In particular, I accept it would be difficult for her to enter an inpatient program at Olympia Hospital over a period of four weeks, being away from her family. In relation to the medication, she claims that she suffered side-effects and that was the reason she desisted. I can understand therapy by injection would be of concern to her. All in all, I do not accept the plaintiff’s refusal of this treatment significantly affects her credit. I further do not accept it is a measure of the paucity of the pain.
[19] PCB 74
[20] PCB 55
Medical Opinions
37 The plaintiff was initially treated by her then general practitioner, Dr Korman. He thought that she had suffered a relatively minor crushing injury of the right hand which had become worse with pain radiating into the whole arm and shoulder. That was partially due to the antagonism between the plaintiff and her employer, and the plaintiff’s unwillingness to use her right hand normally. He thought there was some exaggeration of the severity of the pain. I note Dr Korman did not have the advantage of the diagnosis of CRPS made by a range of her other treating practitioners, which would explain why he came to these views.
38 Dr Lim examined the plaintiff in 2004. From the information disclosed in his various reports and letters,[21] I accept Dr Lim is a specialist in pain management, and in the treatment of CRPS. He is of the firm view the plaintiff suffers from that disorder. He provided an explanation[22] of CRPS and noted that it is an organic disability related to the body’s overreaction to trauma or injury. He said that it may be caused even by the most minor of trauma, such as knocking an elbow or a knee. The history of the condition is variable and it may resolve with or without intervention. Therapy was designed to desensitize the painful limb and, as far as possible, the patient was encouraged to resume normal activity as far as could be done. He considered the plaintiff’s pain and dysfunction to be severe.[23]
[21] PCB 41-55
[22] PCB 48
[23] PCB 50
39 He assessed the plaintiff again in July 2006 and noted that she refused admission to Olympia. He thought her prognosis was poor because of the effects of CRPS compounded by her reluctance to enter the program. In fact by March 2007, it was thought that the program would be of limited benefit to her.[24]
[24] PCB 53
40 Dr Parkes, an occupational physician, treated the plaintiff from 2003 to the present in conjunction with Dr Wilkinson. He considered the plaintiff was suffering CRPS, and with Dr Wilkinson, noted in the course of clinical examination,[25] there was swelling of the right hand and minimal movement of the fingers and wrist. Dr Parkes noted the plaintiff moved her hand and arm only a little and there was poor grip strength. Dr Wilkinson noted that there was very little capacity for the plaintiff to undertake any occupation.[26] He thought that 95 per cent of the plaintiff’s pain and suffering was due to the CRPS while 5 per cent related to anxiety
[25] PCB 78-82
[26] PCB 83
41 I had the advantage of hearing from Dr Wilkinson in evidence. He did not think there had been significant fluctuation in her symptoms over the period from July 2003 to the present. He said that there was only limited functional use by the plaintiff of her right hand and he agreed in general terms with the findings upon examination of Dr Stevenson[27] in September 2008. Dr Wilkinson was shown the surveillance film and it was suggested it depicted the plaintiff using her right hand in a perfectly normal way. Dr Wilkinson said that he had not tested the plaintiff as to the tasks she could undertake but he thought that the problems in her right hand would make it difficult for finer movements, particularly using her fingers. He further noted that Dr Trinca, upon assessment in 2008, saw an improvement in functional capacity. He said he was trying to wean the plaintiff away from the medication but this was proving difficult. Overall, his assessment of the plaintiff was not affected by the video film. He acknowledged he was not experienced in the diagnosis and treatment of CRPS as he had only treated one other case, but said that he had little doubt the plaintiff was suffering the pain as claimed. There was no record of any observation of wasting in the limb and he thought possibly there was scope for further improvement in the condition. He said that the swelling that he observed was consistent with the condition, as best he understood it, but that he did not expect there to be any significant improvement into levels of pain into the future.
[27] DCB 20
42 Generally, I thought Dr Wilkinson gave his evidence in a measured and believable manner. I would have thought, however, he may have been more critical of the plaintiff given the video appeared to show her moving her arm in a relatively free manner. He explained, however, that he had never actually tested the plaintiff as to what she could do with the hand.
43 Professor Helm, who examined the plaintiff in July 2003, did not find any clinical evidence of nerve nor orthopaedic injury.
44 Ms Campbell-Smith, physiotherapist, treated the plaintiff over a number of years from August 2002 to 2008.[28] The plaintiff was referred to her by Mr Ireland, hand surgeon. There is no report from Mr Ireland. Ms Campbell- Smith noted gradual functional improvement and undertook an exercise program with the plaintiff which emphasized self-management.
[28] PCB 106-7
45 The plaintiff was referred to Mr Williamson, orthopaedic surgeon, in November 2007. He accepted the plaintiff was suffering CRPS, although that diagnosis was made upon the basis of examination findings made by Dr Wilkinson and Dr Trinca.[29] He thought her prognosis was fair, although there was unlikely to be any substantial progress into the future. He thought the plaintiff would benefit from an intensive rehabilitation program, although her limited command of English would make such a program difficult.
[29] PCB 117
46 A Certificate of Opinion of a Medical Panel was tendered into evidence.[30] That Opinion, dated May 2004, describes the plaintiff as suffering a pain disorder and adjustment mood disorder and that this explained the disuse of the right hand. There is no reference in this Certificate to CRPS. It is difficult to make very much of this opinion, given that there is no information as to documents which were provided to the Panel, the examination which was conducted, nor the matters which were considered. I conclude the opinion of the Medical Panel is not of great assistance.
[30] PCB 119-120
47 As stated, Dr Trinca, pain management specialist, treated the plaintiff in 2003 and 2004, and examined the plaintiff more recently in 2007 and again in February 2009. Her opinion is significant not only because she specializes in the area, but also because she has treated the plaintiff on a number of occasions. She confirmed the diagnosis of CRPS. She noted the difficulty with the plaintiff’s rehabilitation[31] as she had not undergone the injections, stronger painkilling medication nor admission to a rehabilitation facility. She thought, in 2009, that the plaintiff’s condition had improved and that she had greater function of the right hand. On that occasion she did not detect any difference between the upper limbs in temperature, colour nor sweatiness. She found the plaintiff’s movements more spontaneous than when originally seen in 2003 and thought there could be further improvement if the plaintiff could address her fear avoidance and was able to communicate better. Overall however, Dr Trinca considered that as there had been little functional improvement over five years and with the plaintiff being unwilling to trial various treatments, it was unlikely there would be any significant change.
[31] PCB 135
48 The plaintiff was examined by Dr Blombery, physician, in March 2008. I note Dr Blombery has expertise in the diagnosis and treatment of CRPS. On examination, he thought that the right hand was cooler than the left[32] and noted the hand was more shiny and sweaty than the left. In his view, the plaintiff fulfilled the criteria for a diagnosis of CRPS as had been established by the International Association for the Study of Pain. He also thought there was the possibility of a brachial plexus injury. The prognosis for recovery was poor given the length of time which had transpired since the original injury, and did not think there would be any improvement in the foreseeable future. He did not think sympathetic blockades or other forms of invasive treatment would, at this stage, have any significant impact. While the plaintiff had some secondary depression and anxiety, her inability to perform her previous job, or to perform any suitable employment was as a result of the organically-based pain. Generally, he agreed with the opinions of Doctors Lim and Trinca. He further examined the plaintiff in December 2008[33] and considered the plaintiff had the ongoing features of CRPS. In commenting on the opinion of Dr Stevenson that in fact the plaintiff did not fulfill the criteria for CRPS, he was critical of the guidelines established by the American Medication Association’s “Guidelines for the Evaluation of Permanent Impairment”. He preferred the criteria established by the International Association for the Study of Pain.
[32] PCB 139
[33] PCB 141
49 The plaintiff was examined by a range of doctors on behalf of the defendant.
50 Dr Murray Stapleton, hand surgeon, examined the plaintiff in February 2003. He thought that the plaintiff may have been suffering carpal tunnel syndrome but that whatever the problem, the effects of the work injury had then passed. Mr Stapleton’s opinion is now dated and of little assistance.
51 The plaintiff saw Dr Fraser, rheumatologist, in 2004 and 2008. Originally upon examination there was no swelling nor any other symptoms consistent with CRPS. He thought that the plaintiff was overreacting on physical examination and that the signs were due to non-organic factors. While he thought it was possible the plaintiff had suffered a soft tissue injury in July 2002, the symptoms of that injury had long since resolved and the plaintiff had gone on to suffer a regional pain syndrome which was psychological in origin. Subsequently when he examined the plaintiff he noted that the right hand had a bluish appearance with allodynia. He could not see any definite swelling. Again, he thought that the plaintiff’s symptoms were largely non-organic and an overreaction to examination. Given the symptoms observed were equivocal, he did not agree that the plaintiff suffered CRPS and he thought her probably fit for her pre-injury duties.
52 The plaintiff was examined by Mr Brendan Dooley, orthopaedic surgeon, in June 2004. As stated, he noted two scars over the right hand and some puffiness in that area. He thought she was suffering constitutional osteoarthritis of the right hand and that, in combination with spondylosis of the cervical spine, he thought that the plaintiff’s prospect for return to work was poor.
53 The plaintiff was examined by Dr Kemp, rheumatologist and specialist in rehabilitation medicine in June 2004. He stated that skin colour and temperature of the right hand was normal and that there was no swelling. While there was marked tenderness to light touch, he could not find any physical basis for such symptoms, nor any muscle wasting nor organic weakness. He thought the plaintiff may be suffering some soft tissue damage to the right hand as a result of the injury in July 2002 but that she had developed a pain syndrome which was a psychological rather than a physical reaction to injury.
54 The plaintiff was examined by Dr Stevenson, physician, in September 2008. His report is of significance as he has expertise in the diagnosis of CRPS, and his report is authoritative. His findings upon examination noted that there was no colour change although the fingers were slightly swollen. The plaintiff permitted fairly consistent light touching. As earlier described, he noted extremely limited movement in the right hand. He disagreed with the diagnosis of CRPS and stated that the symptoms of which the plaintiff complained did not meet the differential diagnosis as was required by the American Medical Association. He said that the criteria employed by that Association required five signs to be present before the diagnosis could be made. He quoted from a range of investigations and research in the area.[34] He thought that lack of use by the plaintiff could account for the swelling in the fingers and suggested that the plaintiff be encouraged to use her arm in a normal manner.
[34] DCB 23-25
55 A further Certificate of Opinion from a Medical Panel of 21 September 2004 was tendered into evidence.[35] There were different members of this Panel to the earlier, and the Panel noted the plaintiff suffered no whole person impairment either of a physical or a psychiatric nature for the purposes of s.91 of the Act. Again, the Certificate is of little assistance for the reasons mentioned earlier.
[35] DCB 42
56 The plaintiff was referred to Dr Clayton-Thomas, specialist in rehabilitation and pain medicine, for treatment in January 2003.[36] Upon examination, he noted some swelling to the right hand but no evidence of sweat pattern, discoloration nor hair pattern growth. He thought that the plaintiff’s efforts in examination were sub-maximal. He thought the diagnosis was more likely one of pain syndrome than true CRPS. The symptoms observed were consistent with disuse. He thought there were many factors working against a successful outcome and that the plaintiff’s motivation was quite low. It was difficult, he said, to assess her true level of disability.
[36] DCB 84-5
57 The plaintiff was examined by Mr Schutz, surgeon, at the request of the defendants in July 2003. He noted the plaintiff could barely move her fingers and could not tolerate touch. He thought she was suffering a regional pain syndrome.
58 The plaintiff was examined by two psychiatrists: Dr Kaplan, at the request of her solicitors; and Dr Jager, on a number of occasions on behalf of the insurer.
59 In 2008, Dr Kaplan thought the plaintiff had developed an adjustment disorder with depressed mood as a result of her chronic pain and that that condition would be determined by the progress of her physical symptoms.
60 Dr Jager[37] thought the plaintiff was evasive and guarded and that she was possibly suffering a conversion disorder. He found it difficult to determine whether her symptoms were genuine.
[37] DCB 27-40
Conclusions as to Medical Opinions
61 There are two distinct camps as to the diagnosis of the plaintiff’s condition. On the one hand there are the treating practitioners, Dr Wilkinson, Dr Lim and Dr Trinca, all of whom diagnose the plaintiff as suffering CRPS. Dr Blombery, an expert in the area, agrees.
62 For the defendants, Dr Fraser, Dr Kemp and particularly Dr Stevenson believe the plaintiff, if genuine, is suffering from a Chronic Pain Syndrome which is a psychological, and not a physically-based disorder.
63 The doctors who support the plaintiff make their diagnoses based upon their observation of the physical signs and symptoms suffered, and whether those symptoms fit the criteria for a diagnosis of CRPS. The practitioners on behalf of the defendants, while noting swelling from time to time, generally do not observe other diagnostic criteria, and even question whether the plaintiff is genuine.
64 I should also factor into the question of whether or not I accept the opinion that the plaintiff sufferers CRPS, and the reservations I have about the plaintiff’s credibility, particularly given the video surveillance film.
65 It is always difficult to determine which medical opinions to accept without hearing from the practitioners in evidence. Doing the best I can, however, I prefer the opinions of the various treating practitioners, in particular Doctors Lim and Trinca. Each have expertise in the area, and I found the reports, particularly of Dr Trinca, to be authoritative and helpful. Dr Trinca has seen the plaintiff on a significant number of occasions and there is little doubt in her mind the plaintiff is suffering CRPS and that it is debilitating. While Dr Stevenson’s opinion is impressive, he has seen the plaintiff only on one occasion and to a large extent his opinion is based upon the lack of symptoms that he observes which he says are consistent with CRPS. Had he seen the plaintiff on more occasions, he may have discerned other symptoms as particularly did Dr Blombery. While I found the plaintiff’s use of her right arm in the video surveillance, particularly in September 2008 as inconsistent with her presentation to the doctors, in my view this does not significantly undermine the opinions of Doctors Trinca and Lim. In 2008, in fact, Dr Trinca found there had been an improvement in the function of the plaintiff’s right hand and that she was able to undertake a range of movements which she had previously not been able to do. I find this examination and the findings probably explain the increased movement depicted on the video film. In addition, all of the practitioners have observed swelling or puffiness in the plaintiff’s right hand, as did I when the limb was presented. This, in my view, is an objective finding consistent with CRPS and adds weight to that diagnosis.
Whether the Plaintiff Achieves the Required Level in relation to “Pain and
Suffering”?66 While I have some reservations about accepting all of the plaintiff’s complaints, I do accept that she has suffered ongoing pain in the right hand, extending up to the right shoulder over the years from 2002 to the present. I find in addition the plaintiff has a significant reduced capacity to move the right hand, although there has been some improvement over the last twelve months or so.
67 I accept that the plaintiff has not undergone a range of treatment recommended particularly by Dr Trinca and that this has, to some extent, affected the progress of CRPS. Had the plaintiff accepted a rehabilitation program in 2006, the medication variously prescribed, and the stellate block, the prospects for an improvement would be significantly enhanced. However, I am not particularly critical of the plaintiff for failing to undergo these treatments. Particularly a person in the position of the plaintiff would be understandably nervous and distressed at the prospect of a four-week inpatient program. Indeed it is a pity a similar program as suggested by Dr Lim in 2004 was not undertaken.
68 I accept that there is a restriction in the plaintiff’s domestic, social and recreational activities and her sleep patterns. I note the plaintiff is prescribed and takes significant medication. There is no doctor expressing an opinion that there is any form of treatment, whether invasive or otherwise, which is likely to significantly improve the plaintiff’s position in the immediate future. In those circumstances, I am satisfied that the plaintiff achieves the “very considerable” level in respect of pain and suffering.
Whether the Plaintiff Achieves the Required Level in Relation to Loss of
Earning Capacity?69 The plaintiff’s gross earnings from employment from the years 1996 to June 2003 was tendered into evidence.[38] For the years ended 1998 to 2002 the plaintiff earned a modest amount, averaging a little over $4000 gross per year. It would appear clear the plaintiff was working in part-time employment over this period. Her earnings for the year ended June 2003 was $16,478.00. I am informed that the significant proportion of this comprised weekly payments of compensation. Mr Smith argues I should accept the plaintiff’s earnings for the purpose of s.134AB(38)(e) as being an average of the three years from 1999 to 2002. Mr Morfuni argues I ought to accept the 2003 figure as the WorkCover Authority made payments of weekly compensation based upon what it considered to be the plaintiff’s earnings at the time. I prefer the argument of Mr Smith. The acceptance and provision of payments of weekly compensation is not necessarily, in my view, compatible with the criteria for the establishment of work capacity prescribed by s.134AB(38)(e). It appears to me that the figure which most fairly represents the plaintiff’s work capacity in the three years before injury is the sum of approximately $4,000.
[38] PCB 147
70 The defendants tendered various vocational assessments of WorkStreams.[39] Those reports suggested the plaintiff had the capacity to undertake a range of duties, including as a process worker in light industries,[40] hand packer[41] and product quality controller.[42] These options appear to be based upon the medical opinion of Dr Fraser of February 2004 where he suggested that the plaintiff was fit for her pre-injury duties. However, it is noted[43] that given the plaintiff’s injury, age, limited English skills and general background it was thought that the likelihood of locating suitable employment would be low. It was suggested the plaintiff undergo an English speaking course. The plaintiff complained she could not sit for any length of time.[44] The plaintiff is right- hand dominant. I am not greatly assisted by the opinions of the vocational assessors, as in my view the determination of whether the plaintiff has a work capacity is to be assessed by reference to the medical opinions.
[39] DCB 43-66
[40] DCB 38
[41] DCB 49
[42] DCB 50
[43] DCB 61
[44] DCB 64
71 In a sense, it is not relevant whether the plaintiff’s pre-injury work capacity, reflected in earnings, was substantial or modest. Mr Morfuni says the plaintiff has no work capacity at all. Mr Smith submits I should not accept the nature and extent of the plaintiff’s symptoms, and ought prefer the opinion of Dr Stevenson. In other words this is an “all or nothing” case in terms of work capacity. Even if I were to accept that the plaintiff did have a work capacity consistent with the display of activity shown in the video film, the Act requires me to take into account, when assessing that capacity, a range of factors, including the plaintiff’s age, nature of incapacity, skills, education, work experience and place of residence. The plaintiff has little if any command of English. She is a woman of now fifty-seven years with very limited education, experience in manual and factory work only, and no computer skills. Even accepting she has some capacity, these additional factors in my view point to the plaintiff having no capacity for suitable employment, at the present time and into the foreseeable future.
72 I therefore accept that the plaintiff has achieved the “very considerable” level in respect of loss of earnings.
Conclusion
73 As stated, I am of the view the plaintiff achieves the “very considerable” level in respect of both pain and suffering and loss of earnings. I propose to grant leave to the plaintiff to bring proceedings at common law, and will make orders as to costs.
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