Nguyen v Victorian WorkCover Authority
[2014] VCC 1640
•2 October 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-01484
| TUAN QOUC NGUYEN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | First Defendant |
| and | |
| N Y BAGELS PTY LTD | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12, 15 and 16 September 2014 | |
DATE OF JUDGMENT: | 2 October 2014 | |
CASE MAY BE CITED AS: | Nguyen v Victorian WorkCover Authority & Anor | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1640 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury – injury to the left wrist – whether the pain and suffering consequences and loss of earning capacity consequences were “serious” – secondary psychiatric condition – development of an unrelated psychotic disorder – diagnosis of the secondary psychiatric condition – causation of the unrelated psychotic disorder – disentangling – whether the pain and suffering consequences and the loss of earning capacity consequences were “severe” – credit – surveillance reports and film – influence of the surveillance reports and the film on medical opinions – analysis of the surveillance reports and the film
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), (37)(a) and (c), 38(c) and (d)
Cases Cited: Jones v Dunkel (1959) 101 CLR 298
Judgment: The plaintiff has leave with respect to the injury to left wrist for pain and suffering consequences and loss of earning capacity consequences
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Moulds QC with Mr G Coldwell | Alessi Legal Pty Ltd |
| For the Defendants | Ms S Manova | Wisewould Mahony |
HIS HONOUR:
Introduction
1 By an Originating Motion filed 27 March 2013, the plaintiff seeks the leave of the Court, pursuant to s134AB of the Accident Compensation Act 1985 (“the Act”), to bring a proceeding to recover damages for the pain and suffering consequences and loss of earning capacity consequences for an injury which he suffered in the course of and within the scope of his employment with the second defendant.
2 The plaintiff claims that he suffered an injury to his left hand and wrist.
3 Mr A Moulds QC appeared with Mr G Coldwell of Counsel for the plaintiff. Ms S Manova of Counsel appeared for the defendants.
4 The following evidence was adduced at the trial of the proceeding:
· The plaintiff gave evidence and was cross-examined;
o The plaintiff tendered his Court Book (“PCB”), pages 21-31L, 32-160B and 183-192-71: exhibit A;
o The plaintiff tendered the Pinkerton Consulting & Investigations Report, pages 10-12; exhibit B;
o The plaintiff tendered the defendant’s surveillance log: exhibit C;
· The defendants tendered their Court Book (“DCB”), pages 1-11 and 13-104: exhibit 1;
o The defendants tendered surveillance DVD, 14 April 2010 and 27 April 2010: exhibit 2;
o The defendants tendered surveillance DVD, 24 May 2011 and 28 May 2011: exhibit 3;
o The defendants tendered surveillance DVD, December 2012: exhibit 4;
o The defendants tendered surveillance DVD, Aril 2013: exhibit 5;
o The defendants tendered surveillance DVD, October/November 2013: exhibit 6;
o The defendants tendered surveillance DVD, 8 June 2014: exhibit 7;
The Plaintiff’s background
5 The plaintiff was born in November 1961. He is now 52 years of age. He is a married man. He has four children who are about eighteen, fourteen, eight and five years of age.
6 The plaintiff was born in Saigon in South Vietnam. He completed sufficient schooling in South Vietnam to enter into trade training. He successfully trained as a fitter and turner.
7 The plaintiff migrated to Australia in 1993. On arrival in Australia, he studied the English language. In the course of those studies, he was introduced to a company known as Australian Bagel Company as a prospective employer. He successfully applied for employment with that employer. The company later changed its name to N Y Bagels Pty Ltd.
The incident causing injury
8 On 8 July 2009, the plaintiff was working at the second defendant’s premises. He slipped and fell on a wet tiled floor. As he fell, he extended his left hand to break his fall. As a consequence he suffered a fracture to his left wrist.
9 The plaintiff was taken to St Vincent’s Hospital. He was diagnosed with a fracture of the distal radius of his left wrist. Surgery was performed which involved an open reduction and internal fixation of the distal radius. He was discharged after three days.
10 The plaintiff was reviewed at St Vincent’s Hospital in the Orthopaedic Outpatient Clinic. According to Dr Buckland, orthopaedic registrar, the plaintiff was reviewed in December 2009. On that occasion, he demonstrated diffuse pain around his left wrist with limitation of movement in the wrist. X-rays and a CT scan demonstrated that the metalware inserted into the plaintiff’s left wrist had reduced the fractures into an appropriate position. The plaintiff’s recovery was complicated by the onset of a Complex Regional Pain Syndrome.
11 The plaintiff first saw Dr Bach, general practitioner, on 13 July 2009. He referred the plaintiff to Mr Tham, orthopaedic surgeon. It would appear that the plaintiff first saw him on 3 December 2009. The plaintiff complained of pain involving the entirety of his left wrist. On examination, Mr Tham found multiple areas of tenderness involving the radial carpal, distal radial ulnar joints and the metaphyseal region of the radius and the ulna. He examined an x-ray and a CT scan and considered that the internal fixation plate holding the radius was in an excellent position. However, he found a marked incongruity of the distal radial ulnar joint, particularly at the sigmoid notch with mild dorsal subluxation of the ulnar head and ulnar styloid non-union and ulnar positive variance of 2 mm.[1] Mr Tham considered that no treatment was necessary at that stage. He recommended that the plaintiff continue to have physiotherapy.
[1]PCB 43-46
12 Mr Tham reviewed the plaintiff again on 6 August 2012. He noted that the plaintiff was experiencing diffuse pain over the dorsum of his left wrist, left thumb, index and ring fingers. He did not think there was clear evidence of a Complex Regional Pain Syndrome.[2]
[2]PCB 47
13 Dr Bach continued treating the plaintiff. The plaintiff continued to attend St Vincent’s Hospital Orthopaedic Outpatient Clinic. By about November 2010, the plaintiff complained of pain and numbness in his left wrist, which radiated up to his left shoulder. Dr Bach noted that there was significant atrophy of the plaintiff’s left arm. That situation appeared to persist throughout Dr Bach’s treatment of the plaintiff. In his last report dated 1 September 2014, Dr Bach noted that the plaintiff was still experiencing numbness in the palmar aspect of his left hand and severe pain in the left wrist. Additionally, he was experiencing stiffness and decreased strength of grip and tenderness in the fingers of his left hand. His infrequent use of his left shoulder resulted in a left shoulder drop and atrophy of his left arm and forearm.[3]
[3]PCB 41-42
14 The plaintiff was referred to the Barbara Walker Centre for Pain Management. It is part of St Vincent’s Hospital. It would appear that he was examined by Dr Hamza, physician, on 29 October 2010. He noted that the plaintiff had a stiff and painful wrist. He understood that the plaintiff was having physiotherapy and performing home exercises. Despite that treatment, he noted that the plaintiff continued to have reduced strength and range of motion, reduced left grip strength, and a reduced level of function in his left wrist. He prescribed him Amitriptyline, 5 milligrams a day, Xylocaine ointment to apply to the surgical scar, and advised him to continue taking Celebrex, 100 milligrams a day. It is unclear what treatment he provided the plaintiff and when that treatment ceased.
15 The plaintiff suffered hallucinations. He saw a man in his house and in his car. He was referred by Ms Incledon, psychologist, to Dr Cooper, psychiatrist. It would appear that the plaintiff saw Dr Cooper on 27 September 2011 and 25 October 2011. He was referred to a local area mental health service for psychiatric assessment.[4] The incidence of the hallucinations will become relevant to a determination of whether the secondary psychiatric condition which the plaintiff says he has suffered is severe.
[4]PCB 51-52
16 The plaintiff continued to be treated at St Vincent’s Hospital Orthopaedic Outpatient Clinic. He also continued to see Dr Bach, who referred him to have an electrophysiological study of his left wrist. Dr Poon, neurologist, performed those studies. He considered that there was evidence of mild left wrist median nerve lesion, which he described as carpal tunnel syndrome with delayed median sensory potentials.[5]
[5]PCB 53-54
17 The plaintiff continues to see Dr Bach for treatment. He continues to have physiotherapy treatment. He presently has physiotherapy treatment once every two weeks. The physiotherapy treatment is provided by St Vincent’s Hospital and a private physiotherapist near his home. A physiotherapist has given him instructions on exercises he should undertake. He said the exercises he undertakes are of little assistance in dealing with the pain he experiences in his left wrist. He has an appointment to attend St Vincent’s Hospital for pain management treatment on 19 September 2014.[6]
[6]Transcript 37-38 and 62-63
18 The plaintiff has been prescribed medication for pain relief. He was prescribed Tramadol. He last used Tramadol about eight months ago. He said that he suffered the side-effects of sickness when using Tramadol. It was also of little assistance in giving him pain relief. He is now prescribed Endep (an antidepressant) and Celebrex (for pain relief).[7]
[7]Transcript 62-63
The Plaintiff’s consequences
19 The plaintiff swore three affidavits on 8 November 2012,[8] 4 September 2014,[9] and on 9 September 2014.[10] In summary, the plaintiff said that the consequences of the impairment of function of his left wrist injury are:
[8]PCB 21-27
[9]PCB 28-31
[10]PCB 31(a)-31(d)
· Pain in the left wrist which is particularly bad in cold weather or during the evening;
· Considerable loss of grip strength in the left hand;
· Numbness in the left hand;
· Pain in his left arm with some restricted movement in his left shoulder;
· Drooping of his left shoulder;
· Loss of strength in his left arm;
· Interference with his ability to sleep. If he sleeps on his left side he can be woken in pain. He wakes in pain three or four times a night;
· Difficulty dressing and showering;
· Difficulty in undertaking domestic activities, such as, cooking and lifting pots and pans;
· An inability to mow his lawns which is now undertaken by a neighbour;
· Interference with his social activities, such as, going to the homes of friends for meals and karaoke;
· Interference with his ability to swim, play soccer, fish, engage in martial arts, and engage in dancing with family and friends;
· Interference with his relationship with his wife and family because the pain has resulted in him being short tempered and easily irritated;
· Interference with his sexual relationship with his wife;
· Interference with his ability to play with his young children; and
· He prefers to wear t-shirts or jumpers rather than buttoned shirts because of difficulty doing up buttons.[11]
[11]PCB 24-26 and 29-30
20 A broad challenge was made to the plaintiff’s case. A major part of that challenge was based upon film taken of the plaintiff. The films were said to be at odds with the plaintiff’s evidence that he has suffered the consequences, which I have summarised above, either at all or to the extent deposed to. Another major part of that challenge was medical evidence obtained by the defendants. A number of medical practitioners were provided surveillance reports and were shown the films. The effect of exposure to the surveillance reports and the films resulted in two of those medical practitioners changing their opinions almost entirely. It is necessary at this point to summarise the films before turning to the medical evidence, so that the opinions of the medical practitioners who saw the films can be understood.
The films
21 The defendants showed the plaintiff films taken on twelve separate dates. In addition, the defendants included surveillance reports in their Court Book. The plaintiff tendered a surveillance log, which showed that between 14 April 2010 and 8 June 2014, the plaintiff had been the subject of 91 hours and 25 minutes of surveillance. The amount of film taken of him between those dates was one hour 27 minutes and 52 seconds.
22 The films were reasonably lengthy. It is impossible for me to summarise the films in detail. I propose to only refer to those parts of the films that I think show the plaintiff at activity, and might suggest that he has better function in his left wrist and arm than he was prepared to admit to in his affidavits and in his oral evidence.
23 The first DVD contained film taken of the plaintiff on 14 and 27 April 2010.[12] The film taken on 14 April 2010 showed the following:
[12]Exhibit 2
· 10.22am – The plaintiff walked to his car. He entered his car and drove off.
· 10.36am – The plaintiff walked holding his child by the hand with his right hand.
· 10.59am – The plaintiff pushed a supermarket trolley. The supermarket trolley contained groceries in plastic bags. His young daughter was sitting in the trolley.
· 11.00am – The plaintiff unloaded the supermarket trolley. He picked up each plastic bag using his right hand. He placed each plastic bag into a car.
· 12.20pm – The plaintiff walked with one of his children. He held a school bag in his right hand. He appeared to have a small item held in his left hand.
24 The film taken on 27 April 2010 showed the following:
· 11.24am – The plaintiff lifted a child out of the car using his right arm and right side.
· 11.30am – The plaintiff returned to his car carrying a child on his right side.
· 11.32am – The plaintiff shook hands with another man using his right hand. He was smiling broadly as he spoke to the other man.
· 11.33am to about midday – The plaintiff drove his car. When out of his car he walked normally.
· 12.00pm – The plaintiff was walking swinging his arms. He walked to a sporting field. He lent up against a large object to his right side. He watched a soccer game. He picked up a soccer ball in both hands. He kicked it back onto the field.
· The video was fast forwarded to 12:06pm – The plaintiff ran at a jogging pace in the company of a child. He held a bag against his body with his left arm. He got into a car.
25 The plaintiff was then cross-examined about the films. He admitted that he had both hands on the shopping trolley, that he closed the door on his car using his left hand, and that he smiled broadly after he shook hands with a man he met in the street. He said that he and his wife had dropped a child at a childcare centre. After doing so, he walked to the playing field where he watched a soccer game for a short time. He said that the items which he had under his left arm when he ran across the road with his child were a bag, a coat and some papers. He had just picked up his child from kindergarten.
26 The second DVD contained film taken of the plaintiff on 24 May 2011 and 29 May 2011.[13] The film taken on 24 May 2011 showed the following:
[13]Exhibit 3
· 7.38am – The plaintiff walked carrying a small bag in his right hand. He opened the letterbox outside his home. He paused for what seemed like a couple of minutes while he read a letter.
· 12.06pm – The plaintiff moved a bin using his right hand. He spent some minutes talking to an elderly gentleman while standing in his front garden.
27 The film taken on 29 May 2011 showed the following:
· 10.55am – The plaintiff carried a largish white bucket in his right hand out on the nature strip outside his home. He had a small yellow bucket with him. What I saw was partly obscured by trees. He appeared to empty water from the white bucket. It was difficult to see how he did that, but the best I can say is it looked as though he was using his right hand.
· 12.09pm – The plaintiff was standing in his front garden. He had the white bucket with him. He also had the yellow smaller bucket with him. It appeared as though he was doing some watering, ladling water from the white bucket with the smaller yellow bucket using his right hand.
· 12.11pm – The plaintiff bent down. It was difficult to see what he was doing. He then examined what looked like a lemon tree in his front garden. He touched some of the leaves on the tree with his left hand. He also talked with an elderly gentleman.
28 The plaintiff was then cross-examined about the films. The cross-examination essentially went to the fact that the plaintiff appeared to be able to converse in English with an elderly gentleman who he said was his neighbour. There was nothing else of serious relevance in the cross examination.
29 The third DVD contained film of the plaintiff taken on 28 December 2012 and 30 December 2012.[14] The film taken on 28 December 2012 showed the following:
[14]Exhibit 4
· 11.47am – There were a number of people gathered around a beast on rotisserie barbecue. The plaintiff stopped and appeared to run his left thumb over the beast on two occasions. He was holding a small bag in his right hand. He walked to his car. He opened the door with his left hand. He drove away in the car.
· Between 4.07pm and 4.30 pm – The plaintiff walked. He got into his car. He entered a grocery store. He was carrying a bag in his left hand. He walked to his car. He was later seen walking out of a shop carrying a bag in his right hand. He got into his car and drove away.
30 The film taken on 30 December 2012 showed the following:
· Between 9.50 and 10.30am – The plaintiff was in a department store. He looked at displays of electronic equipment.
· 10.09am – The plaintiff placed his left hand on his hip. He also placed his left hand just inside his left front jeans’ pocket.
· 10.16am – The plaintiff leant on his elbows at a display. He placed his palms flat on the display while he used a computer mouse with his right hand.
· 10.18am – The plaintiff placed his left hand behind his back at the small of his back.
· 10.32am – While the plaintiff was walking around the shopping centre he appeared to shake his hands as though he was wringing his hands.
· Between 10.21 and 10.42am - the plaintiff walked around the department store and the shopping centre. At about 10.49am he got into his car and drove away.
31 The plaintiff was then cross-examined about the films. He admitted that he was gesturing with his left hand where the rotisserie barbecue was set up. He said that the rotisserie barbecue was set up at a factory where he went to purchase some noodles. He admitted that he did the shopping for his family. He said that he did swing his arms. He did so because it removed the fatigue from his arms. He admitted that he put his hand on his hip and up his back. He said that could have the effect of relieving the pain in his left wrist.
32 The fourth DVD contained film of the plaintiff taken on 2 April 2013.[15] It showed the following:
[15]Exhibit 5
· 10.50 to about 10.55am – The plaintiff spoke to an elderly gentleman in his front garden of his home for some minutes. He smiled broadly at times. The video was then fast forwarded to about 10.58am.
· 10.58am – The plaintiff moved his arms in front of his body so that the tips of his fingers touched. He moved both arms freely. He gesticulated with his right hand, and then with his left hand. Most of the time he had his left hand at his side. The video was then fast forwarded to about 11.05am.
· 11.05am – The plaintiff clapped his hands in front of his chest three times in quick succession.
33 The plaintiff admitted that he talked to the elderly gentleman. He admitted that he spoke to the elderly gentleman in English. He admitted that he moved his right arm and left arm in the manner which I have described above. He admitted that he spoke in a spirited and lively fashion to the elderly gentleman, and laughed at times. He admitted that he clapped his hands. He said that movements of that kind with his left hand caused pain.
34 It was at this point that part of a history taken by Dr Jager, psychiatrist, was put to the plaintiff. The plaintiff saw Dr Jager on 11 August 2011 for the defendants. He recorded the following history:
“ He feels angry when driving and yells at his children. He has no enjoyment in life. His sleep is broken. Energy fluctuates. His appetite is reduced but he has put on weight. He has no libido. He is forgetful and concentration is no good for reading. He has had suicidal thoughts but has made no suicide attempts.”[16]
[16]DCB 32
35 It was put to the plaintiff that what was seen in the film was at odds with the history recorded by Dr Jager. He conceded that all the films shown up to this point suggested that he has some enjoyment in life and that he is able to engage in activities as he needs to.[17] It was also put to the plaintiff that when he saw Dr Jager on 24 January 2013, that he told him that he wore a brace on his left wrist all of the time, including when he slept.[18] He conceded that the films did not show him wearing a brace.[19]
[17]Transcript 128-129
[18]DCB 35
[19]Transcript 69
36 The fifth DVD contained film taken of the plaintiff on 28 October 2013 and 18 November 2013.[20] The film taken on 28 October 2013 showed the following:
[20]Exhibit 6
· 12:20pm – The plaintiff was with one of his children. He was in his garden at one point.
· Very short periods of film were shown between 1:13pm and 2:04pm not amounting to very much. The plaintiff drove his car. He walked to his car and then drove away in it.
37 The film taken on 18 November 2013 commenced at about 12:21pm. It showed the plaintiff driving his car. There was no cross examination at this point on these films.
38 The sixth video contained film taken of the plaintiff on 4 June 2014, 6 June 2014 and 8 June 2014.[21] The film taken on 4 June 2014 was very short. It showed the plaintiff in his car at 8.25am. The film taken on 6 June 2014 showed the following:
[21]Exhibit 7
· Between 7.55am and 10.43am – The plaintiff walked. He entered his car. He drove his car. He opened the door of his car with his left hand.
· 10.43am – The plaintiff pushed a supermarket trolley. He appeared to be leaning on the handle of the trolley. He appeared to unload the goods and the trolley at a checkout and load them back into the trolley using his right hand.
· 11.26am – The plaintiff was standing statically in a shopping centre.
· From about 11.29am to about 11.56am – The plaintiff was seated on a bench in a shopping centre. He appeared to be playing a game on his mobile phone.
· 12.26pm – The plaintiff got into his car and drove away.
39 The film taken on 8 June 2014 appears to have been taken using different cameras because the time in one part is on a 12 hour time cycle and another part is a 24 hour time cycle. It showed the following:
· 13.16 pm - the plaintiff walked.
· 2:00 pm - the plaintiff got into his car.
· 14.44 pm - the plaintiff got into his car. He did the same at 16.22 pm.
· 16.30 pm - the plaintiff was at his home.
40 The plaintiff conceded that he can drive a car. He denied that he used his left hand fully in controlling the steering wheel. He said that his right hand did most of the work in steering his car. He conceded that he was pushing a supermarket trolley. He said that he was pushing it using his “tummy”. He conceded that he has an interest in electronics. He said that he was in a Myer department store looking at electrical equipment. He said he had not considered undertaking training to learn how to repair computers. However, he said that if he did a course he could probably do that work.
41 The plaintiff was also cross-examined on many of the consequences which he said have resulted from the impairment of function of his left wrist. I do not propose to summarise the challenge to the plaintiff’s evidence relevant to consequences in detail, but the following represents specific challenges to some of the consequences:
· It is clear that the plaintiff does not wear the brace all of the time. He said that he wears it at times. He was not wearing it when he gave his evidence.[22]
[22]Transcript 67
· The plaintiff said that the film taken of him at the Myer store showed him sitting with his left shoulder lower. He said his physiotherapist told him that his left shoulder had collapsed to some extent because of the impact of the injury to his left wrist.[23] It appeared to me as though the plaintiff’s left shoulder was in fact lower than his right shoulder.
[23]Transcript 118. The episode of film the plaintiff was referring to was taken on 6 June 2014 at about 11.29am
· The plaintiff said he can use a knife and fork; do some cooking; do some washing up; hang clothes on the clothesline, and do some shopping. [24]
[24]Transcript 73-74
· The plaintiff said that he has gone fishing once or twice since he suffered injury.[25]
[25]Transcript 76
· The plaintiff said that he used to take his children swimming a lot before he suffered injury, and now takes them from time to time.[26]
[26]Transcript 77-78
· The plaintiff said that he last played soccer “years” before he suffered injury.[27]
[27]Transcript 77-78
· The plaintiff said that he obtained a qualification as a dance instructor in Vietnam. His wife was one of his students. He did not teach dance in a formal sense. It was something he greatly enjoyed. It was more like a hobby.[28]
· The plaintiff said that he can drive a car. He is able to place both his hands on the steering wheel. He mostly uses his right hand to operate a steering wheel.[29]
[28]Transcript 78
[29]Transcript 129-130
42 In re-examination, the plaintiff was referred to parts of the films. He was specifically referred to film taken on 14 April 2010 at 10.59am.[30] He said that he picked up each bag of groceries with his right hand as he took them from the shopping trolley and placed them into the car. He said he did not use his left hand because he cannot lift heavy bags with it. He added that he did not lift up his infant daughter and put her into the car because he could not secure her in undertaking such a lift because of the condition of his left hand.[31]
[30]Exhibit 2
[31]Transcript 140-141
43 Next, the plaintiff was referred to the film taken on 28 December 2012 at 4.17pm. He was referred to holding a shopping bag in his left hand. It was clear that he was holding the bag on his left wrist rather than in his left hand. He said that he did that because he could not obtain a firm grip on the bag by squeezing his hand to secure a grip.[32]
[32]Transcript 141
44 Next, the plaintiff was referred to the film taken on 29 May 2011 at 10.55am. He said he used the smaller yellow bucket to ladle the water out of the larger white bucket because the white bucket was too heavy, and I assume he meant too heavy to lift.[33]
[33]Transcript 142
45 Next, the plaintiff was referred to aspects of the films where he was seen putting his left arm behind his back. He said that he found that doing so would relieve the pain in his left wrist.[34]
[34]Transcript 142
Preliminary conclusions regarding the Plaintiff’s evidence
46 It is necessary for me to consider the attack made upon the plaintiff’s creditworthiness and reliability through the films and through cross examination. What I make of the films will inevitably impact upon whether I accept that there was an evidentiary basis upon which at least two examining medical practitioners were justified in changing their opinions.
47 There can be no doubt that the plaintiff suffered a nasty injury to his left wrist which required a surgical repair using an internal fixation plate. There can be no doubt that he required physiotherapy, hydrotherapy, orthopaedic reviews, pain management, and the prescription of painkilling medication following the surgery.
48 At this point, the preliminary conclusion I have reached is that the plaintiff’s evidence of the consequences of the impairment of function of his left wrist and arm appear to be reasonable. There are some aspects of that evidence which I do not accept. I do not accept that he wears the brace all of the time. He readily conceded that. However, that is inconsistent with the impression he gave, and perhaps intended to give, to Dr Jager. I do not accept that he was playing soccer up to the time when he suffered the injury. It would appear that he had ceased playing soccer, even socially, some years beforehand.
49 However, even after discounting parts of his evidence, it appears to me that the balance of his evidence is reasonable, and at this point, I see no reason why I should not accept it.
50 I am not persuaded that what I saw in the films impacts upon the plaintiff’s creditworthiness and reliability very much at all. What is clear from the films is that the plaintiff can drive a car; can go shopping; can engage in amounts of gardening, and has some degree of use of his left wrist. I am not sure whether I could detect any obvious drooping of the plaintiff’s left shoulder, but when the plaintiff pointed to part of the film where that was obvious to him, it did appear that while he sat on the bench, his left shoulder was lower than his right shoulder.
51 One thing which I noted on the films was that the plaintiff did have some use of his left wrist and arm. It was almost always modest use. The only occasions where it was more than modest was when he clapped his hands, swung his arms as he walked and appeared to wring his hands. Otherwise, it was notable that his left arm was often at his side hanging straight down. He appeared to undertake most tasks with his right hand. I do not accept that he undertook those tasked with his right hand only because he is right handed. I think that he did more with his right hand because of the injury to his left wrist.
52 The defendants’ submissions regarding what was shown on the films highlight one of the difficulties which film poses. Film of itself tends to be beguiling and seductive. The mere showing of film suggests that it will demonstrate activity beyond what is reasonable, given the alleged impairment of function. In this instance, there is no medical evidence to suggest that the plaintiff has no use of his left wrist. He has an obvious, and indeed, admitted ability to use his left wrist and arm. The conclusion I have reached after viewing the films and reading the transcript of the plaintiff’s evidence is that there is little in the films which undermine the creditworthiness and reliability of the plaintiff to the extent contended for by the defendants.
The medical evidence
53 I will firstly turn to the plaintiff’s medico-legal evidence. Dr Castle, occupational physician, examined the plaintiff on 14 November 2011.[35] On examination, he found the following:
[35]PCB 59-66
“Range of movement was:
· Dorsiflexion 40°
· Palmar flexion 30°
· Ulna[r] deviation 40°
· Radial deviation 10°.
There was decreased sensation over the left thenar eminence and the left palm.
…
Measured around the styloid process of the ulna Mr Nguyen’s right wrist measured 22cm and his left 21cm.”[36]
[36]Mr Moulds provided me with an extract of the Guides to the Evaluation of Permanent Impairment which show that normal wrist flexion is to 60 degrees; extension to 60 degrees; radial deviation of the right wrist to the left 20 degrees and ulnar deviation to the right 30 degrees. This permits a basis of comparison of the clinical findings by a number of examining medical practitioners of the plaintiff's left wrist.
54 Dr Castle considered that the plaintiff was suffering from residual pain and discomfort in his left wrist. He considered that he was not fit for his pre-injury employment based on the severity of the injury, the weakness in the plaintiff’s left arm and the fact that activity increased the pain in the plaintiff’s left wrist. He considered that the plaintiff’s prognosis was guarded. It would appear that the plaintiff was undergoing treatment at the time when Dr Castle examined him. He considered that a rehabilitation program might increase the plaintiff’s activity levels. Otherwise, he considered that he would have difficulty in undertaking the duties involved in the jobs in the NES Vocational Assessment Report dated 6 December 2010.[37]
[37]DCB 1-9
55 Mr O’Brien, orthopaedic surgeon, examined the plaintiff on 7 January 2014.[38] On examination, Mr O’Brien found the following:
“ Left elbow flexion was from 0-140°, there being some 80° of both pronation and supination of the left forearm. There was a well -healed scar over the volar aspect of the distal forearm, extending into the left wrist. There was no swelling or deformity associated with the left wrist. The patient reported marked tenderness around the region of the left wrist, without any obvious apparent specific area of maximum tenderness. Left wrist extension was 50°, with 30° of flexion. Radial deviation was 10° with 30° of ulnar deviation. There was a full range of movement present in all joints of the left fingers. Grip strength on the left was particularly weak, although specific muscle power appeared intact and sensation in the left for arm and hand were normal.”
[38]PCB 117-120
56 The plaintiff told Mr O’Brien that he had constant pain in his left wrist which was 6 out of 10, and would rise to 8 out of10 at night. The pain was aggravated by using his left wrist to perform any activity, including lifting. The pain interfered with his sleep. He otherwise told Mr O’Brien that he suffered interference with his capacity to undertake normal household duties, but was capable of undertaking normal activities of daily living.
57 Mr O’Brien then expressed the following opinion:
“ This patient reports as a result of a fall in the course of his employment, sustaining an intra-articular fracture of the distal non-dominant left radius and ulnar, which was treated surgically by open reduction and internal fixation of the ulnar plate and screws in the distal radius. The history indicates that the postoperative phase was somewhat complicated by the diagnosis of a Complex Regional Pain Syndrome which was treated conservatively. The patient nevertheless describes continuing significant constant left wrist pain, in addition indicating the clinical condition since injury has been complicated by compression. Examination now does demonstrate definite restriction of movement of the left wrist, particularly related to extension and radial deviation. There are however, no signs currently which would suggest the continuing presence of a complex Regional Pain Syndrome.
The signs now suggest the presence of residual capsular contraction of the left wrist joint, and some evidence of mild post-traumatic arthritis within the wrist. It would also appear that the clinical course has been significantly affected by non-organic factors.”
58 Mr O’Brien considered that the plaintiff’s prognosis was poor because the plaintiff had established chronic pain which he did not believe would resolve with any form of ongoing treatment. He added that he did not believe the plaintiff had a capacity to return to gainful employment, and that he remained restricted generally for social, domestic and recreational activities permanently.
59 Whether the plaintiff is suffering post-traumatic arthritis is a matter of some controversy. Mr O’Brien was provided with x-rays performed on the plaintiff’s left wrist on 18 February 2014[39] and 25 August 2014.[40] On inspection of the x‑rays, he noted that they demonstrated a non-union of the ulnar styloid. The non-union was considered to be of no consequence. Mr O’Brien considered that the x-rays demonstrated minimal radiocarpal joint space narrowing, which he interpreted as mild traumatic arthritis.[41]
[39]PCB 156
[40]PCB 157
[41]PCB 121(a)
60 The x-ray performed on 18 February 2014 was reported on by Dr Gupta, radiologist. He considered that the x-ray demonstrated “minor osteo arthritic change of the radiocarpal joints noted with slight decrease in the joint spaces”. He concluded that the finding was consistent with early osteoarthritis of the radiocarpal joints. The x-ray performed on 25 August 2014 was reported on by Dr Naidoo, radiologist. She concluded that “early degenerative change is seen at the intercarpal row”.
61 Dr Horsley, occupational physician, examined the plaintiff on 4 June 2014.[42] On examination, Dr Horsley found that the upper right arm circumference was 30 centimetres and the left was 27.5 centimetres. The forearm circumference of the right arm was 21 centimetres and the left arm was 20 centimetres. She found the range of motion of the left wrist was restricted with flexion limited to 30 degrees, extension to 35 degrees, radial deviation to 10 degrees and ulnar deviation to 35°. She measured his grip strength being 22 kilograms on the right side and 8 kilograms on the left side. However, she did note evidence of fear avoidance behaviour.
[42]PCB 122-130
62 Dr Horsley considered that the plaintiff had developed post-traumatic arthritis. That was probably based upon an x-ray dated 18 February 2014, which was provided for her inspection. She considered that a number of significant work restrictions needed to be placed on the plaintiff. Her prognosis for a return to work by the plaintiff was guarded. She considered that there were considerable barriers to the plaintiff returning to work. Overall she considered that his prognosis was poor.
63 Dr Blombery, vascular physician, examined the plaintiff on 25 July 2014.[43] He obtained the following relevant history from the plaintiff:
“ He complained of ongoing pain in the left wrist which was present all the time and frequently kept him awake from sleep. He said the left shoulder tended to be lower than the right shoulder and the pain in his left wrist was worse in the cold weather. The left hand became cold and changed colour to red and he rated his pain overall as 7 – 8/10. There was no swelling in the hand. There were pins and needles and numbness in the palm of the hand and there was pain on movement of the left wrist. The wrist was weak. He also become somewhat depressed.”
[43]PCB 140-144
64 On examination, he found the following:
“ On examination, both hands were of a similar temperature. The left hand was a little redder than the right but there was no swelling. There was a 6 cm scar over the ventral aspect of the wrist. He was quite tender on pressure over the scar and also a little over the dorsum the left wrist as well. The left for arm had a 1 cm less circumference than the right forearm. In the left wrist, there was 25° flexion, 30° extension, 40° ulnar deviation and 10° radial deviation.”
65 Dr Blombery considered that the changes in temperature and colour of the plaintiff’s left arm, together with features of ongoing pain and autonomic disturbance, warranted a diagnosis of Complex Regional Pain Syndrome. He described it as resulting in sensitisation of nerve pathways. He considered that the plaintiff could work neither as a baker, nor as a forklift driver. He considered that the plaintiff’s prognosis was poor. He was provided with surveillance reports. He considered that what he read in the surveillance reports was consistent with his examination of the plaintiff.
66 The defendants had the plaintiff examined by a number of medical practitioners. The first was Mr Kudelka, orthopaedic surgeon. He examined the plaintiff on 4 August 2011. He was not provided with any surveillance reports or film. On examination, he found the following:
“… the left upper limb had some drooping of the left shoulder girdle, but the shoulder moves well. The left elbow flexed and extended normally but pronation and supination are limited in the last 20°, where he complained of pain in the wrist region. His forearm is 2cms less in circumference on the left than the right.
The left wrist has a volar scar 6cms long, which is visible and unsightly but non-tender. Dorsiflexion and palmarflexion of the left wrist was 40°. Radial and ulnar deviation were 10° in either direction. The whole left hand shows weakness in the grip.”[44]
[44]PCB 146(c) – 147(d)
67 It would appear that Mr Kudelka accepted the plaintiff’s complaints of pain and disablement at face value. He doubted that the use of Celebrex and physiotherapy was of any particular value. He considered that the plaintiff should continue to use analgesics. He suggested that the plaintiff undergo further x-rays and an EMG. He considered that the plaintiff could not return to his work as a baker’s assistant, but could return to modified duties and hours, so long as he avoided repetitive use of his left arm.[45]
[45]PCB 147(d) – 147(e)
68 Dr Mutton, occupational physician, examined the plaintiff on 14 December 2009.[46] On examination, he found the following:
“… There was quite marked loss of hand grip strength. There was general tenderness over the carpus particularly over the ulnar aspect. There was quite marked loss of supination and to a lesser extent pronation. There was reduced radial deviation but good ulnar deviation. Flexion and extension were generally reduced … .”
[46]DCB 41-45
69 Dr Mutton considered that the plaintiff required treatment. He considered that the plaintiff had no current capacity to work at that time. He also considered that the plaintiff was likely to experience long-term problems because of the development of post-traumatic arthritis due to the intra articular nature of the fracture.
70 Dr Mutton re-examined the plaintiff on 25 February 2014.[47] He considered that the plaintiff’s complaints of pain were much greater than he would have expected. He qualified that by saying that it needed to be acknowledged that the plaintiff had suffered a transverse impacted fracture of the right distal radius, with some distal tilt. He gave a qualified opinion, that if the plaintiff’s complaints of his tolerances were accepted, then the plaintiff would not be able to lift weights greater than 2 kilograms, perform repetitive movement of the left wrist, and he would not be able to work as a baker.
[47]DCB 46-50
71 Dr Mutton was provided with surveillance reports from G4S Compliance & Investigations dated 29 April 2010,[48] MPOL Group dated 6 June 2011,[49] and Webster’s Investigations Victoria Pty Ltd dated 9 January 2013.[50] He was not provided with the films which I saw. He believed that the aggregate of the surveillance reports revealed the plaintiff using his left wrist and hand as follows:
[48]DCB 61-80
[49]DCB 81-89
[50]DCB 90-104
· Driving a car
· Putting rubbish in a wheelie bin
· Collecting mail
· Retrieving a wheelie bin
· Watering plants in his garden, and looking at plants in his garden
· Using his left upper limb to check his letterbox, to lean on a fence and when watering his garden
· Unloading shopping into a car; and
· Removing a toddler from a car.
72 I have read the surveillance reports. They seriously misdescribe the actual detail of what the plaintiff was seen doing in the films and precisely what he did with his left wrist and hand. As a result, Dr Mutton has been misled. For example, he did not have the plaintiff’s explanation of the use of his left wrist and hand when driving a car. Collecting the wheelie bin appeared to me to be with his right hand. Collecting mail hardly seems to be an arduous activity requiring any comment at all relevant to the function of the plaintiff’s left wrist and hand. The watering appeared to be undertaken almost exclusively with the plaintiff’s right hand. Each time the plaintiff removed shopping bags from a trolley, he did so almost exclusively with his right hand. Removing his child from the car was explained by the plaintiff as being done more against his right side.
73 Dr Mutton should have been provided with the films. The defendants must have known that a comparison between the surveillance reports and the films demonstrated a contrast in what they both revealed. The surveillance reports are quite simply misleading in a number of critically important details. Why he was not literally put in the picture is a poor reflection upon the defendants if they seriously contend that his opinion should be given any weight at all. I consider his last stated opinion to be of no value at all.
74 Mr Hart, orthopaedic surgeon, examined the plaintiff on 5 March 2013.[51] On examination he found extension to 60 degrees, flexion to 50 degrees, radial deviation to 10 degrees, ulnar deviation to 30 degrees, pronation of the forearm to 80 degrees and supination of the forearm to 60 degrees. He found some muscle wasting of the left thenar eminence. He considered that the plaintiff had a united fracture of the left radius, which was in good position and had good function at the wrist joint. He found a mild left carpal tunnel syndrome which had been confirmed on nerve conduction studies. On the basis of the history he took from the plaintiff, that he was experiencing discomfort in his left wrist, he considered that the plaintiff might have difficulty in performing repetitive work with his left hand.
[51]DCB 13-25
75 Mr Hart was provided with surveillance reports and film. What he was provided is not identified in his second report, but it would appear that he was satisfied that the plaintiff did use his left hand on occasions “but this was usually when his right hand was occupied holding goods or lifting a child”. He appeared to be relatively unconcerned by what he saw on the films. He considered that the plaintiff had a capacity for work.[52]
[52]DCB 27-29
76 Mr Hart was later provided with the reports of Dr Horsley and Dr Blombery. For some reason he was not provided with any of the radiology on which Mr O’Brien and Dr Horsley made comment, and on which they base their opinions that the plaintiff had developed some osteoarthritic change in his left wrist. Mr Hart was left to rely upon an account of some of the radiology referred to by Dr Horsley in her report. He observed that both Dr Horsley and Dr Blombery examined the plaintiff and found a significantly greater reduction in movement of the plaintiff’s left wrist. He conceded that on the material he was provided, that the plaintiff’s clinical condition might have changed since he last saw him. He suggested that he reassess the plaintiff. He was not asked to.[53]
[53]DCB 29(a) – 29(h)
77 Mr Ireland, orthopaedic surgeon, examined the plaintiff on 29 January 2004.[54] On examination, he found the following:
[54]DCB 53-57
“ At the left wrist there was a healed surgical scar on the distal forearm extending to the wrist crease measuring 8 centimetres. This scar was non-tender, non adherent and non-hypertrophic. There was no apparent swelling or deformity circumferentially around the wrist. The palm of the left hand was soft and devoid of work stain and work callus. There was work callus on the contralateral right hand involving the thumb and index fingers (for which Mr Nguyen could not give me an explanation). There was no wasting of the intrinsic muscles and there were no trophic skin changes at the finger pulps. He was able to fully oppose the thumb to all finger pulps.
There was no evidence of increased sudomotor or vasomotor activity and there were no dystrophic skin changes. There was a full range of active motion of all joints of all five digits.
The provocative tests for carpal tunnel syndrome were negative.
At the left wrist Mr Nguyen was equally tender circumferentially. The provocative carpal instability tests were negative. The distal radio ulnar joint was stable. There was no tenderness over the ulnar styloid process.
Active range of motion of the wrist was measured by goniometer and recorded as follows: extension 60°, flexion 60°, radial deviation 5° and ulnar deviation 25°.
There was a full range of active motion of the left elbow and forearm.”
78 Mr Ireland considered that the plaintiff demonstrated minor dysfunction of his left wrist. He considered that the objective signs were consistent with minor restriction of motion of the left wrist with no evidence of muscle wasting or weakness of grip strength. He noted a discrepancy between the severity of the subjective symptoms of which the plaintiff complained and the corresponding objective physical findings. However, he did not think that there was a functional component to the plaintiff’s presentation. He did not consider it was necessary to place any restrictions on the plaintiff’s use of his left wrist and arm.
79 Mr Ireland was asked to reconsider his opinion in the light of the opinion of Mr O’Brien.[55] He disagreed with Mr O’Brien that there was evidence of traumatic arthritis in the plaintiff’s left wrist. He considered the risk of the plaintiff developing traumatic arthritis was low.
[55]DCB 58-59
80 Mr Ireland was then provided with the x-ray performed on 18 February 2004. He considered that it did not show any evidence of traumatic arthritis at the radiocarpal joint of the plaintiff’s left wrist. He was asked to reconsider his opinion in the light of the opinion of Dr Horsley. He disagreed with Dr Horsley that there was evidence of traumatic arthritis. He also disagreed with her opinion that restrictions needed to be placed upon the plaintiff’s work capacity, except that he considered that the plaintiff should avoid using vibrating power equipment. He then considered that the plaintiff’s “symptom complex” was nonphysical in nature.[56]
[56]DCB 60(a)
81 Mr Ireland was then provided with the x-ray performed on 25 August 2014. He disagreed with the opinion of the radiologist and Mr O’Brien, that the x-ray showed any degenerative change, and he considered that if there was any degenerative change it was “nebulous”. Specifically, he disagreed with Mr O’Brien that there was any narrowing of the radiocarpal joint. He suggested that if the question of the presence of traumatic arthritis remained an issue, that the opinion of an expert radiologist in musculoskeletal imaging study should be obtained. No such opinion was obtained by either party.[57]
[57]DCB 60(c) – 60(b)
Issues
82 The first issue that arises for consideration is whether I consider the plaintiff to be creditworthy and reliable.
83 The next issue is what I make of the surveillance reports and films and whether they are inconsistent with the general complaints made by the plaintiff of pain in his left wrist and associated disablement.
84 If I find that the films are relatively inconsequential, then how do I deal with the opinions of Dr Mutton and Dr Jager? Dr Mutton was provided with some of the surveillance reports, but not the films. He altered his opinion dramatically after he read the surveillance reports. Dr Jaeger was provided with the surveillance reports and some of the films. He likewise altered his opinion dramatically.
85 If the films are inconsequential, then there is a body of opinion which supports the conclusion that the plaintiff has pain in his left wrist and consequent disablement, which has incapacitated him for his pre-injury work as a baker and for suitable employment.
86 That then leaves me with the opinion of Mr Ireland, who was not provided with the surveillance reports or the films. He considered that whatever residual problems the plaintiff has now are modest.
Findings
87 The defendants submitted that the plaintiff should not be believed. Three things were pointed to which it was said should lead me to that conclusion. Firstly, the plaintiff’s evidence that he has assisted his brother-in-law who conducts a business using a bobcat. Secondly, the plaintiff’s evidence in his affidavit, that he uses Tramadol, when in fact he has rarely used it. Thirdly, the plaintiff’s evidence that he wore a brace over his left wrist all the time except when he washed, which he later admitted was not true.
88 Furthermore, it was submitted that the plaintiff’s evidence about whether he cooks and can go fishing were also said to impact upon his creditworthiness and reliability. I am not convinced that is so.
89 Lastly, it was submitted that it would have been open to the plaintiff to obtain affidavit evidence from family and friends to corroborate what he said in his affidavits and in his oral evidence. The fact that he did not should see an adverse inference drawn consistent with Jones v Dunkel.[58]
[58](1959) 101 CLR 298
90 I am not persuaded that the plaintiff’s creditworthiness and reliability is really at issue in this proceeding. There are many reasons why I have arrived at that conclusion.
91 Firstly, there can be no doubt that the plaintiff slipped, fell and suffered a nasty fracture to his left wrist. There can be no doubt that he required surgical treatment. There can be no doubt that he has required physiotherapy, hydrotherapy, prescription of medication, referral for specialist opinion, and reviews at St Vincent’s Hospital Orthopaedic Outpatient Clinic and Pain Management unit. That evidence is noncontroversial. It demonstrates, at least, that the plaintiff suffered a nasty injury, which has produced persisting symptoms of pain and disablement.
92 Secondly, the plaintiff has been examined by a large number of doctors on a medico-legal basis, who applied their skill in taking a history from the plaintiff, conducting clinical examinations, and then determining what injury the plaintiff suffered and its impact upon him. What is clear from my summary of that medical evidence is that Dr Castle, Mr O’Brien, Dr Horsley and Dr Blombery on the plaintiff’s side, considered that the history they recorded and the clinical examinations they conducted, permitted them to conclude that the plaintiff had suffered an injury to his left wrist with residual consequences. It is difficult for me to accept that such a body of specialists could be so fooled by the plaintiff. Furthermore, it must be remembered that Dr Blombery and Mr Hart were provided with some of the surveillance reports and film. What they saw did not affect their view of whether the plaintiff was creditworthy and reliable.
93 It does not end just with the medical practitioners engaged by the plaintiff. Mr Kudelka, Mr Hart and Dr Mutton, likewise, considered the histories they recorded and the clinical examinations they conducted in concluding that the plaintiff had suffered an injury to his left wrist with residual consequences. It is likewise difficult for me to accept that they could be so fooled by the plaintiff. Furthermore, only Dr Mutton changed his opinion after being provided surveillance reports and film. His change of opinion is to be contrasted with Mr Hart and Dr Blombery, who were also provided with surveillance reports and film, regarding them as being of little consequence.
94 I think the proper context in which the surveillance reports and films should be considered is consistent with the consideration given to them by Mr Hart and Dr Blombery. They are of little consequence. That was the conclusion I reached after reading the surveillance reports and seeing the films, and then reviewing passages of the films, which were emphasised during Counsels addresses. I think there is a plausible reason why Dr Mutton changed his opinion. The surveillance reports were misleading. It may very well be that if he was given the films, that he might not have been so ready to conclude that the plaintiff was not creditworthy and reliable.
95 I propose to ignore the surveillance reports and the films as being of little consequence in my consideration of the plaintiff’s creditworthiness and reliability. I accept his evidence deposed to in his affidavits and referred to in his oral evidence, that he has suffered a nasty injury to his left wrist with the consequences which I have summarised in paragraph 19 above. However, where the plaintiff’s creditworthiness has been successfully attacked, is with reference to his use of the brace, use of Tramadol and the less than responsive answers he gave about just what he does with his brother-in-law.
96 It appears to me that very few of the examining medical practitioners considered the use of the brace to be of any clinical significance. Therefore, whilst the plaintiff’s evidence about that amounts to some exaggeration, it is in the end of little consequence. The plaintiff’s reference to the use of Tramadol in his affidavits was clearly wrong. However, he gave a direct and responsive answer in is oral evidence, without any attempt to prevaricate, that his use of it has been a relatively modest. I accept that whatever he did with his brother-in-law was also of little consequence.
97 Therefore, I reject the later opinion of Dr Mutton. I prefer his earlier opinion. I prefer the opinions of Dr Castle, Mr O’Brien, Dr Horsley, Dr Blombery and Mr Kudelka. I do not accept the opinion of Mr Ireland for reasons which I will deal with shortly.
98 What resonates in the opinions of the medical practitioners I prefer is that the plaintiff has suffered an injury to his left wrist. They each considered that the injury was likely to produce ongoing pain and loss of function. More particularly, they considered that if the plaintiff engaged in activities that placed stress and strain on his left wrist, that it would produce more pain. They considered that the injury incapacitated him for his pre-injury work, and alternative work, for which he was qualified by experience, education and training. That is the reason why each of them considered that it was appropriate to impose quite significant restrictions on the plaintiff’s capacity to undertake work duties.
99 The foregoing is a formidable body of evidence. However, Mr Ireland is undoubtedly very expert in conditions affecting the hand. The question posed for my consideration by the defendants, is whether his expertise is so superior that I should dismiss that formidable body of evidence in preference for his opinion.
100 What I have found unattractive about Mr Ireland’s opinion is that unlike the other medical practitioners, he found very little on examination and considered that the injury is so modest that the plaintiff can return to practically everything he did prior to the occurrence of the injury, including work as a baker. The only restriction which he considered to be appropriate was avoiding using vibrating power equipment. Quite clearly, the contrast between the other medical practitioners and Mr Ireland is remarkable.
101 No challenge was made to the opinions of the other medical practitioners. I am not prepared to reject their opinions out of hand. Three of the other medical practitioners, namely Mr Kudelka, Mr Hart and Mr O’Brien, are orthopaedic surgeons. There is nothing in their opinions to suggest that they are not qualified to express a serious opinion regarding the injury to the plaintiff’s left wrist. I can see nothing in their technique in arriving at their respective opinions that should see me be completely dismissive of their opinions. I am fortified in reaching that conclusion because there is other support for their conclusions. That other support comes from Dr Castle, Dr Blombery, Dr Horsley and Dr Mutton.
102 Furthermore, the preponderance of the medical evidence, except for Mr Ireland’s opinion, is that the plaintiff was at risk of developing traumatic arthritis. The opinions of the radiologists who performed the x-rays on 18 February 2014 and 25 August 2014 is that there are appearances on the x‑rays consistent with arthritic change. Mr Ireland is dismissive of the opinions of the radiologists. Mr O’Brien is not, nor is Dr Horsley. On balance, I prefer the opinions of the radiologists and Mr O’Brien. The presence of arthritic change demonstrates a worsening of the plaintiff’s injury, and by inference, is consistent with the pain and disablement about which the plaintiff complains.
103 The preponderance of the medical evidence dismisses an additional diagnosis of Complex Regional Pain Syndrome. Dr Blombery appears to be the expert in the field amongst the medical practitioners who examined the plaintiff. That expertise is confirmed by Mr Hart. I prefer his opinion.
104 Therefore, I find that the plaintiff has suffered an injury to his left wrist, which has impaired the function of his left wrist, hand and forearm to such an extent that the impairment is permanent. Furthermore, I find that the plaintiff has suffered the consequences which I have summarised in paragraph 19 above. It occurs to me that the plaintiff has lost a great deal. He has retained very little in terms of the function of his left hand. In the circumstances and for the reasons set out above, I have concluded that the pain and suffering consequences are “serious”. I have reached that conclusion after having made the comparison which the legislation calls upon me to make.
105 On the plaintiff’s evidence and the medical evidence I accept, it is reasonable to conclude that the plaintiff cannot return to his pre-injury employment. He is in real terms, a manual worker. I accept that he has a reasonable facility with the English language, which enables him to communicate tolerably well. That is not an impediment to him obtaining suitable employment. However, the more reliable evidence regarding the plaintiff’s capacity for work is contained in the opinion of Mr O’Brien, who considered that the plaintiff would not be capable of returning to gainful employment, and I take that to include “suitable employment” as defined.[59]
[59]PCB 120
106 That was also the opinion of Dr Horsley. She considered the plaintiff’s capacity to return to his pre-injury employment, and alternative employment, given the plaintiff’s retained capacity and the areas in which he has experience and training. In the end, it was her opinion that “realistically”, his prognosis for return to work was guarded and “poor” because there were considerable barriers impeding his capacity to return to suitable employment.[60] Dr Blombery gave a similar opinion, but it was rather more blandly stated. [61]
[60]PCB 129-130
[61]PCB 143
107 I consider the opinions of Mr O’Brien and Dr Horsley to be far more compelling because they have given extensive consideration to the impairment of function of the plaintiff’s left wrist, his retained capacity to work, his capacity to return to his pre-injury employment or any suitable employment. Furthermore, they are recent opinions based upon the whole of the plaintiff’s vocational history, which is an additional factor making them all the more compelling than other opinions.
108 I should add that when the surveillance reports on the films are ignored, as I have found they should be, then there is a preponderance in other opinions that the plaintiff’s impairment of function of his left wrist is incapacitating, at least for his pre-injury employment as a baker. Otherwise, those opinions also provide that if he is fit for suitable employment, that there be restrictions placed upon the manual operations involved in that suitable employment.
109 Therefore, I conclude that the loss of earning capacity consequences are also “serious”. I have reached that conclusion after having made the comparison which the legislation calls upon me to make.
110 I do not propose to expend much effort on the plaintiff’s alternative claim, that the secondary psychiatric injury is “severe”. Mr Moulds did not press that impairment vigorously in his final address, and I think for good reason.
111 The plaintiff suffered what Dr Cooper, psychiatrist, described as “hallucinosis”. That diagnosis was made based upon the fact that the plaintiff experienced repeated episodes of seeing a bearded Australian man in his house, and in a car with children. Dr Couper did not suggest that the hallucinosis was causally related to the injury the plaintiff’s left wrist.[62] The plaintiff reported the same hallucinations to Ms Nguyen, psychologist. She considered that the causal connection with the plaintiff’s left wrist injury was unclear.[63]
[62]PCB 51
[63]PCB 55
112 The plaintiff has been examined by a number of psychiatrists on a medico-legal basis. Dr Wahr, psychiatrist, examined the plaintiff on 21 August 2012. He did not obtain a history of the hallucinations. What history he did obtain was that the plaintiff told him that he did not hear voices, nor did he have irrational thoughts. That seems to be contrary to the history of hallucinations. In any event, Dr Wahr considered that the plaintiff was suffering from an agitated depressive reaction and was significantly debilitated by it. He added that he believed that the plaintiff would benefit from psychiatric treatment and that some symptomatic improvement might be achieved.[64]
[64]PCB 110-116
113 Dr Serry, psychiatrist, examined the plaintiff on 15 July 2014. He obtained a history of the hallucinations. On formal examination, he found no psychotic features in the plaintiff. He described the hallucinations as perhaps being consistent with a Psychotic Disorder. He diagnosed that the plaintiff was suffering from a Somatic Symptoms Disorder, Chronic Adjustment Disorder with Anxious and Depressed Mood, and visual hallucinations. He lumped them all together in concluding that be plaintiff’s prognosis was guarded. In giving that opinion, he appears to have considered that the hallucinations were causally connected to the injury to the plaintiff’s left wrist, but it appears to me that the nexus he made is unclear.[65]
[65]PCB 137-138
114 Dr Jager, psychiatrist, examined the plaintiff on 11 August 2011[66] and on 24 January 2013.[67] Dr Jager was provided with surveillance reports and film. Before that occurred, and on the first occasion on which he examined the plaintiff, he considered that the plaintiff was suffering a Major Depressive Disorder of mild severity.[68] He considered that the hallucinations amounted to a psychotic disorder, not otherwise specified, which was not causally related to the injury to the plaintiff’s left wrist. He considered that the plaintiff had a current work capacity at that time and could work modified pre-injury duties six hours per day.[69] After he was provided with the surveillance reports and film, he completely changed his opinion. He considered that what he read in the surveillance reports and what he saw on the films amounted to the plaintiff feigning mental illness.[70]
[66]DCB 30-33
[67]DCB 34-38
[68]DCB 32-33
[69]DCB 37
[70]DCB 40(a) – 40(b)
115 I have summarised sufficient of the evidence of the psychiatrists only to demonstrate that there is a causation question, which is unresolved in the plaintiff’s evidence. I am not able to make a finding whether the hallucinations are causally related to the injury the plaintiff’s left wrist. If they are not, then the opinion of Dr Serry is of little use, because he lumps all of the disorders he diagnosed together. Dr Wahr’s opinion is of little use because he was not given a history of the hallucinations.
116 In any event, there are certain markers which more clearly demonstrate that a psychiatric condition is “severe”. They appear not to be present in the plaintiff’s proceeding. Whilst he is having some psychiatric treatment from his general practitioner by way of prescription medication and some counselling, he otherwise appears to be able to function tolerably well. That was demonstrated on the films where the plaintiff is seen to drive a car; take his children’s school, attend shops and do shopping, speaking with his neighbour for significant periods of time behaving in an ordinary fashion. These factors appear to me to be inconsistent with a psychiatric condition which warrants the description “severe”.
Orders
117 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s134AB(16)(b) of the Act to recover damages for pain and suffering and loss of earning capacity.
118 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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