Petrou v Jardan Australia Pty Ltd
[2011] VCC 926
•14 July 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-10-02753
| PETROS PETROU | Plaintiff |
| v | |
| JARDAN AUSTRALIA PTY LTD | Defendant |
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| JUDGE: | HER HONOUR JUDGE COHEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 22-23 June 2011 |
| DATE OF JUDGMENT: | 14 July 2011 |
| CASE MAY BE CITED AS: | Petrou v Jardan Australia Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 926 |
REASONS FOR JUDGMENT
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Catchwords: Serious injury application; s.134AB Accident Compensation Act 1985; injury to finger of left (non-dominant) hand with complications; whether “serious injury” under part (a) of definition; leave sought for pain and suffering and loss of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Keogh SC | Zaparas Lawyers |
| with Ms B Knoester | ||
| For the Defendant | Mr P Jens | Minter Ellison |
| HER HONOUR: |
1 While lifting a wooden couch frame during his employment with the defendant on 28 February 2008, Mr Petros Petrou felt a splinter enter his left index finger. Despite its apparently trivial nature, that injury has had much more significant consequences for Mr Petrou than its description implies. He applies for leave of the court to bring a claim for damages for both pain and suffering and loss of earning capacity caused by the injury. To obtain leave he must satisfy the Court that he suffered a “serious injury” as defined and restricted by s.134AB of the Accident Compensation Act 1985 (“the Act”).
2 Mr Petrou relies on part (a) of the definition of “serious injury”. I take his case to be that he suffered serious permanent impairment of the function of either his left hand or his left arm.[1] The claim is that a splinter injury to his left index finger became complicated by infection and/or anatomical reaction to foreign particles, and ultimately resulted in development of a Complex Regional Pain Syndrome, type I (also or previously known as reflex sympathetic dystrophy) affecting not only the finger but his whole left hand and arm.
[1] There was no statement of issues provided in accordance with the practice note. Apart from a reference to reliance on part (a) of the definition when preliminary access to subpoenaed documents was sought (T 3, L 2-3), the plaintiff’s counsel did not specify the body function allegedly seriously impaired. The closest was a statement during the opening that there was a diagnosis of Complex Regional Pain Syndrome, particularly affecting the left index finger in the left hand but also involving the left upper limb (T 13, L 1-4). There was no further specificity as to the body function impairment relied upon in plaintiff’s closing submissions.
3 The defendant does not dispute that Mr Petrou suffered a splinter entering his left index finger during his employment on 28 February 2008. It does not concede that the diagnosis of complex regional pain syndrome applies, but even if it does, argues that there has been some improvement in his condition with treatment, and the permanent consequences of his injury do not meet the test for serious, either as to pain and suffering or as to loss of earning capacity.
4 To meet the test for serious permanent impairment of the function of his left hand or arm, the plaintiff must satisfy the Court that the consequences to him of this injury, when judged by comparison with other cases in the range of possible impairments of a body function[2] can be fairly described as being more than significant or marked, and as being at least very considerable.[3]
[2] Sub-s.134AB(38)(b)
[3] Sub-s.134AB(38)(c)
5 Further, to obtain leave to bring a claim for loss of earning capacity he must establish that he has a loss of earning capacity of 40 per cent or more[4], and that must be measured by comparing the greater of his gross income actually being earned or which he is capable of earning in suitable employment[5], with the gross income which he was or was capable of earning had the injury not occurred.[6]
[4] Sub-s.134AB(38)(e)(i)
[5] Sub-s.134AB(38)(f)(i)
[6] Sub-s.134AB(38)(f)(ii)
6 The evidence consisted of the documents set out in the attached schedule and the oral evidence of the plaintiff who was the only witness required for cross-examination.
7 As in most applications of this nature, the credibility and reliability of the plaintiff’s own evidence is very important because not only the Court, but also all doctors whose opinions are in evidence, are heavily dependant on the reliability of his account of the timing, duration and extent of symptoms, and their effects on his activities. In this case there was the not unusual complication of the plaintiff giving evidence with the assistance of an interpreter. Nevertheless, as I indicated during the hearing, I have no hesitation in accepting that Mr Petrou was genuinely trying to tell the truth to the best of his ability. He freely conceded matters which may have appeared to be against his interest. Although he sometimes answered by querying whether he was not allowed to do what he did, I took his answers to be straightforward and credible. It was not my impression that he was exaggerating or embellishing his symptoms or circumstances.
Plaintiff’s background
8 Mr Petrou is now aged 60. He was born in Cyprus where he completed six years of primary school and then learnt the trade of a bricklayer. Over the following years he worked as a bricklayer, did his national service, and due to the difficulties in Cyprus at the time, became a refugee from his village when it was invaded by Turkish troops. After discharge from the army he found work in a copper and gold mine, where he worked for a few months, then as a labourer in a timber yard.
9 In 1976 he migrated to Australia. He soon found work as a labourer, then worked for some nine years for Red Tulip as a process worker, such work involving repetitive lifting such as lifting heavy trays from a press onto stacks. Although for about four years he was only able to find casual labouring work and was partly unemployed, he again found full-time work in a factory which made steel gates and stairs, and over following years worked at various labouring and factory jobs, the last before commencing with the defendant being with Luhr fitters as a labourer. He commenced employment with the defendant in 2007 as a labourer, and performed various tasks in relation to the manufacture and upholstering of furniture.
10 Mr Petrou is married. He has three children of adult age. The youngest continues to live with him and his wife, and although she goes to work, she requires some assistance.
11 Prior to the injury to his left hand, he was fit and active and able to carry out household repairs and renovations. He describes himself as having no particular hobbies because his work was his hobby. There was no suggestion that he had prior physical incapacities for heavy labouring work.
The injury, treatment and subsequent events
12 On 28 February 2008, while lifting the end of a heavy wooden couch frame, he felt a splinter from the rough wood underneath enter his left index finger. He saw a splinter about one and a half inches long, of which about 50 per cent had entered his finger, and he pulled it out. There was a little blood and on the urging of another worker, he went to a first aid officer who tended to it. Mr Petrou worked on for the rest of the day, but next day woke to find his whole left hand swollen and painful. As it was a Friday when he was due to finish about 12 noon, he went to work and then went to his general practitioner, Dr Mellios. Dr Mellios thought that the finger had become infected and prescribed antibiotics and gave a tetanus injection.
13 By the following Monday the hand was still swollen, and Mr Petrou showed his boss and was sent to the factory doctor, Dr Molnar. Dr Molnar arranged an ultrasound which was performed on 14 March 2008 and showed two foreign bodies, one 19 millimetres and one 13 millimetres, and surrounding subcutaneous oedema. Dr Molnar put him off work and removed the two portions of the splinter under local injection. A further ultrasound was performed on 17 March which showed no retained foreign body, but gas residual within the proximal phalanx soft tissue region.[7]
[7] Exhibit H
14 Mr Petrou returned to work on light duties on 18 March 2008, with his left hand bandaged, but it remained swollen and painful, and when the bandages came off about two weeks later the hand was painful, swollen and red, and his left index finger very stiff. Dr Molnar put him off work for a further four days in late March, and arranged a further ultrasound of the finger, performed on 15 April 2008, but no abnormality was noted.
15 Mr Petrou then returned to see Dr Mellios on 18 April 2008 for a second tetanus injection. The finger was still swollen and tender. He was given a few more days off work and then returned on light duties. He continued to require occasional days off because of the pain in his left index finger. As it did not resolve, Dr Mellios then referred him to Mr Stephen Tham, a hand surgeon, whom he saw on 5 May 2008.
16 Mr Tham noted that clinically there was marked tenderness over the previous incision site at the left of the proximal phalanx of the left index finger, associated with a stiff left finger. Mr Tham’s opinion was that despite the negative ultrasound findings there was a retained foreign body. He operated on 9 May 2008 at Valley Private Hospital and removed a large area of fibrous tissue which he found. On post-operative review he found that the progress was slow with persisting and significant pain. He recommended Mr Petrou be commenced on hand therapy, but there continued to be significant pain and difficulty in mobilising the finger. A presumptive diagnosis of complex regional pain syndrome was made and Mr Petrou was referred to Caulfied Pain Management Centre for assessment and management.
17 On the referral of Mr Tham, Mr Petrou attended a hand therapist, Bernadatte Kelly, whom he continues to attend weekly.
18 Also on referral from Mr Tham, Mr Petrou attended Caulfield Pain Management Centre, in particular Dr Jason Teh, and he continues to attend there although now less frequently.
19 After Mr Tham’s surgery, the plaintiff returned to work for the defendant on modified duties. The medical restrictions were: infrequent maximum lift of two kilograms with his left hand, and no forceful use or repetitive rapid use of his left hand. His was assigned to duties of assisting to pack away foam and other light items, and also to fetch components such as foam and springs ready for other workers for preparatory work.[8] Mr Petrou describes this as “a made-up job for me”,[9] as he would get sponges for other workers who previously got them for themselves. At times he cut the sponges by steadying them on the template with his left hand, but this hurt and he says he could only do the cutting job for a few minutes and found that it was too awkward to do using his left elbow to steady the template. I am satisfied that this was, as he described it “a made up job” for him, pursuant to the employer’s obligations under the Act, and that it was not a real job that would be offered on any open employment market.
[8] Exhibit L
[9] Paragraph 13, affidavit 22 February 2009, Exhibit A
20 He had returned to work on four hours per day for three days per week, but built up to full hours at these light duties. However, in March 2009 his employment was terminated as he was told that there were no further light duties available.
21 Over the following months, Mr Petrou developed depressive symptoms and was referred by Dr Mellios to a Greek speaking psychologist, Ms Helen Kothrakis, whom he saw from September 2009 until March 2010. Ms Kothrakis diagnosed an adjustive disorder, being a depressive reaction to his being unable to work. Her view was that he would welcome the opportunity to return to work if he physically could. Her opinion was that he was not incapacitated from work from a psychological point of view, but his ability to work was dependent on his physical capacity.[10]
[10] Exhibit G
22 Mr Petrou has attempted to obtain other employment by going to various businesses and asking for work. These have included a business opposite where he lives, which appears to him to assemble computer components, but he was told that there was no vacancy. He has also approached some factories, a cement business, and some builders he knows, but has been told that there is no work for him with one disabled hand.
23 In January 2010 his WorkCover payments ceased. Since then he has been granted a disability pension.
24 Mr Petrou freely agrees that he spends time out of his house every day. On the days when his daughter needs to catch an early bus, he gets up before 6am to drive her to the bus stop. He says that everyday of the week he visits a particular friend in Mulgrave who is a pensioner, and about once a week they go to a club for elderly Greek men. He stays there for two to three hours. He can and does drive, but only relatively short distances. He mainly drives a four wheel drive vehicle that he owns, and although the automatic gear controls are to the left of the driver’s seat he is able to manage this much driving. He also walks or drives to visit his mother, his mother-in-law, and both of his sisters. He says that he goes out so much because he does not like staying at home where he knows things will become tense with his wife. He does not like watching television.
25 He goes for walks around the block every day, and during these he exercises his left arm and hand with exercises he has been taught by Ms Kelly, the hand therapist. She and other doctors have encouraged him to exercise the hand and arm to keep it active. He says he also does those exercises often when sitting.
26 His current medication is Endep, nightly to help him sleep; Capsacain cream, for his finger; and occasional Panadeine Forte when pain is bad. He also takes Panadol or Neuronten for pain when needed.
Medical opinion
27 The plaintiff’s treating general practitioner, Dr Mellios,[11] saw the plaintiff the day after the incident, and on examination the finger was infected, with swelling, diminished movements and erythema. He was given a tetanus injection, prescribed antibiotics, and directed to return in three days if the pain and swelling was not improving, and told that he would require two further tetanus injections over the next six months. He told the doctor at that stage that he did not intend to make a WorkCover claim as he felt that the injury would recover quickly. Dr Mellios reports that he returned a week later stating that the finger had almost completely settled, that his employer wanted a WorkCover certificate to cover the week he had missed from work, and this was issued with a certificate of fitness to return to pre-injury duties on 3 March 2008.
[11] Exhibit B
28 Six weeks later Mr Petrou returned to Dr Mellios for the second tetanus injection, having had the finger treated by Dr Molnar in the meantime. Finding swelling and tenderness over the volar aspect of the entire finger, as well as an inability to fully flex the finger, Dr Mellios suspected that he may have sustained a tendon or nerve injury when the splinter had entered the finger, and referred him to Mr Stephen Tham, a specialist hand surgeon. After Mr Tham performed surgery and removed foreign material, Mr Petrou’s recovery from that operation was slow with persisting swelling, significant diminution of mobility and pain remaining in the finger. The left hand had become a little swollen and prone to pain and colour changes. The left forearm, upper arm and shoulder had also become painful. Mr Petrou had been attending a hand therapist, taken analgesia and anti-inflammatory medication and was also having pain modulating medication such as Lyrica. He had attended the Pain Management Clinic at the Caulfield Hospital where he had been seen by a clinical psychologist as well as a pain management physician.
29 Dr Mellios reports that Mr Petrou had attempted to remain at work in modified duties but those duties had become unavailable to him. After he ceased work he was staying at home and this, in turn had produced a state of anguish and depression. He had referred Mr Petrou to a Greek speaking clinical psychologist to manage his emotional state. Dr Mellios diagnosed, as at August 2009, soft tissue injury to the left index finger, reflex sympathetic dystrophy involving the entire left arm, and anxiety and depression.
30 In a recent report,[12] Dr Mellios stated that Mr Petrou had remained essentially unchanged in his clinical presentation with respect to pain and disability secondary to the injuries sustained to his left hand, and his earlier opinions, diagnoses and prognoses were unchanged. He confirmed that Mr Petrou’s disability was of a degree that allowed him to obtain a Commonwealth Disability Support Pension. He considered Mr Petrou’s current pain and disability directly related to the injury at work in February 2008. He considered him totally incapacitated for any type of work by the degree and nature of his symptoms, let alone their devastatingly negative effect on his ability to concentrate for any meaningful period of time. He considered that Mr Petrou would require ongoing use of analgesia which at present is nightly Endep to help him sleep, and occasional use of Panadeine Forte, with Capsaicin cream when the pain is maximal, and that the nature of the injury is permanent.
[12] Exhibit B, 12/6/11
31 Mr Tham surgically removed fibrous tissue from the finger, but finding slow progress referred Mr Petrou to a hand therapist, and to Caulfield Pain Management Centre. Mr Tham last saw Mr Petrou on 15 August 2008 when there were clinical features suggestive of Chronic Regional Pain Syndrome. In his report[13], Mr Tham notes that that diagnosis was confirmed at the Caulfield Pain Management Centre. When last seen by Mr Tham, Mr Petrou was unable to use his left hand, in particular his left index finger, effectively as a furniture maker, but Mr Tham thought he was capable of performing alternative duties using his right hand alone. He considered he required follow-up management supervised by the Caulfield Pain Management Centre. When last seen his level of impairment on a medical assessment was between mild to moderate.
[13] Exhibit F
32 Ms Bernadette Kelly, hand therapist,[14] has treated Mr Petrou since August 2008. She tried to increase the passive and active movement in his left index finger, using wax, mobilisation and CPM, and teaching exercises. The purpose of the hand therapy has been to keep the hand and whole arm mobilised to prevent disuse atrophy and increased problems with pain. She considers that he continues to suffer from pain and swelling caused by Chronic Regional Pain Syndrome affecting the left index finger and extending up his left arm into the shoulder and neck.
[14] Exhibit C
33 Ms Kelly assessed movement and strength in the finger on 4 October 2010 and compared them with measurements she had taken in April 2009. The left index finger had slightly increased range of movement of the metacarpal phalangeal joint, but even more decreased movement in the proximal interphalageal joint (“PIP”), and in the distal interphalageal joint (“DIP”). She concluded that despite therapy and a home program of exercise, Mr Petrou had lost some movement in the index finger since April 2009 and she said the middle, ring and little fingers required regular mobilisation to maintain movement. Mr Petrou had maintained movement in the wrist, forearm, elbow and shoulder despite pain. The shoulder was painful to move at the extremes of range but the range was monitored and movement was encouraged in his home exercise program. His neck also appeared to be stiff and sore but he was encouraged to keep them moving also. He was encouraged to walk for an hour each day and he was complying with his home exercise program.
34 In October 2010 strength measurements indicated a reduction in strength in both hands since April 2009 which she felt may be related to stopping manual work, and the limitations and ability to do tasks in the home and garden. Mr Petrou was encouraged to do some bilateral strengthening exercises. The pinch grip in his left hand remained weak but much the same as in April 2009 and limited by pain and sensitivity in the left hand.
35 Ms Kelly noted that he struggled with staying at home as he has always worked in manual jobs and provided for the family. She recommended that he continue to attend for one treatment session per week for maintenance of movement and to assist with pain management. She believed the chronic pain syndrome was the most debilitating problem for Mr Petrou. She considered him currently unable to use his left hand for moderate to heavy manual work and that he was limited in his scope for alternative light work due to his limited English language skills and the current problems related to inability to use the left index finger and thus the left hand due to pain. She felt him capable of right handed duties with some limited use of the left hand, but noted that the problem for him is persistent pain which is only mildly improved with medication, and that following use of the hand it is reported to swell with some sweating.
36 Her conclusion was that he has shown some deterioration in movement and strength of the index finger and of the entire hand since April 2009. She felt it was vital for him to keep the hand moving in order to prevent disuse problems and encouraged him to do exercises, walk for an hour each day, and to try and use his left hand. She noted he had tried to reduce the amount of medication taken.
37 Dr Jason Teh of Caulfield Pain Management & Research Centre[15] has treated Mr Petrou since November 2008 after referral by Mr Tham. On initial examination the wound appeared well-healed but the area was hypersensitive, with some allodynia present, and looked sweaty and swollen. Grip and strength movements were restricted and he had difficulty flexing his finger joints. There was some tenderness around the left wrist and elbow. Dr Teh’s opinion was that Mr Petrou displayed symptoms and signs consistent with a diagnosis of Complex Regional Pain Syndrome, which he describes as a neurogenic pain syndrome that can sometimes occur after a minor injury. He noted that Mr Petrou’s pain levels were disproportionately high compared with the nature of the injury, and his symptoms had become regionalised, affecting the whole left upper arm, all of this consistent with a diagnosis of complex regional pain syndrome.
[15] Exhibit D
38 He referred Mr Petrou for a multidisciplinary assessment with a physiotherapist, occupational therapist and clinical psychologist. The main findings from the assessment were that he had physical limitations with weakness of the fingers, high pain levels and allodynia. He was not using his left arm in a functional manner, with reduced fine motor dexterity, strength and power. There were high levels of stress within the family related to his difficulty managing his pain and mood issues, and he also appeared to be highly symptom focused and displayed mild levels of depression. He was recommended for an individually based pain management program at Caulfield whilst also continuing with his hand therapist.
39 Dr Teh reviewed him regularly and he was trialled on various medications for his pain management, including Lyrica and Clonidine, but he only experienced limited response to these and complained of side effects. Any activity involving his left arm continued to exacerbate his pain. He was then made redundant at work.
40 Dr Teh referred him to a pain anaesthetist, Dr Christelis, in December 2009, who confirmed the diagnosis of complex regional pain syndrome, and suggested a trial of different medication and increased dose of Amitriptyline. Topical Capsaicin cream was also prescribed.
41 Despite the pain program, he made limited gains and continued to report high levels of pain. He was commenced on Gabapentin and the dose gradually increased. Use of a narcotic patch (Norspan) was discussed but not attempted due to the potential problems of developing dependence or tolerance on narcotics. Interventional blocks were discussed but not pursued. There continues to be mild swelling affecting his left hand, but compared to his initial presentation to the pain centre, the swelling was much improved. There continued to be allodynia. Exacerbating factors included functional use and exercise of the arm including gripping. The pain severity ranged from five to 10 and was burning in characteristic with associated swelling.
42 Dr Teh’s diagnosis was complex regional pain syndrome. His opinion was that Mr Petrou did not have a capacity for his pre-injury employment. Dr Teh thought that he does have a work capacity for alternate duties, but his work capacity and tolerance is restricted by the severity of his reported pain and functional limitations, and he would find it difficult to perform tasks involving lifting for that reason. He considered Mr Petrou would benefit from a formal work capacity assessment, but he would likely require retraining if alternative duties were to be considered, and noted that he speaks and understands only basic English and also had difficulty reading English. Overall, Dr Teh rated Mr Petrou’s prognosis as poor because of the severity of chronic pain and his limited response to non-medicational and medicational management.
43 Dr Nicholas Christelis[16] saw Mr Petrou on referral from Dr Teh in December 2009. He considered that Mr Petrou presented with Complex Regional Pain Syndrome of the left hand progressing to his upper limb. He noted symptoms of allodynia, hyperalgesia, colour change, temperature change, oedema and sweating, all fitting criteria for CRPS. He had deconditioned his upper arm, and had reduced range of movement and stiffness in the arm and also had some muscle atrophy in the shoulder girdle. Psychologically he displayed a number of pain behaviours, had low mood and was considered likely depressed and angry which was interfering with his home life. From a physical perspective, the aims were to improve his sleep and reduce his pain.
[16] Exhibit E
44 At that stage he was taking Endep (25mg at night) and waking up at about 2 am. He was also taking Lyrica (100mg) and said it may have helped initially but was certainly not helping by then. He was continuing with weekly hand physiotherapy which helped him a “tiny bit”. Examination of his left arm revealed increased sweating in the left armpit compared to the right. There was oedema of the left hand compared to the right. He was felt to certainly have reduced range of movement and motor function as well as slight discolouration of the left hand. He had some static and dynamic mechanical allodynia of the left index finger joints including the wrist and it was painful for him to move his elbow and shoulder. Globally, power was reduced in the left arm secondary to pain and slightly more reduced in the hand.
45 Dr Christelis considered that reduced power in the left arm was more secondary to pain than actual nerve dysfunction. Reflexes were intact, apart from the triceps on the left which was reduced. Examination of the shoulders revealed global reduced range of movement and pain secondary to passive and active movement. There was some wasted trapezius muscle and probably some shoulder girdle wasting on the left side. The diagnosis was complex regional pain syndrome of the left hand and by then involving the left upper limb, continuing to cause him severe ongoing neuropathic pain, impairment and disability. Medication was suggested and other possible therapeutic options discussed, but Mr Petrou declined the possibility of stellate ganglion blocks. He was assessed and approved for physiotherapy and psychology sessions. Medication was altered including an increase of the dose of Endep to 50 mg at night with possible further increase depending on side effects. He was also prescribed Capsaicin cream to rub over the affected hand three to four times a day to modify the pain.
46 Medico-legal reports were obtained from Mr Charles Flanc.[17] He first saw the plaintiff on 1 July 2009. At that stage the main problem complained of was the left index finger which was stiff with reduced range of movement, but the pain occasionally spread up to the left elbow and he also had throbbing in the arm if he left it hanging in a downwards position. The left hand would swell intermittently and there was increased sweating in the left armpit and palm of the left hand. On examination both hands looked pink although the palm of the left hand appeared a deeper pink than that of the right. Both palms were warm and were slightly moist but equally so. He was sweating in both armpits but especially the left. There was no wasting of the deltoid muscle of the left shoulder. Movement was slightly restricted by pain in the upper arm but not the shoulder. There was no wasting of the upper arms on measurement. There was a full range of movement but with complaint of pain at the extremes of movement of the left wrist. There was no wasting of the left hand muscles and he was able to make an almost full fist using the middle, ring and little fingers. The left index finger was kept almost fully straight. There was diffuse tenderness over the left index finger and this tenderness extended into the hand and the scar was noted. There was significantly decreased flexion in the PIP and DIP joints.
[17] Exhibit J
47 Mr Flanc diagnosed an injury to the left index finger when a foreign body entered the proximal part of the finger. He thought that after the two rounds of surgery there was no residual foreign body left, and noted that Mr Tham had also checked that there was no damage to the digital nerve nearby. He noted that under usual circumstances one would have expected the whole area to heal and for full recovery to occur but instead the pain had spread to involve the whole of the left index finger and eventually the whole of the left arm.
48 Mr Flanc’s opinion was that Mr Petrou developed a chronic pain syndrome following the injury to his left index finger. In this condition there is a sensitisation of pain pathway so that the pain persists and extends in its distribution even after the original injury had healed. He described the sub- group of this syndrome occurring when there is also an overactivity of the system. This results in clinical changes which include a deeper red colour, decreased temperature and increased sweating and when chronic pain is associated with this combination it is referred to as Complex Regional Pain Syndrome Type 1.
49 In Petrou’s case, from the found slight deepening of colour of the left hand, increased sweating, especially in the armpit, although no decrease in temperature, he considered that he displayed signs of a Complex Regional Pain Syndrome Type 1, which he regarded as having developed directly as a result of the initial injury to the left index finger. Mr Flanc said that he was clearly not able to return to his pre-injury duties, and that theoretically one could consider that he would be capable of at least part-time duties using only the right arm, but that that was probably not realistic.
50 Mr Flanc examined the plaintiff again in December 2010. This time the symptoms complained of were still mainly the left hand with the index finger very stiff and kept almost fully extended and unable to be flexed, with pain which spreads to involve the hand which swells and sweats intermittently. On examination both hands looked equally pink and felt equally warm. The fingers of the left hand looked a little puffy compared to the right but there was not pitting oedema and both hands were slightly sweaty. In the left shoulder there was slight loss of bulk of the left deltoid muscle but measurement of the middle of each upper arm was equal with no wasting of the forearms. Flexion of the left shoulder was moderately restricted with slight restriction of abduction and internal rotation. There was no abnormality of the left elbow, but some limitation of dorsiflexion of the left wrist. He was able to make an almost complete fist using the middle, ring and little fingers, but the index finger could not participate in that and was kept almost fully extended with diffuse tenderness, especially over the palmar aspect of the proximal segment. Flexion of the PIP joint was severely restricted and flexion of the DIP joint was measured at 30 degrees. Reports from various other treating doctors and of the defendant’s examiners were read.
51 Mr Flanc’s opinion was that Mr Petrou was still suffering from a chronic pain syndrome which had developed as secondary to the original finger injury. He noted he had previously considered that some of the features of a CRPS Type 1 were present, but that on second examination some of those were not evident, although he still had a history suggesting that there was some degree of a Complex Regional Pain Syndrome Type 1 in addition to the underlying chronic pain syndrome. He agreed with an assessment he read of Dr David Fish, occupational physician, who considered that the impairment of the left index finger could be regarded as a total loss. His opinion was that the condition had probably stabilised, that Mr Petrou would not be able to participate in any useful industrial activity using the left hand, and considering his age of 60 years, his poor English and past work experience, he believed he had no realistic work capacity.
52 Dr Peter Blombery, consultant physician, examined the plaintiff for his solicitors[18] in October 2010. When he saw the plaintiff, Mr Petrou complained of pain in the left hand extending up to his neck, which was present all the time and kept him awake at night. He complained that the left hand was blue and swollen and there was extensive sweating in the left palm and in the armpit. He told Dr Blombery that he generally wore a splint on his hand. He was then using two to four Panadol per day, the anti-depressant Endep (50mg at night), and had ceased taking Neurontin. On examination the left hand was blue compared to the right hand and swollen. The left forearm was 1.5 degrees cooler than the right, and the left palm one degree cooler than the right. There was increased sweating in the palm. He was quite tender on pressure over the left index finger, palm, forearm and particularly around the shoulder. Flexion of the PIP and DIP joints was considerably restricted. Power of the hand grip on the left was much less than the right. Deep tendon reflexes were intact and symmetrical.
[18] Exhibit K
53 Dr Blombery’s opinion was that Mr Petrou had suffered injury when the splinter had penetrated his left index finger, and that symptoms were diagnostic of Complex Regional Pain Syndrome Type 1, which he described as an organic disorder of pain nerve pathways. He considered that the situation was essentially stable, and that, as the symptoms had been present for two years, the prognosis for recovery was poor with no significant change in his level of disability likely in the foreseeable future. He thought he was going to require ongoing multidisciplinary therapy for chronic pain, including use of analgesic, anti-depressant and anti-convulsant medications, together with physiotherapy, occupational therapy and psychological support, as well as other techniques such as TENS and acupuncture. He felt a pain management clinic appropriate. He considered that Mr Petrou has no fitness for his pre-injury employment. Noting that it was his non-dominant arm which was affected, he nevertheless thought that given his educational background and previous work experience he would only be able to do labouring jobs, and in view of the severity of his pain it was Dr Blombery’s opinion that he would have no capacity to perform suitable employment.
54 Dr P D Clark, occupation physician, examined the plaintiff for the defendant[19] in July 2010. He noted that Mr Petrou held his left hand in a dependent position but was observed to make use of the hand as he handled his paper files which he had brought. On examination, left shoulder movements were restricted to approximately half of the normal range of active movement by pain. As there were no other clinical signs of rotator cuff dysfunction, he considered that there was not a shoulder injury. The left elbow and wrist movements were of normal range. His hands were both of similar colour, warm and normally suffused. Movements of the fingers of the left hand were restricted but he was able to oppose his thumb and little and middle fingers. The grip was weaker in the left hand than the right. Movements of the left index finger were restricted by pain and he was sensitive to light touch over the base of the left index finger.
[19] Exhibit 2
55 Dr Clark considered that the plaintiff’s ongoing treatment was reasonable and appropriate, and it was reasonable to continue it for a further three months, as his condition had not yet stabilised. He considered there was a left upper limb dysfunction following sequelae of a work-related finger injury that had been treated surgically, and that employment was a significant contributing factor to the left index finger injury and its sequelae, and remained a material contributor to the current condition.
56 Dr Clark’s opinion as to Mr Petrou’s work capacity was given in answer to specific questions. I find some of them inconsistent. He stated that the plaintiff cannot return to work in his pre-injury duties. He said he thought Mr Petrou does have a current work capacity, as defined in the Act. However, his answer to the question: “In your clinical opinion can the worker return to work
in either modified pre-injury duties and/or hours or alternative duties and/or
hours with the worker’s current or another employer?” – was “No”. He declined to recommend modified pre-injury duties or pre-injury hours because they were “not applicable”. However, asked if Mr Petrou could return to work in alternative duties and/or hours, what his recommended alternative duties and/or hours were, he said the suitable employment option of product examiner identified in the Nabenet report was suitable, but that the other jobs of light process worker and product assembler were unlikely to be suitable because of the plaintiff’s restricted left upper arm movements and weakness of grip. He then said that in his opinion the plaintiff can resume work as soon as suitable duties are available for him, and found a question prefaced that if his clinical opinion was that the plaintiff had no current work capacity, “not applicable”. Despite the inconsistencies, I take his view to be that the plaintiff is capable of alternate work as a product examiner.
57 Dr Clark further stated that Mr Petrou had capacity for suitable work which does not involve bimanual handling and thought traffic supervision would be within his physical capacity. He did not describe the type of job or tasks he understood traffic management to involve, nor whether it was capable of being full-time.[20] I place minimal weight on that opinion.
[20] If school crossing attendant was his concept, it would fall well-short of providing enough hours per week, let alone enough weeks per year, to attract anywhere near 60 per cent of without injury earnings.
Compensable injury
58 I am satisfied that in the course of his employment on 28 February 2008, Mr Petrou’s left index finger was pierced by a splinter of wood whereby complications arose from infection and remaining fragments of the splinter, which lead to surgical removal and fibrous tissue forming at the site of the injury and which also required surgical removal. I am further satisfied from the preponderance (if not all) of the medical opinion that despite such treatment, as a result of the injury he developed a complex regional pain syndrome, type 1, affecting not only the finger but the whole left hand and left arm.[21]
[21] Mr Tham, Drs Teh, Christelis, Blombery, Mellios.
59 I note that Dr Clark does not use the term “complex regional pain syndrome”, but in effect agrees that a condition has developed from the original finger injury that is affects the hand and arm, as he accepts that the plaintiff has “left
upper limb dysfunction following sequelae of a work-related finger injury,
treated surgically”, and that employment was a significant contributing factor to the left index finger injury and its sequelae, and remained a material contributor to the current condition.
60 The defendant challenges the diagnosis of a complex regional pain syndrome because on his second examination Mr Flanc no longer found enough symptoms supporting that diagnosis. However, he noted that Mr Petrou still had a history suggesting that there was some degree of a Complex Regional Pain Syndrome Type 1, in addition to the chronic pain syndrome[22].
[22] The description also used by Ms Kelly
61 In light of all of the medical opinion as a whole, I am satisfied that a chronic pain syndrome, and more likely than not a complex regional pain syndrome, type 1, has developed, and still affects the plaintiff’s left arm as well as finger and hand, and that the work injury to the finger continues to be a significant material contributing cause.
Is the injury a “serious injury”?
62 I am satisfied that this injury has resulted in constant pain in Mr Petrou’s left index finger, hand and, at times, up his arm to his shoulder, such pain especially in the finger and hand becoming worse with some activities. I am satisfied that he has significantly reduced flexion in his left index finger at the PIP and DIP joints. Indeed, my observation of him during the hearing, as well as in the video surveillance film shown by the defendant,[23] is that for most of the time he holds his left index finger “sticking out”, in that if not fully straight it was much straighter and held differently from the other three fingers of the hand.
[23] Exhibit 1
63 I am satisfied that his injury significantly limits his dexterity with his left hand. I am satisfied that he has significantly reduced grip strength in that hand. I am satisfied that his left hand is frequently slightly swollen, as it appeared to me when displayed to counsel and me during the hearing. I note that on various examinations by doctors[24], although not all, he has had temperature and colour change in the left hand. I am satisfied that Mr Petrou protects his left hand and arm, as reflected by some wasting of muscles as noted by at least two doctors[25].
[24] Eg Dr Flanc on first examination, Dr Blombery
[25] Dr Christelis noted muscle atrophy in the shoulder girdle, Mr Flanc on second examination
64 In video surveillance he was shown using his left hand with the index finger extended to support activities such as lighting a cigarette, leaning on a fence and a car, and holding a brochure or newspaper. I also noticed that the left arm was held by his side or supported on his side whilst he bent or crouched using his right hand, and that he held his left arm to his chest as if in a sling when walking back towards the car towards the end of the film.
65 I regard what was shown on the video surveillance as supportive of the evidence Mr Petrou himself gave. That is, as he freely concedes, he goes out every day – on the occasion filmed, it was to his sister’s home. He stood talking and watching, and in minor ways assisting, his brother-in-law who was fixing an outside tap. The functional use he makes of his left hand, and as was shown on the surveillance film was all at his own pace, and limited.
66 I am satisfied that on the encouragement of both the pain management centre and of his hand therapist, Ms Kelly, he exercises his left arm by using it when he can, and lifting it and keeping it mobilised as much as possible. Wasting of shoulder girdle and trapezius muscle reflects less use of the arm and shoulder over time. I did not take any of his actions on the video film as those likely to be convertible into a real job on a sustained basis.
67 I also accept his evidence that the pain in his left finger, hand and arm disturbs his sleep nightly. I note that the medical evidence confirms that he was prescribed Endep to assist him to sleep, the dosage was increased by Dr Christelis, and Dr Mellios still prescribes 50 milligrams to be taken nightly.
68 Mr Petrou says, and I accept, that he becomes frustrated with being at home where he is unable to do the type of household repairs he used to do, that his frustration and presence creates tension with his wife, and that he goes out of the house to avoid that.
69 I am satisfied that although he developed depressive symptoms, that condition is not the primary cause of his ongoing level of disability. Ms Kothrakis, diagnosed an adjustment disorder being a reaction to being unable to work, but she did not regard it as the dominant cause of his perception of pain or of incapacity in his left hand and arm. She said that from a psychological point of view, he was not incapacitated from work. I am satisfied that his complex regional pain syndrome is of physical basis, and continues as the most significant material cause of his ongoing pain and its consequences, and that this is not a situation where a psychological condition has overtaken the physical basis of the ongoing impairment.
70 The defendant submits that there is evidence of some improvement in the plaintiff’s condition, and that as I must assess its seriousness now and for the future, I should not be satisfied that it will continue to be as serious as it has been. Notwithstanding that the pain management program is reported to have improved his pain and functioning, by medication and therapy, I note that measurement of movement of the finger and strength in the hand assessed by Ms Kelly in October 2010 showed deterioration in both compared with April 2009, and that assessments late in 2010 noted muscle wasting in the shoulder reflecting less use. I am not satisfied that what may be better control of pain with medication, and Endep to help him sleep, has brought about a permanently improved level of functioning in his hand or upper arm.
71 With the constant pain in his finger and at times in his left hand and arm, interrupted sleep, and frustration of not being able to do all of the manual tasks he used to do to keep occupied, for a man of Mr Petrou’s history of hard manual work which “was his life”, I am satisfied that the injury to his left finger and the pain syndrome affecting his whole left hand and arm has had consequences which can fairly be described as very considerable to him.
Loss of earning capacity
72 To obtain leave to bring a claim for loss of earning capacity he must establish that he has a loss of earning capacity of 40 per cent or more[26]. That must be measured by comparing the greater of his gross income actually being earned or which he is capable of earning, or would be capable of earning after rehabilitation or retraining, in suitable employment[27], with the gross income which he was or was capable of earning had the injury not occurred.[28] He bears the onus of proving this loss and of any inability to be retrained or rehabilitated or to undertake alternative work[29].
[26] Sub-s.134AB(38)(e)(i)
[27] Sub-s.134AB(38)(f)(i)
[28] Sub-s.134AB(38)(f)(ii)
[29] S 134AB(19)
73 The parties have agreed that his earning capacity had he not suffered this injury should be taken to be $42,000 gross per annum. It is not disputed that he has not in fact earned income from personal exertion since the defendant terminated his employment. The issue to be decided, therefore, is whether he has been, or will in the foreseeable future, be capable of earning at least 60% of $42,000, namely $25,200 gross per annum (or $485 per week).
74 Apart from training as a bricklayer in his teens in Cyprus, Mr Petrou has no formal training for any occupation. He has spent 30 years in Australia working variously as a labourer or process worker. All of the occupations in which he has engaged have required strength or sustained use of both of his arms, or dexterity in both hands. Notwithstanding that he is right-hand dominant, the types of jobs that he has undertaken, require considerable use of his left hand and arm, as well as his right. For example, as a production line worker at Red Tulip, he worked on a machine by lifting heavy trays from chest height to stack them from the ground. All of the medical evidence confirms that he is permanently unfit to resume his pre-injury duties, and I take it also to exclude his capacity for any of his pre-injury occupations.
75 It is clear that Mr Petrou’s capacity for alternative employment and equally for retraining is significantly diminished by limited grasp of spoken English and even more limited literacy in English. Mr Petrou completed his formal education at the end of primary school, in Greek. He speaks, reads and writes in Greek. He has acquired enough oral English to live and work in Melbourne. He can read and write some basic English. He can understand instructions given in English if they are also demonstrated to him. Indeed, he was industrious enough when working for the defendant to invent a process for himself of writing for himself instructions as they were demonstrated, with his comments in Greek. I regard him at age 60 and with his background as being incapable now performing office based work or of being retrained for any occupation requiring better understanding of English than he now has, or of reading or writing anything more than the most minimal.
76 All of the jobs he has performed have also required the ability to sustain the activity for prolonged periods of time. I am satisfied that because of the distraction of pain in his left hand and at times in his arm, he could not sustain full-time work even if he mainly used his right arm. That is how I interpret the opinion of Dr Teh (relied upon by the defendant) that it is his opinion that Mr Petrou does have a work capacity for alternative duties. Dr Teh goes on to state that Mr Petrou’s work capacity and tolerance is restricted by the severity of his reported pain and functional limitations. Ms Kelly’s opinion is consistent with this. The opinions of Dr Mellios and Dr Blombery also support it. Except for Dr Clark, all other medical opinion doubts his being capable in reality of any alternative employment given his limited English, his age, and his work history being confined to manual labouring.
77 A vocational assessment carried out in June 2010 by Nabenet[30] lists what are regarded as Mr Petrou’s transferrable skills and experience. Several of them implicitly require bimanual function or, at least, some dexterity from his left hand - for example, experience in the operation of building tools including drills, saws and nail guns; and, assembly tasks and use of assembly equipment including staple guns, glue guns, stretcher, clencher and spring benders.
[30] Exhibit 3
78 There are three occupations proffered by the Nabenet report as suitable employment options for the plaintiff, namely light process worker, product assembler and product examiner. The first two were specifically regarded as beyond his capacity by Dr Clark, the defendant’s occupational specialist.
79 As to product examiner, the duties set out require studying product specifications and taking measurements to determine conformity to specifications. I note that Mr Petrou’s evidence as to how he obtained instructions in his work with the defendant reflected his industriousness in compensating for his lack of literacy in English, by having a task demonstrated to him and then he recorded for himself, partly in Greek, those instructions. I doubt it would be realistic to expect all product specifications he might be appointed to check to be dependent on such a process. Further, the demonstration asked of Mr Petrou in the witness box of using a ruler to measure a length, convinced me that he has insufficient dexterity in his left hand to support the right in performing measuring tasks other than slowly and clumsily, such that he would not be capable of performing such tasks as central to a full-time productive occupation.
80 The defendant argues that Mr Petrou’s own evidence supports that he is capable of alternative employment, in that he says he is willing to undertake any job he could get, and has himself approached employers and asked for work. Mr Jens did concede that Mr Petrou qualified his statement that he would do any sort of work as follows: – “you find me a job today and I’ll go and give it a go”. “Q. Because you think you can give it a go? A. I would give it a go. I would try. Then I can’t do it I’d leave”[31].
[31] T 51, L 15-18
81 I am satisfied that Mr Petrou is a man who has always endeavoured to work hard, and that he greatly misses the satisfaction of working and providing for his family, and having a purposeful occupation for each day. I accept as genuine his many enthusiastic statements that he would like to work again and would try any job offered. However, just as a plaintiff’s subjective perception or view that he or she is incapable of alternative work does not determine the issue, nor does the subjective view of a plaintiff that he or she is capable of alternative work. The court must decide the issue of a plaintiff’s work capacity objectively, based on all of the evidence, including the plaintiff’s own. The question is whether, on the balance of probabilities, he is incapacitated to the extent necessary to meet the test.
82 Notwithstanding that I am precluded from taking into account the question of availability of a job[32], the definition of “suitable employment”[33] does include consideration of the worker's age, education, skills and work experience. For the reasons already outlined, I am satisfied that with the injury to his left hand and arm Mr Petrou is permanently incapacitated for any full-time employment. I am satisfied that he does not now have the capacity to work on a sustained basis for sufficient hours a week in any job for which he is otherwise suited that could produce a wage of more than $485 gross per week. I am satisfied that he has no capacity to be retrained for any job likely to earn him more than $485 per week on less than a full-time basis.
[32] Definition in s 5 of “suitable employment” as amended; sub-para (b)
[33] S 5
83 I am also satisfied that he has undertaken all medical treatment and rehabilitation offered.[34] He has taken medication that has been prescribed, engaged with the hand therapist in the exercise program she taught him, and although some of the medical opinion reflects that his response to treatment has not been as good as hoped, there is no suggestion that that has been conscious resistance by him.
[34] Although he declined the possibility of stellate ganglion blocks to Dr Christelis, it is not suggested that that was an unreasonable choice.
Conclusion
84 I am satisfied that Mr Petrou suffered injury to his left index finger, hand and arm as a result of his employment with the defendant, and that this satisfies the statutory tests for serious injury, being a permanent serious impairment in the function of his left hand and arm, as to pain and suffering and also as to loss of earning capacity. I propose to grant him leave to bring proceedings for damages accordingly.
LIST OF EXHIBITS
Petrou v. Jardan Australia Pty Ltd
Number and
Identifying Short Description of Exhibit Date
Mark on tendered Exhibit
A Affidavits of Plaintiff dated 22/2/10 and 31/05/11 22/06/11 B Reports of Dr Mellios dated 22/09/08, 30/08/09 23/06/11 and 12/06/11 C Report of Ms Bernadette Kelly dated 25/10/10 23/06/11 D Report of Dr Jason Teh dated 10/01/11 23/06/11 E Report of Dr Nicholas Christelis dated 08/12/09 23/06/11 F Report of Mr Stephen Tham dated 04/05/09 23/06/11 G Report of Ms Helen Kothrakis received 20/06/11 23/06/11 H Radiological reports; ultrasound dated 14/03/08, 23/06/11
ultrasound dated 17/03/08, ultrasound dated15/04/08 and ultrasound dated 09/07/08
J Reports of Mr Charles Flanc dated 13/07/09 and 23/06/11 22/12/10 K Report of Dr Peter Blombery dated 22/10/10 23/06/11 L Nabenet offer of suitable employment dated 23/06/11 20/02/09 M NES Worker independent job seeker plan dated 23/06/11 31/08/09 1 DVD of video surveillance of Plaintiff taken 23/06/11 29/05/10 2 Report of Dr PD Clark dated 28/07/10 23/06/11 3 Nabenet vocational assessment report dated 23/06/11 17/06/10 4 Letter from Dr Jason Teh to Dr Mellios dated 23/06/11 18/05/11
0
0
0