Pittella v Designer Doorware Pty Ltd
[2013] VCC 1979
•12 December 2013
| 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-12-06357
| GINA PITTELLA | Plaintiff |
| V | |
| DESIGNER DOORWARE PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 and 21 November 2013 | |
DATE OF JUDGMENT: | 12 December 2013 | |
CASE MAY BE CITED AS: | Pittella v Designer Doorware Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1979 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment to the cervical spine – chronic pain syndrome – psychiatric impairment – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), (37) and (38)
Cases Cited:Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227; Barwon Spinners & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Fokas v Staff Australia Pty Ltd [2013] VSCA 230.
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram | Melbourne Injury Lawyers |
| For the Defendant | Mr A Saunders | Lander & Rogers |
HER HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of her employment with the defendant on 5 July 2007 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is the cervical spine. The plaintiff also relied upon a psychiatric impairment pursuant to clause (c).
5 The judgment of the Court of Appeal in Mobilio v Balliotis[1] resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[2] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.
[1][1998] 3 VR 833
[2](1995) 21 MVR 314
6 Winneke P, in Mobilio,[3] agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of ss(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.)
[3]Mobilio v Balliotis (supra)
7 A chronic pain syndrome can result in an impairment under subsection (c) if a plaintiff can establish a sufficient causal link between an initial compensable physical injury and a chronic pain disorder which meets the severe criteria of a claim under definition (c) – per Ashley JA in Veljanovska v Socobell Oem Pty Ltd.[4]
[4][2005] VSCA 227
8 The plaintiff relied upon two affidavits and gave viva voce evidence. She was cross examined. The plaintiff also relied on an affidavit sworn by her friend, Mary Hill, on 13 October 2013. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Outline of Section 134AB
9 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
10 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
11 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
12 By ss(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “more than significant” or “marked” and as being “at least very considerable”.
13 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
14 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
15 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
16 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
17 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
18 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[5] and Grech v Orica Australia Pty Ltd & Anor[6] in reaching my conclusions.
[5](2005) 14 VR 622
[6](2006) 14 VR 602
The Plaintiff’s evidence
19 The plaintiff is presently aged fifty-eight, having been born in Italy in September 1955.
20 In 1968, whilst living in Germany, the plaintiff’s father was shot by a disgruntled employee. This incident was witnessed by the plaintiff. Her father later died in hospital, with the plaintiff suffering depression thereafter.
21 The plaintiff migrated to Australia from Germany in 1970, when aged fifteen. From 1970 to 1974, she was employed as a sewing machinist and later as an automotive parts assembler.
22 The plaintiff married in 1974 and now has two children aged thirty-five and thirty-six.
23 Between 1974 and 1978, the plaintiff was employed as a packer and assembler. She was out of the workforce on home duties from 1978 to 1987. She was then employed by Rheem for two years on the assembly line.
Psychiatric history
24 In 1990, the plaintiff consulted a psychiatrist for depression and was prescribed Aropax intermittently after the circumstances of her father’s murder came back to her.
25 In cross examination, the plaintiff described that prior to the said date; she was taking the very minimum dosage of Aropax, 10 milligrams. She now takes 20 milligrams.
26 The plaintiff could not remember seeing Dr Honey, a psychiatrist in Footscray, in 2001 (mentioned by the plaintiff to Dr Senadipathy). She could only remember one doctor prescribing Aropax in 1990.
27 In 2002, the plaintiff’s marriage broke down and she left the defendant’s employ. She subsequently developed a good relationship with her ex-husband and regularly visits him and his widowed mother.
28 In cross examination, the plaintiff disagreed her marriage breakdown led to her losing her job. She left the job. It was not that distressing because she got another job.
29 The plaintiff agreed she had relationship difficulties in 2005 but that was not a very distressful time for her. She had an abusive relationship for a few months but she left and she coped very well with everything in her life.
30 The plaintiff could not recall an attendance with Dr Hampton in August 2006 when he gave a prescription for Aropax, 20 milligrams twice daily. She did not remember taking 40 milligrams of Aropax in 2006 but, of course, she would accept that, if that is what the doctor said. She could have mentioned depression at that time if it was noted by the doctor.
31 The plaintiff agreed that she was probably suffering some depression in early 2007. She did not think she was depressed; she was a very happy girl at that time. She was her normal, happy self, going out a lot.
32 Before the said date, “honestly” the plaintiff had her ups and downs. She was going out and having a good time. As far as she could remember, she was okay. She could recall being changed from Aropax to Lexapro because Aropax probably was not working.
33 The plaintiff could not remember being prescribed Lexapro in April 2007 but accepted that was correct if the notes said so. She knew she had been on Lexapro lately because of the pain.[7]
[7]Transcript (“T”) 65-66
34 The plaintiff accepted that she saw Dr Hampton on 30 April 2007 and he increased her dosage of Lexapro from 10 to 20 milligrams. She really did not remember worsening depression at that time but she could recall the medication. It had to be right that Dr Hampton prescribed Lexapro on 28 May 2007. The plaintiff just did not recall.
35 Dr Hampton’s note on 4 June 2007 of a complaint of depression linked to the plaintiff’s current relationship was more related to anger than depression. The plaintiff agreed she had been on and off medication for her mental state since the 1990s.
36 In re-examination, the plaintiff explained that the relationship problem involved verbal abuse. That did not leave her suffering with any psychological problems. She moved out in December 2007. The plaintiff had learnt to deal with her father’s death and it was not causing any ongoing difficulties presently.
37 There was no aspect of the plaintiff’s psychiatric condition that affected her ability to do her job with the defendant – “Absolutely not, because if it did, they would not have had her there.” Prior to the incident, the plaintiff was working seven days a week and overtime and doing a lot of hours; she loved her job and had no problems.
Work history
38 From 1989 until 2002, the plaintiff worked for a business conducted by her husband, which included a security business, and subsequently for four years in the defendant company.
39 Between 2003 and 2005, the plaintiff was employed packing and burning CDs. In 2004, she suffered a left shoulder injury, pulling a heavy tub of CDs. She had medical treatment, and an ultrasound of 6 May 2004 suggested subacromial bursitis.
40 On 2 June 2005, Mr Bell, orthopaedic surgeon, performed an arthroscopy on the plaintiff’s left shoulder, debriding a partial thickness tear in the supraspinatus tendon. She was subsequently off work for a month undergoing physiotherapy. No WorkCover claim was lodged.
41 The plaintiff recommenced employment with the defendant in late 2005 or January 2006, having approached her former husband for work. Her duties involved assembling, packing and cleaning.
42 On the said date, while attempting to move a roll of bubble wrap which had become lodged down the back of a filing cabinet, when kneeling to gain access through the bottom drawer of the cabinet, the plaintiff’s left arm became stuck and she lost her balance while trying to pull the wrap free (“the incident”). She felt a pulling sensation in her left shoulder and subsequently developed a lump there. Thereafter, she experienced increasing neck and left shoulder pain.
43 On the said date, the plaintiff saw Dr Chen, as her usual doctor, Dr Hampton, was away. They both practised at Altona Meadows Medical Clinic.
44 The plaintiff’s initial complaint was of numbness in the left arm, neck and shoulder and she had severe pain at that time, with a burning pain in her shoulder and neck and a throbbing pain right through and headaches. She described a lump which went down after a few days.
45 The plaintiff was treated conservatively, with physiotherapy at Altona Meadows Physiotherapy.
46 After about a week, the plaintiff returned to work on reduced hours and duties, but had difficulty coping due to her persisting symptoms.
47 An x-ray of the plaintiff’s left shoulder and cervical spine and an ultrasound were carried out on 30 August 2007. There was no abnormality detected in the x-ray and the ultrasound showed no tendinopathy.
48 On 26 October 2007, on referral from her general practitioner, Dr Hampton, the plaintiff saw Dr Lovell, a pain management specialist, who suggested a medial branch block with a view to radiofrequency neurotomy.
49 On 6 December 2007, Dr Hampton referred the plaintiff for an MRI scan of her neck and left shoulder.
50 In 2008, the plaintiff’s relationship with her partner, whom she had met through rock and roll dancing, ended because she could no longer dance as she had, but they remained friends and continued to attend dances.
51 On 25 March 2008, the plaintiff was referred to Dr Mitchell, a pain management specialist, who undertook a left C4-5-6 medial branch block with sympathetic relief of approximately a week. The plaintiff continued to work light duties with periods off as required.
52 On 1 July 2008, Dr Mitchell undertook a further medial branch block at the same level, but without the beneficial results of the first procedure. Two weeks later, he undertook C4-5-6 radiofrequency neurotomy, which gave the plaintiff good relief for some months thereafter, enabling an increase in hours of work and range of duties.
53 In cross examination, the plaintiff confirmed that after she had the first radiofrequency, she was fine for about five months. She was almost back to full-time work when the pain returned.
54 There was a further radiofrequency neurotomy on the left side at C4-5-6 levels on 24 December 2008.
55 In her first affidavit sworn in September 2012, in addition to detailing the incident circumstances and subsequent medical treatment, the plaintiff described a return to work on reduced hours and duties, but with persisting problems. As of July 2008, she remained on light duties with limited hours and limited duties with periods of time off work when required.
56 During that year, the plaintiff was suffering from persisting problems with neck pain.
57 The plaintiff then believed, having regard to the ongoing and disabling nature of the pain in the left side of her neck extending through her left shoulder girdle into her left upper limb, she would be unable to return to her old job.
58 The plaintiff further believed, having regard to her age, limited vocational skills and limited linguistic skills in English, and the fact that she had had an injury which had persisted for some years, she would have difficulty obtaining any form of employment. She was then concerned her condition did not appear to be improving with the passage of time and, further, when she did suffer more severe bouts of pain, that would interfere with the prospect of undertaking any work. The onset of pain was unpredictable and varied from day to day.
59 The plaintiff ceased work with the defendant on 15 January 2009 and has not returned to work. She was in receipt of weekly payments throughout 2009 until they were terminated in December. On 6 January 2010, she commenced receipt of a Disability Support Pension.
60 In further cross-examination it was put to the plaintiff that her husband ceased his involvement in the defendant company just before the incident when he was bought out of the business. She denied that “had anything to do with anything” or her going off work a week later. She had a job and she was happy doing it regardless of whether her husband was there or not.
61 In further re-examination, the plaintiff confirmed she continued working until January 2009.
62 The plaintiff had an MRI scan of the cervical spine on 3 February 2009. There was a failure to identify any focal disc protrusion with nerve impingement or any canal or foraminal stenosis. The plaintiff understood that Dr Mitchell thought there was an unreported small posterolateral left-sided C4/5 disc prolapse.
63 In March 2009, Dr Mitchell performed a left cervical paracentral block, but the plaintiff derived no lasting benefit from it. Dr Mitchell requested further permission for a radiofrequency neurotomy treatment on Professor Bogduka’s advice. That procedure was undertaken on the left C4-5-6 on 14 April 2009, but again the plaintiff experienced no lasting pain relief.
64 In cross examination, the plaintiff agreed she got some relief from some of Dr Mitchell’s procedures. At the last radiofrequency she ‘nearly died’ when her blood pressure went up really high and she decided that she would not have any more procedures.
65 On 7 September 2009, Dr Mitchell referred the plaintiff to Dr Jensen, whom she has continued to see. He diagnosed pain of a neuropathic quality. He supported the trials of various medications including Lyrica, Tegretol, Endone, and Norspan patches.
66 As of September 2012, the mainstay of the plaintiff’s daily medication was Panadeine Forte supplemented by Panamax and Nurofen. She also took Aropax.
67 In October 2009, Dr Jensen or Dr Hampton referred the plaintiff to psychologist, Marg Safron, whom the plaintiff attended monthly until about mid 2012. Ms Safron provided counselling for an adjustment disorder and anxiety and depression.
68 In her September 2012 affidavit, the plaintiff described, in terms of her social, recreational and domestic activities, the major impact which she suffered was constant pain which varied in its degree of severity, but could be quite disabling. She was unable to undertake repeated movements and restrictions would apply to work and also domestic tasks. She was limited in her ability to hang out the washing and do basic tasks such as mopping or vacuuming and had to rely on her daughter for assistance.
69 Since her daughter has been pregnant, the plaintiff received help from her friend, Mary Hill. If she undertook activities, the plaintiff had to do them bit by bit so she could rest and try to avoid the onset of severe pain. Her ability to do gardening tasks had been significantly impaired.
70 The plaintiff’s sleep was interrupted on a nightly basis. She found she could get about three or four hours’ sleep before she woke in pain.
71 The plaintiff had no libido and had not been able to form any lasting relationship in recent years. Her self confidence and self esteem had been considerably lowered as a result of her physical injuries.
72 The plaintiff used to love dancing, particularly rock and roll, but had to give it away.
73 The plaintiff used to enjoy cooking and entertaining, but no longer did so. She used to be very house proud but no longer had the ability to maintain her house as she would love to do. She avoided any activity which placed undue strain on her body. By and large, there was no aspect of her lifestyle that had not been severely impacted upon because of her injury.
74 In her recent affidavit sworn on 14 October 2013, the plaintiff confirmed she had maintained regular contact with her daughters.
75 The plaintiff continues to see Dr Jensen, usually bi-monthly, when they discuss her ongoing symptoms, namely, severe neck pain extending down to her left shoulder and down the left arm through to her wrist and hand. The pain is constant and unremitting, despite his treatment.
76 In cross examination, the plaintiff explained that if she says she “feels good today”, it is because the pain is not so bad, but she has the burning pain constantly and the severe pain comes and goes. There has not been a day since the incident that she has not had pain. It is always constant regardless of the treatment.
77 Dr Jensen has told the plaintiff to try and do everything.
78 The plaintiff agreed with her general practitioner’s description that her pain is her “constant and unrelenting companion”. She agreed that she firmly believed, absolutely, that she had a significant problem with her neck.
79 Treatment now essentially takes the form of medication. Funding for counselling has ceased and the plaintiff no longer has physiotherapy.
80 The plaintiff’s medication regime is supervised by Dr Jensen and medication is prescribed by Dr Hampton, whom the plaintiff sees approximately fortnightly. A number of medications previously prescribed, including Lyrica, Tegretol, Endone and Norspan patches, are no longer prescribed because of the side effects.
81 The plaintiff’s present medication continues to be Aropax, 20 milligrams a day, Panadeine Forte, up to eight tablets a day perhaps three days a week, and on other days four to six tablets, alternating with Nurofen and Panamax, as well as Pariet for stomach pain.
82 The plaintiff finds the pain relieving medication is only of limited benefit in relieving her symptoms and she also continues to have side effects. In particular, Panadeine Forte causes constipation.
83 The plaintiff’s lifestyle remains extremely restricted by reason of her pain. She does not believe, having regard to the unremitting nature of her pain, that she would be capable of working. Her age, limited vocational and linguistic skills, and general lack of wellbeing by reason of her pain, all count against any return to gainful employment.
84 In cross examination, the plaintiff denied she had any work capacity because she could not even do a very light job with the defendant packing small screws in little bags when she was on light duties. She knew physically she could not do it. She had no choice but to manage when doing light duties. She is still employed by the defendant.
85 The plaintiff felt with her level of English skills and her physical condition she could not work as a deli attendant because that job was not only serving people but also lifting stock. Her English is a barrier depending on what she has to do. The number one problem she is concerned about is her shoulder. She has problems writing.
86 The plaintiff thought a customer service job “would be nice just standing there” but she would be unable to read instructions and directions to people. Whilst working for the defendant, sometimes, the plaintiff would ask a fellow worker, Doris, to help read orders and she was dependent on her quite a bit.
87 The plaintiff confirmed she would be unable to do stocktaking and handling stock. She had had some machine operator training using a soldering iron. She had no training in customer service. She would not know how to process information from a voucher. She has not had any retail experience, nor any experience operating a cash register and she would not be able to do these types of jobs. She has not had any experience preparing paperwork.
88 The plaintiff would not be able to package goods for customers using both hands. She would have difficulty stacking and displaying items.
89 The plaintiff continues to suffer more severe bouts of pain which in and of themselves would, she believes, debilitate her in any form of employment.
90 The plaintiff gave the example of in late August 2013 when she woke in such severe pain that she thought she was having a heart attack. She was taken to the Emergency Department at the Mercy Hospital and kept overnight for observation. She was told there was no heart problem but that her symptoms had been as a result of severe neck and left shoulder and upper limb pain.
91 There are times when the plaintiff gets very severe headaches and she is on the couch or in bed for three days and she cannot move. At those times, her friend, Mary Hill, comes to look after. She lived with Mary Hill for a year about three years ago.
92 Because of the loss of capacity for employment, the plaintiff’s social, recreational and domestic activities remain very confined. When her daughter, who lives in the United States, was over, she was able to assist the plaintiff greatly.
93 The plaintiff could not rely on her other daughter when she was pregnant. Mary Hill, comes around once or twice a week to help out with some of the cleaning and maintenance.
94 The plaintiff continues to be limited with household tasks, and if she over exerts herself, she suffers significantly with increased levels of pain.
95 The plaintiff no longer entertains as she cannot cook like she used to. Her garden used to be like a little paradise but is no longer so. When the plaintiff tries to clean her house, she has severe pain for two or three days and has to get Mary’s help.
96 The plaintiff could not put her left arm up to hang washing on the line. She demonstrated in the witness box the extent of her left arm movement, bending it from the elbow with her hand back towards her face. She had neck and shoulder pain doing that, going from her ear down to the top of her shoulder.
97 The plaintiff suffers if she pushes herself. Her pain has been going on for a long time and she has become paranoid about what is going to happen when she does push herself. She does not vacuum any more; it is just too much in the following days.
98 The plaintiff “absolutely” had to give away rock ‘n’ roll dancing which was her outlet, because of her injury.
99 The plaintiff remains lacking in self confidence and self esteem and generally her mood is quite low as a result of the chronic and disabling pain which she suffers. Her social relations and interactions are very limited and she does not go out much. She does her own shopping, although sometimes she gets help.
100 The plaintiff’s sleep is disturbed constantly by the pain. She often tends to have a nap during the day because she is worn out. She does not usually go to bed before about midnight and only sleeps for an hour or two before waking in pain, and then has to get up during the night. She usually does not get up until about midday.
101 Psychologically, the plaintiff finds that she is quite depressed and she has had some suicidal thoughts, but her thinking always turns back to her daughters and grandchildren. Her mood is very low, despite the use of anti-depressants.
102 In cross examination, the plaintiff explained she is not saying she is totally confined to the house. She is just different to what she was before. She does visit her daughter locally. She used to be an outdoor and outgoing girl.
103 One or two days a month, the plaintiff is no mood to get out and does not get dressed and stays at home in her dressing gown.
Surveillance
104 There was surveillance film of 37 minutes taken on 17 May 2013. The plaintiff agreed she was shown initially at a shopping centre at 5.27pm and then later sitting having a meal with her niece for about half an hour. She got home at 7.20 that night.
105 The plaintiff agreed she had been able to shop casually with her niece and then sit down and enjoy a meal. When it was suggested that the plaintiff was not in obvious distress, she said she did not exactly go out and say, “My god, I'm in pain”, as she had pride. She did use her left arm to eat, shower and dress. Even though she was in pain she had to do it. She agreed, of course she was smiling in the film at times.
106 The plaintiff was shown on the morning of 20 May 2013. She agreed she could have been at the supermarket for fifty minutes. She has never denied she does a bit of shopping on her own. She noticed her arm was resting on the trolley and that she did not stretch it out to pick anything up. She agreed she picked up a cauliflower with her left arm.
107 The plaintiff was shown on film at 11.30 fully extending her left arm to raise the bonnet of her car. Over the next few minutes, she made a number of trips to a trolley containing bags of shopping which must have been in front of her car. She carried the bags in her right hand and then put them in the boot. She held her car keys in her left hand. She moved the bags around in the boot with both hands.
108 The plaintiff denied that she used her left hand to open the car boot, fully extending her arm. She denied doing any lifting with her left arm and just put her left arm through the bags when she was shown putting them in the boot.
109 The plaintiff was aware at times she had been under surveillance but not at the times when she was filmed.
110 The defendant admitted the plaintiff was under surveillance for a total of 45.5 hours on various dates in 2007, 2010 and 2013 during which 45 minutes of film was taken.
111 Whilst Dr Jensen had recorded that the plaintiff thought she would get back to dancing after the case finished, she doubted very much she would resume the things she had done in the past. She confirmed Dr Jensen told her to be more active.
112 A few months ago, the plaintiff had one or two dances and the next day was on the couch for two days in chronic pain and had not been dancing since. She wished she could go back to dancing after the case but did not think she could do so. She knew what happened dancing with her neck and shoulder.
113 The plaintiff would have said “catch her out” to Dr Jensen a few times and his reply was “Don’t worry about it; you let me worry about it when the day comes”. The plaintiff agreed she told him she was concerned she might get caught out by surveillance in many things – not in the sense she watching every step of her life. She did not mention anything about being “caught out” or “jeopardising a favourable legal outcome”. She did not say anything to Dr Jensen about her case. These were Dr Jensen’s words.
114 When it was suggested to her she avoided doing things because she was concerned if she was caught it would jeopardise her case, the plaintiff said not only that, “it is that she is always worse for it when she does something”. She then denied avoiding doing things for the purposes of her case.
The Plaintiff’s earnings
Year Employer Earnings 2004 Wiltari Pty Ltd
Mediatech Pty Ltd
$2,165
$25,301
2005 Mediatech Pty Ltd $25,587 2006 Mediatech Pty Ltd
Designer Doorware Pty Ltd
$12,317
$4,176 and $10,330
2007 Designer Doorware Pty Ltd $32,486 2008 Designer Doorware Pty Ltd $29,963 * No taxation returns filed since 2010.
Lay evidence
115 The plaintiff’s friend of many years, Mary Hill, swore an affidavit on 14 October 2013.
116 Ms Hill noted that the plaintiff’s employment related injuries had led to a deterioration in her lifestyle. She currently goes to the plaintiff’s house once or twice a week to see how she is and stays overnight perhaps once a fortnight, and sometimes the plaintiff stays at her house.
117 Ms Hill observes the high degree of the plaintiff’s pain. The plaintiff complains constantly of neck pain and pain going through her left shoulder and left upper limb.
118 Ms Hill has observed in recent years that the plaintiff appears to be in virtually constant pain. She was aware the plaintiff has had a high medication regime, but, despite that, her symptoms did not seem to be controlled. She was aware medication had included morphine amongst other powerful drugs, but the plaintiff suffered side effects. Even with Panadeine Forte, the plaintiff complained of constipation.
119 Ms Hill noted the plaintiff, psychologically, seemed to be very down and nothing like the person she used to be. The plaintiff has no real positive outlook on life and Ms Hill has been quite concerned from time to time about self harm, and the plaintiff has spoken to her of ending the pain.
120 The arrival of grandchildren has given the plaintiff some future, which previously was lacking. Nonetheless, in Ms Hills’ view, the plaintiff remains a person who is considerably depressed and that is despite extensive counselling, which she has on occasions attended with her, and also daily use of anti-depressant medication.
121 From Ms Hill’s observations, as a result of the injury, whether viewed as physical or psychological, the plaintiff’s quality of life has been decimated by the effects. The plaintiff was previously an outgoing and gregarious person, but nowadays she is virtually confined to her home and is constantly in pain.
122 Pre‑injury, the plaintiff was very proud of her appearance, wore makeup and was a socially active person. Now, she lacks motivation in that regard and Ms Hill has to tell her to put on makeup when they go out because she does not have sufficient self esteem to bother to do it herself.
123 Ms Hill was aware the plaintiff has limited vocational skills and, given her difficulties with her injury, she would not return to work. She thought, from her observations, the plaintiff’s level of pain and depression was such she would be incapable of holding down employment.
The Plaintiff’s medical evidence
Treaters
124 Mr Bell performed an arthroscopic subacromial decompression of the plaintiff’s left shoulder on 2 June 2005. Post-operatively, he saw the plaintiff on 14 June where he noticed she was recovering very satisfactorily with a good range of glenohumeral movement and some improving elevation of the arm. He then thought it would probably be three months from surgery before she would be able to return to unrestricted duties.
125 Dr Hampton wrote to Professor Marshall in August 2007. He noted the plaintiff’s earlier left shoulder problem and that five weeks before, the plaintiff suffered a relatively minor neck and back injury. He advised he had referred the plaintiff to Mr Lovell and hoped some local trigger point injections would relieve spasm and allow resolution. He noted that the physiotherapy had aggravated the plaintiff’s problems.
126 Having been advised by Cambridge that it declined to fund nerve blocks, which Dr Lovell had requested, Dr Hampton advised Cambridge that he disagreed with its decision to the extent he could no longer manage the plaintiff as a WorkCover patient. He advised he had given her a certificate and would thereafter have no further involvement with her WorkCover management.
127 Dr Hampton referred the plaintiff to Dr Mitchell in March 2009.
128 In a letter to the plaintiff’s solicitors of 27 September 2010, Dr Hampton noted the plaintiff had a longstanding mild adjustment disorder, normally treated with Aropax. He thought her injury had developed into a chronic pain syndrome and that psychological help was needed to manage it. He thought that help would need to continue until the plaintiff recovered or came to terms with her injury, and that would not happen in the foreseeable future.
129 Dr Hampton reported in April 2013. He noted the plaintiff’s care was being directed by Dr Jensen.
130 Dr Hampton thought the plaintiff’s medical condition had shown progressive decline which was to be expected in a soft tissue injury with advancing years, and an adjustment disorder unrelieved by the resolution of the provoking stimulus, namely the legal process. Whilst he thought the finalisation of the plaintiff’s claim may improve her psychological condition, he thought it unfortunate the process had been so protracted and so adversarial that, as a consequence, it was likely much of the psychological damage had become permanent.
131 Dr Hampton thought the plaintiff’s current symptoms relating to her neck injury were pain in her neck and increasingly in her left arm and depressive symptoms arising from her Adjustment Disorder. He considered the consequences to the plaintiff of her injury are for continuing and continuous pain in her neck and left shoulder, unrelieved by any known therapy, and continuing depression.
132 Dr Hampton noted the plaintiff was unable to socialise normally within her community and she had lost her social pastime of rock and roll dancing. She had also lost her friendship group and had at least one failed relationship that could be directly attributable to her pain episode. He noted she was unable to perform many activities of daily living without pain and that pain was “her constant and unrelenting companion”.
133 Dr Hampton thought the plaintiff’s injuries had stabilised in that the future is for progressive, slow deterioration as the aging process compounds the damage caused by soft tissue injury. He noted the plaintiff’s failure to respond significantly to all known pain management strategies. The “only treatment currently known about is to suffer. Amelioration may be achieved by physical therapies, but resolution is not within human creation.”
134 Dr Hampton most recently reported in October 2013 that the plaintiff had a substantive shoulder and neck physical injury from which she had suffered for years and which pre-dated by some months the psychological component of her distress.
135 In terms of apportionment between physical and psychological, Dr Hampton referred the plaintiff’s solicitors to Solomon. He noted no current human had the capacity to determine the degree. If you wanted to guess, it would be 70 per cent physical and 30 per cent psychological, but there was no objective measurement available, and since pain was a perception and not a reality, if there were not any tools available to anyone to determine the composition of any individual’s pain, in guessing at 70/30 he had taken into account the level of the plaintiff’s original pain, its attenuation at the time and the possible augmentation because of psychological factors. However, his estimate remained a guess.
136 Dr Lovell wrote to Dr Hampton in October 2007 thanking him for referring the plaintiff who was complaining of persistent left neck, shoulder girdle pain since an incident at work.
137 Dr Lovell thought clinically the plaintiff looked like she had cervical segmental pain, radiating pain and referring into the shoulder girdle area. He thought it would be useful to clarify her pain was in fact neck related so he undertook a deep paravertebral injection at C4/5 and C5/6 which essentially blocked all her pain. On that basis, he advised he planned to proceed to some medial branch blocks with a view to radiofrequency neurotomy if the blocks were positive.
138 Dr Lovell wrote to Cambridge in November 2007 requesting funding for diagnostic medial branch blocks.
139 Dr Mitchell reported to Cambridge in July 2008 that the plaintiff had had medial branch blocks twice, the results of which were positive and indicated that radiofrequency neurotomy was the appropriate treatment and requested liability for that procedure.
140 Six or seven weeks thereafter, Dr Mitchell reported to Dr Hampton that the plaintiff’s underlying pain was good, but she was troubled post procedure with some neuropathic pain which was controlled by Lyrica but had recurred when she came off it. He noted the plaintiff’s underlying pain had gone, although she did have some muscle tightness around the area. He suggested physiotherapy and looking at a return to work on light duties with an appropriate increase in duties when she could tolerate them.
141 In December 2008, Dr Mitchell reported to Dr Hampton that the plaintiff had recurrence of her neck pain post radiofrequency neurotomy. He thought her pain was starting to recur a bit early and he believed it should be retreated fairly aggressively.
142 In his letter to Cambridge of December 2008, Dr Mitchell noted the plaintiff had six months of being near totally pain free since the radiofrequency neurotomy. She was in the early stages of return to work and pain was starting to recur. He noted since her pain had been controlled she had returned to near full time work. He suggested more aggressive treatment with a repeat radiofrequency neurotomy.
143 In February 2009, Dr Mitchell advised Cambridge the plaintiff continued to be troubled by significant neuropathic type pain on the left side of her head and neck. That pain came on three weeks after her radiofrequency neurotomy and it was noted the MRI showed a left-sided posterolateral prolapse at C4. He thought that the pain distribution was wrong for that being the area of her pain and he advised he discussed the case at length with Dr Vivian, who thought it appropriate, under x ray, to inject some local anaesthetic and anti-inflammatory around the area treated.
144 In February 2009, Dr Mitchell advised Dr Hampton that the plaintiff experienced some neuropathic pain following her radiofrequency neurotomy. That had been fairly resistant to Lyrica and Dr Vivian suggested they should do a deep paravertebral there under image intensifier.
145 In March 2009, Dr Mitchell advised Dr Hampton of concern the plaintiff’s current symptoms were from an infection from the block. That month, Dr Mitchell advised Cambridge the plaintiff’s neuropathic pain continued. It had improved for a week after the block with some local anaesthetic and cortisone, but this improvement did not persist.
146 Dr Mitchell advised Cambridge of Dr Bogduk’s opinion that radiofrequency should be repeated and requested funding for the procedure.
147 In July 2009, Dr Mitchell advised Dr Hampton that the repeat neurotomy had not changed the plaintiff’s pain and he awaited Dr Jensen’s opinion, and apart from looking at a patch, he did not have any great ideas to add to the medication provided at that stage.
148 Dr Mitchell noted that Dr Jensen was also somewhat confused as to how good the blocks had been and the plaintiff’s response to radiofrequency, particularly when the first one had worked so well. However, he felt it worthwhile looking at a community based, multi-modal, pain management program with rehabilitation a major aspect of that, and also psychotherapy. He noted correspondence from Dr Jensen that the plaintiff had been responding well to this program, particularly the psychotherapy aspect of it.
149 In summary, Dr Mitchell thought the plaintiff suffered a significant injury to her neck in the workplace with traction compression forces on facet joints, discs and nerve roots. She had had scientifically validated medial branch blocks with a diagnostic confidence of 90 per cent. The facets were the source of her pain and she indeed had six months of relief of her underlying pain with her initial radiofrequency neurotomy.
150 The plaintiff was, however, troubled significantly by neuropathic pain following that procedure and Dr Mitchell noted further procedures had just worsened that pain and not given her relief. He noted that is a situation western medicine does not understand.
151 Dr Jensen reported that his management to August 2010 had been along standard lines for treating chronic pain states with significant physical and psycho-social components. He thought the plaintiff had a neck injury with referred pain to her left shoulder and left upper limb, but did not have a separate specific left shoulder injury. He conceded the plaintiff had gone on to develop a chronic pain syndrome related to her initial injury that in part was due to the psycho-social distress she suffered as a result of it.
152 Dr Jensen reported to the plaintiff’s solicitors in November 2011 having seen Mr Radley’s assessment and Mr Klug’s report. Dr Jensen stated he would now be of the view that the plaintiff was totally and permanently incapacitated for all work
153 Dr Jensen again reported in May 2013. He confirmed his opinion that the plaintiff suffered a significant cervical spine mechanism dysfunction with referred pain to her left shoulder girdle and left upper limb as a result of the incident. He also thought she had gone on to develop a significant chronic regional neuropathic pain syndrome with referred pain to the left neck, shoulder girdle and left upper limb.
154 Dr Jensen did not think the plaintiff was suffering any neurological sequelae to the injury. He also thought that she was suffering from an adjustment disorder with depressed and anxious mood that was compounding her pain, perception and clinical presentation. He noted the psychological opinion that there was a psychological sequelae to the plaintiff’s injury, namely an adjustment disorder with depressed and anxious mood which was also thought to be significantly contributed to by her employment.
155 The plaintiff now reported her pain level as 10 out of 10 with severe limitations in daily activity.
156 During examination, the plaintiff constantly grimaced and tended to rub her left neck, shoulder girdle and upper limb with the right hand.
157 There was no wasting through the plaintiff’s shoulder girdles or upper limb. She had marked restriction of the left shoulder with much grimacing and withdrawing. Dr Jensen found no specific reference of scapular abduction, suggesting normal mobility of her glenohumeral joint.
158 There was an inconsistency between the cervical spine movement on formal testing and when distracted at full flexion and near full rotation.
159 Dr Jensen noted, as had commonly been the case on examination, the plaintiff was generally hyperalgesic to a light touch throughout the left shoulder girdle in particular, but also spreading in to the left upper limb. Neurological assessment revealed giving way type weakness through all groups in the left upper limb.
160 Dr Jensen concluded the plaintiff still presents with a chronic neuropathic pain syndrome. He thought after the most recent examination that non-organic features had significantly escalated, noting in particular the inconsistency in formal and casual observation.
161 Dr Jensen’s treatment involves continual reassurance about the lack of any serious organic pathology and encouragement to be more active.
162 Dr Jensen noted the plaintiff had consistently told him of her paranoia that the WorkCover private investigators would film her if she was undertaking her usual activities and that would compromise her case. He noted he had gone to great lengths to explain to her that he considered undertaking normal activities to be a crucial part of her ongoing rehabilitation and that should take precedence over any medico-legal sequelae.
163 Dr Jensen thought the plaintiff’s prognosis had not changed, noting that medical literature is abundant in pointing out that a combination of a physical injury with significant psycho-social distress in compensable circumstances carries with it a poor prognosis.
164 Dr Jensen confirmed his belief that the consequences of the plaintiff’s injury severely compromised her capacity for work and capability of completing or taking part in daily activities. He reiterated that the literature suggested that in such cases it is more the psycho-social sequelae of such injuries, rather than the organic physical injury, that is the main driver of such incapacity.
165 Dr Jensen did not believe there were any other specific treatment strategies for the plaintiff and he thought that, in terms of pain management, she needed ongoing support from her general practitioner and psychologist together with ongoing analgesic medication. He thought she almost required psychotropic medication. She needed to continue to be as active as possible, despite her symptoms.
166 In October 2013, in answering the question posed by the plaintiff’s solicitors, Dr Jensen stated that it is now his opinion that the non-organic psychological causes form the basis of the major proportion of the plaintiff’s current pain experience and that the organic physical causes now form very much the minor proportion of her pain experience. He noted he knew of no scientifically based formula on which to quantify that any further into these major and minor categories.
167 Marg Safron, psychologist, commenced working with the plaintiff in October 2009. She had seen the plaintiff on eighteen occasions to October 2010 when she last reported.
168 Treatment focussed on specific pain management and relaxation management techniques.
169 Ms Safron thought that an extremely difficult aspect for the plaintiff had been dealing with the belief that health practitioners thought her pain was imagined. Ms Safron noted that the plaintiff had been an extremely active person who loved her life before her injury and she should be given the chance to return to her pre injury lifestyle.
Investigations
170 Dr Hampton organised a left shoulder MRI on 30 August 2007. There was no demonstrated tendon or tendinopathy of the rotator cuff tendon, nor long head of biceps tendon. There was no bursal thickening or fluid and no significant bursal bunching.
171 An x-ray of the left shoulder showed normal joint congruity. There was no acromial spur or soft tissue calcification, and there was no abnormality of the AC joint.
172 There was a normal examination of the cervical spine following x-ray.
173 On 5 December 2007, Dr Hampton organised an MRI of the plaintiff’s cervical spine and left shoulder. It was reported there was very slight reverse lordosis at C3. Vertebral body height was maintained, but otherwise there was satisfactory alignment. Signal was normal and there was no disc protrusion or compromise to the central canal or foramina throughout the cervical and upper thoracic spine.
174 In relation to the left shoulder, there was mild AC joint degenerative change. There was a tiny cystic lesion superficial to the AC joint which was noted as maybe representing a small ganglion or subcutaneous cyst. No rotator cuff tear of tendinopathy or bursitis was identified. There was no neural compressive lesion evident at the cervical or upper thoracic spine.
175 Dr Mitchell carried out left C4/5/6 medial branch blocks on 25 March 2008 and 1 July 2008. He also undertook a cervical radiofrequency neurotomy on 16 July 2008 and 24 December 2008.
176 Dr Mitchell organised an MRI of the cervical spine on 3 February 2008. It was reported there was no evidence of focal infection, no focal disc herniation, canal or foraminal stenosis and no nerve root impingement.
177 Dr Mitchell carried out a left cervical paravertebral block on 19 March 2009. On 15 April, he conducted a cervical radiofrequency neurotomy, left C4/5/6 medial branch.
Medico-legal evidence
178 Mr Nye, neurosurgeon first examined the plaintiff on the defendant’s behalf on 4 February 2008 and re-examined her on 6 May 2010 and 30 September 2013.
179 At the most recent examination, the plaintiff claimed that the previously reported condition had worsened with severe attacks of pain in the neck and headaches and on occasion accompanied by vomiting. The plaintiff advised of her hospital attendance the previous month.
180 Mr Nye noted examination revealed an individual displaying flat affect suggestive of depression.
181 The plaintiff claimed a marked restriction of all cervical movements. The left upper limb was noted to be relatively immobile but used normally when adjusting clothing, getting dressed.
182 Neurological examination revealed a global weakness affecting the left upper limb. Notably, all upper limb reflexes were present and symmetrical and the plaintiff again claimed an impairment of sensory appreciation affecting the whole of the left arm and extending to the C2 level in the cervical region. Lower limb reflexes were noted to be brisk and symmetrical.
183 Mr Nye again concluded, particularly with respect to any spinal condition, the original injury was essentially of a soft tissue nature and in ordinary circumstances natural recovery would be expected. Mr Nye was firmly of the view the plaintiff had developed a chronic pain syndrome which, from his perspective, did not have an organic explanation, noting the Medical Panel view was consistent with his.
184 Mr Nye thought the plaintiff’s presentation had not identified any significant physical condition affecting her spine. There had been no improvement in her reported symptoms subsequent to the last examination, as noted deterioration was claimed, with some inconsistency compared to comments made by the treating musculoskeletal physician.
185 Mr Nye thought the injury was essentially of a soft tissue nature and he remained of the view that disregarding psychiatric aspects of the plaintiff’s presentation, and confining his comments to her spine, there was a physical capacity to undertake pre injury employment. He remained of view the plaintiff was capable of undertaking occupational positions as identified.
186 Mr Nye thought there were major non organic components to the plaintiff’s presentation with functional features identified and the development of a chronic pain syndrome identified. He considered the overall prognosis appeared unfavourable.
187 Mr Nye noted the plaintiff’s current treatment appeared appropriate. He did not consider the treatment undergone in the past reasonable particularly the interventional techniques used with injections and radiofrequency lesions in the cervical spine for which he believed justification was not present in the absence of any identifiable physical or organic condition.
188 Mr Nye thought the plaintiff’s condition had affected daily activities. However, she remained self sufficient with respect to the personal requirements of daily living.
189 In Mr Nye’s view, in relation to the cervical spine, the plaintiff has the physical capacity to undertake employment as previously performed and is capable of undertaking occupational positions as identified in the vocational assessment report.
190 The plaintiff was examined on Cambridge’s behalf by Dr Karna, rheumatologist, in February 2009.
191 On examination, the plaintiff had a depressed affect and some substantial restriction of cervical movement with pain. Neurological examination of the upper limbs was normal. The plaintiff had almost a collapsing type weakness, however, distally in the left upper limb. Dr Karna did not believe she had any intrinsic shoulder problem.
192 The working diagnosis had presumably been that of cervical facet joint derived pain. Superimposed upon that, Mr Karna believed there was some psychological amplification of the plaintiff’s pain and she had developed a Regional Pain Syndrome above and beyond that. He thought that the local injections of anaesthetic were reasonable noting the chronological sequence of events.
193 Dr Karna thought the plaintiff most likely had developed a degree of cervical facet joint pain in the incident. She had had continuing pain since and had a superimposed Chronic Regional Pain Syndrome develop, presumably due to some psychogenic pain amplification.
194 Dr Karna was certain the plaintiff’s antecedent depressive illness was amplifying her symptoms but he accepted there was probable a cervical facet joint and hence structural basis to her pain. He saw a recent exacerbation as being a continuation of original pain.
195 Dr Karna thought the plaintiff currently did not have a work capacity. He believed after the local injection suggested by Dr Mitchell she would be able to return to work not involving sustained posture maintenance, initially on a restricted hours’ basis. He noted heavy lifting and overhead use of the arms would also need to be restricted. He thought the plaintiff was not fit for unrestricted pre injury work. After the injection, assuming a reasonable response, she would be able to commence working between two to four weeks on the duties described.
196 Currently because of pain levels, Dr Karna suspected the plaintiff had no immediate work capacity. That was not going to be indefinite. He noted she did demonstrate prior response to cervical radiofrequency denervation and he saw no reason why again a symptom free interval could not be obtained. He could not advocate alternative treatments and noted the plaintiff’s medical condition had not yet stabilised.
197 Mr Khan, orthopaedic surgeon, examined the plaintiff in July 2010.
198 Mr Khan thought the plaintiff sustained a severe soft tissue and musculoskeletal injury to the left side of her neck, left shoulder and arm with soft tissue damage of the left sided facet joints in the lower part of the cervical spine, soft tissues and capsule of the left shoulder joint and shoulder girdle. That had resulted in diffuse unremitting pain disorder involving the anatomical areas as mentioned. However, he thought she did not meet the diagnostic criteria of complex regional pain syndrome Type 1.
199 Mr Khan considered the plaintiff appeared to have been left with residual pain and partial permanent impairment of function, and she was unfit for pre-injury duties permanently. She could do activities avoiding excessive bending, twisting, turning of the neck or exposing it to severe strain. She should avoid any activity requiring elevation of her left arm and shoulder above 90 degrees, pushing, pulling and twisting with the left arm and shoulder or lifting more than 5 kilograms.
200 In a supplementary report of October 2010, Mr Khan thought the plaintiff was totally unfit for pre-injury duties on a permanent basis due to a combination of physical aspects and chronic pain condition. He noted the factors pointed out by Mr Radley supporting a conclusion the plaintiff was totally unfit for rehabilitation or retraining and, as a result, she was likely to remain unemployed.
201 Mr Klug, neurosurgeon, examined the plaintiff in July 2010.
202 On examination, Mr Klug thought there was little to find of an objective nature. It was his opinion that, as a result of the incident, the plaintiff probably sustained a soft tissue injury to the cervical spine. He did not believe it possible to precisely diagnose the exact nature of that injury. It also appeared, as a result thereof and the failure of such to resolve, the plaintiff had developed a chronic pain syndrome. He thought the evidence suggested, as a result of the injury and the failure of such to resolve, there was a psychological disorder.
203 From a purely physical view, Mr Klug thought the plaintiff could undertake employment of a suitable type, not putting undue strain on her neck and upper limb, and she could probably do some light physical work on a bench where she was not required to bend or lift, particularly repetitively. He thought it would be possible to place her in an appropriate rehabilitation program.
204 From a physical point of view, Mr Klug believed the plaintiff had the ability to undertake activities of daily living, but believed however her chronic pain would, to some extent, reduce those abilities and also have an adverse effect on her enjoyment of recreational and social activities. From a purely physical point of view, he felt there was a possibility her condition could improve and he had been unable to define any factors which would certainly contradict that opinion.
205 Mr Klug would accept the plaintiff certainly did have a chronic pain syndrome. In some ways, he agreed with Mr Nye. However, he felt it would be difficult for the plaintiff to resume her pre-injury employment, although he did believe that when one considered the physical aspects she could undertake alternate employment. He agreed the plaintiff was not totally and permanently incapacitated.
206 Dr Peter Blombery, vascular surgeon, first examined the plaintiff in June 2010.
207 On examination, there was diffuse tenderness on pressure down the left arm, around the shoulder girdle and the left side of the neck. Dr Blombery considered the ongoing pain in the plaintiff’s left arm, shoulder and neck were a consequence of a non-specific pain syndrome where there was non-specific sensitisation of pain nerve pathways, both in the periphery as well as in the brain and spinal cord, such that non-painful stimuli became interpreted by the cerebral cortex as being painful. He thought that was an organic disorder of pain nerve pathways.
208 Dr Blombery thought there was also a component of complex regional pain syndrome contributing to the plaintiff’s ongoing pain.
209 Dr Blombery considered the prognosis for recovery was poor, noting it was three years since the injury and the plaintiff’s symptoms were stable. He thought she had developed some secondary anxiety and depression as a consequence of her injury.
210 Dr Blombery considered the plaintiff had no capacity for her pre-injury duties, nor would so in the future. If she had appropriate pain management and there was some improvement, he thought it was possible she now could do very light duties using her right hand, but that would depend on her response to such interventions.
211 Dr Blombery re-examined the plaintiff in April 2013. She then told him that her arm symptoms became more severe on 28 March 2013 and, prior to that, she had been able to handle the pain, but that was no longer the case.
212 On examination, the plaintiff was somewhat depressed and held her left arm relatively immobile. She was tender on pressure all the way up the left arm and there was reduced left shoulder and neck movement.
213 Dr Blombery concluded the plaintiff continues to have features of a pain syndrome affecting her left arm. He thought the pain was probably neuropathic in origin as it had a burning quality to it. He considered there was no evidence of autonomic disturbance on examination or on history. There was no definite component of complex regional pain syndrome Type 1 now present.
214 Dr Blombery considered the plaintiff’s prognosis for recovery was poor and there would be no significant change in her level of disability in the foreseeable future.
215 Dr Blombery thought there had been a very major impact in terms of both the plaintiff’s capacity for employment and her ability to be able to take part in the activities of daily living. He noted the severity of the ongoing symptomatology in her arm and neck would prevent her from doing her pre-injury job or to undertake suitable employment, either now or in the future. He considered the plaintiff’s injuries had stabilised and future treatment would involve multi-disciplinary therapy for chronic pain.
216 Dr Blombery, in his report of October 2013, noted the plaintiff impressed as having an organic injury with sensitisation of pain nerve pathways complicating soft tissue injuries to her left shoulder and arm. He did not think psychological or non-organic factors were playing a significant role in her presentation and would apportion all of her injury to an organic cause.
217 Dr Alex Stockman, rheumatologist, examined the plaintiff in April 2012.
218 On examination, there was about half the normal range of cervical movement. There was tenderness in the muscles on the left side of the neck and shoulder region. There was half the normal range of active abduction of the left shoulder and full rotation, but all movements were associated with pain. There was no good evidence of rotator cuff lesion on testing.
219 Dr Stockman diagnosed a regional pain syndrome involving the left side of the neck, shoulder girdle and arm, to which employment was a material contributing factor.
220 Dr Stockman considered the plaintiff had developed anxiety and depression and some digestive problems secondary to various forms of medication. He noted the psychiatric condition was best covered by Dr Kaplan, who diagnosed an adjustment disorder with depressed mood.
221 Dr Stockman thought the plaintiff’s work capacity had been affected by the injury and, in his opinion, she could not return to her pre-injury duties, but she had some ability for alternative employment.
222 Dr Stockman considered the plaintiff’s ability to retrain or be rehabilitated for suitable work was affected by her incapacity and pre-injury employment, her age, education, skill and work experience, and possibly her place of residence and efficacy of occupational rehabilitation services.
223 The plaintiff told Dr Stockman that she did, in fact, attend occupational rehabilitation, but that did not result in her obtaining any employment. Furthermore, her former employer was not prepared to give her a job using her right arm only.
224 Dr Stockman thought the plaintiff’s physical condition prevented her from performing lifting with the left arm of more than 2 kilograms, performing repetitive work with the left arm, moving her neck in either direction frequently or working with the left arm above shoulder level.
225 Dr Stockman explained the pain syndrome is non-organic if organic means an underlying physical injury to the discs, joints, muscles or ligaments. He considered the plaintiff’s pain syndrome as being an abnormality in the central and peripheral nervous system of pain processing mechanisms. It would not be detected anatomically but nevertheless was real.
226 Dr Stockman reviewed the plaintiff in August 2013. He noted his examination was essentially unchanged since the last visit.
227 In his opinion, the plaintiff’s condition had remained unchanged or slightly worsened since the last visit 16 months earlier. He noted it may have been aggravated by some lifting. He diagnosed regional pain syndrome. The synonym was complex regional pain Type 1 with sympathetic over activity. In addition, he thought the plaintiff had migrainous type headaches which were a consequence of her pain syndrome.
228 Dr Stockman thought the plaintiff has some capacity for work on a part-time basis. She should avoid repetitive movement of the left arm and lifting the arm away from her body. Further, she should avoid turning her neck or keeping her neck in one position for any length of time, and lifting heavy weights with the left arm. He thought the plaintiff’s condition had stabilised and was unlikely to change in the foreseeable future, and she should continue with her current medication.
229 In November 2013, Dr Stockman confirmed his earlier diagnosis of regional pain syndrome. He advised psychological problems/depression were also mentioned to encompass all the diagnoses. He advised that to give a meaningful opinion regarding the severity or impact of psychological problems on the plaintiff’s wellbeing was outside his area of expertise. He considered regional pain syndrome was an entity that stood on its own and the psychological problems were separate, although often associated with that condition.
230 Dr Albert Kaplan, psychiatrist, examined the plaintiff in August 2010.
231 The plaintiff told him of seeking treatment in 1990 when she became depressed thinking about her father’s murder and she was referred to a psychologist and prescribed Aropax. Although there was a full recovery, her general practitioner continued to prescribe that medication over the following years, although the plaintiff did not suffer any relapse of her depression until after the injury. She had no other past history of psychiatric illness or treatment.
232 The plaintiff told Dr Kaplan she still felt depressed and did not feel like doing anything and felt like crying all the time. She described herself as previously being very happy, bubbly and loving to go out and dance.
233 Dr Kaplan thought the plaintiff was suffering from an adjustment disorder with depressed mood related to her injury, chronic pain, inability to work, physical limitations and other effects of her injury. She had experienced an episode of depression related to an earlier traumatic event, but had recovered from that.
234 Dr Kaplan thought the plaintiff was likely to remain prone to depression as long as her pain persisted and she remained disabled by it. He thought her psychiatric condition was likely to have an impact upon her capacity to engage in pre-injury or suitable employment. However, that capacity would be largely determined by her physical condition. Her psychiatric condition, in his view, had a significant impact upon her social activities and libido and any other limitations would be determined by her physical condition.
235 Dr Rose, psychiatrist, re-examined the plaintiff in July 2010. He then noted her condition had slightly deteriorated with a higher dosage of anti-depressant medication. If anything, she was more depressed with a growing sense of hopelessness and she continued to suffer intolerable pain.
236 Dr Rose thought the plaintiff required a maximum of 10 more psychological sessions and it was appropriate she take anti-depressant medication and 30 milligrams was appropriate. He thought she might need to take that indefinitely because of the severity of her depression and the fact she had chronic pain, and without medication her condition would deteriorate. He thought the plaintiff was not ready for self management. He noted she was not working and, given the fact she was on a Disability Support Pension, her prospects of returning to work are not good.
237 Dr Michael Epstein, psychiatrist, examined the plaintiff most recently in July 2013.
238 The plaintiff told him of the murder of her father when she was a young girl. She also advised him that in 1990 the circumstances of that murder came back to her and she became depressed and withdrawn. She saw a psychiatrist more than 10 times and was commenced on 10 milligrams of Aropax. She made a full recovery.
239 The plaintiff told him of her marriage breakdown in 2003. She eventually came to terms with that and developed a good relationship with her ex-husband and his family.
240 The plaintiff did not tell Dr Epstein of any report of depression in early to mid 2007 or of being in an abusive relationship at one stage.
241 On examination, the plaintiff’s affect was restricted and she appeared mildly depressed and anxious during the interview. There was no thought disorder. The content of her thinking was about her ongoing symptoms and the effect they had on her life. Her attention, concentration, working memory and speed of information processing appeared within normal limits. There was some insight and her judgment appeared to have been disturbed, but had improved. Dr Epstein noted there had been significant changes in behaviour and the plaintiff had become more isolated and irritable.
242 As a consequence of chronic pain, discomfort and disability, Dr Epstein thought the plaintiff had developed a chronic adjustment disorder with depressed mood. He considered her condition was stable, and her prognosis for improvement was limited and depended on what happened with her physical injury. He did not comment on the plaintiff’s capacity for employment from a psychiatric point of view.
243 Dr Epstein’s impression was that at least a significant part of the plaintiff’s pain was unrelated to any physical pathology and was psychological in origin. In his view, an appropriate proportion was that psychological to physical was in the ratio of 70 to 30, with 70 per cent of her condition psychologically related and 30 physically related.
Vocational evidence
244 Mr Bill Radley, psychologist, carried out a vocational assessment in September 2010.
245 Mr Radley concluded the plaintiff had no current capacity for work and may benefit from a referral to a multi-disciplinary pain management program. He noted the medical reports described her injury as a rotator cuff injury of the left shoulder, some irritation of the facet joints on the left side of the neck and a chronic pain syndrome. He noted the plaintiff was then a fifty-four year old process worker.
246 Mr Radley provided a supplementary vocational assessment in September 2011. He confirmed his earlier view that the plaintiff had no capacity for her pre injury employment or alternative employment. He thought the suggested jobs of process worker, customer service and shopping centre retail assistant were unsuitable for her.
The Defendant’s medical evidence
Clinical notes of Dr Hampton
247 The plaintiff reported pain in the shoulder and neck and there was a diagnosis of osteoarthritis on 4 December 2006. On 15 August 2006, the plaintiff was given a prescription for Aropax 20 milligrams, two daily.
248 On 4 July 2007, there was a discussion with Dr Hampton about depression and current relationships. On 20 April depression was noted.
249 On 5 July 2007, there was the report of the work injury and there was tenderness in the left trapezius muscle. Depression was noted on 13 July 2007.
250 It was noted on 9 July 2007 that the plaintiff felt better mentally. Panadeine Forte was prescribed.
251 On 11 July 2007, the plaintiff had numbness in the left arm and was sore down the back
Medical Panel
252 On 4 April 2011, the Medical Panel determined that the plaintiff was suffering from a chronic pain syndrome and a Chronic Adjustment Disorder with depressed mood. The Panel thought the plaintiff had no present inability to return to her pre injury employment arising from an injury.
Dr Jensen
253 On 1 March 2011, Dr Jensen wrote to Dr Hampton advising the plaintiff had been to the Medical Panel and that hopefully the medico-legal issues would settle soon and she would be able to get on with her life.
254 Dr Jensen advised by way of example, the plaintiff said when this is all over she will get back to rock ‘n’ roll dancing but her barristers had warned her off this activity for now for fear that video surveillance may catch her out and may jeopardise a favourable legal outcome.
255 Dr Jensen advised that of course he advised that was a load of ”bumpkin” as it was well documented in the medical literature that maintaining normal activity as much as possible, despite pain, leads to a much improved prognosis. However, he was “not going to upset the plaintiff’s apple cart too much at that point in time”. Rather, he had merely urged her to continue on with an active walking program and pottering around the house. He noted he would catch up with the plaintiff in mid April when hopefully this was all over and that would just be before the plaintiff heads off to the States to visit her daughter who was about to have a child.
Medico-legal evidence
256 The plaintiff was examined by Dr Senadipathy, psychiatrist, in 2010 and 2013.
257 The plaintiff told him of marital problems in 2001, after which she left her husband and he asked her to leave her job. In about 2006, the plaintiff then had another relationship with an abusive man, whom she left after three months.
258 Dr Senadipathy noted the plaintiff had been taking anti depressant medication for ten years, beginning at the time of marital problems.
259 Initial mental state examination did not reveal any significant features of depression or any other mental illness. Dr Senadipathy thought the plaintiff’s presentation did not demonstrate any significant discomfort or distress, noting that she did not describe being anxious or depressed, but when she thought about everything that happened she got angry. He noted that despite her physical disability, the plaintiff seemed to have a reasonably active social life that included fortnightly rock ’n’ roll dancing.
260 Dr Senadipathy thought it possible that multiple psycho social factors the plaintiff had gone through in the last ten years were having an impact on the manifestation of her pain and disability. He considered there was high possibility of the need to maintain an income stream and her dependency on her former husband and his family influencing the manifestation of pain and impairment.
261 Dr Senadipathy described the plaintiff’s chronic emotional problems as being unrelated to work and that constitutional and psycho social issues had dominated the complicated life she had had in the last ten years.
262 In his view, if there was any incapacity, it was limited to physical factors only and from a mental health point of view it was good for the plaintiff to be in stable employment. He thought she had a current work capacity and the identified vocational options of September 2009 were suitable.
263 Dr Senadipathy thought the plaintiff’s mental condition was stabilised. Nevertheless, she would continue to fluctuate depending on psycho social stress that she would have to face in the future. As for the prognosis of chronic pain, he believed there was likelihood of improvement once the plaintiff was totally out of the WorkCover process and self management was encouraged. He noted the plaintiff’s mental health problems would need a different approach and that contributing factors were multiple and the plaintiff needed to find a happy medium.
264 In his view other relevant factors unrelated to employment and would influence personality included ; traumatised childhood, socioeconomic factors, limited education, limited English literacy skills, marriage failure and consequences on her personal wellbeing resulting from mid life distractions followed by a long period of unhappiness that still continues.
265 On re examination in August 2013, the plaintiff described her mood to be angry and sad. She appeared unhappy and anxious but relaxed as the interview progressed. Her mood was mildly anxious and her affect was reactive and congruent.
266 Dr Senadipathy noted that apart from the plaintiff’s preoccupation with the WorkCover matters, there was no evidence of abnormal thinking. She impressed him as woman of average intelligence and normal cognitive functions.
267 Dr Senadipathy concluded that apart from unhappiness that had evolved over a period of time from life events with unfavourable consequences, there was no evidence of a current mental illness. He thought there was no doubt the plaintiff was chronically unhappy from the outcome of life choices she had made and accumulation of financial and other psycho social consequences.
268 Dr Senadipathy had available Dr Jensen’s letter to Dr Hampton noting the plaintiff being worried about video surveillance that might catch her out and jeopardise a favourable legal outcome. He also noted Dr Jensen’s January 2013 report.
269 Dr Senadipathy thought there was deliberate avoidance of activities until the legal matters are finalised.
270 Dr Senadipathy did not believe the plaintiff was suffering from any psychiatric injuries as a result of the alleged incident at work. In his opinion, she was fit for the jobs previously identified. Apart from unhappiness, he did not believe the plaintiff was suffering from clinical depression or any other mental illness and in the absence of a mental illness he expected her to continue normal activities once legal matters had finalised.
271 In his view, there was no indication the continuation of anti depressant medication, however, considering the long term use, gradual withdrawal was recommended. Similarly, he expected the plaintiff to be able to self manage the pain unless there was a justifiable organic pathology.
Vocational evidence
272 There was 130 week vocational assessment report varied out by the Rehab Factor on 15 September 2009.
273 Identified suitable employment options were process worker, factory worker, factory hand assembler, customer service shopping centre information centre, retail assistant (delicatessen, novelty store).
Overview
274 It is not disputed that the plaintiff suffered a compensable injury to her neck in the incident and later experienced referred pain to the left shoulder. She received weekly payments and medical treatment was funded for some time.
Credit
275 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[8]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[8](2010) 31 VR 1 at paragraph 12
276 Counsel for the defendant submitted the plaintiff’s evidence was unsatisfactory citing what were described as her “false answers” in respect of the history to Dr Jensen of her fear of being “caught out” and avoiding activities which would jeopardise the outcome of her case.
277 Whilst this history was challenged by counsel for the defendant and Dr Jensen was not cross examined, the plaintiff conceded she avoided doing things because she was concerned if she was caught out it would jeopardise her case, but added she also avoided doing things as she always felt worse when she did so.
278 Further, counsel for the defendant submitted there was a significant contrast between the plaintiff’s viva voce and affidavit evidence and the level of left arm activity on film with the plaintiff being shown using her left arm to a far greater extent than she had described.[9]
[9]T88
279 In response, counsel for the plaintiff submitted the film was overwhelmingly supportive of the plaintiff’s case that she no longer uses her upper left limb because it is severely disabled by her chronic pain syndrome noting that she went numerous times to and fro while putting the shopping into the boot.
280 Whilst I indicated that the film was somewhat helpful to the plaintiff, upon further reflection and consideration of the evidence as a whole, in my view, the plaintiff’s level of left arm movement shown on film was significantly greater than that demonstrated by her on examination earlier this year by Dr Jensen, Dr Blombery and Mr Nye when her arm was almost immobile. Further the movement, particularly on one occasion fully extending her left arm to open the boot of her car, was much greater than that demonstrated by her in the witness box.
281 When examined by Mr Khan in October 2010, the plaintiff kept her left arm tucked in front of her lap and kept rubbing it with her right hand.
282 On a number of occasions, examiners, including treater Dr Jensen, have found inconsistencies between the plaintiff’s presentation on formal examination and when later casually observed.
283 At times she has presented to doctors with very widespread symptoms. In 2009, Dr Karna found a collapsing type weakness of the left upper arm.
284 I found the plaintiff somewhat exaggerated the extent of her pain and disability describing it often as 10 out of 10 in circumstances where there was no organic basis for this significant level of complaint. I accept she has developed a pain syndrome in which she considers her impairment is significant.
285 When the plaintiff gave evidence, I considered that she was able to concentrate and answer questions easily and sensibly and even at times, anticipate what might be asked and the reason for that question.
286 Taking into account these factors, I do not accept the plaintiff is a reliable witness as to her level of pain and restriction.
Physical impairment – clause (a)
287 I accept that initially the plaintiff’s condition had a significant organic basis. She underwent a range of procedures performed by Dr Lovell and Dr Mitchell, the last having taken place in 2009. Some of these procedures resulted in limited improvement however the plaintiff was no longer prepared to undergo further procedures as she found them too painful.
288 The plaintiff was then referred to Dr Jensen who took over her care in conjunction with her general practitioner, Dr Hammond.
289 Dr Jensen, as the plaintiff’s treating specialist for the last four years is a particularly important witness in terms of his area of expertise – musculo skeletal physician - and is best placed to comment on the contribution of any organic factors to the plaintiff’s current condition.
290 On his most recent examination of the plaintiff earlier this year during which the plaintiff constantly grimaced and rubbed her left upper limb, Dr Jensen considered that non organic and psycho social factors rather than physical factors were the major part of her presentation and those factors had significantly escalated recently. He considered the consequences of this injury upon the plaintiff severely compromised her capacity for employment and her capability of completing and taking part in activities of daily living.
291 Dr Jensen most recently reported he could only conclude that it is now his opinion that the non organic psychological causes form the basis of the major proportion of the plaintiff’s current pain experience and that the organic physical causes now form very much the minor proportion.
292 Earlier treaters Dr Mitchell and Dr Lovell thought there was a significant injury to the plaintiff’s neck. However Dr Lovell has not seen the plaintiff since 2007 and the plaintiff last saw Dr Mitchell in July 2009.
293 Mr Nye, who has examined the plaintiff on three occasions, most recently in 2013, was firmly of the view she had developed a Chronic Pain Syndrome which, from his perspective, did not have an organic explanation.
294 In October 20120, Mr Khan considered the plaintiff had sustained a severe soft tissue and musculoskeletal injury which had resulted in diffuse unremitting pain disorder. He did not consider the plaintiff had the diagnostic criteria of CRPS 1.
295 Whilst Dr Stockman diagnosed a complex regional pain syndrome, this finding was not based on observed symptomatology but reported symptoms.
296 Dr Karna thought the plaintiff did not have a capacity for work on the basis of cervical facet joint pain and a CRPS.
297 In 2010, Mr Klug thought following a soft tissue injury, the plaintiff had later developed a chronic pain syndrome and a psychological disorder.
298 Dr Blombery was alone in his view that the plaintiff’s condition was totally organically based with sensitisation of pain nerve pathways complicating soft tissue injuries. On recent examination found no definite component of CRPS present.
299 Dr Hampton considered there would be a progressive decline in the soft tissue injury and that the psychological damage would be permanent. He commented, in somewhat dramatic terms, that pain is the plaintiff’s constant and unrelenting companion. Whilst he thought the plaintiff’s condition is predominantly organic - 70/30, this was a guess.
300 In my view, the plaintiff’s present condition is mostly non-organically based. In these circumstances, I readily accept the submission by counsel for the plaintiff that if the scales were being tilted, the tilt was in favour of the non organic factors.[10]
[10]T113
301 In Meadows v Lichmore Pty Ltd,[11] Maxwell P set out the two-step manner in which the task in the present case ought be approached:
“… The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative — and, of course, if the pain and suffering consequences satisfy the statutory criterion — then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.
If, however, that first question is not — or cannot be — answered affirmatively, then the applicant will need to take the next step and ‘disentangle’. That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.”
[11][2013] VSCA 201at paragraphs 21-22
302 Taking into account all the evidence, I am not satisfied the plaintiff’s condition has a significant organic basis at the date of hearing. In such circumstances, I am not required to undertake the next step and “disentangle” and I am not required to undertake any further analysis of the consequences of any physical impairment pursuant to clause (a) in so far as they relate to pain and suffering and loss of earning capacity.
Psychiatric impairment – clause (c)
303 In the alternative, it was submitted on the plaintiff’s behalf that the plaintiff is suffering from a severe psychiatric or behavioural disturbance or disorder.
304 Counsel relied on Ashley JA’ s judgment in Veljanovska, arguing that there was a sufficient casual link between the initial compensable injury and a chronic pain disorder that met the severe criteria of a claim under clause (c).
305 Whilst I accept there is the requisite causal link, I am not satisfied that the psychiatric consequences are severe for the following reasons.
306 Whilst the plaintiff continues to be prescribed Aropax, at times before the incident, her level of Aropax intake was in fact greater than her current dosage. The plaintiff accepted a worsening of her condition with the change to Lexapro in 2007 and the doubling of that dosage at that time.
307 Counsel for the plaintiff relied on Dodds-Streeton JA’s comment in Kelso that the endurance of permanent daily pain requiring frequent medication must, according to ordinary human experience, raise the real prospect of a very considerable consequence.
308 However as counsel for the defendant submitted Her Honour’s comments related to an organic impairment, not a claim pursuant to clause (c).
309 The plaintiff has required limited treatment since the incident, undergoing counselling with Ms Safron for two years from 2010 and six sessions last year. There is no report post 2010 from Ms Safron.
310 The plaintiff’s general practitioner has not found it necessary to refer her for specialist psychiatric treatment.
311 Most medico-legal psychiatrists who have examined the plaintiff considered she suffered from an Adjustment Disorder with Depressed Mood. Dr Senadipathy is alone in his view that the plaintiff does not have a diagnosable mental illness.
312 In 2010, the Medical Panel diagnosed a Chronic Adjustment Disorder depressed mood, and found that the plaintiff had no present inability to return to her pre injury employment arising from an injury.
313 Dr Kaplan in 2010 diagnosed an Adjustment Disorder with Depressed Mood. He thought the plaintiff’s psychiatric condition, and in particular her loss of self esteem and memory impairment, was likely to have an impact on her capacity to engage in her pre injury duties or suitable employment. However, that capacity would be largely determined by her physical condition.
314 In 2010, Dr Rose noted that the plaintiff was not working and given that she was on a disability pension, he thought the prospects of her returning to work are not good. He did not comment further on the level of any psychiatrically based incapacity for employment.
315 Dr Epstein, who saw the plaintiff most recently in May this year, attributed 70 per cent of the plaintiff’s current condition to psychiatric factors and the balance to organic factors, diagnosing a Chronic Adjustment Disorder with Depressed Mood in line with Dr Kaplan. He thought that the spreading of pain suggested the development of Chronic Pain Disorder, both psychological factors and a general medical condition.
316 Dr Epstein made no comment on the plaintiff’s capacity for employment from a psychiatric viewpoint, noting her prognosis depended on what happened with her physical injury
317 There is therefore no psychiatric support for any significant psychiatric incapacity such that the plaintiff could establish an interference with her employment capacity that would result in a permanent loss of 40% loss of earning capacity as required by the Act.
318 Whilst the plaintiff’s complaints of severe and unremitting pain are principally non-organically based, or of a psychosocial nature, as Dr Jensen described, there is no evidence that a psychiatric condition which could be described as “severe” in terms of the test in Mobilio[12] is responsible for such complaints.
[12]Supra
319 Taking into account all the evidence, I am not satisfied that the plaintiff has a severe psychiatric impairment and, accordingly, her application is dismissed in relation to both pain and suffering and loss of earning capacity.
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