Sabanovic v Atco Controls Pty Ltd
[2009] VSCA 143
•18 June 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 3773 of 2007
| BLAZENKA SABANOVIC | |
| Appellant | |
| v | |
| ATCO CONTROLS PTY LTD | Respondent |
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JUDGES: | WARREN CJ and DODDS-STREETON JA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 17 April 2009 | |
DATE OF JUDGMENT: | 18 June 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 143 | |
JUDGMENT APPEALED FROM: | [2007] VCC 1661 (Judge Dove) | |
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ACCIDENT COMPENSATION – Application for leave to recover damages for pain and suffering and loss of earning capacity pursuant to s 134AB(16)(b) Accident Compensation Act 1985 – Conflicting expert medical opinion – Whether appellant had bilateral carpal tunnel syndrome – Whether pain and suffering consequences very considerable – Whether loss of earning capacity to requisite degree attributable to organic injury – Relevance of non-organic injury – Relevance of appellant’s credit when assessing consequences – Whether credit impaired by video surveillance footage and exaggerated presentation to doctors – Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J Kennan SC Mr A D B Ingram | Clark and Toop |
| For the Respondent | Mr J Ruskin QC Mr J P Gorton | Thomson Playford Cutlers |
WARREN CJ
DODDS-STREETON JA:
The appellant, Blazenka Sabanovic, appeals pursuant to s 74 of the County Court Act 1958 as affected by ss 134AC and 134AD of the Accident Compensation Act 1985 (‘the Act’) from the judgment of a judge of the County Court given on 29 November 2007.
The appellant applied below pursuant to s 134AB(16)(b) of the Act for leave to commence proceedings for damages for pain and suffering and loss of earning capacity for, as provided by s 134AB(19)(a), a serious injury within the meaning of paragraph (a) of the definition in s 134AB(37) of the Act, allegedly sustained to her hands, wrists, arms, shoulders and aggravated in the neck during the course of her employment with the respondent, ATCO Controls Pty Ltd (ATCO), between 20 October 1999 and 11 September 2001.
The primary judge dismissed the application. He also ordered the appellant to pay the respondent’s costs of the proceeding.
Grounds of Appeal
The appellant appealed on the following grounds:
1. The learned trial Judge was in error in that he failed to give sufficient weight to the findings of nerve conduction studies.
2. The learned trial Judge was in error in that he failed to give sufficient weight to medical opinions based upon the findings of such nerve conduction studies.
3. The reasons for judgment are inadequate in that they failed to analyse the Appellant’s physical condition by reference to the diagnostic tests performed and the opinions based upon those tests.
4. The learned trial Judge placed excessive weight upon his observation of the video film of the Appellant in circumstances where there was no medical evidence that the activities there demonstrated were inconsistent with the organic injury demonstrated to have been suffered by the Appellant.
5. The reasons for judgment are inadequate in that they failed to deal adequately or at all with the Appellant’s claim for loss of earning capacity.
6. The learned trial Judge failed to give any or any sufficient weight to the evidence of medical practitioners who said that the Appellant could not resume her pre-injury employment by reasons of her compensable injury.
The evidence below
Before the primary judge, the evidence consisted of:
(a) two affidavits of the appellant sworn 8 August 2005 (‘first affidavit’) and 10 October 2007 (‘second affidavit’);
(b) the appellant’s viva voce evidence, including her cross-examination;
(c) a large number of medical and reports and test results from medical practitioners, including the appellant’s treating general practitioner, orthopaedic surgeon and psychologist. They were as follows:
Reports tendered on behalf of the appellant
1. Reports of Dr Horvat dated 11 October 2001, 26 February 2003, 31 May 2003, 13 November 2003, 10 November 2004, 22 June 2005, 28 December 2006 and 20 June 2007.
2. Report of Dr Freilich dated 14 January 2003.
3. Reports of Mr Salmon dated 19 September 2002, 7 September 2005 and 2 August 2007.
4. Report of Mr Jensen dated 5 March 2004
5. Reports of Mr Brearley dated 27 May 2004, 16 November 2004, 22 April 2005, 12 December 2006 and 4 May 2007.
6. Reports of Dr Harkness dated 27 September 2005, 20 November 2006 and 1 May 2007.
7. Report of Dr Courtney dated 19 March 2003.
8. Report of Ms Roglic dated 17 March 2007.
Reports tendered on behalf of the respondent
1. Report of Mr Behan dated 22 January 2003.
2. Report of Mr Carey dated 24 February 2005.
3. Report of Mr Nye dated 7 February 2006.
4. Report of Dr Marshall dated 2 February 2006.
5. Report of Associate Professor Balla dated 18 September 2007.
(d)Video footage was tendered on behalf of the respondent, depicting the appellant’s activities on the following dates:
1. 20 January 2007
2. 29 January 2007
3. 1 March 2007
4. 26 April 2007
5. 27 April 2007
6. 1 May 2007
7. 18 September 2007
8. 19 September 2007
The expert witnesses were not called to give oral evidence. They were not cross-examined on the content of their reports or on the video evidence of the appellant’s activities.
Appellant’s evidence
The appellant swore two affidavits on 8 August 2005 and 10 October 2007 in support of her application. She also gave evidence at trial and was cross-examined.
The appellant deposed that she was born in Croatia on 13 January 1958. She was educated to year 8 level and was subsequently trained in bookkeeping, working in that capacity until she emigrated to Australia in 1995.
The appellant’s English was and has remained poor. On arrival in Australia in 1995, she commenced employment with the respondent. Her job was to assemble transformers, which were already partly assembled. The job involved repetitive, rapid work using both hands, but particularly her right hand. She used her right hand to cut wires on the transformer and to clean the wire ends with a cleaning tool which was activated by pressing a button and holding it down. The appellant felt vibrations in her hand and fingers. She then used a power screw driver to attach screws to the transformer which also caused her to feel vibrations in her hand and fingers. She pushed the wires home with a small hammer using a moderate to high degree of pressure and placed the wires into position with her fingers. Holding the wires in her right hand, she used a screwdriver with her left hand to screw additional wires onto the transformer. She then attached covers to the transformer, tested it and (if it were satisfactory) placed it on a trolley. The appellant assembled both large and small transformers, completing about 700-800 small transformers per day and half that number if the transformers were large. There was no rotation of duties.
In early 2001 (approximately six years after commencing her employment with the respondent), the appellant began to experience pain, numbness and pins and needles in her wrist and hand (mainly on the right side), particularly at night. She also had some discomfort in her shoulders and neck, but continued to work until the symptoms worsened.
On 11 September 2001, while assembling larger transformers, the appellant felt more severe pain in her hands, wrists and arms. It was worse on the right side, where her hand and wrist became swollen. She reported her symptoms and showed her swollen right hand to her supervisor. On that same day, after completing her shift, she consulted her general practitioner, Dr Horvat.
The appellant never resumed her employment after 11 September 2001. Dr Horvat initially advised rest, but the appellant’s symptoms did not abate. In early October 2001, following nerve conduction tests performed on the appellant’s hands, wrists and arms by Dr Freilich, bilateral carpal tunnel syndrome was diagnosed. Surgery to both wrists one month apart was advised. On 19 February 2002, Mr Salmon, an orthopaedic surgeon, operated on the appellant’s right wrist, but she experienced no improvement in the pain, numbness and pins and needles in her right wrist and hand; indeed, she began to experience more discomfort in her right arm extending to her shoulders and neck. She therefore declined surgery to the left wrist.
The appellant deposed that when her pain became worse in 2002, and in July 2002 she was referred to Dr Courtney for pain management. She also became depressed in 2002 and was prescribed Aropax, Lovan and Vioxx.
The appellant had another nerve conduction test performed by Dr Freilich in September 2002. She was told that it showed a normal right wrist, but carpal tunnel syndrome in the left wrist. As her symptoms persisted, a third nerve test was performed by Dr Freilich on 31 March 2003. She was told that the third test showed no improvement in her right wrist when compared with the test performed before the operation.
The appellant deposed that during 2004, the same symptoms persisted in her hands, wrists, arms, shoulder and neck, mainly on the right side. She had MRI scans in 2004.
In her first affidavit, the appellant described her present condition thus:
I continue to suffer from pain, numbness and pins and needles in my hands, and in particular in my right hand. I have pain in my arms and shoulders, and in my neck. Movement of my neck and shoulders is painful. My right hand in particular feels weak, and I often drop things I am carrying in my right hand. I try to avoid using my right hand and arm, although I am right hand dominate [sic].
I have difficulty sleeping because of pain, especially if I roll onto my right side. I also have great difficulty washing and drying my hair. I have great difficulty performing normal household tasks. I can only perform very light tasks, and have to rely upon my partner to perform cleaning, vacuuming, mopping and sweeping. I try to do some light cleaning and cooking. I cannot do gardening, and in particular I cannot now grow orchids, an activity which I had previously enjoyed greatly.
I can drive locally in an automatic car, but cannot drive long distances. I avoid driving as much as possible.
I continue to take Lovan and Mobic (in place of Vioxx). I also take Stillnox. I am depressed because of my condition, and I constantly worry about the future. I am upset that I cannot work. I feel bored and frustrated because I am at home all day. However, I do not feel like going out, as I do not now enjoy social activities because of my pain and discomfort.[1]
[1]Affidavit of Blazenka Sabanovic, sworn 8 August 2005, [25]-[28].
The appellant deposed that she did not believe that she could return to her former work or any work requiring the use of her hands and arms.
In her second affidavit, the appellant deposed that she suffered from ‘constant but variable levels of pain in my arms, shoulders and neck. I continue to suffer from numbness and pain in my wrists and hands, particularly on the right side. I continue to suffer a chronic loss of strength and function in the parts of my body to which I have referred’.[2]
[2]Affidavit of Blazenka Sabanovic, sworn 10 October 2007, [3].
The appellant further stated:
I have not worked since my employment was ceased in September 2001. I continue to be certified as totally incapacitated for work and I continue to receive compensation payments which are presently paid at a rate of $407.00 per week. I do not believe that I am capable of returning to any form of employment at the present and doubt that I would be able to work again in the future. I find that if I undertake tasks involving the use of my upper limb and [sic] that only causes an increase in the levels of symptoms which I suffer. My vocational skills are limited to work involving the use of my upper limbs and I also have significant linguistic restrictions which would affect my capacity to work.
In terms of ongoing symptoms, I refer to the pain which I continue to suffer and the loss of strength and function throughout my upper limbs, shoulders and neck. I continue to have problems with sleeping, and hence the use of medication as [sic] required. I continue to have difficulty with even small tasks of personal hygiene such as washing and drying my hair. Around the house I continue to limit myself to light tasks and avoid heavier aspects such as vacuuming, mopping or sweeping. It remains the case that my ability to undertake tasks around the garden is very greatly limited and I find that if I do anything out in the garden then I attend [sic] to pay for it the following day. As I indicated in my earlier Affidavit, I used to greatly enjoy growing orchards [sic] but my plants have now gradually withered away and I have little of my orchard [sic] stock left compared to what I used to have when I was able to maintain them properly. I continue to limit my driving because of the pain which it causes. I have found that the best way of dealing with my injuries is simply to avoid performing tasks which are liable to place strain upon the parts of my body to which I have referred, and thus have considerable restrictions upon many of my daily activities on an ongoing basis.[3]
[3]Ibid, [4]-[5].
Before the primary judge, the appellant testified that she felt pain when she turned her neck from side to side. She acknowledged that she could move her neck virtually normally, but not without pain. She reiterated: ‘In my everyday duties, it is required that I move my neck in normal living, but there’s always pain involved.’
When cross-examined about her consultation with Mr Brearley, a surgeon, in December 2006, the appellant stated that she turned her neck fully in all required directions, but ‘it was all accompanied with pain’.
The appellant was cross-examined about her consultation with Mr Carey, an orthopaedic surgeon, who examined her neck and noted that when formally examined, she showed pain and restricted movement, but when distracted, she could move her neck in a greater and less restricted way. It was put to the appellant that ‘you exaggerated your neck problems deliberately to Mr Carey didn’t you?’ She responded: ‘I respect the opinion of the said doctor, but my neck movements have been accompanied with pain’.
The appellant was cross-examined about her consultation with Associate Professor John Balla, a neurologist, who observed that when formally examined, she had only a 50 per cent restriction in her neck movement but could move her neck freely while he was examining other parts of her body. The appellant stated ‘I respect the opinion of the said doctor, but I don’t really remember that’.
The appellant was cross-examined about her consultation with Mr Marshall, a surgeon, who noted that she was very reluctant to move her right hand or arm, but with encouragement, she had a normal range of movements in her upper arm. The appellant responded: ‘I would have mentioned to the said doctor that, yes, even though I may have been able to make those movements, it would have been accompanied with pain.’
The DVD Films
DVD: 14 September 2006
The appellant was filmed shopping with her partner, using her right arm freely to access her handbag and to examine clothes hanging from racks. She was shown stretching her right arm right up rapidly, apparently effortlessly and expansively to hold up clothes and sort through the racks. She used only her right hand. The appellant made a range of frequent, intricate movements with her fingers and hand. She reached up repeatedly to take hold of items from upper shelves. Her movements were rapid and repeated. They gave no indication that the appellant was suffering from any restriction, numbness or pain or feared a later consequence of pain from her movements.
The appellant was depicted leaving the clothes store swinging her right arm in a relaxed and rhythmic way.
DVD: 20 January 2007
The appellant was filmed walking to a fruit shop where she filled plastic bags with vegetables or fruit while clasping each bag and displaying intricate hand and finger movements, sorting, squeezing, pressing and fingering fruit rapidly. She used only her right hand. She sorted rapidly through the vegetables on display. She filled bags full of produce and deposited them.
The appellant made no attempt to use her left hand to pick up and convey the fruit to the bags. She left the fruit store holding keys in her right hand. She returned to her car, stretched out her right hand to open the car boot, closed it, combed her hair with her fingers and opened the car door moving her right arm up and repeatedly extending it high and wide. She waved her right arm, moved the fingers of her right hand and raised her arm to smoke a cigarette. She placed her right hand on her waist with her right arm bent while holding a cigarette in her left hand and carrying it back and forth to smoke. She stretched her left arm down in an athletic gesture, moved her right arm, used her right arm to open the car door and got into the driver’s seat.
DVD: 11 March 2007
The appellant was filmed shopping alone in a food hall. She went outside. She carried a shopping bag over her left arm. She returned to her car and went back to the shopping hall. She returned to the car, turned the key in the lock, opened the car door and re-shut it without apparent effort. She carried several heavy bags to the car in her left hand and loaded them into the car.
She entered a supermarket carrying a bag over her left shoulder. She left the supermarket carrying a large bag full of produce in each hand, with her own bag slung over her shoulder. Holding both produce bags in her left hand, she used her right hand to unlock the car.
The applicant then walked down the street carrying her full carry-all bag in her left hand, apparently effortlessly. She transferred the bag to her right hand, carried it for a while, lifted it up and transferred it back to the other hand.
DVD: 26 April 2007
The appellant was filmed in a delicatessen shop. She took money from her purse, moving her fingers intricately. From over a high counter she was handed a full bag of products. She reached out for it unhesitantly with her right hand extended above shoulder height and lifted the bag from the counter. She did not attempt to support it with her left hand or arm. Her facial expression revealed no discomfort at the action of reaching her arm high and extending it to carry a heavy bag.
The appellant then went to a produce store, pulled plastic bags from a reel, opened them using her right hand and used a scoop vigorously with the right hand to fill the bag with nuts.
She carried a basket in both hands and opened a refrigerator door with her left hand while holding a semi-filled basket in her right hand with apparent ease. She waited at a check out point holding the basket in her right hand and walked out holding a full bag in her left hand, which she retained while opening the car door with her right hand.
DVD: 27 April 2007
In a gambling establishment, the appellant sat using her right hand to work or manipulate a poker machine.
She then went to her car carrying her bag in her left hand, opened the car door and pulled it shut with her right hand, driving off turning her steering wheel hard.
DVD: 1 May 2007
The appellant was filmed standing in a queue. She then returned to her car, using her right hand to open the door which she then pulled shut.
DVD: 18 September 2007
The appellant was waiting in a street while cars were going by. Her partner joined her and they walked together. She was then shown alighting from a car with a bag over her left shoulder.
The couple walked to a clothing store. The appellant selected items from racks of clothes, rotating the items and raising some of them high with her right hand to examine them while holding multiple items in her left hand. Then she held a large bundle of clothes in her right hand and lifted clothes with her left hand. While trying on a scarf, she lifted it over her head with her right arm.
The appellant reached out to examine clothes, extending her left arm full length and holding items up well above shoulder height with her left arm. She lifted the items high above shoulder height with both arms with apparent ease.
The appellant was cross-examined about the videos as follows:
Did we see you walking around, looking at clothes, moving your neck and moving your arms? --- Yes.
Were you in a lot of pain that day as you were walking around and moving your arms and neck? Were you in a lot of pain? --- I don’t remember the pain that I may have had on that day. However, I’m not a cripple. I do move around.
To some of the doctors you’ve had trouble moving your right arm, and yet we saw you moving your arm up above your shoulder, didn’t we? --- I, indeed, lift my right arm at home when I’m, for example, taking a shower, et cetera, but I’m the one who knows the pain I feel and I do feel pain.
What about the movement of your neck; your neck moved perfectly well in that film, didn’t it? --- Yes, I did move my neck in that film. I can move my neck even now, but I feel pain when I do so.
In re-examination, the appellant stated that she had pressed the poker machine button with both hands, and that it required no force.
Medical Evidence
The nerve conduction tests:
Three nerve conduction tests were performed by Dr Freilich, who reported as follows:
10 October 2001
The findings are those of bilateral carpal tunnel syndrome.
30 August 2002
1. On the right side (post-operative) median nerve conduction at the wrist is normal.
2. On the left side (no surgery) there is still evidence of carpal tunnel syndrome although the changes are milder than in the test of 10.10.2001.
31 March 2003
1. On the right side there has been no improvement in median nerve conduction as compared with the pre-operative test. This suggests persisting median nerve compression at the wrist.
2. On the left side (no surgery) the findings are again those of carpal tunnel syndrome
Dr Horvat
Dr J Horvat, the appellant’s general practitioner, wrote eight reports on the appellant dated: 11 October 2001, 26 February 2003, 31 May 2003, 13 November 2003, 10 November 2004, 22 June 2005, 28 December 2006 and 20 June 2007.
In his reports, Dr Horvat set out the background to, and progressively updated the details of, the appellant’s condition, and the results of tests and treatments, both by himself and specialists to whom she was referred.
In his first report dated 11 October 2001, (about a month after the appellant ceased work) Dr Horvat described the appellant’s presentation on 11 September 2001. He believed that she had ‘sustained a bilateral carpal tunnel syndrome and a right extensor carpi ulnaris tendinitis’ as a direct result of her very repetitive and constant work for the respondent. Dr Horvat believed that the appellant was currently incapable of performing her pre-injury employment but the situation would be reviewed in the future. He noted that nerve conduction tests had confirmed carpal tunnel syndrome and he had referred the appellant to an orthopaedic surgeon for a carpal tunnel release.
In his report dated 26 February 2003, Dr Horvat referred to the right carpal tunnel release performed in February 2002, the appellant’s development of significant anxiety and depression and her continuing complaints of discomfort. He noted the appellant’s referral to Dr Courtney, the results of her second nerve conduction tests and her ongoing pain.
Dr Horvat stated that he believed the appellant ‘s prognosis for full recovery was poor, as although he would have expected marked improvement, her recovery was complicated by a significant regional pain or fibromyalgia type syndrome.
In his report dated 31 May 2003, Dr Horvat referred to the third nerve conduction study on 31 March 2003 which showed that there was no right side improvement as compared with the preoperative test, suggesting persisting median nerve compression at the wrist and findings of carpal tunnel syndrome on the left side. The ultrasound and x-ray of the appellant’s right wrist were normal. Dr Horvat considered that the appellant may have had an element of frozen shoulder due to lack of function in her upper right limb.
Dr Horvat stated that the appellant’s right and left hands continued to be weak and that she maintained that ‘she has difficulty holding objects and frequently drops things.’
Dr Horvat considered that the appellant was currently unemployable with ‘persistent right carpal tunnel and left carpal tunnel syndrome and a significant anxiety depressive illness, with associated fibromyalgia/regional pain syndrome … ‘
In his report dated 13 November 2003, Dr Horvat reiterated that the appellant ‘still had significant ongoing symptoms of bilateral carpal tunnel syndrome and regional pain syndrome’.
In his report dated 10 November 2004, Dr Horvat stated that the appellant had ongoing right and left carpal tunnel syndromes and reactive depression, having developed ‘a depressive illness with significant anxiety symptoms as a consequence of the chronic ill health related to her injury’.
In his report dated 22 June 2005, Dr Horvat stated that the appellant’s bilateral carpal tunnel syndrome was ‘severe’, as it has significantly impaired her ability to effectively use her upper limb [sic] in any effective matter’. Her ongoing upper limb pain was attributed to bilateral shoulder bursitis, and the combined conditions resulted in significant regional pain syndrome.
Dr Horvat stated that the appellant was:
Severely restricted in her ability to perform the day-to-day functions at home or in the work place. She is troubled by daily pain and suffers from an inability to use her upper limbs effectively. She alleges she repeatedly drops things and lacks power in her upper limbs.
Dr Horvat observed that depression was also a significant factor which had been secondary to the appellant’s ongoing physical incapacity and work related injuries.
In his report dated 28 December 2006, Dr Horvat reiterated a diagnosis of bilateral carpal tunnel syndrome, bilateral shoulder bursitis and significant regional pain syndrome. Dr Horvat stated that the appellant had chronic and persistent pain and was increasingly depressed with sleep disturbance. He also referred to a bone scan which revealed inflammatory changes likely to be due to inflammation of the os acromiale.
In his report dated 20 June 2007, Dr Horvat stated that the appellant was suffering from extensive injuries to her upper limbs, including bilateral carpal tunnel syndrome, a right extensor carpi ulnaris tendonitis (which had settled), bilateral subacromial bursal inflammation, and bilaterally inflamed os acromiale. An MRI had also revealed some degenerative disc changes. Dr Horvat stated:
Clearly all these findings have an organic basis and I believe are related to her employment at ATCO Controls. Regional pain syndrome has developed as a consequence of ongoing shoulder girdle and upper limb pain. It is my belief that the pain is real and it has an organic cause. Clearly due to ongoing pain, [the appellant] has developed a reactive depression.
Dr Horvat reiterated:
It is my belief that [the appellant] has developed pain and suffering purely from organic causes.
Mr Salmon
Mr Salmon, the appellant’s treating orthopaedic surgeon, prepared three reports dated 19 September 2002, 7 September 2005 and 2 August 2007.
In his first report, Mr Salmon stated that the had first seen the appellant on 15 November 2001 on referral by Dr Horvat.
Mr Salmon referred to the appellant’s complaints of numbness, difficulty in holding things and loss of motor skills, with the right hand worse. He stated that on examination, the appellant had altered sensation to light touch on her right index finger and ‘nerve conduction studies had been performed, which demonstrated bilateral carpal tunnel syndrome’.
Mr Salmon therefore recommended bilateral carpal tunnel release operations to be performed one month apart. He performed a right carpal tunnel release on 19 February 2002. He described his reviews of the appellant following the surgery. He stated that on 10 April 2002, she was quite concerned by pain in the lateral aspect of her neck, upper arms and forearms, which was diagnosed as fibromyalgia.
At his review of the appellant on 11 June 2002, Mr Salmon considered that she had developed a chronic pain syndrome affecting her right arm. He therefore referred her to Dr Courtney for management.
Mr Salmon diagnosed the appellant as having bilateral carpal tunnel syndrome, which was worse on the right side. He considered that she would currently be unable to perform her job (which required multiple repetitive action), and would have difficulty performing any form of employment. Mr Salmon stated: ‘She still has her carpal tunnel syndrome on the left side and has a chronic regional pain syndrome affecting her right side’. Thus, in his view, after the operation, the appellant had chronic pain syndrome on her right side and carpal tunnel syndrome on the left side.
In his report dated 7 September 2005, Mr Salmon restated that he had referred the appellant to Dr Courtney for management of her chronic pain syndrome. Dr Courtney had performed several nerve blocks, which had proved unsuccessful. As at 12 May 2003, the appellant’s condition remained essentially unchanged.
Mr Salmon described his further review of the appellant on 14 July 2005. The appellant had had no further surgery or interventions at that time and:
The major problems that she describes are discomfort in the hand and neck on the right side. This is a generalised discomfort and no one site is worse than another. She says the pain is fairly constant. It is worse at night. She has difficulties performing housework and cooking. She is still under the treatment of Dr Horvat, who has been prescribing medication in the forms of Mobic (an anti-inflammatory agent) and occasional, Panadeine Forte (an analgesic).
She describes tearfulness and she says that she started seeing a psychologist last year but that she finds this not particularly helpful.
On examination, she had slight restriction of lateral flexion of the cervical spine, forward elevation of the right shoulder was 140°. There was some tenderness of the superior shoulder muscles. Wrist range of motion was satisfactory with a well healed scar and no associated tenderness.
The report concluded: ‘The nature of the patient’s injuries was a bilateral carpal tunnel syndrome and she has now developed chronic regional pain syndrome.’
In his report dated 2 August 2007, Mr Salmon reiterated the appellant’s history. He stated: ‘Her major problem when I saw her most recently, was the chronic upper limb pain, which was not consistent with an organic nerve compression of the wrist and is not an organic condition generally.’ He also stated: ‘The specific diagnoses are of bilateral carpal tunnel syndrome and this is the organic condition. The non organic condition is a chronic pain syndrome.’
Mr Salmon continued: ‘Pain and suffering attributable to organic [sic] as the organic condition should be treatable by carpal tunnel release. In cases in which the medial nerve is not chronically injured, the symptoms should resolve. The nerve appeared normal and not atrophic at the time of the surgery and would have been expected to recover following the surgery. Long term function is generally satisfactory with the relief of pain and neurological symptoms in the hand. Ongoing symptoms can be some discomfort at the wrist with activities. The non organic condition, however, is one which can persist long term and is the predominant cause of her ongoing pain and suffering.’
Dr Courtney
In his report dated 19 March 2003, Dr Courtney, a specialist in anaesthesia and pain medicine, stated that when he examined the appellant on 18 July 2002 she showed a full range of movement in her shoulders and neck, but experienced pain. She reported less numbness in the fingers of her right hand since the release, but no diminution in pain. Her thumb was normal but the index to pin prick sensation was decreased from the index to little finger. Her right hand had decreased cold sensation and the index and middle right fingers were always subjectively numb.
Dr Courtney thought that a diagnosis of fibromyalgia was not justified. He considered that the appellant had a non-specific regional pain syndrome [but] [sic] did not appear to be sympathetically maintained. He felt that she was depressed. Repeat nerve conduction studies showed a normal right side and decreased evidence of carpal tunnel on the left side. On 25 September 2002, the appellant had complained of pain in her neck and numbness on the right side.
Mr Jensen
Mr Jensen, a neurosurgeon, in his letter to Dr Courtney dated 5 March 2004 stated that the appellant’s problem was intractable pain in the right upper limb which began as carpal tunnel syndrome a few years ago. He noted EMGs showing the median nerves under compression and ‘a regional pain syndrome affecting the right upper limb, which does not actually have features of a sympathetically mediated pain, but is rather the more generalised phenomenon one often sees in this process work context’. Mr Jensen considered that ‘the only way forward’ was to attempt further carpal tunnel surgery.
Mr Carey
Mr Carey, an orthopaedic surgeon, in his report dated 24 February 2005, stated that the appellant told him that following her surgery:
1.The pain extended the whole way up to her shoulder and her neck pain had worsened.
2.The pain was worse in the right upper limb.
3.Pins and needles symptoms affected her hands. They were present constantly in the right hand, but were worse at night.
4.There was a stabbing feeling at her finger tips, and a burning at the right wrist.
5.Pain extended over the whole right arm, extending to the shoulder and neck with pain and stiffness.
6.She felt pain on elevating her right arm.
7.Shoulder movement aggravated the right shoulder pain.
Mr Carey said that on examination, the appellant showed reduced flexion in the right shoulder and there was some (but less) reduction in the left shoulder, due to pain. There was restricted right wrist flexion, with pain. There was reduced flexion in the fingers of the right hand, although the movement of the fingers on both hands were full.
Mr Carey discussed the MRI of the appellant’s shoulders on 19 October 2004 which revealed, on the right shoulder, a minimal bursal effusion, thickening indicative of inflammation and os acromionale. On the left shoulder, a small bursal effusion and thickening and an os acromionale were revealed, but no other significant abnormality. The MRI indicated disc degeneration of the cervical spine.
Mr Carey concluded that the appellant had developed symptoms of bilateral carpal tunnel syndrome and had evidence of bursitis in both shoulders. He stated that: ‘the clinical presentation does appear to have been complicated by development of some form of chronic pain condition and non-organic factor.’
Dr Harkness
Dr Harkness, a rheumatologist, prepared three reports on the appellant dated 27 September 2005, 20 November 2006 and 1 May 2007. In his first report, Dr Harkness rehearsed the appellant’s account of her history and symptoms. He concluded that:
She has bilateral carpal tunnel syndrome, originally induced by tenosynovitis of the wrists.
Her employment was a significant contributing factor to the worker’s injuries. I believe that if she hadn’t done that work she would not have this injury.
The impairment is considerable as she has marked pain and numbness in the two hands from proven carpal tunnel syndrome and this impairment prevents her from earning her living by manual work and interferes greatly with ordinary household tasks as well as other activities of daily living.
She is unfit for any manual work at all, even a light job because of the failure of resolution of the problem with time and despite surgery. I suspect she will not be able to return to manual work. With persistence of such severe symptoms, I don’t think she is a good prospect for retraining or rehabilitation into any manual job.
She does not have the capacity for her pre-injury employment or other employment because this would need to be manual work and she is unfit for this. She had limited English as well. I therefore feel she does not have a realistic capacity for retraining or rehabilitation. In view of the failure of response in four years, the prognosis must be very guarded with an expectation that the problem will persist indefinitely.
In his second report dated 20 November 2006, Dr Harkness reiterated and updated his observations and concluded:
The physical substantiation over and above my clinical opinion and experience is that she has had EMG tests on her median nerves which confirm the ongoing presence of the carpal tunnel syndrome. She did not have the carpal tunnel syndrome before doing the work that she was doing but had it persistently since doing that work and I believe the work is responsible to the extent that if she hadn’t done that work, in my opinion, she would not have these symptoms today.
I also base my findings on the report of the local doctor, Dr Horvath [sic], who reported that when she first injured herself, he could see and feel swelling of the right wrist in a clinical picture strongly indicating tenosynovitis. Tenosynovitis constitutes swelling and inflammation of the tendon sheaths which, in my experience, is closely associated with increased pressure on the median nerve and dysfunction of the same nerve with pain and numbness. This is based on my clinical experience.
In his third report dated 1 May 2007, Dr Harkness stated that the appellant’s major problem was unresolved carpal tunnel syndrome which was ‘entirely organic’, and visible swelling of the wrist tendons noted by her local doctor which was also ‘purely organic’.
Dr Harkness recognised a non-organic functional overlay which was ‘an important functional aspect of [the appellant’s] injury’. He was not aware that the appellant exaggerated her symptoms and he thought that bilateral carpal syndrome was ‘the core of the problem’. He estimated that the original organic problem was ‘two thirds of the problem and the functional overlay [was] one-third’.
Mr Brearley
Mr Brearley, a surgeon, prepared five reports dated 27 May 2004 (‘first report’), 16 November 2004 (‘second report’), 22 April 2005 (‘third report’), 12 December 2006 (‘fourth report’) and 4 May 2007 (‘fifth report’).
In his first report, Mr Brearley diagnosed bilateral carpal tunnel syndrome, chronic pain syndrome, anxiety and depression. The appellant informed him that she had pain, with the main problem in the right arm and shoulder. Mr Brearley stated that the appellant reported that she had difficulty in grasping and holding objects and that the pain was constant in her right hand. She reported that she was able to use her left arm for most purposes but avoided using her right arm.
In his second report, Mr Brearley reiterated his earlier findings. He referred to the MRI showing degenerative spine changes compatible with age and mild changes of chronic subacromial bursitis on each side. Nevertheless, he stated:
It does appear that her organic symptoms have been overwhelmed by her psychological response and she does appear to have developed a chronic pain syndrome.
Mr Brearley stated that the appellant continued to complain of disabling pain in the neck and across the shoulders.
In his third report, Mr Brearley referred to the appellant’s account of pain, continuing sensation of pins and needles and continued ‘difficulty with holding objects in her right hand’, causing problems with doing housework. He stated that the appellant reported that her depressive state had worsened. Mr Brearley observed that there was MRI evidence of subacromial bursitis in the appellant’s right and left shoulder.
In his fourth report, Mr Brearley repeated that the appellant claimed difficulty in holding items in her right hand and that she tended to drop items.
Mr Brearley stated that there was little physical abnormality on examination of the appellant’s neck, shoulders and arms but that the appellant continued to have pain and significant disabilities. He was unable to measure any impairment resulting from the injuries but identified the disabilities as ‘difficulty in using the arms and hands for any repetitive purpose. She is not able to do any significant lifting with the arms. She is not able to do any work above shoulder height because of the shoulder injuries.’ Mr Brearley considered that the consequences of the appellant’s impairment were permanent and very considerable.
In his fourth report, Mr Brearley said that the organic causes of the appellant’s condition were bilateral carpal tunnel syndrome and degenerative changes in the cervical spine – giving rise to the pain in her hands, neck and arms.
In the fifth report, Mr Brearley stated that the appellant’s condition had organic and non-organic causes. The organic causes were bilateral carpal syndrome and aggravation of degenerative changes in the cervical spine. Mr Brearley reiterated that 60 per cent of the appellant’s loss of earning capacity was due to the organic conditions.
Mr Behan
Mr Behan, a plastic and reconstructive hand, head and neck surgeon, in his report dated 22 January 2003 referred to the appellant’s history and complaints of dysfunctional symptoms on the right side, which were not dissimilar to persistent symptoms of carpal tunnel syndrome. She had paraesthesia in the digits of the right hand, persistent pain, cold weather sensitivity and a swollen base of the thumb. She also had radiating pain in the right elbow and shoulder, restricting abduction movement of the right upper limb.
Mr Behan concluded that despite the improvement after surgery, the appellant found the result unsatisfactory and her ongoing complaints were ‘consistent with possible incomplete release of the carpal tunnel syndrome’ which ‘possibly requires further exploration’. He concluded that the appellant had a problem in her right wrist related to carpal tunnel dysfunction with pain and paraesthesia in the median half of the right hand.
Mr Behan considered that the appellant’s work was a significant contributing factor. He cited an article which stated that, save for work in very cold temperatures, possibly in conjunction with load and repetition, work was less likely than demographic and disease related variables to cause carpal tunnel syndrome. While the appellant had not worked in a cold environment, Mr Behan considered that ‘perhaps work was the “last straw” in causation’ and that the appellant did not have the capacity to return to employment at that stage.
Mr Nye
Mr Nye, a neurosurgeon, in his reported dated 7 February 2006, set out the appellant’s history, her ‘tearfully described’ continuing symptoms with ‘pain in the arms, shoulders and neck’ and pain and numbness in both hands, worse on the right side.
On examination, Mr Nye found a slight grip strength reduction and diffuse impairment of pin prick appreciation in the appellant’s right hand, with ‘more convincing evidence’ of carpal tunnel syndrome of the left hand. He stated: ‘These findings strongly suggested functional amplification.’
Mr Nye considered that the appellant had developed work-related bilateral carpal tunnel syndrome. He considered that her neck and shoulder symptoms were unrelated to employment. Mr Nye was aware of all three nerve conduction studies, but noted that the severity of the carpal tunnel syndrome on the right side was difficult to assess. He considered the affectation to the left side to be mild.
He observed that there was ‘evidence of psychological reaction and particularly depression’ for which an anti-depressant had been prescribed. The appellant was currently incapacitated for employment due to the persisting bilateral carpal tunnel syndrome and a secondary psychological condition. Her prognosis was unfavourable and was ‘adversely affected by secondary psychological aspects of presentation’.
Mr Marshall
Mr Marshall, a surgeon, in his report dated 2 February 2006, set out the appellant’s history.
On examination, he found the appellant ‘very reluctant to move her hand or arm, but [she] appeared with encouragement to have a normal range of movement’. She complained of severe pain in her hand, wrist and right arm, ‘profound weakness of all muscle groups of her right arm’ and showed a power of grip that was ‘very poor indeed’.
Mr Marshall was unable to reconcile the three ‘contradictory’ reports of the nerve conduction tests. He stated that the appellant presented with ‘a classic example of so-called “RSI” progressing to “RSD” and total invalidism … ‘.
Mr Marshall observed that carpal tunnel syndrome (compression of the median nerve in the carpal tunnel) was not (save in a limited number of specific cases) an injury, but a constitutional corrective tissue disorder typically suffered after the age of 50 and particularly common in diabetics.
Mr Marshall referred to a history of the changing medical analyses of the condition. He concluded that the appellant ‘does have a connective tissue disorder which is giving her various widespread symptoms in various joints … ‘. The symptoms as described were ‘so widespread as to be incapable of explanation from a localised physical injury’ and ‘absolutely typical of the condition once known as Reflex Sympathetic Dystrophy’.
He stated:
In my opinion, [the appellant] is not now and never was suffering from an injury to her wrist, arm, neck or shoulders. I believe the widespread symptoms are a result of an age related constitutional corrective tissue disorder, but are grossly exaggerated to the point where [the appellant] described herself as totally and permanently incapacitated.
…
She does not have carpal tunnel syndrome …
Mr Marshall concluded that the appellant’s symptoms would understandably persist and would continue to have ‘widespread symptoms which cannot be accounted for on a physical basis.’
Mr Marshall concluded that the appellant was not capable of non-stop assembly line process work, but that that was a result of a constitutional problem and not an injury.
Associate Professor Balla
Associate Professor Balla, a consultant neurologist, in his report dated 18 September 2007, described his examination of the appellant. He recounted the appellant’s description of her ongoing pain which, after the carpal tunnel release, was worse and spread up to her right shoulder region where it had remained ever since. She had gradually developed more pain and numbness in the left upper limb.
The appellant informed Associate Professor Balla that she had constant pain in the neck and shoulders on both sides, worse on the right, which spread down her right arm, with numbness in her hands. She stated that any sort of activity significantly aggravated her pain. She was unable to sleep due to the pain and had become very anxious and a little depressed.
Associate Professor Balla stated:
During the interview she seemed to move her head freely but, during formal examination, there was an approximately 50% reduction of neck movement in all directions.
Associate Professor Balla concluded:
I understand that the original diagnosis was a carpal tunnel syndrome. It is possible that there was an element of the carpal tunnel syndrome in this case, but I need to point out that the nerve conduction studies showed only very slight changes and the symptomatology as described to me did not fit. It is more likely that there may have been some musculoskeletal strain originally, with a possible minor element of carpal tunnel involved as well.
The present picture is not that of a carpal tunnel syndrome.
She has what amounts to a regional pain syndrome, but clearly she does not have evidence of any sort for a reflex sympathetic dystrophy.
Associate Professor Balla noted that the current symptoms were diffuse pain. There were clear indications of non-organic problems and the variability of the appellant’s movements indicated that a degree of exaggeration was likely. The tests showed slight evidence of carpal tunnel syndrome, but that did not explain the problem. Significant non-organic elements were evident. Associate Professor Balla concluded that from the physical point of view, the appellant could perform light duties, such as inspecting products or in quality control or resting.
Ms Roglic
Ms Linda Roglic, a psychologist, counselled the appellant on 39 occasions between October 2004 and March 2007. In her report dated 17 March 2007, Ms Roglic concluded that the appellant presented with considerable psychological impairment, which was directly related to her reported injury. Her prognosis was fair but the prognosis for future employment was poor.
The judgment below
The primary judge referred to the relevant legislation and principles governing the application.
He set out the facts and a detailed discussion of the evidence, including the appellant’s affidavits and oral evidence, the video footage and the medical evidence.
His Honour concluded that the appellant had not satisfied the onus of establishing that she suffered a serious injury.
He referred to the ‘marked conflict’[4] revealed between the reports of the ‘more sympathetic medical examiners, ie, Dr Horvat and Dr Harkness and what is shown on video films of [the appellant]’. His Honour acknowledged that, ‘despite the doubts expressed by Messrs Carey, Nye, Marshall, Balla and Dr Courtney’[5] on reading the materials, he considered that the appellant was suffering from unresolved bilateral carpal tunnel syndrome, particularly on the right, and had a very considerable degree of incapacity or impairment of function.
[4][2007] VCC 1661, [28].
[5]Ibid.
His Honour stated that his tentative views had nevertheless been markedly weakened by viewing the footage, which was dramatically and ‘uncompromisingly contradictory’[6] of the plaintiff’s evidence.
[6]Ibid [29].
His Honour stated:
There are something like 55 minutes of video films taken over seven days in a period which runs for just over twelve months. At no point in any of the films does the plaintiff show the slightest degree of restriction of movement of her arms, wrists, hands, shoulders or neck. She was performing tasks and activities that she would not have attempted had she been suffering from, even in part, the degree of pain and disability that she says that she feels in her hands, arms, shoulders and neck. The films contradict her to the point that I have no faith in the evidence that she has given.
His Honour stated that he concluded (with reluctance) that the appellant had ‘hoodwinked a number of doctors’.[7] He had observed no restriction of movement in the films, but, on the contrary, saw the appellant moving her arms, shoulders and neck ‘with great vigour and freedom’.[8] A second viewing of the footage had reinforced his view that ‘the evidence given by [the appellant], the histories given to the doctors and her presentation to them, cannot be accepted as being valid. I am driven to the conclusion that there is nothing wrong with [the appellant], viewed objectively. She stands as a person without credibility once one analyses what is to be seen in those films’.[9]
[7]Ibid [30].
[8]Ibid.
[9]Ibid.
Appellate approach on appeal under s 134AD of the Act
In Church v Echuca Regional Health,[10] Ashley JA (with whom Buchanan JA and Pagone AJA agreed) considered the correct approach to an appeal pursuant to s 134AD in the light of the High Court’s analysis in Dwyer v Calco Timbers Pty Ltd (‘Dwyer v Calco’).[11] His Honour first distinguished an appeal based on inadequacy of reasons as follows:[12]
An appeal in which complaint is made about inadequacy of reasons is governed by s 74(1) and (3) of the County Court Act 1958. As explained by the High Court in Dwyer v Calco Timbers Pty Ltd[13] the issue is not one which calls s 134AD of the Act into play.[14] It follows that error must be established; and, if it is established, then this Court may – not must – remit the application for rehearing. Whether it does so will depend upon whether the Court considers itself as well placed as the judge below to decide the matter itself.[15]
[10][2008] VSCA 153.
[11](2008) 234 CLR 124; [2008] HCA 13.
[12][2008] VSCA 153, [92] (citations in original).
[13](2008) 244 ALR 257.
[14]Ibid [31], [33].
[15]Hunter v Transport Accident Commission & Anor [2005] VSCA 1, [37] (Nettle JA); Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 279-280, 282 (McHugh JA); and Fletcher Constructions Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (2001) 4 VR 28, 35 [18] (Chernov JA). The fact that a ‘credit issue’ arose on the hearing below may tend in favour of remission for re-hearing. Whether remission is required is likely to depend upon the particular ‘credit issue’ which arose. These observations, of course, say nothing about the duty imposed on this Court by s134AD.
In relation to determining whether serious injury had been sustained, Ashley JA held that:
1.The effect of Dwyer v Calco is that in a challenge to a finding of serious injury, it is unnecessary for the appellant to demonstrate error.
2.The Court of Appeal must decide the issue of serious injury itself, in reliance on the evidence and other material before the judge who heard the application ‘and any other evidence which the Court may receive’.[16]
[16][2008] VSCA 153, [104].
3.In deciding the serious injury question for itself, the Court of Appeal should bear in mind that the onus rests on the plaintiff.
4.The Court of Appeal must determine the question in reliance on the ‘evidence’ (as traditionally defined) before the primary judge.
5.The Court of Appeal may also rely on ‘other material’, which could mean:
(a)material in non-evidentiary form pursuant to s 44(1) of the Act – (assuming that s 44(1) applies to s 134AB(16)(b) applications).
(b)an unconventional use of evidence, in a different or additional way.
(c)remarks of the primary judge on the witness’s demeanour (which would be material ‘before the judge’, albeit only recorded in the reasons – but was probably ‘evidence’ anyway).
6.Although the primary judge’s reasons could hardly be ‘material before the judge’, the High Court in Dwyer v Calco said that the detailed reasons of the primary judge would assist the Court of Appeal in its decision.
7.The reasons could assist the Appeal Court in at least two ways:[17]
(a)First, by an ‘ample and logical analysis’ of the evidence below, which would help to identify what was common ground and what was in dispute.
(b)Secondly, the reasons might bear on a witness’s credibility. Nevertheless, Ashley JA thought that the traditional deference to the advantages of the primary judge in assessing credit and finding facts based thereon (reaffirmed, albeit with qualifications, in Fox v Percy)[18] was incompatible with the High Court’s analysis in Dwyer v Calco of the appellate function under s 134AD, which was inconsistent with allowing an appeal only if there were incontrovertible facts demonstrating error, a glaring improbability or a decision contrary to compelling inferences.
8.The decision in Dwyer v Calco did not authorise the ascription of any particular status to the primary judge’s findings on credibility.
[17]Ibid [112].
[18](2003) 214 CLR 118; [2003] HCA 22.
Ashley JA concluded that the Court will often be able to assess credibility as well as the primary judge on the basis of the relevant material. If, however, something which happened in court influenced the judge’s assessment, a description would assist the appellate court.
The parties’ principal submissions
Before us, it was common ground that in the light of Dwyer v Calco, the alleged inadequacy of reasons below was greatly diminished, if not destroyed, as an independent basis of appeal. Grounds 1, 2, 4 and 6 were abandoned. While grounds 3 and 5 were not formally abandoned, the appellant did not pursue them but (seconded by the respondent) principally sought this Court to decide the question of serious injury for itself, in conformity with Dwyer v Calco.
While the adequacy of the reasons below was thus a secondary issue, the appellant maintained that the primary judge’s conclusion that she had hoodwinked a number of medical practitioners rested on video footage relating only to her shoulder, arm and neck complaints. The appellant submitted that his Honour did not explain how the footage related to the objective evidence of her carpal tunnel syndrome and did not refer to the evidence of her loss of earnings.
Although the appellant initially claimed in relation to neck, shoulder and arm conditions (including a neck aggravation injury) and carpal tunnel syndrome, before us, she relied only on carpal tunnel syndrome.
In essence, the appellant submitted that the carpal tunnel syndrome was an organic injury which was established by the objective nerve conduction tests and the MRIs and diagnosed by the great preponderance[19] of the medical experts[20] including, significantly, those who saw the appellant most frequently. Only two medical experts (Mr Marshall and Associate Professor Balla) denied or doubted that she suffered from the condition. Mr Salmon’s opinion that the appellant’s persistent pain and suffering were due to non-organic causes was vitiated, because it was unclear whether he had received the results of the post-operative nerve conduction tests. The consequences of the appellant’s organic injury were the symptoms and disabilities described by most of the medical experts, which were serious in the relevant sense. The nature of the organic injury was such that, in reliance on Zivolic v Hella Australia Pty Ltd[21] (‘Zivolic’) and Jayatilake v Toyota Motor Corporation Australia Ltd[22] (‘Jayatilake’), the appellant’s co-existing psychological conditions could be severed or disregarded.
[19]Nine of the eleven.
[20]The appellant submitted that:
Dr Horvat, in his report dated 20 June 2007[20] diagnosed bilateral carpal tunnel syndrome, bilateral sub-acromial bursal inflammation and bilaterally inflamed os acromiale on the basis of an MRI of the right shoulder and EMG studies.
Mr Salmon, in his second report dated 7 September 2005 did not refer to the post operative nerve conduction studies as a basis for the opinion. It is likely that he did not sight them. He diagnosed severe bilateral carpal tunnel syndrome, with features of chronic persistent median nerve compression and chronic syndrome.
Mr Brearley, a general surgeon diagnosed bilateral carpal tunnel syndrome and degenerative changes in the cervical spine.
Dr Harkness, a rheumatologist, in his report dated 1 May 2007, said that bilateral carpal syndrome, organic and objective, was the core of the appellant’s problem and the appellant could not do any manual work.
Mr Jensen, a treating neurosurgeon, in his report dated 5 March 2004, diagnosed bilateral carpal tunnel syndrome.
Mr Behan, a plastic surgeon, diagnosed carpal tunnel syndrome.
Mr Carey, an orthopaedic surgeon, diagnosed carpal tunnel syndrome, with evidence of bursitis in both shoulders.
Mr Nye, a neurosurgeon, in his report dated 7 February 2006, diagnosed carpal tunnel syndrome and referred to nerve conduction studies. He thought that the appellant was incapacitated for employment.
[21][2007] VSCA 142.
[22][2008] VSCA 167. On 29 May 2009 Toyota Motor Corporation Australia Ltd was granted special leave to appeal to the High Court of Australia. See [2009] HCATrans 118.
The respondent contended that, on the evidence, the appellant’s pain and suffering were due to non-organic causes. Alternatively, it contended that the appellant had not discharged the onus of establishing serious organic injury. Although the respondent submitted that the results of the nerve conduction tests were uncertain, rather than compelling, ultimately it did not dispute that the weight of the medical evidence established that the appellant suffered from the organic condition of carpal tunnel syndrome. It conceded that Dr Marshall’s diagnosis of connective tissue disorder was isolated.
Rather, the respondent relied on the distinction between the existence of the organic injury and its consequences. It contended that the appellant had not discharged the onus of establishing an ongoing carpal tunnel syndrome with serious organic consequences. It submitted that any assessment of the severity of the consequences was heavily dependent on the appellant’s account, whether given directly or through the reports of doctors to whom she had related her history. The appellant’s account and description of her disability and its severity were, the respondent submitted, unreliable. Both the video footage and her observed conduct in some medical examinations demonstrated that she significantly exaggerated. The Court could therefore have no confidence in the extent of ongoing injury she claimed or in any medical opinion on her disability based on ongoing pain.
The respondent submitted that although the appellant’s case was that she had constant (although variable) pain, in the videos, she appeared pain free and demonstrated no restriction of movement, over a number of days, including on 18 September 2007 when she presented to Associate Professor Balla, and claimed a significant 50 per cent reduction in neck movement and pain when moving her neck. As the appellant appeared pain free on all the days when filming took place, it was not explicable as an unusual occurrence.
Further, the respondent submitted that while Dr Horvat and Dr Harkness attributed the appellant’s pain squarely to her organic injury, they were not representative of the majority of the medical experts. Eight out of the eleven experts, including many who diagnosed carpal tunnel syndrome, diagnosed co-existing significant psychological conditions which were a source of persistent pain and suffering.
Most significantly, the appellant’s own treating surgeon, Mr Salmon, thought that the appellant’s persistent pain was due to a non-organic condition. He observed that, as her nerves were normal and not atrophic at surgery, they would be expected to recover thereafter. Mr Salmon stated, ‘It is unlikely that she could have had a significant loss of earning capacity due to the organic condition.
Associate Professor Balla, a neurologist, supported that opinion. He thought that the appellant did not have carpal tunnel syndrome or organic problems, but rather, non-organic problems.
Mr Nye, a neurosurgeon, considered that there was ‘functional amplification’.
Mr Marshall, a surgeon, considered that the appellant had a grossly exaggerated connective tissue disorder and that her symptoms could not be accounted for on a physical basis.
Mr Brearley, a surgeon, in his report of 16 November 2004, stated that the appellant’s organic symptoms were overwhelmed by her psychological response. He later retreated from that view, but did not adequately explain why.
The respondent acknowledged that the nature of some organic injuries permitted the conclusion that their consequences were serious, irrespective of a concurrent psychiatric overlay, but submitted that in the present case, the evidence did not sufficiently identify the appellant’s pain and suffering as the physical consequences of organic injury. On the evidence, there was a non-organic psychological embellishment of the organic injury component which must be disregarded.
The respondent submitted that the inconsistency of the video footage with the appellant’s presentation to doctors indicated either a significant non-organic basis, or a sham, as found by Associate Professor Balla and Mr Carey. The respondent conceded that many medical experts considered the appellant incapable of returning to work, but only Dr Horvat and Dr Harkness reached that conclusion on the basis of her organic condition. Thus, the majority of experts did not conclude that the appellant suffered a very considerable loss of earning consequence by reason of her organic condition.
Counsel for the appellant disputed that the appellant’s credit was adversely affected by the video evidence. The appellant, he submitted, had never asserted that the carpal tunnel syndrome on which she now relied entailed restriction of movement of her wrist, hands or fingers. Rather, she claimed to have pain, swelling and pins and needles. Counsel submitted that the appellant’s case was not that it was physically impossible for her to perform the movements necessary to assemble transformers. Instead, she relied on the symptomology and consequences of pain resulting from sustained repetitive action. The videotape evidence did not, it was submitted, displace the objective expert evidence and investigations, because what the appellant was shown doing was not equivalent to the repetitive work of assembling transformers. The medical evidence did not establish that bilateral carpal tunnel syndrome would prevent the appellant from using her hands and arms as she had done on the videotapes or that such activities indicated that the disabling effects had ceased. The video tapes did not indicate recovery from bilateral carpal tunnel syndrome or a capacity to resume a feasible vocation. The organic condition of carpal tunnel syndrome revealed by objective investigations was not incompatible with the activities depicted on the video.
The appellant also submitted that her movements and demeanour in the video footage were not inconsistent with her description and demonstration to doctors of restricted arm, shoulder and neck movement and associated pain. Alternatively, she submitted that any inconsistency did not extend to her claims of carpal tunnel syndrome on which she now, in essence, exclusively relied.
Discussion
Although some medical experts expressed reservations about the reliability of the nerve conduction tests, most experts accepted that they were a valid indicator of carpal tunnel syndrome. The weight of the expert evidence also supported the diagnosis of carpal tunnel syndrome. Only one of the eleven specialists unequivocally concluded that the appellant did not suffer from the condition at all, while a second specialist recognised some evidence of the condition, but considered that it did not explain the appellant’s problems. It is difficult for the Court to assess the irreconcilable, conflicting evidence of medical experts in the absence of cross-examination. Majority support for a particular view may not always be decisive. The depths and quality of a minority opinion may be persuasive. (In the present case, for example, the isolated diagnosis of Mr Marshall was supported by a discussion of recent academic analysis.) Nor would the frequency of a particular doctor’s examination of the patient necessarily dictate a preference for his or her opinion. Ultimately, in the present case, the weight of reasoned reports by a large number of medical experts in a variety of specialist fields in our opinion established on the balance of probabilities that the appellant had bilateral carpal tunnel syndrome. The respondent did not invite the Court to make a contrary finding.
If the consequences of carpal tunnel syndrome were invariably the symptoms, effects and disabilities described by the appellant, the assessment of serious injury in this case would be independent of her account and presentation. The appellant’s credit and reliability would be irrelevant.
In our opinion, however, the evidence did not establish that carpal tunnel syndrome invariably entails the symptomology and degree of pain to which the appellant testified and which she recounted and demonstrated to doctors.
Neither the primary judge nor this Court had the benefit of comprehensive expert evidence on the causes and natural history of carpal tunnel syndrome. There was no detailed exposition of the probable extent of variation in its symptoms; severity and consequences between individuals and over time. Only Mr Marshall, (the sole expert who considered that the appellant did not have and had never had carpal tunnel syndrome) and Mr Behan discussed current academic commentary on its nature and causes.
Further, as is usual in cases of this kind, the medical experts were not called or cross-examined. The conflicting views expressed in their written reports were neither amplified nor tested in order to assist either the primary judge or this Court. There was no expert commentary on the video footage of the appellant.
While no expert expressly addressed the issue, the medical evidence clearly indicated that the effects and severity of symptoms of carpal tunnel syndrome can vary over time and between individual sufferers. The nerve conduction tests indicated an initial improvement after the surgery to the appellant’s right wrist, which was followed by a regression. Mr Nye thought that the tests indicated carpal tunnel syndrome which was mild on the left side and difficult to assess on the right side. Associate Professor Balla did not deny a possible element of carpal tunnel syndrome, but thought the changes shown by the nerve conduction tests were only slight, and that the appellant’s symptomology did not fit. No medical expert suggested that carpal tunnel syndrome entailed in all affected persons a uniform and permanent severity of pain, pins and needles, reduced grip, difficulty in holding objects or other effects. No doctor suggested that the results of the nerve conduction tests would entail serious consequences irrespective of what the appellant told him. To the contrary, the medical experts’ reports made clear that they relied significantly on acceptance of the appellant’s history and account of her symptoms, including her subjective experience of pain, in relation to both the neck, shoulder and arm condition and the carpal tunnel syndrome when assessing her degree of disability and the seriousness of the consequences of her condition.
As the expert medical opinions took into account, and were informed by, the appellant’s history and description, her reliability and credit remained relevant to the assessment of the severity of the consequences of the carpal tunnel syndrome.
The appellant’s physical movements and demeanour depicted in the films were arguably not inconsistent with the pain and pins and needles in her fingers, hands and wrists to which she attested. The appellant’s use of her hands on the video footage appeared, however, inconsistent with her assertions to doctors, such as Mr Brearley, that she had poor grip and difficulty in grasping and holding objects. They were also inconsistent with her claimed restriction of movement in the arms, shoulders and neck and her demonstration of the same to the doctors who observed a disparity between the degree of movement evident on informal observation, compared with formal examination. The appellant’s activities on some video footage were inconsistent with her claim that she avoided using her right arm. Her demeanour on film also appeared inconsistent with the contemporaneous experience of significant pain. Although the appellant claimed that the pain varied and she had better and worse days, she moved with apparent ease on all the different days on which films were taken. Her demeanour also appeared inconsistent with apprehended future pain in consequence of movement.
The appellant’s credit was, in our view, significantly impaired by the video footage, her evident exaggeration of symptoms to some doctors and her evasive responses in the related cross-examination. While we are not persuaded that the unreliability related only to the arm, shoulder and neck condition no longer relied upon, even if it did, the appellant’s credit, in the present context at least, is not divisible. The damage to her credit extends to and weakens her evidence on the severity of her symptoms, pain and the disabling effects of the carpal tunnel syndrome and detracts from the medical opinions which relied, in part, upon her account.
Further, the appellant, both below and on appeal, bore the onus of establishing that she suffered a serious injury – viz a permanent serious impairment or loss of a body function in relation to which, by s 134AB(38)(h), ‘the psychological and psychiatric consequences of a physical injury’ are not to be taken into account. Although the appellant has established that she suffered from carpal tunnel syndrome, many of the medical experts also identified a significant non-organic component which contributed to the pain and suffering she experienced.
Their view that the appellant could not return to employment was not based only on her organic condition. While Mr Brearley stated in his fifth report of 5 May 2007 that 60 per cent of the appellant’s loss of earning capacity was due to organic causes, he did not explain the apparent inconsistency with his earlier conclusion that her organic symptoms appeared to be overwhelmed by her psychological response. Mr Salmon, the appellant’s own treating surgeon, expressly concluded that her loss of earning capacity was not organically based. While Mr Salmon did not refer to the post-operative nerve conduction tests, it was for the appellant to establish that her treating surgeon did not sight them. Mr Salmon’s reports were tendered by the appellant and no impediment to the clarification of that, or any other relevant issue, was identified. The evidence of the nature of the appellant’s organic injury did not establish it to be a sufficient cause of the loss of earning capacity or very considerable pain and suffering, independent of the psychological or psychiatric overlay.
Conclusion
Given the damage to the appellant’s reliability as a witness by the videos footage and other circumstances, the non-organic component of her claimed impairment and the evidence of Mr Salmon, her treating surgeon, the appellant has failed to discharge the onus of establishing that the consequences of her organic injury, carpal tunnel syndrome, are serious to the requisite degree.
In our opinion, the appeal should be dismissed.
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