Sahin v Auchronie Fruit Co Pty Ltd
[2014] VCC 1550
•19 September 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised (Not) Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-05802
| EDLIBAN SAHIN | Plaintiff |
| v | |
| AUCHRONIE FRUIT CO PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4, 5, 8, 9, 10 &12 September 2014 | |
DATE OF JUDGMENT: | 19 September 2014 | |
CASE MAY BE CITED AS: | Sahin v Auchronie Fruit Co Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1550 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – Impairment of the function of the right upper limb – Chronic Regional Pain Syndrome – Major depressive disorder – Plaintiff’s credibility issue in trial.
Legislation Cited: Accident Compensation Act 1985, s134AB(37)(a) and (c)
Cases Cited:Ansett v Taylor [2006] VSCA 171 – Zivolic v Hella Australia Pty Ltd [2007] VSCA 142 – Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592 – Barwon Spinners v Podolak & Ors (2007) 14 VR 622 – Hunter v Transport Accident Commission [2005] VSCA 1.
Judgment: Leave to proceed granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Sahin in Person (husband of Plaintiff) | |
| For the Defendant | Mr B McKenzie | Hall & Wilcox |
HER HONOUR:
1 Edliban Sahin was employed by Auchronie Fruit Co Pty Ltd (“Auchronie Fruit”), Redcliffs, as a casual seasonal worker. Her role was to pack citrus fruit.
2 Ms Sahin worked in the role for approximately five months. She worked approximately 10 hours per day, sometimes including Saturdays and Sundays.[1]
[1]“Defendant’s Court Book” DCB 112
3 On 27 October 2004, Ms Sahin suffered a hyperextension injury to the right wrist and arm. At the time of injury she was pushing citrus boxes over a conveyer belt that was sticky, causing the box not to slide as it should. The box became stuck and when pushing hard she noticed pain and a “crack” in the right wrist (“the incident”).
4 She told her supervisor, who bandaged her wrist. She completed her shift. Overnight she experienced severe swelling and pain in the right hand. She returned to work the following day but was unable to use the right arm. Her supervisor, Steve Allfrod, advised her to stop work and consult a doctor.[2]
[2]“Plaintiff’s Court Book” PCB 2
5 Her regular doctor, Dr Jennifer Garner, was not available and so she was referred to Dr Omarjee who bandaged the wrist and prescribed pain relief. He diagnosed flexor tendonitis of the right wrist/forearm (“the injury”).[3]
[3]PCB 30, 31
6 She continued seeing Dr Omarjee without any improvement in her symptoms. Eventually she consulted Dr Garner who managed her care until 2008, when Dr Claire Thys took over the role following Dr Garner’s retirement.
7 Ms Sahin is right hand dominant. Within weeks the right wrist pain radiated up into her arm, shoulder, neck and the right side of her head. She has been managed conservatively and has had specialist review and multiple investigations concerning the injury.
8 Apart from one attempt to return to work that took place on 14 June 2005, Ms Sahin has not worked since. On that occasion she only lasted 15 minutes. She was placed on an orange sorting section and was only required to use her left arm. She became dizzy and nauseated and collapsed and vomited. Her husband was called and he came and took her home.
9 Despite extensive investigations, interventions and the passage of 10 years, Ms Sahin continues to complain of chronic pain in the right wrist, forearm, neck and right shoulder.
10 The Plaintiff’s personal history and background is not really in dispute. Edliban Sahin was born in Turkey. She is the youngest of three children. Her parents are elderly and continue to live in Turkey. She lived at home until aged 20, when she married. She came to Australia to join her husband, who was born in Turkey but was an Australian resident. She arrived in Australia in 1989.
11 The Plaintiff finished high school in Turkey. She then worked in a government hospital in an administrative capacity in Turkey. When she came to Australia, she was not fluent in English. Her husband taught her some basic English and, in anticipation of working, she undertook the Certificate I in Spoken and Written English at the Sunraysia Institute of TAFE in 2000. She passed Orientation to Learning but withdrew from Reading and Writing and Speaking and Listening. She also did part of a Certificate IV in Clothing Industry Studies and passed Sewing Machine Operations I and Complex Whole Garment Assembly. She was not competent in Sewing Machine Operations II and III. That is the extent of her formal education.
12 Following her arrival in Australia, she assisted her husband, who had his own block in the Mildura area and grew grapes for sultanas. They sold the block and she began to do casual packing work with asparagus, grapes and oranges. This was casual seasonal work.
13 Ms Sahin has two sons, Caner, born 7 March 1990, and Alper, born 7 December 1992, aged 24 and 21 respectively. They have both filed affidavits in support of her application.
14 Ms Sahin brings this application seeking leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 as amended (“the Act”) to bring common law proceedings to recover damages for injury to her right wrist and arm, and a consequential psychiatric injury arising out of the course of her employment on 27 October 2004.
15 The Plaintiff seeks leave to bring proceedings for both pain and suffering and loss of earning capacity.
16 Ms Sahin relies upon an impairment of the function of the right limb, satisfying paragraph (a) of the definition of serious injury contained in s134AB(37) of the Act, and Major Depression and/or Adjustment Disorder with depressed mood, satisfying paragraph (c) of that definition.
17 Mr Sahin, the Plaintiff’s husband, presented the matter on her behalf. He is a man who holds no legal qualifications. He has in the past successfully represented both he and his wife’s interests in commercial litigation that was conducted in the County Court of Victoria and was subsequently appealed to the Court of Appeal. He conducted the application capably and presented the case in a considered manner without embellishment.
18 Mr McKenzie, on behalf of the Defendant, submitted that the real issue in dispute in this trial was the Plaintiff’s credibility. He submitted, because of a number of features in the case, that Ms Sahin’s credit had been sufficiently impugned and that the application, whether it be under paragraph (a) or paragraph (c), ought to fail. He made it clear to the Court that if the Court accepts the Plaintiff as a credible witness, then she succeeds, probably on the basis of the claimed psychiatric injury. He accepted that would apply to both pain and suffering and loss of earning capacity.
19 Both Ms Sahin and her husband gave evidence and were extensively cross-examined. Mr Sahin and the Defendant tendered a large number of documents that were listed as exhibits in the trial.
20 Ms Sahin adopted the two affidavits that she has filed in support of her application, affirmed on 13 August 2014 and 28 August 2014. In addition, a number of photographs were produced showing her hands and right elbow that had been taken over the previous two to three weeks leading up to the hearing. She could not recall the precise dates of the photographs. She stated that they were not taken on the same date.
21 Ms Sahin gave her evidence with the assistance of a Turkish interpreter. She gave the impression of understanding some of the questions that were asked without recourse to the interpreter. My impression is that she is a very simple person who does not have a sophisticated understanding of the English language.
22 Mr McKenzie accepted that there was no issue that Ms Sahin suffered compensable injury at work on 27 October 2004, namely a soft tissue hyperextension injury to the wrist.
23 He asserted, on the available medical material, that there is no definitive diagnosis beyond a soft tissue strain of the right wrist, and, to the extent that Ms Sahin suffers a Chronic Regional Pain Syndrome, such a diagnosis is very dependent on her credit and her version of events. He submitted that the Court ought to find that she is not a credible witness.
24 There were a number of factors which he submitted combined to impugn the credit of the plaintiff.
25 Ultimately, having regard to the totality of the evidence, I have rejected each of the submissions made by Mr McKenzie and accept that Ms Sahin is a reliable, credible and truthful witness. I accept her evidence regarding the severity of her symptoms and that her pain is chronic and disabling.
26 The Defendant accepted that the Plaintiff suffered a compensable injury to her right wrist/hand, Complex Regional Pain Syndrome involving right upper arm, right shoulder and neck, aggravation of pre-existing ulcerative colitis and psychiatric/psychological conditions.
27 QBE Workers Compensation (Vic) Ltd (“QBE”), through its agent, wrote to Ms Sahin on 21 May 2012 confirming, in accordance with sections 91, 98C, 98E and 104B of the Act, that the agent had reviewed her claim and determined liability for the injuries as being work-related. Liability was accepted for the injuries.[4]
[4]PCB 223–225
28 This acceptance of liability may not be binding but as said by Ashley JA in Ansett v Taylor [2006] VSCA 171, such an admission should ordinarily be regarded as very significant: “….albeit not conclusive because a defendant in a particular case might be able to satisfactorily be able to explain its conduct.”
29 I have taken into account the admission as part of the material on which I have formed my judgement.
30 Prior to the injury, the Plaintiff had no significant medical problems. There is no history of psychiatric or psychological problems.
31 Mr McKenzie referred to a notation made on the 18 February 2004 in the clinical records of Dr Origanti, General Practitioner. There is a record of “history of right wrist pain especially after manual work, facial pain and TMJ pain”. The Plaintiff could not recall this attendance at the doctor’s or why the doctor would have made such a reference to her right wrist.
32 The doctor’s notes then go on to record the clinical findings on examination of the throat and the left eardrum but makes no specific findings in respect to the right wrist. A diagnosis of carpel tunnel syndrome and sinusitis is recorded. Medications are prescribed for the stomach and an antibiotic but none of those medications relate to pain relief or anti-inflammatory medication.
33 There was no follow up or other investigations undertaken in respect to the Plaintiff’s complaint of right wrist pain. I am satisfied in those circumstances that any right wrist pain pre-injury was transient.
34 Mr McKenzie was critical of the Plaintiff because she failed to make reference to that history when she was first reviewed by Dr Omarjee on 28 October 2004. In fact she told the doctor that she had no past injury to the wrist or hand.
35 I do not consider that a passing reference to right wrist symptoms at a consultation some eight months earlier is such that I should treat the Plaintiff’s failure to tell Dr Omarjee as being significant.
36 Ms Sahin’s pay records show she was working long hours with the Defendant over the months in the lead up to 27 October 2004.[5] This is consistent with there being no restrictions in the use of her right wrist and hand pre-injury.
[5]PCB 170-173
37 Further, I place no significance on the fact that when the Plaintiff’s husband completed the WorkCover form on the 3 November 2004 he ticked “no” to the question of whether she had any previous pain or disability in the area of her present injury or condition.
38 There is no evidence to show the earlier complaint of wrist pain was of any significance and given that the Plaintiff was reliant on her husband to translate the form and each question and answer completed, I make no adverse finding against her credit.
39 Ms Sahin is not very sophisticated. This is borne out in the material. Nikki Reece, Senior Rehabilitation Consultant, states in a letter dated 17 June 2008 that her understanding of English is limited.
40 Ms Reece confirms that Ms Sahin suffers chronic depression and that she exhibits poor concentration with difficulty following conversations. In appointments her husband has to repeat information a number of times before she understands what is being said.[6]
[6]PCB 167
41 That evidence renders Mr McKenzie’s submission that the Plaintiff would have been almost as capable as her husband in terms of presenting her case fanciful and devoid of any substance.
42 Mr McKenzie was critical of the Plaintiff’s failed attempt to return to work on 14 June 2005. He submitted that there was an absence of any good medical reason as to why she fainted after only 15 minutes at work. This was a stunt to avoid a return to work and to cease work all together.
43 He referred to Mr Sahin telling Dr Omarjee when he approved the return to work that he would be back in a few days as his wife would get dizzy and he knows she cannot do any work. He was worried that she would injure the left hand too.
44 Dr Jennifer Garner, who was responsible for treating the Plaintiff for some time following Dr Omarjee, was specifically requested to consider whether Ms Sahin had made all reasonable efforts to participate in the return to work program. She answered that she thought she had done so.[7]
[7]PCB 32
45 Further on 7 June 2005, Dr Omarjee cautioned Megan Della Santa, Occupational Therapist, who designed the return to work program, that whilst he agreed that the Plaintiff may have some work capacity in relation to work tasks that involve very light or no use of the injured upper limb, that the return to work may not be successful even with light duties due to concerns related to a chronic pain syndrome.[8]
[8]PCB 166
46 In those circumstances I do not consider it appropriate to make an adverse finding against Ms Sahin about what happened when she attempted the return to work. In particular, it is not appropriate to make a finding as was urged upon me that the Plaintiff intended to sabotage the return to work.
47 Particular emphasis was placed on some surveillance video taken on the 12 August 2005. Mr McKenzie acknowledged it was dated but nonetheless submitted the film was significant. In a case such as this where the doctors must rely on the Plaintiff’s reports of pain, he submitted the presentation on the film was in sharp contrast to how she presented to Professor Richard Ball, Psychiatrist, on 7 September 2005.
48 I have carefully reviewed the film many times. I am not convinced that the contents of the film undermines the Plaintiff’s credibility.
49 I note that in total there have been some 25 days surveillance undertaken over the period from 10 August 2005 to 21 January 2013. There was a total of 123.5 hours surveillance undertaken that resulted in 15 minutes and 56 seconds of video.
50 The video taken on 12 August 2005 runs for approximately seven minutes. On this occasion Ms Sahin did not appear to be wearing her wrist brace. The other excerpts that I viewed showed that she was wearing a brace.
51 For approximately five minutes the film focuses on Ms Sahin and a young girl, and towards the end of the film an older woman joins them. They are standing at the rear of a vehicle with its boot up gathering mandarins from inside the boot and placing them into small hand held plastic bags.
52 Whilst undertaking this task I observed Ms Sahin holding a plastic bag in her left hand leaning into the boot using her right hand to place mandarins into the bag. She is seen walking over to two very young children who are standing behind a grilled fence on the property. She uses her right hand to pass a small bag of mandarins over the fence to one of the little girls. Ms Sahin estimated the weight of the mandarins to be maybe one, one and a half kilos.[9] The bag dropped onto the ground and Ms Sahin is seen squatting down collecting the mandarins using both of her hands. She is then seen placing both hands on her thighs as she stands up. Ms Sahin is then seen talking to another lady, who is present with the two little girls.
[9]T113, L 9-10
53 The older woman comes into view. Ms Sahin walks back towards the vehicle and waves to the little child with her right hand. She continues to load the mandarins into a plastic bag. The bag is being held by her left hand. It is not possible to observe her using her right hand/arm because the view is obscured by the presence of the other female who is also undertaking this task.
54 At one point she is seen placing a full bag of mandarins onto the ground using both hands. She then uses both hands to tie up the bag. The young girl who is with her then picks up the two fully laden bags and walks away. The two older women continue their task both leaning into the car boot. The older woman accompanying Ms Sahin is then seen holding a large bag full of various items.
55 Ms Sahin continues to bend over to attend to something inside the boot. She passes an empty cardboard box to her friend. On occasion, you can observe that Ms Sahin is using both arms. It appears that the two women are tidying up the rear of the boot. Ms Sahin is then seen shaking out an item of clothing. She loses grip with the right arm and then continues to fold it loosely with the left hand and places it back into the rear of the vehicle. She uses her left hand to close the boot. The boot is closed at 15.04.58.
56 The tape jumps to 15.30.48 and, at that time, Ms Sahin is seen leaning into a vehicle that is parked in the driveway. The young girl is present again. Ms Sahin then appears to be re-arranging some things in the rear passenger area.
57 At 15.31 Ms Sahin waves to the occupants with her right hand as they drive away. She then walks to the letter box and picks up a paper. She opens the paper with both hands and starts reading.
58 Later at 15.55, Ms Sahin is seen carrying a bag of mandarins in her left hand walking towards a vehicle. She hops into the vehicle being driven by another person and the car leaves the premises. The video ends.
59 None of the activities shown materially undermines the Plaintiff’s credit. The Plaintiff has always tried to do things with her hands as normally as possible. She complains of chronic pain and of not being able to use the right hand and arm as she used to and that she drops things and now tends to use the left arm to do things.
60 The film showed her using both hands but she seemed to use her left hand more than the right and when leaving she did hold the bag of mandarins in her left hand.
61 Professor Ball, Psychiatrist, examined the Plaintiff on the 2 September 2005 at the request of the WorkCover Agent. He confirmed the Plaintiff’s complaint of pain every time she uses or moves her hand. She does try to use it but she has dropped and broken things because she cannot grip properly.[10]
[10]PCB 106
62 He recorded a number of activities that the Plaintiff said she does such as peeling potatoes, vacuuming, driving, cooking with assistance and house cleaning.
63 He noted on examination that Ms Sahin was well groomed, had good eye contact and that there was nothing bizarre about her behaviour. He noted there was almost no movement or use of her right hand.
64 Mr McKenzie highlighted the later remark. However that remark must be looked at in the context of everything that was discussed at the examination. It is clear Ms Sahin did not seek to mislead the doctor by telling him she never uses her right arm/hand.
65 At the subsequent review on 16 November 2008, Ms Sahin reiterated that she did try hard to do things such as cooking, cleaning and looking after her husband and children. She did so with assistance from her family.[11]
[11]PCB 112, 113
66 Professor Ball thought the behaviour observed on the film was quite different from that presented to him and also in the physical behaviour before him and the history he was given. He questioned the Plaintiff’s veracity and raised the prospect of there being maybe misrepresentation with regard to both the physical and psychiatric problems.[12]
[12]DCB 30
67 I disagree and do not consider this to be a case where the Plaintiff has actively exaggerated her degree of disability to the examining doctors. Nor do the activities that are depicted in the rather dated film show the Plaintiff to have a greater degree of function than what she claims.
68 Mr McKenzie referred to the Plaintiff’s presentation to Mr Saies on 20 April 2005, Dr John King on 5 August 2005, and Dr Fraser on 29 June 2006.
69 I have the advantage of having reviewed all the material relied upon by both parties. The material does reveal a consistency in regards to the Plaintiff’s complaints of ongoing pain to the treating doctors and treating psychologists, none of whom question Ms Sahin’s veracity.
70 I prefer in particular the expressed opinion of Ms Dumas, Clinical Psychologist, who has had the very real advantage of treating Ms Sahin regularly over the past six years. She considers the Plaintiff to be genuine.
71 Ms Sahin was wearing a wrist brace during the hearing. Mr McKenzie asserted that the Plaintiff wore that as a “prop” and that there was no medical basis for her to continue to use the brace. It is merely something that the Plaintiff is using to perpetuate her presentation.
72 The brace worn by the Plaintiff had an aluminium support with three adjustable Velcro straps. Ms Sahin also showed the Court an alternative brace that she sometimes uses while she is at home. That was a Thermoskin elasticised wrist bandage.
73 During the hearing, the Plaintiff’s hand and arm were inspected. I observed the Plaintiff removing the wrist brace. It was not tight and there were no markings on the skin from the brace being applied too tightly. It appeared to be a snug fit, but it was possible for the Plaintiff to put her fingers down the side of the splint without any difficulty. She demonstrated this to the Court.
74 I reject any assertion made by the Defendant during evidence that the Plaintiff’s hand/arm condition was made worse by wearing a tight splint.
75 I observed that the Plaintiff’s right arm and hand were very cold to touch compared to the left arm and hand that felt warmer and appeared normal in colour. The right arm and hand were slightly inflamed. These observations were noted at the time of the inspection.
76 The Plaintiff has been seen by physiotherapists and a number of specialists for assessment and treatment. She was initially referred for physiotherapy to Steven Wilmann in Mildura. He advised her to use the wrist in a splint. Meryl Hale, Physiotherapist, confirmed the therapeutic use of the splint.[13] This is also confirmed by Mr C. Mills,[14] Mr A. Saies[15] and Mr F. Behan.[16]
[13]PCB 122
[14]PCB 60
[15]PCB 51
[16]DCB 264
77 I accept the Plaintiff’s evidence that she does not wear the brace all the time at home and does not sleep with the brace. She normally uses it when she goes out so as to avoid any further injury.
78 I reject the assertion that the brace is a mere prop or device for the case. I accept the Plaintiff’s explanation that she uses the brace for relief of her pain, for support and also immobilisation of the wrist as a protective measure and to prevent movement.
79 In his final address, Mr McKenzie highlighted the fact that the investigations undertaken of the Plaintiff showed little, if any, relevant abnormality. He referred to the normal x-ray findings of the right wrist and elbow taken 15 December 2004,[17] the normal nerve conduction studies performed 23 December 2004,[18] the normal findings following the CT of the right wrist performed 15 November 2005,[19] the findings of the MRI scan of the right wrist of 29 March 2006, which showed possible tenosynovitis of the extensor carpi ulnaris and minimal irregularity along the articular margin of the lunate at the scaphoid lunate joint, although the ligament appears intact,[20] and the findings of the ultrasound of the right wrist of 6 June 2006, which showed a small dorsal scaphoid lunate ganglion.[21]
[17]DCB 125
[18]DCB 126-7
[19]DCB 128
[20]PCB 177
[21]PCB 178
80 He submitted that the medical examiners have struggled to diagnose the Plaintiff’s condition beyond a soft tissue strain of the right wrist and that most doctors expressed the view that the condition has resolved or is expected to resolve.
81 Having conducted a review of all the relevant medical material, I do not accept that submission. Whilst the evidence shows some division of opinion concerning the nature of the Plaintiff’s injury, whereby some doctors confirm that the Plaintiff’s condition is soft tissue in nature, the preponderance of medical opinion from both the treating doctors and therapists and medico legal examiners supports a finding that, as a consequence of the hyperextension injury to the right wrist and arm at work, Ms Sahin suffers from Chronic Regional Pain Syndrome (CRPS).
82 CRPS is a pain disorder. There is no diagnostic test for CRPS. The diagnosis is based on a person’s medical history and their symptoms. It is therefore very important that what the doctor is told a true reflection of a person’s situation. Credibility is paramount. In the circumstances of this application I accept Ms Sahin as a credible historian who is genuine.
83 Over the years the Plaintiff has been referred to a number of specialists for assessment and treatment. A number of investigations have been undertaken to exclude carpal tunnel syndrome, ulnar nerve lesion at the elbow, bony injury or focal wrist pathology.
84 Ms Sahin saw Dr Douglas Gardiner, Orthopaedic Surgeon, on 14 December 2004. He diagnosed a wrist hyperextension injury with associated tenderness and pain over the anterior aspect of the wrist and medial epicondylitis.[22]
[22]PCB 50
85 Ms Sahin saw Dr John King, Neurologist, on 1 August 2005, at the request of Dr Omarjee. Clinically, Dr King thought it possible that Ms Sahin may have a carpal tunnel syndrome or ulnar nerve lesion at the elbow. He performed nerve conduction studies, the results of which were within the normal limits. He confirmed that plain x-rays of the right elbow and right wrist on 15 December 2004 were reported as being normal.
86 Based on the Plaintiff’s history, Dr King considered she had sustained a soft tissue injury to her right hand and wrist on 27 October 2004 with no evidence of involvement of the median or ulnar nerve in the right hand. He considered there were features on his examination suggestive of a psychological component to the complaints.[23]
[23]PCB 57
87 Dr Garner requested assistance from Mr Craig Mills, Orthopaedic Surgeon. He considered that Ms Sahin’s problem was probably soft tissue, given the plain x-rays were normal.
88 He suggested referral to a sports medicine practitioner in South Australia. He was not sure what they would do – perhaps an MRI of the wrist – but, from his point of view, he said that the wrist splint seems to be of help to her.[24]
[24]PCB 60
89 Dr Andrew Saies, Orthopaedic Surgeon, Adelaide, who specialises in upper limbs, saw the Plaintiff in April 2005. He considered the Plaintiff’s condition to be a complex problem.
90 He recommended the use of a wrist brace to support return to work activities and a wrist strengthening and desensitisation program for a limited period from a hand therapist, and pain management.[25]
[25]PCB 51
91 He wrote to Dr Jennifer Garner, on 15 March 2006, confirming that he was unable to find a specific or treatable diagnosis for her pain. He thought her symptoms and signs were out of keeping with any likely focal wrist pathology and he arranged for an MRI scan.[26]
[26]PCB 52
92 Dr Saies, in a letter sent to QBE on 6 September 2006, confirmed he saw Ms Sahin on 15 March 2006 and he made a diagnosis of a Complex Regional Pain Syndrome.[27]
[27]PCB 53-55
93 He reviewed her again on 29 March 2006. The MRI findings were suggestive of some possible tenosynovitis involving the extensor carpi ulnaris tendon and some minimal irregularity along the articular margin of the lunate. He did not consider those findings were necessarily pathologically abnormal and would not account for the overall presentation.[28]
[28]PCB 53-54
94 Dr Saies considered that the Plaintiff had a Complex Regional Pain Syndrome with no organic focus for her current pain symptoms, and suggested referral to a pain clinic.
95 Dr Jennifer Garner, in her report of 7 November 2005 and in a questionnaire completed on 7 November 2006, confirmed that Ms Sahin has persisting pain and restriction of movement from a musculoskeletal injury that is soft tissue in nature to her right forearm and, secondly, that she is suffering from an Adjustment Disorder with depressed features.
96 Overall, Dr Garner considered that the Plaintiff had a significant incapacity for work as a consequence of the injury. She considered that she had made all reasonable efforts to participate in a return to work program.[29]
[29]PCB 32
97 Dr Garner referred Ms Sahin to Ms Meryl Hale, Physiotherapist, Ms Kerry Buchecker, Rehabilitation Counsellor, Mr Anthony Berger, Hand Surgeon, and Ms Sezen Ildiri, a Turkish-speaking psychologist. She confirmed that Ms Sahin was taking Panadeine and Nurofen for her pain.[30]
[30]PCB 33
98 She noted that her injury and disability does not limit activities of daily living, but pain limited those activities such as feeding, bathing, dressing and toileting.[31]
[31]PCB 34
99 Mr McKenzie raised the “amputation” allegation to demonstrate the Plaintiff’s unreliability. The Plaintiff’s evidence was that Dr Garner told her “to use it or lose it” in reference to her right hand. This comment is not recorded in the doctor’s notes. Mr Sahin confirmed that this was said in his presence.
100 Ms Sahin believed she was referring to her having to use her hand otherwise it would have to be amputated.[32] I accept that those words were spoken and that it may be that both Mr and Ms Sahin took this advice literally and that that was not what the doctor intended. It may have been said to encourage the Plaintiff to use her right hand so as to avoid other problems. Her evidence is that she did try to use the hand. I do not accept this is a mark against the Plaintiff’s credit.
[32]T 121, L3-7
101 Ms Hale, Physiotherapist, in a letter addressed to Dr Garner dated 6 May 2006, noted the Plaintiff was consistent in two matters; firstly, the locality and description of her pain, and secondly, her persistence in using the arm/hand as normally as possible.[33] She also noted that some help is provided by the supportive wrist wrap and overnight resting splint.[34]
[33]PCB 122
[34]PCB 122
102 She considered that Ms Sahin’s arm had deteriorated in that it was hypersensitive to normal stimuli, in part consistent with Complex Regional Pain Syndrome, even though trophic changes were not present.[35]
[35]PCB 123
103 Ms Hale recommended further specialist review.
104 Mr Anthony C Berger, Hand Surgeon, saw Ms Sahin at the request of Dr Garner on 5 June 2006. He noted the investigations to date have been normal, in particular a bone scan which excluded any significant underlying bony or joint pathology.[36]
[36]PCB 61
105 Mr Berger noted the Plaintiff was most tender over the scapholunate ligament and, as such, may have a scapholunate interosseous ganglion.[37] He reviewed Ms Sahin again on 6 June 2006 with ultrasound findings that confirmed the presence of a ganglion overlying the scapholunate ligament in her right wrist. He considered that corresponded very well with the site of her maximal pain and injected the ganglion with local anaesthetic and Depo-Medrol.[38] He sought permission to excise the ganglion.[39]
[37]PCB 61
[38]PCB 62
[39]PCB 63
106 In a letter dated 14 December 2006 addressed to Marnie Irving, Workers Compensation Consultant, Mr Berger opined that although it is not possible to be sure when the ganglion appeared, in his experience dorsal wrist ganglions can cause dorsal wrist pain that persists following a hyperextension injury, such as the one described by the Plaintiff. Ganglion cysts, however, are notorious for fluctuating in size and level of pain.[40]
[40]PCB 64
107 He considered that the ganglion was certainly part of Ms Sahin’s symptom complex. He considered that she had an exaggerated expression of pain from her wrist and it made it difficult to attribute all of her pain to the presence of a ganglion. Despite this, however, he said some patients do experience widespread pain from seemingly minor incidents and minor pathology.[41]
[41]PCB 65
108 Liability was not accepted for the excision of the ganglion.
109 The following year, in 2007, Dr Garner referred Ms Sahin to Dr Bruce Mitchell, Pain Physician. He considered she presented with a Complex Regional Pain Syndrome from the neck through the right shoulder and into the right arm and hand. He also understood that she had been noted to have a ganglion in the right hand. He considered she had a classic neuropathic pain with signs of allodynia, hyperalgesia, summation and signs of Complex Regional Pain Syndrome.[42]
[42]PCB 66
110 Dr Mitchell thought the primary pathology is probably in the neck and cervical disc. He reviewed her further following an MRI of the cervical spine that showed no evidence of cervical disc bulge or protrusion. He thought that the MRI had been done on a suboptimal machine. He prescribed a low dose of Endep and, once the neuropathic pain was under control, booked her in for medial branch blocks of her cervical spine to try to elucidate whether the cervical facet joints were the source of the pain and, if so, which facet joints were responsible.
111 Dr Mitchell performed a series of blocks with some amelioration of the Plaintiff’s neck pain on 5 February 2008 and 30 April 2008. He noted that the blocks helped control some neck pain and shoulder pain, but there was still presence of arm pain.
112 He states he was aware that the injections were assisting with the neck and shoulder pain, keeping it under relative control, but it did not make a huge difference to her arm pain. He was going to proceed with radiofrequency neurotomy, but liability was not accepted for that from the WorkCover agent.[43]
[43]PCB 68
113 In summary, Dr Mitchell said Ms Sahin was a lady who suffered an injury in her workplace when pushing a heavy box that was jammed. She has both central sensitisation secondary to this injury and Chronic Regional Pain Syndrome. He postulated that, if the pain could be controlled, then she would be able to undertake some rehabilitation to get her arm moving. Hopefully, that would settle down her Chronic Regional Pain Syndrome. If not, then a more specific targeted treatment of the Chronic Regional Pain Syndrome would need to be considered.[44]
[44]PCB 68
114 Dr Claire Thys, General Practitioner, took over responsibility for Ms Sahin’s care in April 2008. She continues to treat her. She notes the physical injury as being injury to the right wrist with associated loss of strength in the hand and arm, pain in the shoulder and neck,[45] and Major Depression.[46] Dr Thys treats the Plaintiff with pain relief and anti-depressants. She further notes Ms Sahin has ulcerative colitis.[47] This condition was diagnosed by Dr Chambers in 2007.
[45]PCB 37
[46]PCB 39
[47]PCB 44
115 In a letter dated 30 June 2009, addressed to the Accident Compensation Conciliation Service, Dr Thys states that she has been involved much more in addressing the Major Depression that has developed as a direct consequence of the chronic pain experienced and the ulcerative colitis, which she says is very much triggered and worsened by the pain and stress she has been under since the injury.
116 Dr Thys considers, because of the consequence of the injury – that is, Major Depression and exacerbation of ulcerative colitis – the Plaintiff is truly totally unable to work at all, being unable to function in her daily activities at present.[48]
[48]PCB 44
117 In a letter dated 15 July 2014, Dr Thys states that the injury to the Plaintiff has had a profound effect on her level of functioning, making her unable to even function normally in her own home, looking after her children and the home. She has lost all taste for life and its enjoyments, and has been admitted a few times to hospital after suicide attempts.[49]
[49]PCB 47
118 Dr Jill Tomlinson, Plastic, Reconstructive and Hand Surgeon, reviewed Ms Sahin at the request of Dr Thys on 20 May 2014.
119 She confirmed, when she examined Ms Sahin, that she had a mildly swollen right hand and wrist with vascular changes and a slightly shiny sheen to the skin compared to the left hand.
120 Ms Sahin was tender to palpation at the distal radial ulnar joint, triangular fibrocartilage complex, volar scaphoid, radio-carpal joints, mid-carpal joints and metacarpals.
121 Ms Sahin reported that the pain which was felt tracked to the dorsal wrist. She had neural sensitivity of the ulnar nerve at the cubital tunnel, distal forearm and in Guyon’s canal, reporting sensations of electricity upon palpation and with Tinel’s testing.[50]
[50]PCB 71
122 Dr Tomlinson’s clinical impression was that Ms Sahin had Complex Regional Pain Syndrome. She recommended review by a hand therapist and hand management specialist.[51]
[51]PCB 72
123 In a supplementary medical report, Dr Tomlinson confirms that the Plaintiff does not have a nerve injury but a condition termed Complex Regional Pain Syndrome, which is characterised by nerve dysfunction. Hyperextension of the arm or hand at work can result in Complex Regional Pain Syndrome.[52]
[52]PCB 73
124 Ms Sahin has been reviewed by medico-legal examiners.
125 Dr Felix Behan, Plastic and Reconstructive Surgeon with specialist expertise in hands, assessed the Plaintiff on 1 December 2008 and 16 November 2010 at the request of her former solicitors. He considered that she was genuinely experiencing pain and difficulties with symptoms and signs of a Complex Regional Pain Syndrome.[53]
[53]DCB 257
126 At review on 16 November 2010, Dr Behan made the diagnosis of Complex Regional Pain Syndrome of the right dorsal wrist and ganglion and that the Plaintiff also had a psychiatric condition which he considered, if anything, to have worsened in the intervening period.
127 He took photographs that showed swelling on the dorsum of the right hand in comparison to the relatively normal appearance on the left side.
128 Dr Behan states in his first report of 1 December 2008 that a relatively minor injury has unfortunately resulted in the development of a Complex Regional Pain Syndrome. He considered that Ms Sahin was genuinely experiencing pain and difficulty with symptoms and signs of a Complex Regional Pain Syndrome.
129 When he reviewed her on 18 January 2010, he confirmed the orthopaedic splint she wears provides some symptomatic relief. He also confirmed that the shiny nature of the skin of the digits in the right hand is characteristic of sympathetically induced pain.[54]
[54]DCB 270
130 His photographs showed the hand in extension incomplete at the level of the proximal interphalangeal joint. The shininess of the skin was also evident on the dorsal surface. Other photos showed the swollen hand without the support of a splint.
131 Dr Peter Blombery, Consultant Physician, examined Ms Sahin on 29 January 2009. He noted that the fingers of the right hand were a little swollen but both hands were of the same temperature. She was tender all the way from the right hand up to the right neck on local pressure and withdrew as he examined that area. The power of the handgrip on the right side was seven kilograms versus 36 kilograms on the left.[55]
[55]PCB 150
132 Dr Blombery noted Ms Sahin’s description of the hand sometimes becoming a little cold or dusky, but that was not obvious on his examination. He noted from the reports provided by the Plaintiff’s then solicitors that there were no other medical practitioners who had observed any changes in temperature or colour of the hand.
133 In the absence of external observation of the changes, he stated that it is unlikely she has Complex Regional Pain Syndrome Type 1, although she theoretically fulfilled a criteria of the International Association for the Study of Pain for the diagnosis of this disorder, which only requires the fact that the symptoms of autonomic disturbance have been noted in the past.[56]
[56]PCB 150
134 Dr Blombery noted that the Plaintiff is the only one who has apparently noted the changes. However, these changes in temperature, swelling and skin changes have been recorded by Dr Behan, Dr Tomlinson and Ms Durmaz. I note that Dr Sheehan, Psychiatrist, observed that her right hand appeared discoloured.[57]
[57]PCB 155
135 Further, on inspection during the court hearing, a noticeable change in temperature between the right hand and the left hand was noted.
136 In those circumstances, I consider that the diagnosis of Complex Regional Pain Syndrome Type 1 is more than theoretical.
137 Dr Blombery nonetheless considered the Plaintiff had a non-specific pain syndrome, where there was a non-specific sensitisation of those pathways, both in the periphery as well as in the brain and spinal cords, such that non-painful stimulae became interpreted by the cerebral cortex as being painful. Importantly he considers that it is an organic disorder of pain nerve pathways.
138 He, too, recommended treatment with multi-disciplinary therapy for chronic pain and other therapies. He noted the presence of the ganglion but did not consider that it was playing a major role in the current pain syndrome.[58]
[58]PCB 150
Medico-legal assessors – Defendant
139 Dr Andrew Miller, an Occupational Health consultant, saw Ms Sahin on 17 July 2005. Following his examination, he found no disturbance of colour, temperature or circulation in the upper limbs.
140 Dr Miller considered that there was no firm objective evidence of any injury or disability in the right upper limb and the various investigations have been unremarkable. Therefore the most likely diagnosis was soft tissue strain of the right wrist and elbow. He considered that Ms Sahin had recovered from the injury, apart from some low grade soft tissue infiltration, and expected a complete resolution within two months.[59]
[59]DCB 11
141 He did a worksite inspection on 17 July 2005 and recommended a return to work with restrictions. He also viewed the surveillance video, namely, the film taken on 11 and 12 August 2005.
142 Having viewed the film, he came to the conclusion that the Plaintiff did not appear to have any disability associated with her right upper limb and he considered that she would be capable of performing duties such as quality control.[60]
[60]DCB 16
143 I reject his expressed opinion concerning the surveillance video material for the reasons that I have already stated earlier in these reasons.
144 Dr Miller re-examined the Plaintiff on 20 December 2008. He noted continuing complaints of pain, the need for medication and occasional visits to hospital for painkilling injections. He could find no firm objective reproducible evidence of any active injury or physical disability. He believed the injury had resolved.[61]
[61]DCB 21
145 Dr Kevin Fraser, Rheumatologist, examined the Plaintiff on 28 June 2006 and 20 November 2008. Following his examination, he found no features of reflex sympathetic dystrophy and commented there appeared to be a significant over-reaction on physical examination. He did not consider that there was any work-related injury of a physical nature.
146 He suggested that the ongoing complaints of pain suggest a non-organic cause for the symptoms and signs, as does the over-reaction on physical examination.[62]
[62]DCB 43
147 Dr Fraser had regard to the surveillance activity report concerning what was filmed on 11 and 12 August 2005 and he believed that the report suggested that she was, in fact, using the right hand more normally than she would have him believe and that therefore there is no physical impediment to her working.[63] Given he did not see the film I have rejected this aspect of his opinion.
[63]DCB 44
148 Following a re-examination on 9 April 2014, he reported a significant over-reaction on physical examination with pain at the extremes of wrist movement and restrictions. He did not consider that there is any ongoing injury of a physical nature in the case, and indeed was of the opinion that it was doubtful that there was ever such an injury.[64]
[64]DCB 48-50
149 Given that I accept the Plaintiff’s evidence as genuine and credible I have rejected both Dr Andrew Miller and Dr Fraser’s assessments that the Plaintiff is not suffering any work related injury at present.
150 Dr G Littlejohn, Rheumatologist, examined Ms Sahin on 26 August 2011 at the request of the WorkCover agent. He agreed that she has regional pain syndrome and/or Complex Regional Pain Syndrome.[65]
[65]PCB 141
151 He noted she has clinical features of a right upper quadrant regional pain syndrome defined as regionalised spontaneous pain, abnormal tenderness, tight muscles in the region in the absence of an identifiable single peripheral or central lesion which would cause these symptoms. In other words, he says there is no evidence of ongoing tissue damage or disease in the hand, arm, shoulder girdle or neck which could cause these widespread symptoms.
152 He noted that Ms Sahin had associated non-anatomical sensory dysaesthesia symptoms in the hand, including swelling, colour change and temperature change, which would further modify the diagnosis, at least in region of Complex Regional Pain Syndrome.
153 He stated that both these diagnoses – regional pain syndrome and Complex Regional Pain Syndrome – are on the same part of the spectrum of conditions under the general table of chronic pain syndrome.[66]
[66]PCB 141
154 Dr Littlejohn considered that that condition occurred as a consequence of the soft tissue injury of her right wrist which occurred at work. He considered that she had a significant chronic pain syndrome that is contributed to by psychological factors and not tissue factor damage.[67]
[67]PCB 143
Conclusions
155 In making my findings concerning the physical consequences of the injury I have not included psychological or psychiatric consequences of her physical injury when assessing permanent serious impairment or loss of a body function (see s.134AB(38)(h)).
156 I am satisfied that this is a case where the medical evidence has sufficiently identified the physical consequences of the injury for the plaintiff.
157 As Redlich JA’s in Zivolic v Hella Australia Pty Ltd states, where there was evidence –
“... consistent with the plaintiff having suffered both physical and psychiatric or psychological injury, if the nature of the medical evidence permits the conclusion that the physical consequences of the injury constituted a serious injury, then, notwithstanding the requirements of s.134AB(38)(h), no disentangling or stripping away of psychological or psychiatric consequences may be required.”[68]
[68][2007] VSCA 142, [19]
158 I am satisfied that as a consequence of the right wrist hyperextension injury suffered on the 27 October 2004 that the Plaintiff suffers from CRPS involving the right upper arm, right wrist/hand and neck.
159 On balance, I am satisfied that there is a clear organic cause of the Plaintiff’s injury and the consequences of that result in impairment to the function of the right wrist and arm.
160 The condition is permanent in the relevant sense, in that it is unlikely to change in the future.[69]
[69]Barwon Spinners v Podolak & Ors (2007) 14 VR 622, [34]
161 I accept the evidence of Ms Sahin and that of her husband and her two children concerning the consequences of the injury.
162 I am satisfied that she has chronic and enduring pain related to her injury. As Dodds-Streeton JA remarked in Kelso v Tatiara Meat Co Pty Ltd:
“The endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a ‘very considerable’ consequence.”[70]
[70](2007) 17 VR 592, 629, [199]
163 The consequences of the injury severely affect her ability to perform activities for daily living and preclude her from carrying out heavy, physical work or work that involves activities using her right dominant arm. She relies on her husband and sons to perform the heavier household tasks. Her injury interferes with her physical functioning and interferes with her enjoyment of life.
164 Further she has no current work capacity by reason of her physical injury.
165 In summary, the pain and suffering consequences of the Plaintiff’s impairment or loss or body function of her right wrist and arm, when judged by comparison with other cases in the range of possible impairments or losses of body function could fairly be described as being more than significant or marked and as being at least very considerable. I consider the injury to be a ‘serious injury’.
166 The Plaintiff therefore has met the threshold for leave to bring proceedings for damages in respect to both pain and suffering and loss of earning capacity.
Psychiatric injury
167 I turn now to the psychiatric injury and have disregarded the physical consequences of the injury.
168 Ms Sahin has been treated by both psychologists and a psychiatrist.
169 Dr Charles M Huson, Psychologist, saw the Plaintiff at the request of Dr Garner for psychological assessment and pain management treatment during 2005. He diagnosed Post-Traumatic Stress Disorder. He assessed her on 22 September 2005. He noted she presented with severe and chronic pain in the right wrist and also pain in the right arm, shoulder and neck.[71]
[71]PCB 77
170 Dr Huson opined there appeared to be elements of RSI, carpal tunnel syndrome, neural damage and a spectre of Complex Regional Pain Syndrome was also present. There may also be an injury to the cervical spine.
171 Dr Huson opined that the Plaintiff had a complex psychological condition comprising of high levels of pain, extreme anxiety and moderate to severe depression and Post-Traumatic Stress Disorder.[72]
[72]PCB 77
172 Having regard to what he states in his communications, dated 7 November 2005 and 6 October 2005, that were sent to QBE and the Conciliation Service, I consider that he was acting more akin to an advocate on her behalf. He also strays from his area of expertise in commenting on both physical and psychiatric diagnoses for which he is not qualified to give an expressed opinion. Nonetheless, his reports form part of the context concerning the management and treatment of the Plaintiff’s condition to which I have had some regard.
173 Ms Sahin saw Dr Alex Caracatsanis, Consultant Psychiatrist, on one occasion on 16 April 2010, following a referral from Dr Thys. Dr Caracatsanis considered that she presented with a syndrome that consisted of several elements, namely, pain disorder and a chronic depressive state, perhaps best diagnosed as dysthymic disorder which carries a risk of chronic self-harm.
174 He noted that Ms Sahin had become estranged from her husband and was also tired of taking medication. She was being treated by a Turkish-speaking counsellor, Ms Semra Durmaz, who had been seeing her monthly over the past two years. He considered that that therapeutic relationship needed to be encouraged and supported as much as possible.
175 Overall, after six years with the accumulation of losses and the fact she does not speak English well and does not have a strong social network, Dr Caracatsanis did not think that Ms Sahin would be likely to recover. He did not make another appointment to see her.[73]
[73]PCB 80
176 Dr Thys referred Ms Sahin to Ms Semra Durmaz, Clinical Psychologist, in 2008 for psychological assessment and treatment. She continues to manage her and sees her regularly.
177 There are a series of reports from Ms Durmaz dated 29 January 2009, 12 July 2009, 27 March 2012 and 14 August 2014.
178 Ms Durmaz confirms that Ms Sahin fulfils the criteria for Major Depressive Disorder, as described in DSM-IV. Ms Durmaz does cognitive behavioural therapy with the Plaintiff. She has a good understanding of the Plaintiff’s situation, having been involved with her for more than six years.
179 I accept her assessment of the Plaintiff. She states that she has always been impressed by Ms Sahin’s direct manner and believes that she describes her situation with honesty and without exaggeration.[74]
[74]PCB 84
180 Ms Durmaz’s expressed opinion is that Ms Sahin has presented throughout her sessions in her reporting of pain as being consistent, and there were obvious signs of pain as indicative of her posture and movements throughout the sessions.
181 Ms Durmaz noted in one report dated 29 January 2009 that Ms Sahin’s right hand colour was different from the left hand and that it was swollen each time she has seen her.[75]
[75]PCB 84
182 Ms Sahin has been consistent with her complaints about problems with experiencing pain every time she uses or moves the right hand and she says that she still does try to undertake tasks such as cooking or vacuuming, but such activities are limited.
183 Ms Durmaz notes comprehensively the effects of the Major Depressive Disorder which she attributes to the workplace injury. By reason of her psychological condition, she does not consider that Ms Sahin is capable of suitable employment.
184 Ms Durmaz notes concentration difficulties, poor memory, sleep deprivation and lethargy. The amount of pain and psychotropic medication also leads to poor concentration and lack of alertness.[76]
[76]PCB 94
185 Ms Sahin reported to Ms Durmaz that in 2008 she had difficulty coping with depression and decided to overdose, thinking not to be a burden to her family. This attempt was thwarted. She then attempted suicide again in October 2009 and overdosed herself with medication prescribed for her ulcerative colitis. She was taken to the hospital where Ms Durmaz was contacted. Ms Sahin did not want to be treated by others due to language difficulties and did not want to use an interpreter. She was discharged from the hospital and prescribed with different anti-depressant tablets. Currently, she takes Lovan and Avanza.[77]
[77]PCB 100
186 Dr Anthony Sheehan, Consultant Psychiatrist, reviewed the Plaintiff on 15 September 2009. He diagnosed Chronic Major Depressive Disorder, moderately severe attributable to the injury at work suffered in 2004. He considered by reference to her psychiatric condition that she has no current capacity for work in her pre-injury duties or generally.[78]
[78]PCB 156
187 Her prognosis is poor. There is unlikely to be any significant improvement in her condition in the foreseeable future.[79] There were no inconsistencies noted in her presentation. Her psychiatric condition impacts severely on her activities of daily living.
[79]PCB 157
188 Professor Dennerstein, Psychiatrist, saw Ms Sahin on 26 November 2008 and 21 January 2010. She confirmed the diagnosis of Adjustment Disorder with mixed anxiety and depressed mood, and confirmed that the psychiatric disorder is related to her compensable injury and that she does not have any current work capacity.[80]
[80]DCB 249
189 In her later report dated 21 January 2010, Professor Dennerstein states Ms Sahin has no current capacity for pre-injury work, she has no current capacity for work generally or to undertake work in the future. Her psychiatric disorder has made her socially withdrawn, affected her mood and made her anxious. She is not able to tolerate being around people other than her husband, sons and husband’s cousin. She suffers anxiety attacks when she ventures to the supermarket.[81]
[81]DCB 250
Defendant’s medico-legal examinations in relation to the psychiatric injury
190 Professor Ball, Psychiatrist, diagnosed an Adjustment Reaction with depression and anxiety that may have been transferred to a chronic pain syndrome or somatisation disorder on 7 September 2005.[82]
[82]DCB 28
191 He then expressed reservations as to her veracity after seeing the surveillance material on 12 August 2005. He confirmed his expressed opinion on 16 October 2008 at review.[83]
[83]DCB 40
192 Dr Nigel Strauss, Consultant Psychiatrist, confirmed his diagnosis of Major Depression and pain disorder when he reviewed Ms Sahin on 15 June 2011,[84] but then expressed reservations as to veracity after seeing the surveillance material taken on 12 August 2005.[85]
[84]DCB 73
[85]DCB 80
193 However, I do not have any concerns about the Plaintiff’s veracity arising from the surveillance material. I have had regard nonetheless to both Professor Ball and Dr Strauss’s initial diagnoses.
194 Associate Professor George Mendelson, Consultant Psychiatrist, reviewed the Plaintiff once on 11 April 2014 and concluded that she did not suffer any diagnosable mental disorder.[86] His views are out of kilter with all other psychiatric examinations. I have disregarded his expressed opinion.
[86]DCB 94
Conclusions
195 I accept the expressed opinions of Professor Dennerstein, Ms Durmaz, Dr Thys and Dr Sheehan concerning the Plaintiff’s psychiatric condition.
196 I find that as a consequence of the compensable injury that Ms Sahin suffers Major Depression and/or Adjustment Disorder with depressive features and that, as a consequence of her psychiatric condition, she has suffered an aggravation of her ulcerative colitis.
197 I refer to the concession made by Mr McKenzie during the hearing whereby he accepted that, having regard to the expressed opinion of Dr A Jakobovits, that it is accepted that the aggravation of ulcerative colitis can be caused by stress.
198 Mr McKenzie was critical of the Plaintiff because of a number of absences from Court due to the Plaintiff’s stomach upsets. He submitted that it was all part of an act. Given my findings concerning the Plaintiff’s psychiatric condition and the fact I am satisfied she suffers severe psychiatric consequences, there is no substance in this submission.
199 I accept that as part of her condition the Plaintiff suffers anxiety and when she is anxious or upset she is more likely to vomit. This is consistent with what was recorded by both Dr Jakobovits[87] and Dr Russell Brown.[88]
[87]DCB 63
[88]PCB 48
200 I am satisfied that the psychiatric injury is permanent in the relevant sense.[89]
[89]Ibid, footnote 68
201 I find by reference to her psychiatric condition only that the Plaintiff has no current capacity for work in her pre-injury duties or generally.
202 I am satisfied that the plaintiff’s ability to undertake suitable employment has been permanently destroyed from the perspective of separate consideration of both the physical injury and the psychiatric injury.
203 In light of my findings as to the plaintiff’s impairment and her incapacity for employment, I am satisfied there is no rehabilitation or retraining that would be appropriate to be undertaken by her which would alter the situation that she has a permanent loss of earning capacity of 40 per cent or more. As rehabilitation and retraining have nothing to offer the plaintiff in terms of her capacity for employment, the plaintiff has satisfied the requirements of s134AB(38)(g).
204 I consider that the Plaintiff has suffered a mental or behavioural disturbance or disorder which has a serious consequence for her in the form of disablement from work and interference with enjoyment of life, and that she has suffered a very significant pecuniary disadvantage as a consequence of that affliction.
205 Overall, I consider that the Plaintiff’s psychiatric condition, be it described as Major Depression and/or Adjustment Disorder with depressive features, does satisfy the requirements of the definition of serious injury found in s134AB(37)(c); namely, that she has a permanent severe mental or permanent severe behavioural disturbance or disorder.
206 The aggregate of these considerations leads to the conclusion that the plaintiff has suffered a “severe long term behavioural disturbance or disorder” within the meaning of paragraph (c) within the meaning of the definition of “serious injury” when judged by a comparison with other cases in the range of possible mental or behavioural disturbances.[90]
[90] See Hunter v Transport Accident Commission [2005] VSCA 1, per Nettle JA, at paragraph [44] and s134AB(38)(h) of the Act.
207 The Plaintiff has also satisfied the test in so far as pain and suffering consequences for the psychiatric injury.
208 Leave will be granted for the Plaintiff to commence common law proceedings against Auchronie Fruit Co. in respect of the pain and suffering consequences and loss of earning consequences of the right wrist/arm injury suffered at work on 27 October 2004.
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