Sahin v Victorian WorkCover Authority
[2016] VCC 829
•22 June 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-15-00602
| EDLIBAN SAHIN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE O’NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10, 11, 12, 13, 16, 17, 18, 19, 20, 23, 24, 25 and 26 May 2016 | |
DATE OF JUDGMENT: | 22 June 2016 | |
CASE MAY BE CITED AS: | Sahin v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 829 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Cause – claim by plaintiff for pain and suffering and economic loss damages – alleged negligence by employer for failing to provide a safe system of work – breach of the Occupational Health and Safety (Manual Handling) Regulations 1999 – whether negligence by employer for permitting the surface of a packing bench to become contaminated by a substance or material which prevented the smooth movement of cartons loaded with oranges, alleged to weigh approximately 20 kilograms – cardboard boxes then had to be moved from the packing bench to a conveyor belt – plaintiff alleges she suffered injury when she pushed the box which failed to move because of the affected surface – injury to her right wrist – development of Chronic Regional Pain Syndrome – various other physical and psychological sequelae – allegations of contributory negligence, including that the plaintiff failed to report the problem, or take steps to clean the surface of the bench
Legislation Cited: Occupational Health and Safety (Manual Handling) Regulations 1999
Cases Cited:Ansett Australia Ltd v Taylor [2006] VSCA 171; Fokas v Staff Australia Pty Ltd [2013] VSCA 230; Ifka v Shahin Enterprises Pty Ltd [2014] VSC 8; Laratae v Deans Pty Ltd [2016] VSCA 71; McLean v Tedman & Anor (1984) 155 CLR 306; Wyong Shire Council v Shirt (1980) 146 CLR 40; New South Wales v Fahy (2007) 232 CLR 486; Duma v Mader International Pty Ltd (2013) 42 VR 351; Maloney v Commissioner for Railways New South Wales (1978) 52 ALJR 292; Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 at 531; Mayhew v Lewington’s Transport Pty Ltd [2010] VSCA 202; Kiriwellage v Best & Less Pty Ltd [2013] VSC 355; Smith v Gellibrand Support Services Inc [2013] VSCA 368; Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; Fox v Wood (1981) 148 CLR 438
Judgment: Judgment for the plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The plaintiff appeared in person with the assistance of her husband, Mr Cetin Sahin | - |
| For the Defendant | Mr J P Gorton QC with Ms V Nadj | Hall & Wilcox |
HIS HONOUR:
Preliminary
1 Mrs Sahin commenced work for Auchronie Fruit Co Pty Ltd (in liquidation) (“the employer”) in about 2002. Her work involved packing various fruit, including oranges, into cardboard boxes at work premises in Mildura.
2 On 28 October 2004, Mrs Sahin was working at the premises packing oranges into cardboard boxes. When she completed packing a box, she attempted to push it from a packing bench onto a conveyor belt when she suffered an injury to her right wrist. She says she had to use considerable force to move the box from the bench to the conveyor belt, as the surface of the bench had been contaminated by some substance or material which made it difficult to slide smoothly. She says that she attempted on three occasions to move the cardboard container, and on the third occasion suffered an injury to her right wrist.
3 Mrs Sahin returned to work the next day for a short period and, aside from a brief attempted return to work, has not worked with the employer, nor anyone else, since.
4 The wrist has been the subject of conservative treatment by a range of doctors, and she alleges that she has suffered other physical conditions related to the original injury, including ulcerative colitis. She also alleges she has suffered an Adjustment Disorder with Anxiety and Depression.
5 The physical injury to her right wrist, Mrs Sahin says, has developed into a Chronic Regional Pain Syndrome (“CRPS”) which has affected not only her work capacity, but her ability to carry out a range of domestic and social activities and pastimes.
6 Mrs Sahin claims pain and suffering, and economic loss damages.
Conduct of the proceedings
7 This proceeding was conducted in somewhat unusual circumstances. At the outset, Mrs Sahin’s husband, Cetin Sahin (“Mr Sahin”), sought effectively to represent his wife. I was informed that he had done so in the serious injury application before the Court, in another proceeding before this Court, and before the Court of Appeal.
8 Normally, a court would not permit a person who is not a qualified legal practitioner to represent another in a proceeding, even when that person is a close relative. Mrs Sahin speaks little English, and gave her evidence through a Turkish interpreter. It would have been difficult, if not impossible, for her to conduct the proceeding on her own.
9 Mr Gorton, for the defendant, did not formally object to Mr Sahin conducting the proceedings on behalf of his wife.[1]
[1]Transcript (“T”) 66
10 At the end of the day, I am satisfied the proceeding was conducted appropriately and fairly, given Mr Sahin was representing his wife. Although not a qualified legal practitioner, he understood the concepts of cross-examination and examination-in-chief and many of the legal principles involved in the case. He conducted the proceeding efficiently, and abided by the rulings I made during the course of the evidence. While at the outset I was concerned there would be a risk that Mr Sahin’s view of the evidence and the legal principles would influence the evidence given by his wife – in other words, it would become his case, and not hers – that risk did not eventuate. I am satisfied there was no prejudice either to Mrs Sahin or to the defendant in permitting the proceeding to be conducted in this manner.
The pleadings
11 The defendant, the Victorian WorkCover Authority (“VWA”), is sued, as the employer is in liquidation.
12 According to Mrs Sahin’s Statement of Claim, she was working packing oranges for the employer on a packing line on 27 October 2004 when she attempted to push a box filled with oranges, causing her to use excessive force and strain on her right wrist and arm.
13 Mrs Sahin alleges negligence against the employer, particularised, relevantly, as:
· failing to maintain a clean packing surface
· allowing the orange box to remain on the packing surface before she commenced packing it
· allowing oranges to remain in the box while on the packing surface
· failing to ensure the packing surface was cleaned before being used by her
· failing to have appropriate procedures to ensure boxes did not become stuck on the packing surface.
14 Further, Mrs Sahin pleads a breach of Regulations 12, 13, 14 and 15 of the Occupational Health & Safety (Manual Handling) Regulations 1999 (“the Regulations”).
15 As a result of the negligence or breach of statutory duty, Mrs Sahin alleges injuries to her right wrist, hand, arm and shoulder, and to the right side of her head and right eye. She alleges a number of other physical sequelae, and a psychological reaction. She further says she has suffered ulcerative colitis.
16 Mrs Sahin claims loss of earnings and earning capacity.
17 By its Defence, the VWA denies negligence or breach of statutory duty. It did not admit the injuries alleged to have been suffered, nor the damages claimed. It pleads contributory negligence, in particular:
· failing to seek assistance
· failing to report the sticky packing surface
· attempting to push the box when there was an unclean packing surface.
Relevant evidence
18 Mrs Sahin was born in Turkey and completed her high school education. She worked in a number of jobs in Turkey, and married in 1988. She came to Australia in 1989 and has two sons, now twenty-six and twenty-four.
19 Mrs Sahin and her family lived in Mildura, and had a small farm, growing grapes. She obtained a number of certificates at the Sunraysia TAFE.[2] She worked in various jobs packing fruit around Mildura, and in 2002, commenced work with the employer. The work involved sorting and packing various fruit, in particular oranges, but also lemons, mandarins, avocados and grapefruit. She says she did not receive any written or verbal instructions as to how the work was to be carried out.
[2]Exhibit C
20 Around 2004, Mrs Sahin said she was packing approximately seventy boxes of oranges per day and worked a full twelve months of the year. Mostly she would work eight hours a day, but on some days more and on some days less.
21 Mrs Sahin worked standing on a platform. The fruit, in particular oranges, was put in hoppers (“hoppers”) at about chest height. She would place a cardboard box on a packing bench (“packing bench”) at about waist height, fill the box with oranges from the bin, and then push the box from the bench onto a conveyor belt (“conveyor belt”) on the other side of the bench.[3]
[3]See Exhibit A – Photographs of the workplace
22 Some work involved sorting the oranges, but she was unable to do this as it made her feel sick.
23 Details of her pay and work hours in the time preceding the incident were described in the employer’s payroll advice certificates.[4]
[4]Exhibit D
24 On the day of the injury, Mrs Sahin started work at about 7.00 or 8.00am. After lunch she was packing oranges. There was a cardboard box which had been partially packed by someone else, at her bench. She did not know how long it had been there nor who had packed it. She filled it to the top, closed the box, and attempted to push it onto the conveyor belt. She pushed it on two occasions, but was unable to move it. On the third occasion she used all her strength. She did not know why it was stuck. She felt pain in her right wrist and heard a sound from her right hand.[5] She told her employer but remained at work. She did not see a doctor overnight, and returned to work the next day. The wrist was swollen and sore. She was unable to work the next day, as she could only use one hand.
[5]
25 Mrs Sahin went home and called her general practitioner, Dr Jennifer Garner, but was unable to obtain an appointment. She went to see another doctor, Dr Omarjee. He bandaged her arm, and gave her tablets. She was given a certificate for a week away from work.
26 The pain did not stop, and moved from her wrist to her elbow and to her shoulder. Dr Omarjee referred her to a physiotherapist who she saw about five times. He provided various wrist supports.[6] She returned to work after the week, and attempted to provide the certificate. She was told that the police would be called, and she became upset.
[6]Exhibit F
27 Mrs Sahin was referred to an orthopaedic surgeon in Mildura, Dr Gardiner, and was sent for nerve-conduction studies. She was referred to another orthopaedic surgeon, Mr Saies, in Adelaide. She also received treatment from a hand therapist, and an occupational physician. She had a dispute with the insurer, QBE. Dr Omarjee would not listen to her, and she returned to her usual doctor, Dr Garner.
28 Mrs Sahin returned to work for a brief period, but was placed in the sorting area, and she was unable to do this work. She could not work fast, and only had the use of one hand. She became dizzy and nauseous.
29 Dr Garner referred her to a psychologist, Dr Charles Huson. She saw him on about five occasions. She stopped seeing him because he moved to Melbourne.
30 Mrs Sahin was also referred to a physiotherapist, Ms Meryl Hale, who she saw quite a number of times.
31 In June 2006, Mrs Sahin was referred to Mr Anthony Berger, a specialist hand surgeon. He arranged an ultrasound and injected a ganglion. After the injection she felt better, but then the pain came back within three to four weeks. He wanted to perform surgery to remove the ganglion, but QBE refused to admit the claim.
32 Mrs Sahin was then referred to Dr Bruce Mitchell, a pain specialist, in Melbourne. He gave her a number of injections to her neck which provided only short relief. She saw him again in April 2008 for some further injections. By that time, the pain in her right arm had spread to the right-hand side of her face. She could not afford any further treatment with this specialist.
33 Mrs Sahin was also referred to Dr Kevin Chambers, who performed a number of colonoscopies and diagnosed ulcerative colitis. She had a further colonoscopy by Dr Kaiboni, at the Mildura Hospital. There is a further colonoscopy planned.
34 Dr Chambers prescribed medication, Salazopyrin, and Mrs Sahin was taking up to nine tablets a day. It was difficult to tolerate this medication because it brought on nausea.
35 In 2008, Dr Garner moved to Melbourne, and Mrs Sahin was referred to Dr Clare Thys, another general practitioner in Mildura. Dr Thys referred her to a psychologist, Ms Semra Durmaz, who she found helpful, as she could speak Turkish to that practitioner. She saw her on a number of occasions.
36 In November 2009, Mrs Sahin took an overdose of Salazopyrin and her husband had to take her to the Mildura Hospital. She was released that night. She was upset and depressed because her arm was not getting better and she could not work. Her husband quit his job and became her carer.
37 On an occasion in February 2010, Mrs Sahin was at the airport to fly to Melbourne, but became nauseous and could not travel.
38 Mrs Sahin has been to the Mildura Base Hospital on a number of occasions for treatment for her right arm pain. Pain-relieving medication was provided, including Endone.[7]
[7]See exhibit Q
39 In October 2009, she was taken to St Vincent’s Hospital because of arm pain and given pain-relieving medication. She has also seen a massage therapist.
40 Currently, Mrs Sahin complains of constant pain in her right hand, in particular on the back of the right hand. It goes up to the inside of the right elbow and to the shoulder. She has a stiff and sore neck, and the right-hand side of her face is affected. Sometimes her right eye feels like it might “pop out”. She has a lack of sensation in the small and ring fingers of her right hand.
41 She cannot lift heavy objects, nor open lids or cans. It is difficult to apply pressure using her right hand. She uses a sling occasionally, and a heat-pack for her shoulder. The pain is always there and, at worst, is 10 out of 10. If the pain is normal, it is 4 to 5 out of 10.
42 Mrs Sahin’s sleep is affected, and she takes medication for sleep. Sometimes her hand “clicks” and stays frozen. She feels as if her arm is not part of her body. She takes Panadeine for the pain, and if it is bad, takes Endone.
43 She used to take more medication, but she had a reaction to it and now takes less.
44 She says her life has changed and she feels useless. She does not want to see people and go out. She stays indoors and does not communicate well with her husband or children.
45 Mrs Sahin takes Pristiq, one tablet at night. She has ulcerative colitis, which is unpleasant and noisy. She has to go to the toilet regularly.
46 Photographs of swelling in Mrs Sahin’s hands were tendered.[8] She wears wrist supports, and sometimes feels like her veins are about to “pop out”.
[8]Exhibit T
47 She has not returned to work in any capacity, save for the brief episode after she suffered the injury.
48 In relation to cleaning of the packing bench, she would clean it by wiping it down with a cloth and sometimes a spray bottle. It depended on the quality of the oranges. If they were bad, she might need to clean up the orange juice two to three times a day. If the oranges were good, sometimes not at all. As far as she knew, there was no cleaning system.
49 Mrs Sahin was then cross-examined. She said that she had been wearing a wrist brace and keeping her hands still since the injury in 2004. It was suggested to her that she had a better capacity to speak English than she was conveying to the Court.
50 Mrs Sahin was taken to her taxation returns over the years 2000 to 2004.[9] Over those years, she received only modest wages which, it was suggested, was in contrast to her evidence that around the time of the incident, she was a hardworking person working long hours and in full-time work.[10]
[9]Exhibit 1
[10]T67 – T82
51 Further, in relation to the TAFE courses she had undertaken,[11] in fact, she had only completed about half of the subjects and had not finished others. She denied that she had exaggerated these courses for the purpose of impressing the Court as to the level she was prepared to go, to remain employed.
[11]Exhibit C
52 In relation to the system of work, she knew that sometimes damaged oranges came onto the packing line. She said she accepted it was part of the packer’s job to identify these oranges and put them in the bin. She accepted that, sometimes, orange juice got onto the packing bench, and that it was part of the packer’s job to wipe up orange juice in that area. She had cloths and sprays for that purpose. She cleaned her own area. She accepted that if the packing bench was clean, the boxes moved easily onto the conveyor belt. The problem with the orange juice was that it was sticky and that was the reason it needed to be wiped up. If a box did not move easily, then it was probably the orange juice stuck to the box or the packing bench. She was paid by the hour and there was no quota, but she was expected to work at a fast pace. She packed reasonably carefully.
53 In relation to the brace worn on her wrist, she did not wear it at night but wears it during the day most of the time. If she goes walking, she uses a sling or has her hand raised, as, if she lets it hang down, it becomes painful. She uses the hand from time to time, trying to lift objects, but it is often painful.
54 In relation to the movement of the boxes, Mrs Sahin said that if she noticed juice at the packing bench, she would clean it up. Before lunch, she had been working at another area. After lunch, she came to the packing bench and found the box that had been partly filled. She completed the filling process and injured her hand when she was pushing it. After, she was told to go to another area to work.
55 Mrs Sahin denied being told by the employer that if there was any problem with the work system, to contact a supervisor.[12]
[12]See exhibit 2 – Interrogatories 5 and 6 and the plaintiff’s Answers
56 When she hurt her wrist, she gave the box a light push but it did not move. She pushed a bit harder and it may have moved a little. It was suggested to her that she must have known something was wrong. It was suggested that on the third occasion when she had given evidence that she pushed with all her might, that she was exaggerating. She denied this. She said it was her job and she had to push the box onto the conveyor belt. Boxes did not always move without a problem. The box may have been stuck because of orange juice. It was suggested that given she had tried on two occasions to push the box and it had not moved onto the conveyor belt, she should have attempted to “jiggle” the box free. She said she may have done that but could not remember.
57 Mrs Sahin said that she had heard from other people in the premises that boxes were not moving well in that area.[13] She said she used both hands to push the box. She could not remember whether the push was with her fingers up or down, but usually she pushed with her fingers up.
[13]That had not been mentioned in evidence-in-chief
58 It was suggested to Mrs Sahin that she did not have to push as hard as she said. She said she had to push the box onto the conveyor belt. It was suggested she ought to have looked and found out what was preventing the box from moving before pushing the third time. She said she was told by the supervisor, Steve, to go to another area of the premises to pack oranges just after she hurt her wrist.
59 Mrs Sahin was taken to the clinical notes of the early treating general practitioner, Dr Omarjee. It was put to her that over the period when she first saw Dr Omarjee in October 2004 until she went to see another doctor, there was no complaint of swelling to the wrist nor of pain to the head, eye, neck or shoulder. Mrs Sahin said her hand was swollen on the first occasion she saw Dr Omarjee, but she could not recall whether it was swollen on other occasions, or whether she complained to that practitioner of pain in her neck, head, eye or shoulder.
60 Despite reference in Dr Omarjee’s clinical notes of 1 December 2004 that her wrist was improving, she said it was getting worse.
61 Mrs Sahin was challenged on her evidence that one of the bosses, Norma, threatened to call the police. She said this did occur.
62 Mrs Sahin was taken to a WorkCover Certificate of 10 February 2005 which certified her as fit for light duties on restricted hours.[14] She said she did not return to this work because the work involved sorting oranges which made her dizzy. She did not seek or take any medication in relation to this.
[14]Exhibit 3
63 She was taken to a return-to-work plan of June 2005[15] which suggested work for four hours a day with no use of her right hand. At about that time, Dr Omarjee recorded that she wanted to remain unfit for work. She said Dr Omarjee did not believe her that she could not return to work. She thought she became dizzy when doing the sorting work because of the oranges passing in front of her on a conveyor belt. She said that when she went to work, she was told she could not work with one hand. On her only return to work, she lasted a short time but could not recall how long. She told Professor Mendelson that she lasted 10 minutes. She stopped because of dizziness, and not because of pain, as told to various doctors.
[15]Exhibit 4
64 Mrs Sahin could not recall telling Dr Andrew Miller, occupational health consultant, about complaints of pain in her neck, head, eye or shoulder, nor of swelling around the wrist. She saw Dr Miller in July 2005, likewise, Professor John King, neurologist, who she saw in August 2005. She saw Professor Ball, psychiatrist, in September 2005. According to his records, she had no movement of her right hand at all.
65 Video surveillance of Mrs Sahin on a number of occasions in 2005 and early 2006 was shown and tendered. On 12 August 2005, she was shown with a number of friends, reaching into the boot of a car. She appeared to be arranging or re-arranging items in the boot. At one point, she reached up to the boot of the car with her right hand without any apparent difficulty. At another point, she picked up a plastic bag carrying mandarins in her right hand, took it from the boot of the car, raised it over a fence and gave it to a girl on the other side. Throughout the period when she was working in the boot, she appeared to move and use the right hand and arm without any difficulty.
66 Mrs Sahin explained that she had in fact dropped the bag at one point because of pain in her arm. That is not at all apparent from the video. She said she only put two or three mandarins in the bag to give to the girl. The manner in which she was able to use her right arm stands in significant contrast to the history that she gave to doctors around that time, including to:
(i) Mr Saies, on 15 March 2006,[16] where he noted that upon examination there was extreme hypersensitivity to all aspects of the examination;
[16]Exhibit G
(ii) Professor John King, on 2 August 2005,[17] to whom she described ongoing pain in the right wrist, up the forearm, which was painful when walking, with collapsing weakness of all muscle groups;
[17]Exhibit 12
(iii) Professor Richard Ball, whom she saw on 2 September 2005 and to whom she complained of constant pain in the right hand, not being able to grip properly and unable to do a range of household tasks;
(iv) Ms Meryl Hale, treating physiotherapist, whom she saw in March 2006. According to a history provided, Mrs Sahin described very limited use of the right arm because of pain and in fact the physiotherapist was unable to touch her wrist at all;[18]
(v) Dr Kevin Fraser, whom she saw in June 2006[19] and to whom she complained of constant pain in the right arm, aggravated by any physical activity, even swinging her arm while walking.
[18]PCB 18
[19]DCB 83
67 At least, according to the medical reports of these various practitioners, there was no complaint of swelling, nor changes of colour nor temperature to the arm.[20]
[20]See also the report of Mr Mills – PCB 41 – whom the plaintiff saw on 25 November 2005
68 Mrs Sahin was questioned about a history provided to the treating psychiatrist, Dr Alex Caracatsanis, to whom she was referred in April 2010. According to that history, following the death of her brother from cancer in 2005 or 2006, she “lost interest in living” and was “waiting to die”. She said she suffered these symptoms before the death of her brother. She further gave evidence that she heard voices in her head, with people speaking to her. This continued occasionally to the present time.
69 Mrs Sahin was questioned about injections provided by Dr Bruce Mitchell, the pain specialist. It was suggested to her that without her wrist pain, she would be unable to work because of the neck pain. She gave an unresponsive answer.
70 She was referred to a report of Access Employment[21] where, in December 2004, she had complained of pain not only in her wrist, but also elbow, shoulder and neck.
[21]DCB 160
71 Reference was made to the surveillance film that at one point she closed the driver’s side door (when she was in the driver’s seat) using her left hand across her body.
72 In relation to suicidal thoughts, she had them before the death of her brother. She had not heard any voices before the injury. They started afterwards.
73 In relation to the system of work, she said oranges were washed, waxed and possibly dried and then had stickers put on them. The stickers came off sometimes, as were shown in the photographs.[22] If she constructed a box from a flat pack, she would know if it was sticky underneath. If no one was there, the juice could leak through to the bench or the ground. She did not know whether the box which became stuck was stuck because of juice or stickers on the bench or wax. The system was just ‘push the box’. That was her duty.
[22]Exhibit A
74 In relation to the episode of wrist pain before her injury, she said she did not receive any medication, was not referred to a specialist, and saw the doctor only once.
75 If there was downtime at work, and boxes were already made up, they were sent home, to await a telephone call to return when work was available.
76 The oranges she put in the subject box were large ones, big and juicy. She said there was little time to do an inspection. They had to fill the boxes fast and push them in a quick way.
77 Evidence was then given by Mrs Sahin’s husband, Cetlan Sahin.
78 Before the injury, he said his wife was a hard worker, cared for her children, was happy, outgoing and social. She enjoyed plants in the garden. She assisted on their 20-acre grape property, in particular at harvest time and during the pruning. She also took the children to school.
79 In 2000, the farm was wiped out by a frost, and affected badly by disease the next year. In 2002, they sold the farm. Mr Sahin was the owner and builder of a house and that occupied his time.
80 In 2001 or 2002, his wife worked for a fruit packer. She then worked for the employer in 2002, and in 2003, for another company, Elite Producers. There were other employers and then she eventually returned to the employer in 2004. She worked long hours, 50 to 60 hours a week, before she hurt her wrist. She was a career person. When he met her in Turkey, she was working in a hospital as an administrator.
81 On the day of the incident, she came home and thought that she had sprained her wrist. The morning after the injury, her wrist was up like a balloon, but she returned to work. She started dropping and breaking things. Both he and his wife returned to the workplace with the certificate. Norma Ryan was there and she said she “knows how the system works”. She asked whether the general practitioner, Dr Omarjee, was Turkish.
82 When Mrs Sahin took the second certificate in, he was not there but received a telephone call. His wife was hysterical and said that the police had been called.
83 Mr Sahin rang QBE and spoke to Rachael and explained what had happened. Subsequently, the certificates were sent by mail.
84 The pain started to go up her arm to her neck and the side of her head a week or two after injury. The area became stiff.
85 Shortly after the incident, Mr Sahin said he thought there was a risk his wife had suffered a stroke. Her arm was stiff. The pain went up to her shoulder and neck but then subsided after an hour or two. This was within a week or two of the incident.
86 His wife was upset to return to work with the same employer. QBE said she had to return and do a sorting job. He and his wife spoke to Dr Omarjee. He said “no one will employ you” and “it is good to try to return to work”. They said there was a problem with the sorting but Dr Omarjee would not agree. He said “get your eyes checked”. That was done but there was nothing wrong.
87 In 2005, it was specified that his wife return to work with the employer. She was too sick and lasted only ten to fifteen minutes. They went to see Mr Berger, who wanted to operate on the ganglion, but QBE refused to fund the surgery.
88 They went to a number of doctors. Those who examined the arm by pressing on it caused a great deal of pain. The physiotherapist, Mr Wilman, who his wife saw in 2004, pressed on the shoulder and caused severe pain. That was stopped after five visits.
89 When they visited Professor King to conduct the nerve studies, his wife was in bad pain. She cried and left.
90 He had to do many tasks around the house, including preparation of food, opening bottles and jars and simple tasks like spreading something on bread. Sometimes she could not lift coffee or a tomato.
91 The pain was increasing. The episodes of severe pain now last about 40 hours whereas previously they would last 24 hours. He started to take photographs in 2014 for the serious injury application. His wife’s hand was swollen at times over the last twelve years.
92 In cross-examination, he agreed that before the incident, his wife would do all the cleaning, housework, cooking and shopping but since, the whole family helped in those chores.
93 Mr Sahin confirmed that in 2000, there was a frost which severely affected the fruit crop on his property. In 2001, there was disease, and the crop was reduced. In 2004, they sold the property to build a house. He was an owner-builder and did the building work.
94 Mr Sahin was taken to Dr Omarjee’s notes, and to the clinical notes and reports of other doctors where there was no reference to pain going up beyond the elbow into the shoulder and the side of the head. There was no reference to a “stroke” in the notes of Dr Omarjee. He was with her on all medical appointments. The notes of Dr Omarjee suggested that the physiotherapy had made her arm better. He said that was wrong, it made her worse. He could not recall whether, at any particular medical appointment, there was swelling in her right hand.
95 Mr Sahin did not want his wife to return to work with the employer because she could not work. He did not report slow gains to Dr Omarjee. He never said the pain was reduced.
96 His wife was referred to Mr Saies in Adelaide in 2005 and saw him again in March 2006. She had extreme pain when he put pressure on the arm. It was suggested this was in stark contrast to the surveillance video. He did not agree.
97 Mr Sahin agreed his wife did not want to work with the employer, although she wanted to return to work. It was suggested that she should have tried to find work elsewhere. He said QBE should have found her work. He denied saying to Dr Omarjee that he wanted her certified as unfit for work.
98 After he became her carer, Mr Sahin said there were some activities which made his wife’s right hand swell. It came and went.
99 He started building their home in Mildura in 2003. The family moved in in 2004, although the building was not completed. He commenced driving a taxi in early 2006, and continued to do so until November 2009, when his wife overdosed. At that time, he became her full-time carer.
100 Apart from a short period of treatment with a psychiatrist, Dr Caracatsanis, in 2010, Mrs Sahin has received no other psychiatric treatment. She is treated regularly by a psychologist, Dr Durmaz.
101 He said his wife had panic attacks and problems with the colitis from time to time. It happens sometimes at the shops or when she saw doctors. He acknowledged there were no such problems shown on the surveillance video.
102 His wife had not gone back to a pain management program, nor a psychiatrist, as no one had referred her. She had seen a significant number of doctors at her own expense.
103 Evidence was given by Mrs Sahin’s son, Alpa Sahin.
104 In 2004, he was eleven years of age, in Year 6. He said his mother was happy with her family and domestic chores and did everything, including cooking, cleaning and getting him ready. After the injury, she could not do many domestic tasks. Her mood and personality were affected. She was less social, and the injury had a big effect upon her. On one occasion, he saw her with pills and thought she was attempting suicide. There was another suicide attempt later in 2009.
105 In 2004, at the time of the incident, she got the children off to school and then went to work in the packing shed. She picked them up from school. His father was working on the house. Before the injury, she did all the housework, cooking, cleaning and shopping. Afterwards, other people in the family helped her. It was a big change.
106 Evidence was given by a director of the employer, Mr Dennis Ryan.
107 Mr Ryan was a police officer, including in Mildura, until 1972. He worked for a period with the Citrus Fruit Marketing Board until 1975, when he started his own “fruit shed”. He married his second wife, Norma Ryan, in 1992. He built up the premises and the equipment. The photographs[23] showed the equipment, although he was unable to say whether the photographs were taken around 2004.
[23]Exhibit A
108 In all the time he was involved in the orange packing business, he had never known of an arm injury where someone hurt themselves pushing a box. He did not consider the workers to be at risk of injury. He did not undertake a risk assessment under the Regulations. In fact, he did not know what they were. There were health and safety people from Bendigo who came regularly to the premises.
109 Mr Ryan recalled the plaintiff, although not well. He spoke to her in English about a range of topics. He had been involved with migrant workers in the area. He completed the entry in the Injury Register. The business failed to make a profit and he sold it, he thought in about 2004 to 2005.
110 Mr Ryan had never known a box to stick when it was pushed by a packer from the packing bench onto the conveyor belt. He said that was not a problem for him. The WorkCover matters were handled by his wife, who died some years earlier. He said she was not the type of person to have made threats and to call the police when Mrs Sahin returned to work with a WorkCover Certificate.
111 Mr Ryan said the boxes weighed between 19 and 23 kilograms. The packing bench was sloped slightly towards the packer so a good view of the box could be had. The push from that position onto the conveyor belt was about 6 to 8 inches from the back of the box. Sometimes the stickers came off the oranges.
112 Mr Ryan said the machinery and the premises were cleaned regularly. They were cleaned by Steve, Margaret and himself. The packing bench would be wiped down and sprayed with a silicone spray. He thought it was done before and after work. He thought it was done during the day. The system was that the packers would complain to himself, Margaret or Steve about any problems, and they would attend to the problem. There were no written records of any cleaning system.
113 If a packer partially filled a box then that packer could be called somewhere else. It was feasible for a box to be left partially packed over lunch. It would not be left long. The “law of the shed” meant that a box was never left half packed overnight.
114 According to the Claim Form, Mrs Sahin’s wages were $14.25 per hour, or $570.00 gross per week. The high season was from July to October. The packers would work, in the high season, eight hours a day, sometimes more with overtime. When there was less work, their hours would be reduced. The number of orange boxes packed per day varied. It depended on the packer. Some packed 50 boxes per day, some over 100. It depended on the experience and the dexterity of the packer. One lady packed over 100.
115 He thought that it was unlikely orange juice would leak onto the packing bench, but orange juice did occasionally get onto the area. Orange juice, if it spilt, would take some time to dry. Even with that, the force required to move a box was not considerable. In fact, it was generally a gentle push. He did not see that there was any risk of injury to packers on the packing bench pushing the boxes. The area was wiped down regularly. He denied it was sensible or appropriate to clean the area at lunchtime, as well as before and after work.
116 Evidence was given by Ms Muberra Acikgoz. She is a friend of Mrs Sahin, and worked for the employer in Mildura from 2001 to 2006. She used to pack oranges and other fruits, including mandarins, and also worked doing the sorting. The oranges would get washed, waxed, have stickers applied and then placed in hoppers according to their size. She was shown photographs of the work area.[24] In photograph 2, she said stickers regularly came off the oranges and stuck to the packing bench. There was dirt, and sometimes orange juice on the packing bench, and once the boxes were full of oranges they were sometimes hard to push as they were heavy. It could happen once, or up to four times per day, depending on the quality of the oranges. Sometimes the oranges at the bottom were rotten. You had to pack fast and you could not get help from someone next door. There were no instructions given as to how hard to push a box. If a box was there for a while, sometimes there was juice on the box and it was hard to push. They used to wear gloves, and the gloves got wet with the juice.
[24]Exhibit A
117 In 2005, Ms Acikgoz saw Mrs Sahin attempt to return to work. She got sick and fainted on the sorting line.
118 Ms Acikgoz moved to Melbourne in 2007. She did not see much of Mrs Sahin from 2004 to 2007, and since 2007, has seen her on three or so occasions. She was not the bubbly, social, outgoing person as before. She had put on weight and did not seem herself.
119 Ms Acikgoz was not present when Mrs Sahin suffered injury. The packing season for oranges goes from May or June through until November sometimes. It was not full time, although there was work available in other fruit packing sheds. The work was unpredictable and you did not know how much you are going to get. Sometimes you went from the oranges to the grapes. Most of the time the boxes moved quite easily, but sometimes you have to push “with all my might”. She was first asked to give evidence only a few days before.
120 The packers would clean up the orange juice if they saw it. Sometimes you might miss it. Mrs Acikgoz never suffered an injury there, nor knew of anyone else who suffered an injury to her wrist. In any eight-hour shift she might do up to 150 boxes. She was a fast packer. She thought usually packers would pack more than 70 boxes per day.
121 Evidence was given by Ms Margaret Alford. She commenced to work for the employer in 1998. She was there in 2004 and knew the plaintiff. She had not heard of injuries to packers’ arms or wrists. She did various jobs, including packing and supervising. She did not have any problems pushing the box of oranges onto the conveyor belt. She could not recall wet or damaged boxes. The labels were not a problem. She said the plaintiff was a good worker. She saw damaged fruit coming in from the hoppers. Sometimes juice dripped onto the packing shelf. You could see it. Sometimes oranges were rotten and you would take them out. You could see if it leaked. The labels may stick to the stainless steel but they would not stop the box being pushed.
122 Evidence was given by Mrs Alford’s husband, Mr Steven Alford. He worked for the employer over a number of years, including in 2004. He was a supervisor at the time. Ninety per cent of his workday was spent outside driving a forklift and unloading trucks. He first knew of Mrs Sahin’s injury the following day. He said no-one was rushed to finish packing a box. He did not yell at workers.
123 Mr Alford was taken to the Employer’s Claim for Compensation which recorded that the injury was reported to him. He could not recall that. He recalled her coming to work the next day and going home. In relation to the machines, they would be cleaned. Nine out of ten times when a problem was reported, it was not really a problem. He was not aware of any problem with the workers pushing the boxes.
Medical evidence
124 Evidence was given by Mr Felix Behan, specialist hand surgeon. His reports were tendered into evidence.[25] He saw Mrs Sahin on two occasions in 2008 and 2010. He noticed and photographed swelling of the right hand, together with a loss of normal “guttering” between the tendons on the back of the right hand. He diagnosed her as suffering CRPS and a dorsal wrist ganglion. He related the CRPS to her employment, in particular, to pushing the box which had become stuck. He said the “click” the plaintiff experienced may have been the start of a ganglion. On balance, he thought the ganglion was work related. At the time he saw Mrs Sahin, he said she had no work capacity and was unlikely to be able to work into the future. He said Mrs Sahin was genuinely experiencing severe pain consistent with the symptoms and signs of CRPS.
[25]Exhibit E
125 Mr Behan also noted that Mrs Sahin was suffering from a psychiatric condition which he thought, by 2010, had worsened. He said the overdose taken by Mrs Sahin showed her to be in a desperate psychological state. She had severe intractable pain, and he saw no reason to question that it was genuine.
126 Mr Behan was shown other photographs, tendered by Mr Sahin.[26] He said those photographs showed a progression of the CRPS from the time he saw her. With proper treatment through a pain management clinic, with the involvement of a psychiatrist and possibly ketamine infusion with an anaesthetic team, there would be the prospect of 50 per cent improvement, although it would be difficult given how much time had passed. He said at the present time, she had no work capacity.
[26]Exhibit T
127 In cross-examination, Mr Behan said the “click” that she heard may have been a bulge from the synovial lining. He thought probably the ganglion was related to pushing at work in 2004.
128 Mr Behan said it was likely Mrs Sahin had a psychological predisposition such that her psychiatric condition had a very substantial effect. He said pain regularly travels up the arm to the shoulder from a wrist injury. Normally, he would have expected the onset of the CRPS earlier than a year or eighteen months after the incident, but sometimes that happens. He said it was hard to assess the link some years later. A general practitioner may not pick up CRPS. The experts usually do.
129 Mr Behan was taken to various reports of treating and consultant doctors over the years up until 2006 and 2007 where there was little if any reference to symptoms associated with CRPS. He said that would tend to indicate that the syndrome had not fully developed, but may have been in the early stages. It is a graduated process.
130 Mr Behan thought that the psychiatric overlay was part of the problem and had “kicked the pain along”. Her psychological makeup made her susceptible.
131 Mr Behan was taken to the report of Mr Berger, a hand surgeon experienced in this area. That was in June 2006. If Mr Berger failed to diagnose CRPS, it would indicate it had not emerged at that time. He respected the opinion of Mr Berger and of Dr Blombery. Normally he would expect the disorder to have been established within four years. It was unusual not to find the signs within four years. He said a properly adjusted brace would only cause swelling if it was too tight or improperly fitted. The shiny effect upon skin was not caused by a brace.
132 Mr Behan was shown the video surveillance, in particular, of the film where Mrs Sahin used her hands in the boot of the car and picked up a bag of mandarins. He said manual dexterity was evident and her presentation was very different from when she saw him. He said the video showing her reaching across her body to shut the door was consistent with protecting the hand.
133 Mr Behan said the physical pain and the psychiatric condition were interlinked. One aggravates the other. Comorbidities, including pain emanating from the neck, could be made worse by CRPS.
134 Mr Behan concluded that Mrs Sahin’s complaints were genuine. He had no doubt about it.
135 Evidence was given by Mrs Sahin’s treating psychologist, Ms Semra Durmaz. Her various reports over the years from 2009 to 2016 were tendered into evidence.[27] She commenced treatment of Mrs Sahin in late 2008 at the referral of a general practitioner, and continues to treat her through to the present. Given the treatment can only be provided on Medicare, Mrs Sahin is limited to ten sessions per year.
[27]Exhibit FF
136 According to Ms Durmaz’s reports, she described Mrs Sahin’s presentation over the years as being severely affected by a Major Depressive Disorder. She said that she had a significant depressed mood most of the time in the counselling sessions. There was reduced self-esteem and confidence. There were frequent mood swings and anger. Mrs Sahin described herself as feeling useless and worthless nearly every day. There was no motivation because of ongoing chronic pain. Mrs Sahin described suicidal ideation, in particular, in 2008 and 2009. On the latter occasion, she was hospitalised in a psychiatric unit.
137 Mrs Sahin said that she had become totally dependent on her husband. She fulfilled the diagnostic criteria for a Major Depressive Disorder. Mrs Sahin presented regularly with a sleeve or protective device, but she would regularly notice that the right hand was red and swollen. She cried frequently, expressed frustration at the effect of the injury upon her life and, more recently, said that she spent most of her time isolated from her family and lacking interest in social and leisure activities. According to various psychological assessment scales, she met the criteria for suffering severe levels of anxiety and depressive symptoms, and with constant pain. Ms Durmaz said this presentation was consistent throughout her treatment. The treatment involved cognitive behavioural therapy and antidepressants. She said Mrs Sahin needed assistance with coping skills and therapy to improve her self-esteem, as well as to treat the depression and anxiety.
138 She described the prognosis as very poor and said Mrs Sahin required more extensive psychological and psychiatric treatment. She said Mrs Sahin was comfortable in their treatment sessions, given she spoke Turkish. She described the level of psychological disability as very significant and it affected many aspects of her life, including her capacity to enjoy social, recreational, family and work activities. She concluded that Mrs Sahin had no capacity for her previous duties, nor for any form of alternative duties.
139 All of these psychological symptoms had developed as a result of the workplace incident in 2004. She concluded:
“Mrs Sahin has lost enjoyment of life, quality of life and her connections with community and family members. She lives alone in her own world, despite her husband and two adult sons are trying to engage her. Her current psychological condition has a negative impact on her family members as they extremely worry about her state of mind.”[28]
[28]PCB, Volume 2, page 135
140 Ms Durmaz was cross-examined. She thought that, overall, Mrs Sahin’s condition had worsened over the years. It was put to her that there were various other issues in her life which contributed to her psychological condition. These included:
·the death of her brother
·the legal issue of determination of her medical and like expenses
·substantial commercial litigation in which she was involved, and in respect of which her husband again acted
·nightmares
·voices in her head.
141 It was said that these events occurred over the years 2004 to 2008 and contributed to her problems. Ms Durmaz did not agree. She said her reaction to her brother’s death, while one of regret for not being able to travel overseas initially, was a normal grief reaction. The voices in her head, she described as probably associated with stress and panic of the injury. The other matters did not feature in their clinical sessions.
142 Ms Durmaz said Mrs Sahin was upset by the fact that she could not get appropriate physical treatment which may have made a difference to her condition. In their sessions, Mrs Sahin did not display panic attacks nor the symptoms of colitis, as she found the environment safe.
143 She disagreed with the opinion of Professor Mendelson, that Mrs Sahin had developed an invalid role and did not suffer a significant psychological condition. She said that given Mrs Sahin had suffered significant psychological consequences over, now, twelve years, no one who had previously been an active worker and involved in a family would voluntarily seek to assume such a role. She said it was as a result of her Major Depressive Disorder.
144 She was taken to the report of Dr Caracatsanis, of 23 April 2010. She agreed with most of the matters referred to in that report, but said that Mrs Sahin’s reaction to her brother’s death was normal grief.
145 Various reports of Mr Andrew Saies, orthopaedic surgeon of Adelaide, were tendered.[29] Mrs Sahin was referred to him by Dr Garner in April 2005. He observed that Mrs Sahin had chronic wrist pain related to the pushing incident but was uncertain of the diagnosis. He suggested she use a brace. He saw her again a year later, in 2006, and, again, he could not find any wrist pathology. At the attendance on 15 March 2006, a year after the first visit, Mrs Sahin complained of ongoing pain in the hand and wrist. Examination revealed hypersensitivity to all aspects of examination and pain out of keeping. She had a full range of motion. He diagnosed CRPS. He suggested referral to a pain clinic.
[29]Exhibit G
146 A number of reports of Mr Kevin Chambers, surgeon, were tendered.[30] He performed colonoscopies in August 2007 and November 2008. He performed a gastroscopy in November 2008 and a further colonoscopy in September 2009.
[30]Exhibit M
147 According to notes at the Mildura Base Hospital of 9 June 2008,[31] Mrs Sahin presented, complaining of pain in her right arm and mild swelling was seen on examination. CRPS was diagnosed. A similar diagnosis was reached in January 2011. Significant depression was noted related to the chronic pain issues. There was a further attendance at the Mildura Base Hospital in December 2014.
[31]Exhibit Q
148 Various reports of Mr Charles Huson, psychologist, were tendered.[32] The reports suggest Mrs Sahin was suffering a complex medical and psychological condition, with high levels of pain, extreme anxiety and moderate to severe depression. The report also refers to what is said to be “appalling treatment from both the employer and an over-zealous insurer”.[33]
[32]Exhibit X
[33]Exhibit X
149 Two reports of Ms Meryl Hale, physiotherapist, were tendered.[34] She treated Mrs Sahin in November 2005 for right wrist pain and pain to the elbow. She said that there was a history of throbbing through to the right upper-trapezius region. According to the report of May 2006, she was unable to touch Mrs Sahin’s wrist. The report concludes:
“Edliban is very consistent in 2 matters:
i) the locality & description of her pain; and
ii) her persistence in using the arm/hand as normally as possible.”[35]
[34]Exhibit Y
[35]Exhibit Y5rf
150 She thought there was a psychological component to the injury. She thought the symptoms were consistent with CRPS, although trophic changes were not present.
151 The reports of Dr Jennifer Garner of Mildura, general practitioner, were tendered.[36] According to those reports, Mrs Sahin made reasonable efforts to participate in a return-to-work program. She noted persistent pain over the wrist and an Adjustment Disorder with depressive features. She said the incapacity as a result of her injuries was significant.
[36]Exhibit Z
152 Reports of Dr Bruce Mitchell, pain management specialist, were tendered into evidence.[37] Mrs Sahin was referred to him by Dr Garner in 2007, and he first saw her in November of that year. He said she presented with classic CRPS symptoms from the neck through to the right shoulder and into the right arm and hand. There were right-sided headaches. He noted that the pain had come on after the workplace incident. On examination, he said she had classic neuropathic pain with allodynia and hyperalgesia with skin and hair changes. He arranged an MRI scan of her cervical spine, given her complaints of pain in that area, and noted mild lipping on the right C3-4 disc and minimal narrowing of the exit foramen. He did not believe these changes were significant. He prescribed Endep for the neuropathic pain and arranged medial branch blocks of the cervical spine. These were performed in February 2008 and resulted in reduced neck, shoulder and arm pain. This improvement was relatively short-lived. He concluded that a large element of her neck and shoulder pain was generated from her facet joints. If the pain arising from the CRPS could be controlled, there could be some rehabilitation in relation to her neck problem.
[37]Exhibit BB
153 Mrs Sahin was referred by Dr Garner to Mr Anthony Berger, hand surgeon, in June 2006.[38] She complained to him of widespread pain in the right wrist and forearm, which started after pushing the box. The complaint of pain included the wrist radiating to the shoulder. He arranged an ultrasound which confirmed the presence of a small ganglion, which he said seemed to correspond well with the side of her maximal pain. In July 2006, he sought approval for surgery to remove the ganglion, but this was not approved. He said he was not sure when the ganglion had appeared, but said, in his experience, they can arise following hyperextension injury.
[38]Exhibit AA
154 Dr Jill Tomlinson, hand surgeon, saw Mrs Sahin in May 2014, upon the referral of her general practitioner, Dr Thys.[39] She noted the long history of pain in the right arm and the prescription of various medication, including Panadeine, Endone and Metavante. On examination, she noted a mildly swollen right hand, with vascular changes and a slightly shiny skin appearance. Her clinical impression was CRPS. She recommended Mrs Sahin attended the Melbourne Hand Rehabilitation and Victoria Pain Specialists.
[39]Exhibit DD
155 Professor George Mendelson, psychiatrist, attended to give evidence. His medical reports of 2014 and 2016 were tendered.[40] He was provided with a number of medical reports from other practitioners. He described Mrs Sahin’s presentation on each occasion as being mildly anxious. He said there was nothing to indicate abnormality of perception such as hallucinations or illusions, although Mrs Sahin referred to “questions in my head …”. She made reference to suicidal ideation and constant pain in the right wrist and arm. He noted that she complained of nightmares and was frustrated at being involved in the WorkCover system.
[40]Exhibit 8
156 Professor Mendelson disagreed with the opinion of Ms Durmaz that Mrs Sahin was suffering a Major Depressive Disorder, but said she was suffering emotional symptoms which were an understandable psychological reaction to her complaints of chronic pain and restriction. He said other professionals had reinforced her belief of significant physical injury. He said she had acquired learned pain behaviour which had been reinforced by environmental factors. He said:
“… She has become entrenched in the role of an injured and disabled person, and this has been validated by the granting of the Disability Support Pension. In my opinion there is no realistic prospect of reversing this process, and I do not anticipate that Mrs Sahin will at any future time acknowledge improvement in her complaints or be motivated to become involved in a vocational rehabilitation programme with the aim of returning to any type of gainful employment.”[41]
[41]DCB 130
157 Professor Mendelson did not consider Mrs Sahin was suffering any diagnosable mental disorder, and did not require treatment from a psychiatrist or psychologist. From a psychiatric perspective, he said she had no loss of work capacity.
158 In his report of 2016, Professor Mendelson said there was an absence of any objective organic abnormality which could account for her complaints of pain involving the whole of her right arm. He disagreed with the diagnosis of CRPS.
159 In evidence, he detailed his training and experience in the area of pain management, which I accept is extensive. He expanded upon his opinion that Mrs Sahin had learned pain behaviour. He said that did not necessarily indicate that she was not suffering pain, but rather that it was not organically based. He said there were environmental factors including benefits to the person which accrue because of complaints of pain. These are perpetuated and the patient becomes entrenched in the injured and disabled role. The family starts to perform tasks for them, and this reinforces the behaviour.
160 Sometimes there are underlying reasons why people assume this role, including that they do not like their work, at least on some level.
161 Professor Mendelson said symptoms such as swelling of her wrist and the shiny skin may be related to the wearing of a wrist brace. There were certain criteria involved in determining whether a diagnosis of CRPS could be confirmed.
162 Professor Mendelson said he thought the interview with Mrs Sahin was about an hour on each occasion. He accepted that she experienced pain but that it was as a result of emotional factors, and did not have a physical or organic cause. He was not suggesting she was exaggerating nor pretending. Most of the forensic work he did was for defendants’ firms rather than plaintiffs’ firms. He confirmed, in his view, Mrs Sahin did not have a diagnosable psychiatric disorder, but an emotional reaction. He did not think she was exaggerating and believed she was genuinely distressed by what was happening to her.
163 Evidence was given by the original treating general practitioner, Dr Ahmed Omarjee. He commenced work as a general practitioner in 2003 and worked in Mildura in 2004 and 2005.
164 Dr Omarjee was taken to his consultation notes.[42] Throughout the period he treated Mrs Sahin from 28 October 2004 until June 2005, his notes do not record any symptoms of swelling, nor pain extending beyond the elbow to the right shoulder, right neck and right side of the face. He said he would have made these recordings had Mrs Sahin complained of problems in those areas. He would record swelling if it was “gross” swelling but not if it was minor. Gross swelling could mean some significant underlying problem. If there had of been any symptoms suggested of a stroke, he would have noted them, as that would represent a medical emergency.
[42]Exhibit 5
165 The entry of 1 December 2004 indicated from examination and history, that Mrs Sahin’s condition was improving. He had further recorded that the sessions of physiotherapy had made “good going”.
166 Dr Omarjee received a telephone call from a VWA doctor, Dr Ray Moore. He could not recall whether the telephone conversation was specific to Mrs Sahin, or general.
167 Both Mrs Sahin and her husband were pessimistic about her prospects for return to work and were apprehensive. He was of the view that Mrs Sahin should try some employment as the longer she was out of the workforce, the more difficult it would be to return.
168 On 16 June 2005, he recorded that Mrs Sahin had refused to accept the injury and restrictions it placed on her and her WorkCover commitments. There were no findings on radiology to show significant physical problems. She did not want to participate in recovery. Mr Sahin was very defensive of his wife. He thought the problem was a soft-tissue injury, possibly a sprain.
169 Dr Omarjee denied that he changed the work capacity of Mrs Sahin on the Certificates of Capacity at the request of the VWA or its officers. He was told about Mrs Sahin becoming dizzy from work, but that was not until the last appointment on 16 June 2005, after she had attempted to return to work.
170 Evidence was given by Dr Kevin Fraser, rheumatologist, and his several reports were tendered into evidence.[43]
[43]Exhibit 13, DCB 83 – 96
171 According to his first report, Dr Fraser received a history in June 2006 that the pain in her wrist was constant and aggravated by any physical activity, including swinging her arm when walking. In that, and each subsequent examination, Dr Fraser found no evidence of swelling nor other changes indicating symptoms of CRPS. He concluded that he was not convinced there was ever any work-related injury. He said there were strong non-organic signs and symptoms and an overreaction on physical examination. In fact, in the examinations of 2014 and 2016, Mrs Sahin refused to allow him to touch her arm. The history he obtained from her was that the condition was deteriorating over time. By 2008 she was describing symptoms involving her right head and right eye. He found no anatomical basis for these symptoms.
172 In the final examination of March 2016, Mrs Sahin described constant pain from the right arm up to the arm and shoulder and to the right eye. She said that the pain fluctuated in severity. She said the pain in her arm was aggravated by any use of the arm, even lifting light objects.
173 Dr Fraser concluded that there was no ongoing work-related injury and doubted whether she had ever had a significant injury. He said there were no features to support a diagnosis of CRPS. He said her reaction in the course of examination was exaggerated and could only be explained on the basis of non-organic factors. From a physical point of view, he said she was fit for her pre-injury duties.
174 Dr Fraser said that he observed no swelling, skin atrophy, discolouration nor temperature changes. He was shown photographs of Mrs Sahin’s hands[44] and said there was no evidence of such swelling or discolouration when he examined her. He said swelling could possibly be caused by immobilisation of a hand in a dependant manner. He said he thought the symptoms would be present all the time, although supposed things could fluctuate. He said he would not expect the symptoms to be present intermittently in a case such as this. In relation to other treating practitioners who had diagnosed those symptoms and consequently CRPS, he said he would need to know upon what basis their diagnosis was made. His view may be altered but he would need specifics.
[44]Exhibit T
175 Dr Fraser said he used a tendon hammer to test for reflexes along the arm, but not at the site of the wrist.
176 Two reports of Mr Douglas Gardiner, orthopaedic surgeon, were tendered.[45] In a letter to Dr Omarjee, he saw Mrs Sahin in December 2004 and noted that aside from wrist problems, she had a painful left side of her neck, although did not see how this was related to her wrist injury. X-rays and nerve conduction studies showed no abnormality.
[45]Exhibit HH
177 Various reports of Mrs Sahin’s current treating general practitioner, Dr Thys, were tendered.[46] She commenced seeing Mrs Sahin in early 2008. In a letter of June 2009, she described Mrs Sahin as suffering Major Depression which she said developed as a direct result of chronic pain, and ulcerative colitis which she said was triggered and worsened by pain and stress. To Dr Thys, Mrs Sahin described pain from the wrist up to the right shoulder of a constant nature. She said Mrs Sahin was unable to work at all. She said, as a result of the ulcerative colitis, Mrs Sahin vomits up medication. She said over the period that she had treated Mrs Sahin, she was completely unable to function, which was related to her work injury, chronic pain, Major Depression and financial hardship.
[46]Exhibit KK
178 Mrs Sahin was seen on one occasion by Dr Peter Blombery, vascular physician, and his report tendered.[47] Dr Blombery is an acknowledged specialist in the area of CRPS.
[47]Exhibit JJ
179 To Dr Blombery, Mrs Sahin complained of ongoing pain in the right wrist, extending up the arm to the shoulder, neck and eye. The history included occasional swelling and change in temperature and appearance. When he examined Mrs Sahin, he said the fingers of the right hand were a little swollen but the temperature in both hands was the same. There was reduced grip strength: 7 kilograms on the right side and 36 kilograms on the left. Dr Blombery said:
“She described her hands as sometimes becoming a little cold or dusky but this was not obvious on examination and I note from the reports that you attached that no other medical practitioners in those reports have observed any changes in temperature or colour of the hand. In the absence of external observation of the changes, it is unlikely that she has complex regional pain syndrome type 1, although she would theoretically fulfil the 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. However, she is the only one who has apparently noted them.
It is therefore my opinion that she has primarily a non specific pain syndrome where there is non specific sensitisation of these pathways both in the periphery as well as in the brain and spinal cord, such that non-painful stimuli become interrupted by the cerebral cortex as being painful. This is an organic disorder of pain nerve pathways.”[48]
[48]Exhibit JJ, PCB Volume 2, page 138
180 Dr Blombery said there were significant non-organic factors contributing to her symptoms. He noted the surveillance video of 2005 where it was said she was able to use her right hand to a significant degree. He considered her employment was a significant contributing factor to her condition and said she had a poor work capacity.
181 Various reports of Professor Richard Ball, psychiatrist, were tendered.[49] He examined Mrs Sahin on two occasions in September 2005 and October 2008. She described to Professor Ball pain every time she used or moved her hand, which was constant. She dropped things and could not grip properly. She was unable to do a range of domestic activities but able to drive short distances. Professor Ball considered Mrs Sahin had developed an adjustment reaction with some depression and anxiety but also a Chronic Pain Syndrome and associated with this, had fallen into an invalid role, supported by family and friends. He considered that it was not possible for her to work.
[49]Exhibit GG
182 In a report of 15 November 2005, he was provided with video surveillance, and said that the observations of the manner in which Mrs Sahin used her right hand in the video was quite different from the presentation to him. Because of this, he queried whether the anxiety and depression which she expressed to him actually existed, and seriously questioned the original injury and the impact upon her psychological state.
183 In his second report of October 2008, Professor Ball maintained his diagnosis of an Adjustment Reaction with Depression and Anxiety and possible features of a Chronic Pain Syndrome with major, almost total adaptation (sic) of the invalid role. He thought she was primarily incapacitated by a physical injury rather than a psychiatric disorder. He said one had to consider the question of motivation and volition in relation to her mood.
184 Several reports of Dr Andrew Miller, occupational health consultant, from 2005 to 2008 were tendered.[50] In the first report of July 2005, he noted no disturbance of colour, temperature of circulation in the right and left arms. He could find no objective evidence of injury nor disability in the right arm. He thought she may have suffered a soft-tissue strain to the right elbow or wrist from which she had recovered.
[50]Exhibit 10
185 In July and August 2005, Dr Miller reviewed a return-to-work program and thought work involving only her left arm, and not her right, four hours per day, four days per week with regular breaks was reasonable. He reviewed the surveillance video and said that from the video, Mrs Sahin appeared to move freely without apparent discomfort.
186 When he examined Mrs Sahin again in December 2008, again, there were no symptoms of CRPS. He found evidence of embellishment and failure to co-operate. Again, he thought she had suffered a soft-tissue strain to the right wrist and elbow which had resolved. He did not think her employment with the employer was contributing to her incapacity.
187 A further report of Dr Nigel Strauss, psychiatrist, of December 2012 was tendered.[51] He had examined Mrs Sahin at an earlier time.[52] He did not examine Mrs Sahin again, but was provided with the surveillance video.
[51]Exhibit 11
[52]See reference to his earlier report at paragraph [198]
188 In his first report of June 2011, he said that she had suffered a soft-tissue injury but that psychological factors had overtaken organic ones. He thought that she had developed a Major Depression. He observed in the surveillance film that she had reasonable movement of her right arm. He said that there was a suggestion that her veracity was questionable but was unable to be definite.
189 The reports of Professor John King, neurologist, of August 2005 were tendered.[53] He saw Mrs Sahin in Melbourne at the referral of Dr Omarjee. He wondered whether she might have carpal tunnel syndrome or an ulnar nerve lesion but electromyography showed no abnormality. He thought she may have sustained a soft-tissue injury and thought there were psychological factors affecting her presentation.
[53]Exhibit 12
190 A report of Mr Craig Mills, orthopaedic surgeon, of November 2005 was tendered.[54] He saw Mrs Sahin at the referral of Dr Jennifer Garner. He thought she had suffered a soft-tissue injury and suggested referral to a sports medicine practitioner in South Australia. He did not think she was able to work at that time.
[54]Exhibit 13
191 Finally, a report of Dr Alex Caracatsanis, treating psychiatrist, was tendered.[55] He examined Mrs Sahin in April 2010 at the referral of Dr Thys. He described her as being in “a process of decline” commencing from October 2004. He said the factors relating to that decline were:
[55]Exhibit 14
(i) conflicting opinions from treating doctors;
(ii) a confrontation with her employer, including a threat to call the police;
(iii) a perception of poor treatment by the insurer, QBE;
(iv) a return-to-work program which she was never able to do;
(v) by mid-2005, she felt guilty and a burden upon her family;
(vi) she developed psychological symptoms;
(vii) her WorkCover payments were stopped;
(viii) she developed ulcerative colitis in 2005;
(ix) her brother died of bowel cancer several years before;
(x) she attempted suicide but was prevented by doing so by her fifteen-year-old son;
(xi) she was tormented by recurring nightmares.
192 Dr Caracatsanis concluded she had developed a Pain Disorder, even to parts of the body unconnected with the injury. Further, he said she had a chronic depressive state, best described as Dysthymic Disorder. She had become demoralised, frustrated and emotionally distant from her husband and friends. He thought she carried a chronic risk of harming herself. He did not think it was likely she would recover from the psychological disorder.
The Ansett v Taylor point[56]
[56]Ansett Australia Limited & Anor v Taylor [2006] VSCA 171
193 By letter dated 21 May 2012, the insurer, QBE, notified Mrs Sahin that liability for her claim for an impairment benefit was accepted in respect of the following injuries:
·right wrist/hand
·Complex Regional Pain Syndrome involving right upper arm, right shoulder and neck
·aggravation of pre-existing ulcerative colitis
·psychiatric/psychological condition.[57]
[57]Exhibit 7
194 Thus these injuries or conditions were accepted as being work related.
195 An assessment of whole person impairment, in accordance with the AMA Guides (4th edition) was undertaken, and for that purpose reports had been obtained from Dr Nigel Strauss (occupational psychiatrist), Dr Geoffrey Littlejohn (rheumatologist) and Dr Andrew Jakobovits (gastroenterologist). As a result of those assessments, Mrs Sahin was determined to have a whole person physical impairment of 5 per cent, which led to a determination of zero per cent, and a psychiatric impairment of zero per cent.
196 At an early stage of the proceeding, Mrs Sahin queried how, in the circumstances of the acceptance of the various injuries as being work related, the defendant could now contend they were not.
197 Evidence was given by Ms Deepthi Neelakantan, an impairment benefits specialist employed by QBE. She had trained as a physiotherapist in India and commenced work with QBE in January 2008. In 2011, she was appointed as an impairment benefits officer. She had done an AMA Guidelines course. She became involved in Mrs Sahin’s claim in April 2012. The reports of the doctors referred to had been organised by someone else. She reviewed the reports and made a decision in reliance on those reports. She had access to the QBE file which contained other medical reports.[58] Some of these reports were provided to the assessors. She did not meet Mrs Sahin, did not see any video and relied only upon the reports of Dr Strauss, Dr Jakobovits and Dr Littlejohn. Based upon those reports, she concluded that the injuries claimed were work related.
[58]See Exhibit C – list of medical reports on QBE file
198 In his report of 31 August 2011, Dr Littlejohn, rheumatologist, concluded Mrs Sahin suffered a Regional Pain Syndrome and CRPS. He said that the conditions occurred as a consequence of the soft-tissue injury to her wrist in the workplace incident. He could find no evidence of tissue damage or other pathology which could explain her widespread symptoms. He did not think the ganglion was of any particular anatomical significance and could not explain all her symptoms. He believed the pain in her right upper arm, right shoulder and neck were all part of the pain syndrome and advised liability should be accepted.
199 Dr Andrew Jakobovits, physician, provided a report of 1 May 2012. His area of speciality included the condition, ulcerative colitis. He said that the cause of that disorder was unknown, but it was accepted that it had an underlying genetic basis. He said in persons who are genetically prone to the disease, the symptoms may be precipitated by stress, infection, trauma or medications. On that basis, he said that it was reasonable to accept liability for the aggravation of that condition. He said Mrs Sahin was genetically prone to develop the disease and that the stress over the past eight years had precipitated what he referred to as a fairly mild disease process. He recommended liability be accepted. He said that she would continue to have the condition for her life with the prospect of future exacerbations and remissions. He said the clinical presentation was consistent with the workplace incident.
200 Dr Nigel Strauss, psychiatrist, provided a report to QBE dated 15 June 2011. He received a history of her various psychiatric symptoms. He said there was a “theatrical attention-seeking component” to her presentation and that she was quite dependent on her husband. He diagnosed her as suffering a Pain Disorder with psychological factors. He said her pain was psychologically based on an unconscious level. Having accepted her veracity, he said she had significant disabling pain in her right arm, shoulder and neck. He said that because of the Pain Disorder, she had developed a Major Depression. He thought she was totally and permanently incapacitated. Dr Strauss’s opinion is that the genesis of the psychiatric disorder was the workplace incident.
201 Since Ansett v Taylor,[59] it is established that when a defendant accepts an injury is work related, it stands as an admission in related proceedings.[60] Normally, such an admission would be regarded as “very significant”, although not conclusive, and not sufficient to establish an estoppel. A defendant may be able to explain its conduct satisfactorily, which may rob the admission of its particular significance.[61]
[59]Supra
[60]See further Fokas v Staff Australia Pty Ltd [2013] VSCA 230 at paragraph [32]
[61]Fokas v Staff Australia Pty Ltd (supra)
202 In Ifka v Shahin Enterprises Pty Ltd,[62] the Court of Appeal explained:
“Conventionally, Ansett v Taylor is relied upon as authority for the proposition that, by paying compensation, a party (absent some other evidence) may be taken to have made an admission that the relevant worker suffered compensable injury involving the affected body parts in respect of which compensation was paid. However, questions of the extent to which the acceptance of liability to make a payment might constitute an admission as to the full nature or effect of an injury can be problematic.” [63]
246 Given my finding in respect of breach of duty of care, it is unnecessary to consider whether there was a breach of the Regulations. However, I will examine the allegation briefly.
247 It is not contested the task being undertaken by Mrs Sahin at the time included “manual handling” as defined in Regulation 5. Further, in my view, the activity involved “hazardous manual handling” as defined in Regulation 13. Mr Gorton did not suggest otherwise. In those circumstances, a risk assessment of the task must be undertaken in accordance with Regulation 14 and that risk of injury must be eliminated or reduced as far as practicable, in accordance with Regulation 15.
248 It is clear from the evidence of Mr Ryan that no risk assessment was undertaken. In fact, he was not aware of the requirements of the Regulations.
249 Mr Gorton’s argument is that the plaintiff must establish, on balance, not only a breach of Regulations, but also that such a breach was causatively related to the injury. He submitted that in circumstances where there had been no previous injury, and where Mr Ryan said in evidence that he never envisaged anyone injuring themselves pushing a box of oranges,[95] even if a risk assessment had been undertaken, it would not have revealed to Mr Ryan, as a reasonable employer, any risk of injury.
[95]T333, L18
250 In Duma v Mader International Pty Ltd,[96] the Court of Appeal said:
“The difficulty the appellant had to overcome, and, in my opinion, what he could not overcome, was to demonstrate that any breach by the respondent had caused the injury the appellant suffered. On the issue of causation, it was incumbent upon the appellant to show that the lack of availability of alternative tools, or the failure to adopt a different system of work, or the failure to carry out a risk assessment, or the lack of training, caused the appellant’s injury.”[97]
[96](2013) 42 VR 351
[97]Duma (ibid) at paragraph [55]
251 As with breach of the duty of care, the assessment of the causative relationship between the breach of the Regulations and injury is an objective one: what should the reasonable employer have done in the circumstances? In my view, any risk assessment reasonably undertaken would have revealed that, if the surface was not kept clean, there would be a risk of musculoskeletal injury through a forceful push. It would have been obvious there were a number of potential contaminants. Again, the circumstances that prevailed were important. The box was heavy, it was being pushed up a slight slope and the work was expected to be done at a pace to keep up with the oranges in the hoppers.
252 In my view, the employer failed to abide the requirements of the Regulations and that failure was causative of the plaintiff’s injury.
Contributory negligence
253 Mr Gorton submitted there were three aspects of contributory negligence which ought to lead a court to make a finding in the order of 30 per cent against the plaintiff. The first was that Mrs Sahin should have cleaned the surface herself with the available cleaning materials. The second was that she should have raised the matter with a supervisor to have the surface cleaned. The third is that when presented with a box which did not move on the first or second attempt, she should either have jiggled it or taken other steps to move it, or simply not attempted to push it with the force she alleges.
254 Any assessment of contributory negligence must take account of the nature of the work. The assessment should be made prospectively.[98] Mrs Sahin worked in a fruit packing shed. While there was no particular quota of packed boxes to be achieved, it was expected that the workers would pack boxes briskly and push them onto the conveyor belt. At a minimum, they would be required to pack fifty boxes per day, and some packers would pack more than a hundred.[99] The job was repetitive, in the sense that it required packers to pack oranges from the hoppers into boxes and then push them onto the conveyor belt. There was an expectation that when the oranges came into the hoppers, they had to be processed.
[98]Maloney v Commissioner for Railways New South Wales (1978) 52 ALJR 292
[99]T359, L27
255 In those circumstances, it was unreasonable to expect the packers, including Mrs Sahin, to check to ensure the packing bench surface was free from contaminants. She was expected to do her job and keep pace with production. The reason the box became stuck was a failure to have a proper cleaning system established and enforced by management. While the packers did have the capacity to clean the surface of the packing bench, it would be unreasonable to expect them to determine on every occasion when the surface needed to be cleaned. Mrs Sahin was simply following an established system which did not provide an appropriate cleaning regime.
256 Even if she was inadvertent, or was not attentive to the task at hand, that does not, in my view, establish contributory negligence.[100] The obligation is upon the employer to establish a system of cleaning as it was the one who had control over the workplace and the equipment used.
[100]Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529 at 531; Mayhew v Lewington’s Transport Pty Ltd [2010] VSCA 202; Kiriwellage v Best & Less Pty Ltd [2013] VSC 355 and cases cited therein
257 In these circumstances, I am of the view there was no contributory negligence on the part of Mrs Sahin.
Damages
Injuries sustained
258 I am satisfied that Mrs Sahin suffered a soft-tissue injury to her right wrist which has generally been treated conservatively. On the balance of probabilities, I am satisfied that a ganglion developed in the wrist some time after injury. I accept the evidence of Mr Behan, that the ganglion was related to the work incident. In the scheme of things, the soft-tissue wrist injury and the ganglion are not of great significance.
259 What is significant, and an issue the subject of different opinions from the treating and consulting medical practitioners, is whether or not Mrs Sahin developed CRPS and, if she did, whether it is related to the workplace incident.
260 I accept Mr Gorton’s submission that, as there is no reference in the clinical notes of Dr Omarjee from October 2004 until June 2005, that there were no complaints of swelling to the right hand, nor of pain above the elbow into the shoulder and the right side of the face. I accept that doctor’s evidence that he would have recorded such complaints and would have recorded “gross” swelling. I further note reference by an occupational therapist in the Access Employment Report of December 2004 of complaints of pain from the wrist, to the elbow, shoulder and neck region.
261 One of the early treating practitioners, Mr Saies, an orthopaedic surgeon from Adelaide who saw Mrs Sahin in March 2006, noted hypersensitivity over the wrist and diagnosed CRPS. He suggested referral to a pain clinic.
262 Further, Dr Bruce Mitchell, a pain specialist to whom Mrs Sahin was referred in November 2007, said she presented with classic CRPS symptoms, including pain up to her shoulder and neck. He said, further, that she had classic signs of allodynia and hyperalgesia.
263 Further, the diagnosis of CRPS was made at the Mildura Hospital in June 2008, where mild swelling was noted on examination.
264 Of significance, were the reports and evidence of Mr Felix Behan. He saw Mrs Sahin in 2008 and again in 2010. He described the symptoms he observed as “classic CRPS”. When taken to the photographs tendered by Mr Sahin, showing swelling to his wife’s wrist from around 2014,[101] he said they confirmed not only the earlier diagnosis of CRPS, but that it had developed over the years. I found Mr Behan’s evidence impressive. In the course of cross-examination, he was taken to various reports of treating and consultant doctors over the years 2006 and 2007, where there was no reference to symptoms associated with CRPS.[102] Mr Behan accepted that sometimes CRPS is an expression used as a “grab bag” diagnosis for widespread pain without an underlying organic basis.
[101]Exhibit T
[102]T446-466
265 Taking account of the lack of findings by early treating practitioners, he said that he would have expected that, within months or years, the symptoms of CRPS would develop.[103] He said it would be very unusual for the symptoms not to appear for four or six years afterwards. However, he said that on occasion, CRPS is slow to present.[104] It may have been developing in the early stages and the symptoms not picked up by less experienced practitioners. He disagreed that use of a wrist brace, whether effective, or otherwise, could lead to swelling or skin shininess, unless the brace was too tight.[105] Mr Behan said the reference in some early material to referred pain beyond the elbow led him to a suspicion of the development of CRPS in its early stages.[106] He said, in addition, there were significant psychological features and that they aggravated the CRPS and vice versa.[107] He commented that only doctors with sufficient expertise, making valid observations of the symptoms of CRPS, were likely to make an accurate diagnosis.[108] He thought Mrs Sahin’s complaints were genuine and that she had contracted CRPS of “a full-blown nature”.[109]
[103]T466, L5
[104]T466, L14
[105]T467
[106]T477, L1
[107]T477, L19
[108]T483, L9
[109]T486
266 I accept the submission of Mr Gorton, that there are a significant number of both treating and consultant practitioners who either do not find symptoms and signs of CRPS, or who find some symptoms but do not make that diagnosis.
267 Because of its unusual nature, there may be practitioners, in particular general practitioners, who are not familiar with it and less alert to its symptoms. This would include Dr Garner and Dr Thys. I accept Dr Omarjee simply was not told of widespread pain, nor observed gross swelling. Mr Berger did not diagnose it but, although a specialist hand surgeon, was more concerned with the development and treatment of the ganglion.
268 Dr Blombery’s report is somewhat unusual. He is an acknowledged specialist in the area. He did not observe any of the classic symptoms of CRPS on examination, although noticed Mrs Sahin’s right hand was a little swollen. He said that there were no other medical practitioners who had observed changes in temperature or colour in the hand. That was not correct. He appeared not to have been provided with the reports of other practitioners who had made that diagnosis, in particular, Mr Saies and Dr Mitchell. He said that Mrs Sahin was suffering from a non-specific Pain Syndrome, with non-specific sensitisation of pain pathways. He described this as an organic disorder of pain and nerve pathways, and said that there were non-organic factors involved.
269 Of the remaining practitioners, I prefer the opinions of Mr Behan, Mr Saies and Dr Mitchell to practitioners retained on behalf of the defendant, including Dr Fraser, the neurologist, Professor King, Mr Mills and Dr Miller. I accept the opinion of Mr Behan that, somewhat unusually, the CRPS did take time to develop and in its initial stages, the usual signs and symptoms were not readily observable. According to his report of August 2011, Dr Littlejohn, who was retained on behalf of QBE, diagnosed Mrs Sahin as suffering CRPS as well as Regional Pain Syndrome. These conditions, he said, were as a result of the soft-tissue injury to her wrist. I am satisfied from the photographs tendered and from the observations of various practitioners, that Mrs Sahin, indeed, does suffer swelling, temperature change, allodynia and changed skin texture and that, as Mr Behan said, she has the full-blown disorder at the present time.
270 I am also satisfied that the development of the disorder is related to the initial incident. CRPS is notorious for developing from a relatively mild trauma through a sensitisation of the pain pathways. Again, I prefer the evidence of Mr Behan that it was unlikely the swelling and other symptoms could be as a result of wearing a wrist brace, whether properly adjusted or otherwise.
271 I accept that Mrs Sahin does suffer pain in the wrist, up the elbow, to the shoulder and side of the head, which pain is far in excess of what one would expect from a relatively minor soft-tissue injury. I accept that, to an extent, Mrs Sahin genuinely feels this pain but, for reasons which I will shortly analyse, I am of the view that she is exaggerating the pain in these areas and the effect upon her.
272 The next aspect of the plaintiff’s claim is a resultant psychiatric or psychological injury. As stated, it is difficult to know where the boundaries of the CRPS finish and the psychological disorder starts. I accept the evidence of Mr Behan, and some other practitioners, that her presentation, in particular the complaints of ongoing pain, are a manifestation of both the CRPS and a psychological disorder.
273 The defendant relied upon the reports and evidence of Professor George Mendelson. While accepting that Mrs Sahin was genuine in her presentation, he said she had not suffered a diagnosable psychiatric disorder. He further said that she had adopted an invalid role, reinforced by her family taking over her domestic tasks and by her being granted the invalid pension. He said there were environmental factors at play and suggested that she may not realistically have enjoyed her employment, in particular, because in a previous life she had worked in administration in a hospital.
274 The current treating general practitioner, Dr Thys, described, in 2009, Mrs Sahin suffering a Major Depression which was related to the chronic wrist pain.
275 Professor Ball considered Mrs Sahin had developed an Adjustment Disorder with Anxiety and Depression and, also, CRPS. He also thought she had adopted an invalid role.
276 Dr Nigel Strauss noted that psychological factors had overtaken any organic injury and thought Mrs Sahin had developed a Major Depression.
277 Dr Caracatsanis, her treating psychiatrist for a brief period in 2010, said there were a number of factors at play, and concluded Mrs Sahin suffered a Pain Disorder.
278 Of most significance, in my view, are the reports and evidence given by the plaintiff’s treating psychologist, Ms Durmaz. Notwithstanding she does not have the psychiatric qualifications of other consultant doctors, she was an impressive witness. Clearly, she has developed a rapport with Mrs Sahin, but I did not detect any bias to Mrs Sahin’s cause, during her evidence. She answered questions in cross-examination in a manner I would expect of an independent witness. She has had the advantage of treating Mrs Sahin over the years, from late 2008 to the present, and, of all the practitioners, is the one who has seen her the most. She concluded Mrs Sahin was suffering a Major Depressive Disorder with a range of debilitating psychological symptoms, including loss of self-esteem and confidence, mood swings, suicidal ideation, anxiety and depression. Mrs Sahin expressed to Ms Durmaz, frustration and disappointment at the turn of her life had taken and the fact that she was dependent on members of her family. She referred to loss of interest in leisure activities. Treatment has involved cognitive behavioural therapy and antidepressants, although progress has been modest. She attributed these symptoms to the development of the wrist injury in 2004.
279 I prefer her evidence to other practitioners that, while Mrs Sahin was affected by the death of her brother, it was no more than normal grief. While Mrs Sahin does have nightmares and, apparently on several occasions has heard voices, I am satisfied that these relate to her primary psychological condition. I prefer her assessment to that of Professor Mendelson and Dr Strauss, that Mrs Sahin had adopted an invalid role. I accept the fact that she is obviously debilitated as a result of the combination of the CRPS and a significant Depressive Disorder.
280 Mrs Sahin also claims that she suffers ulcerative colitis, which has arisen as a result of the original injury. According to the report of Dr Jakobovits of May 2012, Mrs Sahin was diagnosed with colitis at the Mildura Hospital in 2007. As a result, she has undergone a number of colonoscopies, with another one scheduled in July. She takes medication, originally Salazopyrin, but currently Mezavant. Dr Jakobovits said that some people are genetically prone to develop the disease, but symptoms may be precipitated by stress. On that basis, he thought it was reasonable to accept that the incident at work caused an aggravation of the pre-existing condition.
281 I accept Dr Jakobovits’ opinion that Mrs Sahin has developed ulcerative colitis. I accept that the workplace incident was, at least, an aggravating factor.
Vulnerability or predisposition of the Plaintiff
282 Mr Gorton submitted that, in particular, considering the evidence of Mr Behan, Mrs Sahin had a pre-existing vulnerability, both to the development of the ganglion in the right wrist and to the onset to a psychological disorder and that, regardless of the workplace incident, there was the real prospect that one, or other, or both, of these injuries or conditions would have developed in any event.
283 Mr Behan said Mrs Sahin may have developed the ganglion in any event,[110] and it was likely the wrist was vulnerable.[111] He thought there was some local pathology developing, which may have taken some time to surface.[112] He said that if she had developed the ganglion on this occasion it was probable that a similar injury in manual work would have occurred.[113] He said it was an unknown factor as to what personality type would lead to the development of CRPS or psychological injury.[114] He said that some people with a lower pain threshold had a tendency to develop anxiety and depression. Any focus upon the pain becomes exaggerated, depending on the neuropsychological background.[115]
[110]T433, L4
[111]T440, L12
[112]T440, L18
[113]T442, L2
[114]T442, L13
[115]T442, 21
284 He said Mrs Sahin was vulnerable to developing this type of soft-tissue injury.[116]
[116]T443, L8
285 Against that, it should be noted that Mrs Sahin, before the injury in 2004, was able to look after her family, attend to all of her domestic and social duties and interests, work as a seasonal fruit packer and, at an earlier time, assist her husband on the family’s fruit block. There is no clear medical evidence that she was suffering from any pre-existing condition, either physical or psychological, which was apt to restrict her in these various activities and her work any time in the future.
286 In Seltsam Pty Ltd v Ghaleb,[117] Ipp JA said:
“What was said in Watts v Rake and Purkess v Crittenden now has to be qualified by these principles (cf Commonwealth of Australia v Elliott [2004] NSWCA 360 at [81]). Malec has an important bearing, for example, on the way in which a court must determine whether a defendant has discharged the ‘disentangling’ evidentiary burden on it of showing that part of the plaintiff’s condition was traceable to causes other than the accident and that, had there been no accident, the plaintiff would have suffered disability from his pre-existing condition.
Where a defendant alleges that the plaintiff suffered from a pre-existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it. Nevertheless, to the extent that the issues involve hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring, the exercise of ‘disentanglement’ discussed in those cases is more easily achieved. That is because the court is required to evaluate possibilities in these situations — not proof on a balance of probabilities.”[118]
[117][2005] NSWCA 208
[118]at paragraphs [104] – [105]
287 As was said in Smith v Gellibrand Support Services Inc,[119] the evidence of the effect of pre-existing conditions needs to be established with reasonable precision, and that its future course, as a matter of probability, would have been likely to have developed and progressed.
[119][2013] VSCA 368 at paragraph [64]
288 In my view, notwithstanding the evidence of Mr Behan, the future course of any underlying physical or psychological condition, even vulnerability, is speculative. Even accepting Mrs Sahin was vulnerable in some way, there is no precision as to the future course, whether that be in relation to the development of a ganglion, the onset of CRPS or some overwhelming psychological condition. In my view, it is more appropriate to deal with this issue when a consideration is made as to the vicissitudes of life and when one goes to weigh those factors, both of a positive and negative nature, which may have affected Mrs Sahin’s life.
Pain and suffering
289 Mr Sahin submitted that his wife had suffered significant disabling organic and psychological injuries. He said that she suffered constant pain in her right arm, up to the shoulder and side of the head which, at times, became severe. She had reduced movements of the right arm and it was difficult for her to sleep on her right side. When severe, she was unable to take any pressure on the wrist, even a knock caused severe pain. Effectively, he said his wife’s right arm was useless.
290 Mrs Sahin has undergone a range of conservative treatment, takes pain-relieving medication, including Endone, uses heat packs, and her capacity to undertake a range of domestic, recreational and social activities has been severely restricted. She is unable to work, and has lost the enjoyment her employment provided. Further, he said that she suffered a severe psychological reaction in the nature of a Major Depressive Disorder, which caused her to attempt suicide on one or two occasions, caused panic attacks and required constant treatment by a psychologist, including the use of antidepressant medication. Further, she had suffered the unpleasantness of ulcerative colitis, requiring regular colonoscopies and medication.
291 He submitted pain and suffering damages ought to be in the order of $550,000.
292 Mr Gorton submitted that damages ought to be significantly reduced because it was clear, especially from the surveillance video, that Mrs Sahin was exaggerating the extent of her symptoms. Further, that she was vulnerable and was likely to develop physical or psychological disorders in any event and further, that, in accordance with the evidence of Mr Behan, with proper treatment, there was the prospect of a significant increase, in the order of 50 per cent, in relation to her CRPS. He submitted that I ought not accept Mrs Sahin as genuine and, therefore, award pain and suffering damages in the order of $75,000, but if I did accept her pain as genuine, then, given the other factors, general damages ought to be in the region of $200,000.
293 As earlier stated, I am of the view that there is an element of exaggeration in Mrs Sahin’s presentation, both to the doctors and to the Court. That is largely based upon what is seen in the surveillance film where, in my assessment, she is able to move her right hand and arm in a relatively free manner, including to lift a bag of mandarins over a fence and move other items in the boot of a car. For the reasons given, I conclude that there is a significant element of exaggeration. Any award of damages must take that into account. Nonetheless, I accept that she does suffer pain as a result of the CRPS on a reasonably constant basis and that that, to some extent, affects her recreational, domestic and social activities.
294 As stated, I was impressed with the evidence of Ms Durmaz and accept her diagnosis of the plaintiff as suffering a Major Depressive Disorder with significant psychological consequences. There is nothing in the surveillance video to suggest that her psychological state is other than Ms Durmaz has assessed, although if I do not accept Mrs Sahin as an honest witness in relation to her physical injury, to an extent, that reflects on her credibility in relation to her claims as to a psychological injury.
295 According to Mr Behan’s evidence, there is the prospect of a significant improvement in CRPS if Mrs Sahin receives appropriate treatment, both from a pain specialist and in a rehabilitation program. He said there could be as much a 50 per cent improvement in her condition if that treatment were to be given effect.
296 There are some difficulties with that proposition. Firstly, Mrs Sahin has limited English and lives in Mildura. She is clearly more comfortable with the treatment provided by Ms Durmaz, who also speaks Turkish. In Mildura, there would be limited access to comprehensive pain management programs as can be provided in Melbourne. Further, the VWA has refused payment of treatment and she will, thus, be able only to access the public health system, where the range of treatment is significantly less than in the private sector. I take these matters into account in assessing general damages and accept that there is some prospect of future treatment assisting the CRPS. I prefer the opinion of Ms Durmaz, that the prognosis in relation to her psychological condition is poor.
297 Taking all of these matters into account, I assess pain and suffering damages in the sum of $225,000.
Past loss of wages
298 I am satisfied Mrs Sahin has had little, if any, capacity for employment from the time of the incident to the present. While, initially, the injury was a relatively minor wrist strain, it has subsequently developed into CRPS with a significant psychological disorder. It may be argued Mrs Sahin had some work capacity within a year or two of the happening of the incident, but her return to work was not assisted when she was placed back on the production line (not the packing line) performing sorting in an attempted return to work. I accept that she suffered some sort of motion disorder which made it difficult for her to remain there. While a better managed and more sensitive return-to-work program may have led to her being able to return to the workforce, even on a reduced basis, that did not occur. Further, she is a person of limited English from a migrant background, and whose only employment in Australia has been of a manual nature, working in fruit-packing sheds. Anyone with a wrist injury, let alone someone who has developed a significant emotional or psychological reaction, would find a return to work difficult.
299 To that end, I am satisfied Mrs Sahin is entitled to loss of wages from the date of incident through to the present time. The significant issue is as to the appropriate sum upon which loss of wages should be based.
300 Mr Sahin submitted that, according to his wife’s evidence,[120] she was, at the time, working on a seasonal basis, but was looking for full-time work, which she was unable to find. There was no further evidence as to her future intentions. Mr Sahin said it was reasonable to infer that, as her children grew older, she would return to work on a full-time basis. He said account should be taken of the fact that she had worked in Australia over a long period, both for employers and on the family fruit block and was a woman with a good work ethic in a family which had limited financial resources. In these circumstances, said Mr Sahin, it was reasonable to infer that she would have returned to full-time work. He said it was well known that, at least at the present time, the fruit packers were able to move from one fruit to another and, thus, work a full twelve months of the year.
[120]T82, L15
301 However, the evidence of Mrs Sahin’s future intention as to work was very limited. It is clear from her taxation returns[121] that her earnings were modest and that she was working only seasonal work over the years 2000 to 2005. In my view, there is not sufficient evidence to draw the inference which Mr Sahin asserts. His wife may have returned to full-time work across a number of areas of packing when the children were older but, also, she might not have. Mr Sahin had completed work on the family house and there was the prospect that he would return to full-time employment. As with any agricultural industry, there are periods where there is a lot of work available for manual workers, and times when there is not.
[121]Exhibit 2
302 The appropriate basis to assess loss of earnings and loss of earning capacity, in my view, is to take account of the earnings of Mrs Sahin in the years leading up to the incident.
303 In his submissions, Mr Gorton analysed Mrs Sahin’s taxation returns and concluded that the sum of $15,000 was a fair, even favourable, figure at which to assess Mrs Sahin’s earnings as at the date of injury. That was largely based upon the returns for the years 2004 and 2005. For the reasons set forth by Mr Gorton,[122] I accept that submission. That translates, with the cost of living increases, to a gross figure of $21,386 at the present time. Taking a midpoint, $18,193 provides a figure of approximately $210,000. Allowing a modest amount for taxation, and paying some regard to the prospects of improvement with the proper treatment over the years to date, it is appropriate to assess past loss of earnings at $200,000. Adding superannuation of 10% brings the total past loss to $220,000.
[122]T723 – 729
304 I would not reduce this sum for any other vicissitudes.
Future economic loss
305 I accept that had Mrs Sahin remained in employment she would be earning something in the order of $21,386.00 gross per week at the present time.
306 I accept the evidence of various of the practitioners, including Ms Durmaz, the treating psychologist, and Mr Behan, the hand surgeon, that realistically, Mrs Sahin has no work capacity. Even accepting there was an element of exaggeration in her physical presentation, nonetheless she is a woman of limited English working in manual employment and with a significant psychological condition. In these circumstances, I am satisfied she has no work capacity and that that is likely to continue. There is the prospect of some improvement as Mr Behan referred to, but it has now been almost twelve years since the incident and the situation is, if anything, getting worse.
307 Mrs Sahin gave no particular evidence as to the age to which she would have worked. There was evidence that some in the fruit packing industry worked to sixty years and beyond, but it is relatively arduous employment. Mrs Alford said an average retirement age is fifty-five.[123] I am satisfied it is appropriate to assess loss of earnings to age fifty-five. The multiplier (6 per cent tables) is 300 by $411.00 per week allows damages for loss of earning capacity at $123,300 gross or $120,000 net. Allowing 10 per cent for superannuation, brings this figure to $132,000.
[123]T587
308 In addition to all the usual vicissitudes, I bear in mind Mr Sahin’s argument that his wife would have increased her hours and further, Mr Gorton’s argument that Mrs Sahin had a vulnerability to both physical and psychiatric injury. Weighing these matters, in my view, it is appropriate to make no allowance for vicissitudes.
309 The parties have agreed the Fox v Wood[124] component at $4,557.00.
[124](1981) 148 CLR 438
Conclusion
310 I am satisfied Mrs Sahin suffered an injury in the course of employment with the employer on 27 October 2004 when she was attempting to push a box, packed with oranges, from a packing bench onto a conveyor belt. I am satisfied that injury developed into CRPS and that she has suffered a significant Major Depressive Disorder, together with ulcerative colitis.
311 I am satisfied these injuries arose as a result of the negligence of the employer in failing to provide a safe place of work and safe plant and equipment. Further, the employer breached the Regulations, which breach was causatively related to her injuries and loss.
312 I am not satisfied that the plaintiff contributed to those injuries by her own negligence.
313 I assess damages as follows:
Pain and Suffering Damages: $225,000.00
Past Loss of Wages: $220,000.00
Future Economic Loss: $132,000.00
Fox v Wood component: $4,557.00
__________
$581,557.00
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314 I will hear from the parties as to interest and costs.
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