Sean Salmon v Star Line Catering Equipment Pty Ltd

[2008] VMC 1

IN THE MAGISTRATES COURT OF VICTORIA

AT LATROBE VALLEY

WORKCOVER

Case No. W02564178

Sean Salmon	Plaintiff
v
Star Line Catering Equipment Pty Ltd	Defendant

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MAGISTRATE:	S Garnett
WHERE HELD:	LaTrobe Valley
DATE OF HEARING:	13, 14 February 2008
DATE OF DECISION:	27 February 2008
CASE MAY BE CITED AS:	Sean Salmon v Star Line Catering Equipment Pty Ltd
REASONS FOR DECISION

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Catchwords: Medical Panel Referral – Abuse of Process – Referral may not resolve issues in dispute; Injury – Capacity – Complex Regional Pain Syndrome

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Carson
For the Defendant  HIS HONOUR:	Mr Batten

1.  Mr Salmon commenced employment with the Defendant as a factory hand on 20 November 2006 and sustained injuries to his right hand, wrist and arm on 7 December 2006 whilst operating a heavy-duty drill. Allianz Australia Workers Compensation accepted liability on 3 January 2007. Mr Salmon returned to work on 18 December having been paid by the Defendant for his period off work and remained working until the Christmas closure on 22 December 2006. He was due to recommence work on 8 January 2007 but was advised by telephone on 5 January that his services were terminated.

2.  By way of Notice dated 6 March 2007, Allianz notified him that his application for reinstatement of weekly payments was rejected on the grounds that;

- he was not incapacitated for work;

- he was no longer suffering from a work related injury;

- his incapacity was no longer due to a work injury.

3.  Mr Salmon alleges that he remains incapacitated for all employment because of the injuries sustained on 7 December 2006.

4.  The issues to determine are whether Mr Salmon still suffers from the effects of the work injury and/or any sequelae and if so whether he has any incapacity for work.

Preliminary Issue – Medical Panel Referral

5.  At the commencement of the hearing, the Defendant made an application to the Court for the matter to be referred to a Medical Panel in accordance with S 45 of the Act, which was neither consented to nor opposed by Mr Salmon. The application was refused by the Court and I now provide written reasons for refusing the application.

6.  S 45 (1) (b) provides that if a party requests that a medical question or questions be referred to a Medical Panel, the Court must, subject to S 45 (1B) and (1C) make that referral.

7.   S 45 (1B) provides that the Court may refuse the request if it is of the opinion that the referral would, in all the circumstances, constitute an abuse of process.

8.  Mr Salmon claims weekly payments from December 2006. A request for Conciliation was lodged and a Genuine Dispute Certificate was issued by the Accident Compensation Conciliation Service on 19 July 2007. Mr Salmon commenced these proceedings on 17 September 2007 and a Defence was filed on 24 October 2007. The case was listed for Mention on 3 December 2007 whereupon it was fixed for Hearing on 11 February 2008.

9.  The Defendant made a formal application to this Court pursuant to S 45 after giving notice of its intention to do so to Mr Salmon on 11 January 2008.

10.If the application were granted, the proceeding would have had to be adjourned to allow the parties to prepare the necessary documentation pursuant to S 65 and submit the proposed medical question(s) to the Court for its consideration. Once these matters were completed, the Court would have been in a position to refer the question(s) to the Panel for its opinion. It would then be a number of weeks before Mr Salmon would undergo a medical examination by the Panel, up to 60 days for the Panel to form its opinion (S 68 (1)), up to 7 days for the Panel to provide its opinion to the Court (S 68 (3)) and then a number of weeks for the proceeding to be listed before the Court for Orders to be made consistent with the Panels opinion (S 68 (4)). Conservatively, the anticipated delay from the date of the application for referral to the determination of the proceeding would be 3-4 months.

11.In my opinion, the delay in the application for referral constitutes an abuse of process. In reaching this decision, I had regard to the decisions in;

- HIH v Greeves (1998) VSC 97;

- Greeves v HIH (2000) VSCA 68

- Stewart v GUD (unreported) Judge Rendit 4 May 1999;

- Rose v Frankston City Council (unreported) Judge Coish 24 April 2003;

- Boulton v Harrison Community Services (unreported) Judge Stott 5 February
2004;

- Isikli v Surville P/L (2004) VSC 236;

- Azzopardi v VWA (unreported) Judge Punshon 11 August 2004;

- Beevis v St Vincents & Mercy Hospital (unreported) Judge Coish 4 November
2005.

12.In particular, I rely on the decision of the High Court in Walton v Gardiner[1], where the Court considered the issues of fairness, misuse of the Court’s process and procedure and whether the application could be said to “bring the administration of justice into disrepute”.

[1] (1992) 67 ALJR 485.

13. In the present case, I find the application is an abuse of process because:

a.	The Defendant had prior opportunity to seek a referral either at Conciliation or to the Court;
b.	the matter had been listed before this Court on 3 December 2007 without a referral being sought;
c.	a referral to the Medical Panel will result in a delay of 3-4 months before the matter is determined;
d.	Mr Salmon has a right to have the claim determined promptly, efficiently and without further delay.

14.In my opinion, it is incumbent on practitioners experienced in this jurisdiction to make applications to the Medical Panel at an early stage not only to avoid delay in the determination of the particular case at hand but also to avoid causing delay in the listing and determination of others matters before the court.

15.In addition, a referral to the Medical Panel may not have resolved the dispute. The question(s) to be asked of the Medical Panel would necessarily involve issues of past incapacity, which is not, in my opinion, appropriate to be determined by the Panel. The Panel can address the issue of current capacity and whether Mr Salmon still suffers from the effects of the injury sustained on 7 December 2006 but not his capacity from December 2006. This issue must be determined by the Court. On this basis, in the interests of justice, I held that the Court should resolve all issues.

Evidence

16.Mr Salmon gave evidence that he sustained injury when operating a heavy-duty drill for drilling holes into stainless steel. The drill piece jammed causing a severe twisting of his right hand and wrist. He remained off work until 18 December and continued working until 22 December. His evidence was that during this period he had difficulty coping because of the effects of the injury and was given assistance by work colleagues. He alleges that on his return to work he gave the Manager, Mr Sheen a letter specifying work restrictions. The letter was not produced and Mr Sheen denied receiving it, although reference to a letter provided is noted in the medical records and the report of Dr Yusuf dated 23 January 2007 and tendered in evidence. Mr Salmon was adamant that he told Mr Sheen he could not finish certain jobs during the period he returned to work because of his injury, which Mr Sheen conceded, was possible but he could not remember if it occurred. Mr Salmon’s evidence was to the effect that from the date of the Christmas closure until he was terminated on 5 January 2007 he was experiencing pain, discomfort and sleeplessness because of the injury but did not see a doctor during this period because of his inability to pay for treatment.

17.Mr Sheen gave evidence that Mr Salmon was terminated because new sales orders had decreased.

18.Mr Salmon has remained off work from 22 December 2006 and has received various forms of treatment including physiotherapy, use of a Tens Machine and wrist brace, and medication in the form of panadeine forte, tramal, an anti depressant-lexapro, prednisolone, epilim, lyrica, psychological counselling and more recently a phentolamine infusion by Dr Blombery and paid by Allianz.

Medical Evidence

19.Mr Salmon’s general practitioner, Dr Hall gave evidence and Mr Salmon tendered medical reports from Dr Yusuf, Ms Durnin – Physiotherapist, Ms Dolan – Psychologist and Dr Blombery, Vascular Physician.

20.The Defendant tendered medical reports from Mr O’Brien, Orthopaedic Surgeon, Ms Durnin, Mr Robbins – Plastic Surgeon and Dr Botvinik – Consultant Psychiatrist.

21.The medical evidence indicates that x-rays and a bone scan taken of Mr Salmon’s right wrist and thumb showed no abnormality. The initial diagnosis was a sprained thumb/wrist (Dr Yusuf) or tendonitis of the thumb (Ms Durnin). He was subsequently diagnosed as suffering reflex sympathetic dystrophy by Ms Durnin, Dr Hall and Dr Blombery and anxiety/depression by Ms Dolan.

22.Dr Hall gave evidence that Mr Salmon has a fragile personality and is more prone to the reflex sympathetic dystrophy failing to improve and developing depression because of the injury. He opined that Mr Salmon is fir for sedentary duties. He conceded in cross-examination that as early as March 2007 Mr Salmon had a full range of movement of the wrist, did not exhibit objective signs of tenderness or any abnormality. Furthermore, he confirmed the history given to him by Mr Salmon on 18 April 2007 whereby Mr Salmon stated that his hand had improved significantly over the last month and he still had problems with the vibration of a lawn mower, using an axe and writing more than half a page. Dr Hall also expressed the opinion that psychological issues played a major role in Mr Salmon’s symptoms and he did not believe Mr Salmon required over 80 physiotherapy sessions, which he has had to date.

23.Dr Hall referred Mr Salmon to Mr Robbins who examined him on 30 March 2007. In his report, tendered by the Defendant, he found no tenderness or abnormality in the thumb or wrist, believed Mr Salmon had psychological overlay, and advised him to “look for another job and get on with it”.

24.Mr Salmon was referred to Dr Blombery who first examined him on 10 August 2007. On examination, he recorded that Mr Salmon’s right hand was redder than the left in the palm and 1.5 degrees cooler than the left. He also reported that Mr Salmon was moderately tender on pressure over the thenar eminence but had a full range of movement. He diagnosed that he suffered from complex regional pain syndrome type 1 or as it used to be known, reflex sympathetic dystrophy. Dr Blombery subsequently examined Mr Salmon on 11 September 2007, 23 October 2007 and more recently performed a phentolamine infusion. His response to that infusion according to Dr Blombery, indicates that Mr Salmon has sympathetically independent pain. Dr Blombery has suggested a trial of amantadine and if that is ineffective, an arm block or intravenous lignocaine ketamine infusion.

25.In September 2007, Dr Blombery opined that Mr Salmon had no work capacity because of the injuries to his right arm.

26.Ms Dolan opined in her report dated October 2007 that Mr Salmon was unable to work because of his depressive, pain and trauma symptoms.

27.Mr O’Brien examined Mr Salmon on one occasion for Allianz, that being 13 February 2007 and his reports dated 21 February 2007 and 4 June 2007 were tendered by the Defendant. He found no signs of specific pathology and described Mr Salmon of presenting with a vague distribution of pain. He expected after one month of further physiotherapy that Mr Salmon would regain normal hand function and recover from the soft tissue strain. He did not believe there was evidence to suggest a presence of reflex sympathetic dystrophy/complex regional pain syndrome.

28.Dr Botvinik examined Mr Salmon for Allianz on 19 April 2007. He believed Mr Salmon developed an adjustment disorder with mildly anxious mood because of and secondary to his right wrist and hand injury. At that time, he believed further 4-6 psychological counselling sessions would be appropriate and Mr Salmon was not incapacitated because of his psychiatric condition.

Findings

29.I prefer and accept the opinions of Dr Hall, Ms Dolan and Dr Blombery who examined and treated Mr Salmon over a prolonged period than those of Mr O’Brien, Mr Robbins and Dr Botvinik who only examined him on one occasion each being 13 February 2007, 30 March 2007 and 19 April 2007 respectively. I found Mr Salmon to be a credible albeit a shy and reserved witness. He did not attempt to exaggerate the nature and extent of his disability in the witness box and handled himself with dignity despite serious attacks on his honesty and integrity during cross-examination.

ORDERS:

30.I find that he sustained soft tissue injuries to his right wrist because of the incident at work on 7 December 2006. I find that on his return to work he provided a letter from his treating doctor setting out work restrictions and was in fact assisted in his duties during this period by work colleagues because he continued to suffer the effects of the injury. He has subsequently and because of the work injury, developed reflex sympathetic dystrophy/complex regional pain syndrome together with anxiety. He may very well have a vulnerable personality because of his background, but that is irrelevant, as an employer must take the worker as they find him or her. I find that Mr Salmon remains incapacitated for his pre injury employment because of a combination of his physical and psychological injuries and is therefore entitled to weekly payments of compensation and reasonable medical treatment expenses in accordance with the provisions of the Act.