Sekulovska v Rompa Pty Ltd (Dianna Ferrari Pty Ltd)
[2009] VCC 106
•16 February 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY
Case No. CI-08-00114
| ASPASIJA SEKULOVSKA | Plaintiff |
| v | |
| ROMPA PTY LTD (DIANA FERRARI PTY LTD) | Defendant |
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| JUDGE: | HIS HONOUR JUDGE O'NEILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 30 January 2009 and 2 February 2009 |
| DATE OF JUDGMENT: | 16 February 2009 |
| CASE MAY BE CITED AS: | Sekulovska v Rompa Pty Ltd (Dianna Ferrari Pty Ltd) |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0106 |
REASONS FOR JUDGMENT
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Catchwords: Serious injury application – s.134AB Accident Compensation Act 1985 – carpel tunnel injury – development of Chronic Regional Pain Syndrome – physical injury and psychological injury – injury related to employment pre October 1999 – consideration of Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602 – whether consequences of physical injury achieved “very considerable” level – whether consequences of psychological injury achieve “severe” level – assessment of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V A Morfuni SC | Patrick Robinson & Co. |
| Mr J J Fitzpatrick | ||
| For the Defendant | Mr B R McKenzie | Hall & Wilcox |
| HIS HONOUR: |
Preliminary
1 The plaintiff commenced work with the defendant from 1997 undertaking various tasks related to the production of shoes. She developed pain in her right and left wrists, and in August 2000 underwent surgery for a carpal tunnel release. The surgery did not relieve the pain particularly in her right wrist and she alleges as a result she developed Chronic Regional Pain Syndrome (“CRPS”).
2 The plaintiff claims she suffers ongoing significant pain in the right arm, requires treatment with powerful painkilling medication, and has not been able to work since July 2000.
3 This is an application for leave to bring proceedings pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injuries suffered in the course of the plaintiff’s employment over the period from October 1999 until July 2000.
4 Mr Morfuni, on behalf of the plaintiff, identified the body function said to be lost or impaired as the right arm. In addition, he also stated the plaintiff had suffered a permanent severe mental or permanent severe behavioural disturbance or disorder.
5 The application is thus brought under subsections (a) and (c) of the definition of “serious injury” contained in s.134AB(37) of the Act, and leave is sought in respect of both pain and suffering and loss of earning capacity.
6 In order to succeed, the plaintiff must prove, the onus being upon her, that the consequences emanating from the loss or impairment of the body function are at least “very considerable” and more than “significant” or “marked”. In the alternative, the plaintiff must prove that the consequences emanating from the psychological disturbance or disorder may be fairly described as more than “serious” to the extent of being “severe”. The authorities have defined the word “severe” as being a word of stronger force than “serious”. I must consider the consequences to this particular plaintiff, viewed objectively, arising from injury. I must also compare the impairment arising from injury in this application with other cases in the range of possible impairments or losses of the body function of the arm, alternatively of mental or behavioural disturbances or disorders.
7 Further, in order to be satisfied that the plaintiff has suffered a loss of earning capacity, she must prove, as prescribed by s.134AB(38)(e)(i) and s.134AB(38)(f), that, as a result of injury, she has suffered a loss of earning capacity of forty per cent or more when a comparison is made between her “without injury” earnings in the three-year period before and after injury, as best reflects her earning capacity, with her earning capacity at the present time from suitable employment.
8 The plaintiff was the only witness called to give evidence and be cross- examined. In addition, medical reports, vocational assessments and various other materials were tendered into evidence. I have read all the tendered material.
9 On behalf of the defendant, Mr McKenzie outlined the position of his client in response to the application as follows:
•
He stated that the plaintiff’s employment giving rise to injury occurred over, at least in part, the “black hole” period prior to October 1999.
•
He stated there was no medical evidence to confirm, in respect of that period of employment after October 1999, and before the plaintiff’s termination of employment in July 2000, that the plaintiff suffered injury, or aggravation of injury sufficient to cause the serious injury consequences.
• The defendant challenged the plaintiff suffered CRPS. •
There was a disentangling exercise in relation to the injury to the plaintiff’s right arm and various other problems, including the carpal tunnel injury to the left arm, a Chronic Pain Syndrome which had been diagnosed by various practitioners, and a stroke suffered by the plaintiff in 2002.
•
In any event, the consequences arising from the right arm injury did not meet the “very considerable” test.
•
In the alternative, the consequences arising from the plaintiff’s psychological disorder did not meet the “severe” test.
Relevant Background
10 The plaintiff was born in Macedonia and is now fifty five years old. She was educated to Year 10, was married at a young age and gave birth to her first child when she was sixteen. She came to Australia in 1970.
11 The plaintiff has an impressive employment record. Aside from time away from employment for the birth of her children, and a period in the 1980s when she took time off work to look after her husband after he had been injured, she has generally maintained consistent employment. She has worked in a variety of jobs, including work on an assembly line and work in a factory and as a machinist. She commenced employment with the defendant as a machine operator in 1997. The defendant manufactured women’s shoes, and over the period from 1997 to 1998 she worked in various areas of the factory on rotated duties, including polishing, buffing and stacking shoes, and work on various sewing machines. According to her affidavit,[1] in about the middle of 1998 the rotation of these various duties ceased. At that point, the plaintiff undertook work placing linings in shoes and boots. It was repetitive and fast work and required a considerable amount of strength and pressure in the use of her hands. The plaintiff claims she asked her team leader for assistance or a change of job because the work was heavy.[2] She did not get any positive response.
[1] Plaintiff’s Court Book (“PCB”) 8
[2] Transcript (“T”) 30-31
12 In approximately the middle of 1999, according to the plaintiff’s affidavit,[3] she commenced to feel pain and pins and needles in both hands. At the time, she worked fitting linings into court shoes, including gluing the linings into the shoes, and adjusting them, and hammering the linings into place. Aside from the pain and tingling, the plaintiff’s hands would swell up, become numb, and she would massage them under water.[4] The pain gradually went up her arm from the wrist to the elbow, and was particularly acute at night.
[3] PCB 9
[4] T33
13 Notwithstanding the development of these problems, the plaintiff remained working full-time, and undertaking the same duties for the rest of that year. According to the history to Dr Wyatt,[5] occupational physician, over the Christmas break at the end of 1999, the problem with her hand settled, but after her return to work in early 2000, the pain returned, and in fact increased such that by May 2000, she consulted her general practitioner, Dr Tandon. A similar history was provided to Mr Brownbill, neurosurgeon, to whom the plaintiff was referred by the WorkCover insurer.[6]
[5] Defendant’s Court Book (“DCB”) 1
[6] PCB 47
14 Mr McKenzie challenged the plaintiff that in fact the symptoms in her wrists commenced in 1998.[7] This challenge arose as a result of histories provided to Dr Mendelson, psychiatrist;[8] Dr Kostos, rheumatologist;[9] and in particular the plaintiff’s treating psychologist, Ms Steger.[10] Notwithstanding those histories, I am satisfied that in fact symptoms in the plaintiff’s wrists commenced in approximately mid 1999. This accords with the history provided to the great majority of the medical practitioners who examined the plaintiff.[11] When I asked the plaintiff when the symptoms in her wrists commenced, she stated that that occurred in the middle of 1999.[12]
[7] T30-32
[8] DCB 7
[9] DCB 28
[10] PCB 63
[11] See reports of Dr Howard (PCB 33), Dr Lefkovits (PCB 51), Dr Arnold (PCB 58), Dr Blombery (PCB 67, Dr Nathar (PCB 120), Mr Flanc (PCB 126) and Dr Wyatt (DCB 1)
[12] T32
15 As stated, when the plaintiff returned from the Christmas break the pain in her wrists gradually became worse.[13] On 8 May 2000, she attended her general practitioner who noted that there was tenderness in the right and left wrists with areas of paraesthesia. In the course of her evidence, the plaintiff stated that she had in fact complained to her general practitioner when she had seen him on other occasions before May 2000 when she had attended for unrelated symptoms or conditions. There is no reference to this in the general practitioner’s reports,[14] and I infer that if the pain in her wrist was mentioned prior to May 2000, it was not of sufficient significance to warrant any record being made by the general practitioner.
[13] PCB 9
[14] PCB 22-28
16 Other than the problems with her wrists, the plaintiff was otherwise in good health. Aside from her work and family, she enjoyed socialising with friends, fishing with her husband, gardening, cooking and crocheting. The plaintiff had a wide circle of friends and had a close relationship with her adult children and grandchildren.
The Injury and its Consequences
17 The plaintiff attended her general practitioner on 8 May 2000. He referred her for nerve conduction studies of both wrists and she was diagnosed to have bilateral carpal tunnel syndrome.[15] She was recommended surgical release, but sought a further opinion from Dr Kevin Fraser, rheumatologist, who confirmed the diagnosis.
[15] PCB 22
18 Up until the time the plaintiff attended her general practitioner, she was working full-time undertaking the same arduous duties. After seeing her doctor, she complained further to her team leader that she could not keep up with the work and as a result was assigned light duties. She continued these light duties for three weeks or so until 5 July 2000, when she ceased work, unable to undertake any duties because of the pain, predominantly in her right wrist, but also in her left. She has not worked since. She was made redundant in May 2002.
19 She was referred to Mr Stephen Flood, plastic surgeon, on 10 July 2000, and Mr Flood performed a right carpal tunnel release on 9 August 2000.[16] The surgery was uncomplicated, but when Mr Flood reviewed the plaintiff in September 2000, he noted a very stiff and swollen hand and a history from the plaintiff that the pain had persisted and was referred into the elbow, shoulder and neck. At this point, Mr Flood considered the plaintiff was suffering from Reflex Sympathetic Dystrophy (also known as CRPS) and referred the plaintiff to Dr Will Howard of the Austin Hospital Anaesthetic Department.
[16] PCB 20
20 When Dr Howard saw the plaintiff in September 2000, he confirmed the diagnosis of CRPS – Type I, and undertook treatment by way of stellate ganglion blocks, a series of injections over a period of months.
21 CRPS is a somewhat unusual, but generally accepted condition affecting the central nervous systems. It occurs usually as a result of trauma, including surgery, and involves a range of symptoms to a limb, including swelling, discolouration, temperature change, and importantly a significant amplification of pain. The disorder is described by various practitioners who have reported in this application.[17] Dr Howard noted the plaintiff had developed avoidance behaviour in relation to her right arm given her concern about movement of the arm causing amplified pain.[18] Dr Howard continued with a series of injections to the arm designed to “block” the nerves to that area, but without significant relief. There was little issue either upon the medical evidence or in submission from the defendant that CRPS is a physical and not a psychological disorder.
[17] Dr Lim (PCB 39), Dr Blombery (PCB 6) and Mr Myers (PCB 96-115)
[18] PCB 34
22 The plaintiff had been referred by Mr Flood for physiotherapy in July 2000, and then following surgery, but despite regular treatment, there was minimal improvement.[19]
[19] See report of Ms Fitt (PCB 56-7)
23 In early 2001, Dr Howard noted the plaintiff’s range of movement in the right arm was severely limited.[20] In March 2001, Dr Howard referred the plaintiff to Dr Terence Lim, rehabilitation specialist, at the Olympia Private Rehabilitation Hospital in Thornbury. Dr Howard last saw the plaintiff in July 2001. The plaintiff’s complaints of pain and other symptoms continued, and he noted that the plaintiff had had a poor response to the interventional treatment. He said that CRPS was a well-recognised complication of carpal tunnel release.[21] He felt “dubious” that the plaintiff would ever return to work.
[20] PCB 35
[21] PCB 36
24 Dr Lim first saw the plaintiff in November 2000 and was involved in her treatment until June 2002. The plaintiff was admitted as an inpatient to the Olympia Hospital between 13 and 30 March 2001 and continued to be treated as an outpatient thereafter. At the outset Dr Lim noted signs and symptoms consistent with a diagnosis of CRPS, including swelling, discolouration, altered temperature and sweatiness to the right limb.[22] In addition to this diagnosis, he also diagnosed “increasing entrenchment in a chronic pain syndrome”. He noted that the carpal tunnel was also affecting the plaintiff’s left hand. Dr Lim gave a comprehensive explanation of the nature of CRPS and its relationship to the carpal tunnel surgery.[23] During the course of the plaintiff’s inpatient admission at Olympia, she received treatment by a multi- disciplinary team to address the medical, physical and psychosocial components of the disorder. During this period, a brachial plexus catheter was inserted in the plaintiff’s neck for the purpose of pain reduction, but this was removed as a result of developing infection. Dr Lim prescribed Oxycontin, an opioid based painkiller. She was discharged from the Olympia Program in August 2001 and referred to another anaesthetist, Dr Vallipuram, for further treatment. When Dr Lim reviewed the plaintiff in June 2002, he noted the plaintiff had suffered a minor stroke. Although there was no evidence of swelling or colour change in the right arm, the plaintiff still reported swelling and ongoing pain in the whole of the right limb, including the shoulder girdle with hypersensitivity.
[22] PCB 42
[23] PCB 43
25 Overall, Dr Lim considered the plaintiff’s prognosis extremely poor and the disability to her right arm as major, both as a result of the CRPS and the Chronic Pain Syndrome.
26 Dr Vallipuram examined the plaintiff in late 2001 and made a provisional diagnosis of CRPS-Type I and fibromyalgia. He considered that a spinal cord stimulator was an appropriate form of treatment, although I understand this was not undertaken.[24]
[24] PCB 55
27 Dr Tandon noted the plaintiff was suffering depression consequent upon her injury and referred her to Ms Steger, clinical psychologist, who treated the plaintiff between December 2000 and July 2001.[25] She diagnosed the plaintiff as suffering from a chronic pain disorder and a major depressive disorder.
[25] PCB 62-66
28 In addition to the Oxycontin prescribed at Olympia, the plaintiff was also given Neurontin, to stabilise her nervous system. She suffered side-effects from the Oxycontin and this was discontinued. While at Olympia, she received treatment by TENS machine, physiotherapy, hydrotherapy and occupational therapy.
29 While the plaintiff claims that the most significant pain and disability is in the right arm, she also suffers pain in the left arm. There was a flare-up in 2003 of her left carpal tunnel and she was referred again to Mr Flood. Surgery was apparently considered, but rejected because of the development of CRPS after the first surgery. Mr Flood referred the plaintiff to Mr Donato, plastic surgeon, who, according to the plaintiff, offered her surgery to the left arm, which she declined. She was again referred to Dr Howard and received treatment at the Royal Talbot Rehabilitation Centre, which included massage, hydrotherapy and physiotherapy to the left arm.
30 In February 2002, the plaintiff suffered a cerebellar stroke and experienced numbness on her right side. She had problems with her voice and balance. The plaintiff claims she made a full recovery from the stroke and has no ongoing symptoms. She takes aspirin on a regular basis to prevent recurrence. I note there is no medical opinion to suggest any ongoing disability. The plaintiff does have some heart palpitations, and has been referred to a cardiologist.
31 In 2005, the plaintiff came under the care of Dr Blombery, physician in vascular diseases, and has remained under his care until the end of 2008. Dr Blombery received a history of ongoing pain in the right arm which kept the plaintiff awake at night. The plaintiff claimed changes in colour and temperature in the right arm and numbness and tingling in fingers of the right hand. On examination, Dr Blombery noted a slight increase in temperature of the right hand as compared to the left and a slight difference in colour. Grip strength was significantly reduced on the right side, together with diffuse tenderness. Dr Blombery confirmed the diagnosis of CRPS-Type I, and noting the extensive treatment which had been provided by various specialist practitioners to that time, thought that the prognosis was extremely poor. Dr Blomberry prescribed a change in medication which included an anticonvulsant, Pregabalin,[26] but thought little was to be gained by further sympathetic blockades of the nervous system. The plaintiff had an adverse reaction to this medication, and a range of further medications were trialled[27] including Panadeine Forte, Oxycontin and Endone, a narcotic pain-reliever. Dr Blombery noted that the plaintiff had no capacity for her pre-injury employment, or suitable employment given her limited range of work experience.[28] In his final report of 8 September 2008,[29] he noted the plaintiff’s condition was stable with the prescription of Oxycontin and Endone. He concluded that the plaintiff’s pain was well controlled with this medication, although her prognosis for recovery was poor. He considered that the plaintiff’s employment was a significant contributing factor to the condition and that she had no capacity for employment, which would remain permanent.[30]
[26] PCB 70
[27] PCB 72, 73, 74 and 75
[28] PCB 79
[29] PCB 80
[30] PCB 81
32 In 2005, the general practitioner, Dr Tandon left the practice, and the plaintiff’s treatment was undertaken by Dr Le.[31] Aside from the right arm pain, Dr Le noted the plaintiff was significantly depressed and referred her for psychiatric treatment at the Austin Hospital. In 2006, he noted the increased pain and tenderness in her left wrist. In his final report of September 2008[32] he noted the plaintiff had poor functional use of the right arm and in addition pain in the left hand and arm. The plaintiff continued to suffer from depression. Dr Le considered the plaintiff had no capacity for pre-injury employment.
[31] PCB 82-89
[32] PCB 88-89
33 At the present time, in addition to pain-relieving medication, the plaintiff takes an anti-depressant, Efexor, one tablet per night. She sees Dr Le regularly for prescription of medication. She does a range of activities at home of a lighter nature. The heavier domestic activities are undertaken by her husband or daughters. She is unable to iron, mop, change the linen or do the heavier cleaning.[33] She assists with the shopping and does some washing and lighter dusting. She and her husband’s social life has been reduced because she is less able to leave the house. She goes on some family outings, but her interest in fishing which she enjoyed with her husband has been significantly reduced.[34]
[33] T50
[34] T52
34 The plaintiff has not looked for any form of employment since she has been off work. She has not registered with any job agencies, nor applied for any jobs. She considers that the disability, particularly to her right arm, is such that she will be unable to undertake any form of employment now or into the future.
35 The plaintiff’s house is paid off and it was put to her by Mr McKenzie that she had the capacity to undertake employment, but was not motivated to do so as there was no pressing financial need.[35] The plaintiff denied this and stated that she enjoyed her work, and it had been her intention to continue employment for as long as she was able.
[35] T53
36 The plaintiff claims she is in constant pain in the right arm despite the medications she takes. Her sleep is considerably affected and there has been a very significant reduction in the recreational and domestic activities she enjoyed before 2000.
Medical Opinions
37 I have referred to the opinions of the various treating practitioners.
38 The plaintiff was examined at the request of the WorkCover insurer by Mr Brownbill, neurosurgeon, in January 2001.[36] He noted the plaintiff’s right wrist and fingers had a pink blotchy appearance and increased sweating of the palm. He considered that as a result of the right carpal tunnel syndrome, the plaintiff had developed CRPS. At the time he saw her in 2001, Mr Brownbill considered the plaintiff had no work capacity. He noted CRPS was notoriously difficult to treat and would provide a real impediment to return to work.
[36] PCB 47-50
39 The plaintiff was also examined on behalf of the WorkCover insurer by Dr Robert Lefkovits, physician, in December 2001.[37] He received a history that the plaintiff was suffering from constant pain and severe restriction in the use of the right arm. He noted weakened hand grip strength, swelling, hyperaesthesia and sweating. He thought the plaintiff was experiencing significant psychological symptoms and reached a diagnosis of CRPS-Type 1. He thought she had received appropriate treatment, but there had been little benefit. He thought the prognosis uncertain and that in some cases the condition could cause severe disability with long-term symptoms. He thought the plaintiff was a genuine person under considerable physical and emotional distress. At that time he considered the plaintiff had no work capacity and that the prognosis was guarded.
[37] PCB 51-54
40 The plaintiff was examined by Dr Carolyn Arnold, consultant in rehabilitation medicine, again on behalf of the WorkCover insurer in September 2002. On examination, she noted hypersensitivity to light touch with alteration in cold appreciation. She also diagnosed CRPS and thought that employment was a contributing factor.
41 The plaintiff was examined by Mr Myers, surgeon, in August 2008.[38] He diagnosed her as suffering CRPS and bilateral fibromyalgia. He thought she had a marked disability restricting the function of both arms, particularly the right, and that there was no prospect of her return to pre-injury employment. He considered she would be a permanent invalid.[39]
[38] PCB 90-117
[39] PCB 95
42 The plaintiff was examined at the behest of her solicitors by Dr Nathar, psychiatrist, in August 2008.[40] She presented as severely depressed and anxious and described symptoms of anxiety, depression and pathological pain preoccupation. He thought the plaintiff was suffering a major depressive illness with symptoms of anxiety, associated with a chronic pain disorder in which psychological factors were amplifying her physical symptoms. He thought the plaintiff’s symptoms were moderately severe and that that would remain permanently. She was totally and permanently incapacitated for all work based upon her psychiatric condition alone.
[40] PCB 118-124
43 The plaintiff was further examined at the request of her solicitors by Mr Flanc, vascular and general surgeon, in September 2008. He noted that the right arm was more severely affected than the left and that movement of her right shoulder resulted in pain. There was no wasting of either arm and there was diffuse tenderness over the right wrist. He noted symptoms, upon examination, consistent with CRPS, including changed colour and lowered temperature.[41] Sensation to touch was diminished over the right hand. He accepted the plaintiff had suffered bilateral carpal tunnel syndrome which he accepted was associated with the heavy and repetitive work. In addition, the plaintiff suffered CRPS-Type I which he stated was a sensitisation of the pain pathways. This diagnosis was supported by his findings upon physical examination. In addition, he thought the plaintiff was suffering Chronic Pain Syndrome with psychological disturbance. Both the bilateral carpal tunnel syndrome and the CRPS were related to her employment with the defendant. He thought the plaintiff did not have any capacity to return to any form of work requiring heavy or repetitive use of her hands, and was permanently unable to return to any form of process work. Considering the plaintiff’s age, training and her left carpal tunnel syndrome, it would make it extremely difficult for her to be retrained in any sustainable occupation and, as a result, she had no realistic work capacity.
[41] PCB 129
44 Ms Margaret Leitch, occupational therapist, undertook a vocational assessment of the plaintiff’s work capacity at the request of her solicitors in January 2009.[42] She reviewed the various medical opinions, particularly as to the right arm condition, and examined a range of occupations which had been suggested as potentially suitable. These included:
[42] PCB 135-155
ƒ Footwear production machine operator ƒ Vehicle assembler ƒ Textile finisher ƒ Product assembler ƒ Product examiner ƒ Retail sales ƒ Service station operator ƒ Telemarketer
ƒ Ticket seller ƒ Food handler ƒ Crossing supervisor. 45 Having examined the restrictions and medical opinions, Ms Leitch concluded that there was no occupation in respect of which the plaintiff was likely to be able to undertake, taking into account the definition of “suitable employment”. She thought that any occupational rehabilitation or retraining was unlikely to lead to any employment, taking into account the plaintiff’s literacy skills, her education, the limited capacity for use of her right arm, the effect of the medication she was taking and her age.
46 Aside from the practitioners who examined the plaintiff on behalf of the WorkCover insurer, as have been already referred to, she was examined by other consultants.
47 Dr Wyatt, occupational physician, examined the plaintiff in July 2000. She received a history that the plaintiff developed pain in both hands in June 1999, and that over the Christmas holiday period the pain had settled. Subsequently, upon return to work, the pain had increased requiring her to seek medical advice. She accepted the diagnosis of carpal tunnel syndrome and that it was related to her work.[43]
[43] DCB 3
48 The plaintiff was further examined by Dr Wyatt in November 2000[44] and Dr Wyatt noted persisting post-operative pain and appeared to accept that the plaintiff was suffering from CRPS. She thought the problem would settle with time and that the plaintiff had the capacity for a graduated return to full-time work.
[44] DCB 4-6
49 The plaintiff was examined by Dr Mendelson, clinical psychiatrist, in December 2001 and October 2005.[45] In his first report,[46] Dr Mendelson stated that the plaintiff did not describe the presence of any emotional symptoms nor mood disturbance and therefore had not developed any diagnosable mental disorder. In his second report, he noted there had been deterioration in the plaintiff’s emotional state and he had formed the view that she had become clinically depressed. He diagnosed an adjustment disorder with depressed mood. He noted that she was taking antidepressant medication and thought this was appropriate. He did not think her emotional state would prevent her from undertaking gainful employment within the limits that her physical injury allowed.
[45] DCB 7-27
[46] DCB 14
50 The plaintiff was examined at the request of the WorkCover insurer by Dr Strauss, psychiatrist, in August 2004. He thought the plaintiff had developed a pain disorder with anxiety and depression which he thought was partially related to the physical injury arising from her employment, and partly as a result of her stroke.[47]
[47] DCB 55
51 The defendant places considerable reliance on the opinions of Dr Kostos, rheumatologist, Dr Baynes, occupational physician and Mr Conroy, surgeon.
52 Dr Kostos examined the plaintiff in December 2001 and November 2005.[48] He noted on the first examination diffuse tenderness throughout the right arm, but no other symptoms related to CRPS. He considered that the plaintiff had been working in other employment similar to that over the period from 1998 to 2000 and had not developed any carpal tunnel symptoms in that other employment. He therefore concluded that her condition was idiopathic. He noted that carpal tunnel syndrome was common in middle-aged women. Given she had little movement in the right shoulder, Dr Kostos considered the plaintiff had capsulitis of that shoulder. Although he noted that capsulitis may be associated with sympathetic changes in the arm, he concluded that the plaintiff was not suffering from CRPS as she was not suffering muscle wasting to the right hand, and observed some ingraining, presumably of dirt, in that hand. He concluded that the plaintiff was trying to make herself more disabled than she truly was. He reviewed the plaintiff again in 2005 and did not believe the plaintiff was displaying her true physical status.
[48] DCB 28-33
53 The plaintiff was examined at the request of the WorkCover insurer by Dr Baynes in August 2003 and October 2005.[49] He did not observe any symptoms upon the first examination consistent with CRPS. He thought the plaintiff was suffering a chronic pain syndrome and agreed with the opinion of Dr Kostos. He thought the plaintiff’s carpal tunnel had settled. He did not think that the plaintiff was fit for pre-injury duties, but considered she was able to do alternative duties where the lifting with the right hand was limited to 1 kilogram. He noted the plaintiff had limited education and language skills and at her age it would be difficult to obtain suitable employment. However, he thought the plaintiff could work as a ticket seller and perform some of the functions of a service station attendant. She could also work as a car park attendant or as a school crossing supervisor. When he examined the plaintiff in October 2005, again he was unable to detect symptoms of CRPS. He thought the diagnosis again was that of Chronic Pain Syndrome, a psychological disorder, as distinct from CRPS. He agreed with the opinion of Dr Kostos that the carpal tunnel syndrome was likely to be constitutional rather than work-related. He again regarded the plaintiff as capable of working in a range of light employment provided there was no heavy repetitive use of the right arm nor forceful gripping.
[49] DCB 34-42
54 The plaintiff was examined by Mr Conroy in September 2003, at the request of the insurer. He noted no changes in skin colour, temperature nor moisture, and no muscle wasting. He considered the plaintiff was suffering from “abnormal illness behaviour” with some stiffness in the right shoulder consistent with a rotator cuff dysfunction. His report is not particularly extensive and appears to have been obtained for an AMA assessment. It is of limited use.
Conclusions as to Medical Opinions
55 There are two distinct camps amongst the medical practitioners both in relation to the nature and extent of the injury or disorder relating to the plaintiff’s right arm, and its causative relationship to her employment. All of the plaintiff’s treating practitioners, particularly the specialists, conclude that the plaintiff suffered carpal tunnel syndrome as a result of her work with the defendant and that that condition, or the surgery in August 2000, gave rise to the development of CRPS. This is also the view of a number of specialist consultant practitioners examining the plaintiff on behalf of the WorkCover insurer, particularly Mr Brownbill, Dr Lefkovits and Dr Arnold. Although those opinions are now somewhat dated, they nonetheless clearly link the development of carpal tunnel with the plaintiff’s employment, and accept further that the CRPS was as a result of the syndrome, or the surgical intervention.
56 In the other camp, Doctors Kostos, Baynes and Mr Conroy do not accept the plaintiff is suffering CRPS but rather state that she is either exaggerating her symptoms, or has a psychological reaction to injury in the nature of Chronic Pain Syndrome or abnormal illness behaviour. It is clear that the opinions of those doctors are based upon the failure to elucidate any symptoms of CRPS in the course of their various examinations. However, I note there is regular reference in the reports of many doctors to the various symptoms said to be consistent with CRPS. There is regular observation of discolouration of the right arm, swelling, changed temperature and diffuse change sensation.[50] In particular, Dr Lim, who treated the patient over a considerable period at Olympia Hospital noted the following[51]:
“When I examined her on 23 November 2000, I found that Ms Sekulovska was indeed suffering signs and symptoms affecting the right upper limb including swelling, discolouration, altered temperature and increased sweatiness. She experienced severe discomfort to the gentlest pressure and light touch. This is known as Allodynia. She had lost the ability to posture and coordinate normal neck, trunk and limb movements and function normally, holding her right upper limb persistently close to her trunk and setting up an overuse muscular pain component. This would have the tendency to aggravate and perpetuate her pain condition. These signs are consistent with severe CRPS.”
[50] See the reports of Dr Arnold (PCB 60); Dr Tandon (PCB 27); Dr Howard (PCB 33); Mr Brownbill (PCB 48); Dr Lefkovits (PCB 53); Dr Flood (PCB 20); Dr Blombery (PCB 69) and Mr Myers (PCB 92)
[51] PCB 42
57 On balance I accept the opinion of the various treating practitioners and those consultant practitioners who favour a diagnosis of CRPS. In particular, Drs Howard, Lim and Blombery, all of whom have treated the plaintiff over a considerable period of time, and have had the opportunity to examine her on many occasions have all noted symptoms consistent with CRPS. I prefer those opinions to those of Drs Kostos, Baynes and Conroy. For the same reason I accept the CRPS is causatively related to the plaintiff’s employment.
Plaintiff’s Credibility
58 I observed the plaintiff in the course of her evidence and in cross-examination. Unlike Dr Kostos I did not find the plaintiff exaggerating nor embellishing her symptoms. She appeared to me to give evidence in a straightforward manner and answer questions appropriately. There were no significant credit issues put to the plaintiff by Mr McKenzie. I conclude the plaintiff was a witness of truth and I accept her evidence, particularly as to the onset and continuation of pain in her right arm and the disability resulting therefrom, which is also accepted by the majority of the medical examiners.
Onset of Symptoms
59 It was put by Mr McKenzie to the plaintiff, and in address, that the onset of symptoms in the plaintiff’s right wrist commenced in 1998 and not 1999. This was the history received by Drs Mendelson and Kostos.[52] In particular, Mr McKenzie submitted I should accept the history given to the treating psychologist, Ms Steger[53], that the pain came on in 1998 and improved over Christmas in that year, and that in 1999 the pain returned when she returned to work doing repetitive duties. However, the plaintiff has given a consistent history of the onset of right wrist pain in the middle of 1999, to the bulk of medical practitioners, particularly the treating doctors who saw and examined the plaintiff in 2000 and 2001.[54]
[52] DCB 7, DCB 28
[53] PCB 63
[54] See the reports of Dr Howard (PCB 33); Dr Lefkovits (PCB 51); Dr Arnold (PCB58); Dr Blombery (PCB 67); Dr Nathar (PCB 120); Mr Flanc (PCB 126) and Dr Wyatt (DCB 1).
60 Mr McKenzie submitted that the history to Ms Steger was credible, particularly given she was a treating practitioner. While the plaintiff did accept this was the history provided to Ms Steger[55], she denied the histories to Dr Mendelson and Dr Kostos.[56] I asked the plaintiff directly[57] when the pain had started. She answered in the middle of 1999.
[55] T30-31
[56] T31-32
[57] T32, L25
61 While there appears some confusion, I am satisfied that the history given to the bulk of the practitioners is correct and that the onset of symptoms was in approximately the middle of 1999.
“Black Hole” Argument
62 Section 134AB provides:
“that a worker is entitled to compensation in respect of injury arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999 … .”
63 It is a clear the onset of symptoms in the plaintiff’s right arm occurred in approximately the middle of 1999, thus several months before the end of the black hole period referred to in s.134AB(1).
64 The plaintiff commenced employment with the defendant in 1997. I am satisfied from the evidence that her work in the period from 1997 until approximately the middle of 1998 was work which involved duties in a range of areas of the factory which were rotated regularly. It was only in 1998 that the duties became more arduous and repetitive, particularly relating to the insertion of soles in shoes. It was after about one year of work in this area that the plaintiff’s symptoms commenced. I conclude that it was this work from 1998 which gave rise to the carpal tunnel syndrome, the symptoms of which commenced in the middle of 1999.
65 This issue received considerable attention from Ashley JA in Grech v Orica Australia Pty Ltd & Anor.[58] That case also concerned a worker afflicted by carpel tunnel syndrome. The worker worked over a considerable period with the employer up until his redundancy in May 2002. Over many years until late 2002, the plaintiff worked in repetitive manual employment. In 2000 he began to notice intermittent numbness and pain in his hands at night and this continued to increase and was diagnosed as carpel tunnel syndrome after nerve conduction studies in December 2000. It was argued, and generally accepted, that his repetitive work over a considerable period gave rise to the carpel tunnel syndrome which became symptomatic in 2000. Thus, it was said, that given work over the “black hole” period gave rise to the syndrome, the plaintiff was not entitled to bring an application by reason of the operation of s.134AB(1). In considering these arguments, Ashley JA noted that it was for a plaintiff to establish that compensable injury had been suffered on or after 20 October 1999 and to establish what that injury was. Further, it was not sufficient that the plaintiff establish serious injury consequences after 20 October 1999.[59] His Honour accepted[60] that “injury” would often, but not always, be constituted by “some physiological change to a body part”.
[58] [2006] VSCA 172
[59] Paragraph 45
[60] Paragraph 48
66 His Honour examined the physiology of the onset of carpel tunnel syndrome in paragraphs 59, 60 and 61. Although there is no similar description in the medical evidence in this case, I accept and adopt the principles referred to by His Honour. On the evidence, I am satisfied that the repetitive and forceful use by the plaintiff of particularly her right hand over the period from 1998 until she attended her general practitioner in May 2000 resulted in the development of the carpel tunnel syndrome. Like His Honour’s observations in Grech,[61] it was likely that the plaintiff suffered “injury” over that whole period notwithstanding the symptoms did not arise until the middle of 1999. His Honour, in paragraph 64-66, then went on to establish principles which have particular application to the present case. His Honour differentiates between injury occurring in compensable circumstances, and the consequences of that injury. Notwithstanding the symptoms in Grech did not commence until after the black hole period, nonetheless these principles have application to the present case. His Honour states:[62]
“But, in principle, the question to be resolved – was compensable injury sustained before, and on or after, 20 October 1999, and did any such injury result in or materially contribute to the incapacitated consequences – would be not different.”
(Emphasis added)
[61] Paragraph 62
[62] Paragraph 65
67 I conclude from His Honour’s reasoning that I need to be satisfied as to the following:
(a) The plaintiff suffered compensable injury in the period after 20 October 1999. (b) It is not necessary that that be the only injury suffered by the plaintiff contributing to the serious injury consequences. For example, it is clear that the present case on the facts as I have found them, that the plaintiff suffered injury in the period from mid 1998 up to October 1999. (c) It is necessary that that injury materially contribute to the incapacitating consequences. 68 It is clear from the definition of “injury” contained in s.5 of the Act that it includes a recurrence, aggravation, acceleration, or exacerbation of pre- existing injury. A significant issue in this case is whether I am able to conclude from the evidence that in the period from October 1999 until May 2000 the plaintiff suffered an “a recurrence, aggravation, acceleration, exacerbation … ” of the carpel tunnel syndrome being the compression of the median nerve as it passes through the gap or space known as the carpel tunnel.
69 Mr McKenzie, on behalf of the defendant, submits that I cannot draw this conclusion from the evidence. He points out, with some force, that there is no medical opinion anywhere within the materials which could lead me to such a conclusion. He states there is no medical examiner who has looked at this distinct period from October 1999 until July 2000 to determine if and to what extent the work performed during that period was causatively related to exacerbation or acceleration of the syndrome.
70 Mr Morfuni points out that there is evidence to that effect. He says the histories provided to a number of doctors that after developing symptoms in 1999, those symptoms eased towards the end of the year and then settled. They returned and became worse as she continued to work on the same duties during 2000. In particular, this history was provided to Dr Wyatt;[63] Mr Brownbill;[64] Dr Lefkovits;[65] and Dr Arnold.[66] The plaintiff referred to this in her first affidavit.[67] Given this, submits Mr Morfuni, it is clear that the period from early 2000 until the middle of 2000 significantly aggravated the syndrome causing an increase in symptoms which had settled by the end of the previous year.
[63] DCB 1
[64] PCB 47
[65] PCB 51
[66] PCB 59
[67] PCB 9 - paragraph 16
71 I am of the view I can draw the following conclusions from the medical and lay evidence:
(a)
The forceful and repetitive work over the period from mid 1998 until mid 2000 was the cause of the plaintiff’s right carpel tunnel syndrome.
(b)
Carpel tunnel syndrome is a progressive disorder which was likely to have occurred over that whole two year period, albeit the symptoms commenced only in the middle of 1999.
(c)
There was an easing or settling of the symptoms towards the end of 1999, and they re-recurred and became more serious during the first half of 2000 causing the plaintiff eventually to seek medical treatment.
(d)
The work and the resultant injury over the first half of 2000 did constitute an aggravation, acceleration or exacerbation of the injury which had earlier commenced.
(e)
The injury, being the carpel tunnel syndrome, and/or the subsequent surgical intervention gave rise to the development of CRPS with the various significant consequences to the plaintiff.
72 Therefore I am satisfied of the causative link between the post-October 1999 period, and the development of CRPS.
Disentangling
73 Mr McKenzie submits there are a number of both physical and psychological aspects of the plaintiff’s presentation which contribute in whole or in part to the consequences she claims attain the serious injury level.
74 The plaintiff suffered a stroke in 2002. She required hospitalisation and treatment at the time. The plaintiff states, and I accept, that she has substantially recovered from the effects of this stroke and that her incapacity for employment and the requirement for significant medication is not as a result of the effects of the stroke.
75 There is reference in the medical opinions[68] to injury and limitation to the plaintiff’s neck and right shoulder. However, I am not satisfied that these play any significant role in the plaintiff’s overall presentation and in relation to the various domestic, recreational and employment activities in which she is now restricted. Further, there is no medical opinion to suggest either the stroke and its consequences, or the right shoulder and neck problem, contribute to any significant extent to the plaintiff’s disability.
[68] See reports of Dr Le (PCB 89); Mr Myers (PCB 92); Dr Kostos (DCB 30)
76 It appears clear that the plaintiff has carpel tunnel problems in the left hand which has not been the subject of surgery. This is set forth in some detail in the reports of the current general practitioner, Dr Le.[69] I accept the evidence of the plaintiff that the condition with her right arm is significantly worst than her left. The plaintiff is right hand dominant and has been a manual worker all her life. While I am satisfied that her incapacity in respect of employment, and the restriction in the domestic and social activity she enjoyed, is contributed to by her left arm problem, I do not see that as particularly significant and accept that overwhelmingly the problem is with her right arm.[70]
[69] PCB 84, 86, 88, 89
[70] See further the report of Mr Flanc (PCB 127)
77 Mr McKenzie submits that notwithstanding the plaintiff makes application, in the alternative, pursuant to sub-paragraph (c) of the definition of “serious injury” that the psychological symptoms from which the plaintiff suffers contributes significantly to the plaintiff’s disability and these must be disentangled from those arising from physical injury. I accept that the plaintiff has suffered depression over the years, and in fact is still being treated with anti-depressant medication to the present time. In the past, she has required treatment by a psychologist and a psychiatrist. Given the nature and extent of the disability caused by the CRPS and referred to in the medical reports of the plaintiff’s treating practitioners, it is understandable she has had such a reaction.
78 Mr Conroy, Dr Baynes and Dr Kostos are of the view that psychological disorder is a significant part of the plaintiff’s presentation. I do not accept these opinions. I do accept that the plaintiff has suffered psychological symptoms in the way of depression and anxiety, and further that there may be some element of chronic pain syndrome which has developed as a result of the injury to her right arm.[71] However, again, I am not satisfied that these psychological symptoms are responsible to any significant extent for the pain, restriction of movement and disability in relation to many activities and working capacity, but rather that this is as a result predominantly of the development and persistence of the CRPS.
[71] See report of Mr Flanc (PCB 133)
79 It is submitted by Mr McKenzie that when application was made by the plaintiff’s solicitors on her behalf for an impairment benefit pursuant to the Act,[72] that that application was made in relation to:
“Injury to both hands, both wrists, both arms, both shoulders, back, upper back, neck, headaches, dizziness, injury to legs, anxiety and depression.”
[72] See Exhibits 2 and 3
80 However, it is likely that that application was made attempting to incorporate every physical and psychological aspect of the plaintiff’s presentation in order to make the application as wide as possible. It does not, in my view, reflect which of those injuries was the most substantial and which was responsible for the bulk of her disabilities.
Whether the Consequences Achieve the “Very Considerable” Level
81 As stated, I am satisfied the plaintiff is a witness of truth and is giving a reasonable account of the ongoing problems in her right arm. She has persistent chronic pain and altered sensation over not only the wrist, but other parts of the arm. This has resulted in significant medical treatment, including relief surgery, the use of powerful pain relieving medication, the application of various invasive blocks into the arm and neck and treatment over a considerable period at a pain management hospital. I am satisfied that the plaintiff’s domestic and recreational interests have been significantly curtailed as a result. She now cannot enjoy fishing and family activities and is restricted to undertaking only the lighter aspects of her domestic duties. Particularly, the pain in her right arm has led to her using the arm very little and holding it in a defensive position. She has significant interference with her sleep as a result.
82 The plaintiff was criticised by Mr McKenzie for making no attempt at rehabilitation or retraining and for making no endeavours to obtain any form of even part-time alternative employment. In assessing the plaintiff’s employment capacity, I take into account the definition of “suitable employment” in s.5 of the Act. I should consider the plaintiff’s age, disability and the extent of her educational and work experience. Overwhelmingly, the medical opinions are to the effect that the plaintiff would not be able to return to her pre-injury duties. Particularly her treating practitioners are of the view that the plaintiff has little if any work capacity at the present time. When I consider the plaintiff’s age, education and work experience, that work capacity is further significantly reduced.
83 On balance, I am of the view the plaintiff has at the present time little if any work capacity. I am further of the view that that situation is likely to persist for the foreseeable future. There is no suggestion that any form of treatment, be it surgical or conservative is likely to have any significant affect upon the CRPS.
84 In all these circumstances, I am of the view that the consequences to the plaintiff do attain the very considerable level, both in respect of pain and suffering and economic loss. I will grant leave to the plaintiff to issue proceedings of common law and will make consequent orders.
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