Selvi v Star Services International Pty Ltd
[2013] VCC 1998
•20 December 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-12-04401
| SULTAN SELVI | Plaintiff |
| v | |
| STAR SERVICES INTERNATIONAL PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24, 25 and 28 October 2013 | |
DATE OF JUDGMENT: | 20 December 2013 | |
CASE MAY BE CITED AS: | Selvi v Star Services International Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1998 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering and loss of earning capacity – injury to the right upper limb and/or right upper hand/arm/shoulder – Chronic Pain Disorder/Adjustment Disorder/Anxiety/Depression
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Public Transport Corporation v Pitts [2007] VSC 356; Giankos v SPC Ardmona Operations Limited [2011] VSCA 121
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Winneke | Zaparas Lawyers |
| For the Defendant | Mr D Myers | Herbert Geer |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by her in the course of her employment with the defendant on 18 November 2009.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
3 The plaintiff brings this application pursuant to clause (a) and (c) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious” is defined as meaning:
“(a) permanent serious impairment or loss of a body function.
(c)permanent severe mental or permanent severe behavioural disturbance or disorder.”
5 The body function relied upon in this application under subparagraph (a) is injury to the right upper limb, and/or alternatively the right hand/arm/shoulder. The mental or behavioural disturbance or disorder relied upon in respect to subparagraph (c) is a combination of psychiatric injuries – Chronic Pain Disorder/Adjustment Disorder/Anxiety/Depression.
6 The plaintiff relied upon two affidavits, sworn 17 October 2011 and 3 September 2013. The plaintiff and Dr Carolyn Arnold were cross-examined. I have not summarised the plaintiff’s affidavit and evidence. However, I will refer to the plaintiff’s evidence in my reasoning. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Relevant legal principles
7 The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s134AB(37) of the Act.[1]
[1]Section 134AB(19)(a) of the Act
8 In order to succeed, the plaintiff must prove, on the balance of probabilities that:
(a) “the injury” suffered by her arose out of, or in the course of, or due to the nature of, her employment with the defendant;[2]
[2]Section 134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
(b) “the injury” with its resulting impairment must be permanent, in the sense that it is likely to continue into the foreseeable future;[3]
[3]Barwon Spinners (supra) at paragraph [33]
(c) “the consequences” to the plaintiff of impairments to the right upper limb, and/or alternatively the right hand/arm/shoulder in relation to “pain and suffering” or “loss of earning capacity” are “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked and as being at least very considerable”;[4]
[4]Section 134AB(38)(b) and (c)
(d) “the consequences” to the plaintiff of her psychiatric injury in relation to “pain and suffering” or “loss of earning capacity” are severe when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders as the case may be;[5]
(e)the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of “serious injury” and not otherwise.[6]
[5]Section 134AB(38)(d)
[6]Section 134AB(38)(i) of the Act
9 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden to establish:[7]
[7]Section 134AB(19B) and 38E of the Act
(a) that at the date of hearing she had a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act;[8]
[8]Section 134AB(38)(e)(i) of the Act
(b) that after the date of hearing, she will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more;[9] and
(c) that even with rehabilitation and retraining, she will still sustain a loss of 40 per cent or more.[10]
[9]Section 134AB(38)(e)(ii) of the Act
[10]Section 134AB(38)(a) of the Act
10 If the plaintiff satisfies the test laid down by the Act in relation to loss of earning capacity, then she is at large to make a claim for damages; that is, both pain and suffering and loss of earning capacity.[11]
[11]Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at paragraph [63]
11 The Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
12 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[12]
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[13]
[12][2009] VSCA 181
[13](supra) at paragraph [42]
13 In assessing the consequences:
“… the significance of what has been lost may be informed, to an extent, by what has been retained.”[14]
[14]Stijepic v One Force Group Aust Pty Ltd (supra) at paragraph [44]
14 The test for “serious”, as set out in paragraphs (b) and (c) of s134AB(38) of the Act, is sometimes referred to as the “narrative test”.
15 In determining the application, the Court:
(a) must make the assessment of “serious injury” at the time the application is heard;[15]
(b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[16]
[15]Section 134AB(38)(j) of the Act
[16] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592, at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
The Issues
16 Counsel for the defendant submitted that the issue was the plaintiff’s capacity to work and economic loss. That is, the plaintiff does not satisfy the statutory requirements for loss of earning capacity, which will result in a permanent financial loss of 40 per cent or more. An issue was raised as to causation.
17 Finally, this is a “range case”, namely that the consequences of the plaintiff’s injury do not meet the test of seriousness for pain and suffering, in that they could not be considered “as being more than significant or marked and as being at least very considerable” when compared to other cases in the range.
The Plaintiff’s medical evidence
Dr Said Mirranay
18 In October 2013, Dr Mirranay, general practitioner, said that the plaintiff had been a patient for almost four years. She injured her right index finger in November 2009 while working on a sewing machine, which has resulted in chronic pain in her hand, arm, shoulder, and tremor. He diagnosed Chronic Regional Pain Syndrome (“CRPS”). He said the plaintiff was not fit for pre-injury work and can only work where there is no lifting involved, only part-time work, for example, or any job where there is not much fine hand skill involved with the right hand. He suggested administration and office work would be suitable work options or social work. He confirmed that the plaintiff was attending the Caulfield Pain Management Clinic for ongoing chronic pain and is seeing a psychologist. She is taking medication of Cymbalta, 60 milligram, for depressed mood, anxiety and chronic pain for right hand, arm and shoulder. He said, over the last four years, the plaintiff’s tremor had not improved. Her mood has improved but it fluctuates. He believed the plaintiff’s condition is chronic and that she may not be able to obtain a full-time job in the near future.
Mr David Ying
19 In July 2011, Mr Ying, plastic surgeon, treated the plaintiff at the Emergency Department at the Dandenong Public Hospital. The plaintiff injured her right index fingertip when it was accidentally crushed by the sewing machine. He reported that the plaintiff had a degloving of the pulp tissue of her right index finger and an injury to the nail bed with a small fracture to the distal end of the terminal phalanx bone. The skin, nerves and arteries of the fingertip were intact. All of the structures were repaired at surgery and the plaintiff had a satisfactory wound healing.
20 The plaintiff’s recovery was complicated by an unexpected degree of post-operative disability. The plaintiff’s persistent symptoms included:
·reduced sensation – right index finger
·hypersensitivity of the right index fingertip
·stiffness of the distal interphalangeal joint of the right index fingertip
·reduced overall grip strength of the right hand
·a varying degree of tremor in the right index finger and right upper limb
·psychological distress about the injury itself and its effect on her life.
21 Mr Ying said the plaintiff’s symptoms were suggestive of a diagnosis of CRPS but he said that the Caulfield Pain Management Clinic informed him there is some strict diagnostic criteria for CRPS that she does not meet. Mr Ying said she was not fit for pre-injury employment. He thought she was fit for alternate duties of an office type and very light physical duties and probably not operating heavy machinery.
22 He said it was difficult to assess her prognosis. He said the chronic pain which has resulted and the psychological effect of that pain are now the pervasive features of her medical problem. The prognosis is guarded with regard to her returning to normal duties.
Ms Kate Hambleton
23 In November 2011, Ms Hambleton, psychologist, treated the plaintiff on referral from her general practitioner. Ms Hambleton said the plaintiff had developed psychological issues of moderate depression and anxiety. She said the plaintiff had an Adjustment Disorder. She said it was not uncommon for patients to develop depression after such an injury.
24 Ms Hambleton said the plaintiff was not fit for pre-injury employment; she has worked part-time hours doing office work but of late has not been able to sustain office work. She said the plaintiff was unfit for alternate duties and she was guarded as to what duties she could perform. She noted the plaintiff had expressed a desire to return to work. She said the plaintiff’s chronic pain persists and has been a major psychological contribution to her overall physical condition. Until the chronic pain and other referred conditions are managed or under control, she believes the plaintiff’s condition remains unstable and the prognosis is poor.
Dr Carolyn Arnold
25 Dr Arnold, consultant in rehabilitation medicine and pain medicine, examined the plaintiff on referral from the plaintiff’s general practitioner. She provided three reports: 14 November 2012, 14 May 2013 and 17 September 2013 and was cross examined. Dr Arnold diagnosed a CRPS as a consequence of the right fingertip injury at work, resulting in ongoing pain and dysfunction of her right forearm and shoulder. She continues to experience occasional tremor in the right hand. She said the plaintiff does not have the capacity to return to her former employment as a machinist as a result of her injury. She said the plaintiff had some restrictions on work options due to her English speaking ability but is making good progress in her English studies. She is motivated to undertake retraining and has a capacity to undertake work such as a teacher’s aide or integration aide of up to 20 hours a week, as long as the plaintiff has flexibility to avoid sustained use of her right arm in activity. Dr Arnold said that as the plaintiff had suffered her condition for four years, it is likely to continue into the future.
26 In cross-examination, Dr Arnold said she had observed the plaintiff over three years, her criteria for CRPS are fairly consistent, and Dr Arnold said the plaintiff fell within the Complex Regional Pain Syndrome spectrum at the mild end and there was variability.
27 Dr Arnold said she had observed the plaintiff’s tremor consistently over the times for which she has treated the plaintiff. She has seen it when it was very obviously present and when it is much less obvious but present.[17] Dr Arnold said that stress can aggravate the tremor; relaxation can sometimes settle it down. In 2013 the tremor has varied. She said the tremor is a motor expression of the CRPS, a motor dysfunction.
[17]Transcript 124
28 Dr Arnold said if the plaintiff worked in a clothing shop, she would expect the tremor would be present and obvious.[18]
[18]Transcript 147
Dr Peter Blombery
29 In December 2012, Dr Blombery, vascular disease physician, examined the plaintiff as the request of the plaintiff’s solicitor. On examination, he noted that the right hand was slightly darker than the left. The right index finger had some scarring at the tip and it was 5 millimetres shorter than the corresponding finger on the left side, including the nail. The plaintiff had a full range of movement of the neck and a full range of movement in the right shoulder but pain on the extremes of movement of the right shoulder. Dr Blombery said after the surgery to her right index finger, the plaintiff noted ongoing pain in the area as well as changes in temperature and colour of the hand.
30 At the time of the examination the plaintiff reported an “odd pulling feeling in the right index finger”, pain radiating around the shoulder, upper arm, the triceps and trapezius area. The pain and numbness in the finger often kept her awake at night. She had an involuntary tremor affecting the right hand.
31 Dr Blombery said the plaintiff fulfilled the criteria of the International Association for Study of Pain for the diagnosis of Complex Regional Pain Syndrome Type 1. Her prognosis for recovery is poor and there will be no significant change in her level of disability in the foreseeable future. He thought the pain around the right shoulder is due to some secondary adhesive capsulitis and is in the form of a right shoulder/hand syndrome. He said it was not uncommon that patients who develop problems in the hand, particularly Complex Regional Pain Syndrome Type 1, may have secondary disability occurring in the right shoulder afterwards.
32 It was Dr Blombery’s opinion that the plaintiff has a fitness for alternative duties doing light duties not involving heavy or repetitive use of the right arm. He said she would require ongoing treatment for chronic pain with multidisciplinary therapy, including the use of analgesic, antidepressant and anti-convulsive drugs, physiotherapy, behavioural therapy, occupational therapy, as well as other techniques such as TENS and acupuncture.
Dr Clayton Thomas
33 In February 2013, Dr Thomas, consultant in rehabilitation and pain medicine, examined the plaintiff at the request of the plaintiff’s solicitor. He reported that the plaintiff had ongoing symptoms with reduced sensation, hypersensitivity, stiffness and tremor. He said that some of the plaintiff’s symptoms are suggestive of CRPS. He said she did not have enough of the signs to meet the criteria. The tremor is not uncommonly seen with CRPS but does not assist in formulating the diagnosis. He said the plaintiff has nerve signs but does not have any swelling or temperature changes and hence does not meet the strict criteria for CRPS. She does, however, have some form of Regional Pain Syndrome involving the right upper limb. He accepted her condition was work related. He said the development of the right upper limb pain syndrome is directly due to the work injury in November 2009. He said she does not have capacity for pre-injury employment.
34 He said in her current condition, major vocational limitations apply. The question is whether there will be a reversibility of her condition and lessening of her disability with the planned treatment. The plaintiff was to commence a formal program at the Caulfield General Medical Centre within their pain management unit earlier this year.
Mr Charles Flanc
35 In April 2013, Mr Flanc, vascular and general surgeon, examined the plaintiff at the request of the plaintiff’s solicitor.
36 The plaintiff reported a burning pain which involved the right index finger, which involved the whole region of the right upper extremity and the right shoulder girdle, a tremor of the right index finger – “all fingers go numb at night and wake her” – and she has observed the palm of the right hand goes a deeper red colour at least once a day but then reverts to its normal colour. Mr Flanc observed that during the examination, the palm of the right hand became a little deeper pink than the left but by the end of the examination regained its normal colour. He observed a visible tremor affecting the right index finger and when she made a fist, he noticed there was a tremor of her right hand. He observed that with the right index finger, the nail bed looked normal except for its ulnar edge, which was slightly different to the corresponding spot on the left index finger. Sensation was absent over a strip on the radial side of the pad of the terminal segment of the right index finger. However, sensation was also slightly abnormal (feeling thick) over the whole of the right upper extremity.
37 Mr Flanc said the injury to the plaintiff’s right index finger would probably prevent her from returning to her pre-injury duties or any work involving rapid, repetitive or heavy use of her right hand. He said the plaintiff had suffered from a Chronic Pain Syndrome which has developed as a result of the finger injury, which causes pain in her right upper extremity and which limits her ability to perform any heavy work. He thought she could cope with light office-type duties. He was aware that the plaintiff was obtaining work experience as a pre-school attendant. He did not know whether she would be able to cope with this type of work.
38 Mr Flanc said the plaintiff’s main incapacity stems from the Chronic Pain Syndrome and whether that is regarded as organic or non-organic should be discussed with Dr Carolyn Arnold and Dr Clayton Thomas, experts in the area. He expected she would continue to suffer from consequences and incapacities of the physical injury into the foreseeable future.
Mr Thomas Kossmann
39 In May 2013, Mr Kossmann, orthopaedic surgeon, medically examined the plaintiff at the request of the plaintiff’s solicitor. The plaintiff complained of pain in her right index finger, which starts from the finger and radiates up all of her arm into her shoulder, a burning sensation in her elbow and shoulder region, tiredness, numbness in her fingers which wake her, a change in the colour of her hand and involuntary shaking of her index finger. Mr Kossmann diagnosed a CRPS Type 1 affecting her right arm. In his opinion, she satisfied most of the criteria, in particular ongoing pain, numbness, discolouring, and difference in growth of her nails. He said the plaintiff needed to undergo further treatment in the form of pain medication, anti-inflammatories, sedatives, physiotherapy and hydrotherapy.
40 Mr Kossmann said the plaintiff had no capacity to return to her previous employment. She has no capacity to work in physical, strenuous employment, particularly using her upper extremities on a constant basis. He said her injury was work related. He thought the pain issues will diminish over time, but he could not give a timeframe. He said there was a possibility that she will suffer from pain issues in her right upper extremities as a result of the CRPS for the rest of her life.
Mr Murray J Stapleton
41 In September 2011, Mr Stapleton, plastic and hand surgeon, examined the plaintiff at the request of the defendant’s insurer. He said the plaintiff was suffering from a degree of CRPS. He thought the plaintiff was genuine. He said, though, when he examined her, there were no signs of CRPS. She reported sweating in the right hand, mottled right hand, swollen, and the finger nails grow more rapidly on the right-hand side. He said for manipulating small objects she used the thumb opposed to the pulp of the middle finger. She is incapable of using it to the index finger, not only because it is tremulous, but because she has no sensation at the tip. The condition has stabilised. He said she needs to be referred to a pain management specialist.
Dr Chris Baker
42 In October 2011, Dr Baker, occupational medicine specialist, examined the plaintiff at the request of the defendant’s insurer. He said there was no evidence of CRPS Type 1. The plaintiff had a chronic pain which is psychogenic and is an ongoing incapacity. He said she could not return to her pre-injury duties and pre-injury hours. She has a limited work capacity. She can undertake simple tasks where she uses her thumb and third digit in opposition, as opposed to using the index finger. He considered she had a capacity for suitable work but that is restricted. He said the plaintiff could undertake a graduated attendance program in suitable employment but she should not undertake repeated gripping or manual dexterity with the dominant right hand.
43 He reviewed an NES vocational assessment report and said, of the occupations identified, the only one she could undertake would be product examining and testing. He recommended that in the first place she commence an English program so that she is able to undertake tasks which require her to read and write to a limited degree. He said she had a limited work capacity and that once she had improved her English skills, reception and administrative tasks would be within her capabilities.
Guven Hospital, Ankara Turkey
44 Documents from the Guvan Hospital confirm in January 2012 the plaintiff was treated for her work injury, which was diagnosed as a CRPS. She underwent two stellate ganglion blockages. On physical examination, allodynia was present on the top right extremity.
The Defendant’s medical evidence
Dr Carolyn Arnold
45 In letters from Dr Carolyn Arnold to the referring doctor, Mr David Ying, Dr Arnold said she noticed a mild tremor which worsens by anxiety, which is understandable, but had reassured the plaintiff it was not a bad sign.
46 In a letter to Mr Ying dated 2 February 2011, Dr Arnold said she noticed on physical examination that the plaintiff’s shakiness varies and she has callosities which indicated she was using her hand in activity which she said was encouraging. She said there was no definite neurological deficit in the right arm and that there was no swelling or autonomic dysfunction, and the scar from the injury to her finger was barely visible.
47 In May 2011, she reported to Mr Ying that there was no colour change; there was numbness in the fingertip but no allodynia. The plaintiff had no weakness in the hand and there was a slight resting tremor evident. Strength and function appeared within normal limits.
48 In letters to the plaintiff’s general practitioner in November 2012, Dr Arnold said the plaintiff had a florid pain response to her injury and the possibility of CRPS was considered early on but, in her opinion, does not now, or in the time that she has been examining her, meet the full criteria for a diagnosis of CRPS. Most of the pain she reported in November 2012 was around her right shoulder girdle and upper arm. The plaintiff reported she had ceased all medication. Physical examination was largely unchanged.
49 In a letter dated 8 March 2013 to the general practitioner, Dr Arnold said there were no persistent tremors in the right hand but the plaintiff continued to experience occasional tremor which did not restrict her activity and caused her more distress. She said the plaintiff sought confirmation that she has a diagnosis of CRPS Type 1. There had been a deterioration in her symptoms over the last few months. Dr Arnold said the plaintiff had a reaction to her injury that is greater than one would expect, and would fall within the conditions described as CRPS Type 1 in the early stages after injury. She does not currently meet the diagnostic criteria for CRPS, although she has persistent pain and cramps and a tremor, which is slightly worrying. The plaintiff reported seeking treatment while in Turkey, where she underwent two sympathetic nerve blocks which did not provide lasting relief.
Mr Trun Nguyen
50 In July 2010, Mr Nguyen, orthopaedic surgeon, reported to the general practitioner that the plaintiff was not keen to have a steroid injection. He had prescribed Voltaren and suggested physiotherapy and was to review the plaintiff.
Caulfield Pain Management and Research Centre
51 A multidisciplinary assessment report was included in the Court Book but I was not taken to that report.
Dr Phillip Mutton
52 In October and November 2010, Dr Mutton, consultant occupational physician, examined the plaintiff at the request of the defendant’s insurer. On clinical findings, Dr Mutton said there were no signs of CRPS in the right upper limb. It was his view that the plaintiff had developed a Pain Syndrome rather than a specific CRPS due to the traumatic injury. He said the issue of her current pain within the right upper limb is one of a psychological condition, or Pain Syndrome, and this needs to be adequately managed before resumption of physical activities.
Dr P D Clark
53 In April 2011, Dr Clark, occupational physician, examined the plaintiff at the request of the defendant insurer. The plaintiff reported persistent right shoulder and arm pain and weakness. She reported that her right index finger “works constantly” and she had pain in her right shoulder and upper arm which she described as “burning” and occasionally pinching in character. She said she tired easily, her pain is worse in the afternoons, if she drives far or carries heavy shopping. She reported poor sleep and difficulty sleeping on her right side. She said she could perform most domestic duties normally, although her husband does the ironing.
54 Dr Clark said the plaintiff had a pronounced variable tremor in her right index finger. He thought she had the physical capacity to function without ongoing treatment. He said, in his opinion, the plaintiff suffers from a somatization reaction following a crush injury to her right index finger. He accepted that her injury was work related. He said she had no capacity to perform pre-injury duties, but had a current work capacity for suitable duties. He thought she could work normal hours and could resume suitable employment at the time of the examination.
Dr Paul Kornan
55 In October 2011, Dr Kornan, psychiatrist, medically examined the plaintiff at the request of the defendant’s insurer. It was his view the plaintiff presented with a Pain Disorder associated with psychological factors (conversion hysteria and some anxiety and depression). He said her condition was at the upper level of chronic, mild severity. The major feature noted was a tremor of the affected finger, consistent with conversion hysteria. He said, from a psychiatric viewpoint, the plaintiff had a full capacity to work in alternate duties. He gained the impression the family were property investors and she had chosen the two investment properties that they own. He thought she had a full capacity to perform alternative employment, including being a property investor. From a psychiatric perspective, she could engage in sales assistant, front of house, switchboard operator, product examiner and product tester.
Dr Daniel Lee
56 In April 2013, Dr Lee, consultant in rehabilitation and pain medicine, examined the plaintiff at the request of the defendant’s solicitor. It was his view the plaintiff had neuropathic pain secondary to a degloving injury of the index finger of the right dominant hand with subsequent surgery. She does not currently fulfil the criteria for a CRPS, nor has she previously fulfilled that criteria. He did not consider the plaintiff to have capacity for pre-injury employment. He said her physical capacity would be limited for fine or repetitive hand movements. He said further assessment by the plaintiff’s occupational therapist might be able to lead to further insights. He said the plaintiff described persistent neuropathic pain which does not fill the criteria for CRPS. Nevertheless, he found her to be clear and authentic and believed she would have capacity for limited duties. He did not consider her to be permanently incapacitated. He said that Associate Professor Arnold had seen the plaintiff over a period of time and a CRPS can tend to fluctuate. Given that, he thought their diagnoses were essentially the same.
Vocational assessment – Recovre
57 In January 2010, an initial assessment report was completed. Return to work plans were provided. Progress reports were undertaken and a NES vocational assessment report was prepared in May 2011. Mr Snider identified suitable employment options for the plaintiff in order of priority: sales assistant (general); front of house (clerical and administrative work); switchboard operator; product examiner and product tester. Mr Snider said the physical requirements of the positions were in line with the medical opinion of the plaintiff’s independent medical examiner, Dr Peter D Clark. The plaintiff’s general practitioner had no objection to the options as long as the plaintiff could perform the work. The plaintiff was asked to rate her level of English. She said her reading was basic. She can read, but does not always understand the meaning. Her writing is basic and verbal skills are basic “every day” English but not technical or medical terms.
58 The plaintiff reported that she was not confident with English to perform sales assistant work. She cannot hold a pen in her right hand for more than five minutes before cramping so employment front of house which involved clerical work would not be suitable. She was not confident to perform the role of switchboard operator because she believed extensive English would be required for this role and she was not confident with English.
59 She reported that she used to use a computer but since the injury she has lost interest due to being unable to use the right hand.
Video surveillance
60 The plaintiff was shown video surveillance taken on 2 October 2013, which showed her driving her car to a shopping centre where she parked, locked the car door and went into a supermarket. The plaintiff was shown pushing a trolley with her right hand and selecting items from the shelves. Predominantly she selected items with her right hand, one item at a time, and placed the item in the supermarket trolley. She was seen to raise her right arm above her shoulder to obtain an item from a shelf. On occasions, she used her left arm. She then proceeded to the checkout where she was talking on her mobile telephone which was in her left hand, and she was placing items on the counter with her right hand. The plaintiff was seen walking from the supermarket with a number of bags in her left hand, carrying a bread stick in her right hand.
61 The plaintiff said she had been told to use her right hand. The plaintiff said, when she used her hand for any length of time, it became painful. She said that she used her right hand because she is right handed. She also said that she had been taught to adapt. She said she could carry 2 or 3 kilograms and use her right hand if she was not holding items for a long time.
62 The DVD was shown to Dr Arnold. She said she could not see any tremor in the DVD. She said she did not think the image was very close and she could not see the hand closely. She was not sure that she would have seen a tremor if it was there. She thought, when you are moving your arm and gripping, you can override a tremor. She agreed she did not see any tremor and she did not see any lack of use or any reluctance to use the right arm or hand. She did see the plaintiff move her arm above the shoulder. She said that the video showed short intervals of use of the arm by the plaintiff.
63 The plaintiff was shown a second video. The plaintiff was seen in a clothes shop looking at racks of clothing. She agreed she could open the car door with a key normally. She agreed that when she was walking at the TAFE college she was swinging her arms normally.
Credit of the Plaintiff
64 The plaintiff was consistent in reporting the injury and its causes to doctors whom she saw.
65 The plaintiff made appropriate concessions about her injury and its consequences. She said she could lift and carry things in her right hand but only for a limited period and only items between 2 and 3 kilograms in weight. She said she would like to return to work and contribute to the family’s finances.
66 The plaintiff was described as genuine, clear and authentic. On occasions, the plaintiff did not answer the question and volunteered information which was irrelevant to the question. On other occasions, she required the assistance of the interpreter.
67 Overall, the plaintiff impressed me as a credible witness. There was no suggestion by counsel for the defendant that the plaintiff’s credibility was in issue.
Analysis of the evidence
68 I accept the plaintiff suffered a compensable injury to her right index finger in November 2009 while operating a sewing machine. This was not in dispute. What was in dispute was whether the injury was an organic or non organic (psychogenic) injury. Those medical witnesses who expressed the view that the plaintiff’s injury was organic variously described it as CRPS;[19] suggestive of a diagnosis of CRPS;[20] the plaintiff fell within the CRPS spectrum,[21] or the plaintiff fulfilled the criteria of the International Association for Study of Pain for the diagnosis of CRPS Type 1.[22] Dr Lee said the plaintiff had neuropathic pain secondary to a de-gloving injury of the index finger of the right dominant hand with subsequent surgery. The neuropathic pain did not fulfil the criteria for regional pain syndrome. He said that based on Dr Arnold’s conclusion that the plaintiff suffered a CRPS with a symptom complex milder than others (with CPRS), their diagnosis was essentially the same.
[19]Dr Mirranay
[20]Mr Ying, Dr Thomas, Mr Stapleton said she was suffering from a degree of CPRS, at examination there was no sign of CRPS, but she was genuine and reported indicators of CRPS.
[21]Dr Arnold
[22]Dr Blombery and Mr Flanc
69 The medical witnesses who said the injury was non organic said the plaintiff had chronic pain which is psychogenic[23], or developed a Pain Syndrome rather than a CRPS.[24] Mr Flanc said the plaintiff suffered a Chronic Pain Syndrome, but recommended the question of whether it was organic or non-organic be referred to Dr Arnold and Dr Thomas.[25]
[23]Dr Kornan and Dr Baker
[24]Dr Mutton
[25]Mr Flanc
70 In determining the plaintiff’s impairment, I must make the assessment at the time of hearing the application. Accordingly, I place greater weight on the most up-to-date medical evidence of Dr Mirranay, Dr Arnold, Dr Blombery, Dr Thomas, Mr Flanc, Mr Kossmann and Dr Lee. Other than Mr Flanc, the up-to-date medical evidence was that the plaintiff’s injury was organic.
71 Dr Kornan was the only psychiatrist to express a view in the case. He diagnosed a pain disorder associated with psychological factors. Dr Baker and Dr Mutton, occupational physicians, diagnosed a chronic pain syndrome. All provided reports in 2010 and 2011.
72 Based on the up-to-date medical evidence, I accept that the plaintiff has a condition that is an organic injury, whether it be neuropathic pain or a variant of CRPS Type 1, affecting the right upper limb.[26] I have formed this view after analysing all the evidence, in particular the symptoms the plaintiff was reporting to the medical witnesses and what they said about those symptoms, and what was observed. I am particularly persuaded by the evidence of Dr Arnold, Dr Thomas, Dr Blombery and Dr Lee. To the extent any symptoms are mediated through the psychological, I reject the views expressed by Dr Kornan, Dr Baker and Dr Mutton.
[26]Dr Mirranay, Dr Blombery, Mr Kossmann, Dr Thomas, Dr Arnold and Dr Lee
73 I will now consider whether the plaintiff satisfies the statutory requirements for loss of earning capacity consequences.
74 The current medical evidence expressed by the majority of witnesses was that the plaintiff has no capacity for pre-injury employment, which is likely to continue for the foreseeable future. All doctors thought she could perform suitable duties; however, a number imposed restrictions:
· Dr Mirranay said the plaintiff could not lift nor perform work which involves fine hand skills with the right hand.
· Dr Arnold said the plaintiff was restricted, in that she required flexibility to avoid sustained use of the right arm in any activity.
· Dr Blombery said the plaintiff could perform light duties not involving any repetitive use of the right arm.
· Mr Thomas said vocational limitations applied, but did not elaborate.
· Mr Kossmann said she had no capacity to work in physically strenuous employment, particularly using her right upper extremities on a constant basis.
· Dr Lee said her physical capacity would be limited for fine or repetitive hand movements. He said, depending on activity level, the product examiner/product tester or switchboard operator would probably be more successful than that of administrative assistant or sales assistant.
· Dr Arnold said the plaintiff was motivated to undertake re-training, and suggested she would be suitable, upon re-training, to work as a teacher’s aide or integration aide, but should only work 20 hours per week.
75 The plaintiff’s evidence was that her work experience has been working as a packer or process worker. After the work injury, she returned to work working four hours a day, five days a week, performing light duties, filling sample bags, returning ink plates to cabinets and also various clerical duties, including photocopying. In July 2010, her employer advised that there were no further light duties available and her employment ceased.
76 The plaintiff’s evidence was that she had been undertaking English courses at Chisholm TAFE. In mid 2013, she commenced a childcare course at Berwick TAFE and at Dandenong. Currently, she is working on a placement for three hours at a childcare centre, caring for three to four-year olds. She is unable to pick up the children.
77 Counsel for the defendant submitted that the plaintiff has not attempted to obtain employment. I do not accept that submission. The evidence is that the plaintiff returned to light duties and worked those duties until no further light duty work was available. The plaintiff has undertaken numerous courses to improve her English skills, as suggested by Dr Baker, and Dr Arnold commented on her motivation.
78 The plaintiff’s English was very limited. She required the assistance of an interpreter on occasions. I formed the view that her English skills would restrict her ability to obtain employment in the open market. In particular I could not be confidant that her spoken English would qualify her to obtain the sort of employment referred to in the vocational report, in particular work as a sales assistant, front of house (clerical and administrative work), and switchboard operator. She has no experience in Australia in these areas. The plaintiff has always performed manual work. It was suggested that the plaintiff could obtain employment as a product tester or examiner. Both product testers and examiners are required to use machines for testing of quality levels against expected specifications of products. Given the restrictions imposed by the medical witnesses, I have real reservations as to whether those jobs would be suitable for the plaintiff.
79 Given the medical evidence and my observations of the plaintiff and her lack of English skills, I accept that the plaintiff’s employment capacity was limited because of the disabling effect of her injury and her poor English skills. I rely on what Smith J said in Public Transport Corporation v Pitts[27] and followed in Giankos v SPC Ardmona Operations Limited.[28] Smith J said:
“’The case was one where it was plainly open to the learned magistrate to conclude that the plaintiff had established a prima facie case that no suitable employment as defined in the legislation existed and so was entitled to succeed in his case unless the defendant produced evidence sufficient to raise some specific alternatives for consideration. In my view, the reality was that the defendant had to adduce evidence sufficient to raise as a real possibility that there were particular types of employment available in the community which the plaintiff was capable of performing. If it did not it would lose.’”
[27][2007] VSC 356
[28][2011] VSCA 121 at paragraph [115]
80 In this case, the defendant relied on what Dr Lee said about the employment of product examiner and product testers. As I have said, I do not consider those positions suitable. Dr Arnold suggested that the plaintiff could work 20 hours a week as an integration or teacher’s aide. Given the plaintiff’s spoken English I think that highly unlikely. Accordingly, I am satisfied that the plaintiff cannot return to work.
81 The plaintiff is a relatively young woman. She has minimal use of her right hand and arm. She is right hand dominant. The plaintiff has limited English language skills and lacks transferable skills. I do not accept that the plaintiff’s ability to participate in property investment is equivalent to engaging in the paid labour force. The plaintiff impressed me as a woman who wanted to return to work. A number of medical witnesses commented on her motivation to return to work. She told the Court that she felt she should be contributing more to her family. I accept that her inability to return to work represents a significant loss to the plaintiff, both with respect to her enjoyment of life and her self esteem.
82 Given the length of the time the injury has persisted and the medical evidence, I am satisfied that the plaintiff’s impairment is permanent.
83 I am satisfied that it is fair to describe the consequence of this plaintiff’s loss of earning capacity as being “more than significant or marked” and properly described as “very considerable” when judged by a comparison with other cases in the range.
84 The plaintiff therefore satisfies the narrative test.
85 In reaching the finding, I have made a comparison with other cases in the range of possible impairments. No element of the mental component is taken into account in this assessment. Indeed, the mental component is required to be excluded by s134AB(38)(h) of the Act.
86 In addition to satisfying the narrative test for loss of earning capacity, the plaintiff must also satisfy the statutory test for loss of earning capacity.
87 Given the medical evidence, and that the plaintiff’s injury has continued since 2009, I find that the plaintiff is effectively out of the workforce for any suitable employment as a result of the impairment to the right upper limb and the consequences flowing from that. Accordingly, there is no need to go into any analysis of wage rates as I do not accept that she has any residual capacity when the medical restrictions placed on her by the medical witnesses are considered in the context of the real commercial world.
88 I accept that the plaintiff has engaged in retraining, namely English language courses. However, given her age and work history, and the fact that English will remain her second language, I consider it unlikely that any retraining she completes will significantly improve her prospects of obtaining employment in the open labour market.
89 In view of the matters I have described, the plaintiff has discharged the onus with respect to her impairments of the right upper limb regarding her loss of earning capacity.
90 I grant leave to the plaintiff to bring proceedings for pecuniary loss damages in respect of the right hand arm and shoulder.
91 In accordance with Advanced Wire & Cable Pty Ltd & Anor v Abdulle,[29] it follows I also grant leave to bring proceedings for pain and suffering damages.
[29]Supra
92 Having made these findings, it is appropriate to make an order granting the plaintiff leave to commence a proceeding at common law seeking damages for economic loss consequences as a result of her employment with the defendant.
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