Singh v Paraquad Victoria (t/as Independence Australia)
[2013] VCC 1853
•6 November 2013 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-12-04506
| RAELENE LESLEY SINGH | Plaintiff |
| v | |
| PARAQUAD VICTORIA (Trading as INDEPENDENCE AUSTRALIA) | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 and 25 October 2013 | |
DATE OF JUDGMENT: | 6 November 2013 (Revised) | |
CASE MAY BE CITED AS: | Singh v Paraquad Victoria (t/as Independence Australia) | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1853 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Injury to right hand and thumb – progression of pain up the arm to the shoulder – whether the plaintiff developed Complex Regional Pain Syndrome – nature and extent of injury and consequences – whether loss of earning capacity
Legislation Cited: Accident Compensation Act 1985 s134AB
Judgment: Leave to the plaintiff to issue proceedings
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie SC with Mr S Dawson | Shine Lawyers |
| For the Defendant | Mr P Johnstone | Hall & Wilcox |
HIS HONOUR:
Preliminary
1 The plaintiff suffered injury to her right thumb and wrist in the course of her employment duties on 12 June 2009. Despite a range of therapies, including surgery to the right thumb, the pain became worse, and extended up the arm to the shoulder and right side of the plaintiff’s face. For about twelve months, she resumed employment on light and restricted duties until her employment was terminated in August 2011. In October 2012, the plaintiff was diagnosed by Dr John Monagle with Complex Regional Pain Syndrome (“CRPS”). Despite treatment for that condition, the pain has persisted, and she complains that a significant range of domestic, recreational and social activities have been significantly curtailed. She has not resumed any employment since 2011.
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injuries suffered to the plaintiff’s right arm in the course of her employment, in particular on 12 June 2009. The body function said to be lost or impaired is the right arm. The application is thus brought under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act and leave is sought in respect of pain and suffering and loss of earning capacity.
3 The plaintiff was the only witness called to give evidence and be cross-examined. In addition, two affidavits of the plaintiff, affidavits of her husband and daughter-in-law, medical and radiological reports and vocational assessments were tendered into evidence. I shall not refer to all of that material in the course of this judgment, but rather those parts of the evidence and reports which appear to me to be of most relevance and which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature is well known and it is unnecessary for me to revisit the various relevant sections.
Relevant background
4 The plaintiff was born in 1957 and is now fifty-six years of age. She lives with her husband. She left school at age fifteen years and obtained work as a process worker in a factory. She was promoted to work in the office. She had some time away from work for the birth of her children. She also worked as a cleaner and in other factory work.
5 She undertook a personal carer’s course and commenced work with the defendant in 2002. The work involved looking after patients, particularly with significant physical disabilities. The work was described as heavy and strenuous. In 2003, the plaintiff became the full-time carer for a patient, Ben, who was a large gentleman, and a quadriplegic.
6 Prior to injury on 12 June 2009, the plaintiff was in good health and in particular, had suffered no pain nor restriction in her right hand, arm or shoulder. She was able to undertake all of her own domestic duties and housework and in particular, enjoyed gardening, knitting, crocheting, and had an active social life.
7 Her first marriage broke down in 2004, her first husband being abusive. She remarried in 2008 and the second marriage was said to be a happy one.
The injury and its consequences
8 In the course of her employment as a carer, looking after her patient Ben, on 12 June 2009, she attempted to roll him onto his side with the use of a bed sheet. When pulling upon the sheet, she said she felt a sharp pain in her right thumb and pain up her right arm into the shoulder.[1] The incident happened on a Friday. The plaintiff attempted to return to work on Monday, 15 June 2009 but had to stop, in particular, because of the pain in her right thumb and wrist. She went to her general practitioner at the Casey Medical Centre. The clinical notes for that day state:
“Sore right wrist since Friday after pulling sheet on bed of patient she cares for … Felt flexor tendon give whilst pulling sheet … Swollen and tender flexor tendon.”[2]
[1]Plaintiff’s Court Book (“PCB”) 40
[2]Part of Exhibit 4
9 The plaintiff has continued to attend Dr Osborne at the Casey Medical Centre through to the present time. On 18 June 2009, she complained of pain into her wrist. By November, the complaints of pain included to the right shoulder and right arm. The entry of 11 November 2009 states:
“Right shoulder and arm pain now, medial aspect right elbow, normal range of movement at shoulder and elbow but feels stiff … Feels since the splint was placed on the wrist these symptoms have commenced … .”[3]
[3]Part of Exhibit 4
10 From that time, the plaintiff’s complaints of pain to her general practitioner have included the thumb, wrist, arm and shoulder. By letter of 7 January 2010, Dr Osborne referred her to Dr Patrick, rheumatologist, noting that the plaintiff had conservative treatment with a hand therapist over the previous six months for “management of tenosynovitis”.[4] In cross-examination, the plaintiff said that she did tell Dr Osborne at the outset that the initial pain was into her right shoulder. A number of the Certificates of Capacity issued by Dr Osborne commencing from 28 July 2009 refer to the plaintiff have a restricted work capacity as a result of “right wrist pain”. From November 2009, the description is extended to “right wrist pain and referred pain up arm into medial aspect of right elbow and over shoulder”.[5]
[4]PCB 59
[5]Part of Exhibit 3
11 Dr Osborne prescribed a range of medication including anti-inflammatory and pain-relieving medication. Dr Osborne also referred the plaintiff to a number of hand therapists, including Mr Hamish Anderson from January 2010, Ms Bernadette Kelly from mid-2010 and a Ms Carole Blake from September 2010. None of that hand therapy has provided any lasting relief.
12 An x-ray of the right wrist of August 2009[6] showed minor osteophyte formation at a number of joints. A splint was prescribed by one of the hand therapists which the plaintiff said caused pain further up her arm into the right shoulder and neck. By the end of 2009, the plaintiff was prescribed medication including Mersyndol Forte, Panadeine Forte for pain and an anti-inflammatory, Mobic.
[6]PCB 57
13 In early 2010, Dr Osborne referred the plaintiff to Dr Mark Patrick, rheumatologist. The plaintiff complained to Dr Patrick of right thumb pain with “muscular symptoms” in the neck and shoulder girdle. He diagnosed de Quervain’s type tendonitis in the area of the thumb. He injected a local corticosteroid to the thumb and suggested the plaintiff continue wearing a thumb brace. Oral steroid treatment was attempted. Dr Patrick thought pain amplification and myofascial overlay were a prominent feature of her presentation. An MRI scan was undertaken on 1 March 2010. The report concluded:
“A localised ganglion cyst within the tendon sheath of the flexor carpi radialis at the level of the wrist joint and early degenerate changes involving the first carpometacarpal joint.”[7]
[7]PCB 62
14 Dr Patrick said:
“It was becoming apparent though that a more diffuse muscular tenderness was evolving, a form of pain amplification and muscle fatigue/deconditioning. A more multi-disciplinary pain management and functional reconditioning program I felt was likely to be of benefit given the otherwise lack of response to the standard local treatments. Endep was prescribed to help with longer term muscle relaxation.”[8]
[8]PCB 102
15 In May 2010, the plaintiff was referred to Mr Stephen Tham, hand surgeon. On examination, he noted multiple areas of tenderness throughout the entire right thumb extending to the wrist. He said there was no evidence of CRPS. He said it was difficult to establish a clinical cause for her symptoms because of the general tenderness.
16 On 12 October 2010, the plaintiff returned with persistent triggering of the right thumb and right index finger. There was further swelling along the right long finger. He considered the signs consistent with “trigger thumb and index finger” and on 22 October 2010, he operated to release the trigger to the right index finger and thumb and excised a lesion in her right long finger. There were no post-operative complications, and the plaintiff was discharged from Mr Tham’s care following the surgery.
17 In his last consultation of 19 November 2010, he said he thought the plaintiff was fit for a return to modified duties and that he anticipated she could return to her previous employment.[9]
[9]PCB 86-87
18 According to the plaintiff, if anything, the surgery increased the pain in her right hand, wrist, arm and shoulder and she continued to be prescribed painkilling medication. Because of the prescription of codeine, the plaintiff started to develop stomach problems and constipation. She was prescribed Nexium.
19 In terms of her employment, the plaintiff continued to work with Ben until about September 2009, when she said that she was unable to complete her duties. From December 2009, she returned to work with the defendant, performing modified duties at its Collingwood premises, on reduced hours. Her employment was terminated in August 2011. She has not worked since.
20 In October 2011, she undertook a multi-disciplinary rehabilitation program at Epworth Rehabilitation Centre in Camberwell. Again, this program did not provide significant nor long-lasting relief. The plaintiff was certified for modified duties for various periods from 2009 until 2011. On some occasions she was certified by Dr Osborne as being unfit for all duties.[10]
[10]Exhibit 2
21 The plaintiff was referred to Dr Jeffrey Tu, gastroenterologist, in March 2012 with complaints of severe constipation. Dr Tu said this was secondary to chronic codeine use. A gastroscopy and colonoscopy were performed which demonstrated mild duodenitis and mild sigmoid diverticulosis. He recommended she reduce her codeine intake and prescribed Motilium, which proved helpful.
22 In October 2012, the plaintiff was referred to Dr John Monagle, specialist in pain management.[11] To Dr Monagle, the plaintiff complained of constant burning pain in the hand associated with significant allodynia.[12] He noted altered sensation throughout the right arm and into her neck and head. There were no obvious skin or temperature changes. Dr Monagle said the plaintiff had a number of therapies up until that time, none of which had been of particular assistance. She had suffered side effects of opioids. He diagnosed a CRPS although, he said, “there were very few signs”. He commenced Gabapentin and Mexiletine, which provided little relief. He then arranged for the plaintiff to be hospitalised with a Ketamine infusion, which provided great relief, but only for one week. A right stellate ganglion block again gave partial relief but only for two weeks.
[11]PCB 115A
[12]Pain due to a stimulus which does not normally provoke pain – temperature or physical stimuli can provoke allodynia – may feel like a burning sensation – often occurring after injury to a site.
23 Dr Tavener assisted in Dr Monagle’s treatment, and he noted swollen legs and allodynia affecting the right leg. Investigation for Deep Vein Thrombosis showed no abnormality. Injection of local anaesthetic did not relieve the pain.
24 Dr Monagle said that the development of tendonitis in her right arm, and then the subsequent surgery by Mr Tham combined to trigger the CRPS. He said the disorder initially principally affected the right arm but by 2013 had spread to her neck and more widely. He said the initial work incident had been the trigger for the subsequent chain of events. He said the plaintiff was unable to work due to the pain in her arm, as any movement exacerbated the pain. He said she would not have the capacity to return to full-time work until the resolution of the disorder. He said the pain restricted the plaintiff’s normal activities and the situation was likely to continue into the foreseeable future.
25 The plaintiff has remained under the care of Dr Monagle, who has undertaken further injections into the arm. She sees Dr Monagle or Dr Tavener each month or so for injections. It is expected that she will undergo a further nerve ganglion block in the next several months.
26 The plaintiff has remained out of work and has been on a disability support pension since December 2011.
27 At the present time she attends a general practitioner, who prescribes medication. She takes Panadol Osteo, approximately six per day for pain; Temazepam to assist with sleep, one to two per day; Nexium for stomach problems and Motilium. She takes medication for depression.
28 The consequences of injury, according to the plaintiff’s affidavit in evidence, include the following:
· constant and frequently severe pain in her right wrist, hand and fingers, over her right arm and up to her right shoulder and neck. The pain is severe and is sensitive to touch;
· she is required to take a wide range of medication, infusions and injections at the hands of her general practitioner and Dr Monagle;
· her use of codeine has caused stomach problems and required the prescription of medication, including Nexium and Motilium;
· her sleep is significantly affected and she finds it difficult to get a proper night’s sleep. She takes Temazepam to assist. Her husband has started sleeping in another room because she disturbs his sleep. Her intimate life with her husband is affected;
· the plaintiff has restricted movement of her right arm;
· in 2012, her daughter gave birth and she is not able to look after her grandson in the way that she would wish;
· she is unable to undertake many of her domestic duties, including cooking, especially peeling potatoes; reaching above shoulder height to hang the washing is difficult;
· she is no longer able to be involved in gardening, knitting and crocheting, which she enjoyed prior to her injury;
· she is no longer able to be employed in an area which she enjoyed and which gave her significant satisfaction;
· she is no longer as socially active as before;
· she finds it difficult to remain standing for periods, or walking significant distances. She is able to drive, but with restrictions.
29 Generally, her complaints as to the consequences of injury are supported by affidavits of her husband[13] and her daughter-in-law.[14]
[13]PCB 52
[14]PCB 56A
Medical opinions
30 I have referred in part to the opinions of the various treating practitioners.
31 According to the report of the hand therapist, Mr Hamish Anderson, of 2 June 2010,[15] he considered that the splint the plaintiff had been wearing until January 2010 was inappropriate. He prescribed a different, soft, supportive splint. According to his report, the plaintiff said she had an improvement in pinch strength.
[15]PCB 73
32 According to a report of Dr Osborne, the plaintiff, in 2010, said she had recently sprained the area of the right shoulder.[16] According to the clinical notes of Dr Osborne, on 23 June 2010, the plaintiff complained of the abrupt onset of right shoulder pain when she felt something go “click” in the shoulder area. Marked muscle spasm was noted.
[16]PCB 76
33 As stated, the treating rheumatologist, Dr Patrick, said that he believed there were aspects of the plaintiff’s pain which were amplified and that by the time he saw her in February 2010, myofascial overlay was a prominent part of her presentation. He has not treated the plaintiff since April 2010. He said she was unable to return to her work as a personal care attendant. He said he thought her prognosis was poor. He said she may be able to work in an allied health field but direct care nursing-type employment would not be appropriate.
34 According to the report of Dr Osborne,[17] she said the plaintiff had developed CRPS which affected the right hand side of her body. Dr Osborne noted that the retraining tried by the plaintiff had been unsuccessful and that she had few options for suitable employment. Dr Osborne considered the situation permanent. She noted that there was a significant effect upon her tasks at home by the injury and that she slept poorly and her mood was affected.
[17]PCB 114
35 According to the report of Dr John Monagle,[18] the CRPS was slowly progressing to involve more of the plaintiff’s body. He noted altered sensation throughout the right arm and into the neck and head. There were no obvious colour nor temperature changes. He considered that a combination of the tendonitis in the plaintiff’s right arm, and the subsequent surgery, appeared to have triggered CRPS. He said the plaintiff was not able to work because of her pain and noted that any movement exacerbated the pain. He considered that the current situation would continue into the foreseeable future.
[18]PCB 115A-115B
36 Mr Kenneth Brearley, general surgeon, examined the plaintiff once in June 2011. The plaintiff complained to him of a constant ache over the right thumb and index finger, over the forearm and into the whole of the right shoulder. She spoke of difficulty driving, and the pain was exacerbated when using the hand, and that she had very little sleep. On examination, he noted some wasting of the musculature of the right shoulder with general limitation of movement. He said the plaintiff had suffered a tendon injury of the right index finger and right thumb with a lesion over the right middle finger. He said, further, there was chronic subacromial bursitis of the right shoulder with resultant stiffness and pain. He considered the injury to be related to the lifting incident on 12 June 2009. At that the time, he thought she had no capacity for work.
37 The plaintiff was examined by Dr James Rowe, occupational physician, in August 2011. He received complaints from the plaintiff of pain and immobility in the right shoulder, right thumb and index finger. The neck and right upper limb were restricted in movement. He noted marked swelling present in the palm of the right hand at the base of the thumb and index finger. He concluded the plaintiff had a resolving right frozen shoulder, or capsulitis. He said, further, she had a “triggered right thumb and index finger” which had not been helped by surgery and was still present. He said there was limited movement of the right thumb and index finger and reduced grip strength. He said the plaintiff could not return to her previous duties but had a capacity to work full time in the disability field, such as a receptionist in an aged-care facility.
38 The plaintiff was assessed by Dr Helen Sutcliffe, occupational physician, in August 2011, and September 2013. The plaintiff complained to Dr Sutcliffe in the first report that she was unable to lift using her right hand, had no capacity for domestic tasks of vacuuming or changing sheets, and performed all tasks using her left hand exclusively. Dr Sutcliffe noted an alteration in sensation of the right arm and chest wall which was sensitive to light touch, cold and vibration.[19] She said there was probable allodynia in the right arm and right side of the head. She concluded the plaintiff was suffering persistent pain with neuropathic qualities. There were no investigations available to her, but she said the plaintiff was likely to be suffering a right shoulder rotator cuff injury with nerve root involvement at the cervical spine level. She said the plaintiff had no capacity for employment. She said, further, the plaintiff had suffered a trigger thumb and trigger finger, right wrist aggravation of degenerative change, together with an Adjustment Disorder. She said the plaintiff was totally and permanently unfit for work as a personal carer, and had a substantial loss of capacity to undertake her activities of daily living, including domestic, social and leisure pursuits.
[19]PCB 146
39 In a second report of 2013, on examination, Dr Sutcliffe, in addition to pain in the hand, right arm and shoulder, said the plaintiff had swelling of the right hand, colour change and sweatiness. She noted the plaintiff had a Ketamine infusion in hospital and had been prescribed Lyrica. She noted there was an abnormal sensation on the right side of the head and neck itchiness. The plaintiff provided a history of sweatiness to the right side and that she “drips like a tap”.[20] Upon examination, there was altered colour to the right hand compared to the left and altered colour in the right arm. There was swelling of the right hand and altered sensation with major dysesthesia to the right side of the face. There was further altered sensation to cold in the right arm. Dr Sutcliffe had noted the report of Dr John Monagle and said:
“Upon re-examination of Ms Singh on 4 September 2013, there had been some progression of the Complex Regional Pain Syndrome that she had sustained and which was obvious on the first examination.”[21]
[20]PCB 164D
[21]PCB 164G
40 This is a somewhat surprising statement given that despite there being some symptoms of CRPS when the plaintiff was examined in 2011, Dr Sutcliffe had not diagnosed that disorder. Dr Sutcliffe said the plaintiff had no capacity for her pre-injury occupation, nor suitable alternative employment.
41 The plaintiff was examined by Mr Kevin King, orthopaedic surgeon, in March 2013. Mr King received complaints of discomfort on the right side of the neck of a mild to moderate degree, nagging ache and stiffness of the right shoulder of moderate severity, and persisting aching discomfort of the right wrist, right thumb and index finger. He said that the plaintiff had suffered acute injuries to the flexor tendons sheaths of her right thumb and index finger, and to the rotator cuff tendons and ligaments of the right shoulder, with an almost certain injury to the cervical spine with effect upon the cervical discs and associated ligamentous structures. He noted that the plaintiff’s history had involved particularly heavy work with stress upon the right arm. He said he could find no evidence of exaggeration and said that the plaintiff’s capacity for work was very limited, and from a practical point of view it was unlikely she could return to the work that she had done over many years.
42 The plaintiff was examined by Mr Peter Mangos, general surgeon, in August 2013. He received complaints of pain over the neck and shoulders which were sensitive to touch, bilateral shoulder pain with difficulty coping with housework and lifting her arms above her head, a burning sensation to the right-hand-side of her head with headaches, and weakness and stiffness of the right thumb and wrist. He noted the right hand was not hypersensitive, cold nor sweaty. He concluded the plaintiff was suffering from a severe overuse syndrome involving the neck, shoulder, arms and hands. In addition, he said there were further soft tissue injuries in the nature of severe musculo-ligamentous cervical strain, bilateral shoulder soft-tissue tendonitis and bursitis, right wrist arthritis and tendonitis of the flexor carpi radialis. He said the plaintiff had a “pro activity to nervous condition”. He said the injuries to the various areas were caused by overuse in the course of her employment.
43 A vocational assessment was undertaken by Suzanne George, occupational therapist of Evidex, in September 2013. The report analysed a number of suggested areas of employment, including sales assistant, commercial cleaner, packer, plastics factory worker, and laundry worker. All these areas of employment were said not to be suitable. The report also examined a number of other areas, including service station console operator, telemarketer, administrative worker, car park attendant, ticket collector, fruit picker, and school crossing supervisor. None of the proposed alternative occupations were said to be suitable. It was noted that the plaintiff had applied for a number of positions as a receptionist, library assistant and customer service clerk, but not progressed to the interview stage. It was suggested the plaintiff would require extensive retraining to qualify for any new occupation.
44 On behalf of the defendant, the plaintiff was examined by Dr David Fish, occupational physician, in July 2011. To that practitioner, the plaintiff complained of continuing ache over the shoulder and trapezius area, radiating to the right side of the neck. There was restricted shoulder movement and restricted movement of the right thumb and index finger. He considered the plaintiff was suffering from mild arthritis and triggering of the right thumb and index finger. He further found right capsulitis of the shoulder which he said required ultrasound confirmation. He said the right capsulitis was as a direct consequence of her employment given the nature of her duties.
45 Finally, the plaintiff was assessed by Mr Damien Ireland, hand surgeon, in August 2012. He noted aching over the entire right hand, most significantly over the thumb and index finger joints. The plaintiff complained of pain radiating into the shoulder and right side of the neck. He said the plaintiff presented as a very anxious woman who jumped at the slightest stimulus, including the mobile phone vibration. He said the plaintiff was difficult to examine, withdrawing at the slightest attempt at passive movement. He found no triggering of the thumb, and no wasting of the muscles of the hand. He thought there may be some shoulder pathology, possibly acromioclavicular arthritis, possibly due to rotator cuff pathology. He said the injuries to the right thumb and index finger had healed. He said the plaintiff’s prognosis was poor and that there was a discrepancy between the severity of the subjective symptoms and corresponding objective physical findings. He said further treatment involved pain management. The plaintiff’s physical capacity for employment from the injury to the right hand had not been significantly impeded.
46 Various vocational assessments of AMS were tendered charting the plaintiff’s rehabilitation and vocational assessment.
Credibility of the Plaintiff
47 In the course of cross-examination the plaintiff said that she was concerned, particularly in crowded shopping areas, to protect her right arm against being knocked. She would often carry the right arm in front of her, protected by the left arm. She said she was able to do some tasks with her right arm and carry objects provided they are not too heavy. Most tasks were performed with the left arm, even rolling a cigarette. The plaintiff said she was able to select some items from a supermarket providing they were not above chest height and were light. She said she was unable to walk without feeling the effects of pain. She was able to turn her head to only a small amount to the right and to about 45 degrees to the left. She said walking for more than 15 to 20 minutes caused difficulty. She was able to pull a few weeds from the garden, but no more strenuous gardening tasks. The plaintiff said she was able to use her right arm to remove her spectacles, but only if she put her head down.
48 Video surveillance of the plaintiff taken 4 October 2013 was then shown. The plaintiff was seen to get out of her car, using her right arm to close the door. She lit a cigarette, using her left hand upon the lighter and her right hand to shield against wind. She was able to push a pram using both left and right hands. She moved her right hand to the side of her face and neck. At a supermarket, she was able to pick up items with her right hand, including place a small package under her right arm. She was able to carry an object with a plate in her right hand. She walked at times swinging her hand by her side in a normal manner.
49 There was some discrepancy in the evidence that the plaintiff gave to the Court as to the restriction of use of her right arm and what was depicted in the surveillance video. In particular, the plaintiff was able to raise her right arm and hand to her face without any apparent difficulty, and carry the odd light item. She moved her neck a little more freely in the video than in a demonstration to the Court. However, the video was relatively short and there was nothing grossly different from the evidence given by the plaintiff to the Court and in her affidavit, and in the histories to the various doctors. I do not accept that the surveillance has significantly affected the plaintiff’s credibility.
50 Generally, I found the plaintiff a satisfactory witness. I did not detect evidence of exaggeration or embellishment. Whilst somewhat anxious in giving evidence, I nonetheless found the plaintiff attempting to respond appropriately to questions and making the concessions I would expect of an honest witness.
Summary and conclusions
51 I am satisfied the plaintiff suffered an injury to her right thumb, and one or two of the fingers of her right hand in the incident of 12 June 2009 when she was performing the strenuous task of moving a heavy patient. As a result, she developed pain and restriction in that area which led to surgery performed by Mr Tham in October 2010.
52 As the months progressed after the initial incident, and somewhat unusually, the pain in her hand extended up the right arm, and eventually, by December 2009, to her right shoulder. It was suggested by Mr Johnstone, for the defendant, that the spread of this pain to the arm and shoulder was more likely to have been as a result of an inappropriate splint prescribed by one of the hand therapists; alternatively, as a result of the severe onset of pain and “clicking” referred to in the clinical notes in November 2009.
53 The onset and spread of the plaintiff’s symptoms is unusual. It was not until the plaintiff first saw Dr Monagle in October 2012 that a clear diagnosis of CRPS was made. Although in her second report Dr Sutcliffe said there had been some progression of the CRPS from her first report of 2011, in fact the first report did not make such a diagnosis, although some of the symptoms observed by Dr Sutcliffe in 2011, including altered sensation in the whole of the right arm and chest, including to cold sensation and vibration, allodynia to the right arm and right side of the head, were consistent with CRPS.
54 Of the physical doctors, most accept the initial diagnosis of Mr Tham of triggering of the right thumb and right index finger, with effect upon the tendon sheath of the middle finger. These injuries were clearly related to her work on 12 June 2009. There are differing views amongst the physical doctors as to whether the plaintiff has recovered from those injuries, or whether the symptoms still persist.
55 There are also differing views as to whether there is a pathological basis for the problems in her right shoulder. Mr Brearley said the plaintiff suffered subacromial bursitis to that shoulder.[22] Dr Rowe said the plaintiff had a frozen right shoulder, or was suffering capsulitis of the right shoulder.[23] Initially, Dr Sutcliffe said the plaintiff had aggravated degenerative change, probably of the rotator cuff to the right shoulder with nerve root impingement, but then agreed with the conclusions of Dr Monagle in 2013 that the plaintiff suffered CRPS. Mr King thought the plaintiff had damaged rotator cuff tendons and ligaments and suffered some injury to the cervical discs.
[22]PCB 119
[23]PCB 137-138
56 In the defendant’s camp, Dr Fish said the plaintiff was suffering capsulitis in the right shoulder[24] and Mr Ireland found it difficult to come to any diagnosis, as the plaintiff proved extremely difficult to examine. He said the right shoulder pain was possibly due to acromioclavicular arthritis, possibly due to rotator cuff pathology. Most of those doctors conclude that whatever the injury diagnosed to the plaintiff’s shoulder, it is in one way or another related to her employment, in particular the heavy lifting of patients over the years.
[24]Defendant’s Court Book (“DCB”) 44
57 However, on balance, I prefer the opinion of Doctors Monagle and Tavener that the plaintiff developed CRPS and that that condition has spread and continued to the present. Both are experts in the field of pain management, and the diagnosis and treatment of CRPS is usually undertaken by practitioners in that field. From their experience and expertise, I am satisfied they are in the best position to diagnose and treat the disorder. Dr Monagle said that the constant burning-type pain and significant allodynia were symptoms of CRPS, although there were no obvious skin or temperature changes. His conclusion was that the plaintiff was suffering CRPS, although there were few signs to be seen upon physical examination. He noted that the plaintiff had considerable relief from the Ketamine infusion, although it only lasted a week or two. The assessment by Dr Monagle, that the CRPS was probably triggered by the surgery in October 2011, and the tendonitis of the right arm to some extent explains the late onset of the condition, and the gradual spread of diffuse pain commencing from the wrist into the right arm, right shoulder and right side of the head. There is no issue CRPS is an organic condition.
58 In 2013, Dr Sutcliffe, when she examined the plaintiff, found swelling of the right hand, colour change and sweatiness were all symptoms consistent with CRPS. The plaintiff also gave a history that she suffered significant sweating, in particular with the onset of pain.
59 Even Dr Patrick, in February 2010, noted that the plaintiff was suffering diffuse symptoms with pain amplification and what he said was “myofascial overlay”, again, which might be explained by the early onset of CRPS.
60 In her recent report, the general practitioner, Dr Osborne, who had treated the plaintiff since the injury, accepted that she had developed CRPS, although that would appear to be an acceptance of the diagnosis of Dr Monagle, rather than specific findings by her.
61 It is somewhat unusual that Mr Tham found no evidence of CRPS in 2011, and from his report[25] it would appear he was specifically looking for the symptoms. However, that might be explained by the fact that at that time, either the CRPS was at an early stage, or that it was not until after surgery of October 2011 that the condition was triggered. It is further somewhat unusual that an experienced hand surgeon, Mr Ireland, did not make a diagnosis of CRPS, although it would appear from his report that he was more concerned about finding specific pathology to justify the extensive complaints of pain.
[25]PCB 85
62 In all the circumstances, I accept the diagnosis of Doctors Monagle and Tavener, that the plaintiff at the present time suffers CRPS. It was related to the original incident in June 2009, or triggered by the tendonitis in the plaintiff’s wrist or hand, or as a result of the surgery of October 2011. In any event, all are related to her employment.
63 Having accepted that diagnosis, I accept the complaints of the plaintiff of ongoing chronic pain in the wrist, arm and shoulder, and even to the right side of her face. I accept her evidence that it affects her sleep in the manner she describes, and significantly restricts her in a range of domestic, recreational and social activities she had previously enjoyed. It is to be noted that the plaintiff has been in full-time employment over a considerable period prior to 2009, and I accept her evidence that it was employment which she found satisfying and enjoyed. I accept that the loss of her employment has been a significant consequence to her. I am satisfied that as a result of the pain that she suffers, she is incapable of undertaking pre-injury employment. I accept the opinion of Dr Monagle[26] that the plaintiff has no capacity for work until such time that the CRPS resolves. In fact, most doctors say the plaintiff is significantly restricted in her work duties, whatever the nature of the diagnosis.
[26]PCB 115b
64 In all these circumstances, the plaintiff’s application, both as to pain and suffering and economic loss succeeds.
65 I shall make consequence orders.
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