Tran v Data Signs Pty Ltd
[2014] VCC 10
•25 February 2014
| 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-12-06205
| VAN XUNG TRAN | Plaintiff |
| v | |
| DATA SIGNS PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE DYER | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 and 29 January 2014 | |
DATE OF JUDGMENT: | 25 February 2014 | |
CASE MAY BE CITED AS: | Tran v Data Signs Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 10 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – pecuniary loss and pain and suffering – identification of injury and relationship of consequences – injury to dominant hand – nature of consequences
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37), s68(4)
Cases Cited:Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Wingfoot Australia Partners Pty Ltd v Kocak (2013) 303 ALR 64.
Judgment: Leave granted to the plaintiff pursuant to s134AB(16)(b) of the Act to commence proceedings for the recovery of damages for pecuniary loss and pain and suffering in relation to an injury to the right hand and wrist suffered in the course of his employment.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison SC with Mr M X Carey | Slater & Gordon |
| For the Defendant | Ms K A Galpin | Wisewould Mahony |
HIS HONOUR:
Preliminary
1 Mr Van Xung Tran was employed by the defendant, Data Signs Pty Ltd, as a factory hand on 17 June 2009. His work involved the production of signs used for road works and he was unfortunate enough to sustain an injury to his dominant right hand on 26 June 2009 whilst using a large handheld drill. He was redrilling a hole in a sign when the drill caught, causing the body of the drill to rotate rapidly and strike him in the region of the right wrist fracturing his fourth metacarpal. Unsurprisingly, Mr Tran felt immediate pain and, following the application of an icepack, he was taken to a local doctor, Dr Wilkinson, for immediate assessment. He was then referred to Mr Mark Baldwin, plastic surgeon, who operated on him the following day at the Sunshine Hospital to reduce the fracture and insert screws to stabilise the broken metacarpal. Within about three weeks of the surgical procedure, Mr Tran was assessed and certified fit to resume modified duties not using his right hand. The general practitioner recommended review by a hand therapist. The plaintiff worked largely on modified duties until April 2010 when he was made redundant. He has not worked since that time.
2 This injury to Mr Tran’s dominant right hand/wrist is the basis of the present application for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) and the real issue between the parties concerns the current assessment of consequences said to flow from such injury. Leave is sought both in respect of pecuniary loss and pain and suffering in this application. In short compass, the plaintiff claims that the initial injury was causative of carpal tunnel syndrome requiring further surgery performed in 2010 and, subsequently, the development of Chronic Regional Pain Syndrome Type 1 from which Mr Tran has never fully recovered. The plaintiff asserts that this type of injury precludes Mr Tran from returning to manual type employment which would satisfy the test for a serious injury set out in paragraph (a) of the definition of serious injury contained in s134AB(37) of the Act.
3 The defendant challenges any such persisting organic injury as a relevant cause of any serious consequences and, essentially, urges a conclusion that the consequences presently suffered by the plaintiff are either non-organically driven or, alternatively, the result of an exaggeration of the seriousness of the consequences, whether consciously derived or otherwise.
The plaintiff
4 The plaintiff is fifty-four years of age, his date of birth being 5 May 1959. He was born in Vietnam and grew up on an island where his parents were fishermen. He received minimal education in Vietnam, described as the equivalent of Grade 1 level. He left Vietnam in 1982 and remained in an Indonesian refugee camp until 1988 when he arrived in Australia. He was largely unemployed between 1988 and 2009, apart from some brief periods of factory work, an unsuccessful attempt at a fresh fish business and a period engaged in sewing from home over approximately ten years. It is common ground that Mr Tran was unemployed for four years prior to commencing with the defendant one week before being injured.
5 Mr Tran is married and his wife has spent much of their married life as a process worker in a chicken factory. There are four children aged eighteen to twenty-nine years. Only the eighteen-year-old son resides at home with the plaintiff and his wife.
The evidence
6 The plaintiff relies on an affidavit sworn 30 July 2012 which was slightly modified as to activities of daily living during the plaintiff’s evidence-in-chief. Mr Tran was extensively cross-examined by Ms Galpin, who appeared on behalf of the defendant. The areas raised in cross-examination included:-
· The plaintiff’s variation in the reportage of symptoms given to the various treating doctors and medico-legal examiners.
· His poor work history prior to commencing with the defendant, coupled with evidence that he had been certified medically unable to work due to a back injury in January 2009 shortly prior to commencing with the defendant.[1]
[1]Transcript (“T”) 27, Lines (“L”) 4–28
· The site of pain, with a concession made that the pain from his right wrist extended up to the right shoulder towards the ear and the right side of the head.[2]
· The medication he was taking for his condition and the effects of the medication on him. It would be fair to comment that the plaintiff’s evidence was unclear as to precisely what medication he was taking. He remained adamant, however, that without the medication his pain would return.[3]
· The plaintiff was also cross-examined about his attendance at the pain management clinic at the Royal Melbourne Hospital and the effect of that treatment upon his right hand and wrist.
[2]T31, L22–28
[3]T54, L3–6; T57, L2–4
7 The plaintiff’s description of his symptoms in the witness box was sometimes bizarre, although to my observation this may have been partly a complication of giving evidence through an interpreter.[4] As is often the case where medical examiners giving opinions have come to differing conclusions, the task of a cross-examiner is a difficult one in terms of seeking some explanation from a witness as to why certain symptoms were relayed to one examining doctor but not to another, or why certain findings were made during one examination but not in a subsequent one.
[4]T38, L3–T39, L30; T40, L22–T41, L15
8 At the conclusion of this cross-examination I could not be positively satisfied as to whether the plaintiff was truly suffering from the continuing effects of an organic injury sustained in 2009 or whether, as suggested on behalf of the defendant some more florid non-organic condition had supervened.
9 In re-examination of the plaintiff, Mr Tran confirmed that the pain suffered by him ran from the wrist up his right arm and into his neck affecting the whole area. Specifically, he did not have separate pains in the arm or at the point of the shoulder or the neck.[5]
[5]T69, L7–12
10 Additionally, the situation in terms of the type and quantity of medication being prescribed to Mr Tran was clarified by the production of a document added to the plaintiff’s court book which set out the medication which had in fact been prescribed.
11 The evidence received from Mr Tran was the only viva voce evidence relied upon in this application.
The medical evidence
12 The medical evidence placed before the Court by both parties was contained in medical reports and other documents prepared by treating medical practitioners and medico-legal examiners. I will refer only to the medical material which is relevant in my view to the assessment of the plaintiff’s current condition and the prognosis for the foreseeable future. The entirety of the medical evidence is contained in the Court Books provided by both parties which were received as exhibit “A” and exhibit “1” respectively.
Radiology
13 The radiology confirmed the initial diagnosis of a spiral fracture of the fourth metacarpal in June 2009; a diagnosis of right carpal tunnel syndrome in July 2010; bilateral ulnar nerve variance, greater on the right than the left when measured in July 2011; changes of ulnocarpal abutment syndrome with degenerative changes of the TFC disc, shown on MRI in July 2011; and a bone scan confirming a diagnosis of mild right forearm chronic regional pain syndrome in April 2013.
The treating doctors
14 Dr Roy Wilkinson, occupational physician, from the Prime Health Group in Laverton North, reported to the plaintiff’s solicitors on 18 February 2011 and 18 September 2013. He had seen the plaintiff initially following the injury on 26 June 2009 and arranged for him to be seen at the Sunshine Hospital by Mr Mark Baldwin for surgery the following day. He certified the plaintiff fit to return to light duties following surgery on 13 July 2009 and certified normal duties subject to a review by himself a few days later. He again saw the plaintiff on 16 April 2010 when a history was obtained of ongoing pain in the right hand at the site of the previous fracture. This had been present for two to three weeks, and the plaintiff had been taking Tramadol and Mobic prescribed by another general practitioner without relief. Once again the plaintiff was certified unfit for his normal duties, and fit only for modified duties. It was shortly following this certification that the plaintiff’s employment ceased.
15 Dr Wilkinson continued to review the plaintiff during 2010, noting that a carpal tunnel release had been performed by Mr Baldwin on 21 October. Of significance to the present application, he recorded complaints of pain in the right wrist, including occasional sharp pains at night and weakness of the hand in early 2011. On examination on 11 March 2011 Dr Wilkinson noted moderate loss of flexion and extension, together with mild swelling affecting the right wrist, and recommended review by the hand therapist. He recorded at that stage that the plaintiff was awaiting an appointment at the Royal Melbourne Hospital Pain Clinic. It was noted that the medication Panadeine Forte was producing stomach pain, and Dr Wilkinson recommended the analgesic Tramal as required.
16 By mid-2011 the plaintiff had sought a second surgical opinion from Mr Peter Maloney, and an MRI of the right wrist was organised in late July. Dr Wilkinson noted that the plaintiff was having hand therapy every two weeks and had attended the pain clinic at the Royal Melbourne Hospital on 28 July 2011, where he was informed that clinically his signs and symptoms “fit the criteria for complex regional pain syndrome”.[6]
[6]Exhibit A, p 112
17 Dr Wilkinson noted the progress of the plaintiff’s condition throughout the remainder of 2011 and into the months of 2012 when he apparently came under the care of Dr Malcolm Hogg at the pain clinic. Apart from a change in the medication prescribed at that clinic there seems to have been little real change in the symptom complex until at least May 2012. At that stage Dr Wilkinson noted:
“Dr Hogg indicated that his assessment of the worker was that the symptoms and signs of CRPS have significantly resolved although the worker is left with persistent pain. Dr Hogg noted that whilst there was a neuropathic component, there may well be a nociceptive component and Dr Hogg noted the assessment of Dr Maloney of instability in the distal radioulnar joint.”
18 By September 2012, according to Dr Wilkinson, the plaintiff had come under the care of Dr Greta Palmer at Royal Melbourne Hospital, noting that the plaintiff was doing an active range of exercise therapies and had a normal passive range of motion of the right hand when compared to the left, but recorded “is very stiff in his movement”.[7] Dr Wilkinson noted his own examination findings on 12 October 2012 that the plaintiff could make a fist with his right hand, but had pain in his right wrist and hand when further reviewed on 9 November 2012. By early 2013 the plaintiff had been referred to a psychologist by his local medical officer (Dr Ngo). When Dr Wilkinson reviewed him on 1 March 2013 he was having pain in the right wrist and could not sleep. He was experiencing weight gain with the medication Lyrica that had been prescribed, and Dr Wilkinson also noted limitations in extension and flexion of the right wrist.
[7]Exhibit A, p 114
19 Dr Wilkinson noted the results of a nuclear medicine scan dated 15 April 2013 which confirmed the diagnosis of CRPS.[8] Dr Wilkinson continued to see the plaintiff during the latter part of 2013, and noted in September that he had received correspondence from Dr David Sommerfield (Pain Fellow at RMH Pain Clinic). In this correspondence, Dr Wilkinson noted that in addition to complaints of deep continuous pain in the wrist radiating up the arm and increasing with activity, there had been some associated mild swelling and colour changes. Significantly, Dr Sommerfield noted pain was decreased by physiotherapy and medications. According to Dr Sommerfield, the chronic regional pain syndrome was “stable and the majority of the pain was now musculoskeletal in nature”.[9]
[8]Exhibit A, p 50
[9]Exhibit A, p 116
20 Dr Wilkinson’s conclusion in his most recent report dated 18 September 2013 was that the plaintiff was suffering from chronic regional pain syndrome related to the fracture, and a distal right radial ulnar joint injury causing instability of the distal radial ulnar joint. His prognosis was guarded, and he recorded consistent differentials in grip strength between April and September 2013, suggesting that there had been little improvement during that year. In terms of work capacity, Dr Wilkinson expressed the view that he was unfit for pre-injury work and fit only for a very limited range of modified duties. In his opinion, that restriction severely limited any suitable work roles. He regarded the condition as such that the plaintiff’s work capacity would not improve in the foreseeable future.
21 The plaintiff was also treated by Dr Loc Ngo, general practitioner, at the Sunshine Health Medical Clinic. Dr Ngo provided reports dated 28 February 2011[10] and 5 September 2013.[11] The reports provided by Dr Ngo do not contain anywhere near the detail of that recorded by Dr Wilkinson. They confirm referral of the plaintiff to Ms Christine Do, hand physiotherapist, and a further referral to Mr Peter Maloney, hand surgeon. Dr Ngo also records referral of the plaintiff to a psychologist, Ms Catherine Ly, for counselling after the doctor recorded “he had been referred to pain management clinic, was given Nortriptyline, Pregabalin and Naprosyn 1000 milligrams with very minimal improvement.”[12] Dr Ngo’s conclusion as to work capacity is similar to that recorded by Dr Wilkinson. However, the prognosis is significantly different, in that Dr Ngo regards the prognosis of the condition as being guarded because “it will run a protracted course attended with depression and motivation deprivation”.[13]
[10]Exhibit A, pages 59–79
[11]Exhibit A, pages 94–103
[12]Exhibit A, p 94
[13]Exhibit A, p 95
22 The remaining reports from treating practitioners include Ms Christine Do, who reported on 1 March 2011. Given the task before the court today and the agreement between the parties as to the extent of therapy undertaken by the plaintiff, it is unnecessary for me to consider any opinion from the hand physiotherapist from her report dated 1 March 2011.
23 The plaintiff relies upon two medical reports from the Royal Melbourne Hospital dated 20 June 2012 and 30 December 2013.[14] In the first report, prepared by Dr Malcolm Hogg, a staff specialist in anaesthesia and pain management, reference was made to the plaintiff requiring ongoing medication and anti-neuropathic strategy for a further six to eighteen months. At the time of that report it was noted also that there had been persistent pain, although the grip strength had improved but remained less than the left side. Dr Hogg commented in relation to employment capacity, “Mr Tran may struggle in any retraining capacity or in physical duties.”[15] In the more recent report, prepared by Dr Sujith Ayyappan, it was concluded that the diagnosis for the plaintiff was stated as “chronic regional pain syndrome”.[16] The report indicates that he was most recently seen at Royal Melbourne Hospital on 21 November 2013 and was referred to the Sunshine Hospital for continuing physiotherapy and hand therapy due to difficulty with transport and reliance on the family. A notation as to complaints recorded on 26 September 2013 (noted “unchanged” at the more recent appointment) was as follows:
“His pain was stable, predominantly musculoskeletal in nature, and with minimal sympathetic symptoms. He had attained good range of motion from the hand therapy and was continuing to do exercises at home.”[17]
[14]Exhibit A, p 86–87 and 125–126
[15]Exhibit A, p 86
[16]Exhibit A, p 126
[17]Exhibit A, p 126
24 It should be noted that in the body of that report a review on 9 May 2013 stated in relation to the CRPS that “his chronic regional pain syndrome appeared to have burnt out and therefore a stellate ganglion block was not appropriate.”[18]
[18]Exhibit A, p 125–126
25 The only report from the treating hand surgeon Mr Peter Maloney is dated 10 July 2012. Although Mr Maloney can express no opinion at the time relevant to this assessment, his earlier opinion is certainly consistent with an organic basis being present in 2011 at the time of his treatment. In Mr Maloney’s report[19] he concluded:
“He has an underlying regional pain syndrome for which he is having optimal care, but given he requires operative intervention runs the risk of further exacerbating and stimulating this regional pain syndrome after surgery.”
[19]Exhibit A, p 88–89
26 The report earlier stated:
“It was my assessment that this gentleman would be best served with an ulnar shortening osteotomy.”
27 In relation to work capacity, Mr Maloney commented:
“It would be ideal for this gentleman, that he undergo permanent modified duties. I think it is highly unlikely given all these issues, that he will return to full-time duties as a manual worker in his pre-injury capacity.”[20]
[20]Exhibit A, p 89
28 The plaintiff has tendered certificates of capacity prepared by Mr Baldwin in 2009 following his initial treatment. These certificates are confirmatory of the initial treatment and suggested period of incapacity following the surgical repair of the fractured metacarpal.
29 The final treater’s report which should be considered from a treating practitioner is that from Ms Catherine Ly, psychologist. Ms Ly prepared one report at the request of the plaintiff’s solicitors on 10 September 2013.[21] Dr Ngo referred the plaintiff to her early in 2013, and as at the date of the report she had seen him on five occasions, most recently on 9 September. She expressed an opinion that the plaintiff was suffering from a chronic pain disorder due both to mixed medical and psychological factors. Additionally he was suffering a major depression with mixed anxiety. She regarded the pain disorder as related secondarily to his physical injuries.
[21]Exhibit A, p 104–110
Medico-legal evidence
30 The plaintiff relies upon reports from Dr Andrew Muir, consultant in pain management (anaesthetics), dated 18 April 2013; Dr David Weissman, consultant psychiatrist, dated 19 July 2013; Dr Peter Blombery, consultant physician (vascular disease), dated 19 August 2013; and finally Dr Helen Sutcliffe, occupational physician, dated 9 December 2013. It is necessary to briefly set out the relevant findings and opinions.
31 Dr Muir saw the plaintiff on 18 April 2013. The history recorded was consistent with the plaintiff’s evidence to the court. Significantly, Dr Muir noted:
“The patient experiences pain in the dorsum of the right hand which runs from the wrist in a thin line to the shoulder.”[22]
[22]Exhibit A, p 128
32 On examination, Dr Muir found a minor restriction of the range of movement of the (sic) left wrist. He found a reduction of power in the wrist secondary to pain, but concluded:
“There was certainly no clinical sensory abnormality of the patient’s right or left upper limb and no currently demonstrable stigmata of CRPS Type 1.”[23]
[23]Exhibit A, p 128
33 He concluded that the plaintiff was suffering from persistent pain in the right upper extremity, affecting largely the wrist and the dorsum of the hand, as a consequence of his workplace injury. At the time of the examination the plaintiff did not satisfy the criteria for a diagnosis of complex regional pain syndrome type 1, but Dr Muir found that he had elements of apparently nociceptive and neuropathic pain. Dr Muir could reach no conclusion as to whether the plaintiff had damage to either soft tissue or bones in the right wrist. He commented that the pain in the right upper extremity was such as to restrict the plaintiff’s performance of a wide variety of activities, and regarded him as having no capacity for employment. Additionally, he commented that the risk of arthritis developing in the right wrist associated with the fracture was likely increased.
34 Although Dr Muir did not directly consider the role of non-organic symptoms, he did comment:
“Attendance at a multi-disciplinary cognitive behavioural program may produce significant improvements.”[24]
[24]Exhibit A, p 130
35 Dr Weissman saw the plaintiff for medico-legal purposes on 19 July 2013. He diagnosed the plaintiff as suffering from a chronic major depressive disorder of moderate if not moderately severe intensity severity. In addition to that diagnosis, he commented as follows in relation to the pain aspects:
“The possible diagnosis of complex regional pain syndrome type 1 is outside my area of expertise as a psychiatrist. However, Mr Tran appears to have significantly elevated health concerns, with pain focus and pain preoccupation, as well as pain that has migrated beyond its original site (to his right shoulder and head) ... This raises the probability that he has also sustained and developed a chronic pain disorder, associated with psychological features and a general medical condition.”[25]
[25]Exhibit A, p 142
36 Dr Peter Blombery examined the plaintiff on 8 August 2013. The history recorded is consistent with the evidence given in this case. I note in particular that Dr Blombery obtained a history including pain radiating up to the shoulder and neck and the occupational development of right-sided headaches. In terms of examination findings, Dr Blombery has recorded temperature changes as between the left and right upper limbs, restrictions of movement, and differentials in grip. He concluded that the plaintiff:
“... fulfilled the basic and Budapest criteria of the International Association for the Study of Pain for the diagnosis of complex regional pain syndrome type 1.”
37 His final diagnosis was that the plaintiff had suffered a fractured fourth metacarpal bone complicated by complex regional pain syndrome type 1. In keeping with other medical practitioners, he regarded the future employment prospects for the plaintiff as quite bleak. He went on to say:
“His dominant right arm has been affected by the injury and he has a relatively useless right arm.”[26]
[26]Exhibit A, p 148
38 Finally, the report from Dr Sutcliffe was prepared following an examination on 11 July 2013. Although that report was not prepared until December, the examination pre-dates the examination conducted by Dr Blombery. Once again the history is generally consistent with the evidence given in this case, including the description of current symptoms. On examination, there was an observation of red discolouration, swelling and sweatiness in the palm on the right-hand side, together with differentials in grip strength and a decreased range of movement in the right upper limb. Dr Sutcliffe commented on the radiological material and concluded that the plaintiff had sustained onset of complex regional pain syndrome and “the criteria were fulfilled on examination today”.[27] She also commented that by reason of his injury he has no capacity for pre-injury employment or other employment which broadly satisfies the “suitable employment” criteria. She regarded this situation as continuing indefinitely.
[27]Exhibit A, p 158
39 I now turn to the medical opinions requested on behalf of the defendant.
40 The first report provided by the defendant is from Mr Felix Behan, plastic and hand surgeon, who examined the plaintiff at the insurer’s request in April 2011. At that time Mr Behan opined:
“Because of ongoing pain, the need for further review and the possible development of a chronic regional pain syndrome, the patient’s condition at this stage cannot be described as having stabilised.”[28]
[28]Exhibit B, p 5
41 He went on to state:
“I would certainly consider the patient to have a disability from the industrial loss point of view as a result of his injuries, taking into consideration the clinical domestic industrial and social aspects noted above. Overall the patient would have a 20 per cent disability, taking all these factors into consideration, but this may become higher if his pain becomes a stronger complicating issue.”[29]
(Emphasis added)
[29]Exhibit B, p 6
42 Given the date of Mr Behan’s examination, his opinion cannot provide any great assistance in the determination of the course of Mr Tran’s condition since mid-2011.
43 Next in time the defendant relied upon a letter from the treating surgeon, Mr Baldwin, to Dr Wilkinson dated 25 February 2011.[30] Significantly, in that letter Mr Baldwin stated:
“I think we’re now in the situation where we have to presume that he has some sort of chronic pain syndrome, although I have to say I don’t think he has got good objective signs of this. I’d really have thought that if he had 18 months of chronic regional pain syndrome which was fair dinkum, he’d have significant physical signs of it by now and I don’t believe there’s any to be seen.”
[30]Exhibit B, p 87–88
44 Once again, Mr Baldwin’s comments provide some guidance as to historical concerns about the source of Mr Tran’s pain, but cannot provide a great deal of guidance given that this opinion was furnished some three years ago.
45 Mr Baldwin went on to say:
“I’m going to take the liberty of referring him into the pain management clinic at the Royal Melbourne and see if they have anything that will help him or not.”[31]
[31]Exhibit 1, p 88
46 Reliance by the defendant was placed on the opinion of Mr Damian Ireland, orthopaedic and hand surgeon, who reported to the defendant’s solicitors on 7 November 2012, 1 October 2013 and 4 December 2013. Mr Ireland examined the plaintiff on three occasions, being 7 November 2012, 27 September 2013 and 4 December 2013. I note that Mr Ireland had been provided with the 2013 report prepared by Dr Wilkinson at the time of his most recent examination of the plaintiff. Indeed he refers to an examination by Dr Wilkinson on 13 September 2013.[32] He went on to say that he did not conduct any measurement of grip strength as there was no evidence he noted of disuse atrophy on the forearm at the most recent examination.
[32]Exhibit 1, p 78
47 Mr Ireland concluded that Mr Tran was suffering from “chronic pain syndrome in addition to instability at the distal radioulnar joint. His opinion continued:
“It is possible that this mild instability was caused by the torque injury that occurred when he was using the power drill that led to the fracture of the fifth metacarpal and furthermore this mild instability has been present ever since. It is my opinion that the major symptom component of this man’s symptom complex is chronic pain syndrome rather than the injury to the distal radioulnar joint.”[33]
[33]Exhibit 1, p 78
48 Dr Michael Bloom, occupational and environmental physician, examined the plaintiff at the request of the defendant’s solicitors on 26 November 2013. He initially provided a report on the same day and prepared a further report on 18 December 2013 addressing issues raised in the report prepared by Dr Helen Sutcliffe a week earlier. The initial history taken by Dr Bloom in November 2013 was generally in accord with the evidence given in affidavit and by the plaintiff in cross-examination, although the history relating to the right shoulder symptoms: “I have the feeling that something is crawling, like ants, inside my skin”[34] did not accord with the evidence given at the trial. On examination, Dr Bloom found a slight restriction in palmar flexion in the right wrist but otherwise nothing to indicate an ongoing organic injury. He also noted: “Bilateral grip strength was minimal, but again the strong impression that this was due to lack of effort.”[35] He reached the conclusion that Mr Tran had features consistent with chronic pain syndrome which he explained as follows:
“I think this man has a range of symptoms and a perceived level of pain and disability that is disproportional and cannot be explained in purely physical terms.”[36]
[34]Exhibit 1, p 71
[35]Exhibit 1, p 72
[36]Exhibit 1, p 73
49 He went on to comment as follows:
“The clinical examination does not reveal objective signs of dysfunction of the right hand or upper limb other than perhaps a very slight restriction in the range of full palmar flexion. … On that basis I would say there is a very considerable functional component or an adverse psychological reaction to his physical injury and I believe that this adverse psychological response explains the current presentation of chronic pain syndrome.”[37]
[37]Exhibit 1, p 74
50 In relation to Chronic Regional Pain Syndrome, Dr Bloom stated:
“It is possible that he did develop CRPS type 1, but today there was no clinical evidence of this. I gained the impression that this man was well motivated that, had he not been dismissed from this workplace, he would not have developed the severe adverse psychological response and probably would have continued working on a full time basis.”[38]
[38]Exhibit 1, p 75
51 The final medical opinion relied upon by the defendant was that provided by Dr Baldwin, the treating surgeon, on 8 August 2012. Although Dr Baldwin’s report referred to treatment given in 2011, he commented as follows:
“Mr Tran had a clear cut injury at work, suffering fracture of his hand which was treated and healed well. He developed either Chronic Regional Pain Syndrome or carpal tunnel syndrome or both following this and has struggled somewhat ever since, with a carpal tunnel release subsequently being performed but not being particularly effective in improving his symptoms. … I might note that I did feel in Mr Tran’s case there may have been a significant functional overlay component in that he did not have a job to go back to and he thus was not very motivated to resume normal duties and normal use of his hand.”[39]
[39]Exhibit 1, p 82
52 I should also make reference when examining the medical material to a certificate of opinion provided by the Medical Panel on 8 October 2012. Relevantly the Medical Panel’s opinion contained answers to the following medical questions:
(1)What is the nature of the worker’s medical condition (including any sequelae) relevant to the claimed right hand injury?
In the Panel’s opinion the worker is suffering from persisting symptoms following a fracture of the fourth metacarpal treated surgically and a Chronic Pain Disorder relevant to the claimed right wrist injury.
(2)Does the worker have no current work capacity? If so, is this situation likely to continue indefinitely?
In the Panel’s opinion the worker has no current work capacity and this situation is likely to continue indefinitely.
53 Although I am not bound by s68(4) of the Act to adopt and apply the Medical Panel opinion, it is properly before me in this application and must be considered as part of the evidence in Mr Tran’s case.[40] Insofar as it is relevant to this analysis, I interpret the Panel’s opinion as stating that the worker at the time of their examination was suffering from persisting symptoms on a physical nature together with a chronic pain disorder of a non-organic nature, both relevant to the right wrist injury.
[40]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 303 ALR 64 especially at [35] and [36]
Analysis
54 The genesis of Mr Tran’s injury is not one of gradual onset but rather one of direct traumatic injury, complicated by at least one further organic condition requiring surgery a year later. Additionally, he has given a consistent history of his symptoms worsening when treatment such as physiotherapy has ceased.[41]
[41]Dr Bloom, Exhibit 1 p 71
55 The plaintiff’s histories have varied from time to time but his treating medical practitioners, particularly Dr Wilkinson and the various doctors at the Royal Melbourne Hospital, have continued to treat him for an organic condition notwithstanding the comment contained in the Royal Melbourne Hospital’s report of 30 December 2013 that in May of that year it was felt:
“His Chronic Regional Pain Syndrome appears to have burnt out.”[42]
[42]Exhibit A, p 125
56 Numerous examiners have found signs suggestive of Chronic Regional Pain Syndrome, although these have variously been described as mild and slight by many of the examiners. Whether or not the plaintiff has suffered from or continues to suffer from features consistent with a diagnosis of Chronic Regional Pain Syndrome Type 1, I do not need to decide.
57 The legislation clearly states that I cannot consider psychological or psychiatric consequences secondary to a physical injury for the purposes of assessment made in accordance with the paragraph (a) definition of serious injury.[43] Numerous authorities both from this court and the appellate courts have dealt with the problematic issue which is frequently referred to as disentanglement. I am particularly assisted by the decision of the Court of Appeal in Jayatilake v Toyota Motor Corporation Australia Ltd.[44] The analysis undertaken by the Court reviewing a number of earlier decisions going back to Barwon Spinners Pty Ltd v Podolak[45] provides considerable assistance to me in adopting the correct methodology to resolve the central issue in this case, i.e. are the consequences of an organically-based injury sufficient for the plaintiff to be given leave, or can I not strip away or separate non-organic consequences so as to enable a conclusion to be properly reached in accordance with statute.
[43]Section 134AB(38)(h)
[44](2008) 20 VR 605
[45](2005) 14 VR 622
58 I find that the plaintiff has suffered a frank traumatic injury to his dominant right wrist requiring immediate surgical repair and complicated by the need for further surgery for a carpal tunnel release performed in 2010. The vexed question central to my determination is whether I can be positively satisfied that there remains an organically-based right wrist symptom complex which affects the plaintiff so as to produce the relevant consequences.
59 In analysing this matter I am fortified by the admission made on behalf of the defendant at the trial concerning the existence of surveillance material referred to in the defendant’s court book index that was not shown to the plaintiff. On the basis of the authority in Jones v Dunkel[46] I am able to use the failure of the defendant to put such surveillance material to the plaintiff in cross-examination to enable an inference to be drawn that such material would not have assisted the defendant’s case and that, where a conflict of evidence exists relevant to such material, I can more readily accept the contrary view. Such an inference would fortify me in a conclusion that as a matter of probability there is no conscious exaggeration of symptoms by the plaintiff, but it does not enable me to find that there is no unconscious exaggeration by reason of the development of a pain syndrome which is not organically based. Indeed I do accept that the plaintiff suffers from a concurrent and disproportionate pain syndrome which cannot be taken into account for the purposes of this application.
[46](1959) 101 CLR 298
60 Having found at the conclusion of the plaintiff’s cross-examination that I could not be affirmatively satisfied as to whether the symptom complex of which he complained was organically or non-organically derived, I have been assisted in particular by the medical opinion of the treating occupational physician, Dr Wilkinson. In my view, the length of time over which he has seen the plaintiff, the information he has received from other treating practitioners (including Mr Baldwin and the various treaters from the Royal Melbourne Hospital Pain Management Clinic) have given Dr Wilkinson a considerable advantage in reaching a diagnosis and actually providing a treatment regime for the plaintiff. I am certainly not dismissive of the opinions of Mr Ireland, Dr Bloom, and to a certain extent Dr Muir. It is abundantly clear that there is a significant non-organic component impacting on the plaintiff’s own impression of the extent of his limitations.
61 On the basis of the above analysis, and without taking into account the non-organic components of the plaintiff’s symptomatology, I find that the plaintiff continues to suffer from organically-based right wrist symptoms to which the distal radioulnar joint remains a contributing factor. Having regard to the plaintiff’s very limited capacity for employment, the ongoing effects of even mild instability in the right dominant wrist causing ongoing pain and requiring ongoing medication and physical treatment, effectively preclude him from returning to any employment to which he was suited prior to sustaining his injury. I regard the loss of his capacity to return effectively to any employment in the foreseeable future as satisfying the requirements set out in s134AB(38).
62 In view of my findings in relation to the plaintiff’s loss of earning capacity, it is unnecessary for me to consider questions otherwise relevant to the granting of leave for pain and suffering only.[47]
[47]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170 at [63] and [64]
63 I grant leave to the plaintiff pursuant to s134AB(16)(b) of the Act to commence proceedings for the recovery of damages for both pecuniary loss and pain and suffering in relation to an injury to the right hand and wrist suffered in the course of his employment on 26 June 2009. I will hear the parties further in relation to formal orders and costs.
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