Wheeler v Seventeen Hall Pty Ltd (trading as “The Cupcake Queens”)
[2022] VCC 245
•10 March 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-21-01446
| TEAGAN WHEELER | Plaintiff |
| v | |
| SEVENTEEN HALL PTY LTD (trading as “The Cupcake Queens”) | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORTY | Second Defendant |
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JUDGE: | HER HONOUR JUDGE TRAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 February 2022 | |
DATE OF JUDGMENT: | 10 March 2022 | |
CASE MAY BE CITED AS: | Wheeler v Seventeen Hall Pty Ltd (trading as “The Cupcake Queens”) & Anor | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 245 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – right wrist pain – reliability of plaintiff’s reports of pain - disentanglement of psychological and psychiatric consequences
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:De Agostino v Leatch [2011] VSCA 249; Nikolic v Transport Accident Commission [2020] VSCA 148; Humphries and Anor v Poljak [1992] 2 VR 129; Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis (2007) 15 VR 649
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S Carson | Ellis Palmos & Co Lawyers |
| For the Second Defendant | Mr T Storey | Wisewould Mahony |
HER HONOUR:
1Teagan Wheeler started working for The Cupcake Queens in Northland Shopping Centre in about December 2017. For the next eight months, Mrs Wheeler worked full time, setting up, taking deliveries, serving customers, making coffees and other drinks, making toasties and arranging displays. At busy times, it was a high-pressure, physically-demanding role.
2On 2 August 2018, Mrs Wheeler was steaming milk when she felt a sudden pop, and then severe pain in her right wrist. Over the weeks that followed, she experienced fluctuating and worsening pain in her right wrist. She spent several weeks off work. Towards the end of August 2018, she returned to work at The Cupcake Queens on full-time duties. She persisted, despite pain, until 20 October 2018. On that day, she ceased work completely and never returned to The Cupcake Queens.
3Over three years later, Mrs Wheeler says that she still suffers persistent pain in her right wrist, which is worse with significant repetitive or prolonged use. She says that she gets a flare up of severe wrist pain once or twice a week and is sensitive to knocks and bumps. She says she cannot fully flex her right wrist and it is weaker than her left wrist.
4Mrs Wheeler says that her problems now also extend beyond her right wrist. She says she cannot fully straighten her arm – that it always must be a little bent or she experiences excruciating pain. She says she has pain all the way up and down her right arm, from her fingertips to her shoulder blade. She says the pain has spread from her right shoulder across her neck and is going into her left arm. She says she has a dull pain in her neck which is always there, but sometimes can be excruciating. She says she feels pain in her left shoulder and left arm pain every day, extending down into her left hands and fingers. She says her left shoulder pain can be a burning searing pain which is severe. She says she also gets pains in her chest that feel like a heart attack.
5Mrs Wheeler says that her symptoms are worse with thunderstorms, cold weather (particularly where there is a sea breeze), stress and a feeling of lack of safety.
6Mrs Wheeler says her right arm is so sensitive that she avoids being around other people for fear of being bumped and that even a gentle touch might cause severe pain. She says that tasks like turning a doorknob, fastening buttons on a skirt and cutting meat, can be difficult and painful for her and she tries to avoid using her right hand for these tasks whenever possible. She says that there are days when she physically cannot get out of bed and that she is so debilitated her husband must cut up her food. She says that bad days, when the pain is so acute she really cannot do anything, happen as often as once or twice a week.
7Mrs Wheeler says that the pain has made her suicidal at times and that on a couple of occasions she has self-harmed. In about mid-December 2020, she was admitted to Northpark Private Hospital in Bundoora for about a month. She was treated with Transcranial Magnetic Stimulation (“TMS”). She had a further series of sessions of TMS, as an outpatient, in July 2020.
8This is a serious injury application. Mrs Wheeler says that, as a result of the incident on 2 August 2018, she has suffered both a permanent serious impairment of her right arm (the paragraph (a) claim)[1] and a permanent severe mental or behavioural disturbance or disorder (the paragraph (c) claim).[2]
[1]Paragraph (a) of the definition of “serious injury” in s325(1) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the WIRCA”)
[2] Paragraph (c) of the definition of “serious injury” in s325(1) of the WIRCA
9Mrs Wheeler’s application raises the following issues:
(a) in relation to the paragraph (a) claim:
(i)whether Mrs Wheeler has suffered a permanent serious impairment of her right arm, the consequences of which are “very considerable” and at least “more than ‘significant’ or ‘marked’”;[3] and
(ii)the extent to which any such impairment is organic in origin as opposed to psychological or psychiatric.
(b) in relation to the paragraph (c) claim:
(i)the extent to which Mrs Wheeler is suffering from a mental behavioural disturbance or disorder;
(ii)whether any such mental disturbance or disorder is as a result of the incident on 2 August 2018; and
(iii)whether any such mental disturbance or disorder is permanent and severe, in the sense that the consequences to Mrs Wheeler are more than serious to the extent of being severe.[4]
[3] Section 325(2)(c) of the WIRCA
[4] Section 325(2)(d) of the WIRCA
10A critical factor in determining each of these issues is the reliability of Mrs Wheeler’s self-reported symptoms, particularly in light of the extensive surveillance which was tendered at trial.
The reliability of Mrs Wheeler’s reported symptoms
The surveillance
11The Victorian WorkCover Authority (“VWA”) tendered over three hours of surveillance footage taken on nine separate days. It submitted that that surveillance was wholly inconsistent with Mrs Wheeler’s reports of her symptoms and physical limitations and demonstrated that she had grossly exaggerated her symptoms.
12I am conscious that surveillance footage can portray a small snapshot of a person’s life; and may present a misleading picture if it is taken on a “good” day not representative of that person’s normal level of functioning.
13It is also a matter of ordinary human experience that a person suffering from a significant mental health condition, such as depression or anxiety, may exhibit little by way of outward signs. Pain, too, is a subjective internal experience. A person may be in significant pain, but their outward behaviours may mask that pain. They may push through the pain or seek to distract themselves with activity. Surveillance footage of Mrs Wheeler chatting with friends, laughing and spending time shopping and eating at cafés with her friends, are not inconsistent with her suffering from significant ongoing pain. Nor are they inconsistent with her suffering from a significant mental health condition.
14Nevertheless, the surveillance tendered from March 2021, July 2021 and August 2021, raised serious concerns about the veracity of Mrs Wheeler’s reports of her symptoms. Surveillance was tendered of her opening and closing her car door with her right hand, moving her head and neck freely, gesturing with both her hands, putting on her seatbelt with her right hand, eating with a knife and fork, and browsing shops near friends and other customers at a shopping centre. This surveillance is inconsistent with her portrayal of herself as having difficulty turning doorknobs; trying her hardest to use her left hand wherever possible; and avoiding other people for fear that even a gentle touch might cause her severe pain. It is also inconsistent with her presentation to each of the medico-legal specialists.
15My concerns regarding the reliability of Mrs Wheeler’s descriptions of her symptoms were put beyond doubt by the surveillance footage of 9 February 2022 – the day before the hearing. This was over one hour of footage of Mrs Wheeler working as a barista. I am simply unable to reconcile the surveillance of 9 February 2022 with Mrs Wheeler’s account of her physical symptoms in her affidavits and confirmed under cross-examination.
16In evidence given before the surveillance was played in Court, Mrs Wheeler said that on 9 February 2022 she was still suffering from the effects of a severe flare-up of right arm pain three days prior. She said that she generally tries to protect and shield her right arm, but takes particular effort to do so after a severe episode of pain - that she does not want to bump it or over use it. She said that she was “very restricted”[5] on 9 February 2022. Even after she had viewed the surveillance, Mrs Wheeler said that on that day she was experiencing 9/10 pain. This was not one of her “good” days.
[5] Transcript (“T”) 30, Lines (“L”) 3-4
17Despite this, the surveillance footage showed that, for over one hour, Mrs Wheeler performed the role of a barista in a busy café with no apparent signs of pain or restriction, or protecting or shielding her right arm. The only pain medication she used was over-the-counter painkillers, albeit up to ten tablets according to her evidence. Her actions in the footage included:
(a) using her right hand to load multiple 1-litre boxed milks into a fridge;
(b) using her right hand to twist the group handle onto the group head of the espresso machine numerous times;
(c) using her right hand to twist the knob on the coffee machine to produce steam from the wand numerous times;
(d) using her right hand to clean the spout and the bench with a cloth;
(e) using her right hand to pour steamed milk from a jug into cups of coffee;
(f) using her right hand to secure lids with downward pressure;
(g) using her right hand to open the fridge door;
(h) using her right hand to pour milk from 3-litre jugs into a stainless-steel jug. She mostly performed this task with her left hand but, on one occasion, she poured milk from a full 3-litre jug with her right hand, on another an almost full 3-litre jug and, on another, an almost full 2-litre jug;
(i) using her right hand to operate the cash register and EFTPOS machine;
(j) using her right hand to lift clear cake covers and use tongs;
(k) using her right hand to scoop sugar and vigorously stir coffees;
(l) using her right hand to untwist several milk bottle lids;
(m) placing both hands on her hips; and
(n) lifting up and carrying two large mugs of what appeared to be hot chocolate on saucers, one in each hand, and carrying them out to a customer.
18Mrs Wheeler did not demonstrate any signs of difficulty or guarding when flexing, reaching, picking up objects, or performing wiping or pushing motions with her right hand. She made no attempt to avoid using her right hand. She reached for items and raised and lowered her right arm. She gesticulated freely with both arms when talking. She showed no signs of fear or avoidance of physical contact with other staff and customers.
19Counsel for the plaintiff submitted that the evidence was that, after her shift, Mrs Wheeler went home and went to bed and was in a very bad way. I do not accept that concerns about the reliability of Mrs Wheeler’s reports of her symptoms can be ameliorated by her self-reports of her symptoms on other occasions (in the privacy of her home, beyond the reach of surveillance).
20Mrs Wheeler’s reported symptoms and physical limitations are to an extent corroborated by the affidavit of her husband who (in compliance with the Serious Injury Practice Note) was not cross-examined. However, the usefulness of his corroborative evidence is “to a large extent negated”[6] by the lack of reliability of Mrs Wheeler’s self-reports. To the extent that his affidavit records her complaints to him of her symptoms and limitations, I do not find it of assistance.
[6]De Agostino v Leatch [2011] VSCA 249 at paragraph [51]; applied in Nikolic v Transport Accident Commission [2020] VSCA 148 at paragraph [69]
21I find that Mrs Wheeler’s self-reported symptoms and physical limitations are grossly exaggerated and her descriptions of those symptoms and physical limitations (both to the Court and to the various medical experts whose reports were tendered in evidence) are completely unreliable.
The paragraph (a) claim
The parties’ submissions
22Mrs Wheeler relied upon an impairment of her right arm, arising from injury to her right wrist. She submitted that the pain and suffering consequences of this impairment were serious, in the sense that they could fairly be described as at least ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.
23Counsel for Mrs Wheeler accepted, in closing submissions, that pain to other areas of Mrs Wheeler’s body, such as her left shoulder, her neck and her foot, were not relevant for the purposes of the paragraph (a) claim.
24The VWA accepted that Mrs Wheeler sustained a minor soft-tissue injury to her right hand on 2 August 2018, but submitted that this was a fairly benign incident which had now resolved. The VWA pointed to Mrs Wheeler’s complaints of pain in numerous other parts of her body. It submitted that Mrs Wheeler was unable to separately identify the consequences of the right arm impairment from the consequences of the physical pain in other parts of her body. Finally, the VWA submitted that it was clear from Mrs Wheeler’s own evidence that her physical pain was inextricably linked to her mental state. Given this, it said Mrs Wheeler was not able to disentangle the physical injury from its psychiatric consequences.
Is Mrs Wheeler suffering a permanent serious impairment of her right arm, which is organic in origin?
25I have read and considered all the medical reports tendered in evidence. Each of those reports relied, to a very large extent, on Mrs Wheeler’s self-reported symptoms. For example, her treating general practitioner (“GP”), when describing Mrs Wheeler’s physical symptoms says:
“… The intensity of these symptoms varies day to day but they consist of pain in her right wrist and elbow, the whole of her right arm, right shoulder, her neck, chest wall and even her left shoulder and left arm. She also states that she experiences numbness, sweating, a burning feeling and pins and needles in her right arm. She says that her pain is sometimes so severe that she often has to take analgesics on top of the medications that I documented previously. She also states that her right wrist and right arm feel weak. The weakness varies, sometimes it is severe and she states that she has trouble holding anything including a cup and at other times the symptoms are not as severe and she can do more with her right hand. She states that she has difficulty with all household tasks due to the problems with her right arm.”[7]
[7]Plaintiff’s Amended Court Book (“PACB”) 86
26He continues:
“[Mrs] Wheeler’s symptoms are subjective e.g. pain, weakness, pins and needles and cannot be measured objectively to monitor for any improvement.”[8]
[8]PACB 87
27No formal report was tendered from Mrs Wheeler’s treating orthopaedic surgeon, Mr Shailendra Dass. However, on 22 February 2018 he wrote to Mrs Wheeler’s GP stating that, in his opinion, she most likely had a “chronic regional pain syndrome”.[9] On 4 February 2019, he completed a questionnaire stating that, in his view, her condition would improve and he anticipated she would be able to return to her pre-injury position in approximately 24 months.[10] No further report was provided by Mr Dass.
[9]Plaintiff’s Court Book (“PCB”) 40
[10] PCB 45
28Instead, Mrs Wheeler relied heavily upon the report from medico-legal consultant physician, Dr Peter Blombery. He examined Mrs Wheeler once on 17 June 2021 and provided two reports; one on 17 July 2021 and one on 26 October 2021. He diagnosed Mrs Wheeler with:
“Minor soft tissue ligamentous injuries to the right wrist complicated by complex regional pain syndrome type 1 and secondary depression and anxiety.”[11]
[11] PCB 97
29He explains that complex regional pain syndrome is a condition of organic basis. He describes her “current physical condition” as affecting “her hands and wrists”.[12] He says that, in his opinion, she has no capacity to perform her pre-injury employment and will not be able to do it in the future. He concludes:
“At the moment she has no capacity to perform alternative duties but with effective treatment, particularly from a psychological point of view, she may be able to do light duties, using predominantly her left arm. Such activity should initially be on a part-time basis only.
…
… initially up to two hours per week but that would require her overall status to be significantly improved beforehand.”[13]
[12] PCB 97
[13] PCB 98. In his second report, Dr Blombery increases this to four hours per week at PACB 100.
30Although Dr Blombery makes objective observations of temperature and colour difference in Mrs Wheeler’s hands,[14] he relies heavily upon Mrs Wheeler’s self-reported pain and limitations. He was not provided with any of the surveillance footage (despite it being available to Mrs Wheeler by the time of his second report). His views as to Mrs Wheeler’s total lack of capacity for her pre-injury duties, and initial capacity for only two hours of light duties, stands in stark contrast to the fact that Mrs Wheeler is now working at a café, up to 24 hours per week, in a role very similar (in physical duties) to her pre-injury employment.
[14] As does Mrs Wheeler’s hand therapist.
31In view of my findings in relation to the unreliability of Mrs Wheeler’s self-reported symptoms and Dr Blombery’s inaccurate predictions of her capacities, I am unable to accept the opinion of Dr Blombery as reliable.
32The VWA relied upon reports from Dr Thomas Robbins, a hand and plastic surgeon; and Dr Tony Kostos, a rheumatologist. Dr Robbins examined Mrs Wheeler once on 27 July 2021. He observed that she was shaking and retracted her hand on light touch and said she could not make a fist with her hand, but when distracted, he could touch her hand without retraction and flex her fingers into her palm. He concluded that:
“Her symptoms and complaints are weird and unexplainable to me other than malingering for gain or a mental problem which I am not qualified to assess”.[15]
[15]Defendant’s Amended Court Book (“DACB”) 98
33Dr Kostos examined Mrs Wheeler once on 10 March 2021. He noted that there was marked restriction of neck flexion and extension with moderate restriction of other movements, but all other movements were painful. His examination was limited due to Mrs Wheeler’s fear of touch. As she became increasingly distressed, he reverted to simply observing her wrists and hands. In his first report of 11 March 2021, he initially diagnosed her with chronic regional pain syndrome, which he defined as persistence of pain in the absence of any identifiable physical abnormality. He noted that this was a different diagnosis to complex regional pain syndrome type 1.
34On 28 March 2021, Dr Kostos provided a supplementary report, having been provided with surveillance from 2 March 2021, 3 March 2021, 11 March 2021, 15 March 2021 and 17 March 2021 (which was proximate to his own assessment of Mrs Wheeler on 10 March 2021). He noted that her presentation to him was completely inconsistent with her presentation in the video and confirmed his opinion that there was no ongoing physical injury.
35I accept the opinions of Dr Robbins and Dr Kostos (as modified in his supplementary report). I am not satisfied that Mrs Wheeler has any ongoing impairment of her right arm which is organic in origin.
Can pain of organic basis be disentangled from psychological or psychiatric consequences?
36In any event, it was apparent from Mrs Wheeler’s evidence, that her experience of pain depended upon her stress levels (for example in March 2021 she said she was stressed because it was fire season and her husband was a firefighter); the weather (thunderstorms, cold weather, sea breezes); and particularly her sense of safety. Thus, she explained, she could walk comfortably with close and trusted friends, but had a heightened sense of pain when examined by medico-legal practitioners retained by the VWA. She could work at the café because she trusted her boss and most of her customers were regulars, but could never return to The Cupcake Queens. She also said that her symptoms had recently improved somewhat because her mental state improved.
37The interconnectedness of Mrs Wheeler’s experience of pain and her mental state is confirmed by the medical evidence. Indeed, looking only at the reports tendered by Mrs Wheeler, Dr Blombery states “with effective treatment, particularly from a psychological point of view, she may be able to do light duties” (my emphasis),[16] while her GP states “The current main barrier to [Mrs] Wheeler returning to any form of employment is her mental health”.[17]
[16] PACB 98
[17] PACB 87
38Even if Mrs Wheeler continues to suffer some pain of an organic basis, that pain would be so intertwined with consequences of a psychological nature that it cannot be disentangled. The onus is on Mrs Wheeler to do so if she is to succeed on her paragraph (a) claim.[18] This is a further reason Mrs Wheeler’s paragraph (a) claim fails.
[18]Section 325(h) of the WIRCA; Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis (2007) 15 VR 649
The paragraph (c) claim
The parties’ submissions
39Mrs Wheeler claimed to suffer a chronic pain disorder and, in addition, a severe adjustment disorder with mixed anxiety and depressed mood, which had been triggered by her pain. She submitted that this amounted to a permanent severe mental or behavioural disturbance or disorder.
40The VWA submitted that any mental or behavioural disturbance or disorder suffered by Mrs Wheeler was not caused by the incident on 2 August 2008. It further submitted that any such mental or behavioural disturbance or disorder was not severe, in the sense of being more than “very considerable”.
The medical evidence
41Mrs Wheeler relied principally on the reports of her treating practitioners, and the report of Dr Louise Seward, a medico-legal consultant psychiatrist.
42Dr Theo Kyrou has been Mrs Wheeler’s treating GP for many years. He first treated Mrs Wheeler’s right wrist on 10 August 2018, shortly after the incident. He says that she suffers both from the physical symptoms of “CRPS”[19] and is also depressed and anxious secondary to her ongoing symptoms with her right arm and the difficulties she was with her previous employer. He concludes that:
“… Currently her mental state is too precarious for her to do any work. At this time, she is receiving regular psychological and psychiatric treatment and taking regular psychiatric medications but in my opinion there has not been any significant improvement in her depression and anxiety symptoms. She obviously needs ongoing treatment for these problems. I don't know if or when or to what extent her mental health problems will improve. If her mental health stays the same as it is now then in my opinion she would not be able to return to any work in the foreseeable future.”[20]
[19] PACB 86
[20]PACB 87
43Dr Jerome Nicholapillai, is a treating psychiatrist who saw Mrs Wheeler over twenty-five times between September 2019 and August 2021. Dr Nicholapillai diagnoses Mrs Wheeler with depression with anxiety symptoms on the background of chronic regional pain syndrome, together with ligament tear and tenosynovitis in her right hand and wrist. In his opinion, Mrs Wheeler’s symptoms have been caused by the injury on 2 August 2018. He does not think she is fit to return to work at The Cupcake Queens.
44However, from “a purely mental health perspective”, he does not see any major impediments to Mrs Wheeler returning to work in other suitable employment.
45Dr Stella Mihailova, is a treating psychologist who saw Mrs Wheeler for seven individual psychology sessions between October and December 2020. Dr Mihailova states that “It is difficult to attribute causality for [Mrs] Wheeler’s current mental health difficulties”.[21] She describes the workplace injury on 2 August 2018 as “one precipitating factor” and “a contributing factor”, but also notes that she reported “a history of previous depressive episodes, commencing around adolescence in the context of several interpersonally complex traumatic events”.[22] In relation to the permanence of her condition, she states that:
“… From a psychological capacity, if her pain was to improve further this would enable her to increase her functional capacity, including re-engaging with some work. Returning to active employment would likely positively impact her mental state, if it was within a supportive workplace and [Mrs] Wheeler was able to grade up her hours over time.”[23]
[21] PACB 75
[22] PACB 75
[23] PACB 76
46Dr Jacqui Stanford was a treating psychologist who saw Mrs Wheeler for six sessions between 27 January 2021 and 22 April 2021. Dr Stanford states:
“Based on the information provided by [Mrs Wheeler] she presented with pain associated with the workplace injury. She also presented with depression and anxiety associated with the injury and the workplace response to the injury.
…
Based on [Mrs Wheeler’s] report her pain commenced following the workplace injury. She reported she had good mental health prior to the injury and that the depression and anxiety related to the way her boss had responded to her injury and her limited functional capacity. Her mood was impacted by her pain, low functioning, concern for how she was able to parent, concern of her pain being exacerbated and worry for the future.
As such, her pain, depression and anxiety all relate significantly to the workplace injury.”[24]
[24] PACB 92
47As to permanence, Dr Stanford says:
“I believe [Mrs Wheeler] could further develop her skills in pain management, increase her functional capacity further, including improving her abilities to manage home life more effectively and obtain some form of employment.”[25]
[25]PACB 93
48Dr Seward is a medico-legal psychiatrist who assessed Mrs Wheeler on 17 August 2021. She also had the benefit of reading reports from Dr Nicholapillai and Dr Milhailova and reading a surveillance report in relation to the March 2021 surveillance (among other things). In particular, she accepted Mrs Wheeler’s explanation of the surveillance as being on a “good day”. She diagnoses Mrs Wheeler with an adjustment disorder with depressed and anxious mood in partial remission and a chronic pain disorder associated with both medical factors and a medical condition. She concludes that Mrs Wheeler is permanently incapable of performing her pre-injury duties. She also concludes that Mrs Wheeler does not have the capacity, qualifications or suitability, to perform any of the “suitable employment options” identified in a vocational assessment report.
49The VWA relied upon a number of reports from Dr Alan Jager, a medico-legal psychiatrist. He assessed Mrs Wheeler twice via Skype, once on 23 March 2021 and once on 12 October 2021. In his first report, dated 22 April 2021, he concludes that:
“The history…strongly suggests the presence of Borderline Personality Disorder. It is pertinent that she is treated with Dialectical Behaviour Therapy (DBT) which is the treatment of choice for that condition. If there is no adequate organic explanation for her pain, she also has a Chronic Pain Disorder Associated with Psychological Factors.”[26]
[26]Defendant’s Further Amended Court Book (“DFACB”) 86
50However, after viewing surveillance footage taken in March 2021, he changes his views in relation the chronic pain disorder:
“The diagnosis of Chronic Pain Disorder associated with Psychological Factors requires the complaint of pain to be genuine. Pain is a subjective experience but, when genuine, can be associated with considerable dysfunction. The plaintiff demonstrated no dysfunction in the video material. In particular, I did not observe any limitation of movement involving the right wrist, fingers of the right hand, right shoulder, back or left upper limb. Those observations raise doubts about the genuineness of the plaintiff’s reported pain. You should obtain the opinion of an orthopaedic surgeon in relation to the plaintiff’s demonstrated behaviour in the surveillance material. If the reported pain is not genuine, then she does not have a Chronic Pain Disorder associated with Psychological Factors.”[27]
[27]DFACB 90-91
51In his third report, prepared after his second Skype interview with Mrs Wheeler, Dr Jager observed that she was glum, unreactive and sobbing and that she blamed her former boss at The Cupcake Queens for her current condition. He concluded that the most likely explanation for her presentation is borderline personality disorder and that she was unfit for all work. It is apparent from his fourth report that he did not consider this borderline personality disorder to be caused by the 2 August 2018 incident.
52I have read and considered all the medical evidence relating to Mrs Wheeler’s mental state. Based on that evidence, I accept that Mrs Wheeler is suffering from symptoms of depression and anxiety. However, the conclusions of Mrs Wheeler’s medical experts in relation to causation are all dependent upon the accuracy of Mrs Wheeler’s self-reports in relation to the development and persistence of her pain. Indeed, counsel for Mrs Wheeler accepted, in closing submissions, that if I was not satisfied as to Mrs Wheeler’s actual pain symptoms, then Dr Seward’s diagnosis of an adjustment disorder with mixed anxiety and depressed mood necessarily fell away.[28] I am not satisfied that Mrs Wheeler’s current mental health concerns were caused by the incident of 2 August 2018.
[28] T131, L14-21
53Further, even if Mrs Wheeler’s mental health concerns were caused by the injury on 2 August 2018, I would not be satisfied that they met the required threshold of being permanent (in the sense of continuing through the foreseeable future) and severe (in the sense of being “more than significant or marked” and more even than “very considerable”).
54I accept that Mrs Wheeler has undergone inpatient treatment with TMS on one occasion and one further series of TMS treatments as an outpatient. She is also on long-term prescription medication. However, her treating psychiatrist does not consider her mental health to provide any “major impediments” to return to work in suitable employment (other than at The Cupcake Queens).
55Her own evidence is that she is currently capable of working up to 24 hours per week in a café. The other consequences relied upon by Mrs Wheeler (such as restrictions on her capacity to play with her children and her inability to do her own nails) depend almost entirely on Mrs Wheeler’s self-reports. For reasons already given, Mrs Wheeler’s evidence as to her pain and other limitations is unreliable.
56In any event, her capacities as demonstrated in the surveillance video, show that Mrs Wheeler is still capable of engaging in meaningful employment and social activities.
57In all the circumstances, I am not satisfied that the consequences of any mental or behavioural disturbance or disorder meet the higher threshold of being “severe”.
58As to permanence, both of her treating psychologists expect that she will improve with appropriate treatment. Her treating psychiatrist does not expressly state whether he believes her condition is permanent.
59Dr Kyrou and Dr Steward both express the view that she is permanently incapable of employment. However, this is proven incorrect by Mrs Wheeler’s return to working up to 24 hours per week in a café, effectively performing her pre-injury duties. Even if one were to accept that Mrs Wheeler was incapable of working at the time of Dr Kyrou and Dr Steward’s reports, it must follow that she has made dramatic improvements in the last few months. There is nothing to suggest such improvements will not continue.
60In all the circumstances, I am not satisfied that Mrs Wheeler’s mental or behavioural disturbance or disorder is permanent.
Conclusion
61I accept that Mrs Wheeler suffered an injury to her right wrist on 2 August 2018. However, this is not sufficient for leave to bring proceedings for damages. Parliament has chosen to limit a worker’s entitlement to access common law damages. Mrs Wheeler must establish that she has either suffered an impairment of her right arm which is permanent and serious; or a permanent severe mental disturbance or disorder.
62For the reasons given above, Mrs Wheeler has not discharged the burden upon her with respect to either the paragraph (a) claim or the paragraph (c) claim.
63The proceeding is dismissed.
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Certificate
I certify that these 17 pages are a true copy of the reasons for decision of her Honour Judge Tran, delivered on 10 March 2022.
Dated: 10 March 2022
Coco Weston
Associate to her Honour Judge Tran
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