Church v Echuca Regional Health [2008] VSCA 153

Church v Echuca Regional Health [2008] VSCA 153 - VSCA 2008 case summary — Zoe

[87]

I have had persistent pain levels in my neck, right and left shoulders and right arm, from July 2002 onwards, with symptoms developing in my left arm since that time. My level of pain can become severe at times, and as such I have to be very careful in terms of the type of activities I undertake. To try and assist with pain control, I have taken regular medication since 2002, with a morpheine-based painkiller, Endep, having been introduced in to my regime from early 2004. The fact that I experience constant symptoms has a massive impact on my ability to function on a day to day basis. For example:

(a) I now have a weight lifting restriction of 5kg. Because of my restricted lifting ability, I no longer lift and carry supermarket shopping, rather I have my groceries home delivered;

(b) I now do smaller loads of washing and I use a washing basket mounted on a trolley, so that I do not have to carry the clothes basket to the clothes line. My husband has also lowered the outside clothes line so I only have to do minimal reaching when hanging out clothes;

(c) When doing day to day duties in the kitchen, I regularly need to lift objects such as pots, pans, crockery and foodstuffs. I am now restricted in lifting items that are relatively light in weight, or to lift items one at a time. Further, to minimise the amount of lifting I am exposed to, I have had a new wall oven installed so that I can work directly from the oven to bench height. Previously, I found that I could not lift items from the underbench oven up to the bench. The kitchen benches have also been adjusted in height to make the working height more comfortable for me;

(d) I do drive an automatic car, but I am limited to driving distances of about 30km. Fortunately, most of my medical treatment is provided in Echuca and on most occasions my husband drives me when I need to go out;

(e) I used to enjoy maintaining the garden. I can no longer push the lawn mower or work for any length of time with my arms extended or above shoulder height. My family now pays a gardener to mow the lawns and prune the trees;

(f) I have always taken pride in maintaining my own home and doing the day to day housework including cleaning, vacuuming and making the beds. I am now extremely limited in my ability to engage in any of these types of activities for more than very short periods of time. I can no longer turn a mattress. General cleaning around the house must be done, and I try to do what I can, however I find that any activity for any length of time exacerbates my symptoms of pain. I have been provided with home help for one hour per week over the past 3 years to assist with the more strenuous items;

(g) I no longer get a full night's sleep. If I roll over on to my right shoulder in particular, it causes me to wake up. I estimate that I average about 4 to 5 hours sleep each night. I now take 2½ Avanza tablets each night to help me try and sleep;

(h) I have put on about 2 stone in weight since mid 2002. I attribute this directly to the fact that I am nowhere near as active as I was when I was working;

(i) I am right handed and as such my injury has had particular impact on my right arm. This has resulted in a massive impact on my day to day activities. I find it particularly frustrating that I cannot engage in active play with my grandchildren. Like all small children, they often want to be picked up and this is something that I cannot do. I can really only interact with my grandchildren when I am sitting down;

[94]

So you can't go shopping because you can't lift anything?---I do go shopping.

Who lifts the stuff up when you go shopping?---I do.

I thought you told Dr Ryan that you couldn't lift goods when in the supermarket, you had to ask a staff member for assistance?---If it's high I have to, yes.

That must be difficult if your arms are, as you've indicated to His Honour, in the fashion that you are holding them at the moment?---And why would that be?

You told His Honour before that your usual state was as you're portraying it to us physically at the moment, that is, your left arm cradling your right?---Yes. I go, I do the shopping, I get it home delivered. I've never said I never do the shopping. There's things I can do, there's things I can't do.

All right. Are you able to, for example, reach behind yourself like that, couldn't you do that?---No.

Couldn't do that?---No.

How do you put the seat belt on in the car?---Pull the seat belt across.

Do you, all the time?---Yes.

Okay. And your neck, how do you go in the car with your neck? How do you turn around and see what's behind you, or don't you?--- I use my mirrors.

So you don't turn around?---Yes, I've turned around in the car.

Well, as a matter of practice do you turn or do you use the mirrors, what do you do?---I use the mirrors.

Right. So it would be exceptional for you to turn around?---What do you mean exceptional?

It would hardly ever occur. More often than not you'd always use your mirrors and only in an exceptional circumstance, once out of 100 you'd turn around?---No, I can turn around and look out, not a problem.

And you do it like that, by moving your whole body, not by moving your head on top of your shoulders?---Yes, I can do that.

By moving your whole body?---Most of the time.

Not your head on top of your shoulders?---Yes, most of the time.

And that would be because the pain would prevent you from rotating your head turning your neck and looking over your shoulder, for example?---Well, I do do that. Of course I've done that. I've turned my head and I'm in pain all the time.

But what, you just forget about the pain from time to time?---No, you don't forget about the pain. You do it and then you know you've done it. The pain clicks in. The pain's there, you've done it.

What about sitting down having lunch, would you be able to do that?---Yes.

Would you be able to eat using both hands?---Yes.

Would you be able to eat say a hamburger or something like that using both hands?---Both hands, yes.

Holding it in a fashion like this and putting it to your mouth and taking a bite?---Yes.

How would your right arm cope with that?---Easy. As long as I'm not holding my hand up to too long I can do that and it's supported by my breast, no worries.

AND

Would you be able to walk around a store for example carrying a box under your left arm and get items out of shelves with you right, could you do that?---Yes.

You could do that. How could you do that with the unremitting pain that you've described?---I just do it.

You just do it. So we would see you in absolute agony presumably undertaking that manoeuvre?---Yes.

Would you be able to lift your right arm up like that and hold it there for some time? Right arm, no, no, not that sort of - right arm, like that, would you be able to do that?---Yes.

But as slowly as that, you'd have to obviously take great care to - - -?---I can put it up, yes.

Yes, but you'd have to do it slowly and in great care?---No, I can do it but it hurts.

[125]

The medical opinions relied on by the defendant are to the general effect that the reporting practitioners were unable to find any organic cause for the plaintiff's continuing symptoms and that her pain syndrome, however described, was not caused by her employment with the defendant. From a psychiatric point of view, Dr Rose, consultant psychiatrist, examined the plaintiff on behalf of the defendant's insurer and in a report dated 27 September 2004 he relevantly said:

'Thank you for the report from Dr Tony Kostos which confirms the opinion of Dr Roy Karna that there is no objective physical abnormality. As you recall, in my opinion supplementary report dated 23 August 2004, I suggested referral of Mrs Church to another rheumatologist and I did say that if another rheumatologist expressed the opinion that the worker's physical symptoms were not organic I would have to say that she has a psychogenically determined pain disorder.

Having seen this new evidence, I am now of the opinion that Mrs Church's pain disorder is psychogenic in origin. This means that she is suffering from a somatoform disorder. Pain disorder is one of the somatoform disorders. Somatoform disorders are notoriously difficult to treat because of the lack of insight in the patient and the patient's expressed belief that the symptoms are due to medical illness. The patient with this condition develops a fixed and entrenched belief that he or she is sick and that only medical treatment will cure the illness if any cure is possible.

You will note that in my report dated 3 May 2004 I expressed the belief that because of pain and depression Mrs Church was unfit for any employment and that she would remain incapacitated for all employment as long as her pain persisted. I remain of this view. I note that Mrs Church's symptoms are mainly those of pain and mild depression. Her psychiatric injury of pain disorder is secondary to a physical injury. Furthermore, I believe that impairment as measured by the specified method of psychiatric impairment in Victoria would be very low indeed.'

[130]

[T]he plaintiff was shown video and DVD surveillance films taken on 9 February 2006, 11 December 2006, 16 March 2007 and 19 August 2007. In response to a request from the plaintiff's legal advisers, the defendant admitted, ... that it had arranged surveillance of the plaintiff on 20 other occasions between October 2004 and August 2007. On the occasions when the plaintiff was observed in the films put to her, it seemed to me that she was moving her neck, shoulders and right arm freely and without restriction. She was seen picking thing from shelves in shops, getting into and out of her car, putting bags of shopping into the boot of her car, driving her car and eating without apparent restriction. This contrasted to the plaintiff's evidence in her affidavit, to medical practitioners and in court.

In my view, the plaintiff's demeanour in court is of particular significance. During the time she gave her evidence, which spanned approximately 1 hour and 40 minutes, the plaintiff cradled her right arm with her left arm as if it were in a sling. She said that she did so because it was a "big pain day" for her. In response to Mr Blanden's questions about the apparent lack of restriction in the surveillance films, the applicant claimed that they must have been "good" days for pain.

It is perhaps trite to say that when claimants are being assessed by medical experts and others in relation to the nature and extent of injuries they allege they have suffered, the compensation system at every level relies on accounts which are, subject to acceptable limits in relation to human frailty, frankly and accurately given. When the physical injury claimed is, as here, one for which there is no organic explanation, it seems to me that the burden on the claimant to be frank is a high one. Likewise is the case where the injury claimed is an emotional one which is not capable of objective verification.

Unfortunately, after comparing the plaintiff's claimed incapacity in the witness box, including the other evidence in the case, with the way she moved in the surveillance films, I am unable to accept her as a credible and reliable witness. In coming to that conclusion, I accept that the films were taken over a 16 month period five years after the plaintiff allegedly suffered injuries which she has claimed, and continues to claim, have precluded her from working and living a normal life since 2002.

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