Meadows v Lichmore Pty Ltd [2012] VCC 1290

County Court of Victoria|2012-09-25

**1 In early 2007, the plaintiff started to feel pain in her left elbow while working for the defendant in employment which required fast and repetitive packing and unpacking of a range of goods. In June 2007, she went to her general practitioner. From that time to the present, she has suffered pain in her left elbow which has required a range of treatment, including surgery in August 2008. She has not worked since May 2008. She claims a range of social, domestic and recreational activities have been lost or significantly impaired. She has also suffered problems with her right elbow. She claims to have no current work capacity.

2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 ("the Act") for injury suffered in the course of the plaintiff's employment with the defendant over the period from 2001 until 2008. The body function said to be lost or impaired is the left elbow. The application is thus brought under subsection (a) of the definition of "serious injury" contained in of the Act and leave is sought in respect of both pain and suffering and loss of earning capacity.

3 The plaintiff, the treating orthopaedic surgeon, Mr David Booth, and the plaintiff's current general practitioner Dr Patel were called to give evidence and be cross-examined. In addition, medical reports, radiology reports, and the affidavits of the plaintiff and members of her family were tendered into evidence. I have read all the tendered material. I shall not refer to all of this material in the course of this judgment, but rather those reports and opinions which appear to me to be of most relevance in determining the issues in dispute. I shall not refer to all of the evidence of the plaintiff, but rather those parts of her evidence which I have relied upon in coming to the conclusions referred to in this judgment.

4 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.**

**5 The plaintiff is now fifty-nine years of age. She is married with three children. She was educated to Year 9 and then commenced work as a cutter in a fabric factory. She had a number of years away from employment, looking after her children. She was involved in a family bakery business from 1994 to 2001. She commenced work with the defendant as a casual worker in September 2001, and became permanently employed in September 2003. She remained working until May 2008, and has not worked since.

6 She enjoyed knitting and sewing prior to her injury, which she described as her main hobby. She occasionally played lawn bowls. She performed an array of domestic tasks for her family. Prior to 2007, the plaintiff was in good health and, in particular, had suffered no injury to her left elbow.**

**7 The work with the defendant, the plaintiff claims, was fast and repetitive packing and unpacking. She says she was required to lift boxes full of products varying in weight and was required to transport those boxes to various parts of the work premises. She worked full-time five days a week plus overtime.

8 There is some factual dispute between the plaintiff and her former employer, Mr Arthur,[1] as to the onset and report of the plaintiff's injury. However, those differences are not significant.

9 The plaintiff says that in early 2007, she started to get pain in the left elbow while working on her packing duties. She reported the problem to her supervisor, and other co-employees in May 2007. In June 2007, she went to see her general practitioner, Dr Freund. He injected cortisone into the left elbow and she returned to work. The pain persisted and a further injection was administered in October 2007 and the plaintiff again returned to work. There was some improvement, according to the report of Dr Freund,[2] but the pain increased, and in May 2008, the pain in her left elbow was significant. She had a month off work and was referred for physiotherapy.

10 Her general practitioner referred the plaintiff to Mr David Booth, orthopaedic surgeon, in June 2008. An MRI scan of the left elbow[3] showed:**

"Moderate common extensor origin tendinosis with small intrasubstance tear."

11 After a consideration of various treatment options, the plaintiff underwent surgery on 12 August 2008. Mr Booth described the surgery[4] as:

"On 12.8.2008 through a mini incision over the common extensor origin multiple radiofrequency injuries were induced by a Topaz radiofrequency wand. The wand essentially is introduced between the tendon fibres without disruption to the macro-architecture."

**12 Both in evidence and in his report, Mr Booth described the plaintiff as suffering symptoms which were not related to the surgery or the left elbow condition. He said they were 'bizarre' and out of proportion to the relatively minor procedure. He said those symptoms were possibly brought about as a result of 'panic'.

13 After the surgery, the plaintiff continued with physiotherapy and anti-inflammatory medication. Mr Booth reviewed the plaintiff on a number of occasions in 2008 and 2009. In his report, he concluded:[5]**

"Sandra Meadows has degeneration of the tendon of the common extensor origin of her left elbow. She has features suggesting the condition is mild. On the history she gave me the symptoms were made worse by her light manual work. After surgery she developed a different undefined pain syndrome involving both upper limbs with no neurological and no musculoskeletal deficits. She reported considerable disability from her perception of pain.

...

The patient's incapacity was profound and became more serious over the eighteen months since surgery. It is clear therefore that she developed or expressed a different pain syndrome to the features that presented to me initially. ... In my experience her pain behaviour is exaggerated for the mild nature of her degenerative tendon and that her incapacity is exaggerated."

**14 Mr Booth said in evidence that after the surgery, the plaintiff exhibited pain behaviour which was widespread including to the neck, head and with gastro intestinal problems. There was no organic basis for those symptoms. He thought the plaintiff would recover and return to light duties. He said the plaintiff's symptoms could not all be injury related. The areas of pain included to the shoulder and neck and then to the right elbow, which, at times was worse than the left. This was part of a regional pain syndrome.

15 He agreed there was some degeneration in the plaintiff's left elbow, although said that from the MRI scan of May 2011, the tears in the tendon had healed. Further, there was no tendonopathy nor fluid collection. He queried the finding of the radiologist that the x-rays of May 2011 showed osteoarthritis in the elbow joint. When the clinical findings of Mr Pullen were put to him, Mr Booth agreed there they indicated there was some mild ongoing pain in the tendon under tension load[6].

16 In 2009, because of the lack of success of the surgical intervention, the plaintiff was referred to the Epworth Rehabilitation Hospital at Dandenong for a Pain Management Program. According to the report of Dr Leong of Epworth,[7] upon review after the conclusion of the program, the plaintiff's condition had taken a downward turn, with increased levels of pain in the left arm. She had become depressed.

17 Subsequently, at the behest of the WorkCover insurer, the plaintiff completed a ten-week computer course at a community centre. She said in evidence she received only limited assistance from this program and at the conclusion was able to turn a computer on and off and send emails.

18 In 2009, the plaintiff continued to see her general practitioner, Dr Freund, who noted that she had developed pain in the right elbow. He prescribed Endep and referred her back to Mr Booth, who, after examination, concluded there was no further surgery appropriate.

19 Because of symptoms of ongoing depression, the plaintiff was referred to a psychiatrist, Dr Das.

20 There was discussion between the plaintiff, her physiotherapist and a representative from a rehabilitation provider as to the prospect of the plaintiff returning to work in 2009. According to the physiotherapy report,[8] the plaintiff was "very anxious" about a return to work. The physiotherapist considered it would aggravate her condition.

21 Dr Freund retired, and the plaintiff's care was taken over by Dr Monika Patel, general practitioner.

22 According her report, she diagnosed the plaintiff as suffering tendonopathy and degenerative changes to the left elbow with a significant psychological overlay.

23 In evidence, she said that in relation to the psychological overlay, the physical component of the plaintiff's presentation was "much stronger".[9] She said the psychological overlay was caused by stress and talking about her pain all the time. It was significant, and to some degree contributing to her work incapacity.[10]

24 Dr Patel referred the plaintiff to Mr Christopher Pullen, orthopaedic surgeon, for a second opinion in May 2011. When he examined her, he noted a full range of movement in the left elbow, tender over the lateral epicondyle. He said she had a positive provocative test for left tennis elbow. He said examination showed mild evidence of rotator cuff tendonitis of the shoulder. He arranged an x-ray and MRI scan of the left shoulder.[11] The MRI scan of 31 May 2011 concluded:**

"Post-operative changes of the common extensor tendon. Early osteoarthritis of the elbow joint. No evidence of lateral epicondylitis."

25 Mr Pullen said the MRI showed evidence of mild, early osteoarthritis of the left elbow and no persistent evidence of lateral epicondylitis. He did not think the plaintiff would benefit from surgery, and referred her to Dr Clayton Thomas of the Victorian Rehabilitation Centre. Mr Pullen concluded:

"I believe Mrs Meadows will have problems with persistent left elbow pain. Her elbow lateral epicondylitis has not responded to surgery over the course of 2-3 years. I think she has developed a pain syndrome. I think she will have persistent problems with elbow pain in the future. She does appear to be developing some mild right-sided tennis elbow and this may become more severe as time goes by. I think this is probably a consequence of over-use"[12]

**26 The plaintiff saw Dr Clayton Thomas, specialist in rehabilitation and pain medicine, in November 2011. He has reviewed her approximately every two months since. He considered the plaintiff was suffering from chronic lateral epicondylitis in both elbows, far worse on the left. He also noted the plaintiff had symptoms consistent with carpal tunnel syndrome, but thought the symptoms were part of a pain syndrome. He considered the plaintiff's condition an organic one and unlikely to improve in the future. Dr Thomas thought the plaintiff did not have any work capacity and very limited functional use of both arms. He prescribed Topamax and noted the plaintiff was also using Panadol Rapid.

27 In his most recent report,[13] he said on the occasions he reviewed the plaintiff in 2012, their discussion was focused around her left shoulder rather than the elbow.

28 According to the plaintiff's affidavit, she claims the pain in her left elbow is present all the time, aggravated by various activities. She claims to have lost strength in the left arm, and gets pins and needles into the hands. She has significant difficulty with daily tasks, including showering and washing her hair. Her sleep is also affected, and because of her disturbed sleep pattern, she has been unable to sleep with her husband for two years. She drives a car, but only for limited distances. She has difficulty looking after her grandchildren. The heavier aspects of household work, including washing, vacuuming, cooking and cleaning are affected, as is her capacity to open jars and cut food.

29 The restriction upon her domestic and social activities is confirmed in affidavits of her daughter and husband.**

30 I have referred in part to the opinions of various of the plaintiff's treating practitioners. According to her first general practitioner, Dr Freund:[14]

"The patient has suffered a lateral epicondylitis of her left elbow as a result of her employment with subsequent unsuccessful operations and secondary right elbow epicondylitis, she had developed a left regional pain syndrome. Her prognosis is poor considering the psychological overlay. She will require ongoing frequent physiotherapy and analgesics."

31 According to a report of Mr Owen Deacon, orthopaedic surgeon, of December 2011, he said that the plaintiff was suffering a "strangely persistent" severe humeral epicondylitis involving the left elbow. He said the condition had not responded to the usual treatments. He said that he believed -

"... there is mainly an organic component to your client's pain."[15]

**32 He said that some soft tissues respond worse to repetitive work, than do others. He thought the plaintiff's prognosis was not good and that she did not have a work capacity. He said the injuries had a profound effect upon the plaintiff's lifestyle and her ability to perform normal activities of daily living.

33 The plaintiff was examined by Mr Kenneth Brearley, surgeon, in December 2011 and July 2012. He said:[16]**

"In my opinion her injuries are organic and physical in nature. The injury to her left elbow has failed to resolve and she has been considered to have a chronic pain syndrome however, this has come about as a result of the physical injury. In addition, she does have a Chronic Adjustment Disorder ... ."

**34 Mr Brearley considered the plaintiff could not return to any physical employment in the foreseeable future, and that her domestic duties were impaired. He diagnosed the plaintiff as suffering chronic lateral epicondylitis of the left elbow.

35 It is a little unclear from Mr Brearley's opinion as to whether a pain syndrome has a role to play. He appears to acknowledge that a pain syndrome is present, although it followed a physical injury.

36 The plaintiff was examined by Mr Michael Shannon, orthopaedic surgeon, in April 2010 at the request of the defendant. On examination, he said the plaintiff had 'paradoxical provocation tests'. He diagnosed the plaintiff as suffering bilateral epicondylitis. However, he noted that she had a normal range of movement in both elbows and said that he suspected that the bilateral tennis elbow had substantially resolved. He said the plaintiff could not resume her previous duties or work which involved strenuous or repetitive use of the left arm. He said she would be capable of light non-repetitive work such as simple office work.

37 The plaintiff was examined by Dr Kevin Fraser, rheumatologist, in August 2011 and August 2012. He said the plaintiff's examination was marked by overreaction.[17] He noted that the more recent MRI showed no evidence of left lateral epicondylitis, although noted there were some degenerative changes. He thought the plaintiff had recovered from the work-related left elbow injury. He said there was a significant psychological reaction present and any ongoing symptoms were solely due to non-organic factors of a psychosocial nature.

38 Finally, the plaintiff was examined by Professor Stephen Davis, neurologist, in March 2012. He acknowledged the plaintiff had suffered a work-related injury to the left lateral epicondyle. However, he said her condition had evolved and progressed since that and there was "no doubt" that there was a very substantial psychological overlay which he said was evident from non-anatomical, functional features on examination. He said there was little or no evidence of neurological impairment.**

**39 I am satisfied from the bulk of medical evidence that the plaintiff suffered an injury to her left elbow over a period of time, manifesting in symptoms from early 2007. The nature of the condition is left lateral epicondylitis, or tennis elbow.

40 That injury has been the subject of extensive treatment over the years, including a minor operative procedure at the hands of Mr Booth, physiotherapy, and a range of medication. According to the plaintiff, the symptoms have persisted and none of the treatment involved has resulted in any significant pain relief. If anything, the symptoms have become worse.

41 The real issue for determination in this application is the nature and extent of a psychological overlay, or functional component, referred to by many of the practitioners. In essence, the issue is whether and to what extent I am satisfied that the plaintiff's current pain and disability in the left elbow has an organic basis, or whether the symptoms are due to the non-organic overlay.

42 The plaintiff gave evidence in a relatively forthright manner, although impressed me as someone very focussed upon her injury. If I were to accept the pain and disability she claims has substantially an organic basis, there is little doubt that the consequences to her of her left elbow injury do reach the "very considerable" level as prescribed by the legislation. However, as stated, the real issue is the nature and extent of the organic component. That falls to be determined by my conclusions as to the medical evidence.

43 Each of the plaintiff's general practitioners, who have treated the plaintiff on a regular basis, have concluded she suffers a pain syndrome. Dr Freund thought her prognosis was poor considering the psychological overlay. Dr Patel reached a similar conclusion, although said in evidence the physical component was stronger. Both of the treating orthopaedic surgeons, in particular, Mr Booth, considered there was a pain syndrome present. Mr Booth said the plaintiff's pain reaction after surgery was exaggerated.

44 Mr Pullen considered the plaintiff suffered some residual left elbow pain, but had developed a pain syndrome.

45 Dr Clayton Thomas, who has seen the plaintiff in 2011 and 2012, considered that her condition was "certainly an organic one", although he thought the plaintiff did have a pain syndrome, at least in relation to her symptoms of carpal tunnel syndrome. His concentration over recent times appears to be in respect of the plaintiff's left shoulder.

46 The consultants retained by the plaintiff's solicitors, Mr Deacon and Mr Brearley, are of the view the plaintiff suffers epicondylitis. It is unclear from the opinion of Mr Deacon whether he had the MRI scan of May 2011, which stated there was no evidence of lateral epicondylitis. He noted the plaintiff did not bring any films with her. Mr Brearley thought the plaintiff was suffering from an injury which was organic and physical in nature, although he appears to accept there is a Chronic Pain Syndrome present.

47 From the defendant's camp, Mr Shannon considered the plaintiff did suffer left tennis elbow, although he thought the condition substantially resolved. Both Dr Fraser and Professor Davis consider the plaintiff as suffering a significant functional overlay or pain syndrome.

48 I have concluded I prefer the opinions of those practitioners who diagnose a Chronic Pain Syndrome or functional overlay. In particular, Dr Freund and both treating orthopaedic surgeons have come to that conclusion. In particular, Mr Booth performed the operative procedure upon the plaintiff, and was in a position to assess her reaction to surgery. He said the reaction was exaggerated.

49 In submissions Mr Keogh argued the conclusion of Mr Pullen that there was a 'pain syndrome' was unhelpful and said there were findings upon his examination which showed ongoing physical injury. He said there was sufficient from the evidence of Mr Booth, Dr Patel and Mr Pullen that, although there was a pain syndrome present, physical examination confirmed the presence of symptoms specific to chronic lateral epicondylitis, sufficient to prevent the plaintiff working in her previous employment or any other form of employment to which she is suited by her education and experience. That, said Mr Keogh, was enough for the plaintiff to clear the 'serious injury' bar.

50 While Dr Patel did say the physical aspect was stronger, she accepted the psychological component was substantial. Overall I assess Mr Booth's evidence as indicating the pain syndrome is a substantial part of the plaintiff's presentation. I read Mr Pullen's report as saying while there is a physical injury, and symptoms related to that, there is present a psychological component in the nature of a pain syndrome. The onus is upon the plaintiff to satisfy the Court the physical component is the prominent part.

51 It is always difficult in applications such as this to determine the extent to which a worker's symptoms have an organic as opposed to a psychological basis. I bear in mind the plaintiff has the onus of proving to me that the consequences of injury, from a physical basis, reach the "very considerable" level. I do not accept Mr Keogh's argument that the opinions to which he referred showed the plaintiff's symptoms having a physical basis such as to prevent her from working. There is no clear opinion from those practitioners to that effect. The legislation makes it clear psychological consequences of a physical injury are not to be taken into account in determining whether that injury reaches the 'very considerable' level[18]. In my assessment, and bearing in mind the opinions to which I have referred, I am not satisfied that the plaintiff's organic injury does account for all or even the bulk of her current range of symptoms and disabilities. I am not satisfied the plaintiff has sufficiently disentangled the physical from the psychological so as to satisfy me that her current condition is substantially physically based. There ought in my view been questions put in particular to the treating practitioners to enable the Court to clearly identify whether the pain and disability the plaintiff claims has substantially an organic basis. On the basis of the evidence as it now stands, I am not satisfied that is the case.

52 In all those circumstances, the plaintiff's application fails.

[1] See affidavit of Peter Arthur, Defendant's Court Book ("DCB") 1-4

[17] In the first report of Dr Fraser (DCB 23), he refers to "no overreaction", but this is rectified in his subsequent report (DCB 25).

Compensation Act 1985

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (62 paragraphs)

Parties

Legislation Cited (1)