Meadows v Lichmore Pty Ltd [2013] VSCA 201

Meadows v Lichmore Pty Ltd [2013] VSCA 201 - VSCA 2013 case summary — Zoe

[23]

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.

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.[5]

...

In submissions [counsel for Mrs Meadows] 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 [sic] 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 [counsel], was enough for the plaintiff to clear the 'serious injury' bar.

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.

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 [her counsel'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. 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 [to have] 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.

In all those circumstances, the plaintiff's application fails.[6]

[31]

Suppose a man loses a dominant right arm in an industrial accident. For a year or so he attempts to resume his former manual work; but he cannot do so. It is also clear that he cannot enjoy any of his previous recreations - gardening, golfing, and so on. These sequelae will be permanent. Later, in response to his injury and its effects upon him, he begins to suffer from somatic symptoms which make his life more of a misery. He has recurrent headaches, chest pain, and abdominal discomfort, all of which would preclude him working and from enjoying his former recreations. These somatic symptoms could be 'stripped away', almost certainly without the assistance of medical practitioners. But it could not sensibly be said that this would be necessary in order for Mrs Meadows to establish that the impairment in its physical consequences constituted serious injury.

Consider another example. A man of mature years, who has always been a labourer, suffers spinal injury. It is sufficiently serious to require a three level spinal fusion. He is left with a stiffened back. The spinal segments above and below the fusion are at increased risk of injury because of the fusion. Medical opinion is that the man will be limited, permanently, in the work which he can perform; and his essential recreational pursuits are seriously and permanently inhibited. Later on, he develops intractable pain in the affected area with radiation to his lower limbs. The pain cannot be explained physically. It is a psychological phenomenon, and it is very disabling. There could be no need to disentangle the psychologically-based symptoms and their consequences - although again it may be assumed that it would be possible to do so.

Finally, consider a variant of the second example. Suppose that the intractable pain, psychologically-based, has its onset very soon after surgery. The physical impairment, and its impact upon work capacity, would be no less ascertainable only because the psychologically-based symptoms were not 'stripped out'.

It is impossible to specify a 'one size fits all' template of circumstances which a judge might find useful in determining a particular serious injury application. To take a single example, it could be that the judge hearing a particular application would consider himself or herself assisted by evidence that the applicant had a sound work record, or that the applicant had previously sustained injury but had recovered and got back to work. The judge might think it significant that the applicant had responded favourably to earlier injury affecting the area of the body now said to be affected. The fact that a person had coped with injury in the past, but not with injury now, might suggest, together with other circumstances, the likelihood that symptoms attributed to the present injury had a substantial organic basis - at least sufficient to satisfy the serious injury threshold. But whether such a conclusion should be drawn would depend upon consideration of all the evidence.[10]

[58]

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.

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

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.

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.

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.

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.[14]

At a glance

Court

Decision date

Before

Source

Judgment (79 paragraphs)

Meadows v Lichmore Pty Ltd [2013] VSCA 201 (22 July 2013)

Parties

Legislation Cited (1)

Cases Cited (2)