Veljanovska v Socobell OEM Pty Ltd [2005] VSCA 227

Statement of the case

3 This is an appeal from the order of a County Court judge made on 4 July 2003 dismissing the appellant's application "under s.135A(19)(a) and (c) of the Accident Compensation Act 1985", which I shall call "the Act".[1]

4 The appellant commenced her application by Originating Motion filed in March 2001. By Particulars of Injury and Impairment dated 3 June 2002 she claimed that she suffered from

"Serious injury within the meaning of s.135A(19)(a) and in particular ... has suffered a long-term bilateral impairment or loss of function of the shoulders and arms as a consequence of the following injuries.

...

(a) Neck and bilateral shoulder and upper limb soft tissue strain injuries.

(b) Bilateral carpal tunnel syndrome.

(c) Chronic pain syndrome.

(d) Consequential depression and anxiety."

5 I pause to note that the matters relied upon in paragraphs (c) and (d) of the particulars could only be relied upon in proof of serious injury under s.135A(19)(a) if they were a consequence of long-term impairment of body function rather than its cause.[2] No doubt that explains use of the adjective "consequential" in paragraph (d).

6 At the hearing of the application the appellant was granted leave to amend the Particulars of Injury and Impairment to which I have just referred by adding a cumulative or alternative reliance on s.135A(19)(c), and by adding to paragraphs (d) of the Particulars

" ... within the meaning of s.135A(19)(c) of the definition of serious injury."

7 The material adduced on the application was largely documentary. The only witnesses viva voce were the plaintiff and her treating general practitioner Dr El-Khoury, each of whom was cross-examined and re-examined. Such a procedure, apparently dictated by exigencies of time and cost, could not be considered conducive to the disposition of difficult questions, such as may arise when a complex medical picture must be analysed and findings made.

8 In the event, the appellant did not satisfy the learned judge that she suffered either

• Serious long-term impairment or loss of a body function within paragraph (a) of the definition of serious injury ("a paragraph (a) impairment"); or

• Severe long-term mental or severe long-term behavioural disturbance or disorder within paragraph (c) of that definition ("a paragraph (c) disorder ").

9 The precise basis upon which the judge reached those conclusions was debated on the hearing of the appeal. At its highest, her Honour found

• That the appellant had not proved on balance of probabilities that she had suffered compensable physical injury - which was variably described in the material placed before the judge as a bilateral carpal tunnel syndrome and as an overuse syndrome affecting the hands, arms, shoulders and neck.

• That the appellant probably did suffer from severe mental or behavioural disturbance; but that she

"had failed to prove on the balance of probabilities that this was connected with any injury sustained in the workplace."

"... coincide[d] in time with her dismissal."

10 The appeal was conducted this way: senior counsel for the appellant, properly accepting that the judge had resolved against his client issues upon which she had carried the onus of proof, submitted that the material nonetheless constrained her Honour to find that -

• The appellant had suffered compensable physical injury.

• The injury was sufficiently linked to a disorder which satisfied paragraph (c).

He further argued that if this Court accepted those submissions then it should not only grant leave to appeal and allow the appeal, but also grant leave to the appellant to bring her desired proceeding. Apropos leave to appeal, counsel rightly accepted that this was a case in which the appellant required leave to bring her appeal, Dodoro v Knighting[3] having so decided in the context of analogous provisions of the Transport Accident Act 1986.

Explaining the issues raised on the appeal

11 Senior counsel for the appellant conceded that it was critical to his client's case that she had suffered compensable physical injury in her employment by the respondent as a process worker between 1989 and September 1997. That was the case notwithstanding that any such injury admittedly did not satisfy paragraph (a) at the time of the hearing below. It was so because any paragraph (c) disorder which the appellant could hope to establish derived from compensable physical injury. In other words, this was not a case[4] where the primary injury alleged was a mental injury attributable to some work event or stress.

12 To further explain what I have just said, the appellant's case was that she had suffered, by reason of repetitive work, an injury which affected her hands, arms, shoulders and neck. It mattered not whether its pathology was wholly or partially bilateral carpal tunnel compression, or wholly or partly a soft-tissue overuse syndrome affecting the hands, arms, shoulders and neck which in part mimicked carpal tunnel compression. Whatever had been the precise pathology, such physical injury had completely, or at least very substantially, resolved with the passage of time. But consequential upon that injury the appellant had developed a chronic pain syndrome affecting the areas which had been the sites of organically determined pain; and further consequential upon that injury the appellant had developed psychiatric injury - variously described as a (major) depressive disorder and an adjustment disorder.

13 The respondent's response to the issues raised essentially consisted of these propositions:

• The appellant had not suffered any physical injury - I use the term neutrally by way of contrast with "compensable physical injury" - affecting her hands, arms, shoulders and neck;

• If the appellant had suffered physical injury, it was not a compensable physical injury - that is, it did not satisfy the conditions of compensability;

• If the appellant had suffered compensable physical injury, such injury was not causally linked with any paragraph (c) disorder from which the appellant suffered at the time of the hearing below.

The Judge's reasons

14 Conceptually, the question whether a trial judge was constrained to make particular findings is not determined by the judge's reasons for making different findings. That is so whether the judge's findings are unambiguous and path of reasoning is clear; or whether the converse is the case. Nonetheless, if a judge's findings are unambiguous, are clearly explained, and if they address pertinent issues, then it can be expected that they will be persuasive against the contrary position argued on appeal.

15 In the present case, the learned judge's reasons were carefully examined in argument in this Court. Such reasons should not be read as if they were a statute. It should also be acknowledged that trial judges work under great pressure; and, as I said earlier, that the way in which applications such as this are conducted is not conducive to the disposition of difficult questions. Even so, in a number of respects I have not found her Honour's reasons persuasive against the appellant's argument on the critical issues.

16 It is unnecessary to traverse in any great detail difficulties which I perceive in the reasons. But in deference to her Honour, and to submissions made on the appeal, I should mention a few matters.

17 First, at various points in the reasons there are observations to the effect that her Honour was not satisfied (using the terminology which I have adopted in [13]) -

• That the appellant had at any time suffered any physical injury affecting her upper limbs, shoulders and neck.

• That the appellant had at any time suffered compensable physical injury affecting those areas of her body.

• That if and in so far as the appellant had at any time suffered from a carpal tunnel syndrome, the same was compensable.

18 Those observations, in my respectful opinion, do not make it clear whether her Honour -

• Was not satisfied that the appellant had ever suffered physical injury affecting her upper limbs, shoulders and neck.

• Was satisfied that the appellant had suffered such an injury; but - not identifying the same - was not satisfied of its compensability.

• Was satisfied that the appellant had suffered physical injury, was satisfied that it was rightly described as a carpal tunnel syndrome, but was not satisfied that the same was compensable.

19 Second, if her Honour was not satisfied that the appellant had ever suffered physical injury affecting her upper limbs, shoulders and neck, I have not found it easy to understand the path of reasoning which led to that conclusion.

20 The appellant's evidence that she had suffered upper limb, shoulder and neck pain in the course of her repetitive work over a period of years was not directly challenged in cross-examination. Whilst failure to relevantly cross-examine was not necessarily decisive, it seems that the judge found that the appellant did experience such pain.[5]

21 Her Honour also found that the appellant had not made formal complaint at work, but had "continued working, including overtime". The latter finding was potentially relevant to compensability of injury. But it did not sensibly run in denial of the appellant's case that she had suffered physical injury. Particularly that was so once regard was had to the evidence of Dr El-Khoury - again not the subject of cross-examination - that the appellant had attended upon him with upper limb, shoulder and neck symptoms on a number of occasions between February 1994 and August 1997,[6] that he had advised his patient to rest and to initiate an accident compensation claim, and that the she had refused to do either such thing, giving reasons for such refusal.

22 Next, her Honour found, speaking as at the time of the hearing of the application, that the weight of evidence supported a diagnosis of chronic pain syndrome, and that there was then no organic basis for that pain. Each of those findings was clearly open. But it did not logically follow that there had never been an organic basis for the appellant's pain. Indeed, once accept that the appellant suffered from a chronic pain syndrome, the evidence was strong that the same had its origin in what had once been physical injury. Of this, more later.

23 Third, it may be that the learned judge was not satisfied that the appellant had suffered any physical injury because all her symptoms were to be attributed to psychiatric disturbance. To the extent that in support of such a conclusion her Honour relied upon the evidence of Dr El-Khoury, it appears to me that she misunderstood the doctor's evidence both written and viva voce.

24 Her Honour concluded, as I understand it, that the doctor had said that the appellant's main problem then was and always had been psychiatric, being a chronic myofascial pain syndrome which was the same as complex regional pain syndrome type 1 diagnosed by Dr Blombery.[7] But that, with respect, was not the gist of the witness's evidence. The doctor's report of 24 November 1997 shows that he initially diagnosed an overuse strain injury; and that he was then predicting development of a chronic pain syndrome. His viva voce evidence was entirely compatible with such a sequence having occurred.

25 Certainly the doctor said that it was difficult

"to connect [the appellant's] recent condition to the initial problem because [the appellant was] now focussed more to her loss of control rather than the initial injury";

and he spoke of the appellant having "loss of control of herself". But in those observations the doctor addressed an issue of causation - though obviously not from a legal standpoint. Such evidence did not suggest that the witness had abandoned his opinion that here had been physical injury at the outset. Indeed it is plain that the doctor was emphasizing a change in the appellant's condition, this being entirely compatible with the "initial problem" having been physically determined.

26 I must say that I do not understand, in all the circumstances of the doctor's evidence, the learned judge's observation that the doctor had "refer[red] hypothetically to a minor" initial injury or problem. (My emphasis).

27 Fourth, to my mind the judge's reasons addressing compensability of the paragraph (c) disorder which she found was established are not without their difficulties. On their face, the reasons at that point only address linkage between any compensable (physical) injury and the paragraph (c) disorder which her Honour found was established. But at least her Honour was not satisfied that there had ever been physical injury which was compensable. In that case no question of possible linkage arose. Perhaps her Honour was saying, in effect, that regardless whether the appellant had suffered any compensable physical injury, the same was not shown to be linked to the paragraph (c) disorder, the latter having arisen at the time of the appellant's dismissal. But that would give rise to its own problems - neither any compensable physical injury nor the paragraph (c) disorder being specified, and asserted temporal connection between dismissal and onset of the latter not itself denying sufficient causal linkage between the former and the latter.

Resolution of the appeal

28 The appeal is to be resolved on the basis of the concession by appellant's counsel noted at [11].

29 The judge found that the appellant was suffering from a disorder which met the criteria of paragraph (c). In my opinion she was obliged by the evidence so to find.

30 The judge did not plainly identify in her reasons the nature of the paragraph (c) disorder which she found to be established. There was material before her which entitled a finding that it was either or both a depressive/adjustment disorder and a chronic pain syndrome.

31 Her Honour was satisfied that the appellant was suffering from a chronic pain syndrome at the time of the hearing - which is not to say that it was the unidentified disorder to which I referred a moment ago. In my opinion that finding is impregnable.

32 The next question is whether the judge was constrained to find that the appellant had suffered compensable physical injury affecting her arms, shoulders and neck. In my opinion the material before her obliged that conclusion. I have referred to some of that material when discussing her Honour's reasons.

33 The threads of the material which was before the judge were these: First, the appellant's evidence, not challenged on cross-examination, that she had suffered symptoms in response to repetitive work over a period of years. True it is that the appellant was cross-examined as to her credibility in a number of respects. But the judge did not make a broad finding that the appellant was not a credible witness; and, specifically, she accepted that the appellant had suffered symptoms for a period of years.

34 Second, Dr El-Khoury's evidence revealed a history of complaints by the appellant of symptoms variably affecting her arms, shoulders and neck over a period of years preceding dismissal, described positive clinical signs which the doctor had observed on occasions, offered a diagnosis of physical injury, at least implicitly related the injury to circumstances of the employment, and gave explanation why the appellant had neither made complaints at work nor lodged an accident compensation claim before her dismissal. Significant aspects of that evidence were not subjected to challenge at all. The doctor did say in cross-examination that the appellant had occasionally suffered symptoms of depression before September 1997. But that cross-examination was directed to the compensability of the depression which was later evident. It was not put to show, nor did it show, that the arm, shoulder and neck symptoms of which the appellant had complained before September 1997 had been manifestations of a depression.

35 Third, Mr Mangos, the first doctor to examine the appellant on behalf of the respondent after her dismissal, diagnosed carpal tunnel syndrome and overuse syndrome of both arms, neck, back and shoulders, which he attributed to the appellant's repetitive work. He held to that opinion in his supplementary report.

36 Fourth, it should be accepted, on a view most favourable to the respondent, that negative nerve condition studies denied a diagnosis of carpal tunnel compression.[8] But that does not exclude the plaintiff having suffered an initial compensable overuse injury which affected her arms, shoulders and neck, an injury which in part mimicked carpal tunnel compression. There is, of course, a difference between carpal tunnel compression and carpal tunnel syndrome. It is of much significance, I consider, that each of the doctors who examined the appellant before she was overtaken by a chronic pain syndrome - that is, Dr El-Khoury, Mr Trevor Jones and Mr Mangos - diagnosed overuse injury and/or carpal tunnel syndrome; and, in the case of Dr El-Khoury and Mr Mangos, concluded that the same was compensable.[9]

37 Fifth, Mr Rustomjee's first report shows that by late 1997 the appellant was displaying a chronic pain syndrome affecting her neck, shoulders and arms. This had been forecast by Dr El-Khoury in his report dated 24 November 1997. Thereafter, the appellant was examined by a number of doctors practising in a number of specialities. Reports spanned the period March 1998-May 2003. Their contents need not be addressed seriatim. Generally speaking they focused upon the particular doctor's speciality. Most often they expressed opinion concerning the appellant's then-current status. In some instances they recorded a history inconsistent with the history contemporaneously documented by Dr El-Khoury[10]. There are instances in which they opined upon the connection between the appellant's chronic pain syndrome and her depressive/adjustment disorder - sometimes with and sometimes without the advantage of a reliable history. In other instances they apparently treated the occurrence of physical injury at the outset as a given.[11] Overall, none of them provides any persuasive reason for rejecting the contemporaneous and near-contemporaneous material to which I have referred - material which is persuasive that the appellant initially suffered compensable physical injury. I include in that observation the first report, dated 12 March 1998, provided by the rheumatologist engaged for the respondent, Dr Karna. It illustrates the problem of assessment which by then was present. The doctor said this:

"I have little doubt that she has a fibromyalgia type pain syndrome involving neck and shoulder girdles and upper arms in particular, wherein she has superficial skin hypersensitivity, dermatographia and all this occurring in the context of a poor sleep pattern and other stressors. I see this as being a psychological sequelae [sic] to whatever initial overuse injury she may have sustained and it has also been perpetuated by the ongoing medico-legal processes and stress."

That problem of assessment never diminished.

38 The final question which must be decided is whether the judge was compelled to conclude that a paragraph (c) disorder had been sufficiently caused by compensable physical injury.

39 Once accept that the appellant sustained, at the outset, compensable physical injury affecting her arms, shoulders and neck, that the appellant was suffering at the time of the hearing below from chronic pain syndrome affecting those areas, and that chronic pain syndrome is a paragraph (c) disorder, it would be difficult not to discern in that sequence the probability of sufficient causal linkage between the initial injury and the later psychiatric syndrome. But apart from that sequence of events, amongst the many doctors whose reports were before the judge, each of Dr El-Khoury, Mr Rustomjee, Mr Karna, Dr Stern, Professor Davis, Dr Lee and Dr Blombery (in date order) diagnosed the appellant as suffering from a chronic pain syndrome[12] affecting her arms, shoulders and neck. Each of those doctors save Drs Lee and Blombery opined that the syndrome was psychologically based. Dr El-Khoury, Mr Karna, Professor Davis and Dr Stern postulated a link between initial physical injury[13] and chronic pain syndrome. So did Dr Blombery - although, as I have said, he treated the syndrome as having an organic explanation. Only Mr Rustomjee made no reference to the interposition of compensable physical injury between employment and the development of chronic pain syndrome.[14]

40 In my opinion, in the state of the material thus described, the judge was obliged to be satisfied that the appellant had established a sufficient causal linkage between initial compensable physical injury and chronic pain disorder, the latter meeting the criteria of paragraph (c). A possible variant finding concerning chronic pain syndrome would have been no better for the respondent. Were it concluded that the syndrome had a physical explanation, the condition, no doubt serious, would fall within paragraph (a) rather than paragraph (c).

41 Her Honour may also have found that the appellant had established the presence of a depressive/adjustment disorder. That would be the logical development of her Honour's reference to the opinions of Drs Datta[15] and Shaw and her closely following conclusion that the appellant was probably suffering from a (non compensable) paragraph (c) disorder. But whether or not her Honour found that the plaintiff had established the presence of a depressive/adjustment disorder fitting paragraph (c), the evidence was overwhelming that such a condition was present in that degree.

42 Having regard to my conclusion that the judge was obliged to be satisfied that the appellant had established the presence of a compensable chronic pain syndrome which satisfied the criteria of paragraph (c), it is unnecessary to consider whether the judge was obliged to be satisfied that the appellant's depressive or adjustment disorder was sufficiently linked with compensable physical injury. My provisional opinion is that the judge was not so compelled.

Orders

43 In my opinion leave to appeal should be granted nunc pro tunc, the appeal allowed and an order made granting the appellant leave to bring her desired proceeding. In light of the questions posed for this Court's determination, and the way in which I would resolve them, I see no basis for remitting the appellant's substantive application to the County Court for re-hearing.

[1] Strictly speaking, the application was not an application under paragraphs (a) and (c) of the definition of "serious injury" in s. 135A(19). It was an application under s. 135A(4)(b). That was common ground. It does not affect the substance of the judge's order.

[2] Cf Richards v. Wylie [2000] VSCA 50; (2000) 1 VR 79 at [16], [17] 86-88 per Winneke, P., at [23], [24] 89 per Brooking, J.A., and at [28] 90 per Chernov, J.A.

[3] [2004] VSCA 217 particularly per Callaway, J.A. at [23], [25], [26].

[4] Subject to an argument sought to be raised on appeal which the Court considered had not been sufficiently raised below, and therefore did not permit to be put.

[5] "... she had had symptoms for some four years ...".

[6] Not simply "sore hands", the description given by the judge.

[7] Dr Blombery did not in terms diagnose the appellant as suffering from complex regional pain syndrome; rather, his diagnosis was cervico-brachial pain affecting both arms and neck, and secondary depression.

[8] I so conclude notwithstanding that the plastic and hand surgeon, Mr Stapleton, whose opinion apparently appealed to the judge below, was uninfluenced by the negative studies, as was Mr Mangos. Compare the 1 June 1998 report of the rheumatologist, Mr Karna, relied on by the respondent; although I doubt that the Mr Karna's description of the tests as "quite accurate" suggests complete reliability.

[9] Mr Jones offered no opinion in that connection.

[10] For example, Dr Datta, the treating psychiatrist, apparently took no history at all of symptoms affecting the appellant's arms, shoulders and neck.

[11] For example Drs Kaplan and Stern.

[12] Or a variant description implying a like disorder.

[13] In the case of Mr Karna and Professor Davis, assuming its occurrence.

[14] Dr Lee offered no opinion on the causation issue.

[15] To whose later and different opinion the judge did not advert.