Daws V Moreland City Council

Daws V Moreland City Council

IN THE COUNTY COURT OF VICTORIA / Revised
Not Restricted

AT Melbourne

CIVIL DIVISION

DAMAGES AND COMPENSATION

SERIOUS INJURY DIVISION

Case No. CI-09-04082

VALDA DAWS / Plaintiff
V
MORELAND CITY COUNCIL / First Defendant
And
DI FAZIO / Second Defendant

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JUDGE: / HIS HONOUR JUDGE O'NEILL
WHERE HELD: / Melbourne
DATE OF HEARING: / 11 and 15 June 2010
DATE OF JUDGMENT: / 28 June 2010
CASE MAY BE CITED AS: / Daws v Moreland City Council & Anor
MEDIUM NEUTRAL CITATION: / [2019] VCC

REASONS FOR JUDGMENT

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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – s.134AB – injury to right foot and ankle – development of Chronic Regional Pain Syndrome – nature and extent of consequences – disentangling psychological from physical – nature and extent of work capacity.

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APPEARANCES: / Counsel / Solicitors
For the Plaintiff / Mr J R Moore QC with
Ms B Y Knoester / Zaparas Lawyers
For the Defendants / Mr B R McKenzie / Wisewould Mahony
COUNTY COURT OF VICTORIA
250 William Street, Melbourne / !Undefined Bookmark, I

HIS HONOUR:

Preliminary

1 The plaintiff suffered a modest injury to her right foot and ankle in the course of her employment with the first defendant on 25 July 2007. Shortly thereafter, the plaintiff developed what most treating doctors accept as Chronic Regional Pain Syndrome (“CRPS”).

2 The plaintiff alleges she is in constant pain and is significantly restricted in a range of activities, including walking, standing, driving and, in particular, is restricted in the hours and type of work she is able to undertake.

3 This is an application for leave to bring proceedings pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of employment with the first defendant on 25 July 2007.

4 Mr Moore, on behalf of the plaintiff, identified the body function said to be lost or impaired as the right ankle or right lower limb.

5 The application was brought under sub-section (a) of the definition of “serious injury” contained in s.134AB(37) of the Act. At the outset, leave was sought in respect of both pain and suffering and loss of earning capacity, however, I ruled that s.134AB(38)(f) of the Act, amended by s.57(8) of the Accident Compensation Amendment Act 2010, had application.[1] It was conceded by Mr Moore that in such circumstances, and given the plaintiff’s current earnings, she fell foul of the formula prescribed in s.134AB(38)(f). As such, the application is brought in relation to pain and suffering only.

6 In order to succeed, the plaintiff must prove, the onus being upon her, that the consequences emanating from the loss or impairment of the body function of the ankle are at least “very considerable” and more than “significant” or “marked”. I must consider the consequences to this particular plaintiff, viewed objectively, arising from injury. I must also compare the impairment arising from injury in this application with other cases in the range of possible impairments or losses of the body function of the ankle.

7 The plaintiff, her treating general practitioner, Dr Baglar, and her treating specialist, Dr Blombery, were called to give evidence and be cross-examined. In addition, affidavits of the plaintiff, various medical reports and radiological reports were tendered into evidence. I have read all the tendered material.

Relevant Background

8 The plaintiff was born in 1953 and is now aged fifty-seven. She attended secondary school until sixteen years of age and then worked in various jobs until she married in 1973. She was out of the workforce for a period when her children were small. She then returned to work in a number of areas, mostly of a retail nature, until she commenced work with the first defendant in August 2002 on a part-time basis, working five to six days per week, six and a half hours per day. Initially, she was employed as a home carer, assisting clients with various domestic activities. However, later in 2002, she obtained qualification as a personal care attendant, and attended various clients’ homes to assist in the personal care of mostly elderly clients with health problems.

9 In addition, the plaintiff worked several nights per week as a carer for a nursing agency, Alpha Nursing. This was over the period from June 2006 until the plaintiff’s injury on 25 July 2007. The plaintiff stated that she enjoyed the work both for the first defendant and for Alpha and enjoyed her contact with the clients.

10 The plaintiff was otherwise healthy, and enjoyed a wide range of domestic and recreational pursuits.

The Incident and its Consequences

11 On 25 July 2007, the plaintiff attended a client’s house in Pascoe Vale. As she walked from her car, she tripped and fell on a mound of concrete near the kerb. She felt a sharp pain in her right foot and ankle and observed the area to be swollen and red. She drove to her general practitioner, Dr Hakan Baglar, and an x-ray was undertaken on 30 July 2007.[2] This showed an avulsed traumatic bone fragment, although the report notes it was uncertain whether that fragment was as a result of a recent or old injury.

12 The pain in the plaintiff’s right ankle did not subside and she continued to see Dr Baglar. In 2007 he referred her to Mr John Owen, an orthopaedic surgeon.[3] He received a history that the plaintiff had been using crutches and he observed that the area of her mid foot was very tender. An MRI scan performed on 9 October 2007 excluded any recent injury,[4] although there was tearing of an ankle ligament associated with what was said to be a small old avulsion injury to the tip of the lateral malleolus. Mr Owen was unable to detect any structural source for the plaintiff’s pain and suggested she attend Dr Terence Lim, a chronic pain expert. Mr Owen thought the plaintiff suffered CRPS.

13 In November 2007, the plaintiff saw Dr Lim, who noted allodynia to light touch over the foot and ankle with “exquisitely tender muscular trigger points affecting muscles of the three compartments of her leg … “. He obtained a history from the plaintiff of periods of discolouration and swelling of the area and considered the plaintiff may be suffering from CRPS. He recommended a nuclear medicine bone scan, but because of the plaintiff’s concern about the effects of radiation, this was not undertaken.

14 The plaintiff had remained off work for several weeks after the incident and returned on alternative duties, working approximately two hours per day. There was some improvement in her condition by late 2007, but the plaintiff was still significantly restricted in her ability to walk, stand, drive and attend to her various tasks at work.

15 In January 2008, the plaintiff’s general practitioner referred her to Dr Clayton Thomas at the Dorset Rehabilitation Centre. Again, Dr Thomas received a history from the plaintiff of swelling and discolouration in the area, and he noted the plaintiff walked with an antalgic gait with minor wasting of the right calf. He noted allodynia to the foot and quite marked hyperalgesia over the foot, up to the mid calf. He determined the plaintiff was suffering CRPS Type I,[5] and prescribed Endep, together with Prednisolone. He noted the plaintiff was highly motivated to improve and appeared reasonably robust emotionally.

16 In March 2008, the plaintiff was referred to Dr Peter Blombery, a vascular physician specialising in CRPS, by her general practitioner. By this time, the plaintiff stated that her foot was swollen and changing colour. She experienced numbness, pins and needles and shooting pains into the foot. The foot had a blotchy appearance and had temperature changes over the surface. Upon examination, Dr Blombery noticed a difference in temperature of one degree between the left and right feet. He considered that the right foot had a “more mottled” appearance. Dr Blombery concurred with the diagnosis of the various other treating specialists that the plaintiff suffered CRPS. He prescribed Epilim and Clonidine, to which the plaintiff had side-effects. He trialled the medication, Lyrica, and recommended the plaintiff have a series of three Guanethidine injections in an attempt to remove what he described as sympathetically maintained pain. Dr Blombery told the plaintiff that the prospect of the injection blocks reducing her pain was approximately fifty per cent. In evidence, the plaintiff stated she prefers the use of alternative medicine, and was concerned about the chemicals used in the blocks. As a consequence, she refused Dr Blombery’s suggested treatment.

17 In May and July 2008, the plaintiff returned to see Dr Thomas and spent approximately four weeks at the Dorset Rehabilitation Centre. She undertook physiotherapy, hydrotherapy and occupational therapy. These all caused an increase in her foot pain.

18 The plaintiff ceased treatment with Dr Blombery, who was able to offer nothing further, but returned for examination by him in May 2010 for the purpose of this application.[6] On that occasion, as on previous occasions, he was not able to detect any major autonomic disturbance to the right foot and concluded there were, apart form some temperature changes, no objective signs of CRPS. Dr Blombery, however, accepted the plaintiff’s history of changes of colour and temperature, swelling, and exquisite pain over the site. He stated these were all classic symptoms of CRPS Type I. It is clear from Dr Blombery’s various reports that he considers the condition has an organic, and not a psychological basis.

19 The plaintiff’s condition has not improved through to the present time. She complains of intense pain, fluctuating in severity in the right foot and on occasions has to stop all exercise. She is unable to stand for prolonged periods and the pain upon standing becomes severe after ten minutes. She gets pins and needles in the sole of the foot and experiences cramping.

20 She is reluctant to use prescription medication and prefers natural therapies, including various vitamin supplements and fish oil. She states that she has to move her foot and ankle regularly to improve circulation, and if this does not occur her ankle swells and becomes mottled in colour.

21 She continues to see Dr Baglar, mainly for the provision of WorkCover Certificates, and no longer sees the various specialists she had previously consulted.

22 She is able to manage most of her housework although obtains assistance from a family member. She does drive, although not for long periods, and mostly uses her left foot for the accelerator and brake. She uses a walking stick from time to time. She suffers rashes on her foot which Dr Blombery described as consistent with CRPS as the lowered temperature can dry out skin in the affected area.

23 Until recently, the plaintiff continued working for the first defendant, working approximately three days per week in administrative duties, with time off when the ankle became swollen and painful. She was able to increase her hours at work up to five hours per day, five days per week. Recently, she received a notice from the first defendant that her employment was to be terminated.

24 She has always had an interest in matters psychic. In April 2008, she commenced work from home for a company, Astral Answers. She earns between $1,000 and $1,200 per month receiving telephone calls from clients of Astral, during which she gives psychic readings. The number of calls per day varies. Sometimes there are few and on other occasions there are a significant number. She is able to cope with this work as she is able to work from home, elevate her foot and move it around as needed. She hopes to increase her hours of work, possibly working five days a week, depending upon the availability of work. At the present time, she is working approximately fifteen hours per week. She states that the work is somewhat draining and she becomes stressed on occasions.

25 Although using alternative medication, the plaintiff takes Panadeine Forte, up to eight to ten per week when the pain is bad. She undertakes meditation and yoga.

26 In cross-examination, the plaintiff accepted that she suffers from a number of psychological symptoms, including sadness, difficulty with sleep and general frustration. She stated there were a range of social activities she was able to undertake, including visiting friends and family, is able to read and does some drawing. She has difficulty standing for more than twenty minutes and regularly has to seek support from some structure. The symptoms in her foot increase with activity. Generally the situation has not improved over the years, and no treatment offered has been successful in significantly relieving the symptoms of pain.

Medical Opinions

27 Dr Baglar, the plaintiff’s treating general practitioner, submitted various reports[7], and gave viva voce evidence. I found him an impressive witness. He has treated the plaintiff from 25 July 2007 through to the present time. He received a history from the plaintiff of pain in the right foot and ankle which he described as unrelenting, and noted the diagnosis of CRPS by Dr Owen. He described the plaintiff as being prepared to push herself in order to return to work despite the pain she was suffering. He did not think that she was fit for any form of employment and described her part-time work on modified duties for the defendant as “very artificial”. In cross-examination, Dr Baglar accepted that the plaintiff could do work on modified duties, and restricted hours, providing she could take rest breaks when needed, was not required to walk long distances and was able to keep her right foot elevated.

28 He confirmed that the plaintiff had ceased using Lyrica and Tramadol as medication and that he had recently only prescribed Voltaren, an anti-inflammatory, and Panadeine Forte. He noted the plaintiff’s preference for natural remedies and stated that he would not interfere if the patient was comfortable with the treatment. He further accepted the plaintiff had some symptoms of depression which was natural, given the pain she suffered. He had not, however referred the plaintiff for treatment by a psychologist or psychiatrist, nor prescribed anti-depressant medication.

29 Dr Lim treated the plaintiff on one occasion and provided a report of November 2007.[8] He received a history of pain, discolouration and swelling of the foot. He considered the plaintiff may be suffering CRPS.

30 In his various reports of 2008,[9] Dr Clayton Thomas noted the plaintiff was suffering CRPS Type 1 and referred her for assessment at the Dorset Rehabilitation Centre. At the Centre, she received physiotherapy and occupational therapy.

31 Dr Peter Blombery, vascular physician, gave evidence and provided a number of reports.[10] He described CRPS as a physically-based condition with a number of diagnostic criteria, including:

“1.The presence of an initiating noxious event, or a cause of immobilisation.

2.Continuing pain, allodynia or hyperalgesia with which the pain is disproportionate to any inciting event.

3.Evidence at some time of oedema, changes in skin blood flow, or abnormal sudomotor activity in the region of pain.

4.This diagnosis is excluded by the existence of conditions that would otherwise account for the degree of pain and dysfunction.

… .”[11]

32 Dr Blombery stated the plaintiff had all of the diagnostic criteria. He gave evidence and confirmed he advised the plaintiff that the prospects of successful treatment by Guanethidine blocks was approximately fifty per cent and that the plaintiff refused the treatment. Further, that there was little objective evidence of CRPS but that he relied on the history given to him by the plaintiff. He said that treatment by Guanethidine blocks would be now unlikely to give any benefit. He denied there was any significant psychological component to the plaintiff’s complaints and did not agree that a resolution of the proceeding would significantly improve her condition. He did not agree with the opinions of Mr Marshall, and Dr Littlejohn, who saw the plaintiff on behalf of the defendants that the plaintiff either did not have the disorder or that it was psychological in origin.

33 Mr Charles Flanc, vascular and general surgeon, saw the plaintiff in 2009 and 2010.[12] He concluded that despite there being no objective signs of CRPS at his various examinations, he accepted the history from the plaintiff, and the changes in temperature found by Dr Blombery, and accepted a diagnosis of CRPS. He thought the plaintiff could undertake part-time employment. It was likely, he said, that the condition would be permanent.

34 Likewise, Mr Justin Hunt[13], orthopaedic surgeon, despite little in the way of objective signs, accepted the diagnosis of CRPS which he considered to be an organically-based disorder. He also considered the symptoms likely to last into the foreseeable future.

35 On behalf of the defendants, the plaintiff was examined by Dr David Bolzonello[14], sports physician, in April 2008. He found the plaintiff’s complaints of pain and restriction not consistent with any structural problem. He thought her pain was neuropathic. Although he could not find any objective signs, he noted that the condition of CRPS, while supported in the literature, was difficult to assess as a diagnosis in the plaintiff’s case. He thought the plaintiff could work on a full-time basis. He did not think psychological issues clouded the picture.