VIC Workers’ Compensation: Judgment in favour of worker diagnosed with Complex Regional Pain Syndrome – McGiffin v Fosterville Gold Mine [2022] VSC 665 

The Victorian Supreme Court recently considered a claim for damages made by a worker whom had been diagnosed with complex regional pain syndrome, allegedly arising as a result of his employment. The judgment offers an insight into the process adopted by the Court when attempting to reconcile competing expert medical evidence.  

Background

The Plaintiff, Patrick McGiffin, worked as a ‘nipper’ at the Fosterville Gold Mine, located near Bendigo. The Plaintiff had been working for the Defendant, Fosterville Gold Mine Pty Ltd, for a period of around three months prior to the subject incident. On 2 March 2018, the Plaintiff was struck on the head and right shoulder by a large rotating bolt that was attached to a boom on a machine being operated by a co-worker.  

 The Plaintiff undertook alternate duties until 29 May 2018, when he ceased work. The Plaintiff had not returned to work as at the date of trial.  

Parties’ Position at Trial

Plaintiff 

The Plaintiff contended that he had suffered, and continued to suffer, from a condition known as complex regional pain syndrome, a syndrome characterised by ongoing regional pain that is seemingly disproportionate, in either duration or severity, to the usual cause of the trauma. He further contended that he suffered from a psychological condition referrable to the subject incident.  

In support of his allegation that he suffered complex regional pain syndrome as a result of the subject incident, the Plaintiff relied upon the evidence of Dr Peter Blombery, a practitioner with over thirty years’ experience treating the syndrome. Dr Blombery opined that whilst the Plaintiff exhibited some ‘exaggerated pain behaviour’, his was a ‘genuine case’.  

Defendant 

The Defendant contended that the Plaintiff had not proved, to the requisite standard, that he suffered from complex regional pain syndrome, nor a recognisable mental illness. The Defendant further contended that a finding of contributory negligence was open to the Court.  

The Defendant relied upon the evidence of Dr Joseph Slesenger and Dr David Vivian in disputing the Plaintiff’s diagnosis of complex regional pain syndrome. Dr Vivian was particularly critical of the Plaintiff’s presentation, opining that he had not seen “so obvious a non-organic presentation in his 40 years of medical practice.” 

With respect to its allegation that the Plaintiff had contributed to the circumstances of the subject accident, the Defendant alleged that the Plaintiff had moved into a clear position of danger relative to the machine without first obtaining permission from the operator of that machine.  

Court’s Consideration of Expert Medical Evidence

With respect to the competition between the expert medical evidence, Moore J was unconvinced by the evidence provided by the experts called by the Defendant in respect of the Plaintiff’s alleged complex regional pain syndrome. Of note, in the Court’s view, was the lack of reliance by Dr Vivian upon specific criteria, known as the Budapest criteria, in assessing the Plaintiff’s condition. Moore J opined that Dr Vivian’s evidence was undermined by his scepticism and criticism of the appropriateness of the Budapest criteria as a diagnostic tool for complex regional, with it being “uncontroversial” that the criteria “is and has been used by pain physicians internationally to diagnose CRPS type 1 for at least 15 years”. Further, Moore J opined that Dr Vivian’s opinion had been coloured by his view that the Plaintiff was consciously simulating his condition. 

In contrast, Moore J found the Plaintiff to be a credible witness insofar as his reporting of his symptomology and was ‘impressed’ by the evidence provided by Dr Blombery and Dr Gassin, who both opined that the Plaintiff was suffering from complex regional pain syndrome.  

Thus, the Moore J concluded that the Plaintiff suffered from complex regional pain syndrome.  

Court’s Consideration of Liability Submissions

Moore J concluded that the system of work that the Plaintiff was engaging in at the time of the subject incident was “inherently flawed and unsafe”. As the Plaintiff was “doing no more or less than what the system required”, there was no room for a finding of contributory negligence.  

Judgment and Quantification of Damages

The Court found in favour of the Plaintiff. An award of damages for pain and suffering was made in the sum of $450,000.00, for past economic loss in the sum of $295,072.00, and a sum of $1,207,546.00 for future economic loss.  

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