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An underground miner who presented with what one specialist described as the most obviously fake condition he had seen in his 40 years of medical practice has won nearly $2 million in damages for the accident it resulted from.
Fosterville Gold Mine, 20 km east of Bendigo, has extracted over 3.5 million ounces of gold since 2005. It employs more than 800 people, including – up until May 2018 – Patrick McGiffin.
Working twelve-hour shifts – seven days on and seven days off – McGiffin’s “nipper” role was to maximise the efficiency of a “jumbo” machine to which he was assigned.He did this by being on the ground to load bolts into one of its two booms attached to the jumbo so its operator could drive them into the several hundred holes they would drill in the wall or the roof of the mine each shift.
To comply with safety protocols, the nipper must stay behind the machine unless he sees the operator move back from the boom control levers and receives the visual acknowledgement from him that he may move forward.
In March 2018, an accident occurred after McGiffin moved forward of the machine when he believed its operator had signalled with a nod of his head that he could do so.
At the same time, the operator inadvertently bumped a lever that caused a boom to swing towards McGiffin such that the bolt at its extremity struck him on the head and right shoulder.
He was treated at Bendigo Hospital and by his GP before returning to work about a week later on alternative duties until May, when he ceased work altogether.
McGiffin’s symptoms of constant severe pain radiating from the right shoulder down to his fingers and a total lack of movement in his shoulder were entirely disproportionate to the blow he had received.
When his condition was not improved by an arthroscopic decompression in the latter part of 2018 or by repeated hydrodilation of the shoulder joint, treating orthopaedic surgeon Brendan Soo suspected he had developed Complex Regional Pain Syndrome.
This diagnosis was confirmed in June 2019 by his colleague Thomas Kossmann who noted McGiffin’s right hand and forearm had a different skin colouration, sweating pattern and hair growth compared to his left arm.
He thereafter saw numerous specialists, most of whom noted the differences that Kossman had recorded. Some recorded no such differences, and some others also noted the right arm was also hotter to touch and appeared to be swollen.
All such anomalies between one limb on the other are recognised features of a CPRS condition and comprise the elements of the only available diagnostic tool, the Budapest criteria.
When his compensation claim came before Justice Steven Moore in the Victorian Supreme Court, the employer finally admitted fault for the accident but denied he had any CRPS condition. It also claimed McGiffin should share some of the faults.
Justice Moore was satisfied, having regard to the circumstances, that there was no contributory negligence on the part of the mine worker.
He then turned his mind to the unusual condition that beset the worker.
Mr McGiffin’s evidence was that his right shoulder and arm would not move, and his right hand was fixed in a clawed grip which he could not open, something that the employer’s expert seized on as evidence of malingering.
Musculoskeletal physician David Vivian took the view from an initial telehealth consultation that he was “consciously simulating his condition”. In a later phone call with the mine’s lawyer in October 2021, describing the condition as “non-organic” and “factitious”, he suggested, “the only way you are going to get him to move his arm is to catch him doing it on surveillance or to manipulate it under anaesthetic”.
He went on to say he had never seen “so obvious a non-organic presentation in his 40 years of medical practice”.
In Justice Moore’s view, the expert opinion that Dr Vivian expressed in all three of his reports was coloured by the suspicion he formed on that initial occasion.
Neither Vivian nor occupational physician Joseph Slesenger supported the CRPS diagnosis, with the latter stating that if it had existed, it had fully resolved by the time he examined the patient in May 2021.
Slesenger’s conclusion was fortified by the “absence of wasting around the right shoulder and right upper limb” and a suspicion that he was exaggerating his symptoms and was, in fact, engaged in heavy work.
Justice Moore was not impressed that both these experts – engaged by the defendant – substantially discounted the history the mine worker had provided and failed to apply the multifactorial Budapest criteria, which Dr Vivian described as “not all that good, it is a consensus statement”.
The court preferred the evidence of physician Peter Blombery – with more than 30 years experience in treating CRPS patients – who assessed McGiffin as a genuine case albeit “with some exaggerated pain behaviour”.
He explained the lack of wasting in the patient’s forearm as being the result of the arm being held in a fixed, clenched position with a continuous engagement of his muscles.
Both Blombery and musculoskeletal and pain specialist Robert Gassin – also with years of experience dealing with CRPS patients – applied the Budapest criteria and confirmed the condition overwhelmingly met all four required elements, of which muscle wasting was not one.
A similar divergence arose between psychiatrist Professor George Mendelson and his colleague Justin Lewis.
Because Mendelson’s report was premised upon McGiffin not having a CRPS injury, his view – that the miner had no occupationally limiting psychiatric condition – was rejected, and that of Dr Lewis – who diagnosed a major adjustment disorder – was accepted.
Accepting McGiffin’s testimony and that of his fiancé Heidi Tresize as forthright and direct, Justice Moore ruled “the weight of evidence supports a finding that Mr McGiffin no longer has the capacity to perform his former, or any other, employment and is likely to have no capacity to work into the foreseeable future.”
General damages were assessed at $450k; and past income loss of $295k; future income loss for the 29-year-old at $1,207k, making up a total award of $1,952,618.
McGiffin v Fosterville Gold Mine [2022] VSC 665 Moore J, 4 November 2022
Categories: Mining Injury