Al Hayeek v Vadpak Transport Division Pty Ltd
[2019] VCC 2045
•13 December 2019
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-00158
| MOHAMAD AL HAYEEK | Plaintiff |
| v | |
| VADPAK TRANSPORT DIVISION PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE MACNAMARA | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 25, 26 November 2019 | |
DATE OF JUDGMENT: | 13 December 2019 | |
CASE MAY BE CITED AS: | Al Hayeek v Vadpak Transport Division Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2045 | |
REASONS FOR JUDGMENT
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Subject: SERIOUS INJURY APPLICATION
Catchwords: Serious Injury application; whether plaintiff’s pain and restrictions are genuine; whether have an organic basis; definition of “serious injury”; paragraphs (a) and (c)
Legislation Cited: Ss 3, 325, 327 Workplace Injury Rehabilitation and Compensation Act 2013; s143 Evidence Act 2008
Cases Cited:Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46; Jovceva v Transport Accident Commission [2019] VSCA 105; Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Mobilio v Balliotis [1998] 3 VR 833
Judgment: Leave granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. Mighell QC QC with Mr M Fogarty | Slater & Gordon |
| For the Defendant | Mr W. R. Middleton QC with Ms B. A. Myers | Hall & Wilcox |
HIS HONOUR:
Background
1 The plaintiff, Mr Al Hayeek, seeks leave under Part 7 of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) to bring a damages claim against his former employer, Vadpak Transport Division Pty Ltd (“Vadpak”), for alleged negligence relative to an injury which he said he suffered on 10 May 2016.
2 Mr Al Hayeek is aged 36. He travelled to Australia from his native Syria in 2009. (Plaintiff’s Court Book (“PCB”) 1-2) In Syria, he had commenced a university course studying Material Engineering, but he said he “did not like it and found the study hard. I quit the first year in.” (Ibid) In the four years prior to his migration to Australia – that is, 2005 to 2009 – he operated a shop selling mobile telephones and other electronic equipment. He said he sold mobile phones, mobile phone accessories and some computers. It was a “small business”. (Transcript (“T”) 26, Line (“L”) 27-T27-L13). From 2009 to 2014, following a six month return visit to Syria because Mr Al Hayeek “was missing [his] family”, Mr Al Hayeek was supported by Centrelink payments. (T66, L5-7)) Mr Al Hayeek travelled to Australia in 2009 with his wife “on a spousal visa”. (T2, L23-24) By 2014, Mr Al Hayeek was the holder of a licence entitling him to drive semi-trailers which still remains current. (T29, L19-20 - T30, L4) His work for the defendant, Vadpak, was his first and only employment in Australia.
3 According to Mr Al Hayeek, his employer was based in Shepparton and he made deliveries to Melbourne suburbs such as Laverton and Dandenong, and also to the cities or towns of Mansfield, Wodonga, Ballarat and “other rural centres”. His work day, including compulsory breaks, commonly extended over 12 hours and sometimes as long as 15 hours. (PCB 2, paragraph 3) According to Mr Al Hayeek, the work was heavy, including the movement of some heavy items such as refrigerators which were not on pallets and therefore could not be loaded by forklift trucks. He said throwing tarpaulins over loads and tying them down “was also hard work”, as was lifting “heavy gates in to (sic) slots on the side of the truck”. He said he was also required to unload quantities of bubble wrap and white foam plastic which were heavy. (Ibid, paragraph 4)
4 During the course of his work, he suffered occasional back pain, which he attributed to the heavy work and being required on occasions to sleep in the truck. (PCB 2-3, paragraph 5) On 10 May 2016, he was making a delivery to an establishment in Shepparton known as “Spare Change”, “where we typically delivered furniture, white goods, driers, microwaves and the like”. He had to unload “large heavy boxes from above head height” and had to twist as he placed them on the pallet. As he twisted, he “felt low back pain which subsequently went down my leg, and shortly afterwards suffered neck pain with some right hand numbness”. (PCB 3, paragraph 6)
5 In cross-examination, Mr Al Hayeek said that his neck pain came on about a week after the incident, or perhaps four or five days. (T35, L30-T36, L1) Mr Al Hayeek completed an “Accident Report Form” dated 19 May 2016 and he signed a Worker’s Injury Claim Form under the WorkCover system dated 3 June 2016.
6 The writing added to this standard printed form appears to have been inserted by Mr David Damianopoulos, a director of the defendant company who signed on behalf of the employer. This claim form gave a somewhat different impression. It described the injury not as an event occurring on 10 May, but rather, as “physical stresses and strains throughout the course of my employment including loading, unloading and truck driving”. (Defendant’s Court Book (“DCB”) 129) The injury was said to have occurred on some date in April 2016, with Mr Al Hayeek stopping work on 10 May 2016. (Ibid)
7 Mr Al Hayeek sought medical attention at the Delta Medical Centre in Shepparton. According to a report from Dr Mazen Albatat, Mr Al Hayeek “presented with severe, sudden low back pain after work injury on 10/05/2016”. (PCB 19)
8 Mr Al Hayeek was referred for treatment to Dr Talib Tahir, a consultant rheumatologist and physician. He was also referred to a Dr Gorai, a neurologist who was to carry out nerve conduction studies, but, in the event, Mr Al Hayeek did not take up that referral. He was also referred for treatment and investigation to Mr Yagnesh Vellore, a neurosurgeon and spine surgeon. (PCB 3, paragraph 7) In the period September to December 2016, he travelled to Syria, apparently because of a serious illness affecting his father. (T38, L2-8) As at the date of the swearing of Mr Al Hayeek’s first affidavit in this proceeding, namely 29 August 2018, he said that he was separated from his “ex-wife”, but that they resided in the same property with their two children then aged 10 and 6. (PCB 1, paragraph 1) According to his second affidavit sworn 12 November 2019, however, “In September 2019 [his] ex-wife obtained an intervention order against [him] preventing [him] from contact with her and [their] children, except with her permission by text message”. (PCB 8, paragraph 5) As a result, he now has no fixed abode, and as at the date of the affidavit, had only seen his children “briefly on two occasions since the intervention order was made”. (Ibid)
9 Mr Al Hayeek says that he has now:
“been left with constant and unremitting pain in [his] low back and neck. The pain in [his] back spreads down [his] legs, sometimes more in the left and the pain in [his] neck seems to spread into [his] arms, in particular [his] left shoulder and arm.” (PCB 3, paragraph 8)
10 He says that he can no longer sit or stand comfortably for long periods and is restricted in “bending, lifting, carrying, squatting and crouching”. (Ibid) He said that he had previously been physically active, but his pain is now worse with activity. It eases with rest and painkillers. He is restricted in the distances he can walk, he can no longer swim as used to do, and he can only manage “sedate” hydrotherapy. Whilst his work used to have him driving long distances, he said he is “now … restricted to driving locally only.” He needs a friend to drive him longer distances. He cannot undertake gardening and requires help from friends. He is restricted in carrying heavy shopping and now has poor sleep. (PCB 4, paragraph 8) He said as a result of his “constant and unremitting pain and restrictions in [his] activities”, he has been left depressed and anxious. He said he cannot work and finds this soul destroying. (Ibid, paragraph 9)
11 After his injury, he said he is “no longer an employment proposition”. He has very limited capacities in spoken and written English and no trade qualifications. Before his accident, he was “earning about $1,270 per week”. (PCB 5, paragraph 10)
12 Mr Al Hayeek says that in receiving continuing treatment he attends hydrotherapy, takes Celebrex, Lyrica, Panadeine Forte, and is also required to take Nexium to protect his stomach from the side effects of the analgesics. (Ibid, paragraph 11) Mr Al Hayeek has not worked since May 2016. (PCB 9, paragraph 12) He has been taking courses to improve his written and spoken English, but with only limited success. (Ibid, paragraph 14) He is now unable to engage in sports such as soccer which he used to enjoy. He is restricted in his ability to play games with his children, even though under the present regime he has limited opportunity to have contact with them. (PCB 10) He complained of being woken by his neck and back pain “at least once or twice a night”. (Ibid, paragraph 15)
13 Mr Al Hayeek’s treatment is now coordinated by general practitioner, Dr Bassam Jallo, who carries on practice at the same clinic as Dr Albatat. He sees them “at least once a month”. (PCB 9, paragraph 10)
Expert opinions
14 Dr Albatat, a general practitioner carrying on practice at Delta Medical Centre, provided initial treatment to Mr Al Hayeek on the day of the accident. On 24 May 2016 – that is, a fortnight after the accident – he referred Mr Al Hayeek for opinion and management to rheumatologist, Dr Talib Tahir, advising Dr Tahir, “This patient of mine has severe low back pain and neck pain”. He attached CT and MRI scans. (PCB 14) Dr Albatat completed a report on standard form stationery prepared by the WorkCover insurer and dated 20 July 2016. He diagnosed Mr Al Hayeek as suffering “low back pain, both leg pain or numbing, [a round circle with an L in the middle] sided leg weakness”. The time frame for return to work was said to be “unknown at this stage”. He reported Mr Al Hayeek as being “unable to bend the back, sit and stand for long time, unable to lift”. He said that he was “unfit for physical duties which involve lifting, bending or back twisting”. He described a treatment plan which entailed referral to a rheumatologist, physiotherapy and analgesia. He said that as at 10 August 2016, follow-up appointments “with the specialist” (presumably the rheumatologist) were scheduled “in two months’ time”. (PCB 16-18)
15 Dr Albatat provided a further report to “the “Accident Compensation Conciliation Service” by letter dated 21 March 2017, reporting “severe, sudden low back pain after work injury on 10/05/2016”. He attributed the injury to Mr Al Hayeek’s employment with the back and neck pain being contributed to by his injury at work. Dr Albatat said that as at the date of his report, Mr Al Hayeek was “unable to work … due to pain”. The treatment which he suggested was “Rest, Analgesia, physiotherapy, for an uncertain time at this stage”. (PCB 19-20)
16 Dr Talib Tahir, the rheumatologist to whom Dr Albatat had referred his patient, reported to Dr Albatat in a letter dated 25 May 2016. He described Mr Al Hayeek as having “moderate to severe neck pain and lower back pain with features of multilevel degenerative disc disease and disc prolapse with no nerve impingement”. He noted that Mr Al Hayeek nevertheless “described some numbness feeling of both arms and lower legs”, and that Mr Al Hayeek “has a positive leg raising test with normal sensation and reflexes”. He described having a lengthy consultation with the patient where treatment with “non-steroidal anti-inflammatory drugs” was discussed, as well as the “potential benefits of local Depo cortisone injection”. He suggested non-weight bearing exercise as the “cornerstone treatment of degenerative joint disease”, water aerobics and exercise bike might be the best”. (PCB 11)
17 Dr Tahir next reported to Dr Albatat that he had reviewed Mr Al Hayeek on 13 June 2016:
“for the management of chronic back pain with features of right C6 radiculopathy pain and lower back pain with features of degenerative disc disease of moderate severity that is related to the work he was doing which involves physical weightlifting that was confirm [sic] on MRI scan of both areas”. (PCB 12)
18 The doctor noted complaints of right knee pain which “may need further investigation”. (Ibid) The next report by Dr Tahir to Dr Albatat was by letter dated 9 May 2017. This report was generally along the same lines. The discussion held at the consultation was “about the pathology of osteoarthritis” and treatment options, including simple analgesics in the form of paracetamol and once again the suggestion of non-steroidal anti-inflammatory drugs, and a “local Depo cortisone injection”. (PCB 13)
19 On 7 September 2016, Mr Al Hayeek attended a consultation with Mr Yagnesh Vellore, neurosurgeon and spine surgeon, on referral from Dr Albatat. In a letter of the same date, Mr Vellore reported that examination “did not reveal any focal neurological deficit. He [Mr Al Hayeek] does not have any gait or sphincteric disturbance.” According to Mr Vellore, review of an MRI scan “demonstrates an L5-S1 disc protrusion in the lumbar spine with no significant changes on the latest MRI of his cervical spine”. Mr Vellore said that he had arranged a “CT-guided epidural injection at L5-S1 to assess symptomatic relief”, and had arranged for Mr Al Hayeek to see Dr Debo Gorai, neurologist, “for a review and to perform nerve conduction studies”. (PCB 21)
20 Whilst Mr Al Hayeek was visiting Syria, he attended the clinic of Dr Ghiad Darwich, a specialist in physical medicine and rehabilitation. The doctor reported in a document addressed “To whom hi [sic] concern”:
“Physical neck exam showed normal reflexes, normal sensation, trepazus [sic, scil trapezius] muscle soreness and limited neck range of motion. Back exam showed no neurological signs with soreness and regional pain with back stiffness. Knee exam showed mechanical pain only.”(PCB 22)
Radiological findings were said to “show degenerative signs at L5/S1, C2/C3/C4/C5 and bilateral medial height loss of femural-tibial spaces”. He said that following physical treatment with TENS heat, ultrasound and massage and “active and proprioceptive exercises”, there was “moderate improvement”. (PCB 22)
21 Mr Patrick Chan, neurosurgeon and spinal surgeon, reported to Dr Jallo of Delta Medical Centre, who was, it seems, by then managing Mr Al Hayeek’s treatment, by letter dated 29 January 2019. Mr Chan reported an array of pain and restrictions following the work accident. According to Mr Chan, Mr Al Hayeek —
“… described the pain [which] also radiated to both shoulders. There was numbness and pain to bilateral outer thighs, worse on the right side. This happened at times when he was going to sleep. He also described numbness and pain, more on the left side, of bilateral foot, usually initiated by sitting. He also described numbness of his right ring and little fingers. When he slept his whole right upper limb would go numb. He also described having a left shoulder cortisone injection, which worsened the symptoms. There was no description of weakness. There were no features of red flags.”
22 Mr Chan describes Mr Al Hayeek as walking with a normal gait:
“He had diffuse neck, upper back and lower back tenderness. There was tenderness both with superficial and deep palpation. Axial loading also exacerbated the pain. Thoracic rotation also exacerbated the pain. He had moderate restriction of range of motion limited by pain. Straight leg raising test exacerbated the pain in his lower limb. Spurling’s test, Hoffman’s sign and Tinel’s sign were all negative. Upper limb and lower limb neurological examination revealed normal tone and reflexes. There was global giveway weakness. There was reduced sensation involving his right little finger. Pedal pulses were present. There was no clonus. Plantar reflexes were downgoing.”
Mr Chan said that Mr Al Hayeek described “diffuse pain involving the neck, upper back and lower back with peripheral somatic referred symptoms”. He said that Mr Al Hayeek did not “require neurosurgical intervention”. He referred him to Dr Andrew Muir “for assessment and management of his chronic diffuse pain syndrome”. (PCB 23A-23B)
23 Dr Muir, a consultant in pain management and anaesthetics, provided a report to Mr Chan dated 21 February 2019 upon the referral. Dr Muir observed:
“Examination demonstrates restriction of the range of motion of both neck and lumbar spine, particularly in extension.
The patient feels he has made some small progress but remains troubled by pain. … I think the patient would be well suited to a pain management program, perhaps. His need for travel makes this logistically difficult to achieve in Melbourne.” (PCB 23C)
24 Mr Stephen Doig, orthopaedic surgeon, assessed Mr Al Hayeek for medico‑legal purposes, providing a report to his solicitors dated 19 February 2019. Mr Doig said that his history “was taken with the expert assistance from a professional interpreter”. (PCB 24) On examination, Mr Doig noted tenderness and restriction of motion in the neck, but “no focal neurological signs in the upper limbs”. He continued:
“The diagnosis here is one of a chronic low back strain and a chronic cervical spine strain. He may have some discogenic pain in the lower back.” (PCB 25)
25 Mr Doig advocated a pain management course. (PCB 24-25) In a supplementary report dated 9 July 2019, Mr Doig opined that Mr Al Hayeek “does not have the capacity to return to his pre-injury duties at this stage”. He considered that if Mr Al Hayeek did not respond to the proposed pain management treatment, “then he may be able to return to a relatively light job not including any heavy lifting, pushing, pulling or carrying”. Mr Doig did not consider a return to pre-injury duties to be feasible “in the foreseeable future”. (PCB 26)
26 Professor Richard Bittar, a consultant neurosurgeon, provided a medico-legal assessment of Mr Al Hayeek to his solicitors by letter dated 1 December 2017. Once again, the professor carried out his assessment with “the assistance of an Arabic interpreter”. (PCB 27) He diagnosed Mr Al Hayeek as suffering from the following:
“1.Aggravation of cervical spondylosis with neck pain;
2.Aggravation of lumbar spondylosis with lower back pain and right leg pain.” (PCB 29)
According to Professor Bittar, Mr Al Hayeek did not have any work capacity and, in particular, was unfit to return to his pre-accident employment. His lack of technical skills and limited English, in the Professor’s opinion, rendered him unfit and lacking in capacity for alternative employment. (PCB 30)
27 By letter dated 8 April 2019, Dr Richard Sullivan, interventional pain specialist and specialist anaesthetist, provided his medico-legal assessment to Mr Al Hayeek’s solicitors. Dr Sullivan said that Mr Al Hayeek had “secondary chronic pain [consequent to] his lumbar and cervical spondylosis”. He said that this had resulted “following an injury at work”. The secondary chronic pain, he said, was “due to an underlying organic condition, that being his lumbar and cervical spondylosis”. The pain condition, he said, also had —
“… an organic basis characterised by changes within the central and peripheral nervous system that includes processes collectively known as ‘central sensitisation’. These pathophysiological changes are well documented in the medical literature and often pose medicolegal challenges when there are no corroborative gross radiological findings. However, in Mr Al Hayeek’s case there are clear associated radiological findings and a clear primary organic diagnosis causing the chronic pain condition.” (PCB 39)
In an earlier medico-legal assessment reported in a letter to the solicitors of 15 February 2018, Dr Sullivan diagnosed Mr Al Hayeek as having “a chronic pain condition consequent on exacerbation of cervical spondylosis and lumbar spondylosis”. (PCB 35)
28 Mr Yagnesh Vellore provided a further report to Mr Al Hayeek’s solicitors by letter dated 8 March 2018. In that report, he noted a failure by Mr Al Hayeek to take up the referral to Dr Gorai for the nerve conduction tests or the proposed CT-guided epidural injection at L5-S1. Mr Vellore said “Mohamad’s diagnosis is likely to be back and leg pain related to L5-S1 disc prolapse from work-related injury”. (PCB 40) Mr Vellore said that Mr Al Hayeek’s inability to carry out heavy lifting, bending and twisting would preclude him from returning to his pre-accident employment. (Ibid)
29 Dr Tahir provided a report to Mr Al Hayeek’s solicitors by letter dated 28 May 2018, reviewing his consultations and various investigations. Dr Tahir concluded Mr Al Hayeek suffered “mild degenerative non neural compressive spondylosis at L5/S1 characterised by a small central protrusion and mild bilateral facet arthropathy”. (PCB 42)
30 Dr David Middleton, an occupational health and rehabilitation consultant, provided a medico-legal report to Mr Al Hayeek’s solicitors dated 22 February 2019. He reported upon an examination and consultation which occurred at his rooms on 19 February 2019. He gave a detailed history and provided a digest of a raft of examinations by way of CT or MRI scans of various parts of the spine carried out over a number of years, and reports by treating practitioners and by medico-legal consultants engaged by the plaintiff’s solicitors. He said:
“Mr Al Hayeek has no current work capacity. In my opinion there is no availability of any realistic suitable employment and … if suitable employment were available there would be the need for a graduated return to work to be supported and that at best his attendance will be part-time. Presently, any attempt to return to work for Mr Al Hayeek would be purely theoretical …” (PCB 73)
Dr Middleton commented upon Mr Al Hayeek’s lack of qualifications and his incapacity to engage in other than “sedentary, non-manual duties”. (PCB 72)
31 Associate Professor Abdul Khalid, consultant psychiatrist, carried out a medico-legal assessment of Mr Al Hayeek relative to psychiatric and psychological issues, reporting to his solicitors by letter dated 18 November this year. Professor Khalid noted that Mr Al Hayeek denied any prior history of psychiatric illness. (PCB 77) The professor noted:
“Mr Al Hayeek said that he feels depressed due to his pain and restrictions. He said that he cannot do sports and swimming. His depressed mood and financial situation caused a relationship problem and they separated and lived under the same roof since 2017 and finally two months ago he left his house and was homeless for a few weeks and is currently living with a friend.” (PCB 80)
This appears to be a reference to Mr Al Hayeek’s ouster from the family home by virtue of an intervention order. The professor diagnosed Mr Al Hayeek as suffering from an “adjustment disorder with mixed anxiety and depressed mood”, which was secondary to his physical injury. He said that this condition was likely to be chronic unless there was improvement in his pain. (PCB 80) The professor said:
“From a psychiatric point of view, in my opinion, Mr Al Hayeek has no current work capacity due to his symptoms of adjustment disorder with mixed anxiety and depressed mood.” (PCB 79)
32 The defendant had Mr Al Hayeek assessed for medico-legal purposes by a number of practitioners. At the defendant’s request, Mr Al Hayeek attended a consultation with Dr Marcus Navin, an occupational medicine physician. Dr Navin reported on the consultation in a letter to the WorkCover insurer dated 5 September 2016. Dr Navin took a lengthy history of the accident and Mr Al Hayeek’s previous physical condition and lifestyle, noting that he had suffered some low back “stress” prior to the accident but otherwise “no particular injury or insult to his body in the past”. (DCB 7) Dr Navin described Mr Al Hayeek as having “sat comfortably in the examination chair for 40 minutes while the history was obtained with the assistance of the interpreter”. Dr Navin described administering “an axial compression test, as per Waddell”. This led Mr Al Hayeek to report being tender across the upper thoracic spine “just distal to the C7 spine”, and perceiving pain in his left leg. Dr Navin continued:
“A rotation test, as per Waddell, induced pain on rotation to the left and to the right within 20 degrees of rotation.”
Dr Navin noted that on both occasions Mr Al Hayeek indicated the area of the sacroiliac joint. The doctor continued:
“He was able to flex forward only as far as his hands to mid-thigh due to severe pain in the spinal areas.”
Dr Navin also observed that on clinical assessment, Mr Al Hayeek “showed a positive hand movement and grip, inconsistent with his other behaviours during the assessment”. Dr Navin also observed, “in conducting the Babinski reflexes, a seated straight leg raise could be performed to 90 degrees.” (DCB 8) This led Dr Navin to conclude of Mr Al Hayeek:
“He has no evidence of any neurological, anatomical or pathological process. Hence any strain/sprain he may have suffered in May 2016 would now have presumed to have passed. His progressive and increasing symptoms are not congruent with a non-pathological process.”
It would seem that the doctor has, in this last sentence, added too many negatives. Presumably, what he meant to convey was that the reported symptoms were not congruent with a pathological process. According to Dr Navin, Mr Al Hayeek “presents with behaviours which are consistent with abnormal illness and abnormal pain behaviours”. (DCB 9) Consequent on these findings, Dr Navin stated:
“In my opinion I consider that Mr Al Hayeek could return to his pre-injury duties and I do not consider that there is any justifiable medical reason for him not to be able to return to work.”
The doctor noted the stated intention of Mr Al Hayeek to travel to Syria and Lebanon “to attend to family needs”, observing: “To this extent he could be deemed to be fit to return to work at this time”. (DCB 10) As to Mr Al Hayeek’s prognosis, Dr Navin, referring to what he had elsewhere described as “pain behaviour” stated:
“It is to be appreciated that given his presentation at this stage, some five months subsequent to his acute event, that the patterns of behaviour and beliefs would appear to be well established.”
This created uncertainty —
“… with respect to Mr Al Hayeek’s future capacity to return to work given his assertion that his symptoms are progressing and deteriorating without any evidence of any pathological process.”
In a supplement to this report, also dated 16 September 2016, Dr Navin added:
“I advise that in my opinion, Mr Al Hayeek’s lack of capacity to be at work is unrelated to any work-related injury.” (DCB 23)
33 Dr Navin made a further medico-legal assessment of Dr Al Hayeek on 15 January 2018. Once again, Mr Al Hayeek was “accompanied and seen in the presence of an interpreter”. Dr Navin noted Mr Al Hayeek reporting his symptoms had not improved. (DCB 26) Dr Navin reported:
“On examination, Mr Al Hayeek attended and stood for 40 minutes of the history gathering … He presented in a morose and a depressed mien…”
Dr Navin reported restrictions in neck movement on formal examination and also in arm movements. He described the restrictions as being “variable in extent on repeated testing”. (DCB 28) Once again, the Waddell test was positive. (DCB 29) Dr Navin observed a continuation of “manifest abnormal pain and abnormal illness behaviours”. He said Mr Al Hayeek “reports pain symptoms that are not congruent with any pathological condition or disease”. He did consider, however, as reasonable and a differential diagnosis that Mr Al Hayeek was suffering from “ankylosing spondylitis”. Mr Al Hayeek, he said, “reports significant stiffness and immobility and demonstrates such in the assessment”. (DCB 29)
34 Just over a year later, the defendant had Mr Al Hayeek medico-legally assessed by Dr Daniel Lewis, a rheumatologist and consultant physician. Once again, an interpreter was present. On examination, Dr Lewis observed, “There were significant pain behaviours observed. Throughout the examination, he alternated between sitting and standing.” The axial compression test, light palpation and gentle rotation and pinch tests were “positive for illness behaviours”. (DCB 38) There were no neurological signs in the arms. (Ibid) Nor were there any neurological signs in the legs, Dr Lewis observing, “All reflexes were symmetrical and there were no sensory abnormalities”. He noted the ability of Mr Al Hayeek to sit on a couch with his legs extended at 90 degrees. Dr Lewis concluded:
“He presents with chronic pain in the cervical and lumbar spine regions which has developed following a presumed soft tissue injury to the lumbar spine in the work incident in May 2016.
I have identified no intrinsic injury in the lumbar or cervical spines and I do not consider that his clinical presentation is consistent with the radiological findings.
He has no clinical features to indicate a diagnosis of ankylosing spondylitis.” (DCB 39)
According to Dr Lewis, “I have been unable to determine any anatomical or pathological diagnosis that explains his current pain and dysfunction.” (DCB 40) Dr Lewis said, as to work capacity, that Mr Al Hayeek “has restrictions in sitting, standing, bending and lifting. He is able to drive and would be able to use public transport at nonpeak periods”. As to non-manual work, he said:
“Mr Al- Hayeek acknowledged that he would have the capacity to work selling mobile phones in a shop on a part-time basis but would be significantly limited by his lack of English.”
He continued:
“I found no evidence for (sic, scil of) any injury that would preclude a return to work in the future. The duration of incapacity cannot be predicted and depends on the resolution of his current pain syndrome.
There is no indication for surgery.” (DCB 41)
35 More recently still, the defendant had Mr Al Hayeek medico-legally assessed by Mr Rodney J Simm, orthopaedic surgeon. Mr Simm provided a report by way of letter to the defendant’s solicitors dated 30 July 2019. Mr Simm recorded on examination that Mr Al Hayeek “stood for much of the interview, which extended over about 40 minutes. He seemed extremely anxious about his ongoing symptoms.” Mr Simm assessed grip strength with a Jaymar dynamometer, registering 6 kilograms on the right hand and barely moving the dial with the left. Mr Simm observed, “These extremely low readings were not compatible with known physical factors”. (DCB 50) Mr Simm found limited spinal movements on formal assessment. He continued:
“Waddell’s vertex compression test produced complaint of neck pain, not back pain. Waddell’s simulated pelvic rotation test was positive, with complaint of back pain on 20 degrees of rotation of the hips to either side.” (Ibid)
Mr Simm continued:
“…the clinical findings [were] chronic pain syndrome with painful inhibition of movement of the regions examined, with non-organic clinical signs on undertaking the neurological examination, but with no objective clinical signs of radiculopathy in the upper or lower limbs … The diagnosis is a chronic pain illness, which was triggered by the onset of acute low back pain and right leg pain in the workplace on 10 May 2016.”
Mr Simm concluded:
“This man seemed to be genuinely anxious and concerned about his chronic pain state. His condition now falls in the fields of chronic pain and psychiatry. It is not possible to exclude the possibility that there may be an underlying physical cause for his neck and back symptoms, but the condition is now predominantly and possibly completely due to pain that is generated, perpetuated and amplified by factors which are independent of any surgical and/or lumbar spine pathology.” (DCB 54)
As to work capacity, Mr Simm observed:
“one would expect him to have the capacity to undertake suitable light employment. This would be employment that allows some flexibility with sitting and standing, and limits him to handling light objects between knee and chest height. Whilst he may have this theoretical capacity, his general clinical presentation today was of somebody who would not undertake any form of gainful employment due to the distraction and pre-occupation with his chronic pain, which led to him standing for almost 40 minutes whilst he was interviewed, and then presenting subjective clinical signs of severe pain and disability on physical examination.” (DCB 53)
36 Mr Simm provided a supplementary report dated 14 November 2019. He observed that Mr Al Hayeek —
“… had minor changes on the MRI scans of the cervical spine and lumbar spine which could not explain his clinical course, and I concluded that the diagnosis was a chronic pain illness, which was triggered by acute low back pain and right leg pain in the workplace, approximately three and a half years ago …”. (DCB 55)
Referring to a number of possible occupations for Mr Al Hayeek suggested by vocational consultants “CoWork”, Mr Simm agreed that Mr Al Hayeek could undertake any of the suggested employments except that of barber, “which would require [Mr Al Hayeek] to remain on his feet for the whole day”. (DCB 56)
37 Finally, the defendant had Mr Al Hayeek assessed by Associate Professor Peter J Doherty, consultant psychiatrist, who reported on his consultation with Mr Al Hayeek by letter dated 13 October 2019. Asked if Mr Al Hayeek suffered a diagnosable psychiatric disorder, the professor said:
“Yes, he probably does. More likely than not there is now a diagnosable adjustment disorder with depressed mood.
There has been a significant psychological stressor of recent months giving rise to a significant downturn in mood, causing distress.”
The professor observed:
“He presents as a dispirited, unhappy and disgruntled person and found it difficult talking about himself particularly the low back and neck injury in the context of overwhelming problems in his relationship with his wife and access to the children.” (DCB 65)
The professor said the adjustment disorder would “fade over time as readjustment takes place or there is a lessening of the psychological stressor”. (Ibid) The professor was of the view that an “adjustment reaction” was sustained as a result of the injury, and then compounded by the final separation and intervention order and limited access to his children which led to the existence of the diagnosable disorder. The professor said:
“There is no pain-related psychiatric condition present, and from a psychiatric point of view the worker is not current [sic] capable of working due to the significant downturn in mood, preoccupation with non-work-related matters, and deteriorated mood, concentration and attention.”
The professor believed that Mr Al Hayeek was quite capable of suitable employment from a psychiatric viewpoint until the recent deterioration in his social situation. He said, “there was a work capacity before the recent upheaval in the marriage”. (DCB 66)
38 On the subject of work capacity, the defendant had Mr Al Hayeek attend upon occupational therapist, Ms Joanne Bryant of CoWork Pty Ltd, an Injury Management, Vocational Assessment and Occupational Health and Safety consultant. The consultation took place at CoWork’s premises in Malvern on 25 September 2019. In a report dated 7 November 2019, Ms Bryant suggested the following as “potentially suitable occupations” for Mr Al Hayeek:
(i) Merchandiser (Transition to work);
(ii) Mobile Speed Camera Operator (Part-time);
(iii) Sales Representative (Mobile Phones);
(iv) Weighbridge Operator/Transfer Station Attendant;
(v) Health and Safety Officer/Adviser (sic);
(vi) Barber. (DCB 89)
Legal considerations
39 Section 327 of the Act authorises a “worker” to recover damages “in respect of any injury arising out of, or in the course of, or due to the nature of, employment if the injury is a serious injury”. Mr Al Hayeek’s case is that he has sustained a serious injury within the meaning of the Act.
40 Section 325 of the Act defines the phrase “serious injury” as follow:
“(a) permanent serious impairment or loss of a body function; or
(b) permanent serious disfigurement; or
(c) permanent severe mental or permanent severe behavioural disturbance or disorder; or
(d) loss of a foetus.”
41 Mr Al Hayeek’s case is that he has suffered a serious injury within the meaning of paragraph (a) or paragraph (c) of the definition.
42 Sub-section (2) of s325 makes additional provision for the operation of this definition for the purposes of Part 7. The lengthy sub-section provides as follows:
“(2) For the purposes of the assessment of serious injury in accordance with section 335(2) and (5)—
(a)the following definitions apply—
"foetus" has the same meaning as in section 214(2);
"income from personal exertion" has the same meaning as in section 6(2) of the Transport Accident Act 1986; s. 325
(b)the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, disfigurement, or mental or behavioural disturbance or disorder, as the case may be, with respect to
(i)pain and suffering; or
(ii)loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function, disfigurements, or mental or behavioural disturbances or disorders, respectively;
(c)an impairment or loss of a body function or a disfigurement is not to be held to be serious for the purposes of section 335(2) unless—
(i)the pain and suffering consequence; or
(ii)the loss of earning capacity consequence—
is, when judged by comparison with other cases, in the range of possible impairments or losses of a body function, or disfigurements, as the case may be, fairly described as being more than significant or marked, and as being at least very considerable;
(d)a mental or behavioural disturbance or disorder is not to be held to be severe for the purposes of section 335(2) unless
(i)the pain and suffering consequence; or
(ii)the loss of earning capacity consequence—
is, when judged by comparison with other cases, in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe;
(e)if a worker relies upon paragraph (a), (b) or (c) of the definition of serious injury in subsection (1), the Authority or self-insurer must not issue a certificate under section 335(2)(c), and a court must not grant leave under section 335(2)(d), on the basis that the worker has established the loss of earning capacity required by paragraph (b) unless the worker establishes in addition to the requirements of paragraph (c) or (d), as the case may be, that—
(i)at the date of a decision under section 335(2)(c) or at the date of the hearing of an application under section 335(2)(d), the worker has a loss of earning capacity of 40 per cent or more, measured (except in the case of a worker referred to in item 1 of Schedule 2 or a worker under the age of 26 years at the date of the injury) as set out in paragraph (f); and
(ii) the worker (including a worker referred to in item 1 of Schedule 2 or a worker under the age of 26 years at the date of the injury) will, after the date of the decision or of the hearing, continue permanently to have a loss of earning capacity which will be productive of financial loss of 40 per cent or more;
(f)for the purposes of paragraph (e)(i), a worker's loss of earning capacity is to be measured by comparing—
(i)the worker's gross income from personal exertion (expressed at an annual rate) which the worker is—
(A)earning, whether in suitable employment or not; or
(B)capable of earning in suitable employment—
as at that date, whichever is the greater, and—
(ii)the gross income (expressed at an annual rate) that the worker was earning or was capable of earning from personal exertion or would have earned or would have been capable of earning from personal exertion during that part of the period within 3 years before and 3 years after the injury as most fairly reflects the worker's earning capacity had the injury not occurred;
(g)a worker does not establish the loss of earning capacity required by paragraph (b) if the worker, taking into account the worker's capacity for suitable employment after the injury and, where applicable, the reasonableness of the worker's attempts to participate in rehabilitation or retraining—
(i)has; or
(ii)after rehabilitation or retraining, would have–
a capacity for any employment including alternative employment or further or additional employment which, if exercised, would result in the worker earning more than 60 per cent of gross income from personal exertion as determined in accordance with paragraph (f) had the injury not occurred;
(h)the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise;
(i)the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise;
(j)the assessment of serious injury must be made at the time that the application is heard by the court, unless sections 348 and 358 apply;
(k)the monetary thresholds and statutory maximums specified by or under section 340 must be disregarded for the purposes of the assessment of serious injury.”
43 The medical reports that were put into evidence in this proceeding, particularly those relied on by the defendant, make copious reference to concepts such as “chronic pain syndrome”, “pain behaviour” and “abnormal illness behaviour”. What, in light of the authorities and provisions of the Act already quoted, would be the effect of accepting any findings along these lines?
44 If the disorder or behaviour described by these terms are to be regarded as psychological or psychiatric by virtue of s325(2)(h) of the Act, they “are to be taken into account only for the purposes of paragraph (c) of the definition of serious injury and not otherwise”. The effect would seem to be that pain or limitations felt in a relevant body part could not be considered in determining whether the injury was “serious” within the meaning of paragraph (a) of the definition of “serious injury” if its cause were psychological or psychiatric rather than organic. The characterisation therefore of the disorders, syndromes and so forth variously referred to above may be of crucial importance to the outcome of Mr Al Hayeek’s application.
45 In the forefront of his submissions on this point, Mr W R Middleton QC QC, who appeared with Ms Myers of counsel on behalf of the defendant, placed reliance upon a lengthy passage from the judgment of the learned President of the Court of Appeal in Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46. In that case, the court was concerned with the application of materially identical provisions relative to “serious injury” to be found in the Accident Compensation Act 1985.
46 Having referred to the statutory obligation on courts to distinguish between physical and psychological origins of pain and suffering, his Honour said:
“3. Much of the difficulty for the Court lies in the imprecision of clinical assessments. Rarely does a medical opinion attempt to apportion pain and suffering between organic and psychological causes. This suggests that any such apportionment, let alone a precise apportionment, is a difficult clinical exercise in itself. That the clinical assessment of pain is a complex task is well-documented:
‘Despite recent advances in the understanding of the neurophysiology of the human pain response, clinical pain remains one of the greatest challenges to the efficacy and ethics of medical practice. Clinicians confronted with patients who claim to suffer from pain must differentiate those who need analgesia from malingerers, drug-seekers, or those in need of some form of therapy. Because deception is logically possible and because pain can often lack a readily apparent cause, many clinicians routinely face doubt about the pain status of a patient.’
4. Part of the difficulty also lies in the use – often interchangeably – of imprecise terms such as ‘chronic pain syndrome’, ‘chronic pain adjustment disorder’, ‘chronic illness behaviour’, ‘learned pain behaviour’, ‘psychological embellishment’ and ‘functional overlay’. The present case provides illustrative examples, as follows:
·‘… [the plaintiff] had an exaggerated response to her illness … and she has developed a chronic pain syndrome accompanied by chronic illness behaviour.’
·‘The degree of disability related to the original work-related injury is perceived as extensive, however, this is subjective and not supported by objective evidence.’
·‘… [T]here is an inconsistency between the ability for her to bend in the waiting-room compared to her restricted movement of the spine during the formal assessment. I consider there is a non- physical component to her presentation and this is becoming more marked as time progresses.’
·‘The psychiatric reaction would be worsening any incapacity she has from the physical point of view.’
·
‘Certainly, there is sufficient pathology to account for the kind of
symptoms she has been describing.’
Additionally, however, even by [the plaintiff’s] own account, it is clear that this woman is exhibiting quite a substantial degree of psychological embellishment of her problems. There is thus a considerable non-organic element which is compounding the underlying situation.’
5. The term ‘chronic pain syndrome’ (or ‘chronic pain disorder’) is frequently used. The only authoritative definition of this term available to the Court is that contained in the fourth edition of the work best known by its abbreviation ‘DSM’, more accurately the ‘Diagnostic and Statistical Manual of Mental Disorders (Text Revision)’, published by the American Psychiatric Association. In DSM, pain disorders are described as a type of ‘somatoform disorder’. The common feature of somatoform disorders is –
‘the presence of physical symptoms that suggest a general medical condition (hence, the term somatoform) and are not fully explained by a general medical condition … or by another mental disorder (eg, Panic Disorder). The symptoms must cause clinically significant distress or impairment in social, occupational or other areas of functioning. … [T]he physical symptoms are not intentional (ie, under voluntary control).’
6. DSM defines a pain disorder as follows:
‘The essential feature of Pain Disorder is pain that is the predominant focus of the clinical presentation and is of sufficient severity to warrant clinical attention. … The pain causes significant distress or impairment in social, occupational, or other important areas of functioning. … Psychological factors are judged to play a significant role in the onset, severity, exacerbation, or maintenance of the pain. The pain is not intentionally produced or feigned … Pain Disorder is not diagnosed if the pain is better accounted for by a Mood, Anxiety or Psychotic Disorder … .’
7. Functional overlay is a somatoform disorder. Physical symptoms are present but they are not explained by any organic condition. In TAC v Lincoln, for example, the injured person had very substantial restriction of her left arm and shoulder movement, but this could not be explained by any ongoing physical effect of the relevant motor vehicle accident. Underlining the interchangeability of terms, the opinion of the rheumatologist was that the claimant had a ‘chronic pain syndrome’.
8. Because of s 134AB(38)(h), the Court must endeavour to separate the physical from the psychological causes of pain and suffering notwithstanding these difficulties. Of course, it may be that the clinical assessments in a particular case simply do not permit a sufficient ‘stripping out’ of the psychological causes of pain to enable the Court to be satisfied, on the balance of probabilities, that the physically- based pain and suffering consequences satisfy the ‘serious injury’ test. Where pain is referable (sic) to both physical and psychological causes, it will obviously assist the court if medical experts on both sides are asked to quantify, so far as possible, the respective contributions of the physical and the psychological to the pain and suffering being experienced by the injured person.” ([3]-[8])
47 His Honour then described the principles which he said required application in proceedings such as this, “for the assistance of judges”.
“9. For the assistance of judges, the applicable principles may be summarised as follows:
(1)Where an applicant for leave under s 134AB(16)(b) relies on physical injury – ‘permanent serious impairment or loss of a body function’ – the Court in assessing the ‘pain and suffering consequences’ must exclude ‘the psychological or psychiatric consequences’ of the injury: s134AB(38)(h).
(2)Accordingly, so far as the evidence allows, the Court must identify, and exclude from consideration, any pain and suffering consequences which cannot be shown on the balance of probabilities to have an organic or physical basis.
(3)The Court must therefore exclude any pain and suffering consequences which result from or are a manifestation of –
·
any recognised psychiatric condition (eg depression,
adjustment disorder);
·chronic pain syndrome or disorder;
·functional overlay;
·exaggeration of symptoms, whether conscious or unconscious; or
·
any other aspect of the injured person’s psychological
response to the physical injury.
(4)Where the Court is unable to ‘disentangle’ the pain and suffering consequences in this way, this will ordinarily mean that the application must be refused, since the Court cannot be satisfied on the balance of probabilities that the organically-based pain and suffering consequences satisfy the statutory criterion (‘more than significant or marked, and … at least very considerable’).
(5)For the assistance of the Court in deciding such matters, any medical witness who is of the opinion that there are both organic and non- organic contributors to the pain and suffering should be asked to quantify, so far as possible, the respective contributions to the pain and suffering of the organic and non-organic causes.
(6)The reasoning in Richards v Wylie has no application to proceedings under s 134AB.” ([9])
48 Mr Middleton QC invited me to apply his Honour’s characterisation of various terms, in some cases identical, in other cases cognate to the ones referred to above and used in medical reports in this proceeding, to be found in paragraphs 4 and 5 of the judgment.
49 In light of s325(2)(h)’s mandate to disregard psychologically-driven pain and restrictions for the purposes of paragraph (a) of the definition of “serious injury”, acceptance of Mr Middleton QC’s contentions could have fatal consequences for the success of Mr Al Hayeek’s application if the opinions advanced by the medical examiners who attributed these conditions to Mr Al Hayeek were accepted.
50 Mr Mighell QC, who appeared with Mr Fogarty on behalf of Mr Al Hayeek, however, contended that the statements made by the learned President in Stamboulakis’ case could not properly be applied as a matter of generalisation. He referred to passages in the Judicial College of Victoria’s Serious Injury Handbook (“JCV Handbook”), which he said required a consideration of the purport of findings along the lines abovementioned on the basis of the evidence of each case, rather than upon some generalised basis deriving from the learned President’s remarks.
51 In Jovceva v Transport Accident Commission [2019] VSCA 105, in the Court of Appeal, Kaye, Niall and T Forrest JJA disapproved my use of the passages from Stamboulakis’ case in the very manner which Mr Middleton QC now urges me to use them again. Their Honours said:
“The discussion, by Maxwell P in Stamboulakis, of the meaning of the terms ‘chronic pain syndrome’ and ‘pain disorder’ was based on materials that were put before the Court in that case. However, the reasons of the Court, in that case, are not, and cannot be, ‘authority’ for the meaning of what is essentially a medical diagnosis.” ([108])
52 Their Honours also disapproved resort to standard texts or diagnostic manuals to give meaning and content to expressions used in medical reports. Their Honours said:
“… where — as in this case — terms are employed in medical reports which have not passed firmly into the lexicon of personal injury litigation, it is not appropriate for a judge, without the clear assent of the parties, to embark on research of his or her own in order to determine the meaning of those terms.” ([109])
53 Their Honours’ remarks there were specifically directed to my consideration of the standard psychiatric diagnostic manual known as “DSM-V” to elucidate the meaning of a diagnosis by one of the experts of “Somatic Illness Behaviour”. As a matter of logic, given their earlier references to Stamboulakis’ case, the term “chronic pain syndrome” and cognate expressions cannot have been regarded by their Honours as having passed “firmly” into the lexicon of personal injury litigation.
54 Given that this lexicon does not, so far as I am aware, exist either in hardcopy or electronic form, so that there is an authoritative source that can be consulted to determine whether a particular word or phrase is part of it, a primary judge is in perilous water in seeking to consider and give effect to expert medical reports in circumstances where, as a result, both of strictures from the appellate level and practice notes and directions at the primary level, medical practitioners are rarely called to give evidence to explain the meaning of their reports in Serious Injury applications.
55 Once again, the “lexicon” is not available to the experts so that they may craft their opinions in a manner which can be construed by a court without calling supplementary expert evidence as to construction or resorting to judicial notice under s143 of the Evidence Act 2008.
56 It follows that the meaning of these terms which, as we have seen, cannot be regarded as “part of the lexicon” in light of the Court of Appeal’s decision in Jovceva, can only be reached in the present circumstances by inferring the likely meaning of such terms by their context derived from the non-technical language to be found in the reports.
57 By reference to the JCV Handbook and supplementary arguments, Mr Mighell QC contended that all pain should be regarded as psychological. (T118, L7 ff) Pain and suffering is a consequence of injury and, for the purposes of an application for leave to bring a damages claim based on pain and suffering, the pain and suffering consequences are the key ones for consideration.
58 Section 325(2)(h) assumes and mandates that a distinction be drawn between psychological or psychiatric consequences of a physical injury, on the one hand, and the physical consequences thereof, on the other. (The physical consequences are referred to in the next paragraph (i).)
59 The distinction must be made no matter how artificial, and the passages in the handbook and the authorities referred to do not state otherwise.
Conclusions
60 Mr Mighell QC and Mr Fogarty for the plaintiff, identified the body part for the purposes of paragraph (a) of the definition of “serious injury” as the spine. Whilst not abandoning paragraph (c) of the definition, they were not placing primary reliance upon this. (T112, L6-14)
61 They said that a number of practitioners had found that Mr Al Hayeek suffers from chronic pain. They referred to Mr Simm (a medico-legal witness relied upon by the defendant), referring to a “chronic pain illness”, and Dr Sullivan (a medico-legal witness relied upon by the plaintiff), referring to a “chronic pain condition”. This stood, they said, in contrast to the diagnosis by the defendant’s medico-legal witness, Dr Navin, who said that Mr Al Hayeek consciously exaggerated his symptoms. This amounted, in effect, to an allegation of malingering. They said Dr Navin stood alone amongst all of the medical experts in expressing this opinion. (T114, L17-29)
62 They continued:
“There are others that talk about, as I said, illness condition, illness behaviour. But, they don't go as far as to say that it's a conscious attempt to mislead the practitioner.” (T114, L29 – T115, L1)
63 I agree with the submission made on behalf of the plaintiff that Dr Navin must be taken as accusing him of malingering. Dr Navin reported on 5 September 2016 that Mr Al Hayeek could return to his pre-injury duties, and there was no justifiable medical reason for him not to be able to do so. (DCB 10)
64 Mr Simm, another medico-legal expert relied upon by the defendant, whilst denying an organic basis for Mr Al Hayeek’s chronic pain, did not accuse him of malingering. He said:
“This man seemed to be genuinely anxious and concerned about his chronic pain state. His condition now falls in the fields of chronic pain and psychiatry.” (DCB 52)
65 He continued, stating that the chronic pain was “perpetuated and amplified by factors which are independent of any cervical and/or lumbar spine pathology”. (Ibid)
66 Rheumatologist, Dr Daniel Lewis, another medico-legal expert relied on by the defendant, having noted a lack of organic or pathological explanation for Mr Al Hayeek’s chronic pain, said:
“The duration of incapacity cannot be predicted and depends on the resolution of his current pain syndrome.” (DCB 41)
67 This seemed to entail Dr Lewis’ acceptance that some kind of psychological “syndrome” entailing chronic pain was, as at January this year, precluding Mr Al Hayeek from a return to paid employment.
68 Unsurprisingly, none of the medical experts relied upon by the plaintiff suggests that he has been malingering.
69 Mr Middleton QC and Ms Myers attacked Mr Al Hayeek’s credit. Asked how he had travelled from his temporary residence in Shepparton to the courthouse in Bendigo, initially Mr Al Hayeek said that he had been driven by a friend. Mr Middleton QC pressed him as to how the friend returned to Shepparton. Had he left Mr Al Hayeek’s car in Bendigo? (T57) Mr Al Hayeek elaborated, “I swear about that I drive. I drive to here but I stop two – two times”. (T58, L1-2) Asked why he changed his evidence on this point, Mr Al Hayeek said “Because I'm under oath – because I'm under oath, I'm not going to lie. I did drive, but I stopped twice.” (T59, L9-11) This might be thought indicative of a willingness on Mr Al Hayeek’s part to tell untruths to advance his case.
70 Referring to Mr Al Hayeek’s interview with Ms Joanne Bryant of CoWork Pty Ltd, Mr Al Hayeek was referred to her report where she described him as saying, “Friend picked me up from the motel in Shepparton and drove me today. My friend is picking me up.” (DCB 78) Asked about this, Mr Al Hayeek described the make and model of the vehicle in which his friend gave him a lift – a Toyota Corolla. (T61, L1-2)
71 When Mr Middleton QC told Mr Al Hayeek that the defendant held video surveillance of him driving himself to the consultation with Ms Bryant, his response was, “Maybe I had slept that night in Melbourne that day”. (T61, L27-28)
72 As I understood Mr Al Hayeek, he ultimately conceded that he had driven from Shepparton to Melbourne. (T62, L5-7)
73 The plaintiff’s credit is of vital importance in a proceeding such as this, not merely because it reflects upon the credence that can be given to his evidence in court, but because the opinions of medical experts depend in part, at times in large part, upon the reliability of a plaintiff’s history and report of symptoms. Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439, 448 per Brooking JA
74 It follows that Mr Al Hayeek’s evidence must be treated with caution and, as far as possible, one must look for corroboration or intrinsic plausibility without uncritically accepting it. Nevertheless, I accept that the weight of professional opinion is against a finding that Mr Al Hayeek is malingering or claiming to suffer pain and restrictions which he does not truly feel. For what it is worth, this accords with my own observations of Mr Al Hayeek under cross-examination and throughout the hearing. Mr Al Hayeek’s elaborate complaints of pain and restriction, if accepted, rank as serious:
“when judged by comparison with other cases in the range of possible impairments or losses of a body function …” (s325(2)(b) of the Act)
75 And:
“when judged by comparison with other cases, in the range of possible impairments of losses of a body function … may be, fairly described as being more than significant or marked and as being at least very considerable.” (s325(2)(c)
76 The question is whether these are to be regarded as the physical consequences of a mental or behavioural disturbance or disorder (s325(2)(i)), and therefore excluded from consideration in relation to paragraph (a) of the definition of “serious injury”.
77 The submission on behalf of Mr Al Hayeek by Mr Mighell QC and Mr Fogarty was that Mr Al Hayeek suffered an injury to his spine on 10 May 2016 “in the form of either aggravation of degenerative changes, or spondylosis of the cervical spine”. (T109, L10-14)
78 This view, they said, was supported by Associate Professor Bittar (PCB 29) and Mr Vellore (PCB 40). This view, they said, was consistent with the views expressed by treating rheumatologist, Dr Tahir (PCB 42). Mr Mighell QC and Mr Fogarty said that despite treating rheumatologist, Dr Tahir, characterising the injury as “mild”, what was significant for present purposes was the consequences of the injury rather than the injury itself. (T110-111)
79 They also relied on the diagnosis of Dr Sullivan, who diagnosed a chronic pain condition consequent to exacerbation of cervical spondylosis and lumbar spondylosis. (PCB 35, T114, L1-5) They noted and relied on the diagnosis of Mr Doig (PCB 25), where Mr Al Hayeek is diagnosed as suffering from chronic low back strain and a chronic cervical spine strain with possible discogenic pain. (T115, L7-12)
80 They said the proper approach in a situation such as this was to follow the suggestion in the JCV Handbook, clause 4.3.3, paragraph 17:
“17. Judges should usually adopt a two-step process to disentangle the physical and psychological injuries:
(a)first, the judge determines whether there is a substantial organic basis for the injury. If there is then subject to the degree of impairment, the judge may find that there is a serious injury without needing to undertake the disentangling exercise …
(b)if the judge is not satisfied that there is a substantial organic basis, or cannot be satisfied, then the judge must proceed to disentangle the physical and psychological components of the pain and suffering consequences to determine whether the pain and suffering consequences of the physical injury meet the serious injury test …
18. Disentangling is not necessary in all cases where an injury contains both physical and psychiatric components. In some cases, the medical evidence may be enough to prove that the physical component of the injury is a serious injury, without the judge undertaking the task of ‘stripping away’ the psychological or psychiatric components from the overall impairment …”
81 They said that, in the present case, there was:
“an organic injury, being in all probability an aggravation of underlying spondylosis, and that as a result of that the plaintiff has developed chronic pain. Of course, this should be compared to a situation where somebody has a chronic pain condition without any underlying basis for it. Then if we were left with that situation, it would have to be looked at under sub-paragraph (c).” (T117, L18-25)
82 I turn, first, to the question whether it has been established that “there is a substantial organic basis for the injury”. The Handbook refers to the Court of Appeal Decision in Victorian WorkCover Authority v Nguyen [2016] VSCA 284 [36].
83 To ask whether there is an organic basis for an injury contains within it a latent ambiguity. The enquiry might lead to the answer “yes” on the basis that there are injury consequences which, in accordance with the terms of the Act, could be regarded as “serious” which are caused by a persisting underlying organic injury, leaving to one side the existence of any “psychological overlay”. Or, the question could be answered “yes” on the basis that the psychological or psychiatric reaction evident in the “chronic pain” was “set off” by an organic injury, which has, by the time of assessment, ceased to have an organic effect or organically caused consequences which, in terms of the Act, could be regarded as “serious”.
84 In the latter case, the “organic basis” for the psychological reaction could be seen as deriving from its being an ultimate cause rather than a persisting organic phenomenon. If it is sufficient to demonstrate the existence of an organic basis for an injury in establishing that it is a “serious injury” for the purposes of paragraph (a) and, where its amplitude is otherwise appropriate, that it was “set off” by an initial physical injury, I take this to be the effect of the contentions here by Mr Mighell QC and Mr Fogarty. The process of “disentangling” the organic and psychological consequences of an injury in determining whether it is “serious”, and by reference to which paragraph of the definition its seriousness should be judged, would scarcely arise. Almost invariably, a plaintiff points to some physical incident which creates some strain, inflammation or lesion in a bodily part. In my view, it would make nonsense of the distinction which s325(2) of the Act seeks to draw between physical or organic consequences on the one hand, and psychological and psychiatric ones on the other to adopt this approach.
85 The Act, by s325(2)(j), requires the assessment of “serious injury” to be made “at the time that the application is heard by the court”, subject to immaterial exceptions. That means, in my view, that the organic basis for the allegedly “serious injury” must persist to the date of assessment by the court, not be a mere piece of historic background to the plaintiff’s present condition.
86 Viewed in that light, what is the presently existing organic basis for Mr Al Hayeek’s pain and restrictions relied upon as pain and suffering consequences?
87 On this point, Mr Mighell QC and Mr Fogarty placed reliance on the opinion of Dr Sullivan. They said it was not necessary to use Dr Sullivan’s opinion to conclude that there is a substantial organic basis for Mr Al Hayeek’s pain and restrictions to embrace Dr Sullivan’s reference to “central sensitisation”, noting his statement at PCB 39 that there is an organic basis for the chronic pain syndrome being merely the underlying organic condition, lumbar and cervical spondylosis. (T120, L22-28)
88 The reference here is to Dr Sullivan’s report of 8 April 2019. In reaching his conclusion, as expressed at PCB 39, Dr Sullivan referred to CT and MRI scans carried out in 2016. I take Dr Sullivan to be expressing the opinion that this organic basis persists to the present day rather than merely a “first cause” of Mr Al Hayeek’s pain and restriction.
89 Dr Sullivan continued:
“The chronic pain condition in and of itself has also an organic basis characterised by changes within the central and peripheral nervous system that includes processes collectively known as ‘central sensitisation’. These pathophysiological changes are well documented in the medical literature and often pose medicolegal challenges when there are no corroborative gross radiological findings. However, in Mr Al Hayeek’s case there are clear associated radiological findings and a clear primary organic diagnosis causing the chronic pain condition.”
90 Drawing a distinction between psychologically-driven pain and restrictions on the one hand, and organically-driven pain and restrictions on the other is, as the authorities recognised, an artificial process which is, however, mandated by the Act.
91 Unsurprisingly, this artificial process is not within the normal sphere of analysis and reporting by treating practitioners, though it may be reflected in the types of treatment which they advocate. A psychological pain syndrome would be treated by reference to a pain management clinic, whilst an organically-caused pain condition might be treated by orthodox conservative treatments such as chiropractic, physiotherapy, analgesia and so forth, or perhaps surgical intervention.
92 The treating practitioners, therefore, in their reports have not sought to draw the difficult distinction. Failure to provide evidence which enables the distinction to be drawn may lead to the failure of the plaintiff’s claim for a finding of serious injury – Meadows v Lichmore Pty Ltd [2013] VSCA 201 [29] per Maxwell ACJ.
93 The concept of “central sensitisation” was not supported by any other medical witness relied on by either the plaintiff or defendant. It was not elaborated upon beyond the passage which I have already quoted from Dr Sullivan’s most recent report. In the absence of any other medical evidence to support it, and without further elaboration or explanation, I am unable to accept this diagnosis and, accordingly, I put it to one side.
94 Mr Doig’s opinion is supportive of the view that the pain and restrictions suffered by Mr Al Hayeek have an organic basis. Mr Doig diagnosed chronic strains in the neck and low back, and refers also to discogenic pain in the low back. Mr Doig considered that, even after a favourable outcome from a pain management course, Mr Al Hayeek might return to work only “on a relatively light job not including any heavy lifting, pushing, pulling or carrying”.
95 Mr Chan, neurosurgeon and spinal surgeon, is not a medico-legal examiner and, on the basis of my earlier observations, might not be thought likely to contribute a view on the present question of characterising the nature of Mr Al Hayeek’s pain and restrictions. He does, however, refer to “diffuse pain” and the outcome of “Spurling’s test, Hoffman’s sign and Tinel’s sign”, which might or might not shed light on whether the pain and restrictions are organically driven or not. As it is, since I have been provided with no evidence explaining the significance of these tests and signs, or the connotation of Mr Chan’s reference to “chronic diffuse pain”, in light of the Court of Appeal’s strictures in Jovceva, I put Mr Chan’s report to one side.
96 Of the defendant’s medico-legal opinions, Dr Navin and Mr Simm are clearly against there being an organic basis for Mr Al Hayeek’s pain and restriction. Mr Mighell QC and Mr Fogarty were critical of these examiners. They said that the downright statements to be found, for instance at DCB 9, of the lack of any evidence neurological, anatomical or pathological of any process to explain the pain and restrictions, demonstrates a biased and blinkered view on the part of Dr Navin in the face of the undoubted findings of disc protrusion or prolapse at the L5/S1 level found in a number of the scan investigations. In support of his view of the non-organic basis for the pain and restrictions, Dr Navin referred to “ankle reflexes” being “downgoing” and “Babinski” being “plantar”. He said, “in conducting the Babinski reflexes, a seated straight leg raise could be performed to 90 degrees. There was thickening of the skin on the soles of the feet.” The significance of this and Waddell signs referred to by Mr Simm might be derived from evidence which I have heard in other proceedings and some remarks made by Mr Middleton QC. However, once again, in light of the strictures of the Court of Appeal in Jovceva, it cannot be said that these matters have “firmly entered the lexicon of personal injury litigation”. Therefore, it would be wrong for me to attach any significance to them. Dr Navin attached an article published in the journal “Occupational Medicine (2010) Volume 60 127-132. Dr Poole worked in the Department of Occupational Health at the Dudley and Wolsall NHS Trust. The article entitled “Illness, deception and work: incidence, manifestations and detection” reported on the study of 400 referrals to Dr Poole’s National Health Service Occupational Medical Clinic in the period January 2007 to January 2008 detailing the measurement of grip strength. According to the article, normal grip strength for the right hand is 38.7 kilograms and 37.4 kilograms for the left. The doctor reported on a number of instances of hand weakness in grip strength. He distinguished between feigning symptoms simpliciter, which he described as “factitious disorder”, and feigning symptoms to obtain “external gain” such as monetary benefits or avoiding work, described as “malingering”. He described these two behaviours collectively as “illness deception”. In the present instance, Dr Navin observed, “Clinical assessment of him showed a positive hand movement and grip, inconsistent with his other behaviours during this assessment”. (DCB 8) Mr Simm observed as to grip strength tests which he administered that Mr Al Hayeek “registered 6 kgs with his right hand and barely moved the dial of the instrument with the left hand. These extremely low readings were not compatible with known physical factors.” Mr Simm continued, “There was a tendency to global collapsing weakness on resisted movements of the muscle groups of the upper extremities, more so on the left than the right.” (DCB 50)
97 It follows, therefore, that based solely upon the material put into evidence, without resort to explanation for a number of technical terms and test results which examiners have felt spoke for themselves without explanation for the non-expert reader, there is a significant body of findings supporting the overall opinion of the defendant’s experts that Mr Al Hayeek’s pain and restrictions are not organically driven.
98 In the present case, in contrast to the situation in Jovceva where there was extensive and graphic video surveillance demonstrating the plaintiff exhibiting ranges of motion beyond those reported by her to the court and to the various medical experts, there was no video surveillance of Mr Al Hayeek doing anything other than driving his motor vehicle to a consultation at CoWork in Malvern. Given that it has never been part of the case advanced to the court that he was disabled from driving entirely, the most that this video might be thought to demonstrate is that his statement that he now can drive only locally is a distinct exaggeration.
99 The situation, therefore, is that there is a body of evidence supportive of the view that Mr Al Hayeek’s pain and restrictions are organically based. Their extent and severity are of an amplitude that they can properly be characterised as more than merely marked, and are, in fact, very considerable, therefore meeting the standard laid down by the Act for “serious injury” under paragraph (a) of the definition. In the face of demonstrated pathology, it is difficult to reject the body of evidence relied on by the plaintiff and referred to above, based on opinions from defendant’s medico-legal advisers placing reliance on “tests” and “signs” whose purport could be judged only by reference to evidence heard in other proceedings and reference to medical works and dissertations not put in evidence. This view is not altered by the existence of observations and results which, as explained above, are fully elucidated, such as the issue of grip strength. Since the plaintiff’s case here does not depend upon any alleged arm weakness or arm disability based on spinal injury, the observations on grip strength seem relevant only to the general reliability of Mr Al Hayeek when giving a history and describing symptoms.
100 In those circumstances, with some hesitation, I conclude that the plaintiff makes good his case for a finding of “serious injury” within the terms of paragraph (a) of the definition.
101 As to the contention that a “serious injury” has been demonstrated in terms of paragraph (c), I note that both consultant psychiatrists who have assessed Mr Al Hayeek have diagnosed him as suffering from an adjustment disorder. This disorder so diagnosed appears to be a reference to a disorder described and furnished with clinical criteria by DSM‑5. These diagnoses may derive meaning and content from their treatment in that manual, but since the manual has not been placed in evidence, I cannot resort to it. As described in the passages quoted from Associate Professor Doherty’s report, the adjustment disorder which he diagnoses appears to be a response to stressors, including “the injury sustained, persistent pain, loss of employment and change in life circumstances”, together with “the final separation from his wife, granting of an intervention order and limited access to the children”. (DCB 66) According to the Associate Professor, it is only with the addition of the stressor caused by the imposition of the intervention order that Mr Al Hayeek has been subject to a diagnosable psychiatric disorder. Associate Professor Khalid, assessing at the request of the plaintiff’s solicitors, described an adjustment disorder “with mixed anxiety and depressed mood secondary to his physical injuries”. (PCB 79) The Associate Professor referred to the diagnostic criteria in DSM‑5. (Ibid)
102 I need not consider whether the diagnosis so made meets the criteria of having the consequence of more than merely marked but very considerable, which is a key criterion in determining the seriousness of a physical injury. Paragraph (c) requires the relevant disturbance or disorder to be “severe”. According to Brooking JA, the use of the word “severe” in paragraph (c), in contrast to the word “serious” in paragraph (a), “betokens a change in meaning”. He said that “severe” is used in the definition as a stronger word than “serious” – Mobilio v Balliotis [1998] 3 VR 833, 846. It is difficult to regard the consequence of the adjustment disorder as indicating its being “severe” in terms of the definition in the Act. For one thing, Mr Al Hayeek has not received any specialist psychiatric treatment, though that is not in itself conclusive. Moreover, his psychological presentation as of today is complicated and perhaps, as Associate Professor Doherty suggests, largely attributable to his eviction from the family home under an intervention order granted a couple of months ago. No serious injury is demonstrated in accordance with paragraph (c) of the definition.
103 I turn finally to the question of whether a serious injury has been made out relative to a proposed claim for loss of earning capacity. I need not traverse the detailed definitions required to be made under the statute to demonstrate the requisite seriousness of the consequences by way of loss of earning capacity. Mr Al Hayeek’s case here is that he has suffered an entire loss of his earning capacity and that there is no suitable alternative employment available to him. The phrase “suitable employment” is defined in s3 of the Act in the following terms:
“‘suitable employment’, in relation to a worker, means employment in work for which the worker is currently suited—
(a)having regard to the following—
(i) the nature of the worker's incapacity and the details provided in medical information including, but not limited to, the certificate of capacity supplied by the worker;
(ii) the nature of the worker's pre-injury employment;
(iii) the worker's age, education, skills and work experience;
(iv) the worker's place of residence;
(v) any plan or document prepared as part of the return to work planning process;
(vi) any occupational rehabilitation services that are being, or have been, provided to or for the worker;
(b)regardless of whether—
(i) the work or the employment is available; or
(ii) the work or the employment is of a type or nature that is generally available in the employment market;
and, for the purposes of Part 4, includes—
(c)employment in respect of which the number of hours each day or week that the worker performs work, or the range of duties the worker performs, is suitably increased in stages in accordance with return to work planning or otherwise; and
(d)employment the worker is undertaking or that is offered to the worker, regardless of whether the work or the employment is of a type or nature that is generally available in the employment market; and
(e)suitable training or vocational re-education provided by the employer, or under arrangements approved by the employer (whether or not the employer also provides employment involving the performance of work duties), but only if the employer pays an appropriate wage or salary to the worker in respect of the time the worker attends suitable training or vocational re-education;”
104 This application is brought under Part 7 of the Act and so it would seem paragraphs (c), (d) and (e) of the definition would not be applicable. It will be seen that the definition calls into play a raft of considerations. The defendant, by reference to a detailed report from rehabilitation consultants, CoWork Pty Ltd, and the findings which I have made as to the seriousness of Mr Al Hayeek’s injuries for the purposes of his claim for pain and suffering damages necessarily require me to reject the view taken by Dr Navin that there is no bar to Mr Al Hayeek’s resuming his pre-accident employment based on organic considerations. No other expert suggests that he could do this, and the CoWork report proceeds upon the assumption that he could not and that alternative, lighter employment should be sought. Mr Al Hayeek’s contention is that his limited English realistically disqualifies him from engaging in any of the alternative occupations suggested by CoWork. Mr Al Hayeek’s evidence commenced being given directly. However, because of practical problems, it was necessary to introduce an interpreter. Following his introduction, cross-examination proceeded far more efficiently. As I have noted along the way, he seems to have been accompanied by an interpreter to many or all of his consultations with the medical expert. It follows, in my view, that Mr Al Hayeek is correct in his view that his limited capacities with the English language constitute an effective bar to his engaging in any of the alternative employment opportunities identified. That being the case, he should be granted leave to commence damages proceedings under Part 7 of the Act relative to loss of earning capacity as well as pain and suffering.
Costs
105 I have heard no submissions on the question of costs and so I will reserve them.
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