Alikhail v VWA
[2020] VCC 1060
•21 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-19-05829
| ABDUL ALIKHAIL | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
---
JUDGE: | HIS HONOUR JUDGE LAURITSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 and 29 June 2020 | |
DATE OF JUDGMENT: | 21 July 2020 | |
CASE MAY BE CITED AS: | Alikhail v VWA | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1060 | |
REASONS FOR JUDGMENT
---
Subject:
Catchwords:
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Church v Echuca Regional Health [2008] VSCA 153; Meadows v Lichmore Pty Ltd [2013] VSCA 201
Judgment:
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Monti QC with Mr P Hamilton | Zaparas Lawyers |
| For the Defendant | Ms C Spitaleri | Wisewould Mahony |
HIS HONOUR:
Introduction
1 Abdul Alikhail seeks leave to issue a proceeding for the recovery of damages for injuries allegedly suffered at work on 31 January 2018. His organic injury allegedly comprises an impairment of the body function of his spine. He also alleges a psychological injury. He claims these injuries satisfy paragraphs (a) and (c) of the definition of “serious injury” contained in s325(1) of the Workplace Injury Rehabilitation and Compensation Act 2013 (the Act). His application is made in respect of pain and suffering damages and pecuniary loss damages.
Circumstances
2 Mr Alikhail is 39. He was born in Afghanistan. He came to Australia in 2013 as a refugee and remains on a temporary protection visa. He is married but his wife and five children still live in Afghanistan.
3 His formal education is very limited, completing the equivalent of Year 7 in Afghanistan. After school, he worked as a farm hand, a taxi driver, manager of a small shop and a supervisor of a security company. He went from Afghanistan to Dubai, Singapore, Kuala Lumpur and then Australia. He spent about 40 days in immigration detention in Christmas Island and Darwin.
4 After his release from detention, he gained employment with the Footscray Collision Care Centre. He worked as a panel beater for a little less than a year. Since he had not previously worked in that capacity, I assume he learnt on the job.
5 In October 2017, Mr Alikhail started working as a panel beater with Intermotor Sales (Deer Park) Pty Ltd, trading under the name of Le Mans Toyota.
6 On 31 January 2018, Mr Alikhail was walking on a carpark at his workplace. The concrete surface was uneven, wet and slippery. He slipped on the surface, fell and landed heavily. He injured his back, right shoulder and left knee.
7 He was taken by taxi to the Western Hospital. His right shoulder and lower back were x-rayed. He was discharged with analgesia.
8 Mr Alikhail went to his general practitioner, Roozbeh Malekzadeh. He complained of right shoulder and back pain as well as headache and dizziness. He was prescribed Voltaren and Lyrica.
9 During early February 2018, he experienced pain down his right leg.
10 In March 2018, he attended a chiropractor, whose sessions did not help. Later, he undertook hydrotherapy, which also did not help.
11 In June 2018, he flew to Afghanistan to see his wife, who was ill.
Current situation
12 Mr Alikhail lives with a friend in a small, two bedroom unit. He has not returned to work and receives weekly payments of compensation. He loved the work he did but it is his pain which stops him returning. He wants to get better and return to work. He needs to help his family in Afghanistan financially.
13 Mr Alikhail suffers constant pain across his lower back, which he describes as “stabbing”. He suffers constant right leg pain. It worsens when he walks. At times, this leg becomes numb. When walking for more than 20 to 30 minutes, he experiences a burning sensation through his back.
14 He experiences constant, severe pain in his right shoulder. There is a burning sensation. He can use his right hand to lift light objects, a glass of water and phone. He eats using his right hand. He uses his right hand when driving.
15 He has constant pain on the right side of his neck. He cannot raise his right arm and has lost strength in his right hand and arm. He cannot turn his head well. He now moves his neck slowly. A faster movement causes pain there and in his shoulder. He can look over his shoulder but not completely because of the pain. He can do a shoulder check while driving.
16 He does not sleep on his right side. To carry anything, he relies on his left arm. He limps. He is fearful of favouring his left side for the damage it might do to his left leg and lower back. Instead of a crutch, he uses a four-wheel frame if he has a lot of walking to do.
17 He is miserable. He feels depressed, anxious and stressed. He suffers from sleeplessness, nightmares and fear of sudden noises. He wakes up regularly during his sleep and has only a few hours of sleep. It leaves him exhausted the next day. He suffers from constant headaches. He would like to see his family, including his wider family, to leave war-torn Afghanistan and come to Australia.
18 He takes four medicines daily: Baclofen (muscle relaxant), Norgesic (analgesic), Pristiq (anti-depressant) and Mirtazapine (anti-depressant).
19 He cannot sit too long because of increased pain in his back and right leg. He cannot stand for more than five minutes without his pain in his back and leg becoming severe. Standing too long causes both legs to get “shaky”. He has difficulty bending, twisting, stooping, pushing and pulling. He cannot straighten his back. He now experiences what he calls “pain numbness” in his left leg.
20 He must be careful dressing and showering to avoid an increase in pain. He now showers irregularly. He relies on his friend and housemate to do most of the cooking, washing up and cleaning about the house. He does very light and simple tasks. He eats out. His appetite is lessened. He does his own washing and light shopping.
21 He drives locally as longer trips cause increased pain in his back, leg and shoulder. He no longer runs, which he did regularly before the accident and which he loved. He does not attend the gym or swim or go on long walks, activities he enjoyed before the accident. He does not socialise as he did before.
22 He is treated by his general practitioner, whom he sees monthly. He is treated by Dr Ong monthly. He now sees a psychiatrist, George Camilleri. Previously, he was treated by Dr Asadi. Although living in Australia since 2013, his spoken English is limited. He can speak Dari and Pashto and a little Persian.
Medical evidence
Malekzadeh
23 Roozbeh Malekzadeh is a general practitioner. He has treated the plaintiff for these injuries since 1 February 2018. His report is extraordinarily cryptic. For diagnosis, Dr Malekzadeh recites the results of the MRI scans taken on 4 June 2018 regarding the low back and x-rays and ultrasound of the right shoulder taken on 8 April 2020. Overall, his reports are of no assistance for it is unclear whether he relates the results of the scans, x-rays or ultrasound to the fall.
Di Mauro
24 Daniel Di Mauro is a physiotherapist. He completed a standard form report for the defendant dealing with the plaintiff’s attendance at the pain management programme between 5 February and 18 April 2019. The plaintiff participated in individual and groups sessions in physiotherapy and psychology. The combined number of sessions was 55.
25 Overall, the plaintiff’s engagement with the programme was limited. It was suggested this was due to his Adjustment Disorder as the plaintiff was depressed, unmotivated, anxious, pre-occupied, absent-minded and irritable. The only positive was reducing his opioid intake.
26 As to diagnosis, Mr Di Mauro noted:[1]
“Non-specific cervical, right shoulder and lower back pain related to a fall at work in January 2018. There are clinical features of high severity central sensitisation affecting his overall presentation.”
[1]Report dated 18 April 2019 at p 2.
Vellore
27 Yagnesh Vellore is a neurosurgeon and spinal surgeon. He examined Mr Alikhail on 17 April 2019 at the request of his general practitioner. His examination was very limited:[2]
“…he mobilised with the four-wheel frame. He was able to walk independent of the frame; however, he maintained the simian position. Examination was unable to be concluded fully due to the significant amount of pain that he had with any form of movement. He appeared to have gross normal motor power in all four limbs, however, as he was able to ambulate independently and move his arms purposefully.”
[2]Report dated 17 April 2019.
28 The imaging showed little, L5 pars defect, mild anterolisthesis and possible irritation of L5 roots.
29 He referred Mr Alikhail to Debo Gorai, a neurologist.
Gorai
30 Debo Gorai examined Mr Alikhail in June and July 2019:[3]
“Examination was very hard as he was complaining of pain. Reflexes are once again very symmetrically well preserved in both upper and lower limbs. There is no obvious asymmetrical or symmetrical wasting of any myotomal groups in upper or lower limbs.”
[3]Report dated 3 July 2019.
31 Nerve conduction and EMG studies were unremarkable. There was no electrophysical evidence of peripheral neuropathy or cervical or lumbar radiculopathy.
Jensen
32 Steven Jensen specialises in musculoskeletal pain medicine. He examined Mr Alikhail in about November 2018 at the request of his general practitioner. After noting his presentation in “a very non-organic, disabled way”, his inability to examine because of the claim “all manoeuvres caused severe pain”, a full range of shoulder movement when distracted and little on the imaging.
33 Dr Jensen viewed MRI scans of the cervical and lumbar spine. He noted the lumbar discs were healthy, white discs of normal height. He also noted the bilateral pars defects, commenting that these had probably been present since the plaintiff’s teens. These defects had caused slight anterior listhesis of L5 on S1.
34 Dr Jensen said:[4]
“My perception is that this is all predominantly psychosocially based given the degree of disability and the lack of any specific pathology. His degree of disability is off the scale for the nature of the injury and his imaging studies.”
[4]Report dated 16 November 2018.
Ong
35 Malcolm Ong is a pain specialist. He first examined Mr Alikhail on 12 December 2018. He entered a pain management programme in February 2019 but was prematurely discharged due to his poor response to the treatment. Notwithstanding the discharge, Dr Ong saw him on several occasions with the last being on 23 April 2020:[5]
[5]Report dated 18 May 2020 at p2.
“At my last review, he still experienced his physical symptoms and limitations but was trying without success to manage his conditions better, but having significant difficulty.
Psychologically he remained apprehensive with anxiety and depression, and required some medication adjustments and ongoing monitoring, and has had little progress as well.
He is very focussed on his pain. He does not believe he will get better. He has ‘huge fear avoidance traits’.
36 From his reports, it is difficult to know what Dr Ong diagnoses. In his last report, under the heading of “Impression/Diagnosis/Differentials”, he offers many comments, some of which are initials only. Some read like diagnoses – “chronic cervical and thoracolumbar pain syndrome from traumatic work related injury with OA [osteo-arthritic?] disease with inflammatory and myofascial conditions, including discogenic and neuropathic components” and “centralisation of pain syndrome”. Others read like impressions, for example, abnormal belief systems and suicide risk. If there are differential diagnoses in his list, then I cannot tell, for he does identify one from another. Finally, he apparently diagnoses psychological disorders, adjustment disorder and post-traumatic stress disorder. Looking at his list appointments, none seem to involve the expertise to make such diagnoses.
37 Dr Ong placed very broad limitations on what Mr Alikhail cannot do: lift more than 2.5 kilograms; adopt prolonged positions (sitting, standing); performing excessive or repetitive duties (pushing, pulling, bending, crouching, kneeling, crawling, squatting fully); working overhead or at floor level; twisting duties; avoid overusing his right hand; avoid excessive fine hand motor skills work; and heavy manual repetitive duties.
38 His capacity for work is marginal and restricted to very light office duties one or two days a week for one to three hours per day with breaks. It appears Dr Ong sees these restrictions hold for the neck, considered in isolation, as well as the right shoulder and lower back being similarly considered. His impairments are permanent.
39 There is the non-physical aspect:[6]
“There is a huge degree of depression, anxiety, fear avoidance, abnormal belief systems, pain focus, abnormal pain perception, and multiple other psychosocial issues and lack of supports, all of which compounds his pain syndrome and all the secondary effects of his injuries.”
[6]Op cit at p 14.
Newman
40 Robert Newman is a consultant cardiologist. At the request of his general practitioner, Dr Newman examined the plaintiff on about 27 March 2019. He found the plaintiff had a normal heart. The symptoms he complained of were not due to his heart. They were occasional palpitations and sharp needle-like pain in both pectoral regions.
Asadi
41 Sam Asadi is a consultant psychiatrist. He treated Mr Alikhail on nine occasions between October 2018 and July 2019. It appears Dr Asadi did not need an interpreter. His treatment consisted of psychoeducation and supportive psychotherapy. Owing to the lack of progress, Dr Asadi varied his medicines over the course of his examinations. By the last visit on 22 July 2019, Mr Alikhail was saying he felt worse. Dr Asadi recommended his general practitioner refer him to another psychiatrist for a second opinion.
42 Dr Asadi diagnosed an Adjustment Disorder. Its key components of depression and anxiety are secondary to the effects of his physical injury. If those effects disappeared so would his psychological symptoms. His prognosis is guarded.
43 Dr Asadi considered the plaintiff was unable to perform his pre-injury duties or alternative duties in the future due to several factors including chronic pain, poor confidence about his physical ability, poor motivation due to depressed mood, anxiety about further injuries at work, and unpleasant memories of his pre-injury job. By his inclusion of chronic pain, Dr Asadi is speaking of an organic symptom, not a psychological one. I do not understand him to say the plaintiff is unfit for work on purely psychological grounds.
44 Earlier, he mentioned the possibility of Mr Alikhail assuming a chronic sick role. For the purposes of capacity for work, he doubted whether the effect of the psychological condition could be precisely separated from the physical.
Asaid
45 Raf Asaid is an orthopaedic surgeon. On 25 February 2020, he examined Mr Alikhail at the request of his solicitors.
46 His examination was severely limited owing to the unwillingness of Mr Alikhail to be examined beyond a point, claiming severe pain. His opinion was limited due to the inability to examine properly. Although Mr Asaid sought to examine broadly, the questions posed by the solicitors related to the right shoulder only.
47 After being given a supplementary report of a pain specialist, Dr Sullivan, and the report of recent x-rays and ultrasound of the right shoulder, he commented on them. He now attributed the current shoulder condition to the fall although noting the ultrasound findings do not completely account for the examination findings and clinical presentation. He does not say the pain in the right shoulder comes from the neck. In fact, the result of the ultrasound lends no support to the suggestion of referred pain from the neck: supraspinatus tendinosis and enthesopathy and mild subdeltoid/subacromial bursitis.
48 Despite the ultrasound showing relatively mild findings, Mr Alikhail developed “a chronic pain condition with a significant psychological overlay to his presentation, and as a result, his symptoms and incapacity will likely persist for the foreseeable future”.[7]
[7]Report dated 16 May 2020.
49 Mr Asaid maintained his earlier opinions. The right shoulder condition will persist for the foreseeable future. He has significant difficulties performing activities involving pushing, pulling or lifting, overhead activities, gripping, holding, carrying, typing, writing or using tools. He cannot perform his pre-injury duties and that will continue for the foreseeable future “particularly if his condition remains inadequately investigated”. He will struggle to perform any employment options requiring activity above shoulder height or heavy lifting, pushing or pulling.
Sullivan
50 Richard Sullivan is an interventional pain specialist and specialist anaesthetist. He examined Mr Alikhail on 18 February 2020 at the request of his solicitors. This was their second meeting, the first occurred on 29 April 2019.
51 Dr Sullivan believed Mr Alikhail suffered from a pain condition. It is chronic. It has several sources but predominantly the lower back and right shoulder. It is caused by the injury he suffered in the fall.
52 For his second report, Dr Sullivan was asked:[8]
“2. Having regard to initial report of 29 April, 2019, do you maintain your opinion in respect to the diagnosis of Mr Alikhail’s low back and right shoulder pain conditions identified in response to question 2 of that report?
[8]Report dated 18 February 2020 at p 4.
53 He replied:
“Yes. I maintain the diagnoses Mr Alikhail continues to present as a multifocal chronic pain sufferer with lower back pain and right-sided shoulder pain. There is historical and examination findings that would be consistent with the organic process of central sensitisation, however, this is clouded by the significant pain behaviour demonstrated throughout both medicolegal examinations.”
54 In answer to another question, Dr Sullivan said he believed central sensitisation plays a substantial role in terms of the plaintiff’s chronic pain condition that affects largely his low back and right shoulder.
55 Pausing there, I suppose the fact of “clouding” led Dr Sullivan to say that central sensitisation plays a substantial, but not a total, role in the plaintiff’s pain condition. He noted the appearance of a substantial psychological sequelae as a result of the physical injury and chronic pain condition and even suggested a specific psychological disorder with what he called “substantive pain behaviouring”.
56 Dr Sullivan saw the need for continuing rehabilitation -style treatment. Since the current treatment appeared unsuccessful, he suggested the plaintiff seek alternative treatment. He expected the pain from the plaintiff’s low back and right shoulder would continue into the foreseeable future.
57 Looking at the right shoulder and low back separately from each other and everything else, Dr Sullivan considered Mr Alikhail unfit for his pre-injury duties as well as the five occupations set out in a vocational report dated 11 September 2019.
Awad
58 Mohammed Awad is a neurosurgeon. He examined the plaintiff at the request of his solicitors on 26 February 2020.
59 His examination revealed:[9]
“…he walks completely fixed at the hips with his right leg in an antalgic position. He is using a four-wheel frame to mobilise and doing so extremely slowly. It is clearly very difficult to examine him due to his pain at the moment but he is limited in what he can do with his back and also his right leg predominantly. Sensation is somewhat disturbed in the L5 distribution.”
[9]Report dated 26 February 2020 at p 3.
60 Whether Mr Awad viewed the MRI scans of the lumbar and cervical spines taken on 9 October 2018 or simply read the radiologist’s report, he noted bilateral L5 pars defect without associated marrow oedema; minimal anterolisthesis of L5 on S1 with no nerve root compression; and essentially a normal cervical spine.
61 Mr Awad diagnosed a chronic spinal pain syndrome and an aggravation of lumbar spondylosis and spondylolisthesis. The syndrome related to the effect of pain from the cervical and lumbar spines. He did not diagnose a specific injury to the neck. It was part of the spinal pain syndrome. Although Mr Alikhail complained of lower back and right leg pain and neck and right shoulder pain, Mr Awad does not link the lower back to the right leg or the neck to the right shoulder. The only mention of the back and leg is the comment that sensation is somewhat limited in the L5 distribution. There is no explanation of the significance, if any, of that finding.
62 Mr Alikhail was incapacitated for his pre-injury duties and alternate duties.
63 As to prognosis, he said there would be some degree of pain and disability into the foreseeable future.
64 Focussing on the neck and low back, Mr Awad considered the plaintiff incapacitated from performing his pre-injury duties or five suggested occupations from the perspective of neck in isolation and the low back in isolation.
Love
65 Bruce Love is a consultant orthopaedic surgeon. At the request of an authorised agent, he examined the plaintiff on 29 March 2018.
66 Associate Professor Love found difficulty in examining the plaintiff. For example, with the lumbar spine, he resisted the request to move in any direction. Nevertheless, his “working” diagnosis was a musculo-ligamentous soft tissue injury of the cervical spine, lumbar spine and right shoulder girdle. He was pessimistic about the short-term prognosis.
67 The plaintiff was entirely incapacitated for work. Associate Professor Love expected some time to pass before there were signs of improvement. He was conscious of the plaintiff’s extreme reaction to his examination, particularly with the absence of movement of the affected parts of his body.
Miller
68 Andrew Miller is an occupational health consultant. He examined the plaintiff on 6 September 2018 at the request of an authorised agent.
69 Dr Miller believed the plaintiff suffered a chronic soft tissue strain and contusion injury to his neck, back and right shoulder. He then commented:[10]
“It was not possible to assess the functionality of the affected areas today as he declined to cooperate with a display of movements of those areas due to pain. You provided me with a copy of the surveillance/activity report dated 27 June 2018. I also viewed the surveillance DVD. This information is in direct contrast to the worker’s presentation today as it appears to reveal that the worker has been active and has also been performing manual labouring tasks. It is therefore apparent that it is possible there was purposeful exaggeration of his presentation today and that his genuine capacity for work is considerably greater than he portrays or alleges. His major impediment appears to be his emotional state and I believe that this will need to be addressed with psychological counselling and medication. It appears that he is incapable of undertaking his pre-injury duties but is certainly capable of working with the following restrictions: avoid lifting in excess of 5kg, avoid movements of his neck, back or right shoulder beyond a comfortable range, avoid forceful pushing or pulling activities.”
[10]Report dated 7 September 2018 at p 4.
70 Unfortunately, the DVD and the associated report did not relate to the plaintiff. The wrong person was watched on that occasion. Since, the DVD appears to have weighed significantly in Dr Miller’s report, I can give his opinions little weight. However, his limited examination findings are unaffected.
Barmare
71 Arshad Barmare is a consultant orthopaedic surgeon. He examined the plaintiff on 11 October 2019 at the request of an authorised agent.
72 Despite the inconsistency between the results of the clinical examination and the complaint of symptoms, Mr Barmare believed Mr Alikhail suffered from chronic pain all over his body and this was due to the fall. Because of the amount of pain and the use of the walking frame, he considered the plaintiff incapacitated for all work.
73 Mr Barmare believed he needed further intervention by a pain specialist and, perhaps, assessment by a psychologist. Cessation of his current pain management and physiotherapy might lead to an inability to do the activities of daily living on his own.
74 Although supplied with a copy of Dr Miller’s report and noting Dr Miller’s comment about being more active and doing manual labouring tasks, Dr Barmare declined to comment on whether Mr Alikhail was exaggerating because he had not seen the DVD.
75 Mr Alikhail was incapacitated for all work but a gradual move to light or modified duties could be considered in the next three to six months and his return to work re-assessed in the next six to nine months.
76 Although Mr Barmare did not diagnose any condition, he apparently treated the plaintiff’s complaints of pain as genuine.
Boffa
77 Umberto Boffa is a consultant occupational and environmental physician. He examined the plaintiff on 29 May 2019 at the request of an agent of the defendant.
78 Associate Professor Boffa did not strictly diagnose the plaintiff’s condition, saying it was an undefined physical injury in the context of widespread symptom amplification without upper or lower limb radiculopathy.
79 His condition precludes returning to his pre-injury or alternate duties for he has no physical work capacity based on his presentation that day. He added this intriguing comment:[11]
“The worker’s capacity would be better reviewed by serial surveillance rather than through IME assessment.”
[11]Report dated 29 May 2019 at p 4.
Varma
80 Shashjit Varma is a consultant psychiatrist. He assessed the plaintiff at the request of an authorised agent on 26 March 2019.
81 Associate Professor Varma read a report from Mr Miller, who had viewed a DVD, taken on 27 June 2018. He quotes from that report.
82 He diagnosed an adjustment disorder with depression, secondary to his chronic lower back injury. The psychiatric condition had not resolved. He was incapable of performing his pre-injury duties with this or another employer. He is incapacitated for any other employment. However, he believed the incapacity may continue for another six to nine months.
Grant
83 Chris Grant is a psychiatrist. He assessed the plaintiff on 27 November 2019 at the request of an authorised agent.
84 As with most medical experts, the plaintiff used a walking frame and was bent double at the start of the interview. However:[12]
“As the interview proceeded, he made good eye contact and gave a detailed and discursive history. There was a marked discord between his account of his mood symptoms and how he presented and related during interview. Similarly, there was a marked discord between his presentation at the start of the interview compared to how he conducted himself during the interview and when distracted.”
[12]Report dated 27 November 2019 at p 5.
85 Dr Grant diagnosed a mild adjustment disorder with mixed emotional features. The disorder arose in the context of pain and functional incapacity due to his injury at work but compounded by his isolation from his family in Afghanistan.
86 Psychiatrically, he had a capacity for suitable employment, including those occupations described in an unidentified vocational assessment.
Vocational assessment
87 On 3 September 2019, AMS Consulting assessed the plaintiff for the purposes of a 130-week vocational report.[13] It appears the only medical information available to the assessor was the general practitioner’s latest certificate of capacity, saying there was no capacity for work. The assessor relied on the plaintiff for information about his treatment, medicines, physical tolerances and factors impacting his return to work.
[13]Report dated 11 September 2019.
88 It appears the plaintiff did not attend the interview with his walker for it is not mentioned in the report. What is mentioned under the heading of “self-reporting of physical tolerances” is “Standing: 5-10 minutes capacity in hunched position”.
89 The assessor identified six jobs as likely to be appropriate given his previous work history and/or his current capacity: packer, product assembler (light items), product examiner, product graders, machine operator and taxi driver.
Surveillance
90 The court was shown just over seven minutes of surveillance film taken on 21 February 2020. It was taken in a café or restaurant. Most of the film was taken side on to Mr Alikhail and from his right side. There was another 27 minutes of film taken over four days. Remarkably, those films were taken during the course of 56 hours of surveillance.
Radiology and other investigations
91 The Plaintiff’s Court Book contains the reports of x-rays, ultrasound, MRI scans of the cervical, thoracic and lumbosacral spine, brain and right shoulder taken between 31 January 2019 and 9 April 2020. There is also a report of nerve conduction studies.[14]
[14]Plaintiff’s Court Book at pp 131 to 140.
92 There are three reports concerning MRI scans and x-rays of the lumbar spine: 9 October 2018, 9 May 2019 and 8 December 2019.
93 For the first, the radiologist concluded:
“Minor L5/S1 disc desiccation and disc bulging without neural compression. Chronic bilateral L5 pars defects and minimal anterolisthesis L5 on S1.”
94 With the second, the radiologist noted the inability of the plaintiff to extend adequately, precluding an adequate assessment. Nevertheless, he noted bilateral L5 pars defect with no appreciable anterolisthesis of L5 on S1.
95 Finally, the report of the MRI scans of 9 December 2019 is somewhat ambiguous. The radiologist reports congenital pars defects at L5-S1, rather than L5. The defects are chronic. Given what a pars defect is, to a layperson, this is an unusual way of expressing it. I assume “chronic” is a way of saying longstanding. She adds that the defects do not cause spondylolisthesis, which I take to mean she did not see evidence of the anterior listhesis noted in earlier scans and x-rays.
96 X-rays and ultrasound were taken of the right shoulder on 9 April 2020. The radiologist concluded:
“supraspinatus tendinosis and enthesopathy, but no tear. Mild subdeltoid/subacromial bursitis.”
Legal considerations
97 The plaintiff relies on paragraphs (a) and (c) of the definition of “serious injury”. He asserts both pain and suffering and loss of earning capacity consequences. The body function is the spine, specifically the neck and low back. He relies on referred pain from the neck into his right shoulder and from the low back into the left leg.
98 In paragraph (a), serious injury means permanent serious impairment or loss of a body function. In paragraph (c), it means permanent severe mental or permanent severe behavioural disturbance or disorder. The terms “serious” and “severe” are satisfied for any impairment or loss or disturbance or disorder relating to pain and suffering or loss of earning capacity by a comparison with other cases in the range of possible impairments, etc.[15] The comparison must lead to the consequence being more than significant or marked and as being at least very considerable.[16]
[15]s325(2)(b).
[16]s325(2)(c).
Discussion
Credit
99 The defendant criticised the plaintiff’s reliability as a witness. It pointed to his lack of co-operation with requests from examining practitioners and what it categorised as gross illness behaviour in his presentation to those examiners. Essentially, it submitted I should reject his complaints as being organically based, especially in light of limited spinal pathology revealed through radiology.
100 It is a constant theme in the medical reports of the plaintiff’s resistance to demonstrate the range of movement of his cervical and lumbar spine. The medical experts accepted his explanation that pain prevent him from demonstrating and deferred to his position. Many made some observations about his unguarded movements. No one suggested he was pretending.
101 It is fair to describe the plaintiff’s presentation to the medical practitioners as grossly abnormal. For example, Dr Sullivan recorded on 18 February 2020:[17]
“On examination, he continued to display the same pain behaviours as per his presentation in April 2019. This included grimacing and exaggerated responses to movement. He essentially refused to move his right upper limb with his hand beyond his shoulder and he refused to put his right upper limb behind his back. Palpation around his right shoulder girdle yielded a substantial pain aggravation. Palpation around his rather tight lumbar paravertebral muscles also yielded pain aggravation. He refused to forward flex or extend a substantial amount perhaps 5 [degrees] at most. He certainly professed being unable to adopt an erect posture…”.
[17]At p 3.
102 The cause of this presentation may be solely organic, solely non-organic or a combination of organic and non-organic.
103 The defendant submitted the surveillance film showed the plaintiff moving his neck from side to side and looking over his shoulder, all without apparent difficulty. The plaintiff did not deny his ability to turning his neck from side to side, just that he avoided doing so suddenly.
104 This film is an extract of seven minutes from a larger period of filming (27 minutes), which is itself a small part of a much larger period of surveillance (56 hours). In view of those figures, I would not use the film to draw any conclusion about whether he is exaggerating the effect of the injury to his neck because it may be a selection unrepresentative of the true picture. I cannot tell because I know nothing of what is depicted in the other film or what was observed over so many hours. In an adversarial system, one supposes this is the most material film from the defendant’s perspective. If so, then aside from the above consideration, it tells me little.
105 The film also depicts the plaintiff hunched over as he walks to collect something and as he leaves the café or restaurant. I would not treat this depiction as necessarily representative of the way he stands or walks for the same reason.
106 In light of the observations of Ashley JA in Church v Echuca Regional Health,[18] I may use the fact of extensive observation, and so little shown, to find it favoured the plaintiff. However, I was not invited to use it in that fashion.
[18][2008] VSCA 153 at [98].
107 I do not agree that Mr Alikhail is an unreliable witness. As can be seen below, I am satisfied as to the organic basis of his complaints of pain. His presentations to various practitioners do not lead me to doubt his reliability.
Injury
108 There are a variety of views about the injuries suffered by the plaintiff. The general practitioner does not really give a diagnosis. Instead, he refers to aspects of the radiological reports and leaves it at that. The earlier medico-legal views are essentially soft tissue injuries. It is a pity Dr Ong’s views are so obscure for he has treated the plaintiff for some time.
109 The more definitive view comes from Mr Awad – chronic spinal pain syndrome, secondary to an aggravation of the pre-existing lumbar spondylosis and spondylolisthesis. Mr Awad did not explain what he meant by “spinal pain syndrome”. In my experience, unless pressed, medical experts rarely explain the terms they use. I would infer this pain syndrome is organically based. Mr Awad is a neurosurgeon and not a psychiatrist or psychologist and he identifies a part of the body rather than a widespread coverage as seen in psychological disorders.
110 Finally, the pain specialist, Dr Sullivan, diagnoses central sensitisation. Maybe Dr Ong supports that diagnosis, but it is unclear what he actually diagnoses. Similarly, Dr Sullivan did not explain the meaning of “central sensitisation”. It describes an organic condition causing a heightened perception of pain.
111 On the evidence, there are two things working together. There are injuries to neck, right shoulder and back, with the last the most significant. These injuries cause central sensitisation. The existence of central sensitisation explains organically what might, to physical specialists, appear to be a functional or psychological overlay.
112 I have referred to the various radiological and other investigative reports. Although the radiology does not reveal a great deal, it does assist some of the medical experts. It would be a mistake for me to draw medical conclusions from the radiological reports without the aid of the expert opinion.
Substantial organic basis or not
113 The defendant helpfully referred me to Meadows v Lichmore Pty Ltd.[19] In that case, Maxwell P found no error in law for adopting an analytical tool for assessing the evidence which involved two steps. The first step asks whether there is a substantial organic basis for the pain and suffering consequence relied on and, presumably, loss of earning capacity consequence. If the answer is yes, then there is no need to disentangle the physical contribution to the pain and suffering consequence from the psychological. If the answer is no, then then there must be the disentangling process.[20]
[19][2013] VSCA 201.
[20]At [21], [22], [24] and [25].
114 If the behaviour of the plaintiff at examinations and elsewhere lacked an organic basis or a substantial organic basis, then one would expect the psychiatrists to identify the psychological basis.
115 In light of Dr Jensen’s comments, one might have expected one or other or all of the psychiatrists to say the plaintiff suffered from some form of pain disorder, to use an old-fashion term. They do not. Each of Dr Asadi, Associate Professor Varma and Dr Grant diagnoses an Adjustment Disorder where it is the psychological reaction to pain caused by a physical injury. Their differences lie in the degree of its severity and the psychiatric impact on the plaintiff’s capacity for work. Implicitly, they accept an underlying organic condition as the stressor behind the disorder. They do not raise any of the disorders discussed in the chapter entitled “Somatic Symptom and Related Disorders” in the Diagnostic and Statistical Manual of Mental Disorders, fifth edition (DSM-5) or the chapter entitled “Somatoform Disorders” in the previous edition.
116 For analytical purposes, I am satisfied the pain and suffering and loss of earning capacity consequences have a substantial organic basis.
Body function
117 The evidence does not support the assertion that there is referred pain from the neck into the right shoulder or from the low back into the right or left leg. As I said earlier, there is no evidence of referred pain from the neck into the right shoulder. The injury to the right shoulder stemmed from the fall and stands alone as a discrete injury. There is no evidence of referred pain from the lower back into either leg. Accordingly, I cannot consider the impairment of the body function associated with the right shoulder or the legs in this application.
Pain and suffering consequence
118 I accept the opinions of Messrs Asaid and Awad and Dr Sullivan. There are injuries to each of the right shoulder, neck and lower back. Ignoring the right shoulder and the legs, the injuries to neck and lower back cause constant pain, the experience of which is enlarged by central sensitization. There is no reason to suppose central sensitization would not have occurred in the absence of the contributions from the shoulder and legs.
119 I have already set out the plaintiff’s current state. Taking only those relating to the neck and lower back, their consequences, especially the pain, are more than significant or marked and at least very considerable.
Loss of earning capacity consequence
120 I accept the opinion of Dr Sullivan in relation to the right shoulder and lower back. He satisfies both the narrative and threshold tests.
Psychological injury
121 Given the test for mental or behavioural disturbance or disorder, the evidence is weak. There is the evidence of the former treating psychiatrist. He stopped seeing Mr Alikhail in July 2019 because of his poor response to his treatment. Then there is the evidence of two medico-legal psychiatrists who assessed him on behalf of the defendant.
122 Mr Alikhail experiences pain. It causes him to be depressed and anxious. It underlies Dr Asadi’s diagnosis of an adjustment disorder. His depressed and anxious mood displays their own symptoms, poor motivation and anxiety about further injuries at work. The disorder persists as long as the pain persists and will cease when that ceases. Although Dr Asadi believed Mr Alikhail is unable to work at all, this is due to the combination of physical and psychological factors, which Dr Asadi cannot separate.
123 The general practitioner referred Mr Alikhail to another psychiatrist, Dr Camilleri. There was no report from that person, which is understandable given there has been only two consultations.
124 In March 2019, Associate Professor Varma reached the same diagnosis. He believed the disorder was secondary to the lower back injury. Despite Mr Alikhail’s incapacity for any work at the time of the assessment, he considered the duration of the incapacity to be six to nine months.
125 Dr Grant assessed Mr Alikhail more recently than the other two. He appeared to Dr Grant much better than his statements about his condition would suggest. He also diagnosed an adjustment disorder. It had been treated and its severity was mild. He maintained Mr Alikhail’s suitability for work.
126 Such is the state of the evidence. It does not establish a serious injury relying on a severe mental or behavioural disturbance or disorder. Dr Asadi has not assessed Mr Alikhail for nearly a year. Associate Professor Varma saw the disorder as having a limited lifespan. Dr Grant does not see the disorder as ended but lacking the severity to satisfy the test.
Conclusion
127 I will grant Mr Alikhail leave to commence a proceeding for the recovery of damages for pain and suffering and pecuniary loss in respect of his spine.
0
2
0