Alimov v AHS Hospitality Group
[2011] VCC 1222
•26 August 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. C1-09-05744
| BUKIRIJE ALIMOV | Plaintiff |
| v | |
| AHS HOSPITALITY GROUP PTY LTD | Defendant |
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| JUDGE: | Judge Howie |
| WHERE HELD: | Geelong |
| DATE OF HEARING: | 18, 19, 22, 23, 24 August 2011 |
| DATE OF JUDGMENT: | 26 August 2011 |
| CASE MAY BE CITED AS: | Alimov v AHS Hospitality Group |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1222 |
REASONS FOR JUDGMENT
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Catchwords: s 134AB Accident Compensation Act 1985; serious injury application
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison SC and Mr A | Ryan Carlisle Thomas |
| McNab | ||
| For the Defendant | Mr R Meldrum QC and Ms K | Wisewould Mahoney |
| Galpin | ||
| HIS HONOUR: |
1 The plaintiff seeks leave pursuant to s134AB of the Accident Compensation Act 1985 to bring proceedings to recover damages for pain and suffering and for pecuniary loss. She relies upon paragraph (a) and on paragraph (c) of the definition of serious injury in subsection (37). The serious injury alleged under paragraph (a) is impairment of the function of the lumbar spine. The serious injury alleged under paragraph (c) is a chronic major depressive disorder and a chronic pain disorder. The two injuries must be considered separately.
2 It is not in dispute that on 15 September 2003 the plaintiff was employed by the defendant as a housekeeper at the Sebel Hotel when she slipped and fell in a bathroom and was injured. What is in contention is the nature of the injury and the consequences of it.
3 At the time of the incident the plaintiff was 37 years of age, her date of birth being 19 August 1966. She was married and had two children. Her husband was employed. They lived in a home owned by him. Later that home was sold and the family moved to a home owned by the plaintiff, her husband and their daughter. She had a third child in 2007. She has not worked or attempted to work in the period of eight years since 15 September 2003. In that period she has regularly attended the Medical One clinic in Sydenham. Although she has seen several doctors at the clinic her principal treating general practitioner was initially Dr Rohatgi and after January 2006 Dr Parbhoo. She has been treated with analgesic medication and physiotherapy and chiropractic treatment, and with anti-depression medication. On one occasion she had an injection for pain at the Sunshine Hospital. She has not had surgery. She has not attended a pain management program. Save for an attendance on a psychiatrist at the end of 2010 and two subsequent attendances on a psychologist, and the prescription of medication for depression, she has not had treatment for a mental or behaviour disorder.
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4 After initially attending a Dr Sweeney on the day of the incident, the plaintiff went to her local general practitioner at Medical One at Sydenham. During 2003, 2004 and 2005, Dr Rohatgi was her treating doctor. The clinical notes
show that she had 17 consultations from 15 September 2003 to 29 December
2003. The principal complaint was of ongoing back pain at various levels of the
thoracic spine and the lumbar spine. She was prescribed Tramal and had
some physiotherapy and hydrotherapy in October and November 2003.5 During 2004 she had 18 attendances at the clinic complaining of ongoing back pain. Dr Rohatgi was providing a Workcover certificate. The complaint was of pain was in most of the spine, especially the upper thoracic spine and the
lumbar spine. She was prescribed Panadeine Forte, Tramal and Codalgyn referral to either a pain specialist or a rehabilitation physician. In April and May 2004 she attended Mr Keng, an orthopaedic surgeon. He diagnosed a disc problem. He offered surgery, but the plaintiff was unwilling to have surgery. She continued to attend Mr Keng. He prescribed analgesics. She also attended a chiropractor.
Forte. In February 2004 she had three sessions of osteopathy. In March 2004
she was referred to a rheumatologist Dr Le. In a letter dated 20 March 2004 Dr
Le advised Dr Rohatgi that she could not help the plaintiff. The plaintiff reported
to Dr Le that her pain was “killing her” and causing her great distress and that
she had been receiving numerous pain killing injections in addition to6 On 3 May 2004 Mr Keng advised Dr Rohatgi that the plaintiff had lumbar spine pathology. He became involved in her treatment. On 22 March 2005, in a report to the plaintiff’s solicitors, he advised that the plaintiff had suffered an injury to her neck and lower part of the back and that investigations revealed that she suffered “from minor lumbar canal stenosis secondary to a diffuse L5/S1 disc bulge and mild to moderate facet joint osteoarthritis.” He considered that the fall had aggravated her pre-existing condition of osteoarthritis in the
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cervical and lumbar spine. He reported in similar terms on 13 November 2006. He considered her impairment to be permanent and that she was unable to do any type of work. There are no reports of Mr Keng after November 2006.
7 In 2005 the plaintiff attended at the clinic on 13 occasions. Certificates were provided. She continued to complain of ongoing back pain. In January 2005 she was referred to Dr Jensen, a specialist in physical medicine. By letter
dated 11 January 2005 he reported to the clinic that he had reassured the
plaintiff she had no serious pathology and that this did not mean that there was
no physical cause for her pain. He advised her of the very strong link between
psychological distress and excessive pain levels and excessive disability and
recommended referral to a pain clinic “in an attempt to give her some insight
into chronic pain with its physical and psychological mix.”8 An occupational consultant with the insurer advised the clinic of Dr Duke’s
report that the plaintiff had an iatrogenic condition of opiate addiction and of Mr
O’Brien’s report that she had chronic pain due to non organic factors and
needed a multi disciplinary pain management programme. Attempts to have the
The plaintiff continued to be monitored by Mr Keng and to attend a chiropractor. uncommon for her to be accompanied by her husband or daughter when she attended the clinic, she was “not keen” to attend a pain management specialist because she said that no one would take her. Following a lengthy discussion with Dr Rohatgi in 5 September 2005 she agreed to attend Dorset Rehabilitation Centre in Pascoe Vale.
9 When the plaintiff attended Dr Thomas on 2 November 2005 she complained of pain in her neck, the interscapular and lower back. By letter dated 8 November 2005 Dr Thomas advised Dr Rohatgi:
She seemed to be complaining of diffuse and widespread pain. Even though I had not the benefit of seeing imaging, it would be very difficult to tie her presentation with any abnormality on the x-ray reports.
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An emotional reaction seemed to have occurred and this seemed to be contributing and magnifying her overall pain experience.
I tried to educate Mr and Mrs Alimov as to the non specific nature of the imagining findings, however they were under the impression that the imaging showed a significant problem, which needed to be fixed.
She really needs to take on the mantle of self management. I was not convinced as to how prepared she would from a psychological point to do this. Nonetheless, after discussion she accepted a referral to Dorset Rehabilitation Centre for a pain management program.
Despite the referral the plaintiff did not attend the Centre for the program.
10 By 12 December 2005, when Dr Rohatgi ceased to be the plaintiff’s principle treating doctor, he reported to her solicitors:
Mrs Alimov now has primarily a pain condition with no identifiable underlying cause. Pain has caused her significant physical disability with resultant emotional suffering and financial hardship.
11 It should also be noted that in December 2005 the plaintiff was taken to Sunshine Hospital after ingesting peroxide at home. She was prescribed anti- depressant medication.
12 principally seen by Dr Parbhoo. Her condition was described as chronic back
pain. She was prescribed Oxycontin for pain and Avanza for depression.
Workcover certificates were provided. In 2007 she had fourteen attendances at
the clinic, principally with Dr Parbhoo. In April 2007 she gave birth to a baby
boy. There were a similar number of attendances with Dr Parhboo in 2008.
During 2006 the plaintiff attended the clinic on 20 occasions. She was had ceased by July 2008. Dr Parhboo continued to prescribe Tramal, two per day. In addition to low back pain she complained of neck and shoulder pain.
13 On 28 November 2007, at the request of Dr Parbhoo, the plaintiff was examined by Mr Barrett, an orthopaedic surgeon. He considered that she had sustained serious disruption of the L3-4 and L4-5 lumbar intervertebral discs, which had minimal capacity to heal or repair, and which accounted for her ongoing
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symptoms and disability. Mr Barrett examined the plaintiff again on 1 2009 that an MRI on 23 September 2009 showed the L3-4 and L4-5 discs to be disrupted, with lateral left disc bulges, pushing into the left intervertebral foramina, close to the emerging L3 and L4 nerve roots. In addition there was a left postero-lateral split in the annulus of both discs. He advised that following the fall on 15 September 2003 she had sustained painful ruptures involving the L3-4 and L4-5 lumbar intervertebral discs, which were the cause of severe and increasing low back pain and left sciatica and caused her to be significantly disabled. He considered her prognosis to be poor as disc ruptures of that severity had minimal capacity to heal or repair. Mr Barrett examined the plaintiff again in June 2011 and reported to Dr Parbhoo that her disc lesions were of such severity that they had no significant capacity to heal or repair.
14 In 2009 the plaintiff had 23 attendances at the clinic. Dr Parhboo was the principal treating doctor. He prescribed Tramal and other analgesics. In March the complaint was of chronic neck pain. There appears to be no prescriptions for anti-depressant medication.
15 In 2010 she attended the clinic, principally Dr Parhboo on 15 occasions. He continued to prescribe Tramal and other analgesics. The complaint of pain continued to be in the neck and back. In May 2010 the plaintiff was prescribed
Endep, an anti-depression medication. In October 2010 another anti depressant Pritiq was prescribed. In November 2010 the plaintiff was referred to a psychiatrist Dr Ibrahim. By letter dated 5 November 2010 he advised Dr Parbhoo:
She reported a work related disc prolapse that caused her a lot of pain and a cascade of complications: social, financial, and personal.
She lost her house 2 years ago and became very depressed and tried suicide twice. Her ADL’s were affected as well.
During the interview, she was depressed, sad, unhappy and cried most of the time. She had a sad demeanor, and avoided eye contact.
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I’ve referred her to Ms Paula Teggelove, a Psychologist at the premises. I’ve increased Pristiq to 100mg, and may consider higher doses in the future, depending on clinical needs and tolerability.
I’ll follow up and keep you updated with developments in her condition.
16 In 2011 the plaintiff had monthly attendances on Dr Parhboo. He continued to prescribe Tramal and other analgesics and Pristiq and provide Workcover certificates.
17 With this long and regular involvement with the plaintiff over five and a half years Dr Parhboo concluded that she has a chronic pain syndrome. He described his monthly consultation during which they discussed a lot of psycho- social issues as “a very complex consultation.” After agreeing that a syndrome is a collection of features, he explained chronic pain syndrome as follows:
It’s a loose term now used by specialists and musculoskeletal physicians. After a period of pain we then treat patients as a complex chronic pain syndrome simply because the pain pathways have been modified , altered, et cetera and the patient then treated accordingly by the sophisticated pain management clinics that we have at our service.
So what is it that you mean then when you use that expression that she has back pains as part of her chronic pain syndrome? --- It’s well known that chronic pain syndrome encompasses multiple issues with the
person, that the pain is just not arising from the original injury, as such,
that there are other pathways that are responsible for the pain.
That’s neurological pathways you’re speaking of? ---That’s correct, yes.
What role does what you’ve referred to as personal and psychological issues that you discussed with her, play in that? --- It’s well known that depression and psycho-social issues have impact on people’s pain
threshold and there are certain pain pathways that are responsible for
pain. So the original pain from the injury is complicated by other pain
pathways. It’s not clear how that happens but pain management clinics
have given alternative medications to alleviate this pathway and give
some relief to patients with the chronic pain syndrome resulting from
injuries.
18 Dr Parbhoo found that the plaintiff’s pain was diffuse and widespread, and not just related to one aspect of the body. The principal area of pain is neck, shoulders and low back specifically on the left side. Asked in re-examination, “Do you have an opinion about whether her complaints of pain are genuine?” he
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replied, “I think they’re genuine, but the severity would be difficult to assess.”
19 first examined her on 15 March 2004. He found it “difficult to account, in
physical terms, for her ongoing symptoms.” He considered that there may have
been a soft tissue strain to the thoracic region that had not resolved. He
concluded that she had “a largely assumed level of incapacity, whether
consciously or subconsciously.” He examined her again on 17 June 2010. She
The plaintiff has been assessed by a variety of medical practitioners. Mr Battlay and left arm. He considered her psychological condition to be “largely due to age-related degenerative changes and deconditioning and weight gain as well as psychological factors.”
20 Dr Mutton, an occupational physician, examined the plaintiff on 22 June 2004. He found her to be markedly depressed. In his opinion there was no organic basis for her complaint of pain. He advised that she suffered from a pain condition which would benefit from a pain management approach and that she required intense psychological treatment. After viewing surveillance film taken in June 2004 he concluded that she had no significant loss of function in terms of mobility and had a capacity for suitable employment.
21 Dr Duke, a psychiatrist, examined the plaintiff on 25 January 2005. He found that she had no primary psychiatric injury, but a secondary iatrogenic opiate addiction. He advised a pain management program to allow her to be
“detoxified from the opioids and got away from the ministrations of Dr Keng and
then returned to the work force as appropriate, on an appropriate rehabilitation
plan.”22 Dr Cole, a psychiatrist, examined the plaintiff on 30 July 2004. He advised:
Mrs Alimov is suffering from an adjustment disorder mixed with anxiety and depression. Her condition is to be seen as stemming form the shock of the accident and from the effects of the injuries that she received in the accident. Her state of mind is such that she is far more aware of and preoccupied by her pain and limitations that might
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otherwise be the case, and I believe there to be an element of
functional overlay, although there was no suggestion of conscious
symptom exaggeration.
Her condition is sufficiently troublesome to call for psychiatric treatment, although I doubt if it will prove very effective, particularly as she seems to have satisfied herself that she is no a chronic semi- invalid.
I note that there is not a great deal of objective evidence of injury, but her emotional state is such that she would be unemployable. Furthermore, I doubt if she would be very co-operative when it came to taking part in a rehabilitation program.
After reading surveillance reports, Dr Cole advised that the available material was inconclusive as to whether the plaintiff was consciously exaggerating her complaints or whether she genuinely believed herself to be disabled in the way
she described.
23 Mr O’Brien, orthopaedic surgeon, examined the plaintiff on 25 January 2005. He advised:
The patient now presents some sixteen months following a fall in the course of her employment. In fact she describes pain over the entire left side of her spine including the left arm and leg. These symptoms are associated with purely subjective signs, which indeed are to some
extent variable. In fact these signs do not define any specific
musculoskeletal pathology that can explain the now extensively
described distribution of pain, which I believe can only now be defined
as chronic pain syndrome, which does appear to be heavily influenced
by non-organic factors.
It certainly would appear the clinical condition is stable with the patient describing no alteration in the extensive area of described pain for well over twelve months with the exception in the patient describes severe
pain without accompanying signs of specific pathology. All these
factors contribute to defining the presence of a chronic pain syndrome
and as such I would consider it is highly unlikely there will be any
positive response to purely physical treatment. Indeed overall I would
suggest the prognosis here is poor and it seems likely this patient will
continue to describe incapacitating pain. The only approach I would
suggest likely to be of benefit in this patient is a multi-disciplined pain
management program that could address the significant psychological
aspect of what now appears to be well ingrained pain.
24 Dr Brown, an occupational physician, examined the plaintiff on the 22 April 2009. He advised:
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Ms Alimov presents with long term lower back pain, evidence of depression and anxiety, and has personal issues which are affecting the presentation. She has also put on significant weight. There is no radiological evidence of a significant spinal injury with just some degenerative changes in the discs. Clinically I was unable to exclude sacroiliac joint dysfunction. The radiological finding of wedging of thoracic vertebral bodies does not appear to have any current clinical significance.
Overall it is difficult to separate the physical symptoms from the psychiatric and psychological aspects in this case. Her mental state suggests that she is unlikely to gain much benefit from exercise or physical treatment, and she is not a candidate for surgery. I note Dr Strauss states that psychiatric treatment is not specifically indicated, and that is consistent with my view that the psychological aspects are having a significant impact.
25 Dr Kemp, a rheumatologist, examined the plaintiff on 16 June 2005. He advised:
In my opinion there no definite objective clinical or radiological
evidence of any specific structural injury resulting form the stated fall on
15 September 2003, but she appears to have developed a marked
chronic pain syndrome.
26 Mr Troy, an orthopaedic surgeon, examined the plaintiff on 23 August 2005, diagnosed “soft tissue injury to her cervical spine, upper and lower thoracic spine, right ribs, and her right index finger.”
27 Dr Honey, a psychiatrist, examined the plaintiff on 19 December 2005. She was then taking Avanza, one at night, in addition to analgesics. He diagnosed –
an adjustment disorder with anxious and depressed mood which is
secondary to the physical injury and its effects. No doubt in turn that
psychological state of mind is causing an amplification of her
experience of her physical symptoms. In my view there is no evidence
of any psychiatric condition which is work related other than that which
is secondary to her physical injury.
28 Dr Strauss, a psychiatrist, examined the plaintiff on 7 October 2005. He advised that she had “developed a chronic pain syndrome as a consequence of her initial physical injury” and that she “desperately needs psychological and psychiatric treatment.” He strongly urged that she participate in a pain management program. “She needs to see a psychologist as part of a pain
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29 Dr Strauss next assessed the plaintiff on 20 February 2008, when he noted some changes. He considered that she still had chronic pain which was partly psychologically based on an unconscious level, but he found no evidence of depression or an adjustment disorder, and considered that she did not require psychological or psychiatric treatment.
30 However, after Dr Strauss’s third examination on 18 May 2011, he concluded: I believe that this woman is suffering from a chronic pain disorder with psychological factors. I believe that her condition is not work related. The initial incident at work some years ago was not particularly severe
in my opinion and I note that she is not suffering from any ongoing
physical problems as a result. Some doctors believe that she is
malingering and this of course remains a possibility, although I had no
evidence of this at interview.
Rather I believe that she tends to convert her emotional distress into physical pain. I believe that her emotional distress is entirely related to her personal circumstances and is not work related.
This woman is in a very unfortunate marital situation. She still sees her husband but he is being unfaithful to her and naturally this distresses her. Furthermore, she is apparently not getting much financial support from him, if any. The children do no like their father and this causes further stress in the home. As well this woman cannot cope with her young son.
I believe that all these family and hence emotional difficulties are contributing to her pain and she is a woman who is expressing her emotional distress through pain.
Whether she is consciously over-exaggerating her complaints is difficult for me to know.
I believe that this woman is capable of work and I believe that she is reluctant to work because she is upset and distresses. However, from purely a psychiatric point of view I am not convinced that she is incapacitated.
She is taking antidepressants and seeing a psychologist and this is appropriate because of her pain disorder and her intermittent symptoms of depression and anxiety. Her current treatment is appropriate.
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I believe that this woman’s situation is entirely the result of her psychological circumstances and employment is not longer relevant. She believes that her problems are work related but she is transferring her concerns about her personal and family life onto a situation that developed many years ago and which my opinion is no longer relevant.
31 Mr Love, an orthopaedic surgeon, who examined the plaintiff on 13 July 2006, diagnosed aggravation of an underlying degenerative condition that was asymptomatic prior to the fall. He considered that she had “developed patterns of illness behaviour and might be considered suffering a chronic pain syndrome for which the prognosis regime is poor.”
32 formed the opinion that she showed conscious malingering behaviour during
Mr Brazenor, a neurosurgeon, who examined the plaintiff on 25 October 2010, improved over the seven years since the injury and were getting worse, the only conclusion that could be reached was that her alleged pain disability were spurious.
33 Mr Schofield, and orthopaedic surgeon, examined the plaintiff on 9 September 2010. He concluded that she had fractures of the thoracic spine and disruption of the posterior annulus at L4/5. He considered her to be unfit for her pre-injury duties and for alternative employment as a consequence of her physical injury.
34 Dr Castle, an occupational physician, who examined the plaintiff on 26 October 2009, diagnosed injury to her cervical and thoracic and lumbar spines, which he described as aggravation of pre-existing degenerative changes in her cervical
and lumber spines. He examined her again on 11 November 2010 and
diagnosed aggravation of spondylosis at L4/5 and a persistent pain syndrome.
He maintained her opinion from his earlier report.35 Finally, the plaintiff was examined by Dr Weismann, a psychiatrist, on 17 December 2010. He noted that she had seen her psychologist twice and in addition to analgesic mediation was taking the antidepressant Pristiq. He diagnosed her as suffering “from a chronic major depressive disorder with
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severe agitation and a chronic pain disorder associated with psychological
factors and a general medical condition.” He advised that she should continue
to see her general practitioner and psychologist for regular treatment of her
depression, remain on Pristiq, and be referred to a consultant psychologist. He
did not think that she would benefit from attending a formal multidisciplinary
pain management rehabilitation program.
36 A considerable amount of surveillance of the plaintiff has been carried out over twenty two days in 2004, 2009, 2010 and 2011. Some of it was shown in the course of the hearing and tendered in evidence. While it did not reveal any obvious untruthfulness by the plaintiff it showed her carrying out normal daily activities such as driving, walking, shopping, standing, in an apparently normal manner, without any apparent pain or restrictions, save for an occasion on 18 June 2010 when she put her hand to her left lower back after strapping her son into the car. The normal nature of her appearance and mobility contrasted with her apparent unhappiness and slow movement in court.
37 The plaintiff’s case is that she has chronic and disabling pain in her spine, including in her upper back and neck, but principally in her lower back. On her behalf two explanations are advanced for her pain. Mr Barrett says that it is caused by the rupture of discs in the lumbar spine at L3-4 and L4-5 with splits in the annulus of both these discs as shown in an MRI carried out on 23 September 2009. Dr Weissman says the pain is caused by a chronic pain disorder. This is a mental disorder in which psychological factors play a significant role in the onset, severity, exacerbation, or maintenance of pain and in which the pain is not intentionally produced or feigned. I understand Dr Weissman to mean that the plaintiff’s pain is substantially caused by a mental disorder. These explanations for the plaintiffs pain are contradictory. If the pain is caused by rupture of the discs then it is not caused by a mental disorder. If it is substantially caused by a mental disorder then the cause is not physical.
38 The CT of the lumbo-sacral spine taken on 27 April 2004 revealed minor L5/S1
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lumbar canal stenosis secondary to a diffuse L5/S1 disc bulge and mild to
moderate facet joint osteoarthritis. The MRI of the lumbar spine carried out on
12 May 2004 revealed minimal central canal stenosis at L5/S1 level and no
endplate degenerative changes or annular tear in the lumbar spinal region.
39 The report of the MRI taken more than 5 years later on 23 September 2009 revealed “very mild left lower lumbar intervetebral disc spondylosis with the most pertinent finding being at L4/5 where there is a small left foraminal and far
left lateral disc protrusion with associated annular tear which contacts but does
not displace or compress the existing left L4 nerve root.40 Prior to this MRI being carried out Mr Barrett wrote to the plaintiff on 22 July 2008 that the lumbar MRI taken on 11 May 2004 showed that she had sustained a serious injury with two discs at L3/4 and L4/5 both clearly ruptured.
41 Mr Battley examined the films of the MRI of 23 September 2009. He diagnosed with Mr Barrett’s opinion that the MRI showed painful ruptures of the L3/4 and L4/5 intervertebral discs. Mr Battley considered that the films showed “desiccation of the L3/4 and L4/5 discs with no reduction in disc heights, and there is also a small left foraminal disc protrusion associated with a very small annular tear, not displacing or compressing the L4 nerve root.” In other words, he was in agreement with Dr Lau who wrote the MRI report.
42 Mr Brazenor, the neurosurgeon who assessed the plaintiff on the 23 October 2010, was strongly critical of Mr Barrett. He commented that he regarded Mr Barrett’s letter to the plaintiff on 22 July 2008 advising her that she sustained a
serious injury with two discs clearly ruptured as “one of the most irresponsible letters from a doctor to a patient that I have ever read.” He considered that the report of the MRI carried out on 23 September 2009 bore little resemblance to Mr Barrett’s description in his letter to the plaintiff. In his opinion it was
“extremely significant” that the L4/5 feature was not described in the report of
Dr Lau on 12 May 2004. He considered that this “strongly suggests that it
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occurred sometime in the five years after 12.5.2004.”
43 Mr Brazenor concluded:
This lady did not have an X-ray or scan directed at her lumbar region until she saw Mr Keng more than seven months after the incident on 15 September 2003. This is very much against an acute injury in lumbar spine occurring on 15 September 2003. Further manetic resonance scan dated 11.05.2004 showed only mild degenerative changes, and no acute injury per se.
If we place these factors together with the fact that Mrs Alimov showed conscious malingering behaviour during the examination today, and further with the fact that she makes the claim that not only have her symptoms not improved at all in the seven years since the injury but the are getting worse, then in my view there is only one conclusion that can be reached in this case. That conclusion is that the alleged pain and disability as a result of the injury of 15 December 2003 are, at this late date, spurious.
In my opinion Mrs Alimov should be employable full time, but not at a job involving repeated bending or the accessing of levels below her waist. She has, however, abused her own body by putting on at least 36 kg in weight on the past seven years, and lapsing into an entirely sessile lifestyle. It is possible that because of her own actions (or more correctly, inactions) she has thus rendered herself unemployable, whereas the “injuries” of 15 September 2003 have not.
44 This is, as Dr Parbhoo the medical practitioner who is probably in the best position to sympathetically understand the plaintiff has said, a complex case. I am satisfied that on 13 September 2003 the plaintiff suffered an injury to her spine. I am not satisfied that it was an acute injury of the kind described by Mr Barrett more than 5 years later. The preponderance of the medical opinion tendered in evidence, namely that of Mr Battlay, Mr Troy, Mr Moran was that she suffered a soft tissue injury and aggravation of the disc degeneration in her lumbo- sacral spine. There is a strong body medical opinion that by 2005 the plaintiff’s physical injury had a significant overlay of what Mr O’Brien described as “displaced illness behaviour” and “perceived disability”. This is the view formed by most of the medical specialists who have examined and assessed the plaintiff. Some have identified the plaintiffs condition as chronic pain syndrome.
45 While Dr Parbhoo explained this syndrome as having a number of features
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including alternate neurological pathways of pain as well as psychological and
social factors, the other doctors make this diagnosis as a psychological
condition in which psychological factors play a significant role in the onset and
severity of pain. Dr Parbhoo considered the plaintiff’s complaints of pain to be
genuine. Although the principal area of complaint was the lower back her pains
were diffuse and included her neck and shoulders. Other doctors consider there
is little or no organic basis for her symptoms and they are psychological in
nature. Mr Brazenor on the other hand was firmly of the view that the plaintiff
symptoms are feigned and spurious.
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has been a degree of conscious exaggeration by the plaintiff of her symptoms.
The film tendered in evidence showed the plaintiff moving freely and engaged in
normal daily activities such as walking, driving, shopping. She exaggerated her
treatment when she reported having had injections for pain. Her treatment has
been analgesic medication. She exaggerated the amount of Tramal she takes.
Despite efforts to have her participate in a pain management program she has
been unwilling to undertake such a program. She appears to have a number of
factors that cause her unhappiness including marital disharmony and infidelity,
It is difficult to be dogmatic about these matters, but I am satisfied that there family home. Nevertheless, she has had another child in the period since the incident. She has had minimal treatment for her psychological condition, namely antidepressant medication, mainly in later years, and two sessions with a psychologist in recent times.
47
I am not satisfied that the plaintiff has a permanent serious impairment of the function of her lumbar spine. While I am satisfied that on 15 September 2003 she did sustain a soft tissue injury to her low back and aggravation of
degenerative changes including in the lumbar spine, I am not satisfied that the pain and suffering consequences of that injury can be fairly adjudged to more than marked or significant and at least very considerable.
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48 I am satisfied that the plaintiff suffers from a mental disorder in the form of a chronic pain syndrome. I am not satisfied that the pain and suffering consequence of the disorder or the loss of earning capacity of the disorder, when compared with other cases in the range of mental disorders, can be fairly described as being more than serious to the extent of being severe.
49 I am not satisfied that the plaintiff is not capable of earning income similar to her pre-injury income in suitable employment. I am not satisfied that she has a loss of earning capacity of 40 per centum or more or that she will continue to have a loss of earning capacity which will be productive of financial loss of 40 per
centum or more.
50 The plaintiff is not granted leave to commence proceedings to recover damages with respect to pain and suffering or loss of earning capacity.
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