Arcoleo v Coffico Coffee Pty Ltd
[2023] VCC 269
•2 March 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-21-02456
| DOMENICO ARCOLEO | Plaintiff |
| v | |
| COFFICO COFFEE PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE MYERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 and 30 November 2022 | |
DATE OF JUDGMENT: | 2 March 2023 | |
CASE MAY BE CITED AS: | Arcoleo v Coffico Coffee Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 269 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to the lumbar spine – psychological injury – pain and suffering and loss of earnings consequences
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)
Cases Cited:Johns v Oaktech Pty Ltd [2020] VSCA 10; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167; Petrovic v Victorian WorkCover Authority [2018] VSCA 243
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie KC Ms V C McLeod | Redlich’s Work Injury Lawyers |
| For the Defendant | Mr N J Dunstan | MinterEllison |
HER HONOUR:
Introduction
1This is a “serious injury” application brought pursuant to the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”). The plaintiff, Mr Domenico Arcoleo, seeks leave to commence a common law proceeding for both pain and suffering and loss of earning capacity in relation to an injury suffered to his lumbar spine or, alternatively, a psychiatric injury.[1]
[1]The plaintiff abandoned his claim in relation to his thoracic spine and cervical spine, Transcript (“T”) 179
2The plaintiff relied primarily on paragraph (a) of the definition of “serious injury” in the Act, being a “permanent serious impairment or loss of a body function”. In the alternative, on the basis that the defendant would submit there was no substantial organic basis for the injury, the plaintiff relied on paragraph (c) of the definition, being a “permanent severe mental or permanent severe behavioural disturbance or disorder”.
3The defendant did not dispute that the plaintiff suffered an aggravation injury to his lumbar spine during the course of his employment with the defendant and in particular on 10 August 2017.[2]
[2]T25 and T27
4The defendant’s primary submission was that the plaintiff was an unreliable witness who exaggerated his symptoms and disabilities and downplayed his pre-existing health difficulties.
5The defendant submitted, in relation to the physical injury:
(a) the plaintiff’s current condition does not have a substantial organic basis and the evidence does not permit disentanglement of the consequences referable to an organic injury to the plaintiff’s low back from non-organic factors;
(b) the work injury temporarily aggravated a pre-existing low back condition, and the aggravation has now ceased;
(c) the consequences of the injury do not meet the threshold;[3] and
(d) there is no incapacity for suitable full-time employment.
[3]T25-32
6Regarding the claimed psychiatric injury, being Adjustment Disorder with Depressed and Anxious Mood and/or a Pain Syndrome, the defendant submitted:
(a) the consequences do not meet the “severe” threshold; and
(b) there is no incapacity for suitable full-time employment.
7I have considered all the tendered evidence and the plaintiff’s viva voce evidence, but I shall only refer to it to the extent necessary in these reasons.
Background
8The plaintiff is a forty-four-year-old man. He was born and raised in Victoria.
9He completed his education at Merrilands Secondary College, leaving at the start of Year 10.
10Since leaving school, he has worked in various roles including in factories, warehouses, concreting, hospitality, security and sales. He lives with his partner of ten years and their two children aged eight years, and eleven months. He has two teenage daughters from a previous relationship.[4]
[4]Plaintiff’s Court Book (‘PCB’) 13
11The plaintiff began working for the defendant on 21 July 2016 as a delivery driver. His role involved delivering boxes of coffee, coffee cups, soy milk and syrups to cafes and restaurants in and around Melbourne. The plaintiff was required to load the boxes by hand into his van from pallets. This involved significant bending and reaching. He was provided with a two-wheel trolley to assist with making deliveries. Despite asking, he was not given a three-wheel trolley to use when he was required to negotiate stairs whilst making deliveries.[5]
[5] PCB 14
12The plaintiff said that he started to have worsening low back pain almost from the start of his employment with the defendant. Despite this, he continued working. The plaintiff said that his back pain became constant by March 2017.[6]
[6]PCB 14
13On 10 August 2017, whilst loading his van for deliveries the next day, the plaintiff experienced severe pain in his low back (“the incident”). After this, the defendant provided a jockey to assist the plaintiff with his work. Between 10 August and 2 October 2017, the plaintiff attempted to work, but ultimately ceased working on 2 October 2017. He has not worked since.[7]
[7]PCB 14-15
Treatment
14The plaintiff’s treatment for his low back injury has been conservative.
15An x-ray, CT scans and MRI scans have been taken of the plaintiff’s lumbar spine, most recently on 31 May 2019.[8]
[8]PCB 17
16The plaintiff was referred to Professor Richard Bittar, neurosurgeon, whom he saw on 4 June 2018.[9] Professor Bittar was of the opinion that the plaintiff had a left-sided L5-S1 disc prolapse. He advised the plaintiff that the treatment options included conservative treatment, a nerve block, and surgery in the form of an L5‑S1 microdiscectomy. The plaintiff was in two minds about whether to have surgery but agreed that Professor Bittar should seek WorkCover approval, and the plaintiff would then make a final decision about whether to proceed.[10]
[9]PCB 16
[10]PCB 65
17WorkCover did not give approval for the proposed surgery. This was on the basis of a multi-disciplinary report dated 13 August 2018 from Dr Tony Weaver, pain specialist, and Mr Roy Carey, orthopaedic surgeon.[11] In that report it was concluded that the proposed surgery was not appropriate because the L5 and S1 nerves did not need to be decompressed as there were no radicular symptoms or signs of radiculopathy evident upon examination of the plaintiff. It was further noted that the natural history of such a small extrusion is to shrink with time.[12]
[11]Defendant’s Amended Court Book (“DACB”) 31
[12]DACB 33
18The plaintiff was seen by Professor Bittar for the second and final time on 9 September 2019. He noted that the plaintiff’s physical symptoms had become a chronic pain problem and was then sceptical that the plaintiff would do well with surgery.[13]
[13]PCB 66
19The plaintiff has not been referred to any other neurosurgeon or orthopaedic surgeon for treatment since September 2019.
20The plaintiff was treated by Dr Symon McCallum, pain specialist, between August 2018 and October 2019. By July 2019, Dr McCallum was concerned that the plaintiff may have a pain somatisation disorder combined with his low back and left leg pain.[14]
[14]PCB 56
21When last seen, on 20 October 2019, Dr McCallum reportedly discussed a pain somatisation disorder with the plaintiff. He recommended that the plaintiff walk twice a day, see a psychologist and psychiatrist, continue with active physiotherapy and take ibuprofen on an as need basis only.[15]
[15]PCB 63
22The plaintiff attended Timothy Wilson, physiotherapist, between October 2019 and March 2020. That treatment appears to have ceased because of COVID-19 restrictions.
23The plaintiff began treatment with Dr Cristina Scalora, chiropractor, in May 2021.[16]
[16]PCB 76
24The plaintiff’s current treatment for his low back injury comprises attendances upon his general practitioner (“GP”) and chiropractor, two Panadol or Panadol Osteo tablets every three to four hours and Panadeine Forte for more severe pain. The plaintiff’s partner rubs Voltaren Gel on his back twice a day.[17]
[17]PCB 24
The consequences claimed by the Plaintiff
25In his first affidavit, the plaintiff deposed to suffering constant burning pain through his low and mid-back, radiating to his left shoulder, with pins and needles and numbness in both legs, feet and toes. He described that sleeping for any length of time was a “nightmare of pain”. He said his walking and standing tolerances were about 15-30 minutes and he generally walked with a limp. He could sit for 45 minutes but had difficulty rising from a seated position. The plaintiff deposed to spending most of each day at home, and when his back was really bad, he would often spend the whole day in bed. He said he had lost all his recreational activities, including playing pool, golf and car racing. Whilst the affidavit was unclear on this issue, the plaintiff had also ceased playing poker.[18]
[18]T38
26In his second affidavit, the plaintiff described his pain symptoms as continuing as he had previously described. He deposed to spending most of each day watching television in a reclined position. He said he would use a treadmill at home at least once a day for about ten minutes at a time to try and get his blood circulation going. He said he might attend the shops with his partner and walk around for 20-30 minutes. The plaintiff said that he still had to be extremely careful with bending and any lifting at all. He deposed to generally only being able to drive for 20-30 minutes before his back and leg pain increased and he needed to take a break after about an hour as driver or passenger. The plaintiff deposed to returning to playing poker, but none of his other previous recreational activities. He said he generally played poker twice a week in an “A-league” tournament usually at places within 30 minutes’ travel from his home. Whilst the tournament evenings lasted about three to four hours, the plaintiff said he usually only played for one to two hours before being knocked out. The plaintiff said he could take breaks for 10-15 minutes every 20 minutes or so to stand up or move around. At home, the plaintiff deposed to the fact that his partner was having to do most things for their daughters, as well as helping him put on his socks and shoes.
27Apart from playing some poker with friends, the thrust of the plaintiff’s affidavits was that he suffered widespread pain and was very restricted in almost every aspect of his day-to-day life.
The Plaintiff as a witness
28The defendant made a sustained attack on the plaintiff’s credibility and reliability during cross-examination.
29Mr Dunstan, who appeared for the defendant, submitted that the plaintiff was an unreliable witness whose evidence ought not to be accepted save where it was corroborated from independent sources. He submitted that the plaintiff had not been candid about his pre-existing problems and was exaggerating his level of pain and restriction.
30Mr McGarvie KC, who appeared for the plaintiff with Ms McLeod, acknowledged that the plaintiff was a witness with a poor memory who could not be said to be reliable in every respect, but who was truthful.[19]
[19]T157
The video surveillance
31The defendant relied upon video surveillance taken in June and July 2019, and on 26 July 2022, which totalled approximately two hours of video footage. The parties also provided the Court with an agreed “Surveillance Summary” which detailed all the days on which the plaintiff was under surveillance and how much video footage was taken on each day.
2019 video surveillance
32The June and July 2019 footage was approximately 60 minutes long. The footage showed the plaintiff getting into and out of vehicles, assisting a child into a vehicle, driving, walking short distances, standing smoking and traversing steps. Whilst the plaintiff’s movement varied across the surveillance, he appeared to move stiffly on each occasion.
33In the footage on 29 July 2019, the plaintiff moved significantly more slowly and was struggling to negotiate stairs into and out of a premises. In cross-examination it was put to the plaintiff that this footage was taken of the plaintiff going into and out of his home. He agreed this was so.[20] I note that the plaintiff attended Dr Timothy Entwisle on this day.[21]
[20]T91
[21]DACB 44
34In my view the 2019 video surveillance does not portray a level of activity by the plaintiff that is substantially different to the complaints of pain and restriction which he was making to doctors at about that time:
(a) The plaintiff saw Dr Terry Saxby, orthopaedic surgeon, on 4 April 2019.[22] The plaintiff told Dr Saxby that his main problem was low back pain and stiffness, with some leg pain and paraesthesia. He rated his pain as 7-8/10. He said that he could drive and perform household duties but was unable to do yard work. Upon examination, he walked with his spine in a flexed position and was not able to fully extend it. Dr Saxby could not specifically examine the plaintiff’s range of motion due to his reported pain levels;
(b) He was examined by Dr Timothy Entwisle, psychiatrist, on 29 July 2019.[23] The plaintiff told Dr Entwisle that his treatment was beginning to make a difference. He told him that he takes his daughter to and from school, generally walks by way of exercise of a morning, and tries to help with activities at home;
(c) He saw Dr Clayton Thomas, consultant in rehabilitation and pain medicine, on 20 September 2019.[24] The plaintiff reported that his pain and condition had become worse with time. He said he was unable to do much from day to day. He had pain in his upper back, mid back, low back, left leg, the left side of his neck, his left arm and some right leg numbness. He said his back and left leg pain was never below 8/10. At its worst he was unable to move at all. Upon examination he walked with a very slow, flexed gait. He stood with thirty degrees flexion and was unable to stand upright.
[22]DACB 35
[23]DACB 44
[24]DACB 49
35The 2019 surveillance footage was sent to Dr Thomas for his comment. In his supplementary report dated 24 November 2019, Dr Thomas said that the plaintiff’s presentation in the video was “substantially in contrast to my examination findings. … The evidence on the surveillance is totally inconsistent with his functional limitations and symptoms as he reported to myself”.[25] Dr Thomas opined, based on the surveillance footage, that his previous diagnosis of somatic symptom disorder “is to be challenged” and said that it was difficult to determine what, if any, underlying problem was present. Having previously opined that the plaintiff had no work capacity, he now thought the plaintiff had the capacity to perform each of the suitable employment options identified in the Acumen Health Vocational Assessment report dated 11 September 2019. Dr Thomas did not specify the aspects of the plaintiff’s movement in the video surveillance that caused him to proffer his opinion as to the contrast with the plaintiff’s presentation to him. In those circumstances I am unable to accept his opinion on this issue.
[25]DACB 56
July 2022 video surveillance
36Surveillance footage of the plaintiff taken on 26 July 2022 showed him playing pool at a pool hall in Bundoora between approximately 7.10pm and 10.16pm. He is seen standing outside the pool hall at approximately 11.36pm before departing as the driver of a vehicle. The footage was approximately one hour long. It was not continuous footage of the plaintiff during the evening, but the plaintiff did not suggest that there had been any creative editing.
37In the video footage, the plaintiff was seen to play multiple games of pool. He repeatedly bent low to the pool table to make his shots. Whilst there were occasions when the plaintiff raised a leg behind him whilst bending over the pool table, this appeared to me to be a function of the shot rather than for any other reason. The plaintiff stood in an upright posture when standing. Whilst there was only limited footage of the plaintiff walking, to my observation he moved freely and walked normally. There was no outward sign of any pain or limitation in any of the plaintiff’s movements during the footage.
38The defendant submitted that this surveillance footage casts significant doubt upon the plaintiff’s evidence and his presentation to medical practitioners as to the consequences of his injury.
39The plaintiff’s most recent affidavit did not refer to him resuming playing pool. However, the plaintiff volunteered during cross-examination, and prior to the surveillance footage being shown, that he had been able to return to playing “a bit of pool”.[26]
[26]T38
40After being shown the surveillance footage of 26 July 2022, the plaintiff said that he thought he was trying out for the pool league on that occasion.[27] When it was put to him that he had also attended the pool hall the week before, he acknowledged that might be correct.[28]
[27]T106-107
[28]T106-107
41The plaintiff subsequently accepted that he had been playing pool on a regular basis since July 2022.[29] Initially, the plaintiff had thought that he had only been playing in the pool league for approximately two months, and prior to that was playing on social nights.[30] He agreed that league games were every Tuesday night. The plaintiff said that when playing pool, he wears a back brace and takes medication, “so it doesn’t affect me as bad”.[31]
[29]T108-109
[30]T109
[31]T111
42I will now consider how the plaintiff’s presentation in the 26 July 2022 surveillance footage compares to the way the plaintiff was presenting to medical practitioners during 2022.
Presentation to medical practitioners
43In a report dated 23 December 2021, Dr Jaya Shanmugam, the plaintiff’s GP, described the plaintiff’s symptoms and restrictions.[32] These included a standing tolerance of 10 minutes before aggravation of pain, a maximum walking tolerance of 20 minutes and difficulty bending and reaching forward. In a further report dated 21 September 2022, Dr Shanmugam stated that the plaintiff was last seen on 8 June 2022 and “none of his initial symptoms have improved. Unfortunately, his condition has not changed from the 23 December 2021 medical report.”[33]
[32]PCB 48
[33]PCB 51
44In January 2022, the plaintiff told Mr Thomas Kossmann, orthopaedic surgeon, that he had back pain radiating into his left ribs, left groin, left testicle and left leg. He said he was unable to walk long distances and had difficulty putting on his socks and shoes.[34] He described difficulties bathing, grooming and dressing.[35] He said that he had difficulty with all physical activities including standing, bending and leaning.[36] On examination, he presented with a limp and was unable to flex more than 30 degrees.[37]
[34]PCB 111
[35]PCB 112
[36]PCB 113
[37]PCB 114
45In February 2022, the plaintiff was examined by Dr David Barton, occupational physician. This was a third examination. The plaintiff reported that his symptoms were much the same as they had been when last examined (in April 2021). He walked slowly with a stooped posture and a significant limp and had trouble getting up and down from a chair and the examination couch.[38]
[38]DACB 76
46In June 2022, the plaintiff was examined by Dr Graeme Brazenor, neurosurgeon.[39] This was approximately two months before the video footage was taken. He presented with considerable difficulty both standing from sitting and walking.[40] He told Dr Brazenor that his condition had not become any better since August 2017.[41] Whilst standing, he presented with ten degrees of lumbar flexion and was unable to be more erect than approximately five degrees flexion.[42]
[39]DACB 90
[40]DACB 90-91
[41]DACB 91
[42]DACB 92-93
47The plaintiff was examined by Dr Khayyam Altaf, occupational physician, on 20 October 2022.[43] This was approximately three months after the surveillance footage was taken. He told Dr Altaf that he was having “an average day”.[44] He was in discomfort whilst sitting and leaned to his right. He was unable to stand up straight after sitting and “any extension or flexion was described as painful, and his visual appearance was of significant pain”.[45] He told Dr Altaf that his standing tolerance was two to five minutes in one place and his walking tolerance was five to twenty minutes. The latter on a better day with pain-relief medication.[46]
[43]PCB 143
[44]PCB 147
[45]PCB 147
[46]PCB 146
48When seen by Dr Entwisle, psychiatrist, in October 2022, the plaintiff walked with an antalgic gait, sat for periods, bent over and breathed heavily whilst holding his back. The plaintiff tried to end the interview early on multiple occasions due to pain.[47]
[47]DACB 142
49It was submitted on behalf of the plaintiff that surveillance was conducted of the plaintiff on 30 days over a five-year period; the plaintiff was under surveillance for a total of 112.5 hours and only 3.45 hours of video footage was obtained, not all of which was tendered.
50The surveillance reports were not tendered, and I therefore do not know the amount of time the plaintiff was sighted where no video footage was taken. However, the fact of such extensive surveillance with relatively limited video footage supports a submission that the plaintiff was not active on a regular basis.
51The defendant did not tender the approximately 15 minutes of footage taken of the plaintiff in February and March 2018, the approximately 35 minutes of footage taken in September and October 2019, the approximately 11 minutes of footage taken in May 2021, nor the approximately 27 minutes of footage taken in July 2022 but prior to 26 July.
52In light of the above, I approach my assessment of the video footage on the basis that the defendant tendered only the footage which most strongly supported its case.
53Further, the defendant chose not to provide the July 2022 surveillance footage to any medical expert for comment.
54It is in the above context that I have considered the 26 July 2022 surveillance footage.
55I find that the surveillance footage of the plaintiff on 26 July 2022 portrays movement by the plaintiff which is inconsistent with his evidence and his presentation to examining doctors. Whilst I accept that a person may be willing to put up with pain and discomfort to participate in an otherwise enjoyable activity, I find that there was no sign of any limitation in the plaintiff’s movement in the video footage tendered. He displayed no external or obvious sign of experiencing pain upon bending over the pool table repeatedly and standing over the course of the evening. There was no observable limp, and the plaintiff displayed an upright posture when standing.
56Whilst the plaintiff had previously referred to wearing a back brace when he was required to bend,[48] I am mindful that this is not a case where the plaintiff has otherwise asserted that if he wears a back brace and takes medication that he is able to bend and move freely.
[48]T39
57Although the footage was only of one occasion, the plaintiff admitted that he has been playing pool regularly since July 2022. The plaintiff is evidently able to make and keep to a regular commitment to play pool, drive himself the 30 or 40 minutes there and back and play over several hours during an evening.
58I am unable to reconcile the plaintiff’s evidence and presentation to doctors with what was captured on the video surveillance. I am therefore unable to accept the plaintiff’s evidence as to his level of symptoms and function.
The Plaintiff’s account of his pre-injury health
59The defendant also submitted that the plaintiff had not been candid about his pre-injury medical conditions.
Low back
60It was submitted that the plaintiff’s description of his pre-existing low back problem had understated its severity.
61The plaintiff deposed to sustaining a low back injury in 2000 picking boxes during the course of his work with a previous employer. He said he had intermittent low back problems thereafter for which he would have a massage and occasionally take anti-inflammatories.[49]
[49]PCB 17
62A report from a treating physiotherapist, Andrew Hahne, dated 10 March 2010, recorded that the plaintiff was assessed “for chronic widespread pain with psychosocial influences”. The report relevantly noted:
“Domenico reported that he has experienced many years of widespread body aches and pains, along with other symptoms such as dizziness. He acknowledged that he experiences high levels of stress and anxiety. He has seen several physiotherapists in the past, and has also tried acupuncture, but this provided minimal benefit. He has not worked for some two years now, but he reported that he would like to get his life and his health back on track and return to some form of work.
...
Domenico described pains in his neck, shoulders, arms, lower back and legs. He also reported headaches and dizziness. There is some clicking associated with the neck and shoulder pain.
...
Domenico presented with very poor sitting posture, including a forward head posture and an increased thoracic spine kyphosis.”
63The plaintiff had no recollection of consulting Mr Hahne, of having a slightly stooped forward posture for many years or of having a limited ability to flex his lumbar spine at that time.[50]
[50]T55-56
64The plaintiff was unable to recall attending the Northern Hospital for low back pain at any time prior to commencing work for the employer.[51] However, the clinical records revealed that on 20 May 2014, the plaintiff was taken by ambulance to Northern Hospital. The ambulance notes relevantly record the following:[52]
“S[c]iatic pain – left side since 18yrs old; seizure/s; anxiety; depression
…
35yo male complaining of s[c]iatic pain in his left lower back, buttocks and leg. Pt states he has been taking voltaren for the pain and has become constipated, causing bloating and abdo pain. Pt reports he has had s[c]iatica intermittently for many years however three yrs ago he had a blood infection in his left leg caused by an ingrown toenail which caused him to be hospitalised for 3/12 months. Pt concerned that this pain is as severe as it was then and thinks there is another infection as he still has the ingrown toenail. Pt also reports he has been under increased stress lately.”
(sic)
[51]T59
[52]DACB 320
65The plaintiff said he had not had sciatic pain since he was eighteen.[53] Whilst the plaintiff acknowledged that he had attended hospital by ambulance on a couple of occasions, such attendances were for cellulitis, and he was unable to recall this event.[54] The plaintiff thought that this occasion could have been an episode of cellulitis.[55]
[53]T65
[54]T64-65, 68
[55]T66
66The plaintiff was taken to a clinical record dated 9 June 2016.[56] This recorded an attendance by him upon Dr Jason Juggapah, GP, at the Lakes Boulevard Medical Centre on 9 June 2016, six weeks prior to the commencement of the plaintiff’s employment with the defendant.[57] The reason for attendance was noted as atypical chest pain. The examination notes recorded “no spinal tenderness except longstanding lumbar pain”. The plaintiff was unable to recall this attendance but said that he would not disagree with what was recorded.[58]
[56]T84
[57]DACB 330
[58]T85
67I find that the plaintiff’s prior back problems were somewhat more significant than he deposed to, and he downplayed the difficulties he had with back pain in the past. That is, that he suffered from variable low back pain and restrictions since approximately 2000, including left-sided leg pain from time to time which he thought was sciatica.
Neck
68The plaintiff deposed to sustaining a work injury in 2012 when he collided with a scaffold and required some time off.
69The clinical records documented an injury to the plaintiff’s neck sustained at work in November 2010. The plaintiff attended his GP complaining of neck pain radiating to his left arm and limited neck movement. He was prescribed Panadeine Forte and Lyrica. He was referred for physiotherapy treatment.[59] He underwent a CT scan on 11 May 2012 which was reported as concluding that there was evidence of loss of intervertebral disc height at C6-7, and two focal well-defined defects in the superior endplate of C7 which may represent pulsion fracture sites from disc trauma.[60]
[59]DACB 306-314
[60]DACB 324
70The plaintiff attended the neurosurgery outpatient department at the Northern Hospital in April and June 2012.[61] It was noted that he had suffered from chronic neck pain radiating to the left arm since 2010. It appears consideration was being given to surgical treatment.
[61]DACB 323, 325-326
71Whilst the plaintiff recalled suffering injury when he hit the back of his neck on a scaffold whilst working for Toll,[62] he could not recall having two years off work for such injury. He was unable to recall seeing a neurosurgeon and did not remember surgery being discussed for his condition.[63] Whilst the plaintiff did not deny that the matters recorded in the clinical records were correct, he had no recollection of them.[64]
[62]T71
[63]T69
[64]T72-73
72I do not accept that the plaintiff had no recollection of two years of treatment for chronic neck pain and two years off work. These are significant life events which a person would remember at least in broad scope.
Conclusions regarding the reliability of the Plaintiff
73It was candidly conceded on the plaintiff’s behalf that there were issues with his reliability as a witness, but it was said that these were primarily memory problems, and he should be regarded as an honest witness.[65]
[65]T156-158
74For the reasons articulated above I find that I cannot accept the plaintiff’s evidence as a reliable account of the consequences of his injury save where corroborated by other objective evidence.
75The credibility of the plaintiff in cases of the present kind will often be critically important.[66] This is because the opinions of medical experts are often significantly reliant upon receiving an accurate history. Because of my findings about the plaintiff’s reliability, much of the medical material is compromised.
[66]Johns v Oaktech Pty Ltd [2020] VSCA 10 at paragraph [76]
76The plaintiff bears the onus of establishing that the consequences of his injury meet the relevant threshold. I cannot substitute my own assessment of his likely pain, limitation and restrictions.
Is there objective evidence regarding the low back injury?
77I am required to consider the whole of the evidence, which means that I must consider whether there is any other objective evidence upon which I can rely that would enable the plaintiff to meet the test.[67]
[67]Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104
78A number of scans have been taken of the plaintiff’s lumbar spine since 2016:
(a) A CT scan of the plaintiff’s lumbar spine on 29 November 2016 is reported as concluding that there was a small left posterocentral disc bulge with mild left lateral recess stenosis at L5-S1.[68]
(b) A further CT scan on 5 October 2017 is reported as concluding that there was mild degenerative disease and a small left paracentral disc protrusion at L5-S1 causing mild narrowing of the left lateral recess, displacing the traversing left S1 nerve root.[69]
(c) A conventional and weight bearing MRI scan on 8 May 2018 concluded that the most significant abnormality was noted at L5-S1 where there was a left paracentral disc protrusion, extending into the left subarticular recess and contacting and compressing the traversing left S1 nerve root. This was greater on weight bearing. There was no canal stenosis.[70]
(d) A further MRI scan was undertaken on 31 May 2019. This was reported as relevantly concluding that there were mild lumbosacral disc degenerative changes with a disc protrusion causing impingement on the traversing left S1 nerve root.[71]
[68]PCB 33
[69]PCB 35-36
[70]PCB 37
[71]PCB 39
79The above imaging has been commented upon by a number of treating doctors and medico-legal experts. I will briefly summarise their views of it as well as any objective findings they have made upon examination of the plaintiff.
The Plaintiff’s medical evidence
Dr Simon McCallum
80Dr McCallum saw the plaintiff on numerous occasions between August 2018 and October 2019. His view of the most recent MRI scan was that there was an annular tear at L5-S1 and a left-sided paracentral disc protrusion impinging the left S1 nerve root.[72] Whilst he opined that the plaintiff suffered a pain somatisation disorder, this was combined with central lower back and left-sided leg pain which he thought might be radicular.[73] He does not document any examination findings after 6 August 2018.
[72]PCB 55
[73]PCB 55
81Dr McCallum’s most recent report refers to taking a biopsychosocial approach to the plaintiff’s circumstances. That is not an approach I am able to take.
82As Dr McCallum has not examined the plaintiff for more than three years, his report is of little assistance in the identification of objective evidence of the plaintiff’s current impairment and impairment consequences.
Professor Richard Bittar
83Professor Bittar examined the plaintiff on 4 June 2018. He diagnosed a work-related left-sided L5-S1 disc prolapse. Upon examination, he found limited straight leg raising on the left with an absent left ankle reflex, consistent with S1 radiculopathy. Power was intact. Professor Bittar offered the plaintiff the option of a left L5-S1 microdiscectomy. In his second report dated 9 September 2019, Professor Bittar opined that the repeat MRI scan demonstrated an ongoing left L5-S1 disc prolapse.[74]
[74]PCB 66
84Professor Bittar has not examined the plaintiff for more than three years. His reports support the contention that there were objective findings and an organic basis for impairment consequences in 2018 and 2019. However, they do not assist me to determine the current position.
Dr David Middleton
85The plaintiff was assessed by Dr Middleton, occupational physician, on 22 October 2020 via Zoom. Dr Middleton provided a medico-legal report dated 2 November 2020.[75] Dr Middleton’s report is of limited assistance regarding objective evidence of the plaintiff’s low back injury. First, he did not examine the plaintiff in person and found it challenging to assess the plaintiff’s range of movement over Zoom. Secondly, Dr Middleton documents the reported findings in the most recent MRI but does not appear to have viewed the imaging.
[75]PCB 82
Mr Thomas Kossmann
86The plaintiff was assessed by Mr Kossmann, orthopaedic surgeon, on 24 January 2022.[76] Mr Kossmann found restricted thoracolumbar spine movements upon examination, including straight leg raising limited to 40 degrees on each side. He did not test for reflexes given the plaintiff’s complaints of pain. Whilst Mr Kossmann refers to reports of imaging, he does not state that he viewed the imaging. He noted that the symptoms the plaintiff complained of raised the suspicion that he may suffer some form of pain syndrome.
[76]PCB 108
87Mr Kossmann’s examination does not include sufficient objective findings which enable me to determine the plaintiff’s impairment consequences.
Dr Khayyam Altaf
88Dr Altaf examined the plaintiff on 20 October 2022.[77] Upon examination, Dr Altaf noted that straight leg raise was to forty-five degrees on the left passively, and fifty degrees on the right both passively and actively. Both feet had a normal appearance and pedal pulses were palpable. He found 4/5 power bilaterally in his ankles. Dr Altaf described the reports of imaging but does not appear to have viewed the images. He concluded that he was unable to identify a definite dermatomal distribution to the radiating symptoms the plaintiff described. He noted that although the plaintiff had an L5-S1 disc prolapse, with more significant S1 compression on weight bearing, his overall symptoms appeared to be an aggravation of underlying lumbar spine degeneration. He opined that the neurological symptoms raised the question that the plaintiff was developing a “more complex regional pain syndrome”.[78]
[77]PCB 143
[78]PCB 152
89Whilst Dr Altaf stated that there appeared to be a psychological connection that may be worsening the plaintiff’s overall condition, he thought the majority of his condition was “physical”. Dr Altaf does not state why he thought this to be so.[79] Given that Dr Altaf does not explain why he concluded that the majority of the plaintiff’s condition was physical, I am unable to assess his evidence in this regard. He has not supplied the criteria which enable me to evaluate this aspect of his opinion.
[79]PCB 152
90Dr Altaf was provided with the 2019 video surveillance which was tendered. It is of note that he opined that based on his clinical findings, the plaintiff had deteriorated since that time.[80]
[80]PCB 151
Mr Peter Scott
91The plaintiff was examined by Mr Scott, surgeon, on 31 October 2017.[81] It is not clear whether Mr Scott viewed imaging or simply considered the reports of the imaging. Mr Scott noted that the CT scan of 5 October 2017 showed evidence of some mild degenerative changes in the thoracolumbar spine and facet joint arthropathy and at the L5-S1 level there was a small left paracentral disc protrusion causing mild narrowing of the lateral recess and displacing the traversing left S1 nerve root. He said the MRI scan of 23 October 2017 showed evidence of an L5‑S1 posterior disc bulge contacting and traversing the left S1 nerve root but no convincing evidence of neural compromise. Mr Scott concluded that the plaintiff had evidence of back pain related to a discogenic problem in the lumbosacral spine with left lower limb radiculopathy.
[81]DACB 4
92Given that this report was provided more than five years ago, it is of limited assistance.
The Defendant’s medical evidence
Dr David Barton
93The defendant relied upon three reports of Dr Barton, occupational physician, dated 2 March 2018, 22 April 2021 and 22 February 2022. In his first report, Dr Barton found there was a high degree of functional overlay present, and any physical problem had resolved. Dr Barton was not provided with imaging.[82] When seen in April 2021, Dr Barton reported that the plaintiff said his symptoms were much the same, but he was also developing more pain elsewhere. He presented with a stooped posture and significant limp. Once again, Dr Barton opined that the plaintiff presented with a considerable degree of illness behaviour and functional overlay.[83] Dr Barton reported that the plaintiff presented in a similar fashion when seen in February 2022. He noted there was a lack of any clear objective evidence of any particular physical problem that would account for the plaintiff’s symptoms.[84]
[82]DACB 25
[83]DACB 72
[84]DACB 77
94Clearly enough, Dr Barton’s reports do not support the plaintiff’s case.
Dr Tony Weaver and Mr Roy Carey
95The plaintiff was examined by Dr Weaver, pain specialist, and Mr Carey, orthopaedic surgeon, on 13 August 2018. The report was commissioned for the purpose of considering the surgery request from Professor Bittar. Dr Weaver and Mr Carey examined the 2018 MRI and noted that it showed a small protrusion at L5-S1 on the axial film and there appeared to be extruded disc material abutting the left S1 nerve. They opined that the plaintiff demonstrated many pain behaviours upon examination. The plaintiff’s legs did not show any wasting in the muscles, and power was found to be normal and equal in both right and left side. They noted the plaintiff had rather hyperactive reflexes. There was no specific dermatomal involvement. Dr Weaver and Mr Carey diagnosed that the plaintiff was suffering from axial low back pain and with no evidence of radiculitis or radiculopathy in the left L5 dermatomal area. They concluded that the proposed surgery was not appropriate and the natural history of such a small extrusion was usually to shrink with time.[85]
[85]DACB 33
96As this report details an examination conducted more than four years ago, it is of little assistance in determining the plaintiff’s current state. However, it further supports the position that there was an organic basis for the plaintiff’s condition as of 2018 and outlines the expected prognosis for a small extrusion.
Dr Terry Saxby
97Dr Saxby, orthopaedic surgeon, examined the plaintiff on 4 April 2019. He noted that the plaintiff walked with his spine in a flexed position, would not fully extend his spine, and walked with a drag in one leg. Dr Saxby was unable to specifically test range of motion because of the plaintiff’s reported levels of pain. He noted reported sensory loss in the left foot in a stocking distribution and normal power and normal deep tendon reflexes. Dr Saxby said the May 2018 MRI scan demonstrated a small protrusion at L5-S1 with possible abutment on the left S1 nerve root. It does not appear that he examined the imaging. Dr Saxby concluded that there was not any true evidence of radicular pain.[86]
[86]DACB 38
98Dr Saxby’s examination was conducted more than three years ago and is of limited assistance in determining the current position.
Dr Clayton Thomas
99Dr Thomas commented upon the imaging in his report of 24 September 2019. He concluded that the 2018 MRI scan showed an annular tear at the lumbosacral level but no neurological compression, no significant disc protrusion and an otherwise capacious spinal canal. He does not appear to have sighted the actual images. On examination the plaintiff walked with a very slow flexed gait and thirty degrees of flexion. There was no wasting. He concluded the plaintiff’s presentation was predominantly nonorganic.[87]
[87]DACB 52
Dr Graeme Brazenor
100Dr Brazenor examined the plaintiff on 3 June 2022. Dr Brazenor viewed the imaging as well as the imaging reports.[88] He noted that the 2017 CT scan revealed the paramedian protrusion at L5-S1 was definitely larger than it was before the incident.[89] He said the disc protrusion was much less evident in the May 2018 MRI scan, which partly reflected the difference between MRI and CT imaging but also implied some healing in the disc annulus. He noted that further healing had occurred as at the May 2019 MRI scan. The left S1 nerve root was still slightly deviated, but not as much as in 2017. Dr Brazenor’s examination did not reveal any objective evidence of ongoing pain and disability referable to the plaintiff’s low back injury. He went so far as to say that the plaintiff was perpetrating a ruse.[90]
[88]DACB 81-82, 90, and 98-132
[89]DACB 90
[90]DACB 94
101Mr McGarvie submitted that Dr Brazenor’s opinion ought not to be accepted as he was, in effect, an advocate.[91] I agree that Dr Brazenor’s opinion that the plaintiff was perpetuating a ruse was expressed in most unfortunate terms. I find that form of expression of his opinion to be unnecessary comment, which I reject. However, I accept his diagnosis, and find that the plaintiff has a largely healed left paramedian protrusion of his lumbar disc. I further accept his findings upon examination of the plaintiff; that is, that there is no objective evidence of any continuing low back injury or impairment. I do so because Dr Brazenor has viewed and analysed all the relevant imaging of the plaintiff’s lumbar spine. Further, he has carefully analysed the medical reports and conducted a thorough examination of the plaintiff.
[91]T177
102I find that the medical material does not provide objective findings from which I can assess the plaintiff’s claim regarding the impairment consequences of his lumbar spine injury.
103Further, the unchallenged evidence of the plaintiff’s wife does not provide the objective evidence I would need to satisfy myself that the plaintiff has discharged his onus.[92] That affidavit largely relies on the plaintiff’s own reports of pain. I note also that Ms La Serra describes a gradually worsening condition. She does not deal with how the plaintiff presented in the most recent surveillance footage, nor mention the plaintiff’s involvement in poker or pool.
[92]PCB 28
Disentanglement
104In Meadows v Lichmore Pty Ltd,[93] Maxwell ACJ approved a two-step approach to disentangle physical and psychological pain and suffering consequences. The first step is to ask if there is a substantial organic basis for the pain and suffering consequences relied upon. If that question cannot be answered affirmatively, the next step is to disentangle the physical and psychological components of the pain and suffering consequences.[94]
[93][2013] VSCA 201
[94]Ibid at paragraphs [21]-[22]
105Here, the consensus of medical opinion is that the plaintiff suffered a left paracentral disc protrusion at L5-S1 in the incident. At that time, I find, there was a substantial organic basis for the plaintiff’s symptoms.
106However, the issue is whether there is now, some five years later, a substantial organic basis for the plaintiff’s claimed symptoms and consequences.
107The plaintiff submitted that the factual circumstances here are relevantly the same as those which existed in Jayatilake v Toyota Motor Corporation Australia Ltd.[95] However, each case must of course be determined on its own facts.
[95][2008] VSCA 167
108I find that there is not presently a substantial organic basis for the plaintiff’s claimed symptoms and consequences. None of the medical evidence upon which the plaintiff relies “disentangles” or identifies the current impairment and impairment consequences referable to physical impairment as opposed to a psychological or non-organic response. The assessments by the medical practitioners have largely turned on the plaintiff’s reported consequences of his injury.
109Dr Shanmugam’s recent reports describe the symptoms and restrictions of which the plaintiff complains and do not enable me to distinguish between the physical and psychological components of the consequences.[96]
[96]PCB 48, 51
110Dr McCallum describes pain and stress out of proportion to the underlying injury and suggests the presence of a pain somatisation disorder in addition to muscular pain and left-sided radicular pain.[97] His reports do not enable the necessary disentangling to be done.
[97]PCB 63
111Dr Middleton’s examination was restricted to Zoom, and he was not asked to separately identify the cause of the plaintiff’s impairment consequences.
112Mr Kossmann diagnosed lumbar spondylosis and signs of a possible regional pain syndrome. He notes the presence of anxiety and depression and recommended referral to a psychiatrist. Mr Kossmann’s report notes that the plaintiff suffers from “pain issues” but does not enable me to undertake the necessary disentangling.
113Whilst Dr Altaf attributes the majority of the plaintiff’s overall condition as “physical”, I cannot accept that opinion for the reasons already articulated.
114Indeed, the general consensus of the medical opinions is that the plaintiff has relatively modest pathology which does not account for the extent of the claimed symptoms. The weight of medical opinion supports a finding that the plaintiff exaggerates his symptoms, whether consciously or otherwise.
115The medical evidence is to the effect that the physical and psychological symptoms are so intertwined that it is not possible to conduct the necessary disentangling. In those circumstances the plaintiff is unable to establish that his physical condition meets the threshold.
Does the Plaintiff have a serious low back injury?
116In light of my findings regarding the plaintiff’s reliability and the lack of other objective evidence from which I could otherwise assess the pain and suffering consequences referable to the plaintiff’s claimed low back injury, I am left in the position of not knowing what the true consequences of his injury are. I am therefore unable to determine that there are pain and suffering consequences which meet the threshold.
117Furthermore, the plaintiff has not satisfied his onus of establishing that there is currently a substantial organic basis for the claimed impairment consequences and the medical material does not enable me to conduct the necessary disentangling.
Does the Plaintiff have a serious psychiatric injury?
118The plaintiff claims in the alternative, that if it is found that his current complaints are not substantially organic, then they are due to a pain syndrome, together with an adjustment disorder as a consequence of his low back injury.
119The evidence disclosed that the plaintiff had some pre-existing psychological difficulties. The plaintiff deposed that he had an episode of psychological difficulties when his marriage broke down and had “always been a worrier”.[98] The evidence also disclosed that the plaintiff had some prior psychological difficulties and treatment in 2010.[99] Whilst the plaintiff could not remember this, he accepted that if his GP recorded his symptoms in that way at that time, then that was likely the position.[100]
[98]PCB 17
[99]DACB 329
[100]T57-58
Michelle Pangallo
120The plaintiff tendered a report from Ms Pangallo, psychologist, dated 25 February 2020. Ms Pangallo saw the plaintiff twice: once in December 2018, and once in February 2019. Ms Pangallo reported that the plaintiff appeared greatly distressed by his pain and had clinically significant scores on the Pain Catastrophising Scale.[101]
[101]PCB 72
Priscilla Marietta
121The plaintiff also tendered a report of Ms Marietta, psychologist, dated 22 June 2022. Ms Marietta saw the plaintiff twice: on 28 January 2022 and 8 April 2022. Ms Marietta opined that the plaintiff’s symptoms of depression were closely tied to his chronic pain and level of functioning. She referred him for treatment by a psychologist specialising in chronic pain management, Ms Keira Stevenson.[102]
[102]PCB 79
Keira Stevenson
122The plaintiff has been consulting Ms Stevenson, psychologist, since approximately mid-2022.[103] No report was tendered from Ms Stevenson and no explanation was provided for the absence of such report from the plaintiff’s treating psychologist.
[103]T116
123It appears from the treater material that the plaintiff is having minimal treatment for his psychological condition and is not currently prescribed any medication for it.
Dr Justin Lewis
124The plaintiff tendered two reports of Dr Lewis, psychiatrist, dated 15 March 2022 and 26 October 2022. Dr Lewis examined the plaintiff on one occasion, being 15 March 2022. He took a history that the plaintiff was physically fit and psychologically well when he commenced working for the defendant. Whilst Dr Lewis was provided with the plaintiff’s first affidavit, he only notes a period of depression following the breakdown of the plaintiff’s first marriage and does not mention the plaintiff’s pre-existing tendency to worry.[104]
[104]PCB 132
125On examination, Dr Lewis found the plaintiff to be mildly depressed. He noted major themes centred around feelings of despondency in the setting of pain, physical restrictions, occupational limitation and poor response to treatment.[105] Dr Lewis diagnosed a chronic adjustment disorder with depressive features. I find that this diagnosis is plainly made in the setting of the plaintiff’s pain being an “underlying medical condition”, rather than accounting for the plaintiff’s pain as part of the psychiatric diagnosis.[106]
[105]PCB 133
[106]PCB 135
126Dr Lewis opined that the plaintiff was unfit for suitable employment by reason of the adjustment disorder.[107] He reasoned as follows:
“The total work incapacity is consequent to depressed mood, poor motivation, sleep disturbance and cognitive difficulties. Depressive symptoms are associated with feelings of hopelessness, overidentification with his invalidity status and reduced self-efficacy.”
[107]PCB 135
127Dr Lewis was thereafter provided with additional material (the defendant’s vocational assessment material) and his comment sought upon it. He did not re‑examine the plaintiff for the purpose of his supplementary report. He opined that the new material did not cause him to change his opinion.[108]
[108]PCB 141-142
Dr Timothy Entwisle
128The defendant tendered five reports of Dr Entwisle, psychiatrist, dated 13 November 2017, 31 July 2018, 8 August 2019, 26 August 2020 and 7 November 2022. Dr Entwisle first examined the plaintiff on 9 November 2017 and diagnosed an adjustment disorder with depressed and anxious mood of mild severity. He took a history that pre-injury the plaintiff had tendencies towards worry and stress. He opined that the plaintiff was not psychiatrically incapacitated for his pre-injury duties.[109]
[109]DACB 15-16
129When re-examined by Dr Entwisle on 24 July 2018, it was noted that the plaintiff’s presentation was dominated by pain behaviours. On this occasion Dr Entwisle diagnosed a pain syndrome as well as an adjustment disorder. He opined that the plaintiff’s psychiatric symptoms were mild in themselves, and his main problem related to abnormal illness behaviours and illness belief. Dr Entwisle thought the plaintiff had a capacity for suitable duties on reduced hours from a psychiatric perspective.[110]
[110]DACB 29-30
130Dr Entwisle re-examined the plaintiff on 29 July 2019. The plaintiff was then receiving treatment through Precision Pain Management, including attending Dr McCallum, physiotherapist, and Ms Pangallo, psychologist. The plaintiff reported that the combination of treatment appeared to be making a difference. Dr Entwisle diagnosed an adjustment disorder with depressed and anxious mood. He noted the plaintiff’s original work injury was complicated by functional factors. He noted that it was not the plaintiff’s psychiatric condition which prevented him from working, but rather what appeared to be his functionally-based pain problem.[111]
[111]DACB 47-48
131The plaintiff was examined by Dr Entwisle for the fourth time on 13 August 2020, via Telehealth, for the purposes of an impairment assessment. He diagnosed an adjustment disorder with depressed and anxious mood together with a pain syndrome.[112]
[112]DACB 69
132Dr Entwisle examined the plaintiff most recently on 27 October 2022. The plaintiff’s account of his daily activities was of a very restricted life. He told Dr Entwisle that his driving was minimal, and he does so only when he really must, for instance for doctors’ appointments or when visiting friends with whom he plays cards. The plaintiff told Dr Entwisle that he does not want to be around people, although sees a group of friends who live locally with whom he goes out for dinner occasionally and/or sits and plays poker. The plaintiff told Dr Entwisle that he gets agitated and finds it difficult being around people and cannot breathe properly. Dr Entwisle opined that pain behaviours were prominent upon examination. At this examination Dr Entwisle once more diagnosed an adjustment disorder with depressed and anxious mood together with a pain syndrome. Dr Entwisle opined that the plaintiff’s condition had not changed since he was last examined. He said that he had a capacity for employment as a transport clerk, warehouse clerk and gatehouse security person.
133The plaintiff’s recent presentations to both Dr Lewis and Dr Entwisle are in stark contrast to the manner in which he presented in the surveillance footage taken on 26 July 2022, in which the plaintiff moved freely displaying no sign of pain, agitation or restriction.
134Whilst the plaintiff did mention to Dr Entwisle that he played poker with friends, he did not mention that he was playing pool on a regular basis for several hours each time. The nature and regularity with which the plaintiff engages in these activities is, I find, inconsistent with his claim to Dr Entwisle that he gets agitated and finds it difficult being around people.
135It was submitted by the plaintiff that he ought to be found to have a permanent severe mental or permanent severe behavioural disturbance or disorder as his psychological condition causes a permanent incapacity for any employment.[113]
[113]T189
136The parties agreed that this was an “all or nothing case” regarding work capacity in that there was either no capacity or full capacity.[114] It was not in issue that the roles of transport clerk, warehouse clerk and gatehouse security were suitable subject to the question of capacity. If it was found that the plaintiff had a work capacity for suitable employment, the parties agreed that any of the identified suitable work options performed full-time would yield more than 60% of his without injury earnings.[115]
[114]T184
[115]T185-186, T196-197
137If I had found that the plaintiff’s unreliability was purely a poor memory problem, which I do not, I would have accepted the assessment of Dr Entwistle over that of Dr Lewis. Dr Entwistle had the advantage of assessing the plaintiff on five occasions over several years, and, in my assessment, this lends to a higher probability of an accurate diagnosis over time. Thus, absent the reliability issues which I have found, I would have determined that the plaintiff suffers from a chronic adjustment disorder with depressed and anxious mood and a chronic pain syndrome which do not incapacitate him from suitable employment as a transport clerk, warehouse clerk and in gatehouse security. In those circumstances the plaintiff would not have satisfied his onus of establishing that he had the requisite loss of earning capacity.
138However, there is an anterior difficulty with the plaintiff’s claim. It faces the same evidentiary problem as the claim based on physical injury: the unreliability of the plaintiff’s evidence. Indeed, the reliability of a plaintiff is perhaps even more important when considering a claim based on psychological injury.[116]
[116]Petrovic v Victorian WorkCover Authority [2018] VSCA 243
139I am unable to accept the psychological and psychiatric opinions tendered because they are substantially dependent upon the reliability of the account given by the plaintiff.
140I accept in broad scope that because of the low back injury he initially sustained, the plaintiff was psychologically affected to some degree. I am not satisfied that it affects him to the extent that he claims. However, I am not able to determine the pain and suffering consequences referable to any psychological disturbance because of my findings regarding the reliability of the plaintiff.
Conclusion
141For the reasons articulated, the plaintiff has not discharged his burden of establishing that he has suffered either a serious physical or a serious psychiatric injury referable to his employment with the defendant.
142The application is dismissed.
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