Bandong v Prima Furniture (Australia) Pty Ltd
[2012] VCC 1958
•14 December 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-05196
| MARCOS MACARAEG BANDONG | Plaintiff |
| v | |
| PRIMA FURNITURE (AUSTRALIA) PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE BROOKES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 November 2012 | |
DATE OF JUDGMENT: | 14 December 2012 | |
CASE MAY BE CITED AS: | Bandong v Prima Furniture (Australia) Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1958 | |
REASONS FOR JUDGMENT
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SUBJECT – ACCIDENT COMPENSATION
CATCHWORDS – Injury to the lumbar spine – psychiatric injury – pain and suffering – loss of earning capacity
LEGISLATION CITED – Accident Compensation Act 1985
CASES CITED – Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Barwon Spinners v Podolak (2005) 14 VR 622; Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227; Haden Engineering Pty Ltd v McKinnon (2010) VSCA 69; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592; Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260; Hunter v Transport Accident Commission [2005] VSCA 1.
JUDGMENT – Leave granted to bring proceedings for pain and suffering. Application in relation to loss of earning capacity dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison SC with Mr B McCullagh | Clark, Toop & Taylor |
| For the Defendant | Mr J Batten | Hall & Wilcox |
HIS HONOUR:
1 This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff in the course of his employment with the defendant on 21 April 2009 (“the injury”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The body function relied upon in this application is the lumbar spine.
5 The plaintiff also relies upon clause (c), claiming to have suffered a permanent severe mental or permanent severe behavioural disturbance or disorder.
6 The judgment of the Court of Appeal in Mobilio v Balliotis[1] resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[2] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.
[1][1998] 3 VR 833
[2](1995) 21 MVR 314
7 Winneke P, in Mobilio, agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of sub-s(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.)
8 The plaintiff relied upon two affidavits and gave viva voce evidence. He was cross-examined. He also relied on the affidavit evidence of his wife, Jennifer Vejano Bandong, sworn 9 August 2012. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
Outline of Section 134AB
9 The impairment of the body function must be permanent in the sense that it is likely to continue into the foreseeable future.
10 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, sub-s(19) and (38)(e) of the Act impose specific burdens in relation to a claim for loss of earning capacity.
11 By sub-s(38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “more than significant” or “marked” and as being “at least very considerable”.
12 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
13 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter.
14 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
15 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established.
16 Subsection (38)(h) provides consequences which are psychologically-based are to be wholly disregarded in paragraph (a) cases.
17 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 in reaching my conclusions.
18 The defendant concedes the plaintiff suffered an injury on 21 April 2009 but does not concede that it was an injury to the lumbar spine, or alternatively, such injury does not meet the requirements of sub-paragraphs (a) or (c) of the definition of “serious injury” referred to above.
19 Further, in the circumstances of this case, it is incumbent upon the plaintiff to prove that he suffered a compensable physical injury to his lumbar spine on 21 April 2009 and further, that such physical injury either satisfies the requirements of paragraph (a) at the time of hearing or that such compensable physical injury was the cause of a Chronic Pain Syndrome or Adjustment Disorder which satisfies the requirements of paragraph (c): (See Veljanovska v Socobell Oem Pty Ltd[3]).
[3][2005] VSCA 227 at paragraph [11]
Compensable Physical Injury
20 The plaintiff, now aged forty-two years, commenced employment with the defendant in approximately February 1997 and continued until approximately June of 2009. He was employed as a labourer in a furniture manufacturing business and he alleges that the work was fast, constant and heavy manual work. He alleges he injured his lumbar spine on 21 April 2009 in the course of manually lifting pedestals weighing between 10 and 15 kilograms, on a repetitive basis, onto a pallet. He alleges he developed severe low-back pain, which, within a number of hours, had spread to involve his left groin region as well. At the time, he thought he may have suffered a further hernia injury, which had previously required operative repair in approximately 2001 by general surgeon, Mr Millar. He reported the incident to fellow employees, Mr Tom Rasmovzki and Mr Allen Dunston.[4]
[4]Claim Form 25 May 2009 – Exhibit E
21 On 22 April 2009, the plaintiff attended Dr Noshi Tadros, general practitioner. Dr Tadros thought there was a recurrence of the left inguinal hernia which had been the subject of repair in 2001. He referred him to general surgeon, Mr Millar, who, according to Dr Tadros, ruled out a hernia recurrence.[5]
[5]Exhibit C.14
22 The plaintiff took only one day off work and continued to perform his usual duties. He found that by 15 June 2009, his pain was so severe that he was forced to cease work altogether and has not returned since.
23 On 15 May 2009, general surgeon, Mr Robert Millar, examined the plaintiff and reported back to Dr Tadros on the same day. He took a history that the plaintiff had been complaining of pain over the area of his hernia repair, particularly when he was having sex, and specifically relating to ejaculation. Mr Millar thought there was no clear evidence of a recurrent hernia and he could not explain his symptomatology at that point. He referred him for an ultrasound of the groin to check the area, and prescribed some medication.[6] Apparently the ultrasound was normal and Mr Millar referred the plaintiff to another surgeon, Mr Hastie. The plaintiff asserts he saw Mr Hastie on one occasion and there was a recommendation for the performance of a laparoscopy in order to examine the abdominal wall. It was at this point the plaintiff sought a second opinion from another general practitioner, Dr Navani.[7]
[6]Exhibit C.37
[7]Exhibit A, paragraph 14
24 Before seeing Dr Navani, the plaintiff served a Claim Form upon the defendant dated 25 May 2009.[8] In that form, he claimed injury by way of “hernia and lower back” as a consequence of “lifting and bending all the time” on 21 April 2009. He further alleged he reported his injury to the employer via “Tom Rasmovzki and Allen Dunston”. He further stated therein that he had seen Dr Tadros and Mr Millar, surgeon, and provided his employer with a first medical certificate on 18 May 2009. He employer, Mr Peter Dwyer, certified, on 26 May 2009, that he believed the plaintiff’s injury to be “pain over the left hernia … repair from 2001”. He was unable to say whether the plaintiff had contributed to the injury as it was a “medical decision”.[9]
[8]Exhibit E
[9]Exhibit E
25 On 5 June 2009, Mr Millar recorded in a letter to surgeon, Mr Ian Hastie, with a history that on examination, the plaintiff seemed to have a well-healed inguinal area. Although a copy of an ultrasound report did report a hernia, Mr Millar considered that in actual fact, what was being seen was “part of the cord with some fatty disposition which they call a hernia”. There was a further history that the plaintiff said he had pain over the hernia region “ever since his surgery”. Mr Millar, himself, was loathe to re-explore the operation site.[10]
[10]Exhibit C.38
26 Nonetheless, on 18 June 2009, Mr Millar sought approval from the defendant’s insurer for surgical intervention by way of laparoscopy so that he could look at the abdominal wall “from within”.[11] It should be noted that in another letter dated 6 August 2009, when again writing to the defendant’s insurer, Mr Millar opined that the hernia was not the source of the plaintiff’s pain but that the procedure proposed would be by way of “laparoscopic inspection of the abdominal wall … ”.[12]
[11]Exhibit C.39
[12]Exhibit C.40
27 In seeking the second opinion from Dr Navani on 15 June 2009, that doctor’s clinical note relevantly records:
“Left groin pain … post hernia operation since 2001 … painful gradually worse … left groin pain … small irreducible hernia ++ difficulty in having sex ++ … sore back pain ++ five years ago … lifted heavy stuff and felt a severe catch +. Seen by their doctor and since then pain and only once seen by GP + … 21 April 2009 this year – sent for packaging. / heavy stuff units from ground level … lifter machine broken down. Reported to work witness + … lower back pain/sometimes numb till toe. Left leg + unable to walk. WorkCover certificate produced. Prescribed Mobic capsules. Referred for x‑ray and CT.”[13]
[13]Exhibit O
28 In a letter dated 29 April 2009, but which is agreed is probably a misprint and more likely to have been written in June 2009, Dr Navani certified that the plaintiff was experiencing ongoing pain and symptoms due to his work-related back injury. Further, he had complained of increased and persistent lower back pain and symptoms radiating down the left leg. Accordingly, funding for an MRI scan was sought from the defendant’s insurer.[14] It should be noted that Dr Navani had ordered a CT scan dated 18 June 2009, by this time, which was reported on as “no specific abnormality detected”. This finding was confirmed in his clinical note dated 22 June 2009, wherein it was recorded that an MRI scan was needed.[15]
[14]Exhibit C.21
[15]Exhibit O
29 On 2 July 2009, Dr Navani’s clinical note records that the plaintiff had two separate claims: one for his left groin pain and for which he was being treated by Dr Millar; and the second was a “back – ongoing +”. Further, he was awaiting an MRI scan and that the plaintiff “can’t bend ++”.[16] Further, an examination which took place on 10 July 2009 recorded “back pain ++ … left groin ++ … MRI +”[17] Thereafter, on 10 July 2009, once again, a recording of “back pain ++ and left groin ++” was made. Subsequently, a referral was made to rheumatologist, Dr Alex Stockman, on 16 July 2009.[18]
[16]Exhibit O
[17]Exhibit O
[18]Exhibit O
30 By MRI scan dated 13 July 2009, the radiologist reported, inter alia:
“There is some subtle left postero lateral bulging of the L4-5 disc, but no disc protrusion or neural compression seen at this level”.
31 The conclusion was “No significant pathology seen”.
32 On 21 July 2009, Dr Stockman examined the plaintiff. He took a history that on 21 April 2009, he was lifting at work when he suddenly developed low-back pain, and the next day, pain and numbness in the left leg to the foot. The symptoms had continued to worry him ever since. He had stopped working in June, but had felt no better. Further, the low-back pain and the pain in the left leg were aggravated by prolonged sitting or walking and he felt better when he lay down. On examination, there was limitation of movement of the lumbar spine in all directions and there was diffuse tenderness over the lower lumbar spine. After reviewing the CT and MRI scans, Dr Stockman thought:
“Marcos may have mild lumbar disc damage/bulging but I have reassured him that this is not serious and he should make [a] good recovery.”
33 Dr Stockman referred the plaintiff for physiotherapy and felt he should be encouraged to return to lighter duties. He did not proffer any opinion about the hernia.
34 Physiotherapist, Mr Dennis Jones, first examined the plaintiff on 16 June 2009. The referral was for management of low-back pain and left sciatica. He took a history that the plaintiff hurt his low back at work on 21 April 2009 from a lifting accident. Subsequently, he developed a further aggravation of this injury, again by lifting at work, one week earlier than his presentation to Mr Jones and he had been put off work from 15 June 2009 by Dr Navani. Prior to this, he had been working full hours and full duties which had involved repeated lifting of 10 to 15-kilogram boxes. He took a further history that there had been a back injury at work four or five years earlier, together with a left hernia repair in 2001. Further, after the MRI scan, the plaintiff continued to complain of significant low-back pain, and bilateral sciatica symptoms developed. Three letters were sent to Dr Navani in July, August and September of 2009 essentially stating that the plaintiff would be difficult to help. Further, Mr Jones considered:
“His reported symptoms did not appear to match objective findings (both clinical examination and scanning of lumbar spine).”[19]
[19]Exhibit C.51
35 Mr Jones received a further referral dated 13 October 2009 and a request was sent to WorkCover for a further four treatment sessions over four weeks. He was last seen on 4 November 2009. The diagnosis of injury at that stage was recorded as follows:
“Subtle posterolateral bulging of L4-5 disc, as seen on MRI scan of 13 July 2009. However no neural or thecal compression that would explain the ongoing leg symptoms (initially on left leg and progressing to both legs). Certainly soft tissue and lumbar facet joint strains would be evident from his work history and reported ‘lifting accidents’.”
36 He noted that he had an initial back injury, being a lifting accident at work some four to five years earlier. Treatment did not seem to offer any significant improvement to his condition and he considered that a pain management program should be considered as this would emphasise the psychological control of his symptoms. He also feared for the deterioration of the plaintiff’s mental state regarding his ongoing pain”.[20]
[20]Exhibit C.53
37 The plaintiff was subsequently referred to Dr Robert Gassin, a pain management specialist. He considered that the bilateral low-back pain could be arising from the low lumbar face joints or from the sacroiliac joints, and he requested authority to perform diagnostic blocks.[21] Thereafter, Dr Gassin consulted with the plaintiff on four occasions between 31 August 2009 and 19 February 2010. He recorded that left L3 to L5 medial branch blocks performed on 5 February 2010 were negative. On 10 February 2010, he reported that the pain was mainly in the low back centrally, radiating to the left. He pointed to the L2 to L4 levels as the main area of pain. Dr Gassin referred the plaintiff to Dr Terence Lim, consultant in rehabilitation and pain medicine, for assessment regarding a multidisciplinary pain management program. In the meantime, he recommended he remained on current medication, which consisted of Panadol and Tramadol. His diagnosis was that the pain is most likely of low lumbar discogenic origin, with secondary central sensitisation.[22] His prognosis was that the plaintiff was likely to suffer pain and moderate disability for the foreseeable future. He was unlikely to return to physically demanding work duties but he may have a capacity for work of a non-physical nature.[23]
[21]Exhibit C.42
[22]Exhibit C.46
[23]Exhibit C.47
38 Dr Terence Lim, consultant in rehabilitation and pain medicine, reported back to Dr Gassin on 7 May 2010. He presented with a thirteen-month history of mainly left-sided para-lumbar pain which radiated into his groin. His medication included Tramal SR and Nurofen. He had ceased physiotherapy but was attending with the massage. His sleep was disrupted due to pain exacerbation. He considered the pain was due to persistent muscular irritability reflecting the development of central sensitisation.[24] There was no follow up report from Dr Lim setting out the results of that program, but it is common ground that the plaintiff attended same.
[24]Exhibit C.48
39 On 10 December 2010, Dr Navani recorded that the plaintiff’s current symptoms were a very distressful left groin pain down to the left testes with associated lower back pain with left buttock and left leg pain with pins and needles and numbness of the left foot. He found it difficult to mobilise and used a single point walking stick for support. Activities of daily living were difficult and he only drove very short distances. He was complaining of poor sleep, headaches, anxiety, irritability and relationship issues with his wife, consistent with fragile mental state or adjustment disorder.[25] The management had consisted of physiotherapy, hydrotherapy and medications in the form of analgesia and anti-inflammatory. At this point, no specific diagnosis was given, but the prognosis was said to be poor and it was his opinion the plaintiff had no work capacity. Dr Navani stated:
“He is finding hard to come to terms with this but he is struggling and barely coping with basic daily living activities. … it remains highly unlikely that this will change in the foreseeable future.”[26]
[25]Exhibit C.26
[26]Exhibit C.28
40 On 7 March 2011, the defendant had the plaintiff examined by Dr Barry Gilbert, an occupational health physician.[27] The purpose of the referral was to provide an independent medical examination to assist the defendant in considering the plaintiff’s weekly payment entitlements. (It was stated by counsel that the plaintiff had remained on weekly payments for a statutory period of 130 weeks.) Dr Gilbert took a history that the plaintiff had suffered an acute back injury on 21 April 2009 and he had been unable to work at all since that time. He had a long and complex history of failed medical and other interventions in an attempt to resolve his condition. He recorded that it was the plaintiff’s belief that he had a disc bulge in the lumbar spine at L4-5 level and that this was the reason why he was unable to work.
[27]Exhibit C.164
41 Further, the plaintiff stated he was in pain all of the time. He had impaired mobility and used a walking stick when walking, which had been recommended apparently by the pain management clinic when they were assessing him. Current treatment was said to be analgesia, Tramadol taken three times a day, together with Mersyndol Forte at night time, and Cymbalta, an anti-depressant, which had been prescribed by his psychiatrist. He was attending an occupational therapist twice a week for strategy to overcome his immobility and pain. Also, he was undergoing massage from a therapist once a week for deep-tissue massage to the lumbar spine. He stated he had cortisone injections at The Royal Melbourne Hospital in October 2010, which had made his left leg feel weak.
42 Although he had undertaken a pain management program with Dr Lim in May 2010, apart from receiving recommendations regarding mobility, such as the use of a walking aid and ongoing use of analgesics, he thought there had been no substantive improvement and he was not currently undertaking any pain management. He was being currently certified unfit for all work.
43 On examination, Dr Gilbert found the plaintiff to be a cooperative man who appeared to be in pain throughout the duration of the interview and examination. There was no overt hernia clinically. Examination of his lumbar spine was difficult because of the plaintiff appearing to be in a great deal of discomfort. On the assumption that an MRI scan would show relatively minor disc changes at the L4-5 level, without evidence of radiculopathy, it appeared to Dr Gilbert that the plaintiff had:
“… now developed a chronic pain syndrome complicated by abnormal illness behaviour in relation to chronic pain. This is accompanied by a complete failure to improve despite attempts at various conventional treatment modalities and a poor ongoing compliance due to various personal reasons.”
44 In his opinion, the plaintiff’s initial injury was most likely mechanical low-back pain injury related to manual handling and strain, but that had now progressed to a Chronic Pain Syndrome. In his opinion, the plaintiff had no current work capacity as a result thereof. Dr Gilbert’s prognosis for return to work either in pre-injury duties, modified pre-injury duties or alternative duties was poor, particularly given that almost two years had now elapsed since the onset of this condition. His fitness for work was complicated by the fact that he remained on potent analgesia such as Tramadol and Mersyndol Forte. He considered the major barrier to return to work “does appear to be mainly psychological and review by a psychiatrist as an independent medical assessor is appropriate”. He considered that overall the nature of the condition was abnormal illness behaviour and a Chronic Pain Syndrome with underlying mild degenerative lumbar spine disease clinically.
45 Mr Kevin King, orthopaedic surgeon, saw the plaintiff on two occasions in a medico-legal capacity. On the first occasion, being 3 May 2011, he noted the specific treatment at present was in the form of analgesics such as Tramadol and Mersyndol Forte, which afforded him mild relief. On examination, there was marked limitation of all low-back movements by pain and spasm. Mr King thought it reasonable to assume the plaintiff did sustain some damage to lumbar discs and associated ligamentous structures on 21 April 2009. He thought, at that stage, that the plaintiff was disabled to a moderately severe degree by his symptoms. He thought, based on underlying organic injuries to his lumbar spine, he had been left with a chronic low-back pain of mild to moderate severity with some discogenic radiation into the buttock and thigh. He thought he would be permanently unfit to return to his old heavy repetitive work but that he could probably manage suitable lighter work which did not put heavy strain on his lower back and which did not involve constant bending and lifting.[28] Significantly, he also stated:
“The overall impression is also apprehension and anxiety and depression are significant features here and there is presumably some degree of psychological overlay.”
[28]Exhibit C.86
46 On the second occasion Mr King examined the plaintiff, being 2 August 2012, there was similar history and examination. Mr King concluded:
“[My] overall impression is that in addition to the genuine organic limitation of low back movements by pain and spasm, there is now an element of depression and anxiety and apprehension.”[29]
[29]Exhibit C.88B
47 Mr King considered that the organic symptoms were severe enough to prevent the plaintiff from returning to any of his old heavy repetitive production work at any time in the foreseeable future, but that he could probably manage suitable light work which did not put a heavy strain on his lower back and which did not involve constant bending and lifting.[30]
[30]Exhibit C.88D
48 By way of contrast to Mr King’s opinion, the defendant had the plaintiff examined by orthopaedic surgeon, Mr Michael Shannon, in August 2010, and by rheumatologist, Dr Kevin Fraser, in August 2011 and August 2012.
49 On 12 August 2010, Mr Shannon took a history of the plaintiff suffering pain in April of 2009 extending around the low back and into the left groin. Although he returned to work, his back pain was getting worse and he was prescribed stronger analgesics and massage, and he also saw an occupational therapist or physiotherapist who applied machines to his back. He ceased work in June 2009, at which time the pain was radiating down the left thigh and sometimes below his knee to the foot. He complained that he was significantly restricted in day-to-day activities and was quite inactive at home. On examination, he had moderate restriction of thoracolumbar movements with minimal spasm on lateral flexion. His opinion was that he had sustained a –
“…lifting injury in the course of his employment … which has apparently resulted in mechanical back pain.”
50 Mr Shannon considered that the diagnosis was not at all clear but investigations had ruled out major pathology. He also thought, at that stage, there were some non-organic features to the plaintiff’s presentation and it was difficult to assess his work capacity. He conceded that on presentation, his work capacity was extremely limited but he thought that he would be capable of light bench work within certain restrictions. Finally, he thought the plaintiff had non-specific mechanical back pain without a clear diagnosis. However, he thought he could not return to his pre-injury duties.
51 Dr Fraser first saw the plaintiff on 4 August 2011. In short, he was of the opinion that:
“… his initial symptoms were possibly due to a soft tissue strain in the low back/left hip girdle region, but this should have long since resolved. … his ongoing pain and current presentation is due to non-organic factors of a psychosocial nature.
52 The prognosis was poor and despite the forthcoming pain management program, he doubted there would be any improvement in the foreseeable future. He thought any incapacity was due to non-organic, rather than physical factors, and that he was physically capable of undertaking suitable employment including his pre-injury duties.
53 On review on 14 August 2012, Dr Fraser reinforced his earlier opinion and took a history that the plaintiff had since undertaken a four-month rehabilitation program under Dr Terence Lim comprising, physiotherapy, hydrotherapy, occupational therapy and psychological counselling. The plaintiff was continuing to take Tramal, 100 milligrams twice a day, and sedatives, either Temazepam or Imovane. Finally, he thought the plaintiff was probably physically fit for his pre-injury duties or for any other work for which he is otherwise suited but non-organic factors of a psychosocial nature are likely to be an impediment in respect of his rehabilitation for the foreseeable future.[31]
[31]Exhibit 1.32
Findings
54 Based on the totality of the above evidence, I consider it reasonable to conclude that the plaintiff suffered a strain injury to his lumbar spine in the incident on 21 April 2009 which initially was thought to be a complication of an earlier hernia injury. Secondly, I find it was reasonable for him to cease work on or about June of 2009 on account of the pain occasioned by the straining injury. Thirdly, the clinical course thereafter, as documented by the various medical practitioners above, would suggest that the failure of the physical strain injury to respond to conservative medical management most likely contributed to a Chronic Pain Syndrome, which, itself, required different medical management from that of the physical injury. Although Mr King is of the view that there was an underlying organic basis for the symptoms in 2011 and 2012, the fact that he opines that the clinical situation is complicated by psychological matters and that, in any event, the plaintiff would probably be fit for light duties on a physical basis, despite his presentation of being totally incapacitated, leads me to the situation where due weight should be given to the opinions of Mr Shannon and Dr Fraser.
55 Accordingly, although satisfied that the plaintiff initially suffered a soft-tissue injury to his lumbar spine on 21 April 2009, I am unable to find that such injury subsists at the date of hearing. If I am wrong in this conclusion, I am still not persuaded that the physical consequences of that injury can amount to a “serious injury” as required by law, because of the inability to be satisfied that the presentation is not overwhelmingly as a result of psychological matters rather than physical matters.[32] I find that the plaintiff has failed to discharge his onus of proof in this regard.
[32]s134AB(38)(h) of the Act
Severe Mental Disorder
56 Dr Navani referred the plaintiff to a psychologist, Ms Lisa Costa, on or before 9 September 2009. Ms Costa consulted with the plaintiff on at least eighteen occasions between 9 September 2009 and 9 May 2011. She opined that the plaintiff was suffering from an Adjustment Disorder (Chronic) with Mixed Anxiety and Depression (309.28).[33] Defence counsel submits I should not accept her as an expert. Her diagnosis, in any event, is similar, if not identical to that of psychiatrist, Dr Kwong. In any event, of interest, is the definition of the diagnosis which includes:
“These symptoms or behaviours are clinically significant as evidenced by either of the following:
1 Marked distress that is in excess of what would be expected from exposure to the stressor.
2 Significant impairment in social or occupational (academic) functioning.”[34]
[33]Exhibit C.62
[34]Exhibit C.63
57 Further, the development of these symptoms are in response to an identifiable stressor occurring within three months of the onset of the stressor.
58 Dr Stella Kwong later also treated the plaintiff. Two reports dated 31 January 2011 and 16 July 2012 were accepted into evidence.[35] In her first report, she documents the history of depression, lack of sleep, pain, and the need for the prescription of pain relieving medication. She stated:
“It is my opinion that Mr Bandong is suffering from an adjustment disorder with depressed mood (DSM 4 309.00).”[36]
[35]Exhibit C.54 and Exhibit C.60(a)
[36]Exhibit C.59
59 Further, Dr Kwong stated that the plaintiff’s psychological problem was expected to respond well to medications and counselling and that psychologically he was employable. The prognosis on the first occasion was that he was expected to recover reasonably well in about six months, providing there was improvement of his physical problem and he had not deteriorated socially.
60 In her second report, Dr Kwong stated:
“I am pleased to report that, despite no improvement in his physical health, Mr Bandong has settled down in a routine and is psychologically coping.”[37]
[37]Exhibit C.60A
61 However, Dr Kwong took a history that the plaintiff went to bed late at either 2.00 am or 3.00 am and he could not sleep even with sleeping tablets. The plaintiff also stated, however, the rehabilitation program had given him advice including suggesting that he do voluntary work. His friends were now taking him to a church fellowship on Saturdays and Sundays, which he enjoyed. He continued to be easily upset over trivial matters and he continued to be treated psychologically with Cymbalta, an anti-depressant, 60 milligrams, and Temazepam. The diagnosis was exactly the same and the prognosis for psychological recovery was reasonably good, as he had learned to live with his physical limitations. Dr Kwong considered that his psychological impairment was not likely causing him significant incapacity and employability.[38]
[38]Exhibit C.60C
62 At the other end of the spectrum under this category are the two reports of Associate Professor George Mendelson, consultant psychiatrist, dated 10 October 2011 and 20 September 2011.[39] On the first occasion, the history included the treatment regime being one of physiotherapy and medications such as Tramadol and Mersyndol Forte. Professor Mendelson also recorded that the plaintiff had been referred to a psychiatrist and had been attending Dr Stella Kwong every six weeks since 2010. He was taking Tramadol, 100-milligram tablets twice per day for pain relief, as well as taking Mersyndol Forte, one tablet per day. Dr Kwong had also prescribed Cymbalta as an anti-depressant.
[39]Exhibit 1.33 and Exhibit 1.49
63 Professor Mendelson also relied upon a report from Dr Tan at The Royal Melbourne Hospital dated 10 December 2004, which stated that an MRI scan of the lumbar spine which was performed prior to a review on 1 September 2010 showed a small left foraminal bulge of L4-5 intervertebral disc contacting the L4 nerve root. There was a further comment: “The degree of pain reported was considered to be inadequately explained by the MRI findings.” Professor Mendelson noted Dr Kwong’s diagnosis of an Adjustment Disorder with Depressed Mood and the favourable prognosis in the first report.
64 In Professor Mendelson’s opinion, the plaintiff did not present as having any diagnosable mental disorder but interestingly stated that the specific depressive symptoms that he was considered to have, had been, and remain, well controlled.[40] Further, he stated that the specific symptoms that led to the diagnosis of Adjustment Disorder with Depressed Mood were “Currently well controlled with antidepressant medication and supportive psychotherapy”.
[40]Exhibit 1.43
65 In my view, this does not amount to an opinion that the anti-depressant medication was not warranted in the first place as a response to a psychological condition. In any event, Professor Mendelson did not consider that there was any loss of work capacity as a result of any current psychiatric illness. Later in his report, he stated:
“In my opinion it is not inappropriate for Mr Bandong to continue with treatment under the care of Dr Kwong while he became involved in a vocational rehabilitation program.”[41]
[41]Exhibit 1.44
66 In his second report, Professor Mendelson noted that the plaintiff was attending a psychiatrist every four to five weeks and seeing a psychologist every three to four weeks, and was taking Tramal and Mersyndol Forte every day for pain relief. He was also being prescribed Cymbalta by Dr Kwong. At night he took either Temazepam or Imovane to help him sleep.
67 Interestingly, Professor Mendelson records in this report that at the time of the previous consultation, it was his opinion that the plaintiff did not present as having any diagnosable mental disorder. He does not repeat that opinion specifically in this report. He does say that it remains his opinion that there is no indication that the plaintiff has any loss of work capacity due to any psychiatric illness or psychiatric impairment. And he considered there was no indication that he required treatment under the care of both a psychiatrist and a psychologist, and, in his view, consultations with Dr Kwong every six to eight weeks, combined with continuation of Cymbalta, would be adequate for the ongoing management of the plaintiff’s residual emotional symptoms.[42]
[42]Exhibit 1.58 and Exhibit 1.57
Findings
68 In my opinion, it is reasonable to conclude:
(i) that on 21 April 2009, the plaintiff suffered a physical injury in the course of his employment as alleged, and that physical injury has at least very substantially resolved with the passage of time;
(ii) that consequential upon that injury, the plaintiff has developed a Chronic Pain Syndrome affecting the areas which had been the site of organically determined pain;
(iii) that further, consequential upon that injury, the plaintiff has developed a psychiatric injury, being an Adjustment Disorder with Mixed Anxiety and Depressed Mood;
(iv) that the symptom complex which results from the original physical injury does amount to a mental or behaviour disturbance or disorder as contemplated by s134AB(37)(c) of the Act;
(v) that the plaintiff’s employability has been considerably restricted as a result of the disturbance or disorder to the extent that he genuinely presents as totally incapacitated;
(vi) that this presentation, together with the need for constant pain-relieving medication, lack of sleep and different treatment regimes satisfies the definition of “severe” as set out in paragraph 6 above;
(vii) that further, since the prognosis for the Pain Syndrome at least is poor, I am prepared to accept that the condition is likely to be permanent.
Pain and Suffering Consequences
69 I consider that the constant pain complained of and the medication needed in response thereto satisfies an important factor in determining serious consequences.[43]
[43]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR 592, at paragraph [199] per Dodds-Streeton JA
70 Further, the extent of the pain leading, in particular, to the inability to sleep satisfies the criteria set out by Maxwell P in Haden Engineering Pty Ltd v McKinnon.[44] Further, it would appear that the plaintiff had a constant history of performing heavy work since first arriving in Australia. The overwhelming import of the medical evidence is that heavy physical work is an area of work which the plaintiff enjoyed and has been closed off to him in the future.[45]
[44][2010] VSCA 69 at paragraph [11]
[45]See Dwyer v Calco Timbers Pty Ltd No 2 [2008] VSCA 260 at paragraph [25] and Haden Engineering Pty Ltd v McKinnon (supra)
71 In conclusion, I consider that the plaintiff has suffered a mental or behavioural disturbance or disorder which has a serious consequence for him in the form of disablement from work and interference with enjoyment of life and that he has suffered very significant pecuniary disadvantage as a consequence of that affliction. The aggregate of these considerations leads to the conclusion that the plaintiff has suffered a “severe long term behavioural disturbance or disorder” within the meaning of paragraph (c) within the meaning of the definition of “serious injury” when judged by comparison with other cases in the range of possible mental or behavioural disturbances.[46]
[46]See Hunter v Transport Accident Commission [2005] VSCA 1 per Nettle JA at paragraph [44] and s134AB(38)(h) of the Act
Economic Loss Consequences of the Severe Mental Disorder
72 Notwithstanding that I consider the plaintiff has suffered from a permanent severe mental or a permanent severe behavioural disturbance or disorder, the plaintiff, in addition to the requirements under s134AB(38)(c), must also establish a present loss of 40 per cent loss of earning capacity which is permanent.[47]
[47]s134AB(38)(e) of the Act
73 The plaintiff’s treating psychiatrist, Dr Stella Kwong, considered that his psychological impairment was not likely causing him significant incapacity and employability.[48] Further, Mr Kevin King considered that the plaintiff was fit for light duties, presumably full time.[49]
[48]Exhibit C.60C
[49]Exhibit C.81 and Exhibit C.88(a) and Exhibit C.88(e)
74 I consider this to be the most likely residual position. Although at one end of the spectrum the treating general practitioner considers that the plaintiff has no work capacity and is suffering a lumbar disc prolapse at L4-5 with nerve root abutment, as per the MRI scan undertaken at The Royal Melbourne Hospital dated 6 July 2010,[50] the rheumatologist, Dr Kevin Fraser, considers that any physical work injury had long since resolved by 2012.[51]
[50]Exhibit C.35
[51]Exhibit 1.30
75 I consider that the disparity in opinions is probably largely related to the nature of a Chronic Pain Syndrome. However, counsel for the defendant takes the point that no follow-up report has been received from Dr Lim as to the outcome of the rehabilitation therapy and, accordingly, asserts that the plaintiff has not discharged the onus of proof required under s134AB(38)(g). There is some force in this argument, but in any event, independently of that requirement, I do not believe that the plaintiff has discharged the onus of proof to the effect that he has suffered a permanent loss of 40 per cent of his earning capacity.
Conclusion
76 Leave will be granted to the plaintiff to bring proceedings for the recovery of damages for pain and suffering in respect of injury suffered in the course of his employment on 21 April 2009.
77 I will hear the parties as to consequential orders as to costs.
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