Boggitt v Wesfarmers Limited
[2015] VCC 809
•22 June 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-01043
| GAVIN BOGGITT | Plaintiff |
| v | |
| WESFARMERS LIMITED | First Defendant |
| and | |
| COLES SUPERMARKETS AUSTRALIA PTY LTD | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 and 10 June 2015 | |
DATE OF JUDGMENT: | 22 June 2015 | |
CASE MAY BE CITED AS: | Boggitt v Wesfarmers Limited & Anor | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 809 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to neck – whether injury organic or psychological – pain and suffering and economic loss – disentanglement of consequences of physical injury from consequences of psychological condition – whether consequences “very considerable” – whether 40 per cent loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Murray Goulburn Co-op Co Ltd v Filliponi [2012] VSCA 230; Georgopoulos v Silaforts Painting Pty Ltd [2012] VSCA 179
Judgment: Leave granted in respect of pain and suffering and loss of earning capacity.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Gorton SC with Mr Dawson | Alessi Legal Pty Ltd |
| For the Defendants | Mr D McWilliams | Wisewould Mahony |
HIS HONOUR:
Preliminary
1 The plaintiff, Mr Boggitt, struck his head against a manhole cover as he was climbing out of a lift shaft in the course of his employment with Coles Supermarkets Pty Ltd (“Coles”) at its Dandenong store on 8 February 2011. He suffered an injury to his neck, which has resulted in pain and headaches, but most significantly, has led to stiffness and an almost complete inability to move his neck. He was off work for a period, but resumed on part-time light duties, working 15 hours per week. His employment was terminated in 2013. He has seen a raft of specialists in an attempt to diagnose the nature of his injury, although there has been no clear physical diagnosis given. He has suffered a psychological reaction which has resulted in various symptoms.
2 Mr Boggitt claims a range of social, recreational and domestic activities have been restricted, and his present work capacity is something in the order of 15 hours per week.
3 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of Mr Boggitt’s employment. The body function said to be lost or impaired is the neck.
4 Alternatively, Mr Boggitt claims he has suffered a permanent severe mental or permanent severe behavioural disturbance or disorder in the nature of a Chronic Pain Syndrome. The application is thus brought under ss(a) and ss(c) of the definition of “serious injury” contained in s135AB(37) of the Act, and leave is sought in respect of both pain and suffering and loss of earning capacity.
5 Mr Boggitt was the only witness called to give evidence and be cross-examined. In addition, his two affidavits, medical and radiological reports, vocational assessments and other material were tendered in evidence. I shall not refer to all of that material in the course of this judgment, but rather those parts of the evidence and reports which appear to me to be most relevant and which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature and the principal authorities of the Court of Appeal are well known, and it is unnecessary for me to revisit the various relevant sections and those authorities.
Relevant background
6 Mr Boggitt is now fifty. He has been married twice and has nine children or stepchildren. He currently lives at Seaford. He was granted a Disability Support Pension in April 2014.
7 He was born in the United Kingdom and came to Australia in 1970. He completed Year 11 at high school. He was a member of the Royal Australian Navy until 1983. He had problems with his left knee and had a number of reconstruction operations. He joined the Australian Defence Force in 1986 and his work included driving a range of vehicles. He moved to New Zealand for a period and returned to Australia in 2001. He worked as an assistant manager at a Kmart store, then at Bunnings and Harris Scarfe. He lived for a period with his family in Tasmania and returned to Melbourne in 2007. Over the period from 2007 to 2009, he was employed by the Commonwealth Bank as a sales representative. Generally, he has a consistent work history.
8 He has a severely disabled son and another two of his children have physical medical conditions.
9 The family returned to live in Melbourne in 2009 and Mr Boggitt eventually started work at the Coles store at Dandenong in October 2010.
10 He particularly enjoyed physical fitness, exercised regularly and ran 10 to 15 kilometres daily. Apart from problems with his knee, he had no other significant physical illnesses nor conditions, and no mental health difficulties. He was interested in sport from an early age, in particular rugby league. Most of his spare time outside work was dedicated to his family. In evidence, he said he enjoyed his work with Coles, and the people he worked with. The job provided him with satisfaction and a social outlet.
The injury and its consequences
11 On 8 February 2011, Mr Boggitt was working in the Dandenong store, which had been beset by flooding, including in a lift shaft. He accompanied a plumber down the shaft through a manhole. He was called to return to the store, and as he climbed rapidly out of the shaft and through the manhole, he struck his head on a large bolt protruding from the manhole cover. The injury was described by some medical practitioners as a “compression” injury.
12 There was considerable bleeding and Mr Boggitt suffered immediate pain and stiffness in the neck, together with a headache. He remained working that day. The following day, a Wednesday, was a rostered day off. He was not able to return to work on Thursday because of the pain and instead went to see his local general practitioner, Dr Katherine Vardapetyan. She organised an x-ray and prescribed pain-relieving medication. She referred Mr Boggitt for physiotherapy, acupuncture and chiropractic treatment. The pain in his neck remained, with very limited movement. A CT scan of the cervical spine of 14 February 2011 showed a normal examination.[1]
[1]Plaintiff’s Court Book (“PCB”) 157
13 In addition to the physical symptoms, in the period after injury, Mr Boggitt suffered some panic attacks and high levels of anxiety. He had chest pain, for which he was taken to the emergency department of a local hospital. A heart examination was normal. This occurred again in March 2011.
14 Mr Boggitt was seen by Mr Bruce Love, orthopaedic surgeon, in March 2011. He presented with a very stiff neck. There were no abnormal neurological signs. Mr Love arranged a cervical spine x-ray,[2] which showed:
“Minimal marginal lipping and no other abnormalities demonstrated. No bony injury is seen.”[3]
[2]PCB 158
[3]PCB 158
15 Mr Love described the radiology as essentially normal. He recommended prednisolone, and continued to monitor him throughout 2011. The pain and stiffness persisted. Mr Love thought that the blow had caused –
“… some form of inflammatory reaction leading to resistance to movement in the cervical spine, but the site of this pathological process has yet to be determined.”[4]
[4]PCB 53
16 On 4 May 2011, Mr Love performed a manipulation of Mr Boggitt’s neck under general anaesthetic and noted crepitus in the course of the procedure. Mr Love referred Mr Boggitt to another orthopaedic surgeon, Mr Peter Wilde, and did not see him after December 2011.
17 Mr Peter Wilde saw Mr Boggitt in August 2011. He was given a treatment history of physiotherapy with traction, massage, TENS machine and the manipulation under general anaesthetic. When he examined Mr Boggitt, he noted he held his neck in a rigidly stiff position. He said:
“Mr. Boggitt has developed a pain syndrome, for which we are not able to provide a satisfactory physiological anatomical explanation. There is no missed injury, fracture or dislocation. Perhaps there is subtle facet joint or suboccipital osteo chondral joint lesion that is not easily imaged on bone scan or MRI scan, which is underpinning his pain. I guess we will never be sure of the pathology.
I felt that [the] next most appropriate step would be to trial him on Lyrica commencing with 75mg bd and increasing the dose to 150mg bd as necessary. This should be coupled with spinal mobilization with a physiotherapist who is prepared to push him … .”[5]
[5]PCB 55
18 Mr Wilde thought the symptoms would gradually dissipate.
19 Because of increasing psychological symptoms, the general practitioner referred Mr Boggitt to Mr Malcolm Aslin, psychologist, who commenced treatment on 21 September 2011. He conducted six sessions directed to providing greater insight and coping strategies.
20 In July 2011, the general practitioner referred Mr Boggitt to Professor Christopher Bladin, neurologist, for further investigation. The main problem was profound neck stiffness. In fact, Mr Boggitt was barely able to move his neck. He noted what appeared to be muscle spasm in the neck area.
21 In relation to the inability to move his neck, Professor Bladin said:
“… I found this rather unusual and at the time it led me to question whether indeed there may be some psychosomatic component to this.”[6]
[6]PCB 66
22 Professor Bladin recommended anti-inflammatory medication.
23 In September 2011, the plaintiff was referred to Dr Daniel Lee of the Victorian Rehabilitation Centre for assessment. Again, Mr Boggitt demonstrated no movement of the neck in any direction, together with deep aching pain. He formed the impression that Mr Boggitt was suffering “persistent musculoskeletal neck stiffness”.[7] He sought approval for a trial of medial branch blocks to the lower neck, and thought the prognosis was quite guarded. The branch blocks were administered in October 2011 but did not lead to any improvement in the range of movement.
[7]PCB 58
24 In January 2012, Mr Boggitt was assessed at the Victorian Rehabilitation Centre for admission into a rehabilitation program. At the outset, Mr Boggitt gave the following assessment of his symptoms:
·“Constant pain across his neck extending down to the tips of both shoulders.
·Constant ache and weakness in the left upper limb and intermittent shooting pain down the entire limb.
·Pain down the entire spine and across the lower back, intermittently extending into the lower limbs.
·Dizziness after prolonged activity, ? secondary to fatigue.
·Double vision.
·Some problems with speech and swallowing difficulty.
·Problems with gait and balance (resulting in 15-16 falls since the injury).
·Intermittent pins and needles and intermittent numbness in the fingertips of his left hand.
·Intermittent headaches.”[8]
[8]PCB 68
25 Mr Boggitt rated his pain as between 7 out of 10 and 15 out of 10. He was motivated to participate in the exercise program and was assessed by a psychologist and a physiotherapist. The psychologist noted confusion and distress, with problems of memory, concentration, dizziness, headaches, increased sound sensitivity and word finding difficulties. He was admitted to the program, which continued over about twelve months, with him attending for three hours a week. He was compliant with all the programs and there was some improvement in the range of movement of his shoulders.
26 In the last report of October 2012, it was reported his mood had improved and he was prepared to re-enter the workforce. Instruction was given to him about methods to better deal with his pain, and he became more comfortable in engaging in physical activity. He was said to have made considerable progress and was given strategies to cope with stress and anxiety.
27 Mr Boggitt was provided with a land and water exercise program. In evidence, he accepted that the program had led to a significant reduction in his neck pain, and left him better able to cope with his difficulties. There was, however, no improvement in his neck stiffness nor movement.
28 Mr Boggitt has had no further treatment nor intervention by any specialists. Medically, he has been managed by Dr Vardapetyan, who described him as suffering a long-term disability with stiffness and pain in the neck, together with depression and psychological symptoms. She thought he could not work more than three days a week (four to five hours per shift). Her diagnosis was a “soft tissue neck injury”. She prescribed Lyrica, which he takes each day, with occasional prescriptions of Panadeine Forte.
29 Mr Boggitt was cross-examined about his intake of Panadeine Forte, and although he has not had a prescription for some time, I accept he has used some tablets which had been obtained by the members of his family. He also takes Zoloft, one tablet twice per day.
30 He undertakes exercises which were recommended by the Rehabilitation Centre.
31 In early 2013, and after encouragement from his rehabilitation providers, Mr Boggitt returned to work with Coles, increasing his hours to five hours a day, three days a week. The work was mostly sedentary and administrative, with short bursts working on a computer. He did some further training, in particular with MYOB accounting software. He felt he was not really contributing in the workforce.
32 In December 2013, Mr Boggitt was telephoned by his employer and told there were no suitable duties open to him. He has not worked since. He said he was upset at being dismissed. He started some voluntary work with a local rugby league club and work with a local after-school community program introducing schoolchildren to a range of sports. That stopped in December 2014.
33 In March 2014, he commenced casual work with the National Rugby League, averaging eight hours per week over three days. He went to primary schools and gave directions to children about ball skills in rugby league. He would do up to two sessions per week, each of three hours. He has not done any of this work since March 2015.
34 Of more recent times, he has worked on a casual basis for Kelly Sports, one hour a day, up to five days a week. Again, involving primary schoolchildren. He spent some time looking after the children after school and helping them with sports.
35 In March this year, after moving to the area, he has done some work with the Frankston Raiders Rugby League Club, two hours here and there in administration.
36 After he left employment with Coles in December 2013, he applied for a number of jobs, some full time. In cross-examination, he admitted that he was encouraged to apply for full and part-time jobs by his medical advisors. He said he thought he might have been able to do the jobs then, but does not think he would be able to do them now. In evidence, he said he did not think he could work full time.
37 Mr Boggitt’s son is severely disabled, and he assists in his care, in particular at weekends. He might spend five hours each day of the weekend with him. He has mechanical hoists to assist in lifting his son. During the week, his son goes to school, and a carer comes in the evenings.
38 He is able to drive for 30 to 40 minutes and has special backing cameras fitted to his car. He can use a computer, including the internet and emails; however, his concentration and capacity to stick to the task affects his computer skills.
39 His father passed away some time ago, which affected him at the time, but he has now recovered. His stepdaughter died in September 2014 of a drug overdose. He has remained deeply affected by her death, and angry about the circumstances. Her death affects his current psychological condition. He lives at home with his wife and a number of children and grandchildren. His wife does most of the domestic duties.
40 His main physical problem is the stiffness and lack of movement in his neck. In the course of his evidence, I asked him to demonstrate the extent of his neck movement in all directions. He was barely able to move his neck at all. He still suffers pain in the neck but that has improved after the rehabilitation treatment. His sleep is affected and he wakes regularly. His headaches have reduced but he still has them from time to time. He becomes fatigued easily and needs to sleep for an hour or so in the afternoon. His depression has remained and he says that he is overwhelmed by feelings of helplessness, uselessness and worthlessness. He has been suicidal at times. He is unable to concentrate, in particular in relation to computer and administrative work. He does some household maintenance but very slowly. He goes shopping locally with his wife. He still has panic attacks from time to time, with associated palpitations, shortness of breath and light-headedness. He remains anxious and careful, in particular in crowds, because of his neck. His weight has increased by about 20 kilograms and he leads a sedentary lifestyle.
Consultant medical opinions
41 As best as I am able to understand the opinion of Mr Boggitt’s general practitioner, Dr Vardapetyan, she diagnosed him as suffering a soft-tissue injury to his neck, together with the development of depression and anxiety. In February 2014, she said he was only able to work two to three days per week with five-hour shifts. I note there is no up-to-date opinion from that practitioner.
42 Mr Love considered Mr Boggitt had suffered “some form of inflammatory reaction”. Again, however, that opinion is now some years old.
43 Mr Wilde considered the plaintiff suffered a Pain Syndrome for which there was no satisfactory physiological anatomical explanation.
44 Professor Bladin, neurologist, thought there was a psychosomatic component to the presentation.
45 Dr Lee, rehabilitation physician, appeared to consider Mr Boggitt’s condition organic. In 2012, he described “persistent musculoskeletal neck stiffness”.
46 Dr Michael Epstein, psychiatrist, examined Mr Boggitt in April 2015. He obtained an extensive history, including the death of Mr Boggitt’s stepdaughter, which had a profound effect upon him. Upon examination, Dr Epstein noted he was depressed and anxious, although attention, concentration, memory and speed of information processing appeared within normal limits. Dr Epstein concluded that Mr Boggitt’s mental state significantly deteriorated upon the death of his stepdaughter in September 2014. He was specifically asked whether Mr Boggitt was suffering a “Conversion Disorder”. He said:
“This term is generally used to describe a situation where physical symptoms occurs (sic) that cannot be satisfactorily explained by organic pathology and is therefore considered to be psychologically based. This is not a term that is generally used in the context of chronic pain disorders however.
There is no doubt that he suffers from chronic pain although the use of the term chronic pain does not imply that the pain is a psychiatric condition rather it implies that the pain may be more centrally located and that peripheral pathology may not be sufficient to explain the intensity of the pain but this does not make it therefore a psychiatric condition.”[9]
[9]PCB 100
47 Dr Epstein said his mental state interfered with his work capacity.
48 Mr Boggitt was examined by Dr Dominic Yong, occupational physician, in April 2015. He, like other practitioners, received a history of pain in the neck, radiating to the shoulders and arms. He said the following:
“In summary, Mr Boggitt is a man who has reported a traumatic axial injury to his cervical spine. He is likely to have aggravated a degenerative neck condition and this has been complicated by a chronic pain syndrome and deconditioning.
…
Mr Boggitt’s condition has been complicated by a psychological comorbidity requiring treatment.”[10]
[10]PCB 108
49 Without the benefit of hearing from this practitioner in evidence, it is difficult to know precisely whether the term “Chronic Pain Syndrome” has a physical or psychological genesis. However, it is clear his opinion is to the effect that there is both a physical and psychological component to his presentation.
50 Dr Yong thought Mr Boggitt had a capacity for work within certain restrictions, but that he would struggle to work more than 15 hours per week.
51 Mr Michael Shannon, orthopaedic surgeon, examined Mr Boggitt on a number of occasions in 2011 and 2012. Initially, he described the plaintiff as having suffered “a compression injury to the cervical spine with aggravation of pre-existing minor degenerative change”.[11] However, in his second report, he said:
“The physical findings are not consistent with recognisable organic pathology.
There appears to be a major psychological/hysterical component to his condition.”[12]
[11]PCB 114
[12]PCB 117
52 In his final report, Mr Shannon said:
“The diagnosis is a soft tissue injury to the cervical spine on a background of mild pre-existing degenerative change. …
…
He has sustained aggravation of pre-existing degenerative change as a result of a specific incident at work and his impairment relates to the employment injury.”[13]
[13]PCB 122
53 Mr Shannon thought Mr Boggitt had the capacity for light office work.
54 Dr Steven Stern, psychiatrist, examined Mr Boggitt in 2012 and 2013. Dr Stern received a history of a range of psychiatric symptoms, including mood fluctuation, depression, tearfulness and short temper. Mr Boggitt described himself as being anxious in crowds, and apprehensive about falling. There was some suicidal ideation. He noted very limited neck movement.
55 Dr Stern diagnosed Mr Boggitt as suffering an Adjustment Disorder with Mixed Anxiety and Depressive Mood. From a psychiatric aspect alone, he was fit for pre-injury duties.
56 Dr Clive Kenna, musculoskeletal physician, examined Mr Boggitt in April 2013. He noted the neck was absolutely rigid, with no movement in any direction. He diagnosed Mr Boggitt as follows:
“The diagnosis, I believe, is one of upper cervical, whiplash-type injury in which he sustained damage clearly to the upper three mobile segments of the cervical spine.
…
I would consider that his condition has morphed into a chronic-pain condition and could well be worth a trial of medial branch block, particularly involving the three upper mobile segments of the cervical spine including injection involving the greater occipital nerve (bilaterally).”[14]
[14]PCB 138
57 Dr Kenna said capacity for employment was limited but that it was too early to state the precise hours Mr Boggitt could work.
58 Professor John Hart, orthopaedic surgeon, examined Mr Boggitt in February 2004. Mr Boggitt complained to him of constant pain in the neck, extending to the shoulders and down the left arm to all of the fingers. The pain was worse when stressed. There was paraesthesia and numbness in the left forearm. Like almost every other practitioner, he noted there was absolutely no movement in the cervical spine. He thought Mr Boggitt was suffering a Chronic Pain Syndrome, and he agreed with Professor Bladin that there was a psychosomatic disorder present. He said:
‘”The limited motion in his neck is not compatible with the imaging that has been carried out and it really is most unusual to find a situation where there is absolutely no cervical movement whatsoever, particularly in the presence of normal imaging.”[15]
[15]PCB 153
59 Professor Hart said Mr Boggitt would be unable to return to work as a storeman or manager because of the limited neck movement.
60 Dr Gary Davison, occupational physician, examined Mr Boggitt on a number of occasions between 2013 and 2015.
61 He described the radiological investigations as unremarkable. In his early report, he suspected that a Chronic Pain Syndrome had developed subsequent to the physical injury.[16] In April 2015, he said, having examined the plaintiff a number of times:
“I am unable to explain the worker’s current presentation on a physical or organic basis.”[17]
[16]Defendant’s Court Book (“DCB”) 8
[17]DCB 20
62 From a purely physical perspective, he said Mr Boggitt could work as a despatch clerk with some restrictions.
63 Mr Ian Jones, orthopaedic surgeon, saw Mr Boggitt in April this year. He said:
“Clinical examination of the patient fails to disclose any evidence of scarring due to the skin on the top of his head. In the cervical spine the patient demonstrates an apparent severe restriction of all cervical movements in all directions. I was unable to confirm any convincing evidence of any neurological impairment affecting either upper limb.
…
… Subsequent x-ray investigation suggested mild degenerative disc disease affecting the C2/3 and C3/4 disc levels in his neck, but otherwise extensive examination is normal.
The mild degenerative disc disease suggested on CT and MRI scan findings performed in 2001 would be commonly seen in a patient of Mr Boggitt’s age of approximately 46 as he would have been at the time. I do not believe the changes would be the result of the described injury of 08.02.2011.
I am unable to substantiate any orthopaedic condition affecting the patient’s cervical spine to account for the severity of his symptoms and signs in relation to his neck condition.
I believe Mr Boggitt has recovered from the effects of the possible direct blow to the top of his head and the possible trauma to his cervical spine.”[18]
[18]DCB 30-31
64 Mr Jones concluded:
“I am unable to explain this man’s presentation in physical terms given the apparent complete absence of any movement whatsoever of his cervical spine. This would suggest a non organic or functional reaction.”[19]
[19]DCB 31
65 According to a report of Recovre, vocational assessors, a range of employment said to be suitable was suggested, including:
· Transport and despatch worker
· Transport service worker
· Call centre or customer service worker
· Office manager
· Clerical and administrative worker
· Bookkeeper
· Sales assistance (light)
· Ticket seller
· Console operator
· Assistant development officer (in RL)
· Volunteer bookkeeper.
66 Various salary guides were provided.
Credibility of the Plaintiff
67 The plaintiff gave evidence and was extensively cross-examined. Aside from some relatively minor issues, including the quantity of Panadeine Forte medication he was taking, no major credit issues were raised. I note that approximately 107 hours of surveillance was undertaken but not shown in Court. I infer that none of the surveillance would have assisted the defendants’ case.
68 I assess the plaintiff as a credible and honest witness. He made significant concessions in cross-examination. He answered questions directly and responsively.
69 There is no suggestion in any of the medical material that he was intentionally exaggerating his symptoms or condition. I accept that he has a strong employment history and this enhances his credibility. Further, he has made reasonable attempts to return to employment, in particular with Coles in 2012 and 2013, and with his various other areas of voluntary work and employment with the NRL and Kelly Sports.
70 All in all, I accept him as a witness of truth and, accordingly, more readily accept his complaints of pain and restriction of movement in the neck.
Organic neck injury
71 The first, and a significant issue, is whether the symptoms and restrictions Mr Boggitt claims to suffer as a result of the workplace injury arise as a result of an organic injury.
72 Mr Gorton SC, for the plaintiff, persuasively made the following points:
· I was entitled to take into account the plaintiff’s strong employment history and credibility as a witness. This makes it more likely the plaintiff was suffering an organic injury.
· The onset of pain in his neck, together with restriction in movement immediately followed the incident, and has been unrelenting since. That makes the symptoms and consequences more akin to an organic injury.
· Mr Boggitt had no prior psychiatric issues nor treatment. Aside from an injury to his knee while he was in the Navy, he has no prior WorkCover claims.
· There are a significant number of practitioners who have assessed Mr Boggitt as suffering an organic injury. In particular, these include the treating practitioners, Mr Love and Dr Lee. While not completely clear, the general practitioner’s opinions appear to favour an organic condition. Mr Shannon ended up concluding there was aggravation of an underlying degenerative condition in the neck.
· Neither Dr Epstein nor Dr Stern, the consultant psychiatrists, diagnosed any significant psychologically-based condition.
· According to the authorities, it was not necessary for there to be a precise and specific diagnosis of physical injury.[20]
[20]See Murray Goulburn Co-op Co Ltd v Filliponi [2012] VSCA 230 at paragraphs 23-26 and Georgopoulos v Silaforts Painting Pty Ltd [2012] VSCA 179 at paragraphs 60-61, 68-69
73 On the other hand, there are matters which mitigate in favour of a psychological basis for injury:
· There is no practitioner able to accurately and specifically diagnose the injury suffered by Mr Boggitt in the workplace incident. While some have attempted a general description, there is nothing precise.
· There is no radiological explanation for the injury. By and large, the medical evidence is to the effect that while there is some degeneration in the cervical spine, it does not explain Mr Boggitt’s symptoms.
· Not only is the pain in Mr Boggitt’s neck unexplained physically, he also has claimed pain and weakness in the left arm, into the hands, across both shoulders and down the spine.[21] This has not been diagnosed on any physical basis.
· In particular, the more recent consultant medical opinions favour a psychologically-based Chronic Pain Syndrome. That is particularly so, given the opinions of Dr Yong, Dr Kenna, Dr Davison, Professor Hart and Mr Jones.
[21]See Rehabilitation Assessment Report, PCB 68
74 On balance, and bearing in mind the plaintiff bears the onus of proof, in my view, I am not satisfied that the genesis of Mr Boggitt’s pain limitation and related consequences are as a result of an organic injury. The complete lack of any movement in the neck is quite incompatible with the radiology and completely unable to be explained on any orthopaedic basis. In short, it is a most unusual reaction to injury.
75 I prefer the opinion of the more recent consultant practitioners, in particular Mr Jones, Professor Hart and Dr Davison. While the earlier treating practitioners (with the possible exception of Mr Wilde) proffer some physical explanation, they have not had the benefit of the history which indicates that over the past, now four years, the plaintiff has had no resumption of any neck movement. That is more consistent with a non-organic injury.
76 It is not to the point that neither Doctors Epstein nor Stern diagnose any significant psychological injury. In my view, the diagnosis of a psychologically-based Chronic Pain Syndrome is more within the province of the physical doctors. They are able to physically assess a worker, take into account the findings on radiology, and then make an assessment of whether the physical pain and restriction is able to be explained on an organic basis.
77 While I accept Mr Boggitt suffered a physical injury at the time of the incident, probably in the nature of a compression injury to his spine, with a scalp laceration, the consequences of that physical injury have long since passed. The whole situation has been overwhelmed by a psychologically-based Chronic Pain Syndrome. In making this assessment, I do not suggest that Mr Boggitt’s response has been exaggerated, hysterical or anything other than legitimate. For the reasons previously given, I accept the restriction in his neck movement and pain in the area as being real and debilitating.
Behavioural disturbance or disorder
78 In my view, the consequences to the plaintiff are required to be considered under ss(c) of the definition of “serious injury” contained in s135AB(37) of the Act. The test for psychological injury is “severe”. It is a higher test than “serious”.
79 There are two aspects of Mr Boggitt’s claim for psychological injury: The first is the Chronic Pain Syndrome, the symptoms from which include, in particular, the complete inability to move his neck, and pain in the neck area. The second include a range of more usual psychologically-based symptoms which are referred to in the reports of Doctors Stern and Epstein, and the reports of the Victorian Rehabilitation Centre. In relation to those symptoms, the following have been reported:
· Depression, Anxiety and Stress[22] (although these improved during the rehabilitation program).
[22]PCB 82
· Lowered mood, social withdrawal, feelings of hopelessness, panic symptoms and fear of further injury, together with severe levels of distress.[23]
[23]PCB 91
· Memory, concentration, attention difficulties, irritability, fatigue and lack of motivation.[24]
· Suicidal thoughts from time to time, sleep disturbance and loss of energy.[25]
[24]PCB 100
[25]PCB 125-126
80 Taken alone, these symptoms, in particular given the paucity of psychological treatment, do not elevate the consequences to the “severe” level the legislation requires. However, that is it not the end of the matter.
81 In many psychological cases there is evidence of extensive psychiatric and psychological treatment, prescription of anti-depressant medication and even admission to mental health institutions. Again, none of these are present in this case. But I am satisfied the plaintiff suffers significant pain in his cervical spine (although this has been, to some extent, relieved in the course of his treatment at the Victorian Rehabilitation Centre) but the plaintiff has been left with a stiff and immovable neck. That affects him in almost every aspect of his domestic, social and recreational activities. I am satisfied it restricts his interest in his sporting pastimes and affects his ability to participate in his family life. It makes it difficult for him to sustain any form of employment beyond about 15 hours a week. I am further satisfied that his sleep is affected, that he becomes fatigued during the day, requiring a rest break, and overall, has had a very dramatic effect upon his life.
82 In all of these circumstances, I am satisfied, combining not only the Chronic Pain Syndrome, but also the other psychological symptoms, that the consequences of the psychological injury meet the “severe” test.
Capacity for employment
83 On behalf of the plaintiff, Mr Gorton submitted that Mr Boggitt’s realistic employment capacity was approximately 15 hours a week on restricted duties, which was the limit he reached at Coles after the injury. If that submission is correct, then given Mr Boggitt was working on a full-time unrestricted basis before the injury, he meets the economic loss criteria of more than a 40 per cent loss of earning capacity.
84 Mr McWilliams, for the defendants, submitted:
· Even accepting the plaintiff’s submissions, Mr Boggitt has a capacity for employment of 15 hours per week.
· To this should be added the other activities in which Mr Boggitt is involved, including his work with the NRL, Kelly Sports, and other voluntary work. Additionally, Mr Boggitt is able to care for his disabled son for approximately 10 hours per week on the weekends and during the week. Taken together, these would indicate he has a work capacity for close to full-time employment.
· He has made application for full and part-time employment, in particular for work with the Commonwealth Bank, which work he had previously undertaken.[26]
· I should accept the evidence of various practitioners, in particular Dr Davison, and the areas of employment recommended by Recovre, that he has the capacity to work in a range of jobs.
[26]See Transcript 51-54
85 As stated, I accept the plaintiff as a witness of truth. I am satisfied his work capacity is something in the order of 15 hours per week. While he is involved in a number of other activities with the NRL, Kelly Sports and some voluntary work, these areas provide only inconsistent part-time occupation and I am not satisfied they reflect in Mr Boggitt being able to work more substantial hours in a job which would require consistent application, concentration and reliability.
86 I note Mr Boggitt’s evidence, which I accept, that he becomes fatigued and requires to take a rest break in the afternoons. Even accepting that his past experience in the retail and administration area would not require him to undertake work which would have a substantial hands-on or physical component, nonetheless, someone with constant neck pain and a complete inability to move his neck at all would find any form of employment, beyond a maximum of some hours several days a week, extremely difficult.
87 I accept the evidence of the following practitioners as to Mr Boggitt’s work capacity:
· Dr Yong – he said he would struggle to work beyond 15 hours per week.[27]
[27]PCB 109
· Dr Kenna – he said he has the capacity for employment but it is limited.[28]
[28]PCB 139
· Professor Hart – he said he would be unable to return to work as a storeman or manager in a supermarket or other manual work.[29]
[29]PCB 155
· Dr Davison – he said he has the capacity to undertake a range of sedentary-type employment.[30] However, he doubted whether that would include full-time work.[31]
[30]DCB 16
[31]DCB 21
· Dr Vardapetyan – he said he has the capacity for part-time work only, which is unlikely to increase.[32]
· Mr Shannon – he said he was reaching the point (by November 2012) where he may have the capacity for light office work.[33]
[32]PCB 41
[33]PCB 123
88 I conclude that Mr Boggitt has a capacity for employment of about 15 hours a week, but little beyond that.
89 In these circumstances, the plaintiff’s claim both as to pain and suffering and economic loss succeeds. I shall make consequent orders.
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