Bugeja v Victorian WorkCover Authority
[2022] VCC 1779
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. Cl-21-02582
| STEPHEN BUGEJA | Plaintiff |
| V | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 and 30 August 2022 | |
DATE OF JUDGMENT: | 10 November 2022 | |
CASE MAY BE CITED AS: | Bugeja v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1779 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – lower back injury – reliability of plaintiff – surveillance footage inconsistent with plaintiff’s instructions to doctors – absence of reliable evidence of consequences of injury
Legislation Cited: Workplace Injury Rehabilitation Act 2013 (Vic), s335
Cases Cited:Nikolic v Transport Accident Commission [2020] VSCA 148; Dordev v Cowan [2006] VSCA 254
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A McNab SC with Mr C Sidebottom | Maxiom Injury Lawyers Pty Ltd |
| For the Defendant | Ms S Manova | IDP Lawyers Pty Ltd |
HER HONOUR:
1The plaintiff, Mr Stephen Bugeja, makes a claim for leave to bring proceedings pursuant to s335 of the Workplace Injury Rehabilitation Act 2013 (Vic) (“the Act”) for a serious injury certificate for pain and suffering and loss of earning capacity. He brings his claim under ss(a) and ss(c) of the definition of “serious injury” on the basis of both physical and psychiatric injuries he sustained on or about 8 October 2018 while employed as a boat builder with Maritime Global Pty Ltd.
2Mr Bugeja must establish he has suffered physical injuries that amount to a permanent serious impairment or loss of a body function that satisfies the test of being “more than significant or marked”, and as being “at least very considerable” when judged by comparison with other cases in the range of possible impairments or losses of body function.[1] Alternatively, or in addition, Mr Bugeja must establish that he has suffered a severe mental or behavioural disturbance or disorder which, when compared with other cases, may be described as being more than serious to the extent of being severe.[2]
[1] Section 352(2)(c) of the Act
[2] Section 352(2)(d) of the Act
3Mr Bugeja relies on his affidavits sworn on 22 February 2021,[3] 20 December 2021[4] and 11 July 2022,[5] and an affidavit of his wife, Eleanor Bugeja, dated 20 December 2021.[6] He also relies on an affidavit of Geoffrey Guinane, dated 1 August 2022.[7] He otherwise relies on the opinions of various treating and medical experts. The defendant relies on a report of a number of medico-legal experts, vocational assessment reports and surveillance footage.
[3]Plaintiff’s Court Book (“PCB”) 4-17
[4]PCB 19-26
[5]PCB 230-234
[6]PCB 27-32
[7]PCB 226-229
4Mr Bujega attended in person and was cross-examined. Mrs Bugeja and Mr Guinane were not required for cross examination. None of the medical witnesses were required to attend.
5The defendant did not dispute the occurrence of an injury at work.
6However, the defendant submits in relation to the physical injury that:
(a) Mr Bugeja’s current condition does not have a substantial organic basis;
(b) the work injury caused a temporary aggravation of underlying minor degenerative change, which has now ceased; or
(c) if there is a substantial organic basis to Mr Bugeja’s injury, it is impossible to disentangle which aspects of Mr Bugeja’s presentation or condition relate to the organic injury and which aspects relate to non-organic factors, such as illness behaviour or functional overlay; and
(d) there is no incapacity to work resulting from organic injury; or
(e) if there is an incapacity, Mr Bugeja nevertheless retains the ability to work in full-time suitable employment.
7In relation to the claimed psychiatric injury, being an adjustment disorder with depression and anxiety and/or a somatoform disorder, the defendant submits:
(a) Mr Bugeja does not suffer from a psychiatric injury; or
(b) if he does suffer from a psychiatric injury, it does not meet the “severe” threshold in ss(c); and
(c) there is no incapacity to work resulting from any psychiatric condition.
8The defendant submits Mr Bugeja was an unreliable witness and says he exaggerated his alleged symptoms and disabilities to medical practitioners, which necessarily impacts on the reliability of their reports.
9For the reasons set out below, Mr Bugeja has not discharged his burden of establishing he has a serious physical or psychiatric disorder. Accordingly, his application is dismissed.
Background
10Mr Bugeja is forty-one years of age, and is married with a young son. He left school partway through Year 11 to start an apprenticeship as a diesel mechanic. He did not complete his trade qualifications.
11Since leaving his apprenticeship, Mr Bugeja has worked as a painter and decorator, and a picker and packer. He has also worked as a grain handler for Emerald Grain, on the docks working for Patrick Stevedores and, later, as a yardman at Prixcar.
12He commenced employment with the defendant as a boat builder in September 2017. He has a passion for boating and fishing. Prior to his injury, he undertook restorations of boats in his spare time.
The incident
13On 8 October 2018, Mr Bugeja says he stepped off some stairs at the employer’s worksite in Derrimut, and slipped on sawdust that had been left to gather on the concrete floor. Mr Bugeja says that his foot slid out and his back jerked and jolted as he prevented himself from falling.
14After this incident Mr Bugeja reports, in his first affidavit, that he felt immediate onset of sharp pain in his lower back. He reported his injury and applied an icepack on his lower back. He completed an incident report on that day. He was unable to continue working after the incident and left work early.
15Mr Bugeja says he had two hot showers to try and help ease the pain, and could not get out of bed when his wife came home. He had trouble sleeping that night.
Treatment
16On 9 October 2018, Mr Bugeja saw his general practitioner, Dr Vijay Navani, at the Sunshine City Medical Centre.[8] Mr Bugeja says he was struggling with pain and spasms in his lower back. Dr Navani prescribed Endone and pain medication to help with his pain and lower back tenderness.
[8] PCB 239-240
17Mr Bugeja had a CT scan on 11 October 2018, which showed disc damage at L4-5.[9] Mr Bugeja says by this stage he had symptoms of pain radiating into his right leg. He returned to Dr Navani on 12 October, and was certified unfit for work.
[9] PCB 146-147
18Mr Bugeja commenced physiotherapy with Mr David Grubesic in October 2018.[10]
[10]PCB 59
19On 14 November 2018, Mr Bugeja had an MRI scan which showed L4-5 disc prolapse and mild impingement on L4 and L5 nerve roots.[11]
[11]PCB 144
20He attempted to return to work on light duties and restricted hours in January 2019. Mr Bugeja says he was only able to work four hours per day on light duties.
21On 7 February 2019, Mr Bugeja attended neurosurgeon, Mr Girish Nair. Mr Nair recommended Mr Bugeja try to manage his symptoms with core and back strengthening exercises and hydrotherapy, and did not recommend surgery.[12]
[12]PCB 92-93
22On 27 February 2019, Mr Bugeja’s general practitioner, Dr Navani, prescribed Endep due to increased pain. Mr Bugeja ceased work in February 2019 and has not worked since.
23Mr Bugeja says his inability to keep working and the persistence of his symptoms heavily impacted his mental health. As a result, he began seeing psychologist, Ms Lisa Costa, on 1 May 2019.
24On 15 May 2019, Mr Bugeja saw neurosurgeon, Mr Yagnesh Vellore. Mr Vellore discussed a CT-guided epidural and the prospect of L4-5 microdiscectomy and rhizolysis surgery or disc replacement.[13]
[13]PCB 88
25On 17 September 2019, Mr Bugeja underwent an L4-5 epidural injection. Mr Bugeja says his condition did not improve. He was prescribed Palexia to help manage his pain.
26Mr Bugeja began attending psychiatrist, Dr Indra Mohan, on 27 November 2019.[14] Dr Mohan prescribed Mr Bugeja antidepressant medication, Duloxetine. On 26 February 2020, Mr Bugeja ceased treatment with Dr Mohan.
[14] PCB 90-91
27On 4 March 2020, Mr Bugeja consulted pain rehabilitation specialist, Dr Clayton Thomas.[15]
[15]PCB 68-69
28Mr Bugeja had a further MRI scan on 11 March 2020, which showed L4-5 disc protrusion, with some involvement of the right L5 nerve root.[16]
[16] PCB 143
29Following the MRI scan, Mr Bugeja was referred back to his neurosurgeon, Mr Vellore on 29 July 2020.[17] Mr Bugeja says that Mr Vellore told him he would likely require surgery and he should try and lose weight. Mr Bugeja has not proceeded to surgery.
[17] PCB 87
30From 31 August 2020 to 1 February 2021, Mr Bugeja completed a pain management program at Dorset Rehabilitation Centre.[18] Mr Bugeja says the program was a combination of Telehealth and in-person appointments and he saw physiotherapists, psychologists and occupational therapists as part of the program. Mr Bugeja reports he did learn some new pain management techniques, but these did not reduce his pain levels.
[18] PCB 72-75
31On 4 September 2020 and 17 November 2020, Mr Bugeja saw Dr Thomas who prescribed topiramate.[19] Dr Thomas referred Mr Bugeja to a pain specialist, Dr Peter Courtney, on 18 January 2021.[20]
[19] PCB 66-67
[20] PCB 64
32On 15 February 2021, Mr Bugeja had a Telehealth appointment with Dr Courtney, who suggested a spinal-cord stimulator insertion.[21]
[21] PCB 70-71
33Mr Bugeja discussed the procedure with Dr Thomas. He says neither Dr Thomas nor Dr Courtney could guarantee the spinal-cord stimulator would provide him with lasting benefit. As a result, Mr Bugeja has not proceeded with this.
34In September 2021, Mr Bugeja says he experienced a significant flare up in back pain and, on 15 September 2021, commenced chiropractic treatment with Mr Benjamin Apap.[22]
[22] PCB 152-153
35Further CT, MRI and bone scans confirmed sacralised L5 vertebra and minor disc protrusion at L4-5, with minor bilateral L4 neural exit foraminal stenosis.[23]
[23] PCB 141-142
36On 30 September 2021, Mr Bugeja was referred back to psychiatrist, Dr Mohan, by his general practitioner, Dr Navani.
37As at 11 July 2022, Mr Bugeja says that he attends Dr Navani about once every three weeks and consults his psychologist, Ms Costa, on a weekly basis. He has physiotherapy once or twice a week. Mr Bugeja continues to see Dr Mohan about every three weeks, and remains under the care of Dr Thomas. Mr Bugeja says that he only sees his chiropractor, Mr Apap, when his pain “gets really bad”, because his WorkCover insurer does not fund physiotherapy and chiropractic treatment concurrently.[24]
[24] PCB 231
Consequences for Mr Bugeja
38Mr Bugeja says the physical pain has taken a psychiatric toll. He has put on weight due to his inability to exercise. He rates his pain as being 7-8/10 most of the time, sometimes at 9/10. Most of the time he has a dull aching pain across his lower back. Physical activity and prolonged sitting aggravates the pain and results in a much sharper and burning-type pain. Coughing and sneezing cause sharp pain. He has frequent episodes of muscle spasm which have increased as time has progressed. The pain radiates into his right leg and causes an “electric” sharp pain.
39He describes the limitations caused by pain as a limited range of movement, particularly in bending forward, twisting or turning his upper body. His sleep is poor and constantly interrupted. He is fatigued during the day. Driving for long periods is difficult. Sitting down for meals with family, or on a couch to watch a movie, is a struggle. He cannot bend and lift. Getting items from bottom shelves is a hard task and triggers pain. He struggles with toileting and showering. He cannot twist around to wipe himself and consequently has to shower after a bowel movement. He struggles to put clothes on, including jumpers, fitted pants, shoes and socks. He socialises less. Playing billiards with friends causes a lot of pain. He has given away camping, hunting, hiking and trailbike riding.
40He used to go open-water fishing in one of his two boats a couple of times most weeks. This has drastically reduced. When he does go out, he can only manage shorter periods on the water. He tends to only go out when it is flat and calm. He rarely goes out by himself, as he needs help launching his boat. If he does go fishing, he takes additional medication to get through the day. Fishing causes his pain to flare up, but he finds getting out on the water is an escape and good for his mental health, so he puts up with the discomfort.
41He cannot help out around the house as he used to. Vacuuming causes pain. Occasionally he washes the one plate his son uses and hangs up washing slowly. Any activity that involves bending or stooping triggers pain.
42He used to be quite a handyman, but rarely undertakes maintenance or home improvement projects now due to pain. He can no longer use any of the tools he has. He cannot carry shopping.
43He cannot interact with his son as he would like. Getting down on the floor and picking him out of a car seat or bath is uncomfortable. He cannot be the active parent he would like.
44His relationship with his wife has also been affected, particularly their intimate relationship. His mood is up and down. He is anxious. His self-esteem has plummeted. He feels hopeless and useless.
45His wife says their relationship has changed and there is now more conflict and less intimacy. Mr Bugeja cannot meet the demands of parenting. He cannot undertake the tasks around the house he used to perform prior to his injury. He is no longer the active person he was before. He still goes fishing, but to a reduced level. His other hobbies have fallen away. His confidence has been “effectively destroyed”.[25]
[25] PCB 31
46Mr Guinane says he has known Mr Bugeja for about ten years and they share a love of fishing. He says, since Mr Bugeja’s injury, “It is almost as though Stephen cannot do anything. He is like a hermit”.[26] He says Mr Bugeja struggles to walk properly and get in and out of cars. When invited out, Mr Bugeja almost always says he cannot go because he has too much pain. Mr Guinane says he is very worried Mr Bugeja will end his life and has had to “frequently talk him out of it”.[27]
[26]PCB 227
[27]PCB 229
47Mr Bugeja takes the following medications:
(a) Palexia;
(b) Cymbalta for depression;
(c) Endep to assist with pain and sleep;
(d) Topamax;
(e) Panadeine Forte, four a day;
(f) Celebrex, 200 milligrams;
(g) Temazepam, 10 milligrams;
(h) Propranolol.
Credit of Mr Bugeja
48The defendant puts Mr Bugeja’s credit squarely in issue.
49The defendant says there is little or no objective evidence of ongoing injury and Mr Bugeja’s medical opinions are infected by the unreliability of his account of his symptoms and pain.
50The defendant says Mr Bugeja overstated his alleged symptoms and disabilities. He presented to doctors as someone with a very stiff and immobile spine, which has caused a very inactive lifestyle. In particular, the defendant points to the following matters as evidence of his unreliability:
(a) In his second affidavit, Mr Bugeja swears to a deterioration of his condition since his first affidavit, even though there is no evidence of any physiological change and no explanation as to why both his physical and psychiatric symptoms have worsened since December 2021. Mr Bugeja attempted to explain his worsening condition by saying his back pain was worse in winter because his house was unheated due to lengthy delays in the delivery of firewood required to heat the house. The defendant submitted his evidence about the firewood was implausible. If it was believed, it suggested Mr Bugeja had not taken reasonable steps to ensure his house was adequately heated so as to avoid a deterioration in his pain levels;
(b) Mr Bugeja’s evidence about the onset of leg symptoms was internally inconsistent. He gave evidence the right leg pain came on when the injury occurred and he had immediate problems.[28] He later said the right leg pain started within a few weeks, when taken to the history recorded by his general practitioner, Mr Navani, and his neurosurgeon, Mr Nair.[29] The defendant says Mr Bugeja’s evidence casts doubt upon the incident itself being the cause of the alleged frank disc injury at L4-5. His evidence suggests radicular symptoms presumably caused by an anomaly at L4-5 which would, in the defendant’s submission, not arise from the incident;
(c) Mr Bugeja says he has toileting issues due to the restricted movements in his spine. The defendant says such restrictions are inconsistent with the video footage shown;
(d) His evidence as to his daily activities is implausible. He said he stays in bed until 9.00am or 10.00am, does next to no household chores, and is the primary carer for his young son. He gave a history to Dr Natalie Krapivensky that his son sits in a corner playing with his toys all day. He did not take the opportunity in Court to elaborate on his evidence as to the extent of his childcare duties. He was not frank and forthright about what was involved in caring for his son. His account that his son plays by himself with minimal input is implausible. The defendant says a man with the level of impairment Mr Bugeja claims would simply not be able to adequately look after a two-or three-year-old child;
(e) His presentation and history to medical experts is significantly at odds with his presentation in video footage when he does not know he is being observed. The video footage does not demonstrate significant restriction and is inconsistent with Mr Bugeja’s reports as to his level of disability. There was no evidence of obvious pain behaviour and no obvious disability shown on the video. His waddling gait is consistent with a man of Mr Bugeja’s body size and weight. The video showed a person of agility and balance.
(f) He admitted he goes to the beach with friends on occasion for drinks to “get out of the house”;[30] helps out a friend with a boat, by going over to the friend’s house and providing advice while the friend works on his boat approximately once a month; meets up with friends on occasions for a bite to eat; and, goes with friends to fix a car on occasion.
[28]Transcript (“T”) 24
[29] T26
[30]T63, Lines (“L”) 29-30
The video footage
51Video footage recorded on 12 April 2021, 29 December 2021 and 23 April 2022 was shown in Court. A report of the Procare Group dated 10 May 2022 was also tendered, which contained still photographs and a description of observations.
52The video from 23 April 2022 showed Mr Bugeja at a service station, getting some food and doing some type of maintenance on his car. While waiting for his food, he can be seen shifting his weight from one leg to the other. He rarely stands with his weight equally distributed. He otherwise walks with a gait which appears appropriate for a man of his size. It is not obvious that this gait results from stiffness in the spine. There is no apparent limp.
53The videos from 12 April 2021 and 29 December 2021 both show Mr Bugeja launching his boat at Avalon and spending a day on the water fishing.
54On 12 April 2021, Mr Bugeja could identify he was fishing for calamari. He explained he would be casting a rod into the water every few minutes and reeling it slowly in and then recasting it. On that occasion, he was out on the water for about six hours.
55On 29 December 2021, Mr Bugeja can be seen in the company of a friend. He could recall, he was fishing for snapper on that day. He departed mid-morning and returned to the pier at around 7.45pm.
56On both occasions he manoeuvres the boat in and out of the water via the boat ramp using his car. He gets on and off the boat from the pier, which requires him to lower himself onto his knees to climb onto the boat, climb off the boat via a short ladder attached to the pier, swing his leg over onto the pier and lift himself up onto the ground.
57He can be seen bending, leaning forward and to the side, getting up and down from all fours, moving around the boat, and attaching the boat to the trailer. He can be seen getting in and out of his car without any apparent difficulty.
58The defendant submits all this casts a significant doubt that Mr Bugeja’s evidence in his affidavits and at Court is a true depiction of the consequences of his injury.
59Mr Bugeja says these activities cause him pain, but because of his great love of fishing and the positive benefits it provides for his mental health, he puts up with the pain. He says, although the video shows him undertaking the activities described above, his mobility and agility have significantly decreased since his injury. Before the injury, he would get on and off the boat with greater ease, and without the need to rely on his upper body strength.
Instructions given to doctors
60In August 2020, he described his limitations to Dr Edmond Van Ammers as:
“… can only walk leaning on a pram, some 100 metres. He has not tried stairs. He can drive 30 minutes. He said he cannot do housework and cannot even use toilet paper. … .”[31]
[31]Amended Court Book of the Defendant(“ACBOD”) 26
61Dr Van Ammers noted Mr Bugeja’s instructions that he “tries to get down to the local boat ramp if it is a good day”.[32]
[32]ACBOD 26
62In August 2020 he described his limitations to Dr Michael Baynes as:
“… He has difficulty coping with personal grooming, particularly putting pants and socks on and his wife will help. He does no housework. He advises that his wife will mow the lawns. He advises that his general health is otherwise good, denying any diabetes or thyroid disease. He advises suffering depression. He denies any other relevant previous injuries, fractures or car accidents. In the past he enjoyed camping and trial-bike and dirt-bike riding but has sold his bike. He also enjoys fishing and has several boats. He advises that he has attempted to go out in the boat but this made his back pain worse. He advises that his (sic) spends his days watching TV and occasionally will drive to the beach. He is a non-smoker and an occasional drinker.”[33]
[33]ACBOD 33
63On 22 June 2021, about two months after the first video was taken, he described his condition to Dr Tim Hwang:
“I asked about exercises but he indicated that he does not do a lot. He feels that he has too much pain. He does walk around the backyard somewhat when he can. On occasions he may take a stroll with his son on a stroller. He finds that leaning on the stroller provides some degree of relief.
…
With regards to day to day activities, he indicated that he has a hot shower five to six times a day. He may lie down intermittently throughout the day. When he is in the living room he may sit on the recliner with his legs raised. Despite questioning I was unable to get an idea of any activities that he undertakes in the household. He indicated that he may rarely help with food preparation but was unable to provide examples of this.
…
He does drive to the local beach which is a seven-minute drive away. He described that he meditates there. He may take his son to his parents’ house nearby. He described that he does load his son into the backseat and assist with fastening the seatbelt. However he indicated that he drives an SUV and therefore does not need to lean downwards to do this. He described being able to pick up his son by pulling him up by his hands in a standing position therefore he is able to keep himself upright. He is able to carry his son with his left arm as the weight is then applied on the left side. In the younger days he described that he was able to change his son’s nappies using a change table.
With regards to self-care he indicated that he has not been able to wipe his bottom after bowel actions, since the injury. He indicated that he could not turn around to reach behind with his arm (he is right handed), therefore he tends to have a shower after defecation to wash himself. He is able to pat himself dry but sometimes uses a hairdryer to dry the areas he cannot reach. He described using a pick-up stick to pick up loose items of clothing to put them on. He tends to wear shorts. On occasions when he needs to wear socks or shoes his wife helps him with that.”[34]
[34]ACBOD 42
64Mr Bugeja told Dr Hwang that his presentation at the time of assessment was his usual state, not a particularly bad day as compared to before his injury. Dr Hwang considered Mr Bugeja’s presentation and self-reported levels of symptoms, disability and activities were clearly inconsistent with those seen on surveillance and could not be relied on to form an assessment of his true status and capacity.
65In February 2021, he gave a history to Dr Courtney that his pain fluctuates in intensity, he has great difficulty with twisting movements and lower-limb dressing, and cannot clean himself after toileting.[35]
[35]PCB 70-71
66He gave a history to Associate Professor Saji Damadaran in December 2021 that his pain and limitations impacted most of his hobbies and he had significant limitations in relation to home duties and care for his son. Associate Professor Damadaran reports Mr Bugeja is unable to lift his son. Associate Professor Damadaran reports:
“According to him the only hobby that he was able to do was going to the Altona boat ramp. He used to go there and he was able to talk to some other people that he knew there and according to him it was his meditation. … .”[36]
[36]PCB 101
67Mr Apap, chiropractor, notes in his report dated 7 December 2021, Mr Bugeja reported being able to undertake some activities on occasion “but slowly and with pain, such as lifting/bending/twisting with restrictions”.[37] He reported, on a good day, he would have pain if sitting longer than thirty to sixty minutes, and constantly needed to reposition himself, and had a limited walking capacity of thirty to sixty minutes.[38]
[37]PCB 152
[38] PCB 152
68On 18 August 2022, Mr Bugeja reported to Dr Robyn Horsley, occupational physician, that his pain was usually 5-6/10, worse in winter. He said he had little movement in his back and had difficulty opening his bowels. He had to have a shower after bowel movement due to restrictions wiping himself. He had five to six hot showers a day to alleviate pain. He reported his static standing without support is limited to five to ten minutes. He said his walking tolerance using a shopping trolley is forty minutes but without assistance, is limited to about 300 to 450 metres. He strongly favours his right leg. His dynamic standing tolerance is about fifteen minutes and driving tolerance is thirty to forty minutes. On examination, he was noted to have a strong antalgic gait favouring the right leg, and was unable to walk on toes or heels, unable to squat and unable to undertake a straight leg raise. He was very restricted in lumbar movement with negligible extension, demonstrated reluctance to rotate truncally, and had very limited forward and lateral flexion.[39]
[39]PCB 167-179
69Dr Ales Aliashkevich notes the following instructions in his report of 21 February 2022:
“As a result of chronic pain, Stephen is limited in domestic, social and recreational activities. His wife helps with household duties. His family or friends help as needed. Stephen tries to help with cooking. He avoids cleaning or taking care of the laundry. He doesn’t wipe himself after toileting and has a shower. Stephen uses a pick-up stick to help with his shorts and pants. He avoids putting on socks and shoes. He uses the trolley to lean on when shopping with his wife. He can go on his own occasional (sic) for a few items. Stephen was unsure of his lifting limit as it depended on the item's height. He still has strength in his arms. He can lift his about 13 kg son by his arms, but not from the ground level. Stephen is right-handed. The insurer previously provided tree cutting and firewood.
“Stephen can walk when shopping with his wife, using a trolley to lean on and stop for 20-30 minutes. He walks unaided. He finds warmer weather helps with walking. He can sit in the higher chair for 30-60 minutes. He can stand for possibly about 1 hour; however, this varies. He changes positions and leans on things as needed. He can drive for 30 minutes.
Before the accident, Stephen enjoyed boating, camping, hunting, fishing and riding a motorbike. He used to go fishing 4 times a week. Now he cannot participate in motorbike riding (he sold it) or camping. He has been out in 1 of his 2 boats. It was very limited, and he suffered physically. His psychologist had recommended trying it. His ability to go fishing is limited; he last was fishing about 4 months ago.”[40]
[40]PCB 215
Findings
70The video footage is inconsistent with Mr Bugeja’s evidence and the instructions he has given to doctors. I accept a person may endure pain in order to maintain a much-loved activity, however his mobility and agility shown in the video is entirely inconsistent with his evidence, his presentation to doctors and the history he has reported. Even if his mobility and agility is reduced from his pre-injury levels, it far exceeds the description he has provided to doctors and in his evidence.
71In the video, he can be seen bending, twisting, getting down on all fours and then up to standing position quickly, getting up and down from one knee quickly, walking freely with no visible limp, and going up and down a short ladder ꟷ albeit using his upper-body strength to assist. On the two occasions recorded, he was fishing for six or more hours, continually casting rods (and presumably catching fish), and maintaining his balance on the water. He was able to launch the boat and then load the boat onto the trailer without any apparent difficulty, even after a long day out on the water. Obviously, the video does not show the pain he might be feeling, but there were no external or obvious signs he was in significant pain or had significant restrictions in his movement.
72Before his injury, he may have been more agile and jumped onto the boat with greater elegance and alacrity than shown in the video. I accept this is likely so. However, this does not remedy the primary difficulty created by the video footage, which is that I am unable to reconcile his evidence and the history given to doctors with what was captured on surveillance.
73This means I cannot accept Mr Bugeja’s evidence as a reliable account of the consequences of his injury.
74The credibility of a plaintiff is often crucial in a serious injury application, particularly one which depends on the plaintiff’s subjective reports of pain. Medical witnesses typically depend on what they have been told by a plaintiff, and this means any unreliability in the evidence of the plaintiff may infect the medical opinion provided.[41]
[41]Nikolic v Transport Accident Commission [2020] VSCA 148 [64]; Dordev v Cowan [2006] VSCA 254 [14]
75This does not mean Mr Bugeja was lying to the Court, fabricating his symptoms or intentionally exaggerating his pain.
76However, because of my findings about Mr Bugeja’s reliability, much of the medical material is compromised.
77The fact that I cannot rely on his evidence as an accurate reflection of his consequences, leaves me in a difficult position. I have no difficulty believing his injury causes him pain, limitations on movement and restriction in his activities. I have no difficulty accepting he can no longer do all the things he would like to do, or as frequently as he would like. The problem is, because I cannot accept his evidence about what he can and cannot do, I do not know what the true situation is.
78Mr Bugeja bears the onus of establishing that the consequences of his injury meet the test of “at least very considerable” for a physical injury, and “more than serious to the extent of being severe” for a psychiatric injury. I cannot substitute my own assessment of his likely pain, limitation and restrictions for his evidence about those things. As his evidence is unreliable I have no evidence about the actual consequences of his injury.
79I am required to consider the whole of the evidence. This means I must also look at the medical evidence, taking into account that it might be compromised by his instructions, and assess whether there is any other evidence I can rely on that would enable Mr Bugeja to meet the test.
Medical Evidence
Mr Girish Nair
80Neurosurgeon, Mr Nair, reported on 7 February 2019 that Mr Bugeja had severe back pain and back spasms following an incident at work in October 2018.[42] He noted MRI scan shows “a disc desiccation at the L5-S1 level with minimal lateral narrowing”.[43] He noted he had nearly completely recovered from his pain, and recommended he lose weight and persist with core and back strengthening. He did not consider Mr Bugeja required any neurosurgical follow up.
[42] PCB 92-93
[43]PCB 92
Mr Yagnesh Vellore
81On 15 May 2019, neurosurgeon, Mr Vellore, noted ongoing and unremitting pain since his back injury in October 2018, which was not assisted by Celebrex, tramadol, Panadeine Forte or Endep.[44] Review of MRI scans showed a right-sided L4-5 prolapse with L5 nerve root impingement. On examination, he had a decreased straight leg raise on the right and altered sensation in the right leg. Options including epidural injection or surgical microdiscectomy were discussed. In his report dated 29 July 2020,[45] Mr Vellore noted he recommended pain management over surgical intervention. He recommended weight loss before any spinal surgery.
[44] PCB 88
[45] PCB 87
Dr Clayton Thomas
82Dr Thomas, rehabilitation consultant, prepared a number of reports. In his reported of 5 March 2020, [46] he noted Mr Bugeja seemed to be severely disabled by his back condition and had a poor emotional state. He noted no hard evidence of radiculopathy. In his report of 17 November 2020,[47] he reviewed the MRI scan and noted lumbosacral right-sided disc bulge, but no overt neurological compromise. He noted an irritable spot on the right, with referred pain to the right leg. He reported that Mr Bugeja had brisk symmetrical reflexes and good power, but straight leg raising produced significant right-sided lower back pain. Left straight leg raising produced some tightness, but no pain. On 19 January 2021,[48] Dr Thomas reported Mr Bugeja had some benefit from topiramate, in particular he no longer had a right-sided trigger point referring pain down the right leg, and his right leg had not given way. He felt the prognosis was poor, with no prospect for significant improvement. By report dated 3 March 2021,[49] Dr Thomas noted Mr Bugeja was highly anxious and had not had further falls, but had ongoing back and right leg pain.
[46]PCB 68-69
[47]PCB 66
[48]PCB 64
[49]PCB 63
83Dr Thomas saw Mr Bugeja again on 9 May 2022.[50] His presentation was ostensibly the same as on other occasions. Dr Thomas noted “[h]is condition is an organic one. He has secondary psychological problems”.[51] He considered treatment had been full and appropriate, his condition was stabilised, and ongoing problems were likely to persist into the future. He did not consider he had a work capacity.
[50]PCB 184-185
[51]PCB 185
84In his report of 3 August 2022,[52] Dr Thomas confirmed his opinion that Mr Bugeja’s injury was organic, with a non-organic component which is secondary to the underlying physical injury.
[52]PCB 179
Dr Robyn Horsley
85Dr Horsley notes Mr Bugeja presents with ongoing mechanical back pain and significant diminution in functional ability.[53] She notes sacralisation at L5 and a “very minor” L4-5 disc prolapse with minor foraminal stenosis.[54] She notes “[h]e presents with clinical signs highly suggestive of significant mental health issues”,[55] though this is outside her area of expertise. She considers his symptoms will persist and he has no current capacity for work. She considers he has organic pathology at L4-5, but has gone on to develop a chronic pain syndrome with mental health issues.
[53] PCB 167-178
[54] PCB 174
[55]PCB 174
David Grubesic
86Mr Bugeja’s treating physiotherapist says, in his report of 15 November 2021,[56] there is “undeniable pathology present on imaging” being an L4-5 disc bulge with lumbar radiculopathy.[57] He says Mr Bugeja’s back pathology will continue for the remainder of his life, as it is medically impossible to restore his lumbar spine to pre-injury condition. He opines that, even with successful surgical management, he will likely have persistent lower back pain and lower limb radiculopathy for the foreseeable future. He also says:
“[i]n no way to the best of my knowledge is the surveillance footage at odds or contradictory to Mr Bugeja’s symptoms of back pain”.[58]
[56] PCB 59-62
[57] PCB 60
[58]PCB 62
87He says there is clear evidence “in the way he walks, bends, sits etc that Mr Bugeja is having some difficulty with his lower back pathology.”[59]
[59] PCB 62
Dr Vijay Navani
88Mr Bugeja’s general practitioner has prepared numerous reports. He notes from 6 May 2019,[60] that Mr Bugeja is finding it difficult to cope with his ongoing pain and spinal restrictions and has mental distress, anxiety and emotional symptoms. Dr Navani says the history provided by Mr Bugeja is consistent with acute disc injury. In his report of 22 November 2021,[61] he says, since the incident, Mr Bugeja has had persistent symptoms of severe lower back pain and right leg radiculopathy, and has undergone medical intervention without relief. His symptoms and limitations have persisted since the injury with no clinical improvement, and no improvement is likely. He has a fragile mental state, with poor concentration, poor sleep, anxiety, irritability and social withdrawal. He reviewed the video surveillance footage and says:
“The opinion I have formed by examining him and coordinating his care over the past three years is that he struggles to manage any activities in a habitual sustained manner as would be required to sustain any work duties in a long term manner.”[62]
[60]PCB 56-7
[61]PCB 47-52
[62]PCB 45
89In his report of 28 January 2022,[63] he notes Mr Bugeja:
“… remains in chronic back and leg pain with significant functional limitations and his mental state continues to be impacted significantly with psychological distress, with low moods, poor sleep, apathy, poor self-worth and anxiety. … .”[64]
[63]PCB 35-46
[64]PCB 36
Dr Ales Aliashkevich
90Dr Aliashkevich, orthopaedic surgeon, notes Mr Bugeja had a slow and antalgic limping gait favouring his right leg in a report dated 21 February 2022.[65] He was standing throughout the interview. He had a diminished pinprick sensation in the right leg without clear dermatomal distribution. The range of lumbar movements was uniformly restricted with flexion of 30 degrees, extension of 5 degrees and lateral tilting restricted on both sides to 10 degrees.
[65]PCB 194-225
91The CT scan of 11 October 2018 shows L4-L5 disc protrusion without overt compression of the existing L4 nerve.[66] Appearances are consistent with mild to moderate foraminal compromise. The MRI scan of 14 November 2018 notes broad posterior disc prolapse at L4-5, mild central canal stenosis, mild impingement of traversing L5 nerve roots and mild to moderate impingement of existing right L4 nerve root. [67] A lumbar CT/MRI scan, with whole body bone scan, on 23 September 2021, was reported as showing a sacralised L5, very minor posterior broad-based central disc protrusion at L4-5, with minor bilateral L4 neural exit foraminal stenosis, slightly worse on the left.[68] Dr Aliashkevich considers Mr Bugeja’s pain has an organic basis, but there might be chronic pain syndrome, which is outside his area of expertise. He considers his prognosis is very guarded and his incapacity is likely to continue into the foreseeable future.
[66]PCB 146
[67]PCB 144
[68]PCB 141-42
Dr Terence Saxby
92In his report dated 18 February 2022,[69] Dr Saxby notes the findings on CT, MRI and nuclear whole body scans. He say they “really demonstrate unremarkable findings” and notes the MRI scan shows only a very minor posterior broad-based disc protrusion.[70] He says this would be consistent with age-related changes in someone of Mr Bugeja’s age and work background. He does not consider Mr Bugeja a candidate for surgery as there is doubt about the L4-5 disc being the cause of the pain reported by Mr Bugeja. He says there is no evidence of significant nerve root compression and, therefore, he would not expect any significant radiculopathy. He diagnoses a mild lumbar spondylosis and would not expect it to cause any significant restrictions on activities. He opines the work incident likely caused an aggravation of an underlying problem but, as there has been no response to treatment, and the passage of time and absence of work has not altered the reported symptoms, it is unlikely that the work injury is significantly contributing to Mr Bugeja’s current condition. He reviewed the surveillance reports and images and opined:
“… Certainly this did not demonstrate significant restrictions of activities and therefore I do not believe this is consistent with the reported levels of disability that this gentleman continues to be complain (sic) of, but in my opinion is consistent with the radiological findings which really demonstrate very minor changes and therefore I would expect that Mr Bugeja would be able to carry out the activities as demonstrated in the surveillance video.”[71]
[69]ACBOD 257-262
[70]ACBOD 259
[71]ACBOD 261
93I note here Mr Bugeja’s criticism that Mr Saxby had only read the report and seen the still images, but not the video, itself.
Psychiatric injury
Dr Indra Mohan
94Dr Mohan prepared three reports dated 27 November 2019,[72] 26 February 2020,[73] and 1 March 2022.[74] Dr Mohan notes Mr Bugeja had no pre-existing psychiatric conditions. He presented with depressive symptoms and anxiety, low self-esteem, anhedonia and poor motivation. Dr Mohan diagnosed an adjustment disorder with depressive symptoms and anxiety in relation to a work-related injury with ongoing pain and inability to do things. She prescribed Cymbalta.
[72]PCB 90-1
[73]PCB 89
[74]PCB 187-191
95Mr Bugeja continued to see Dr Mohan approximately monthly until February 2020, when Dr Mohan changed her days of work and referred Mr Bugeja back to Dr Navani. Dr Mohan noted Mr Bugeja continued to struggle with low mood, reduced motivation and little improvement on Cymbalta. She saw him again on 22 February 2022.[75] Her diagnosis, at that time, was a combination of depressive symptoms, anxiety and panic attacks. She considered he had no work capacity and his condition was likely to persist.
[75]PCB 192-193
Lisa Costa
96Ms Costa, psychologist, diagnoses a somatic symptom disorder with comorbidity and major depressive disorder with anxious distress. She says his diagnosis is caused by the severity of his pain and the persistence of his symptoms which causes excessive psychological distress. His depressive disorder is “somewhat” attributed to this, as well as his reduced capacity to perform daily tasks, which cause low self-esteem and a lack of self-worth.[76]
[76] PCB 160
97His pain is the “predominant focus of his clinical presentation”.[77] His prognosis is poor and he is likely to have an ongoing incapacity for work, which may contribute to a deterioration in his condition as a result. From a psychiatric perspective, he is unfit for any work.
[77] PCB 160
Associate Professor Saji Damodaran
98Associate Professor Damodaran assessed Mr Bugeja on 30 December 2021.[78] He diagnosed a chronic adjustment disorder with mixed anxiety and depressed mood of moderate severity, along with a chronic pain disorder of moderate severity. He notes Mr Bugeja was quite emotionally affected by persistent pain and limitation. He notes Mr Bugeja’s ongoing depression, anxiety and negative self-image was significantly inhibiting Mr Bugeja’s ability to work on a consistent and reliable basis. He opines Mr Bugeja’s psychiatric state was likely to persist for the foreseeable future as it had not improved in three years.
[78]PCB 97-113
Dr Natalie Krapivensky
99Dr Krapivensky assessed the plaintiff for the defendant on 21 March 2022,[79] and notes his self-reported symptoms are clearly inconsistent with the level of activity observed during surveillance. She says she is not sure whether he has a psychiatric injury but, if he does, it is of a severity that is unable to be determined.
[79]ACBOD 246-256
Analysis
100Mr Bugeja sustained an injury at work when he jolted his back and experienced immediate pain. Radiological investigation demonstrated some pathology at L4-5 and some suggestions of radiculopathy, though the experts are not in agreement about this.
101According to his treating neurosurgeon, Mr Nair, his pain nearly completely resolved by February 2019. However, by May 2019, his pain is described as ongoing and unremitting. Since that time, epidural injection, medication and pain management have been ineffective.
102By 2021, the radiology showed a sacralised L5 disc, very minor posterior broad-based central disc protrusion at L4-5, with minor bilateral L4 neural exit foraminal stenosis. The 2021 radiology shows an improvement in the disc protrusion from 2018, yet Mr Bugeja describes worsening pain and symptoms.
103There is no objective evidence of an injury which would clearly meet the test of serious injury. There is no significant prolapse, no clear nerve involvement and no surgical intervention. The assessments by the medical practitioners have largely turned on Mr Bugeja’s reported consequences of his injury.
104His treating psychologist diagnoses a somatic symptom disorder, among other things. Dr Saxby considered the subjective symptoms are much greater than radiological findings. Dr Thomas notes there are secondary psychological problems, but an organic basis for the injury. Dr Aliashkevich notes there may be a pain syndrome.
Does Mr Bugeja have a serious physical injury?
105I am unable to consider any of the psychiatric consequences of Mr Bugeja’s injury for the purpose of assessing his claim under ss(a). Given my findings in relation to the reliability of Mr Bugeja’s evidence, I am simply unable to be satisfied as to the actual, current consequences of his injury. There is nothing in the medical material that enables me to make a determination of serious injury based on objective findings. He has a very minor L4-5 prolapse and a minor foraminal stenosis. The general consensus of the expert opinion is that the relatively modest pathology does not account for the extent of the claimed symptoms.
106The video footage was inconsistent with Mr Bugeja’s evidence and presentation to doctors – there was no observable limp; he was agile, able to bend forward, back and to either side, get on and off his boat without any obvious difficulty, get in and out of his car without any obvious difficulty, climb a ladder, get down on all fours quickly, lean over, get up and down from one knee quickly and fish from a boat on water for six hours. I am left in the position of not knowing what the true consequences of his injury are.
107The unchallenged evidence of his wife and Mr Guinane does not provide the objective evidence I would require to satisfy myself that Mr Bugeja has discharged his onus. It largely relies on Mr Bugeja’s own reports of pain. Neither affidavit touches on Mr Bugeja’s presentation in the surveillance footage. I disagree with the assessment of Mr Grubesic that the surveillance footage is in no way at odds with Mr Bugeja’s reports of pain.
108Accordingly, I am unable to undertake an assessment of whether, when judged by comparison with other cases in the range of possible impairments or losses of a body function, the consequences for Mr Bugeja can fairly be described as “more than significant or marked”.
109I therefore cannot make an assessment that they meet the test of being “at least very considerable”.
Does Mr Bugeja have a serious psychiatric injury?
110Mr Bugeja’s psychiatric injury arises as a consequence of his physical injury. He is depressed as a result of his pain, and his inability to work and undertake his usual activities. I cannot consider the impact and consequences of his physical injuries in assessing the consequences of his psychiatric injury.
111There is a clear organic basis for his injury according to Dr Thomas. It is likely there is also a somatic disorder as well.
112However, because of my findings about the reliability of Mr Bugeja, the consequences of his psychiatric injury are also unknown, and unknowable, on the basis of the evidence before me.
113Accordingly, Mr Bugeja has not discharged his burden of establishing that he has a permanent severe mental or permanent severe behavioural disturbance or disorder which, when compared with other cases, can fairly be described as being more than serious to the extent of being severe.
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