Cables v Keppel Prince Engineering Pty Ltd
[2016] VCC 491
•28 April 2016
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-01313
| PETER JOSEPH CABLES | Plaintiff |
| v | |
| KEPPEL PRINCE ENGINEERING PTY LTD | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 30, 31 March and 1 April 2016 | |
DATE OF JUDGMENT: | 28 April 2016 | |
CASE MAY BE CITED AS: | Cables v Keppel Prince Engineering Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 491 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – impairment to the left knee – psychiatric impairment – pain and suffering – loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), (37) and (38)
Cases Cited: Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Petkovski v Galletti [1994] 1 VR 436; Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602; Ansett Australia Ltd v Taylor [2006] VSCA 171; Dordev v Cowan & Ors. [2006] VSCA 254; Richards v Wylie (2000) 1 VR 79; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8; Philippiadis v Transport Accident Commission [2016] VSCA 1; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Shock Records Pty Ltd v Jones [2006] VSCA 180
Judgment: Applications dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I Fehring with Mr G Pierorazio | Stringer Clark |
| For the Defendant | Mr W R Middleton QC with Ms D Manova | Thomson Geer |
HER 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 30 November 2010 (“the said date”).
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 injury” 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 left lower limb.
5 The plaintiff also brought an application pursuant to clause (c) for a severe psychiatric impairment.
6 Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
7 The impairment of the body function must be permanent, in the sense that it is likely to continue into the foreseeable future.
8 The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) of s134AB of the Act impose specific burdens in relation to a claim for loss of earning capacity.
9 By s134AB(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, fairly described, at the date of the hearing, as being more than significant or marked, and as being at least very considerable.
10 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.
11 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
12 Winneke P, in Mobilio,[3] agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of ss(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).
[3]Mobilio v Balliotis (supra)
13 A Chronic Pain Syndrome can result in an impairment under ss(c) if a plaintiff can establish a sufficient causal link between an initial compensable physical injury and a Chronic Pain Disorder which meets the severe criteria of a claim under definition (c) – per Ashley JA in Veljanovska v Socobell OEM Pty Ltd.[4]
[4][2005] VSCA 227
14 Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
15 Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.
16 Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
17 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
18 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[5] Petkovski v Galletti[6] and Grech v Orica Australia Pty Ltd & Anor[7] in reaching my conclusions.
[5](2005) 14 VR 622
[6][1994] 1 VR 436
[7](2006) 14 VR 602
19 The plaintiff relied upon three affidavits and was cross-examined. His partner, Andrea Lowe, also swore an affidavit on 24 February 2016. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
20 The plaintiff is presently aged forty-nine. Having completed Year 11, he did some labouring work and two years of an apprenticeship as a fitter and turner.
21 The plaintiff deposed that in 1989, he suffered a back injury and had to undergo surgery and was off work for a considerable time.
22 The plaintiff was cross-examined extensively in relation to his back condition. He agreed that this was the only mention thereof in his affidavits.[8]
[8]Transcript (“T”) 13
23 The plaintiff underwent three surgical procedures. In 1990, he had a lumbar discectomy at L4-5 performed by Mr Wallace; in January 1991, he had a fusion carried out by Mr Schofield and in October 1991, a third procedure was carried out to remove screws and plates.[9]
[9]T43
24 The plaintiff received weekly payments for in excess of ten years in relation to his back condition. In 2003, his weekly payments were redeemed for $100,000.[10]
[10]T49
25 The plaintiff agreed he had some emotional issues relating to his back condition but he had got himself back to work and going again. He described a seven-week inpatient stay at the Albert Road Clinic in 1996 as “rehab”. He then agreed he was probably admitted because he was then suicidal. He probably he could not deal with the pain and the way he was being treated by the insurer. It was more than likely that he then had a strong belief of persecution by the insurer but he is no longer angry about that issue.[11]
[11]T52
26 The plaintiff agreed that he told Dr Senadipathy on examination in 2000 of attempts by the workers’ compensation insurer to terminate his payments and hold off payments on occasions.[12]
[12]T46
27 The plaintiff agreed he felt very stressed about his court case in 1992 in which he gave evidence for two days and during which he and his mother were accused of being a fraud.[13]
[13]T45
28 As of 2000, the plaintiff had been seeing a psychologist, Mr Cummins, for three years. He had also had seen a psychiatrist, Dr Grainger Smith, before the Albert Road admission and the plaintiff had taken antidepressants until 1997.
29 When he saw Dr Senadipathy in 2000, the plaintiff was in receipt of weekly payments. The plaintiff then had problems with sleep, travel, walking, gardening, housework and prolonged sitting. He started improving from the start of the 2000s.[14] His problems did not suddenly stop. He was getting fitter and stronger.[15]
[14]T48
[15]T49
30 The plaintiff did not have a great memory or stomach and had bowel problems in 2000. He could not recall not having a social life at that time but did not deny that was the case.[16] It was possible he told Dr Senadipathy that he had so much pain during sex he avoided relationships.[17]
[16]T50
[17]T51
31 The plaintiff supposed that these various these factors in his life in 2000 indicated a substantial history of emotional and psychological problems relating to his back condition. He did not mention them in his affidavit as he had just moved on and put all this behind him. He denied he hid these issues from medical examiners. He just answered their questions.[18]
[18]T52
32 The plaintiff could not recall telling Professor Hart that he did not have any problems with his back before the said date.[19]
[19]T35
33 The plaintiff did not believe he was still taking painkillers for his back as at the said date.[20] When shown his general practitioner’s notes, the plaintiff agreed he had been prescribed Tramadol consistently since 2004. He thought the notes indicated a reduction in this medication in 2005 and later in 2009. The plaintiff found that medication was addictive.[21]
[20]T15; T85
[21]T84
34 The plaintiff agreed that he made no mention in his affidavits of any injury to his knee prior to the said date.
35 In cross-examination, the plaintiff admitted he had injured his knee when aged seventeen when he came off a motorbike. That accident occurred after he was accepted into the Army but before he actually went away to train.[22]
[22]T42
36 The plaintiff did not mention this injury in his affidavits as it happened a long time ago and he felt he had fully recovered, having been able to play football thereafter. He was not aware he had injured his left knee.[23]
[23]T40
37 The plaintiff was not sure whether he had undergone knee surgery. He could not even say which leg was injured.[24] If his treating surgeon, Mr Lind, noted that the plaintiff had had problems with his knee for two years prior to the surgery with it clicking and giving way, the plaintiff supposed that was right, but he could not really remember.[25] The plaintiff then said he did not really agree this history was correct.[26]
[24]T33
[25]T37
[26]T38
38 The plaintiff could not recall Mr Lind, telling him that he would be exposed to osteoarthritis in his knee in the future.[27]
[27]T39
39 It was possible when the plaintiff saw Professor Hart in September 2013 that he told him he had never had a previous problem with his left knee. [28]
[28]T35
40 The plaintiff purchased a milk bar after his weekly payments were redeemed in 2003. He ran the business for about three years.[29] The plaintiff then worked as a casual wharf labourer for about two years.
[29]T49
41 In September 2006, the plaintiff started work with the defendant as a labourer at its Portland premises, working particularly in the wind tower section.
42 On the said date, whilst working in that section using a heavy grinder, the grinder suddenly caught, then kicked back, and struck the plaintiff on the left knee (“the incident”).
43 Following the incident, the plaintiff was taken to Mr Das’ surgery, where the knee wound was sutured.
44 The plaintiff was off work for about a fortnight, and then had a few weeks on office duties.
45 On 22 December 2010, Dr Stephanson certified the plaintiff fit to return to work with no restrictions but the OHS representative would not let him do any work involving kneeling.[30]
[30]T23
46 The plaintiff was then given a 4-inch grinder to do small jobs. However, using it made him very nervous, and he developed stomach and bowel problems. He had a colonoscopy in April 2011, following which he was off work for about a month.
47 The plaintiff agreed whilst working on the smaller grinder, he was doing basically physical work, earning at his pre-injury rate, working 9 hours a day. He spent most of the day standing.[31]
[31]T15
48 The plaintiff also had time off work in May 2011 because of a right-hand condition for which he had surgery (“the hand surgery’).
49 On his return to work after the hand surgery, the plaintiff had a different job operating the jacks in the wind tower. He was required to sit and push a lever to bring the jack up or down under the two sections of the tower. He was given this job as he could not do the kneeling and squatting required to join the cans together as his knee was painful and would lock and click.[32]
[32]T18
50 Because of his difficulties at work, particularly doing grinding, the plaintiff was sent to the Portland smelter. For about six months, he worked as a pot room operator doing three 12-hour shifts. The job involved walking around the floor looking after machinery. He did two pots which took 20 minutes and he then had a 20-minute break.[33] The plaintiff worked in this role until New Year’s Eve 2011 and then returned to the wind towers workshop, operating jacks until April 2012.
[33]T21
51 However, because of ongoing difficulties, the plaintiff did no kneeling or squatting, and other jobs were found for him. He had a terrible year at work, as he was not coping and could not do all that was required, as work often required kneeling and squatting.
52 The plaintiff agreed that operating jacks and pot room work involved very little or no kneeling or squatting.[34]
[34]T23
53 In re-examination, the plaintiff described his work on the jacks in detail. He was working only a metre away from grinding, welding and the rolling of heavy steel. This work area was very congested and workers were using grinders constantly.[35]
[35]T93
54 The plaintiff was concerned at the level of noise from that area. It made him very nervous and he had to go outside or go to the toilet quite often to get away from it. He was getting more and more freaked out by the noise and felt he could not cope with it.[36] He therefore took a redundancy package in April 2012.
[36]T93
55 Because of his knee, the plaintiff found he could not do the tasks required of him. He had done most of the jobs and they all involved kneeling and squatting. When working on the jacks, his knee used to ache most of the time, but he would try to “tough it out.”[37]
[37]T96
56 The plaintiff denied his knee had nothing to do with him taking a redundancy. He could not keep doing restricted duties because people were getting annoyed he was not doing his normal work. However, he agreed he was coping with this work in what were real jobs.[38]
[38]T23
57 The plaintiff took a redundancy because he could not handle the stress and noise in the workshop, the pain in his leg and the constant trips to the toilet.[39]
[39]T57
58 The plaintiff agreed there were some conflicts with the manager whilst he held the role of OH&S officer from 2007 until he ceased work with the defendant. The plaintiff was given a hard time when he complained about carcinogenics that were being used. He did not complain about the manager.[40]
[40]T58
59 Conflicts with management were probably because the plaintiff did not tick all the boxes in the safety audits. He never had an argument with the manager. Management “sort of ignored” him a bit when he returned from the smelter.[41] The plaintiff was able to deal with the tasks involved in his OH&S role.[42]
[41]T94
[42]T95
60 The plaintiff denied there was an issue with a female employee being asked to work after hours, as Dr Senadipathy recorded on examination in 2015.[43]
[43]T66
61 From about June to October 2012, the plaintiff did some casual work at Portland Base School and Kyeema Special School as a teacher’s aide, but found that work too physically demanding, as there was a lot of kneeling and squatting required. He also found the work emotionally draining. He has not worked since.
62 The plaintiff denied there were a number of issues with his autistic son during 2012. His son had some social problems which caused the plaintiff stress “as it would any parent.”[44] It caused him minor stress that his son did not want to go to kindergarten.[45]
[44]T25
[45]T67
Treatment
63 Initially, the plaintiff was seen by Mr Das, and then Dr Stephanson took over his treatment. Various investigations were then undertaken.
64 The plaintiff was also referred to a psychologist, Dr Oberholzer, whom he attended probably about ten times. It was possible the plaintiff’s complaints to him in October 2013 of not sleeping, anxious, stress symptoms, poor concentration and short-term memory were problems the plaintiff had experienced prior to the incident.[46]
[46]T26
65 The plaintiff could not recall how many times he saw his general practitioner in the year after the incident. It was probably a couple of times.[47] After 4 December 2010, he agreed he next saw his doctor in February 2012 regarding his knee.[48]
[47]T18
[48]T86
66 Whilst there was no mention in the general practitioner’s notes of any Post-Traumatic Stress Disorder (“PTSD”) symptoms or issues with his mental state until April 2011, the plaintiff would have mentioned these issues to him.[49]
[49]T87-8. In April 2011, Dr Stephanson noted “moderate current anxiety levels”
67 As at the end of 2014, the plaintiff was seeing Dr Stephanson monthly, and seeing Dr Oberholzer every fortnight. The plaintiff was taking Jurnista and Mirtazapine daily, Celebrex as required, and Sozol to try to keep his stomach under control.
68 The plaintiff attended Mr Arogundade, orthopaedic surgeon, for assessment of his knee. He arranged for the plaintiff to undergo an MRI scan in 2012.[50]
[50]There was only the one attendance
69 In his first affidavit sworn in November 2014, the plaintiff described his knee constantly aching, with bending, squatting, and kneeling being very difficult. He slept with a pillow under his knee, and woke a lot at night because of pain and also nightmares. He was lucky to get three or four hours’ sleep at night.
70 Driving was then restricted to 30 to 40 minutes because the plaintiff’s knee was painful if in a fixed position. He denied his back condition affected his driving.[51]
[51]T32
71 The plaintiff also had flashbacks daily, and sometimes two or three times a day. These could be very frightening, as were his nightmares. He did not believe there had been any let-up in either situation for a long time.
72 The flashbacks started the night of the incident. The plaintiff did not think he initially reported flashbacks to his doctor.[52]
[52]T25
73 The plaintiff was unable to have sexual relations with his wife and was extremely nervous and anxious all the time. He did not think he had had any sexual problems before the incident.[53]
[53]T28
74 At times, the plaintiff had been suicidal because he could not get back to work and the nightmares were so bad. He just did not seem to be able to get the incident out of his mind, or the fact that he could have been killed inside the tower.
75 The plaintiff could not recall having suicidal thoughts or any nightmares before the incident.[54]
[54]T28
76 As at late 2014, the plaintiff had difficulty gardening because of his knee. He could do lighter activities but not heavy work, and certainly no squatting or bending. He could not cut firewood. Using power tools was almost impossible because he was just so nervous near them.[55]
[55]T29
77 The plaintiff had not used a chainsaw since the incident. Whilst Dr Stephanson noted the plaintiff had a fall at home in June 2012 whilst cutting firewood (“the 2012 fall”), he was actually carrying firewood when he fell because his left knee gave way.[56]
[56]T60
78 The plaintiff could recall a fall that caused a severe exacerbation in his back pain. Thereafter, he had three epidural injections into his spine. He agreed with Dr Stephanson’s note that until the 2012 fall, he had suffered non debilitating back pain. [57]
[57]T61
79 The plaintiff agreed Dr Stephanson had discussed further spinal surgery with him but the plaintiff is opposed to this course. He seemed to manage quite well with the injections. He can manage his pain pretty well – he has back pain sometimes, not every day.[58]
[58]T63
80 The plaintiff denied having any problem with his back now. He had no problems – “not right at the moment”.[59]
[59]T13
81 The plaintiff denied that he told Dr Epstein in 2014 that he only had temporary benefit from the back injections.[60] He had some benefit from the third injection and that is why a proposed referral to a neurosurgeon had not taken place.[61]
[60]T69
[61]T70
82 The plaintiff had lost contact with a lot of friends because he had become withdrawn and did not go out very much, or only when he had to.
83 The plaintiff no longer went fishing, which was something he did approximately monthly before the incident. He just did not like going out anymore. He would not be able to go out in a boat because his knee was too sore if the boat bounced around.[62]
[62]T29
84 As of July 2015, the plaintiff was seeing Dr Stephanson monthly, and using a TENS machine two to three times a week. He took Mirtazapine daily, and Palexia at least five to six times a week. He took Valium two to three times a week, Sozol daily, and occasionally Celebrex.
85 The plaintiff last saw Dr Oberholzer on 30 April 2014 when funding was ceased. The insurer then agreed to pay for psychological treatment, and the plaintiff was referred to Dr Ridley, psychiatrist, who was to commence seeing him on 13 August 2015.
86 The plaintiff’s knee was constantly painful, although it would become worse for no reason at all, or sometimes was aggravated if he did too much.
87 The plaintiff found he could drive for about an hour but then had to have a break because of the pain caused by his knee being held in the bent position when driving.
88 Gardening was restricted, and the plaintiff could not do any heavy activity such as using a chainsaw to lop branches. Digging, squatting and bending were quite painful, and he could not cut firewood or do any heavy lifting because of weakness and pain in his knee.
89 The plaintiff did not believe he had the capacity to work, given his experience and the ongoing left knee restrictions, and he really could not think of anything he could do. On a bad day, the pain was severe and he would not be able to do anything. Even on a good day, he had to be careful or the pain would flare up.
90 The plaintiff took his son to school and cleaned up around the kitchen and in the house as best he could. He tried to walk most days, but not for a long distance.
91 The plaintiff continued to regularly have nightmares and flashbacks of the incident, waking most nights. He certainly had flashbacks two to three times a week, which caused him to be paralysed with fear. It took the plaintiff some time to calm down afterwards. He was preoccupied by the incident and unable to stop thinking about it.
92 Sometimes the plaintiff just sat in the house for long periods and thought about what had happened to him. When he was like that he could not focus on anything else.
93 The plaintiff was constantly worried about his family in the future, and worried about not being able to look after them because of his “injury” – the knee and his psychological state.[63] He was left wondering what he could do for the rest of his working life, and had been unable to come up with any possibilities.
[63]T32
94 In his most recent affidavit, sworn 3 February 2016, the plaintiff confirmed he continues to see Dr Stephanson monthly.
95 The plaintiff saw Dr Ridley three or four times in the latter part of 2015 until Dr Ridley went to Queensland. Recently, arrangements have been made for the plaintiff to see another psychiatrist, Dr Ivers, and the plaintiff is waiting to be advised of an examination date.[64]
[64]T28
96 The plaintiff did not think that his back condition was presently playing any part in his emotional state.[65] He was very proud of himself, having got fit and up and going after 2000. He started getting regular walks and met his partner around that time.[66]
[65]T56
[66]T56
97 Dr Stephanson has not discussed the emotional effects of the plaintiff’s back condition with him.[67]
[67]T60
98 The plaintiff presently takes Mirtazapine (anti-depressant, 60 milligrams at night), Palexia (five to six times per week for his knee), Sozol and Effexor (up to 300 milligrams) daily, and Valium two to three times a week. He has stopped taking Celebrex.[68]
[68]T31
99 The plaintiff occasionally uses a TENS machine which he obtained from his brother after Christmas 2010. It gives him limited benefit and a degree of pain relief.[69] He has not had any physiotherapy treatment or been given any exercises for his knee.[70] He just attempted to strengthen his knee through walking. He can walk for 200 or 400 metres and then has to have a rest because of knee pain.[71]
[69]T20
[70]T20
[71]T21
100 The plaintiff’s knee is constantly painful. Kneeling, squatting or bending are very difficult. The pain is deep in his knee, encompassing the whole of the knee.[72] There is a 3-inch scar going from the side of his knee cap inside his knee.[73]
[72]T33
[73]T13
101 Driving is restricted because of knee pain.
102 Activities around the house are also very restricted because the plaintiff cannot put any pressure on his knee or engage in any activity which requires knee strength.
103 The plaintiff’s depression has worsened in the recent past, and his anti-depressant medication has been increased by his doctor.
104 At times, the plaintiff has been suicidal because the pain will not go away and he just cannot do anything. He constantly thinks about the incident, and on occasions, becomes very frightful and fearful.
105 The plaintiff still has frightening flashbacks of the incident, but they are not as bad as they had been on occasions. He gets frightening nightmares at least two or three times a week. Recently he had such a bad nightmare he soiled himself in bed.
106 On occasions, when he has nightmares, the plaintiff cannot get back to sleep for a long time. The frequency of the nightmares means he is anxious when preparing for bed, and he worries about whether he will experience another one.
107 The plaintiff goes out very little, and is socially isolated, because he cannot face people or being away from home. He has difficulty speaking freely to people, including his friends and family. Noise upsets him.
108 The plaintiff is not having any sexual relations with his partner. Their relationship is now very difficult because he is just moody and dark for long periods of time.
109 The plaintiff definitely cannot work now because of the restrictions in his knee and also because of his continuing depression. He would not be reliable or able to carry out any work which requires concentration or physical activity.
110 The plaintiff would have tried a job with the restrictions suggested by Mr Brearley, orthopaedic surgeon. Whilst he agreed that was the type of work he was doing and coping with when he took the redundancy – “there wasn’t that happening.” There was excessive noise all the time. “Banging and crashing and grinding, grinding, grinding.”[74]
[74]T90
111 The plaintiff disagreed with Dr Epstein’s view that he would have struggled with work two years ago to a minor degree because of his psychiatric condition.
112 The plaintiff agreed he made a permanent incapacity claim with Cbus for his back injury. The claim was also for his knee injury.[75] He understood the claim related to his back, knee and psychological condition although the documentation he was shown made no mention of any problems other than his back. He received no payments in relation to this claim.[76]
[75]T71
[76]T72
113 The plaintiff was shown a document completed by him on 22 October 2012 which included a description of his duties at Kyeema. He explained that following the 2012 fall, his back deteriorated to the point where he could not do even work a one hour shift. He agreed there was no mention of his psychiatric condition in that document.[77]
[77]T74
114 The plaintiff denied he answered questions to suit the purposes of whatever claim he was making.[78] He explained there was a further page in that document he had completed when asked to explain where there was a reference to his knee and psychiatric condition.[79]
[78]T74
[79]T81
115 The plaintiff disagreed that when he saw Dr Sillcock in 2014, he told her his back was now worse than his knee, although he still had knee pain. There might have been an occasion when his back pain was worse than his knee pain but he did not agree that was generally the case.[80]
[80]T91
Summary of the Plaintiff’s taxation returns
Financial year ending Gross earnings from personal exertion 2007 $43,799.00 2008 $53,892.00 2009 $56,722.00 2010 $59,294.00 2011 $53,202.00 2012 $65,799.00 2013 $2,021.00 2014 No return
Lay evidence
116 The plaintiff’s partner, Andrea Lowe, swore an affidavit on 9 June 2015. She has lived with the plaintiff for about fourteen years in a de facto relationship. They have an eight-year-old autistic child.
117 When she first met the plaintiff, he was coping with his back injury. He had opened a milk bar in about 2003 and also did casual wharf work.
118 The plaintiff obtained work with the defendant in 2006 and appeared to cope, despite his back injury.
119 Ms Lowe was aware of the plaintiff’s knee injury and subsequent infection. She confirmed his trouble kneeling and squatting to play with their son, and sleeping with a pillow under his knee to give him support. The plaintiff was definitely less mobile than when they first met, and he avoided going anywhere where he would have to sit or stand for a long period, such as the local football.
120 The plaintiff used to cut wood but this activity aggravated his knee, so she is left to do that task as well as most household duties. He does not do any gardening or lawn mowing.
121 The plaintiff has left-knee pain most of the time, and it affects his mood.
122 The plaintiff’s psychological condition has deteriorated since his injury, and worsened when he got back to work. His nervousness and anxiety cause bowel problems. He was always angry and in a foul mood, and in the end he accepted a voluntary redundancy.
123 Ms Lowe confirmed the plaintiff’s subsequent work as a teacher’s aide and his difficulties squatting and kneeling at the children’s level.
124 Ms Lowe described the plaintiff as irritable, moody and anxious all the time, disengaged from life and his friends. He was a hermit who rarely went out. He had difficulty dealing with their son, so she did not leave him alone with him for more than about an hour at a time, otherwise the plaintiff tended to panic that something may go wrong.
125 Ms Lowe forced the plaintiff to do things such as take their son to school, otherwise he would just sit at home and read the paper, which took him all day. He did nothing around the house and had no hobbies.
126 Ms Lowe has two children from a previous marriage. Prior to his injury, the plaintiff took her son to junior football, but since then has had little to do with him. Her eldest son plays senior competition, but the plaintiff never watches him play, despite having played senior football for Portland himself. The plaintiff did not attend the recent reunion of his premiership team.
127 The plaintiff does not socialise at all with his old friends. Ms Lowe and the plaintiff rarely go out and socialise, and no one visits, despite the plaintiff having lived his whole life in Portland. The plaintiff has told her it makes him anxious to go out, and that in turn affects his bowels.
128 The plaintiff has no libido. They sleep in separate beds because he tosses and turns at night. He has told her he has nightmares where either he or all of the family are under some sort of threat and he cannot deal with it.
129 The plaintiff’s knee injury and psychological condition place a tremendous strain on their relationship. They are virtually living separate lives under the same roof, and it is difficult to see any change or improvement in the situation.
130 Ms Lowe swore a further affidavit in February 2016. She has become aware that the plaintiff is having a lot of suicidal thoughts. She recently discovered he had soiled the bed, having had a very vivid nightmare. He was very embarrassed and tearful regarding that incident.
131 Lately, the plaintiff has tried to avoid alcohol, which she thought was due to his concern he was more likely to take his own life when he had been drinking. She has no doubt the plaintiff was capable of suicide, and that if she was to leave him it would probably result in him trying to end his life.
132 Ms Lowe tries to remain positive around the plaintiff and not let him dwell on things. However, she has to be very careful how she speaks to him, and has to balance trying to encourage him and also criticise him in an attempt to get him motivated. She has to be very careful how she expresses any criticism. She finds having to be positive all the time draining, especially so when she is having a bad day herself.
Claim documentation
133 In a Claim for Compensation signed by the plaintiff on 9 December 2010, he set out he had suffered a laceration to the left knee “using a 9‑inch sander, and edge of disc contacted left leg below knee”.
134 Wage details on the Claim Form indicated that the plaintiff’s usual pre-tax hourly rate was $25.73. His usual pre-tax weekly earnings were $1,129.60, with weekly overtime of $40.
135 The plaintiff lodged a claim for impairment benefits for the left knee and psychological injury on 18 June 2013.
136 By letter dated 7 October 2013, Gallagher Bassett advised the plaintiff liability had been accepted for his left knee and psychiatric condition following examination by Dr Stern and Mr Hart.
137 On 9 December 2013, the Medical Panel found a 4 per cent whole person impairment relating to the plaintiff’s left knee and a 10 per cent psychiatric impairment. The Panel, including psychiatrists, Dr Handrinos and Dr Adlard, concluded the plaintiff was suffering from PTSD and an Adjustment Disorder with Depressed Mood.
138 By letter dated 12 December 2013, Gallagher Bassett advised the plaintiff that it had accepted his impairment benefits claim in relation to his left knee and a psychiatric condition following a referral to the Medical Panel on 8 November 2013.
The knee injury – treaters
139 Dr Stephanson at Seaport Medical Centre in Portland has been the plaintiff’s treating doctor since April 2009.
140 In his most recent report of May 2013, Dr Stephanson confirmed that the plaintiff suffered an external traumatic laceration overlying the knee that became infected and required a protracted course of antibiotics as well as an intra-articular injury. He issued WorkCover certificates for those conditions.
141 After the laceration healed, the plaintiff continued to experience left-knee pain with locking and clicking, and was referred to an orthopaedic surgeon who organised an MRI scan.
142 Dr Stephanson thought the intra-articular patellar injury, in particular, as noted on the scan, was likely to have resulted from the incident. Post the MRI scan, the surgeon advised that surgery was not required.
143 As of May 2013, Dr Stephanson reported that the plaintiff continued to have difficulty kneeling and squatting, and problems walking up and down hills. These would be a long-term problem.
144 Dr Stephanson also noted the plaintiff’s spinal injury, with the plaintiff first injuring his back in 1989. Tis injury was the subject of an accepted WorkCover claim, with surgery on three subsequent occasions.
145 Dr Stephanson noted the plaintiff very gradually improved over the course of five to ten years with the aid of regular physical therapy, to the point where he was able to resume work in 2003. Over that ten-year period, the plaintiff’s back condition fluctuated, but he was not consistently well enough to take up regular work. His treatment also involved regular doses of analgesics.
146 From 2003, upon recommencing work, the plaintiff continued to experience non-debilitating lumbar back pain until 2012. He still had some level of discomfort, but it had diminished sufficiently to allow him to work full-time.
147 However, in mid-2012, after a fall at home while cutting wood, the plaintiff had a severe re‑exacerbation of both his lumbar back pain and left lower limb pain. Clinically, the latter, with associated sensory motor disturbance, was of a radicular nature and was secondary to compression of the left L4 nerve root. An MRI scan confirmed pressure around that nerve root.
148 The plaintiff then underwent two separate CT‑guided left L4 nerve root injections that provided partial relief for the previous nine months, but his lower limb symptoms were again gradually escalating. A further nerve root injection was planned, and Dr Stephanson believed, given the persistent recurrent nature of the plaintiff’s lower limb symptoms, it was likely he would need repeat spinal surgery to manage his problem long term.
149 Owing to the plaintiff’s current lumbar spinal and lower limb symptoms, Dr Stephanson did not believe he retained any current work capacity. Even if he underwent repeat definite spinal surgery, the plaintiff’s lifting capacity, and capacity for any consistent manual work, would be limited indefinitely.
150 In addition, the plaintiff would be limited in the range of motion, especially flexion and extension, of his lumbar spine, and would have to remain vigilant in his ongoing back care routine – that is, maintain the strength of his core musculature with a regular physical therapy program, ensure regular postural changes, and minimise forced straining.
151 In addition, Dr Stephanson stated it was noteworthy that owing to the direct physical consequences of his chronic spinal and lower-limb pain, as well as the secondary negative impacts on his work and socialisation capacity, the plaintiff had developed quite severe Depression that he had to actively treat with psychotropic medication and counselling. Some gains had been made in treating that condition, but again, ongoing treatment and vigilance was required to minimise the risk of recurrence.
152 In August 2012, Dr Stephanson referred the plaintiff to orthopaedic surgeon Mr Arogundade because of complaints of persistent pain, locking, and giving way, in his left knee – worse with weight-bearing and kneeling, and affecting his current job.
153 On examination, Mr Arogundade found a well-healed anteromedial transfer scar. The plaintiff was tender in the medial joint line, medial femoral epicondyle as well as medial parapatellar. He had an equivocal McMurray test, and Grade 1 MCL, LCL, PCL and ACL were intact.
154 Mr Arogundade discussed with the plaintiff that his clinical presentation could be as a result of a meniscal tear or a loose body, and as such, requested an MRI scan of his knee as well as an x‑ray. He advised Dr Stephanson that he would review the plaintiff after this investigation.
Investigations
155 The plaintiff underwent an MRI scan of his lumbar spine at the request of Mr Das in August 2012.[81]
[81]This was after the June 2012 fall
156 It was reported the fusion seemed firm at L4‑5, and the adjacent spinal canal was now capacious. Central canal narrowing was developing at L3‑4, and a postero left lateral disc protrusion was narrowing the lateral recess for L4, causing displacement and possible irritation at that level.
157 Mr Das organised an MRI scan of the plaintiff’s left knee on 25 February 2013.
158 It was reported that minimal joint fluid was seen. A small Baker’s cyst was seen, with evidence of previous rupture. There was a 4‑centimetre, likely subacute to chronic, essentially full-thickness chondral defect demonstrated in the anterior patellofemoral condyle. There was no definite meniscal tear, and no definite intra-articular loose body seen. There was no recent ligamentous injury identified. There was an old injury to the femoral attachment of the MCL. There was minor chondral fissuring demonstrated in the medial patellar facet with a regular Grade 3 chondral defect measuring 6 centimetres in the midline trochlea.
Medico-legal orthopaedic examinations
159 Mr Brearley, orthopaedic surgeon, first examined the plaintiff on 30 July 2014.
160 On that initial examination, the plaintiff told Mr Brearley his knee ached most nights, and when he walked he had pain over its inner side. He was aware of a grinding sensation in the knee on movements, and at times the knee gave way on him, and occasionally he fell.
161 The plaintiff reported he still had symptoms of Anxiety and Depression, and advised he had been diagnosed with PTSD.
162 The plaintiff was then having no physical treatment. He took Celebrex as required, and Jurnista, once per day. He also took medication for reflux and an anti-depressant.
163 Mr Brearley noted the plaintiff’s past back history with surgery and nerve root injections.
164 On examination, there was no swelling or effusion. There was tenderness over the medial femoral condyle and the anterior aspect of the medial joint line. There was some restriction of movement, and no instability of the knee. McMurray test was negative. There was no wasting.
165 Mr Brearley had available the February 2013 MRI scan of the left knee.
166 Mr Brearley thought that the plaintiff sustained a laceration over the left knee, and also suffered internal derangement of the knee joint, comprising a chondral defect in the medial femoral condyle. He had also developed PTSD with Anxiety and Depression in response to his physical injury.
167 Mr Brearley then thought the plaintiff was restricted with regard to employment to a considerable extent, mainly because of his psychological reaction. The plaintiff then did not feel able to work at the present time, and Mr Brearley thought that would continue for the foreseeable future.
168 Mr Brearley thought, as a consequence of his physical injury alone, the plaintiff did not have a capacity to undertake his former duties full time. He could do them part time, three hours a day, five days a week. However, he would have to have restrictions, in that he would be unable to do heavier aspects and would have to avoid much kneeling, long standing, bending and stooping, and working in awkward postures. He would have a capacity for suitable employment, provided these restrictions were in place.
169 Mr Brearley noted the plaintiff was unable to do gardening or lawn mowing, and could not help with heavier household tasks. He was withdrawn socially, and no longer attended his stepson’s football matches. Mr Brearley thought this would continue for the foreseeable future.
170 Mr Brearley considered the plaintiff needed ongoing pain management for his knee, comprising analgesics and anti-inflammatories as required. He thought the plaintiff also of course needed ongoing treatment for his PTSD which had come on as a result of his knee injury. He required regular counselling, and also to see a psychiatrist with regard to specific treatment.
171 Mr Brearley then thought the plaintiff’s prognosis was not good, and that his symptoms would continue for the foreseeable future. When the plaintiff recovered from the PTSD, there should be some improvement also in his general condition, and he may consider a return to suitable work then.
172 On re‑examination in August 2015, the plaintiff stated there had been no real improvement, with his left knee no better, and still having problems with pain and clicking and locking.
173 In addition, the plaintiff was having continuing problems with his lower back, and required CT‑guided injections every twelve months or so since he injured his knee.
174 The plaintiff advised his Anxiety and Depression were not improving, and were worsening, and he had started to see Dr Ridley, psychiatrist.
175 The plaintiff advised Mr Brearley that his basic problem, from a psychological viewpoint, was his PTSD following the incident and the very painful period thereafter. The plaintiff said he had not been able to contemplate a return to any form of work, chiefly because of his psychological condition; however, he advised a significant contribution was made by constant left knee pain.
176 The plaintiff advised that he intended to request a referral to a surgeon, but had to get his head right before he could consider any treatment.
177 The plaintiff was then in receipt of a Disability Support Pension. He was rarely taking Celebrex, and took Palexia for his knee pain, and he was also taking anti-depressants.
178 Examination was difficult because the plaintiff had a panic attack and was unable to cooperate or relax at all. On walking into the examination room he had a slight limp. Examination findings were virtually the same as on the earlier occasion.
179 Mr Brearley thought the plaintiff certainly required further treatment for his knee, and advised him to seek a referral for consideration of an arthroscopy. That would allow debridement of the femoral condylar area, and examination of the menisci, and trimming if required. He noted the plaintiff was keen for this treatment because he said his knee was a serious problem.
180 Mr Brearley noted, more importantly, the plaintiff has an ongoing psychological problem. He has PTSD, and panic attacks at least two or three times a week which are major, and minor ones more frequently. He noted the plaintiff became very distressed during the panic attack on the examination. He thought the plaintiff needed psychiatric treatment, noting the referral to Dr Ridley.
181 Mr Brearley thought the plaintiff was not fit for any work because of his psychological reaction, and to a lesser extent his knee, and he would not be able to return to any work until his psychological condition improved.
182 Mr Brearley thought, in terms of the plaintiff’s knee, he would not be able to undertake his former duties either full time or part time for the foreseeable future. The plaintiff could do some form of light work where he could sit or stand as he wished and there was no heavy or repetitive lifting. He also needed to avoid work involving much kneeling, long standing, and bending and stooping. However, it was the plaintiff’s mental condition that was determining his inability to work at all.
183 Mr Brearley thought the plaintiff would continue to require analgesics and anti-inflammatories, but, of more importance, he needed treatment for his PTSD.
184 Mr Brearley considered the plaintiff’s prognosis depended to a large extent on his psychological condition. From a physical point of view, the plaintiff’s knee would continue to cause symptoms, and will gradually worsen with the onset of traumatic arthritis as a result of the injury to the chondral surface. Mr Brearley thought there was a possibility in the long term that the plaintiff would require a total knee joint replacement.
Psychiatric evidence – treaters
185Dr Oberholzer, psychologist, reported in November 2014. The plaintiff was referred to him for treatment for PTSD after the incident injury.
186On psychological interview, the plaintiff reported not sleeping and also anxiety and stress symptoms (headaches, palpitations, nausea, stomach issues). His concentration and short-term memory was very poor.
187The plaintiff wanted Dr Oberholzer to focus on his mood and also help him with pain management techniques. The plaintiff advised that the relationship with his wife was also under strain with reduced to no sex.
188The plaintiff was then taking Temaze and antidepressants, as well as painkillers.
189Dr Oberholzer noted therapeutic interventions were sleep hygiene training, relaxation exercises, cognitive restructuring, pacing for the pain, stabilising medication and reducing where possible and with his general practitioner’s guidance.
190Dr Oberholzer concluded that the plaintiff had emotional problems (PTSD). He also had pain issues and a lack of future goals. He recommended the plaintiff continue with applying psychotherapeutic strategies learned and keep on revising his medication as needed.
191Dr Stephanson referred the plaintiff to Dr Ridley, psychiatrist, by letter dated 1 July 2015. He advised that the plaintiff had suffered from Depression for a number of years which had been managed to some degree with Mirtazapine and psychological counselling of moderate benefit.
192Dr Stephanson advised that the plaintiff’s condition appeared to have developed after a workplace injury and consequent physical disability. He had been assessed by a psychiatrist on behalf of WorkCover who thought he was suffering from PTSD.
193Dr Stephanson advised that the plaintiff was a genuine and motivated individual who had always been compliant with all treatment recommendations.
194Dr Ridley reported in February 2016, having initially seen the plaintiff on 13 August 2015.
195The plaintiff told him that he had been off work for three years since injuring his left knee at work. The plaintiff said that he did not last very long at work with persistent knee discomfort and instability and also had been experiencing escalating anxiety, high arousal, poor concentration and low mood with poor sleep, nightmares and flashbacks about the incident. The plaintiff took a redundancy in 2012 and accepted a job at a special school which he was able to sustain for only three months because of his mental condition.
196The plaintiff advised that his psychological symptoms had persisted over time despite antidepressants which helped a little, even seeing a psychologist, Dr Flip (Oberholzer), for a few sessions, which he also found useful.
197The plaintiff advised that his knee had never fully recovered. He eventually had an MRI scan which had shown some damage. He could not straighten his knee and walking was difficult, but he did not need a stick.
198The plaintiff advised that he had a back injury a few years ago which needed a fusion. He was then on antidepressants for a few months but had discontinued them and was well at the time of the incident. He was taking regular painkillers and Somac for persistent reflux, which he thought was related to his anxiety.
199On examination, the plaintiff presented as tremulous, pressured in thought and speech, low in mood and tearful.
200Dr Ridley’s initial impression was that the plaintiff was presenting with symptoms of high arousal, nightmares, flashbacks, low mood, avoidance and clear functional impairment amounting to a diagnosis of PTSD.
201Initial management was to increase the plaintiff’s prescribed dosage of antidepressants to 60 milligrams.
202On review on 2 September 2015, the plaintiff had shown some marginal improvement but this was not sustained when next seen on 12 November 2015. Dr Ridley then added the additional antidepressant, Venlafaxine, at a low dose of 75 milligrams in the morning and asked the plaintiff to gradually increase this to 150 milligrams.
203Dr Ridley last saw the plaintiff on 2 December 2015. The plaintiff’s anxiety had improved slightly at that time and he had been able to attend a family gathering in Ballarat. Dr Ridley then discharged the plaintiff from his care because he was closing his practice, but recommended the plaintiff continue to see his general practitioner regularly and consider further changes to his treatment as he remained significantly disabled by his symptoms.
204In his clinical note of 12 November 2015, Dr Ridley set out the plaintiff had plateaued at 60 milligrams of Mirtazapine. There was no more suicidal ideation but he was still highly anxious and largely avoidant.
Medico-legal psychiatric examiners
205Dr Epstein, psychiatrist, first examined the plaintiff in September 2014.
206In terms of psychiatric history, Dr Epstein noted that the plaintiff had antidepressant medication for three months in 1993 when his employment was terminated.
207Dr Epstein noted there was no other history of psychiatric or psychological treatment, counselling, criminal or suicidal behaviour.
208On examination in 2014, the plaintiff reported difficulty sleeping, had flashbacks every two days and nightmares most nights. He was worried about his safety and that of his family. He was upset by loud noises, reminders of the incident, and by talking about what had happened.
209The plaintiff had constant left knee pain with grating, grinding and swelling. He had constant low back pain that sometimes radiated to his right hip, groin, and down the front of his thighs. He still had panic attacks most days and avoided crowds. His felt helpless and hopeless. He had thoughts of suicide wondering how he could do it without hurting his family.
210Dr Epstein noted the series of nerve root injections the plaintiff received after the 2012 fall. Following the first injection, the plaintiff had only partial relief of his back pain. The second gave him only some temporary benefit and the third was of little benefit.
211Noting the incident injury and the plaintiff’s ongoing low back pain with flare ups, Dr Epstein stated that the effects of the work injury, together with his other physical limitations, has led on to the development of a Chronic Adjustment Disorder with Depressed Mood.
212Dr Epstein diagnosed a Chronic PTSD and Chronic Adjustment Disorder with Depressed Mood. He considered the plaintiff’s psychiatric state was a minor factor contributing to work incapacity in general terms, with his PTSD making it difficult to return to his pre-injury or similar employment because of fear of possible injury. The major factor preventing him performing suitable employment arose from his physical limitations.
213When seen by Dr Epstein in July 2015, the plaintiff’s sleep difficulties continued. He had nightmares about the incident up to four times a week and flashbacks once or twice a fortnight. He thought daily about what had happened. He remained worried about his safety and that of his family and was upset by reminders of the injury and talking about it. When he heard noises such as grinders, sirens and machinery he was upset. He had panic attacks most weeks and avoided crowds.
214The plaintiff’s left knee and low back symptoms were unchanged. His mood was generally flat and often worsened on the weekends, with occasional passive suicidal thoughts.
215Dr Epstein confirmed the diagnosis of PTSD relating to the incident. He also noted the significant back injury which had required surgery and was exacerbated in the 2012 fall.
216Dr Epstein thought that the combination of the effects of the work injury together with the plaintiff’s other physical limitations, led to the development of an Adjustment Disorder with Depressed Mood. Other factors which have distressed the plaintiff in the past are not relevant to his current mental state (the death of his parents and his son’s autism).
217Dr Epstein considered the plaintiff’s psychiatric state alone would prevent him from returning to his pre-injury employment or other suitable duties. He noted the plaintiff was unable to continue working as teacher’s aide because of his physical limitations, not his mental state. The latter would not allow him to return to work in a factory environment. The plaintiff’s quality of life had diminished in large part because of his mental state.
218On re-examination in February 2016, Dr Epstein had available Dr Senadipathy’s 2015 report, the plaintiff’s affidavit sworn July 2015 and reports from Mr Brearley and Dr Stephanson.[82]
[82]I July 2015 referral to Dr Ridley
219The plaintiff said he still had difficulty sleeping and nightmares about the incident two or three times a week which often woke him feeling panicky and distressed. He still had flashbacks two or three times a month. He brooded about what happened every day and could not stop those thoughts and found them associated with a churning stomach and diarrhoea. He continued to be worried about his safety and upset by reminders of the incident.
220The plaintiff still has constant pain around his left knee that swelled, grates, grinds and gave way, although that had not happened recently. He still has intermittent low back pain, especially with bending and lifting, and that pain radiated into his right hip, down the front of both thighs, and into his groin.
221The plaintiff still has panic attacks once or twice a week associated with palpitations, shortness of breath and light headedness, and high levels of anxiety. He avoided crowds, shopping centres and supermarkets. He had problems with his relationship. He did little around the home. He rarely felt happy and was generally bored, miserable, easily upset and agitated and did not want to see people.
222On mental state examination, the plaintiff looked more unkempt. His affect remained restricted and he continued to appear significantly depressed and anxious and there was no formal thought disorder. The content of his thinking again was about his ongoing symptoms and the effects on his life. He was experiencing pain and seemed to struggle to cope with it. There were now active suicidal thoughts and some concerns about his intent. He also had passive suicidal thoughts.
223There was no evidence of any delusions or abnormalities of perception. Concentration, attention and working memory appeared normal. There was some insight present but the plaintiff’s judgment appeared poor, leading to conflict with his partner. There appeared to be significant changes in behaviour as a result of the incident and the plaintiff had become very isolated and bleak.
224Dr Epstein noted that since the incident, the plaintiff had continued to have symptoms of PTSD, together with Panic Disorder and agoraphobia. He had had ongoing pain and discomfort and, as a consequence of the physical and psychological effects of the incident, had developed a Major Depressive Disorder.
225When Dr Epstein last saw the plaintiff in July 2015, he thought his level of depression was not as severe, and diagnosed him with a Chronic Adjustment Disorder with Depressed Mood. He noted the plaintiff was now actively talking about suicide. He had depressed thoughts most days. He had little energy or motivation and, in Dr Epstein’s view, these features strongly suggested the development of the Major Depressive Disorder.
226Dr Epstein noted the limited options of seeing a psychiatrist because of distance and thought the plaintiff should go back to his former treating psychologist with general practitioner support and medication, noting that the plaintiff’s active suicidal thoughts indicated he should be seen as soon as possible.
227Dr Epstein noted the plaintiff continued to have issues from his back injury and that added to his level of Depression. Other factors that had distressed the plaintiff in the past were no longer relevant.
228Dr Epstein thought the plaintiff’s psychiatric state alone prevented him from returning to his pre-injury work or other suitable duties. He noted the plaintiff tried to work as a teacher’s aide but was not able to continue because of his physical symptoms, not because of his mental state. However, given his current mental state, the plaintiff would not be able to resume work in that capacity even if he was physically able.
229Dr Epstein thought the plaintiff’s current mental state would not allow him to work as a teacher’s aide or in some other similar capacity, nor would he be able to return to work in a factory environment.
230Dr Epstein noted that the plaintiff’s quality of life had diminished even further since he was last seen, mainly because of his deteriorating mental state. The plaintiff had undergone a truncated course of psychiatric treatment and was unlikely to be able to access appropriate psychiatric treatment in the foreseeable future given his geographical location. He thought the plaintiff’s condition had become worse and his prognosis had deteriorated.
The Defendant’s medico-legal psychiatric evidence
231Dr Stern, psychiatrist, examined the plaintiff on 24 September 2013 for the purposes of an impairment claim.
232In terms of psychiatric history, Dr Stern noted the plaintiff became depressed in 1989 when he lost his job. He was then prescribed an anti-depressant by his general practitioner and then recovered.[83]
[83]There was no mention in this report of any back condition, the 2012 fall or the admission to the Albert Road Clinic
233On examination, the plaintiff was depressed by pain but not tearful. He was then taking antidepressants prescribed in mid 2011[84] and his temper reduced.
[84]First prescribed in October 2012 following the June fall
234The plaintiff now avoided all power tools at work and was apprehensive around any machinery. He was easily startled by noises like sirens. He experienced palpitations at times. He had felt it was not worth living, but he had never been actively suicidal. His sleep was disturbed by pain. He had nightmares about the incident but they had reduced with the medication. He had lost energy and his memory and concentration were reduced. He still had daily distressing recollections of the incident and tried not to think about it.
235Dr Stern listed the plaintiff’s present complaints as constant left knee pain, Depression and Anxiety, disturbed sleep with nightmares, lack of energy, reduced memory and concentration, distressing recollections of the incident and avoidance.
236Dr Stern noted the plaintiff had not had any psychological or psychiatric treatment.
237On examination, there was no evidence of thought disorder, delusions or hallucinations. There was reduced memory. The plaintiff was able to concentrate. His orientation was intact and insight and intelligence were normal.
238Dr Stern thought that as a result of his work accident, the plaintiff had developed PTSD. Associated therewith was a reduction in social and leisure activities but not by psychiatric factors alone.
239Dr Stern noted the past history of depression in 1989 but that was not currently relevant. The plaintiff had no psychological or psychiatric treatment and took antidepressants. His psychiatric state had then stabilised.
240The plaintiff was first examined by Dr Senadipathy on 4 May 2000 in relation to his back injury of 23 March 1990.
241 Dr Senadipathy was then given a history of the plaintiff’s back injury in 1989 and aggravation in March 1990 followed by three surgical procedures.
242Dr Senadipathy noted the admission to the Albert Road Psychiatric Clinic in 1996 for seven weeks when the plaintiff felt suicidal and suffered from a lot of anger and Depression. At that stage, the plaintiff could not cope with the pain and persecution by the insurer and employer. He had a court case in 1992 that went for ten days, during which he was told that he, his family and his doctors were frauds.
243The plaintiff received compensation amounting to $120,000 after deductions. Over the following years, there were difficulties with his payments being terminated. He was then receiving weekly payments and he felt that the insurer persecuted him, deliberately delaying payments.
244The plaintiff was then seeing Mr Maling, general practitioner, in Portland. He had seen a psychiatrist, D Grainger-Smith, in 1996 but had stopped after treatment at Albert Road. He had also seen a clinical psychologist, Mr Cummins, since 1997.
245The plaintiff was then taking analgesics and hypnotic medication. He used to be on antidepressants but gave them up in 1997.
246The plaintiff complained of worsening back pain which he was struggling to cope with and there was new shoulder and neck pain. There were problems with broken sleep.
247The plaintiff admitted to getting angry mostly at the insurer and employer for attacking his family and doctor, and felt his employer wanted him to kill himself to get him off WorkCover.
248The plaintiff had problems with his stomach, vomiting, and loose bowel motions when he got upset. He was admitted to Albert Road because of planned suicide in 1996.
249Dr Senadipathy thought on mental state examination, the plaintiff was consumed by his back problems and strongly delusional belief of persecution by the insurance system. He had developed a strong sense of paranoia and persecution.
250Dr Senadipathy then thought the plaintiff would benefit from some vocational training, perhaps in electronics and repair of small appliances, in the type of work that may not cause him serious back discomfort. The plaintiff was also likely to benefit from severing his dependency on WorkCover that contributed to aggravation of his persecutory thoughts.
251Dr Senadipathy diagnosed an Adjustment Disorder with Depression, anger and paranoid thoughts of persecution secondary to back injury and its consequences, including conflicts with the insurer. He thought mental injury was secondary to the physical injury and that the plaintiff was then incapacitated for any work without rehabilitation.
252Dr Senadipathy considered incapacity was due to a combination of physical and mental illness and was indefinite unless the plaintiff entered a meaningful rehabilitation program that focused on improving his motivation and self-confidence. He thought the non capacity for work was likely to be indefinite.
253On re-examination in July 2015, Dr Senadipathy noted the incident injury and the sequelae thereto. He also noted that following the hand surgery, the plaintiff continued to have problems using the grinder and was relocated to other jobs.
254In addition to the physical problems causing him stress, the plaintiff had other problems with management with issues in his role as a health and safety officer. With accumulation of stress, he developed anxiety with panic attacks and loose bowel motions. He had a colonoscopy in April 2011, having had a past history of developing irritable bowel syndrome when anxiety levels increased.
255Dr Senadipathy noted the plaintiff continued to have difficulty coping with his work due to his physical limitations and stress and therefore accepted a redundancy in April 2012. He started work as a casual teacher’s aide at a specialist school but struggled because he could not squat or kneel because of back and knee pain.
256Dr Senadipathy noted the plaintiff’s fall whilst cutting wood at home in mid 2012 exacerbated his pre-existing back pain and caused him to cease work in August 2012 and commence receipt of a Disability Support Pension.
257Dr Senadipathy noted the plaintiff had been on continuous treatment for fluctuating back pain with two nerve root injections but the symptoms continued to escalate. He was commenced on antidepressant medication after the fall in mid 2012 and was referred in 2013 for counselling, having seen Dr Oberholzer from October to April 2014.
258On examination, the plaintiff advised he continued to have problems squatting and walking on slopes. His left knee constantly ached. He had problems with sleep because of pain and nightmares. Driving was restricted because of his knee pain. He complained of getting flashbacks and nightmares but could not describe the content. He had headaches, palpitations, nausea and an irritable bowel, and felt very depressed and worried about the future.
259Dr Senadipathy thought it was important to note that there was no mention of any post-traumatic stress symptoms, anxiety, panic or fear of going back to work in early treating medical doctors’ reports. Apart from the infection that delayed his return to work, the plaintiff’s general practitioners did not consider he was unfit for pre-injury duties due to the knee injury or PTSD. There was no record of the plaintiff suffering from any emotional problems related to the incident.
260Dr Senadipathy thought it seemed as though the plaintiff had now focused on his disability due to pain in the left knee and PTSD almost to the total exclusion of other health problems that his treating practitioners concentrated on for most of his adult life both before and after the laceration to his knee.
261Dr Senadipathy did not believe the incident satisfied the DSM criteria for PTSD. He thought the plaintiff suffered from a Chronic Adjustment Disorder with Severe Anxiety and Moderate Depression caused by accumulated stressors, loss of capacity for employment, and failure to be the breadwinner, chronic pain and disability due to the back injury, loss of manhood, and stresses in his family life. Further, the plaintiff had a strong sense of hopelessness about his future.
262Dr Senadipathy thought the plaintiff’s long-term prognosis would depend on the prognosis of his physical disability. He did not believe the knee laceration had affected the plaintiff’s capacity for employment, noting he continued to work for eighteen months thereafter. He thought the plaintiff had a mental capacity for any employment he was physically allowed to do, and any medical restrictions would be determined by his physical injuries.
263Dr Senadipathy strongly believed that the finalisation of the litigation process would result in gradual improvement of the plaintiff’s mental symptoms, noting the improvement after the previous settlement.
264Dr Senadipathy re-examined the plaintiff on 1 February 2016.
265 The plaintiff said his back pain had its days. Bending flared it up but he did not need any extra medication. He struggled to sleep and stayed awake until midnight. He kept thinking of the incident. He experienced nightmares and dreams about the workshop and people running behind him with grinders.
266The plaintiff reported he experienced faecal incontinence if he was stressed. He had thoughts of self harm a few times a week when he felt depressed, thinking he could not support his family. Sometimes he thought they would be better off without him but he had not attempted any self harm.
267When asked about future employment options, the plaintiff said his skills were limited to physical work and he was not good with computers.
268On examination, thoughts about the plaintiff’s failing health and associated stresses dominated his thinking. Form and stream of thinking were normal, as were perceptions. Social insight and judgment were normal.
269Dr Senadipathy considered the plaintiff presented with a history of clinical features diagnostic of a Chronic Adjustment Disorder with moderately Severe Anxiety and Depression. He thought depressive symptoms were taking a chronic course and the plaintiff was likely to develop a major depressive illness. That condition had developed due to chronic physical ill health impacting upon the plaintiff’s capacity to be the breadwinner.
270Dr Senadipathy considered the most significant physical injury was the plaintiff’s back injury which was previously accepted to be serious and permanently disabling. In addition to that pain, the plaintiff had stress in his personal life primarily having a significantly disabled child and financial pressure.
271 Dr Senadipathy thought the plaintiff’s condition had not changed since the last examination and confirmed his views as to the prognosis and the plaintiff’s capacity for employment on psychiatric grounds.
The Defendant’s orthopaedic evidence
272By letter dated 25 March 1985, Mr Lind thanked Dr Das for referring the plaintiff regarding his troublesome left knee. He noted the plaintiff was in the Army and involved in a motorcycle accident. Since injuring his knee two years earlier, the plaintiff had a history of recurrent clicking of the joint and giving way. Recently he had been playing basketball and his knee had been going repeatedly.
273In spite of his radiological report, Mr Lind felt the plaintiff must have a medial meniscal injury and thus agreed to do a diagnostic arthroscopy.
274Post surgery, Mr Lind advised Mr Das on 4 April 1985 that at operation he found both menisci were intact but there was damage to the articular cartilage of the medial plateau of the tibia. This was quite badly fragmented and obviously had occurred in the accident two years earlier.
275Mr Lind was able to smooth this to a certain extent but he noted the plaintiff certainly will have further trouble in this area in the form of a development of an early osteoarthritis.
276Mr Maling treated the plaintiff in relation to his back injury and reported in November 2002. He then thought that the plaintiff had a painful low back with a consequent weak right leg in an L5 distribution plus wasting, weakness, and a subjective numbness in the right leg with a slight foot drop. He thought the plaintiff needed almost maximal non-narcotic medication. He was taking Tramal regularly.
277Mr Maling considered the plaintiff had no capacity to return to pre-injury duties which involved manual labour. He noted the plaintiff would like retraining and to be trained in computer work or suitable light work.
278On 22 December 2010, Dr Stephanson certified that the plaintiff was expected to be fit for normal duties from 27 December 2010 in relation to laceration to left lower limb and secondary infection resulted post stitching.
279Dr Stephanson completed a medical information form for Kyeema Support Services Inc. on 31 May 2012. The plaintiff’s cervical and lumbar movements were noted to be good, and Dr Stephanson answered “No” to stiff joints.
280In Part 1 of that form, the plaintiff answered “No” to suffering from or having suffered from arthritis, back or neck disorder or other muscle, bone or joint disorder.
C Bus Total and Permanent Disability Claim
281In a CBus Medical Certificate dated 19 October 2012, Dr Stephanson described the plaintiff’s present disability as recurrent lumbar spinal pain post spinal fusion with chronic left and right lower limb permanent sensory motor disturbance.
282In a CBus Medical Certificate of 22 October 2012, Dr Stephanson described the plaintiff’s present disability as chronic low back pain with radiculopathy down mostly the left leg L3-4 region, noting the plaintiff had had three previous back surgeries with limited improvement. Because of ill health, he was reasonably satisfied the plaintiff would be unable to ever again engage in gainful employment for which he was reasonably qualified by reason of his education, training and experience.
283The plaintiff signed a statutory declaration (Form D) on 22 October 2012 stating he had permanently ceased employment due to his disability.
284The plaintiff also signed a Form D on that date. On the first page of that document (no subsequent pages were provided) the plaintiff described the jobs he had had in the last five years with the defendant and also at the schools. He noted “casual work was scarce involving short shifts and my back had deteriorated to the state where I could not even do a one hour shift”.
285In a Cbus Total and Permanent Disability Claim signed on 26 November 2012, the plaintiff set out that low back and left knee pain caused him to cease work. Redundancy was accepted because of increasing low back pain and left knee problems. The plaintiff stated he was unsure as to what work he may be able to perform in the future due to increasing pain and symptoms in his back and left knee.
Medico-legal orthopaedic examiners
286The plaintiff was examined by Professor Hart in September 2013 for the purposes of an AMA Assessment in relation to his left knee.
287The plaintiff then complained of constant medial pain, mainly in the peripatellar area, aggravated by standing and walking, particularly up hills and slopes. His knee swelled intermittently. There had been no locking but he experienced catching, and the knee had given way on steps occasionally. This was usually followed by knee pain and indicative of reflex giving way rather than being due to instability.
288The plaintiff told Professor Hart he had never had a previous knee problem and no other history of musculoskeletal disease.
289The plaintiff walked freely in the examination room and was able to walk and jog lightly on the spot, although that induced some medial discomfort and squatting was limited on the left.
290On examination, there was no effusion in the left knee. There was a slight reduction of movement. There was no peripatellar tenderness and no pain or crepitus on moving of the patella across the femoral condyle. The patella tracked well and there was a good range of medial excursion. There was no anterior posterior instability and negative Lachman and Pivot shift tests. There was no medial or lateral instability of the knee at 0 and 30 degrees in flexion.
291The plaintiff was tender over the medial femoral condyle and over the anterior aspect of the medial joint line, but not posteriorly. McMurray’s Test was negative and lateral joint line was unremarkable. There was no wasting.
[98]Richards v Wylie (2000)1 VR 79 at paragraph [86] per Winneke P
359 Although counsel for the defendant relied on the principles stated by the Court of Appeal in Petkovski v Galletti[99] as to a pre-existing knee condition, counsel conceded it could not be argued that there were significant ongoing knee consequences prior to the incident but relied on Mr Lind’s comments as to the likelihood of osteoarthritis in the knee in the future.[100]
[99](1994) 1 VR 436
[100]T119
Credit
360As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[101]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[101](2010) 31 VR 1 at paragraph [12]
361 Counsel for the defendant submitted there was a complete lack of candour and frankness on the plaintiff’s part, and at times some blatant lack of candour which might indeed verge on being dishonest.[102] The following examples were relied upon:
[102]T107
· The plaintiff’s history to Professor Hart of no previous knee injury or musculoskeletal disease.
· Lack of reference in any of the plaintiff’s affidavits to a previous left knee injury when it became apparent the plaintiff had undergone surgery as a sixteen year old – an omission described as “inexcusable”.[103]
[103]T109
· No reference to any psychiatric problems pre incident when the plaintiff had been treated in this regard before the said date, including a seven-week admission at the Albert Road Clinic in 1996 when he was suicidal.
· A very Limited reference to the plaintiff’s back injury of three lines in his first affidavit, with no mention of the three back operations or being off work and in receipt of compensation payments for thirteen years.
· No mention of the 2012 fall and severe exacerbation of back pain as noted by Dr Stephanson.[104]
· The plaintiff’s viva voce evidence as to the benefit obtained from epidural injections following the 2012 fall is in complete contrast to the history to Dr Epstein and other medical practitioners that the injections gave him little benefit and that he had ongoing back problems.[105]
[104]T109
[105]T109
362 Whilst counsel for the plaintiff conceded some of the plaintiff’s responses were not truthful, it was submitted it would be very harsh and wrong to dismiss his complaints because he is a closed introspective person, and probably always was. In those circumstances, it was submitted one would need to be careful in coming to the conclusion that the plaintiff was being dishonest because he found it difficult in Court to fully articulate his circumstances.[106]
[106]T138
363 It was conceded that clearly, the plaintiff saying he was not on Tramadol at the time of the incident was incorrect, but at times he did make appropriate concessions and “did not doggedly stick to a script”. The plaintiff was not coming to Court to mislead. Perhaps he was not the best witness, but it was submitted he was not dishonest or deliberately attempting to mislead the Court. He should be judged on his current presentation, whatever the difficulties might have been in his earlier dealings with medical practitioners.[107]
[107]T139
364 It was submitted that what might have been less than perhaps appropriate full frankness did not amount to fraud or dishonesty.[108]
[108]T54
365 As I indicated to counsel for the plaintiff, I had major issues with the plaintiff’s credit. The matters relied upon by counsel for the defendant were very significant in my view. At times, the plaintiff’s evidence was bordering on evasive, if not evasive.[109] He largely focussed on the consequences of his knee injury, minimising what is clearly a significant back problem.
[109]T133
366 I do not accept that the plaintiff has minimal problems with his back as he now maintains. Dr Stephanson, who has not reported since May 2013, confirmed at that time, the plaintiff’s back was a very significant problem, resulting in an incapacity for work. It is inexplicable that this general practitioner, who has seen the plaintiff since 2009, has not provided an up-to-date report.[110]
[110]T118
367 Further, I do not accept the epidural injections after the 2012 fall gave the plaintiff any significant pain relief, Dr Epstein, and other examiners such as Mr Brearley in August 2015, having noted histories to the contrary from the plaintiff.
368 The plaintiff’s failure to mention any previous knee injury and to state positively that he had no prior knee problems when he had in fact undergone knee surgery, was a major omission. His limited history of back problems requiring surgery on three occasions and over ten years off work on weekly payments also fell into this category.
369 Whilst Ms Lowe’s evidence was unchallenged,[111] the plaintiff was successfully cross-examined and in the context of this claim it was unnecessary to put the same material to her in cross-examination.[112]
[111]T146, 148
[112]T154; See Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8 at paragraph 47; Philippiadis v Transport Accident Commission [2016] VSCA 1 at paragraph 88
370 Ms Lowe’s affidavit made only a very brief reference to any back problems experienced by the plaintiff, noting he was coping with this injury when running the milk bar. There is no mention in her affidavit of the 2012 fall or the injections undertaken by the plaintiff thereafter. Further, in a number of respects, Ms Lowe purports to give expert psychiatric evidence which she is obviously unqualified to give.
Consequences
371 Counsel for the plaintiff submitted there are serious consequences of the knee condition with medical opinion that the plaintiff is incapacitated for manual work and requires ongoing medical treatment.[113] There were also physical restrictions in terms of kneeling, squatting and walking due to knee pain.[114]
[113]T150
[114]T149
372 Counsel for the defendant submitted that the consequences of any knee impairment are not “serious”. The knee laceration was of minor magnitude and had minor consequences.[115]
[115]T124
Pain
373As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[116]
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
… .”
[116](supra) at paragraph 11
374 The plaintiff complains of constant knee pain, encompassing the whole of the knee. His knee clicks and locks. Kneeling, squatting or bending are very difficult and he has problems walking.[117]
[117]T21
Treatment
375 The plaintiff has continued under the care of his general practitioner, Dr Stephanson. There have been few attendances in relation to his knee after December 2010.
376 There was one specialist referral to orthopaedic specialist, Mr Arogundade, in 2012. Whilst he organised an MRI scan to investigate the plaintiff’s knee complaint, having received that investigation, he did not make arrangements to see the plaintiff further.
377 There has been no physiotherapy and no exercises suggested for the plaintiff to undertake to assist with his knee pain and restrictions.
378 There have not been significant findings on clinical examination. Dr Sillcock’s findings in relation to the knee were basically limited to tenderness. Professor Hart found very little on examination.[118] When the plaintiff was seen most recently by Mr Brearley in August 2015, although he could not extend his knee fully, there was no instability and no wasting.
[118]T117
379 Although the plaintiff continues to take Palexia for knee pain,[119] he was still taking Tramadol at the time of the incident for his back condition, having done so since June 2004.[120] Further, there were significant changes to his medication following the 2012 fall with the prescription of Jurnista for his back condition.[121]
[119]T32,151
[120]T120
[121]T122
Work
380 Counsel for the plaintiff submitted the restrictions and difficulties faced by the plaintiff as a result of his knee condition would prevent him from doing any of the work he was doing at the time of the incident. Further, he would be prevented from undertaking jobs with prolonged standing, heavy manual work or lifting as Mr Brearley described.[122]
[122]T150
381 It was submitted the plaintiff was unemployable because of his knee, as he lacked a capacity for suitable employment, having always done manual work.[123]
[123]T151
382 However, the plaintiff was certified fit for all duties by Dr Stephanson on 22 December 2010. When the plaintiff returned to work, there were no restrictions on his duties. He worked normal hours at the same rate of pay.[124]
[124]T111
383 On his own admission, the plaintiff’s work duties following the incident did not involve kneeling or squatting.[125]
[125]T110
384 On his return to work, post incident, I accept there were some issues between the plaintiff in his role as OH&S officer and management, and the plaintiff felt he was somewhat ignored on his return from the smelter.[126]
[126]T110
385 The plaintiff left the defendant’s employ because he was offered a redundancy, not because of any ongoing problem with his knee. Whilst his case now is that he left because he could not cope with the noise in the grinding room, the plaintiff did not complain of that problem to the defendant or to his general practitioner at any time prior to taking the redundancy, or thereafter.
386 Further, I do not accept that the plaintiff left his later job as a teacher’s aide because of his knee condition. The plaintiff noted the significant difficulties he was having with that job because of his back in his Cbus application form, not being able to work even a one-hour shift because of back pain. He also deposed he left that job because it was emotionally draining.[127]
[127]T109, T111
387 In Peak Engineering & Anor v McKenzie,[128] Maxwell P described the difficulty faced when a separate injury is also producing pain and suffering consequences for the claimant, as well as the relevant injury.
[128][2014] VSCA 67
388 In such circumstances:
“The Court must decide whether the consequences of the original injury are ‘more than significant or marked, and ... at least very considerable’. For that purpose, it is necessary — so far as the evidence permits — to identify the consequences properly referable to the original injury, and to exclude the consequences referable to the subsequent injury.”[129]
[129][2014] VSCA 67 at paragraph [1]
389 The President found that the judge was:
(a) bound to identify, and exclude, the continuing consequences for the plaintiff of the subsequent knee injury; and
(b) when the consequences properly referable to the relevant injury were identified, identified them as “serious”.[130]
[130][2014] VSCA 67 at paragraph [2]
390 The consequences of the aggravated non-compensable back injury are serious in their own right, as Dr Stephanson noted in his most recent report of 2013. [131]
[131]T108
391 Further, when Dr Sillcock examined the plaintiff in 2014, for the purposes of the purposes of his CBus application, the plaintiff told her his back was worse than his knee and she considered his low back to be his main problem.[132]
[132]T117
392 Counsel for the plaintiff did not attempt to suggest the plaintiff did not have a knee problems.[133]
[133]T136
393 I accept that the plaintiff would have had problems with lifting, bending and other heavy physical work because of his back. He already had restrictions on his work capacity with no stooping or bending because of his back condition.
394 I am not satisfied the plaintiff’s knee condition results in an interference with his employment capacity which could be described as “serious”.[134] In my view, the plaintiff’s back condition and its psychiatric sequelae continue to play a large role in his current presentation.
[134]T123; Shock Records Pty Ltd v Jones [2006] VSCA 180
395 In my view, it is impossible on all the evidence to disentangle any consequences of the plaintiff’s knee condition from his back problems, such that any present knee impairment can satisfy the high statutory threshold of “serious”.
396 Accordingly, the plaintiff’s application pursuant to clause (a) is dismissed.
397 Counsel for the plaintiff submitted there was an alternative, albeit more difficult approach. If only a laceration was suffered in the incident, the plaintiff had developed, certainly from 2012 onwards, a genuine belief he was suffering pain and restrictions in his knee, controlled by psychiatric factors. In those circumstances, he would be entitled to leave pursuant to clause (c) on the basis upheld by the Court of Appeal in Veljanovska v Socobell Oem Pty Ltd.[135]
[135](Supra); T151
398 However, in his final address, counsel for the plaintiff agreed this was a difficult submission as there was no psychiatric opinion that the plaintiff was suffering from a Chronic Pain Syndrome and this submission was taken no further.[136]
[136]T151
399 Accordingly, that application is also dismissed.
Psychiatric
400 Counsel for the plaintiff submitted the most significant impairment was psychiatric,[137] having been diagnosed as PTSD and Major Depressive Disorder. Further, it was submitted that the consequences of that impairment were “severe”.
[137]T132
401 It was submitted the different characterisation of the plaintiff’s psychiatric condition did not matter. He was suffering from a major depressive condition because he had become actively suicidal.[138]
[138]T134
402 In terms of the PTSD diagnosis, reliance was placed on the opinions of Dr Stern in 2013 and Dr Epstein, who also added a Major Depressive Disorder to this diagnosis and that of an Adjustment Disorder on his most recent examination earlier this year.
403 It was submitted on the plaintiff’s behalf that he continued to have very intrusive flashbacks, nightmares, and in recent times has become suicidal, as noted by Dr Ridley and Dr Epstein. His condition had worsened.[139]
[139]T147
404 In my view, the plaintiff has now focussed on the disability due to his knee and related PTSD almost to the total exclusion of his significant back injury as Dr Senadipathy commented in his most recent report.
405 For the following reasons, I am not satisfied the plaintiff is suffering from a severe incident-related psychiatric impairment, whether it be PTSD, Major Depressive Disorder of other psychiatric condition.
406 As counsel for the defendant submitted, issues of the plaintiff’s credit again arose in his clause (c) application both in terms of his understatement of his psychiatric problems relating to his pre-incident back condition such as describing his inpatient admission in 1996 as “rehab” and more significantly, the lack of any complaint whatsoever to his general practitioner of PTSD type symptoms following the incident.
407 The plaintiff made no complaint to the defendant of any problems with noise at work on his return to duties following the incident.
408 There is not one reference in Dr Stephanson’s notes to any PTSD symptoms, an omission Dr Senadipathy thought was important.
409 As the Court of Appeal stated in Philippiadis v Transport Accident Commission:[140]
“Where an injury is regarded as having serious adverse health consequences for a patient and that patient visits his doctor on a regular basis, it would be very unusual for the patient not to mention those consequences and for the practitioner’s clinical notes not to refer to them over a lengthy continuous period of time.”
[140](Supra) at paragraph 12
410 It is not simply the case that Dr Stephanson did not record any PTSD complaints. In his most recent report in May 2013, he made it clear that the plaintiff’s problems related to his back condition which was aggravated in the 2012 fall. As a result thereof, the plaintiff was unfit for any work and had developed a quite Severe Depression which he had to actively treat with psychotropic medicine and counselling.
411 Dr Stephanson’s referral of the plaintiff to Dr Ridley in July 2015 mentioned a history of Depression for a number of years and also that his work insurer[141] felt the plaintiff was suffering from a PTSD.
[141]Dr Stern
412 Although he diagnosed PTSD, Dr Ridley does not appear to have been provided with Dr Stephanson’s May 2013 report, nor did he have any history of the prescription of anti-depressant medication following the 2012 fall. He appeared to have accepted the plaintiff has complained of ongoing PTSD symptoms since the incident.
413 Whilst counsel for the plaintiff submitted there could be a late onset of PTSD and that such was fairly common,[142] the plaintiff’s evidence was he did have these nightmares and flashbacks effectively from the incident date.[143]
[142]T142
[143]T143
414 Dr Senadipathy has seen the plaintiff both before and after the incident, having initially diagnosed an Adjustment Disorder with Depression, anger and paranoid thoughts of persecution secondary to his back injury and treatment by the insurer.
415 Whilst diagnosing a chronic adjustment disorder with sever anxiety and moderate depression on examination in 2015, related to the plaintiff’s back condition, Dr Senadipathy considered and specifically excluded a diagnosis of PTSD, having been told by the plaintiff of a range of PTSD type symptoms, noting similar symptoms were also seen in depressive disorders.
416 In that report, Dr Senadipathy noted Dr Stern had examined the plaintiff in 2013 and diagnosed PTSD.[144]
[144]T157; Counsel for the plaintiff criticised Dr Senadipathy’s opinion on the basis he was unaware of Dr Stern’s diagnosis
417 Treating psychologist, Dr Oberholzer, simply noted in his 2014 report that the plaintiff was referred for treatment of his PTSD in 2013. He thought the plaintiff had “emotional problems (PTSD)” but did not mention any symptoms thereof in his report.
418 Dr Stern, whilst diagnosing a PTSD in 2013, had very limited knowledge of the plaintiff’s pre-incident psychiatric history. He was unaware an anti-depressant had been prescribed following the 2012 fall in which the plaintiff exacerbated his back condition. Whilst he thought the plaintiff’s social and leisure activities had been reduced, his activities of daily living were not limited by psychiatric factors alone.
419 Dr Epstein, upon whom the plaintiff relies, on examination in September 2014, thought the plaintiff had symptoms of PTSD and that his psychiatric state was a minor contributing factor to his work incapacity in general terms.
420 Until 2016, when provided with Dr Senadipathy’s 2015 report, Dr Epstein had no knowledge of the plaintiff’s pre-incident psychiatric condition. Having received that report and being told by the plaintiff in January 2016 that he was now actively talking about suicide, Dr Epstein changed his diagnosis from symptoms of a PTSD and a Chronic Adjustment Disorder with Depressed Mood, concluding that as a consequence of the physical and psychological effects of the incident, the plaintiff had now developed a Major Depressive Disorder.
421 Dr Epstein did not explain how PTSD symptoms had increased from a minor level in 2014 to a major depressive disorder on most recent examination.
422 Dr Epstein has never been provided with Dr Stephanson’s report of 2013. Whilst noting the contents of Dr Senadipathy’s 2015 report, which was in similar terms to Dr Stephanson’s view, Dr Epstein did not explain why he disagreed with that opinion, nor did he comment on the role of the plaintiff’s back condition in his current psychiatric presentation.
423 Counsel for the plaintiff relied on the views of Dr Epstein and Mr Brearley that the plaintiff had no current work capacity because of psychiatric issued related to the incident injury.
424 Whilst Dr Epstein recently concluded the plaintiff’s psychiatric condition now prevented him from working at all,[145] he did not explain why he changed his mind from his earlier view about the plaintiff’s capacity for work from a psychiatric perspective. He simply changed his diagnosis to a Major Depressive Disorder and attributed it to the consequences of the knee injury and not the back.
[145]T146
425 Mr Brearley who concluded after the most recent examination the plaintiff had no capacity for work on psychiatric grounds, was not aware of Dr Stephanson’s 2013 views and the fact that anti-depressants were first prescribed after the 2012 fall.
426 I am not satisfied that the plaintiff left the defendant’s employ for any psychiatric issues relating to the incident for the reasons I have mentioned above. Whilst he found the school jobs emotionally draining, in my view, the principal reason for leaving that employ was his increasing back complaints following the 2012 fall as he detailed in the Cbus application.
427 Whilst it was submitted on the plaintiff’s behalf that the prescription of anti-depressants arose in the context of the plaintiff’s deteriorating circumstances driven by “the noise and the incident events that are driving that,”[146] however, the first prescription of anti-depressants followed the 2012 fall, with Dr Stephanson then prescribing psychotropic medication due to the plaintiff’s back condition.[147] There is nothing further from Dr Stephanson as to what medication is currently being prescribed to treat what condition.[148]
[146]T143
[147]T128
[148]T141
428 Although there has been specialist psychiatric referral and treatment, this took place some years after the incident, following the 2012 fall, with the plaintiff first seeing Dr Oberholzer in October 2013 (after Dr Stern’s PTSD diagnosis the previous month) and Dr Ridley in August 2015.
429 Taking into account all of the evidence, I am not satisfied the plaintiff has a severe psychiatric impairment in relation to either pain and suffering or loss of earning capacity related to the incident.
430 Accordingly, the plaintiff’s application pursuant to clause (c) is also dismissed.
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