Candido, Jose v MCS Labour Hire Pty Ltd

IN THE COUNTY COURT OF VICTORIA	(Un) Revised (Not) Restricted
AT MELBOURNE CIVIL DIVISION SERIOUS INJURY

Case No. CI-08-04174

JOSE CANDIDO	Plaintiff
v
MCS LABOUR HIRE PTY LTD & ORS	Defendant
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JUDGE:	Judge Howie
WHERE HELD:	Melbourne
DATE OF HEARING:	21-22 July, 14-15 September 2009
DATE OF JUDGMENT:	18 September 2009
CASE MAY BE CITED AS:	Candido, Jose v MCS Labour Hire Pty Ltd
MEDIUM NEUTRAL CITATION:	[2009] VCC 1197

REASONS FOR JUDGMENT

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Catchwords: serious injury application; s 134AB Accident Compensation Act 1985

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr AW Adams QC and Mr	Patrick Robinson & Co
RC Forsyth
For the Defendant	Mr WR Middleton SC and Ms	Herbert Geer
S Manova
HIS HONOUR:

1 By an originating motion filed on 2 October 2008 the plaintiff seeks leave pursuant to section 134AB of the Accident Compensation Act 1985 to bring proceedings to recover damages for pain and suffering and for loss of earning capacity alleging that he was injured in the course of his employment by the defendant. In a “Statement of Issues” dated 20 July 2009 and handed to the court by Mr Adams QC, senior counsel for the plaintiff, it is alleged that the body function said to be impaired is the function of the spine and the function of the left shoulder. In opening Mr Adams stated that the plaintiff relied upon paragraphs (a) and (c) of the definition of serious injury. He stated that the body function claimed with respect to paragraph (a) was the function of the spine. Before closing the plaintiff’s case Mr Adams confirmed that the plaintiff’s case no longer included a claim with respect to the left shoulder and advised that the plaintiff did not rely upon paragraph (c).
2 Mr Adams submitted that the spine is a body function within the terms of the definition of serious injury. Mr Middleton SC, who appeared with Ms Manova for the defendants, submitted that the cervical spine and the lumbar spine are separate body functions. Mr Adams drew my attention to a number of
decisions of this court which have held that the function of the spine is a single body function.[1] I accept that the function of the spine may be considered as a single body function.
[1] Filippou v Dimitros & TAC (19 March 2001) Judge White; Tsagaris v Otis Building Technologies Pty & VWA (29 November 2001) Judge Wodak; Cikac v St Vincent’s Private Hospital & Ors (12 May 2004) Judge Howie; Ivanovski v Menzies International Cleaning Contractors Pty Ltd (2 May 2006) Judge Wood; Josevski v Chiquitta Mushrooms Pty Ltd & VWA [2007] VCC 1653, Judge O’Neill; Trajkovska v Prentice & TAC [2008] VCC 479; Blackburn v Construction Engineering (Aust) Pty Ltd [2008] VCC 711 Judge KL Bourke.
3 In order to succeed with an application pursuant to section 134AB the plaintiff must establish that he sustained an injury arising out of or in the cause of, or due to the nature of, his employment by the defendant. The plaintiff’s case is that he suffered an injury to his spine at his place of employment on or about 3 June 2004.

4
to establish that his injury is a serious injury as defined, he must prove that the
With respect to paragraph (a) of the definition of serious injury, for the plaintiff respect to pain and suffering are, when judged by comparison with other cases in the range of possible impairments of a body function, fairly described as being more than significant or marked, and as being at least very considerable. He must also prove that the impairment to the body is permanent.
5          It is necessary therefore to identify the consequences of the impairment of the function of his spine in terms of pain and suffering, loss of amenities of life and loss of enjoyment of life in order to determine whether those consequences

may be fairly described as being very considerable. The making such a
judgment involves matters of fact, degree and value judgment.
6          The plaintiff is 55 years of age, his date of birth being 11 January 1954. He was a concreter by trade. He had minimal formal education in Portugal and came to Australia in 1983, aged 29. In Australia he has only worked as a
concreter. He commenced employment with the first defendant in 2000.
7          In his affidavit sworn on 26 May 2008 the plaintiff deposed that on or about 3 June 2004 he suffered injury to his left shoulder, neck and low back when his foot slipped and twisted on a steel bar on the ground and he stumbled, while carrying heavy steel stock piles on his left shoulder with another worker. He deposed that he felt immediate pain in his left shoulder and low back, kept

working that day and the next, but felt unwell and in a bit of pain, and attended
his doctor, Dr Asthana, who put him off work.
8          The plaintiff deposed that he stopped work on the Monday following the incident and saw his doctor Dr Asthana who put him off work. Initially his left shoulder was more painful and more of a worry to him, but he said that he mentioned low back pain to Dr Asthana who told him to wait and see if it settled. On 7 July 2004 neck and left shoulder x-rays and ultrasound were carried out. In July 2004 he was referred to Mr Ian Jones, orthopaedic surgeon, principally for his left shoulder. Mr Jones advised physiotherapy and medication.

11

Dr Asthana each month. He has ceased physiotherapy. He takes Tramal
morning and night for pain, Ducene to assist sleep, and Lovan to help calm
him down. He attends Dr Courtney at Western Hospital for ongoing treatment.
He attends hydrotherapy, sometimes twice a week. He does exercise at home

In a second affidavit sworn on 22 June 2009 the plaintiff deposed that he sees 3 or 4 occasions a couple of years ago, but that did not really help.
9          The plaintiff deposed that he had continuing back pain and had an x-ray of his low back on 19 August 2004 and a CT scan of his low back on 9 September 2004. In November 2004 he was referred to Cedar Court. He participated in a 12 week course with Alex Chan at the Spinal Management Clinic. He continued to see Alex Chan during 2005. He had constant pain in his low back and increased pain in his left shoulder and neck. In July 2005 he again attended Mr Jones, who advised that surgery would not assist and that he should continue with the same treatment.
10        In September and October 2005 the plaintiff attended Dr Clayton, a rehabilitation doctor. He commenced light work for a few hours a day. He attempted two hours for two days a week. There was pressure to increase his hours. He ceased light duties in March 2006. In April 2006 he attended Western Hospital for investigation of his low back pain and leg pain. An MRI of the low back was carried out on 9 May 2006. He began physiotherapy and hydrotherapy. Dr Asthana referred him to a psychologist, Dr Mollica. Through 2006 his neck and left shoulder pain was worse and he had frequent pains down his left arm. He attended Western Hospital. An MRI of the neck was carried out on 30 January 2007.
12        He walks for periods up to 30 or 40 minutes, but has pain at the end. He tries to help his wife. He has difficulty concentrating because of pain. His social life is affected and he does not see his friends as much. He is able to drive, but

does not drive for long distances as turning his neck causes neck pain. He December 2008 Dr Courtney gave him an injection in the neck, which gave him some relief from neck pain, but the relief lasted only three months. He sleeps in a separate bedroom to his wife, as he kept her awake at night. His wife often assists him to dress. He has difficulty with domestic tasks such as mowing the lawns and taking out the rubbish. He continues to have neck and left shoulder and middle back pain and pain and symptoms in the left leg. The neck pain is the worst. He has not looked for work because of the pain.
attends to smaller domestic tasks, but is not able to do heavier physical work.
13        A major difficulty confronting the plaintiff’s application is that while his treating doctors consider him to have problems with his spine, at both the cervical and lumbar level, as well as his left shoulder, each of them considers him to be

exaggerating his symptoms. Their evidence raises two critical issues, first,
whether the incident on 3 or 4 June 2004 caused an injury to the spine, and,
secondly, if it did, what were the consequences of the injury.
14        Dr Asthana has been the plaintiff’s general practitioner, and his principal treating doctor, over a period now of more than five years. Four full reports of Dr Asthana, dated 1 May 2006, 7 March 2007, 26 August 2008 and 16 July 2009, were tendered in evidence, and he attended court for cross- examination. The same history is given in each report. In the past the plaintiff had soft tissue injury of his shoulders and thoracic spine which was treated conservatively and responded in a few weeks. On 4 June 2004 while at work he was trying to lift heavy steel stockpiles when he developed pain in his left shoulder. He attended Dr Asthana on 8 June 2004. Dr Asthana diagnosed a soft tissue injury of the left shoulder and treated the plaintiff for the left shoulder injury with physiotherapy and anti-inflammatory medication. Following review a week later an x-ray of the left shoulder and cervical spine revealed moderately severe lower cervical spondylosis.
15        Dr Asthana referred the plaintiff to Mr Jones, orthopaedic surgeon, who saw the plaintiff on 21 July 2004. Mr Jones examination was confined to the plaintiff’s left shoulder. He diagnosed some osteoarthritis in the left acromioclavicular joint and advised that the plaintiff continue treatment with anti-inflammatory medication and, if he failed to respond, injection of hydro- cortisone into the joint. In early September 2004 the plaintiff began to complain of lumbar pain, although it should be noted that in the brief referral note to Mr Jones dated 20 July 2004 Dr Asthana referred to the plaintiff developing pain in his left shoulder, cervical spine and lumbar spine. A plain x-ray followed by a CAT scan revealed a disc prolapse at L4/L5 on a background of mild facet joint osteoarthritis without significant canal stenosis, and a diffuse disc bulge at L5/S1 with moderately severe facet joint hypertrophy without significant canal stenosis.
16        As the plaintiff’s response to conservative treatment was very slow and not satisfactory Dr Asthana referred him to Cedar Court for multidisciplinary assessment on 23 November 2004. He had 12 weeks of active self managing physiotherapy provided by Spinal Management Clinic in St Albans. After the treatment he still complained of pain in the lumbar spine, cervical spine and right shoulder. Physiotherapy treatment and gym treatment was continued for three months, but his response to the treatment was not satisfactory and on 18 July 2005 Dr Asthana again referred him to Mr Jones.
17        On 19 October 2005 Dr Asthana referred the plaintiff to Dr Clayton Thomas for pain management. He also referred him to Mr Joe Mollica, a psychologist, for counselling and treatment for post traumatic depression. Dr Thomas advised Dr Asthana that although the plaintiff’s mode of injury was significant, it was not possible to determine the nature of the underlying medical problem. In his opinion there was a psychological reaction significantly contributing to the plaintiff’s presentation, which was of excessive disability. Dr Thomas advised that rehabilitation and pain management had nothing more to offer, and he recommended a return to light work, lifting up to 2 kg with no bending or twisting. The plaintiff was put on light work for two hours a day, two days a week, with no bending or lifting.
18        Dr Asthana reported in the following terms on the attempt to have the plaintiff return to work:
Attempts to increase his working hours were made but they were unsuccessful, as he insisted that the pain as such was quite severe and he was finding it quite difficult to do what he
was doing.
In January 2006 he had a meeting with the rehabilitation officer and it seems that he was very upset. They tried to push him to increase his hours which he though was unfair, as he was
finding it very hard to work for a 2hr stretch. At my insistence he restricted work, which he is quite happy to do. So far I have not been able to increase his number of hours or days as he feels he will not be able to cope. He continues to complain of pain in the thoracic spine, lumbar spine and the right shoulder. Clinically he is very tender in these regions and his movements are painful and restricted.
agreed to work three hours a day, 2 days a week. Work care
referred him to their specialist Dr. Booth by who saw him on the
30th of January, 2006. His opinion was that Mr. Candido had
the physical capacity to perform the duties as described in the
return to work plan. He also was quite happy with the
graduated return to work plan both in terms of number of hours
per day and days per week. He thought the plan was
appropriate and that Mr. Candido should undertake it. He also
referred him to their psychiatrist Dr. Nathar, who saw him on
the 30th of January, 2006. He thought that he had the capacity
to work within his physical limitations. The difficulty according to
him was Mr. Candido’s negative attitude. He thought a
psychologist should be involved in his treatment as he would
prepare him for his return to work. Mr. Candido was already
seeing a psychologist who was giving him regular counselling.

19 On 24 May 2006 the plaintiff attended the neurosurgery department of the Western Hospital for his back pain. An MRI showed a small disc prolapse at L4/L5 level with moderate stenosis of the exit foramina but no nerve root compression. Conservative treatment was recommended. Later the plaintiff again attended the Western Hospital for neck pain and paraesthesia in both C5 dermatomes. An MRI of the cervical spine in February 2007 suggested compromise of both nerve roots at the level of C3, some minor left nerve root displacement or compromise at C5, and nerve compression on the left side at C6. The cervical cord was not compromised. As the plaintiff had ongoing left upper limb paraesthesia and radiculopathy, Dr Asthana thought that surgery was indicated, but the plaintiff was reluctant to consider surgery.

20
Two reports of the Western Hospital based upon the hospital records detail symptoms, the results of examinations and treatments given. Initially it was conservative treatment in the form of physiotherapy and medication. The reports record significant improvement in symptoms on 2 May 2007 following physiotherapy, and on 23 May 2007 following a Ketamine infusion. On 5 December 2008 he had injections into cervical facet joints and on 5 March 2009 he said that the injections gave him dramatic and ongoing relief of his pain so that he had very little neck pain. In cross examination the plaintiff did not agree with these accounts of improvement.
21        In July 2008 the plaintiff requested a referral to an orthopaedic surgeon of his choice, Mr Brian Barrett. He attended Mr Barrett on 28 July 2008. Mr Barrett reported to Dr Asthana that he considered that the plaintiff was grossly exaggerating his symptoms and spinal stiffness, out of keeping with the radiological features, making clinical assessment very difficult. He considered that the plaintiff undoubtedly had an L5 level bilateral spondylosis, and some modest disc bulges at the lower lumber disc levels, plus generalised degenerative changes in the cervical spine. He did not express an opinion as to any role played by the work incident in June 2004 on the condition of the plaintiff’s spine. He thought that it would be unwise for the plaintiff to return to his heavy pre-injury work.
22        The plaintiff was continued on his pain management treatment at Western Hospital. On 5 December 2008 Dr Peter Courtney, a pain management specialist, performed cervical dorsal remiss ducts, with partial success.
23        In summary, Dr Asthana diagnosed the plaintiff as having the following injuries:

(1) soft tissue injury of the cervical spine;
(2) tendonitis and capsulitis of the left shoulder with slight effusion in
the joint;

(3) soft tissue injury of the lower spine, with aggravation of facet
joint osteoarthritis and suspected disc lesion of the lumbar spine
causing sciatica on the left side;

(4) anxiety with depression, significantly contributing to his overall
presentation.

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incident on 3 or 4 June 2004, but stated that they “are related to the type of
work he does.” This somewhat equivocal statement was amplified further by
Dr Asthana stating “it is not possible to determine what the nature of the
underlying medical problem was. A psychological trauma has occurred which
is significantly contributing to his overall presentation. He has been
extensively treated both by his psychiatrist and psychologist. His response

Dr Asthana did not state in his reports that these injuries were caused by the psychological barrier to do any type of light work was too strong.” While Dr Asthana considered that the plaintiff has pain in the cervical and lumbar spine, as well as the left shoulder, Dr Asthana also considered that a psychological reaction was contributing significantly to the plaintiff’s account of the pain and limitation he experienced, and he was unable to determine the nature of the plaintiff’s underlying medical problem.
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impairment of the spine and consequences of that impairment both in terms of

An evaluation must be made of the injury to the plaintiff’s spine and the Asthana, the principal treating doctor, as to the cause of the plaintiff’s pain and limitation, and his opinion that a psychological reaction contributed significantly to the symptoms and limitation described by the plaintiff, presents a major difficulty for the plaintiff’s case.
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the plaintiff regularly over a five year period and said that the plaintiff
complained of pain in different parts of his body. In cross-examination he
said: “He is an uneducated man and he will come and tell me at that time
where the pain was. So practically if you see his story during all these years,
that he did have pain in every part of his body and he would keep complaining

Dr Asthana’s viva voce evidence did not differ from his reports. He has seen during all these periods he has practically complained of most of the pain everywhere and he was a concreter by profession, so maybe he was getting pain everywhere.”[2] Dr Asthana agreed with the advice he received from the rehabilitation doctor, Dr Thomas, to whom he had referred the plaintiff, that the plaintiff “presented a picture of excessive disability” and that “it was difficult to know the reasons for his overall restrictions.”[3] He agreed that while he could see that psychologically the plaintiff was not prepared to work, he could find no physical explanation for his continued severe level of disability over the last five years.[4]

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Dr Asthana was shown surveillance film of the plaintiff taken on 23 March 2005 and 29 March 2005. He agreed that what he saw of the plaintiff’s movements on the film was inconsistent with the plaintiff’s presentation to him of his lumbar spine movement, his left upper limb movement, and his neck movement.[5] He also considered that the plaintiff would be able to return to some physical work, adding: “We were trying to send him on light and restricted work … But I used to try and persuade him to go ahead and do some sort of light work, because I thought he was fit for light work.”[6]
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the incident on 4 June 2004 the plaintiff was able to carry out heavy and
strenuous physical work as a concreter, and that after the incident, because of

Mr Adams argued forcefully that Dr Asthana’s evidence revealed that before accept that the evidence of Dr Asthana, and indeed the weight of the medical opinion, is that the plaintiff is no longer able to perform heavy physical work of the kind he was performing before June 2004. I accept that the evidence of Dr Asthana was that the plaintiff has pain caused by the physical injuries he identified. But Dr Asthana’s evidence was that the plaintiff’s presentation of his pain and disability was significantly contributed to by a psychological reaction. He was unable to say to what extent the pain and disability described by the plaintiff was caused by an injury to his spine caused by an incident at his employment on 3 or 4 June 2004, and to what extent it was caused by the psychological reaction, save to say that the latter contributed significantly.

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The plaintiff’s case was made yet more difficult by the evidence of Mr Ian Jones, the orthopaedic surgeon, to whom he had been referred for treatment. He attended Mr Jones on three occasions, 20 July 2004, 12 July 2005 and 18 July 2006. The account of the injury that Mr Jones obtained was that in June 2004 the plaintiff was lifting some heavy steel mesh when his left shoulder became painful, but he acknowledged that the “exact details of the event were limited because of his poor English.” On the first occasion that the plaintiff attended Mr Jones on 20 July 2004, he “presented with complaints of pain in his left shoulder” and the examination by Mr Jones was of the plaintiff’s left shoulder. X-rays of the left shoulder appeared normal apart from some mild osteoarthritis involving the left acromioclavicular joint. Mr Jones recommended continuance of physiotherapy and anti-inflammatory medication, and an injection into the joint if the treatment failed to resolve the symptoms.

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A year later, on 12 July 2005, when the plaintiff was again referred to Mr Jones, he complained of pain in the left shoulder, neck and lower back. X-rays dated 9 August 2004 of the lumbar spine revealed chronic degenerative changes at L2/3, L3/4 and L5/S1 facet joints. A CT scan dated 9 September 20004 revealed slight L5/S1 bulging but no neurological involvement, and severe facet joint disease. Mr Jones recommended conservative treatment with analgesic or anti-inflammatory agents.

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After a further year, on 18 July 2006, when the plaintiff attended Mr Jones on the third occasion, his pain in the left shoulder, lower back, and neck had not improved. He was taking Tramal for back and left shoulder pain and had
recently commenced attending the Western Hospital for treatment. As on the
previous occasion Mr Jones considered that his clinical examination of the
plaintiff was made more difficult (“clouded”) by what he perceived to be
“voluntary limitation” of movements by the plaintiff. X-rays of the cervical spine
dated 28 November 2005 revealed marked narrowing of the C5/6 and C6/7
levels. Ultrasound and x-rays dated 21 June 2006 revealed mild degenerative
changes affecting the left acromioclavicular joint, small partial thickness tear
of the articular side of the mid left supraspinatus tendon and mild left bicipital
tendonosis. The possibility of injection into the shoulder was discussed.
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degenerative disease of the cervical spine, advanced degenerative disease of
the lower back superimposed on an L5 spondylosis, and mild arthritis of the
left acromioclavicular joint with some slight tearing and possible degeneration
in the tendons of the left shoulder. He continued to recommend conservative
treatment. He considered there to be “a marked functional element” in many

Mr Jones diagnosed the plaintiff as suffering from constitutionally based in the long term and slowly deteriorate with advancing years. In his opinion the plaintiff was unfit for his former work as a labourer and due to his lack of English, had limited ability to obtain other employment.

33

Another year later, in July 2008, at the plaintiff’s request, Dr Asthana referred him to another orthopaedic surgeon, Mr Brian Barrett. In his letter to Dr Asthana dated 29 July 2008, Mr Barrett reported that he found the plaintiff “very difficult to assess.” He concluded by stating:

[2]             t 49-50
[3]             t 50.
[4]             t 55.
[5]             t 59, 66.
[6]             t 66.
I consider this man is grossly exaggerating his symptoms and spinal stiffness, out of keeping with the radiological features, making clinical assessment very difficult. He undoubtedly has an L5 level bilateral spondylolysis, and some modest disc bulges at the two lower lumbar disc levels, plus generalised degenerative changes in his cervical spine, and would be most unwise to attempt a return to his previous heavy physical work, but that is about as far as I would be prepared to go.

Mr Barrett did not express an opinion concerning any role played by
the June 2004 incident on the lumbar spondylolysis, the disc bulges or
the degenerative changes he diagnosed.

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disease affecting the neck and the lower back.[7] He described the
[7]             t 114.
In viva voce evidence Mr Jones confirmed his diagnosis of degenerative meaning that it was due to the simple ageing of the spine.[8] With regard to the lower back he diagnosed advanced degenerative disease superimposed upon L5 spondlyolistheses, a pre-existing complaint for many years in the lumbar spine.[9] In his opinion, the incident in June 2004 did not cause an injury to the plaintiff’s low back, and did not have an impact on the plaintiff’s pre-existing degenerative disease in the lumbar spine and cervical spine.[10] He also considered that the plaintiff was “grossly exaggerating his symptoms” and that they were “out of keeping with the radiological features.”[11]
[8]             t 115, 117.
[9]             t 117.
[10]           t 123-124.
[11]           t 120.
35        While Mr Jones considered there to be a significant functional element in the plaintiff’s presentation, and that he exaggerated his symptoms, he was in no doubt that there was a physical basis for the plaintiff’s pain in his low back, his

neck and his left shoulder.[12] He considered that he was unfit for his former
employment as a labourer due to the condition of his lower back particularly,
his neck to a lesser degree, and his left shoulder to a minor degree. He said:
I think that this man would not be able to undertake any physical-type employment where there would be any requirement to bend or lift anything other than two or three kilograms, principally – maybe five kilograms – because of his back. Because of his neck, he may be limited in terms of a job such as a forklift driver or possibly a driver where there were extremes of neck movement. His left shoulder would impact minimally, unless he was doing some extremely heavy job using the arm in particular in an overhead capacity. But for below shoulder height, I don’t think his left shoulder would impact upon his ability to work.
Could he drive a taxi? He could drive a taxi, yes. If he has to lift cases in and out of boots and stuff like that, I’m not sure whether he could manage that.[13]
[12]           t 117-118, 121.
[13]           t 122

36 In re-examination, Mr Jones insisted that when he first saw the plaintiff on 20 July 2004 his complaint concerned his left shoulder, and that it was only when he saw him subsequently that it became evident to him that “his neck and his back were more of an issue than the shoulder.” Asked to assume that the plaintiff had fallen while carrying reinforcing steel mesh and suffered neck and back pain thereafter, Mr Jones said: “Given the changes in the x-rays that I have been provided with, they have the capacity to aggravate the degenerative changes. That’s all I could say.”[14] In other words, he considered that there was a possibility of an injury having occurred in the form of an aggravation of degenerative changes. However, on the basis of having clinically examined the plaintiff as a treating orthopaedic surgeon on three occasions in 2004, 2005 and 2006, and the history given by the plaintiff and his account of his symptoms, his opinion was that the plaintiff’s physical symptoms in terms of pain and possibly some stiffness, albeit exaggerated and influenced by a functional overlay, were due to a degenerative condition of the lumbar and cervical spine, and a degenerative process in the left acromioclavicular joint, and the incident in June 2004 had no impact on the pathology of the lumbar and cervical spine.
[14] t 124-126

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application cannot succeed. The firm opinion of Mr Jones that the June 2004
incident had no impact on the degenerative disease of the plaintiff’s spine is
perhaps surprising, and it does seem to me to be more probable than not that
some aggravation of the pre-existing condition occurred in that incident. But
having regard to the lack of clarity as to the nature of the physical incident,
whether it was a lift as Dr Asthana recorded, a twist and not a fall as Mr Jones
insisted he was told,[15] a lift of mesh blown by wind as Mr Marshall recorded
on his first examination on 12 January 2005, and having regard to Dr
Asthana’s diagnosis of soft tissue injuries and his inability to distinguish pain
and restriction caused by physical injury from the significant contribution of
psychological reaction, and to Mr Jones’ opinion that while the plaintiff had
pain from his degenerative disease, the incident had no impact on that and

Having regard to the evidence of Dr Asthana and Mr Jones, the plaintiff’s to form a judgment concerning the nature of the impairment caused by some aggravation of the pre-existing spinal condition, or of the consequences of that impairment.
[15]           t 125
38        The medico-legal opinions obtained some years later cannot overcome the difficulty in the plaintiff’s case raised by the evidence of his treating doctors. Mr Leitl did not assess the plaintiff until 12 September 2008, and later again on 3 July 2009. He diagnosed aggravation of cervical and lumbar spondylosis

and a L4/5 disc prolapse each without evidence of radiculopathy and a tear of
the left shoulder cuff. In his opinion the heavy nature of the plaintiff’f work
duties and specifically the injury of 3 June 2004 resulted in the conversion of
previously asymptomatic neck and lumbar spine conditions and produced a
tear in the left rotator cuff.
39        Professor Myers, who assessed the plaintiff on 23 April 2009, also diagnosed aggravation of pre-existing previously asymptomatic degenerative disc disease and spondylosis in the cervical spine and lumbar spine, and tendonitis and rotoator cuff tear of the left shoulder, which he considered was caused by a fall on 3 June 2004.
40        Mr Brearley assessed the plaintiff on 1 June 2009. He diagnosed mechanical neck pain due to injury to the cervical intervertebral discs and other supporting soft tissue structures of the cervical spine; aggravation of pre-existing degenerative disc changes in the lumbar spine and injury to the L4/5 disc which is prolapsed causing continuing mechanical lumbar back pain; small partial thickness tear of the supraspinatus portion of the left rotator cuff with the development of chronic sub-acromial bursitis. He considered these injuries to have been caused by the 3 June 2004 incident.

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years after the alleged event. In so far as the opinions differ from those of Dr
Asthana and Mr Jones, it is the opinions of Dr Asthana and Mr Jones which
should be accepted. Dr Asthana has been the plaintiff’s treating doctor since
before the incident in June 2004, has examined the plaintiff on numerous
occasions and has had the greatest opportunity by far to evaluate the plaintiff
and his symptoms. Mr Jones has been the plaintiff’s treating specialist and he
These assessments are based upon examinations carried out four or five and again in each of the two succeeding years.
42        It is unnecessary to carefully analyse the reports of Mr Marshall who examined the plaintiff for the defendant on five occasions, on 12 January 2005, 12 May 2005, 22 September 2005 and 7 July 2009. He initially diagnosed a simple soft tissue injury involving a strain of the rotator cuff of the left shoulder and a muscular injury to the supraspinalis muscle on the left side of his back, with “a considerable non-organic component” to his symptomatology. He concluded finally that while the plaintiff had some age- related degenerative changes in the lumbar and cervical spine, he had not sustained any injury during his employment and he considered there was no physical reason why he would not be completely capable of resuming his pre- injury employment. This last opinion is contrary to the evidence of Mr Jones and Dr Asthana and I do not accept it.
43        One further matter merits comment. While I derived little assistance from much of the surveillance film shown, film taken on 22 September 2005 showed the plaintiff walking for some distance and time around the city, at times quite briskly, and without any apparent sign of discomfort or limitation. On that day he attended Mr Marshall. His complaints to Mr Marshall of “getting worse”, of having back pain that had spread to his entire left leg with pins and needles in the leg, and of being able to “do nothing” and unable to “move at all”, appeared to be inconsistent with the movement shown on the film and tending to support the suggestion of exaggeration.
44        In my view it is more probable than not that in an incident in the course of his employment by the defendant on or about 4 June 2004 the plaintiff suffered some aggravation of a pre-existing degenerative condition of his cervical and lumbar spine. However, I am not satisfied that the consequences of the impairment of the function of the plaintiff’s spine caused by this injury can be fairly adjudged to be very considerable. Consequently, I am not satisfied that the plaintiff sustained a serious injury.
45        Accordingly, leave is not granted to the plaintiff to commence proceedings for damages for either pain and suffering or for pecuniary loss.

(1)	soft tissue injury of the cervical spine;
(2)	tendonitis and capsulitis of the left shoulder with slight effusion in

24	incident on 3 or 4 June 2004, but stated that they “are related to the type of work he does.” This somewhat equivocal statement was amplified further by Dr Asthana stating “it is not possible to determine what the nature of the underlying medical problem was. A psychological trauma has occurred which is significantly contributing to his overall presentation. He has been extensively treated both by his psychiatrist and psychologist. His response	Dr Asthana did not state in his reports that these injuries were caused by the psychological barrier to do any type of light work was too strong.” While Dr Asthana considered that the plaintiff has pain in the cervical and lumbar spine, as well as the left shoulder, Dr Asthana also considered that a psychological reaction was contributing significantly to the plaintiff’s account of the pain and limitation he experienced, and he was unable to determine the nature of the plaintiff’s underlying medical problem.
25	impairment of the spine and consequences of that impairment both in terms of
An evaluation must be made of the injury to the plaintiff’s spine and the Asthana, the principal treating doctor, as to the cause of the plaintiff’s pain and limitation, and his opinion that a psychological reaction contributed significantly to the symptoms and limitation described by the plaintiff, presents a major difficulty for the plaintiff’s case.
26	the plaintiff regularly over a five year period and said that the plaintiff complained of pain in different parts of his body. In cross-examination he said: “He is an uneducated man and he will come and tell me at that time where the pain was. So practically if you see his story during all these years, that he did have pain in every part of his body and he would keep complaining
Dr Asthana’s viva voce evidence did not differ from his reports. He has seen during all these periods he has practically complained of most of the pain everywhere and he was a concreter by profession, so maybe he was getting pain everywhere.”[2] Dr Asthana agreed with the advice he received from the rehabilitation doctor, Dr Thomas, to whom he had referred the plaintiff, that the plaintiff “presented a picture of excessive disability” and that “it was difficult to know the reasons for his overall restrictions.”[3] He agreed that while he could see that psychologically the plaintiff was not prepared to work, he could find no physical explanation for his continued severe level of disability over the last five years.[4]
27	Dr Asthana was shown surveillance film of the plaintiff taken on 23 March 2005 and 29 March 2005. He agreed that what he saw of the plaintiff’s movements on the film was inconsistent with the plaintiff’s presentation to him of his lumbar spine movement, his left upper limb movement, and his neck movement.[5] He also considered that the plaintiff would be able to return to some physical work, adding: “We were trying to send him on light and restricted work … But I used to try and persuade him to go ahead and do some sort of light work, because I thought he was fit for light work.”[6]
28	the incident on 4 June 2004 the plaintiff was able to carry out heavy and strenuous physical work as a concreter, and that after the incident, because of
Mr Adams argued forcefully that Dr Asthana’s evidence revealed that before accept that the evidence of Dr Asthana, and indeed the weight of the medical opinion, is that the plaintiff is no longer able to perform heavy physical work of the kind he was performing before June 2004. I accept that the evidence of Dr Asthana was that the plaintiff has pain caused by the physical injuries he identified. But Dr Asthana’s evidence was that the plaintiff’s presentation of his pain and disability was significantly contributed to by a psychological reaction. He was unable to say to what extent the pain and disability described by the plaintiff was caused by an injury to his spine caused by an incident at his employment on 3 or 4 June 2004, and to what extent it was caused by the psychological reaction, save to say that the latter contributed significantly.
29	The plaintiff’s case was made yet more difficult by the evidence of Mr Ian Jones, the orthopaedic surgeon, to whom he had been referred for treatment. He attended Mr Jones on three occasions, 20 July 2004, 12 July 2005 and 18 July 2006. The account of the injury that Mr Jones obtained was that in June 2004 the plaintiff was lifting some heavy steel mesh when his left shoulder became painful, but he acknowledged that the “exact details of the event were limited because of his poor English.” On the first occasion that the plaintiff attended Mr Jones on 20 July 2004, he “presented with complaints of pain in his left shoulder” and the examination by Mr Jones was of the plaintiff’s left shoulder. X-rays of the left shoulder appeared normal apart from some mild osteoarthritis involving the left acromioclavicular joint. Mr Jones recommended continuance of physiotherapy and anti-inflammatory medication, and an injection into the joint if the treatment failed to resolve the symptoms.
30	A year later, on 12 July 2005, when the plaintiff was again referred to Mr Jones, he complained of pain in the left shoulder, neck and lower back. X-rays dated 9 August 2004 of the lumbar spine revealed chronic degenerative changes at L2/3, L3/4 and L5/S1 facet joints. A CT scan dated 9 September 20004 revealed slight L5/S1 bulging but no neurological involvement, and severe facet joint disease. Mr Jones recommended conservative treatment with analgesic or anti-inflammatory agents.
31	After a further year, on 18 July 2006, when the plaintiff attended Mr Jones on the third occasion, his pain in the left shoulder, lower back, and neck had not improved. He was taking Tramal for back and left shoulder pain and had
recently commenced attending the Western Hospital for treatment. As on the previous occasion Mr Jones considered that his clinical examination of the plaintiff was made more difficult (“clouded”) by what he perceived to be “voluntary limitation” of movements by the plaintiff. X-rays of the cervical spine dated 28 November 2005 revealed marked narrowing of the C5/6 and C6/7 levels. Ultrasound and x-rays dated 21 June 2006 revealed mild degenerative changes affecting the left acromioclavicular joint, small partial thickness tear of the articular side of the mid left supraspinatus tendon and mild left bicipital tendonosis. The possibility of injection into the shoulder was discussed.
32	degenerative disease of the cervical spine, advanced degenerative disease of the lower back superimposed on an L5 spondylosis, and mild arthritis of the left acromioclavicular joint with some slight tearing and possible degeneration in the tendons of the left shoulder. He continued to recommend conservative treatment. He considered there to be “a marked functional element” in many
Mr Jones diagnosed the plaintiff as suffering from constitutionally based in the long term and slowly deteriorate with advancing years. In his opinion the plaintiff was unfit for his former work as a labourer and due to his lack of English, had limited ability to obtain other employment.
33	Another year later, in July 2008, at the plaintiff’s request, Dr Asthana referred him to another orthopaedic surgeon, Mr Brian Barrett. In his letter to Dr Asthana dated 29 July 2008, Mr Barrett reported that he found the plaintiff “very difficult to assess.” He concluded by stating:

[2009] VCC 1351

18 September 2009