Clegg v Peninsula Group Australia Pty Ltd
[2011] VCC 698
•20 June, 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-10-02794
| DAVID MARK CLEGG | Plaintiff |
| V | |
| PENINSULA GROUP AUSTRALIA PTY LTD | Defendant |
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| JUDGE: | Cohen |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 31 March 2011, 1, 4, 5, 6, 7 April 2011 |
| DATE OF JUDGMENT: | 20 June, 2011 |
| CASE MAY BE CITED AS: | Clegg v Peninsula Group Australia Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 698 |
REASONS FOR JUDGMENT
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Catchwords: Serious injury application – s.134AB Accident Compensation Act 1985; Leave sought in respect of pain and suffering and loss of earning capacity; reliance on part (a) and part (c) of definition of “serious injury”.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W R Middleton SC | Zaparas Lawyers |
| with Mr B Chessell | ||
| For the Defendant | Mr M Titshall QC | Wisewould Mahony Lawyers |
| with Mr P Gates |
1 Mr David Clegg seeks leave to bring proceedings for damages in respect of injuries he suffered arising from his employment with the defendant. To obtain leave he must satisfy the Court that he suffered a “serious injury” within the definitions and requirements of s.134AB Accident Compensation Act 1985 (“the Act”). He relies on both part (a) and part (c) of the definition of “serious injury”, and seeks leave in respect of both pain and suffering and pecuniary loss damages.
2 Mr Clegg claims that during the course of his employment with the defendant as a motor mechanic he suffered injury to his lower back, on 30 August 2006 and again on 21 November 2006, which has resulted in serious permanent impairment of the function of his lower back[1]. To meet the test for this basis of his application, he must satisfy the Court that the consequences to him of this injury, when judged by comparison with other cases in the range of possible impairments of a body function[2] can be fairly described as being more than significant or marked, and as being at least very considerable.[3]
[1] Under part (a) of definition of “serious injury” in s 134AB(37)
[2] Sub-section 134AB(38)(b).
[3] Sub-section 134AB(38)(c).
3 Mr Clegg also claims that, as a result of the injury to his lower back, he suffered psychiatric injury which constitutes severe permanent mental or behavioural disturbance or disorder.[4] His case is that he has suffered a major depressive disorder with “soft bipolar tendency” – or “bipolar disorder, category III”. To satisfy this basis of his application, he must satisfy the court that the consequences to him of this injury when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders must be able to fairly be described as being more than serious, to the extent of being severe.[5]
[4] Under part (c) of definition of serious injury in s.134AB(37).
[5] Sub-section 134AB(38)(d).
4 The defendant disputes each head of the application. It argues:
(a)
that although there was some insult to the plaintiff’s lower back leading to complaint of pain at work, there was no frank discal or other significant injury to the spine, and the pain was from some musculo- ligamentous strain which is likely to have long since resolved;
(b)
that the plaintiff’s ongoing complaints of pain are influenced by his psychological condition, and he bears the onus of “disentangling” the consequences of that, which he has not achieved;
(c)
that if there are any lingering symptoms from whatever physical injury to his back he suffered at work, they do not have consequences that meet the test for “serious injury”, in that they are not more than significant or marked and at least very considerable, either as to pain and suffering or loss of earning capacity;
(d)
that any psychological condition from which he has suffered over the last few years or still suffers, does not result from any work injury but from extraneous causes;
(e)
that if he suffers from a work-related psychological condition its consequences do not meet the test of being “severe”, and in particular do not incapacitate him from work.
5 The evidence consisted of the documents set out in the attached schedule, and oral evidence from the plaintiff, his wife, his treating general practitioner Dr Garry McInerney, his former treating psychiatrist Dr Le Bas, and two medico-legal reporters, Mr Charles Flanc, general and vascular surgeon, and Dr Paul Kornan, consultant psychiatrist. Each of these witnesses had been required by the defendant to attend for cross-examination.
Plaintiff’s demeanour
6 As in most cases of this nature, the credibility and reliability of the plaintiff’s own evidence is very important, as not only the Court but also the doctors who have treated and examined the plaintiff, and whose opinions are in evidence, are all heavily dependent on the reliability of his account of the timing, duration and extent of symptoms, and their effects on his activities. In this case the defendant argues that there is a lack of objective evidence of physical injury to the plaintiff, making his own account even more critical, and that his account is totally unreliable.
7 Mr Clegg’s presentation in court as a witness did create some difficulty. He appeared at times frustrated, wary of cross-examination, and on a couple of occasions quite belligerent about it. He claimed inability to recall many matters relevant to his case, including many of the details to which he had previously sworn in affidavits – the first more than a year ago, and the second a month before the hearing.[6] This was after he had, at the start of his oral evidence, adopted those affidavits, after two amendments (one of which[7] in itself seemed curious in the overall context).
[6] Exhibit A.
[7] Amendment to paragraph 14 of Affidavit of 23 /2/10, by omitting words “or I said this just to irritate them”.
8 The defendant argues that the plaintiff was being deliberately evasive, is not to be believed that he could not recall as much as he claimed, and that I should put little reliance on his evidence of matters of which there was no independent or objective evidence.
9 The plaintiff’s counsel submit that he was being pedantic rather than deliberately evasive, and not deliberately lying or misleading.
10 There were times when he was taking a highly literal – or “pedantic” – approach to his answers, but my impression was not that he was being untruthful. There were times when he noticeably lost concentration. Indeed, he reached a stage after a full morning of cross-examination on the second day of hearing when it was clear to all present that he could not concentrate sufficiently to give any useful further evidence at that time.[8]
[8] Transcript (“T”) 78.
11 I also have taken into account the possible effect of his psychiatric condition and of medication on his memory and presentation. The plaintiff said that he has not been able to remember much since the time when he was taking both Efexor and Endep, which was shortly before an episode in late March 2009 in which his psychiatric condition reached a point which some have called a psychotic episode. He currently takes Cymbalta – 90 milligrams each morning – which he says lessens his concentration and memory.
12 The defendant argues that there is no evidence other than Mr Clegg’s own word that Cymbalta affects his memory and concentration. It is true that none of the psychiatric reports mentions the effect of this medication on his memory, but they do mention that it is being taken to that degree and has helped stabilise his depressive condition. Neither of the psychiatrists who were called for cross-examination was asked about its effect on his memory. However, each of the psychiatrists whose reports are in evidence – Drs Le Bas, Shvetsov, Kornan and Entwisle – variously note that he was speaking slowly, in a monotone, appearing wary and hesitant of questions, lacking recall, giving an account that was sparse and lacked spontaneity, and his responses being frequently equivocal and non-specific. The psychiatrists implicitly accept that the lack of recall and lack of spontaneity in answering is part of Mr Clegg’s psychiatric presentation, rather than deliberate equivocation or evasion.
13 For these reasons I have decided that I should not reject Mr Clegg’s own evidence as deliberately evasive. I have approached its reliability more warily than I would have done had he appeared more responsive in evidence, and I have on each relevant issue viewed it more carefully, and tested it against other evidence, before accepting the parts that I have.
Plaintiff’s personal background circumstances
14 Mr Clegg is now aged 44. He was born in the United Kingdom and left school after 11 years with an O level in woodwork and metal work. He commenced a course in building and architecture but ceased that after six months. He took up an apprenticeship in a garage, but left before completing it.
15 This was all against a background of an unsettled family situation. His father had left when he was a young child; his mother remarried but he had problems with his stepfather, and left home aged about 17. He has told psychiatrists of a period lasting about six months which they interpret as a major depressive episode when he was about 21. He did not obtain psychiatric treatment at the time. After that he achieved some reunion with his mother, and migrated with the family to Australia in 1987.
16 When he first came to Australia he lived in Sydney and obtained work doing pre-delivery on cars with a Ford distributor. He then moved to Melbourne and took up an arranged job as a mechanic in Frankston. Over the following decade or so he continued to work as a mechanic, moving between jobs a number of times, sometimes after only a few months and sometimes after three to four years. He commenced employment with the defendant on 28 March 2006, having previously worked some three and a half years at a Honda dealership.
17 Mr Clegg is married. He and his wife have a son whom I assume by now is aged nine. His wife has been a holistic masseuse for some 20 years, and is currently working about eight hours per week. She is hopeful of setting up her own practice to become fulltime, and is currently on the Newstart program. She also home schools their son.
18 Prior to commencing employment with the defendant, the plaintiff had experienced some back pain. In his application form for employment he ticked boxes indicating that he had suffered from “back injury” and “migraine”. He had told doctors of an incident in approximately 2004 when stepping onto his roof and feeling pain in his right leg which he described as right sciatica.
19 Dr Garry McInerney, whose practice he had attended since 2001, had a record of an attendance in July 2005 in which the plaintiff presented with right medial thigh pain and associated lumbar pain, and said that it had occurred about a year earlier when stepping onto a roof. On examination (in July 2005) there was no tenderness in the right leg, but was over the right lumbar facet joint. Dr McInerney had recommended a trial of physiotherapy, but had not seen fit to order x-rays, and thought that the pain in the right thigh was referred from the lumbar spine.[9] There was no further attendance on Dr McInerney until January 2007. Apparently Mr Clegg did attend a chiropractor at about that time in respect of his injury, but only for a limited period.
[9] T 167.
20 Mr Flanc’s opinion of this event was that it was likely that the pain was from the lumbar facet joints, rather than actual sciatica, as there was no evidence on subsequent scans of there ever having been disc impingement on the right sciatic nerve.
21 The evidence of the plaintiff was not challenged that he had worked for approximately four years as a mechanic at Travis Honda before starting with the defendant, and there is no suggestion that what he disclosed as a previous back injury had interfered with his ability to work or was of any ongoing concern or requiring treatment of any type for the 12 months prior to the injuries the subject of this application.
22 There is no evidence of any underlying psychological condition or vulnerability interfering with his general lifestyle or ability to work in the few years prior to the injuries the subject of this application.
The injury and subsequent events
23 Mr Clegg describes an incident on 30 August 2006 when as he lifted a rear wheel off a four-wheel drive vehicle he felt a strain in his lower back. He went to the service manager the next day and it was entered in the Register of Injuries.[10] As the discomfort continued, he attended a Dr Leonid Gankin at the Beach Street Family Medical Centre where he was prescribed painkillers and given a week off work to rest. He says that at that doctor’s suggestion, he returned to the same chiropractor whom he had seen in mid-2005. He says that he took a few further days off work because of back pain but that he took them as annual leave.
[10] Exhibit N – entry for 31/08/06. dated 31/08/06
24 On 21 November 2006, when again servicing a four wheel drive and lifting a heavy wheel, he felt a squashing feeling in his back, as if something had been compressed. He describes this as a feeling he had not felt before. He worked until the end of the day, but was unable to put the wheel back on the car, and needed the assistance of other technicians in the workshop to complete the service. The incident was reported.[11] Due to worsening back pain he went again to the Beach Street Family Medical Clinic, on 27 November 2006, where he saw a Dr Andrianov, and was put off work for about a week. He continued to see the chiropractor he had been attending, but otherwise worked until the Christmas holidays hoping that his back would get better.
[11] Exhibit N – Register of injuries, entry for 21/11/06, dated 27/11/06
25 He returned to work on 2 January 2007, when he says his pain had felt a bit better but it soon worsened. He then went to his previous long-term general practitioner, Dr McInerney at the Long Beach Medical Centre, on 18 January 2007.
26 I accept Mr Clegg’s explanation for going to the Beach Street Family Medical Clinic, namely that it “bulk-billed”, and I further accept his explanation for returning to Dr McInerney being that he did not feel that Dr Andrianov understood the extent of his back pain. I do not consider that this was a situation of “doctor shopping” nor seeking out a doctor who would be more sympathetic. He had been attending Dr McInerney since 2001. Having heard Dr McInerney cross-examined I was impressed with him as a competent general practitioner, attentive to Mr Clegg as a long-term patient, but not merely supporting what his patient wanted, and taking a practical and sensible approach to treatment options and to the balance between the patient’s complaints and realistic options. I have no reason to discount Dr McInerney’s role or opinions in relation to his patient’s conditions.
27 On 18 January 2007 when Mr Clegg attended, Dr McInerney took the history of his having had some chiropractic therapy after the 2005 visit, which had helped his pain. Mr Clegg told Dr McInerney that he had suffered a further exacerbation four months previously, while lifting a wheel off a vehicle at work, and he described the pain as being in the right lumbar, right lateral thigh and right groin areas, and it had been helped by chiropractic therapy. On examination there was minimal restriction of lumbar spine movement, but pain with hip rotation. Dr McInerney arranged x-rays of the lumbar spine and subsequently of the right hip. Due to the x-ray report this was followed by an MRI. Anti-inflammatory medication was prescribed which produced some improvement in pain, and on 5th February, Dr McInerney recommended ongoing physiotherapy and a return to work, but avoidance of work on four wheel drives.
28 Mr Clegg took some annual leave, and returned to work in late February. However, on 5 March 2007 he presented to Dr McInerney with a flare-up of lumbar pain. He also described bilateral knee and ankle ache for which Dr McInerney obtained blood tests to exclude inflammatory arthritis. Dr McInerney’s conclusion was that Mr Clegg had pain linked to joint or disc problems in the lumbosacral spine, and he recommended further physiotherapy and anti-inflammatory medication. On Dr McInerney’s certification, Mr Clegg returned to modified duties on 24 March 2007, and gradually increased his hours, but he could only cope with light duties.
29 On 23 May 2007, Mr Clegg presented with depressive symptoms. He described long-term problems attributed to childhood experiences, but that frustrations and stresses associated with his work injury had triggered the exacerbation. He was prescribed Efexor, and referred to a clinical psychologist, Ms C. Burnham.
30 Mr Clegg returned to work on light duties in early June 2007, but did not last more than a few days due to back pain. He again returned to work in late July, working four hours per day in spare parts stocktaking and light servicing of vehicles. His hours were increased to six per day in late August 2007, but by this stage his depression had continued with mood swings to a point where in late August 2007 Dr McInerney referred him to a psychiatrist, Dr James Le Bas.
31 Dr Le Bas took a history that in February 2007 he had become acutely suicidal, being in a lot of pain and upset about his inability to work, and feeling that he was at the end of the line. Dr Le Bas took a history of mood variability since his teens, and that at age 21 Mr Clegg experienced a major depressive episode lasting about six months, when he was on unemployment benefits and living alone and his mother not speaking to him as he had been disenfranchised from the family. He was told that Mr Clegg had taken no treatment at that stage and the situation eventually improved by reuniting with his mother and family and joining them migrating to Australia. The history taken included marijuana use until approximately three months prior to first being seen on 30 August 2007.
32 Dr Le Bas considered that Mr Clegg’s mood was clearly triggered by his work and back situation which had affected him financially and in familial relationships. His long history of mood variability raised the possibility of a “soft bipolar condition”. He considered that he had had his second Major Depressive Episode (the first being at age 21). This episode appeared to be responding to medication, increased in dosage in June, a return to work, and the initiation of counselling. Dr Le Bas advised continuation of a graded return to work, continuation of the medication for around 18 months, continuation of counselling treatment, and to remain abstinent from marijuana. He saw Mr Clegg on three subsequent occasions in September, 2007, by the end of which he considered that with those recommendations the plaintiff was stable enough to be returned to the ongoing care of his general practitioner.
33 In mid-September 2007 Mr Clegg was transferred at work to the pre-delivery department, and a week later his hours were increased to 7.6 per day[12]. His duties there were to check out new cars, finish them by installing any extras, and to test drive them. He calls it light work, which he could and did do, but with ongoing back pain, and sometimes needing assistance with heavier tasks. He continued in that work until on 6 August 2008 he was retrenched.
[12] Exhibit 2, paragraph 11
34 At that stage he says he had pain in his neck, right shoulder and middle back as well as pain in lower back and right thigh. He had continued to see a clinical psychologist, Ms Burnham, for at least 12 months, but I am unclear as to whether that continued at the time of his retrenchment.
35 Although he was contacted by a personnel management company to assist him in finding alternative work, none was found, and his psychiatric condition worsened. In November 2008, Dr McInerney prescribed Endep as well as Efexor, but the plaintiff’s mental health worsened, he became hyperactive and reclusive, and engaged in worrying obsessive behaviour which caused his wife much concern. She set out her concerns in a letter to Dr McInerney.[13] Mr Clegg’s mental health reached a point in late March 2009 when, at the instigation of his wife, a “CAT” team was called to his home. As a result of that he undertook to attend at Peninsula Community Mental Health Service, and did so in early April where he saw Dr Ojo. Dr Ojo convinced him that he might have a psychological condition, but Mr Clegg was still not keen to undertake continuing psychological counselling. Dr McInerney also referred him back to Dr Le Bas.
[13] Exhibit 1.
36 Dr Le Bas saw him on 27 April 2009. He noted that Mrs Clegg had had concerns at mood swings and possible psychotic symptoms with aggression, and that this had led to her leaving home with their son. He concluded that the treatment with Amitriptyline had tipped him into a more significant hypomania. However, that medication had been ceased immediately after the incident, and Mr Clegg’s mental state by the time of examination, was casual and demonstrating enjoyment and amusement which was said to be “euthymic”, explained as “a middle of the road state” which is the normal state, but Dr Le Bas could not be sure whether it may have been the tail end of hypomania. Dr Le Bas reported to Dr McInerney that in his view of the recent events, Mr Clegg qualified as Bipolar III, through anti-depressant triggered hypomania.[14] Dr Le Bas thought Mr Clegg lacked insight into that recent episode. However, as by then he and his wife were having some counselling, and the offending medication had been ceased, Dr Le Bas thought him stable enough to be referred to the care of his general practitioner, with a suggestion that he continue Venlafaxine, 150 milligrams daily, and avoid usage of Tricyclics.
[14] T 196, lines 29-31.
37 Mr Clegg remained suspicious of medication after the March 2009 episode, but after a medico-legal examination by Dr Paul Kornan in January 2010, Dr Kornan felt strongly enough about the need for resumed psychiatric treatment that he wrote to Dr McInerney directly with his recommendations. As a result, Dr McInerney discussed with Mr Clegg his psychological state, and referred him in April 2010 to a new psychiatrist for treatment, Dr Shvetsov, as Dr McInerney believed that Dr Le Bas had retired from private practice. Mr Clegg has attended Dr Shvetsov ever since. Dr Shvetsov prescribed new medication, introducing Cymbalta, initially 60mg per day which was raised to and remains on 90mg.
38 Mr Clegg has not undertaken any employment since his retrenchment in August 2008. He attended interviews with CES but no arrangements followed for job interviews.
39 He lives with his wife and eight year old son. He says and I accept, that he feels pain in his low back all of the time, which he describes as a burning and tight feeling, varying in severity depending on his activities, and at times spreading into his hips and outer thighs. He also says (in his first affidavit) that it spreads into his upper back and between the shoulders, but I do not take that into account as he told Mr Flanc it had ceased by mid 2009. Dr McInerney thought it could be fibromyalgia and consistent with his depression, but I have not regarded it as of significance in evaluating the consequences of the compensable injuries in this case.
40 He cannot sit for more than 15-20 minutes without increased discomfort in his back. My observations of him in the witness box were that from time to time he became uncomfortable to the degree that his concentration was distracted. Prolonged standing causes increased back pain, and he needs to keep moving. He walks regularly on his doctor’s recommendation, but finds uneven ground particularly uncomfortable. Bending or twisting his back increases pain. He can still drive, but not for long without developing pain. He does drive himself to see his psychiatrist - that is from Frankston to Dandenong. He conceded that he has travelled by car as a passenger from Frankston to Hayfield near Sale to visit a friend, whether being picked up by the friend, or sharing the driving with his wife.
41 He used to do about 90% of the gardening at home. Now he does some, such as mowing the lawns but does the front and back on different days, and takes his time, and cannot dig.
42 He was cross-examined at length about the considerable physical activity he undertook in the summer of 2009 when he dismantled a carport and moved the materials to reconstruct as an awning at the back of his house. This questioning stemmed from mention by his wife in a letter to his doctor[15] of her concern about much of his behaviour, including his moving the wooden carport through the heat, and “he saw nothing odd in being up [on] the roof of the car port at midnight in the dark”. It is clear from his own description of what he did that it required much more physical exertion and flexibility than he says he can do on a normal basis without bringing on severe pain. I am uncertain whether even now he realises that it reflected manic behaviour, in the lead up to her calling a “CAT” team to attend him in late March 2009.
[15] Exhibit 1
43 I accept that he has significant problems with concentration and memory, whether or not influenced by his present medication. I rely for that not only on his own evidence but also on my observation of him over more than a day in the witness box, on his wife’s affidavit evidence, and on her description to his doctor in March 2009, and the observations of doctors, both those treating him and during medico-legal examinations.
44 He has what he calls a lifelong passion for bikes. Before his injury he had about 8 or 9 bikes, which he would work on to improve them, buying others for parts. Some he would ride to and from work, and recreationally. He still works on some at home, and has ridden a little since his injury but not nearly as far nor as often as he used to do to and from work. He also used to “tinker” with computers, and had a number of old ones in his garage, but does not do much of that now. Although he can use a computer, I take this interest to have been in their physical construction rather that proficiency in their use as it was interpreted in a vocational report.
45 I accept that he feels very frustrated by his incapacity to return to work and also by his incapacity in his role as husband and father, and that there has been much tension as a result in the family, including a temporary separation in April 2009. His inability to play with his son, make and repair toys for him, and his son’s observing his aberrant behaviour from his psychiatric condition, play heavily on him. He stays at home most of the time. He sleeps poorly as he cannot get comfortable. He gets tired during the day and will nap, but still disturbed by pain. He feels depressed and his wife describes him as very anxious.
46 He continues to see his general practitioner, Dr McInerney for prescriptions and certificates. His workcover payments ceased last year and he has now been granted a disability pension. Since April 2010 he has continued to attend a psychiatrist, Dr Shvetsov, at times fortnightly but now about once each two months.
47 His current medication is Cymbalta, 90mg per day, for his psychiatric condition, and Panadol Osteo and Voltaren daily for the back pain, all prescribed by Dr McInerney.
Medical opinion
48 Dr McInerney, as the plaintiff’s general practitioner, outlined the course of his treatment since 18 January 2007. In March 2007 he obtained a CT scan which reported minor right facet joint disease at L5 level, which he acknowledged showed no severe disc disease but he thought may reflect referred pain from that facet joint[16]. He agreed that there have never been scans indicating a disc problem as the source of Mr Clegg’s symptoms.
[16] T 171 lines16-22
49 He referred Mr Clegg to Mr Brian Barrett, orthopaedic surgeon in October 2009, but after an MRI of the lumbar spine revealed no frank disc injury, ongoing treatment was to consist of anti-inflammatory and pain medication.
50 In relation to Mr Clegg’s psychiatric condition, Dr McInerney had not known of the childhood or early adulthood problems before Mr Clegg developed depression from about May 2007. He attributed Mr Clegg’s depressive symptoms to his pre-occupation with his pain levels and incapacity from his back injury. Due to description of mood swings, he first referred him to Dr Le Bas, psychiatrist, who had advised continuation of his medication and counselling.
51 Dr McInerney agreed on cross-examination that retrenchment had probably influenced the worsening condition in late 2008. He was very concerned by the content of the letter from Mrs Clegg in March 2009, but had not known of cannabis use before that. He said he has only one clear reference to marijuana in his notes and that is last year – 2010. He agreed that he had not known the extent of Mr Clegg’s marijuana use as put to him, but his opinion was that Mr Clegg’s symptoms of low mood and lack of motivation are of depressive illness rather than marijuana use.
52 After the CAT team episode and referral back to Dr Le Bas, Dr McInerney had communicated with Dr Le Bas and accepted his recommendation to cease the Anatryptoline which he had prescribed as an old fashioned anti-depressant and for muscular pain, as well as Efexor, and accepted Dr Le Bas’ advice that that combination may have been the triggering factor for the episode.
53 Dr McInerney has been providing workcover certificates, which for more than the last year have certified him as fit for alternative duties. The doctor detailed what he meant by alternative duties – “no lifting greater than two kilos, no repeated bending or lifting. No sitting longer than 20 minutes; to work four hours a day on three days per week”[17]. That remained his opinion. He had reported recommending retraining to Mr Clegg, and does not recall him ever rejecting the idea.
[17] T 166, lines 6-15
54 Mr Brian Barrett, orthopaedic surgeon, saw the plaintiff on referral from his general practitioner in October 2009. On examination he found the plaintiff co-operative, to be moving fairly slowly with his back held stiffly, and lumbar movement moderately limited, particularly extension, and all produced low back pain radiating to the right buttock area. With the history of the work injury as given, his view was that a lower lumbar disc lesion of some sort had been sustained and ordered an MRI to investigate its severity and nature. After viewing the MRI results, he wrote to Dr McInerney[18] that he could not detect any sign of serious disc disruption or other pathological changes in the lumbar spine, and no frank evidence of lumbar disc disruption or any evidence of nerve root irritation or compression. He notes mild osteoarthritic changes in the posterior facet joints at the L4-5 level not out of the ordinary for someone who has worked as the plaintiff in the automotive industry. He said these results did not say that this patient has no lower backache, but the MRI eliminated any serious pathological cause for this symptom.
[18] Exhibit 6
55 Mr Charles Flanc, vascular and general surgeon, had examined and reported on the plaintiff in January and October 2010[19], and was called for cross- examination. Mr Flanc recorded a history generally consistent with what I have found except that only one injurious incident with the defendant was noted- in August /September 2006. On examination in January 2010, he found slight tenderness over the region of the right sacroiliac joint, some restriction in forward flexion, and lateral to the right associated with right sided low back pain, and some restriction on straight leg raising. He found no wasting of thighs or lower legs, and knee and ankle jerks were present. He obtained a history of pain between the shoulders from the work incident but that it had resolved months before the examination. He reviewed all radiological reports then available, and clinical notes and reports from the initial general practitioners, Dr McInerney, and a chiropractor.
[19] Exhibit C
56 Mr Flanc’s opinion in his first report was that the August 2006 incident was consistent with a sudden and severe aggravation of a pre-existing degenerative condition of the lumbar spine, and based on the October 2009 MRI he considered it to be an aggravation of pre-existing disc degeneration at the L4-5 level and possibly an aggravation of arthritis of the facet joints. He explained the aggravation as meaning that Mr Clegg developed much more severe pain in the low back than before the incident. He considered the pain in the right hip region as probably being referred from the lumbosacral spine. He considered that the incident at Nissan was a very significant aggravating factor and that current symptoms were still significantly related to this, notwithstanding any psychiatric factors. He did not think him fit for any work involving repeated bending, twisting or heavy lifting, permanently. He thought him theoretically physically capable of light sedentary part-time duties providing he could move around whenever his discomfort became severe.
57 On further examination in November 2010, Mr Flanc did not elicit low back tenderness on examination, but there was groin tenderness. He reviewed a recent MRI report of the lumbar spine, and medical reports from Messrs Barrett, Dooley, Hunt, Baynes, Cook, Kornan and Entwistle. He noted that the 2009 MRI of the lumbar spine had referred to a possible mild degeneration at the L4/5 disc whereas the 2010 MRI report considered that the disc looked normal. His view was that whether or not there is degeneration at the L4/5 disc, the injury or injuries in 2006 resulted in an aggravation of the pre-existing degenerative changes at the L4/5 level in the sense that they became symptomatic and in his opinion the continuation of the lower back pain was still significantly related to the underlying degenerative condition although his symptoms have also probably been influenced by non-organic probably psychiatric factors. He could not find any objective neurological abnormality accounting for pain in either leg, nor evidence of radiculopathy, and thought it was probably referred pain from the lower back. He maintained his opinion that the plaintiff’s lumbar spine condition would prevent him from coping with work involving repeated bending, heavy lifting or prolonged standing. He thought vocational options suggested of education teacher, or customer service manager were probably beyond his capacity, and it was likely he had no realistic work capacity even excluding his psychiatric symptoms.
58 On cross-examination Mr Flanc conceded that facet joint arthropathy can develop over many years, would not be unusual in a man of 43, and may remain asymptomatic. He explained his conclusion that symptoms here have probably been influenced by psychiatric factors, as due to the extent of symptoms and severity of pain in comparison with the extent of radiological evidence, but still thought the prognosis for improvement was poor due to the duration of pain. He could not say whether Mr Clegg would have been able to continue working in pre-delivery checking of vehicles had he not been made redundant, but noted that while working there for 11 months he had continued to attend his GP for pain and anti-inflammatory medication indicative of having ongoing pain, and thought that there would have been further flare-ups. His conclusions about being unlikely to be retrained for educational work were based on his lack of sitting tolerance, and his educational history of leaving school at 16, and not completing a building course.
59 On re-examination Mr Flanc said that although theoretically he has capacity for light sedentary duties providing he could move around whenever his back symptoms became worse, it would only be on a part time basis and even then he would expect flare ups[20].
[20] T 157-8
60 Professor Mark Cook, neurologist, examined and reported on the plaintiff for the plaintiff’s solicitors, in November 2009.[21] He was given a history of injury to the back in mid 2004, consulting his doctor in mid 2005 with symptoms in his lower back and right leg, describing pain in his leg as involving the medial thigh radiating down to the feet, with physical therapies at that stage. Then, in October 2006, he felt something in his back “go” when lifting an over-sized four-wheel drive wheel, causing pain in his lower back and a little to the right accompanied by pain in the right thigh and groin which became more severe.
[21] Exhibit K.
61 Mr Clegg told Professor Cook of pain persisting, central in the lower lumbar region and constant, being an aching, burning pain aggravated by prolonged sitting or standing or bending. He described pain radiating across the right hip and intermittent tingling in his leg but not involving the foot. Depression was noted to have complicated his circumstances considerably and he was on therapy for that. He was using Panamax and Mersyndol occasionally, having previously used Endep and Efexor, but not anti-depressants at that time.
62 On examination, Professor Cook found him to be a clearly depressed man, who was not an especially good historian, but thought him to be providing his account directly and honestly. Professor Cook noted poor recollection of some of the fine details regarding the timing of the symptoms. He walked carefully, protecting the right leg, and avoided sitting still for long periods, and occasionally stood during the interview to relieve discomfort, but there was no wasting or atrophy in the legs and size and strength of calves was normal. Reflexes were abnormal – he could just elicit the right ankle jerk and the left was absent. Knee jerks and upper limb reflexes, however, were extremely brisk but movements were restricted. There was tenderness and spasm diffusely over the paraspinal muscles in the lumbar region. He noted the CT scan of March 2007 and MRI of 16 October 2009, and that neither showed any abnormality of relevance.
63 Professor Cook’s opinion was that Mr Clegg had suffered an injury initially in mid 2004 but, more significantly, in late 2006 when lifting a very heavy tyre. There seemed to be a radicular component to the symptoms, though the history was by then a little unclear. Physical examination demonstrated depressed ankle jerks and, in the absence of an alternative explanation for this, lumbar radiculopathy was the most likely cause. He thought the situation had become considerably complicated by depressive illness and then, in turn, had been aggravated by his being made redundant. The diagnosis was lumbar radiculopathy, probably from disc prolapse, though it was not demonstrable currently on the radiological studies. Professor Cook said that acute disc prolapses often recover and leave no residual signs of consequence on radiological studies but do leave neurological injury. He considered that there was evidence of neurological injury that could perhaps be further clarified through neurophysiological studies. He considered Mr Clegg currently not fit for work, either of his pre-injury type or alternative employment. Given his background skills, he thought it should be possible to arrange alternative duties provided they did not involve lifting or carrying items heavier than five to ten kilograms, or frequent bending or unusual positions. He felt adequate therapy for the depression would be an important component of this though. He thought ongoing therapy probably best through a pain management centre, and that no surgically remedial course was open. He felt the prognosis for complete recovery from his pain was low given the duration of symptoms so far, but it might be modified by effective therapy for his depressive illness. He was cautiously optimistic that in the long term there might be further improvement.
64 Mr Justin Hunt, orthopaedic and spinal surgeon, examined and reported on the plaintiff for his solicitors in October 2010.[22] He was given a history of onset of lower back pain approximately 12 months before the injury causing severe pain on 30 August 2006. The prior episode included trouble with sciatica for which there were five or six treatments with a chiropractor, and symptoms were said to have settled and did not cause any ongoing trouble. The incident on 30 August 2006 was described, the feeling of significant pain in the lower back. He had not ceased work immediately but attended at a local general practitioner. A further episode at work on 21 November 2006 again lifting an extra large wheel, attendance again at the medical centre and seeing Dr Andronov, and then pain worsening on his return to work after 2 January 2007 was disclosed. Mr Hunt was told of his then going to Dr McInerney, the time off work at stages in 2007, referral to a psychologist, Ms Burnham in May 2007, and his employment eventually being terminated on 6 August 2008.
[22] Exhibit 11.
65 Mr Hunt found, on examination, that the plaintiff walked with an antalgic gait. He complained of pain in his lower back and right hip region, there was some restriction of movement in the lumbar spine and all movements were said to exacerbate his back symptoms. Neurologically, his lower limbs were intact. Mr Hunt felt it clear that Mr Clegg had had an injury to the lumbar and thoracic region of his spine which was a work-related lifting injury occurring on 30 August 2006. The consequences of injury had been ongoing thoracic and lower back pain symptoms with associated bilateral leg and lower limb symptoms, and he felt that the history was consistent with the stated cause.
66 Mr Hunt’s diagnosis was of symptomatic lumbar spondylosis with transitional vertebral motion segment at L5/S1, symptomatic thoracic spondylosis, and right-sided inguinal hernia. He considered Mr Clegg was not fit for his pre- injury employment, as it would exacerbate his symptoms, and that he was not fit for any alternative duties. He considered him significantly disabled as a result of his ongoing thoracic and lower back and shoulder pain problems which were severe and restricting, not only in terms of his work but also his usual activities of daily living. He did not believe Mr Clegg would be fit to return to any alternative duties at the time of examination nor into the foreseeable future.
67 Dr Michael Baynes, occupational physician, examined the plaintiff on four occasions, and has provided six reports to the defendant’s insurer or solicitors[23]. On first examination[24], he noted Mr Clegg to be very vague regarding his history, and to have a flat affect. Mr Clegg complained to him of continuous lower central back pain, radiating across to the right and left buttocks and down the right medial thigh to the knee, and stiffness in his back especially in the morning. Palpation revealed tenderness over the spinous processes of L4 to S1 as well as over the right facet joints of the same level. Dr Baynes assessed him as having acute lower back injury, likely to be soft tissue in nature. Prognosis was doubtful at that stage, with hope for improvement in the next 4 to 6 weeks, but he was at that stage unfit for pre- injury duties.
[23] Exhibit 4
[24] First report is dated 1 March 2006 but this clearly should be 1 March 2007.
68 On examination in September 2007 Mr Clegg told Dr Baynes there had been improvement but he still had continuous central low back pain radiating to the left leg at times and more often to the right. After examination Dr Baynes’ opinion was that given the long-term nature of the pain it was likely that it was discogenic in origin although there was no clinical evidence of radiculopathy. He felt Mr Clegg unfit for pre-injury duties but fit for alternative duties with restricted lifting and ability to change posture. Mr Clegg was still working on restricted duties with the defendant at that stage.
69 On further examination in October 2008, after retrenchment from the defendant, he told Dr Baynes there had been no real change in his condition over the past 12 months, and he still had ongoing lower back pain which radiated across to his right buttock and hip, that would come and go, right leg pain radiating down to the knee and into the medial right thigh, and he had occasional pain in the left leg. He had continued with physiotherapy and seeing a psychologist. He was taking Panadol Osteo and Efexor, and doing maintenance exercises. On examination, the slump test was lightly positive in both the left and right legs, suggesting nerve root impingement, and there was decreased or absent bilateral ankle reflexes. Palpation of the lumbar spine revealed tenderness over L4 to S1 as well as over the L4/S1 right facet joints. On this occasion Dr Baynes assessed him as suffering from a chronic pain syndrome associated with chronic lower back pain, likely to be discogenic in origin. He felt him unfit for his pre-injury duties, but fit for alternative duties with restriction on lifting or repetitive movements, and for his pre-injury hours.
70 Dr Baynes next examined the plaintiff in October 2009, when he was told by Mr Clegg that he had become increasingly depressed and having too much pain and “went screwy” about six months earlier. On examination on this occasion slump test was negative, straight leg raising was to 80degrees on both sides and neurological examination was normal. Dr Baynes still believed Mr Clegg to be suffering from a chronic pain syndrome associated with chronic lower back pain, but as radiology was said to be normal and no objective abnormalities on clinical examination observed, he found it difficult to determine the cause of the pain. He felt there was also an adjustment disorder as diagnosed by Dr Entwistle. He considered the condition to be work related, that Mr Clegg was not fit for pre-injury employment, but did have a current work capacity where there is occasional lifting up to 15 kg, not constrained postures and not repetitive lifting from below knee or above shoulder height. He felt him capable of undertaking the occupations of electrician, automotive parts interpreter, vocational education teacher and electronic repairer.
71 Dr Baynes provided a further report in March 2011 without re-examining Mr Clegg. He had been provided with further radiology reports and reports of several other doctors, and used his own previous opinion as to fitness for work to comment on occupations suggested. He did not comment on Mr Clegg’s capacity for any retraining necessary to become an electrician, vocational education teacher, or electronic repairer.
72 Mr Michael Dooley, orthopaedic surgeon, examined the plaintiff and reported for the defendant’s solicitors in June 2010 and March 2011[25]. He took a history of a single incident at work in November 2006, involving lifting and manoeuvring a heavy wheel, causing onset of low back pain, groin and lower limb pain. On examination he elicited complaint of tenderness of the low lumbar spine, and some restriction in flexion and straight leg raising. There was altered sensation over the lateral and inner aspects of the right thigh and reflexes symmetrically reduced. His opinion was that in the work incident the plaintiff sustained a soft tissue injury to his lumbar spine that involves some musculoligamentous damage and possibly aggravation of underlying degenerative disc disease. He believed that reported constant ongoing pain three years afterwards was beyond what would be expected, and that Mr Clegg has a psychological reaction to his injury and/or pain that is influencing the ongoing symptoms. He considered that Mr Clegg would be unfit to carry out regular heavy physical work or work involving a lot of bending and lifting, but from the orthopaedic viewpoint he is capable of light physical activities and clerical duties, including those of spare parts interpreter, customer service manager, electronics repair person and vocational education teacher. He did not address any retraining necessary for these.
[25] Exhibit 7.
73 On further examination in February 2011, his view was essentially the same. His thought that Mr Clegg’s depression was significantly influencing his symptomatology. He noted he was receiving psychiatric treatment, and recommended increased activity to improve his fitness and stamina, including walking daily. His view was that it is important for Mr Clegg to return to appropriate and satisfying work so that he not “drift in the system”. He noted that extensive radiological investigation had been undergone, and said that continuing to treat his ongoing pain as though it is organically based only is pointless.
74 In relation to the plaintiff’s psychiatric condition, the evidence of Dr Le Bas’s observations and treatment in September 2007, and April 2009 have already been summarized. His opinion was that Mr Clegg was pre-disposed to depressive and hypomanic mood swings from an early age, although he could not determine whether this had a genetic cause or was caused in his upbringing. There had been a previous period that qualified as a major depressive episode when he was aged 21. There was a second major depressive episode clearly triggered by the back injury in November 2006, and related to pain, incapacity and the inability to work arising from the back injury. Work therefore was a contributing factor to the recurrence of his condition. In April 2009, his elevated mood related to the action of the anti- depressant – that is it was likely to have been medication induced hypermanic state.
75 Dr Le Bas’s overall diagnosis was of a major depressive episode, and Bipolar Disorder NOS (not otherwise specified). In cross-examination he explained that Mr Clegg qualifies under DSM IV as having Bi-Polar II disorder. He also qualifies as Bi-Polar III – hypermanic triggered by anti-depressant usage – but that that is not an official category and is used by academics researching bi- polar disorders. He believed Mr Clegg would require ongoing medical follow- up, counselling and pharmacotherapy. Both in his report and his oral evidence he was not in a position to assess capacity to return to work as he had not examined Mr Clegg since April 2009.[26]
[26] Exhibit F.
76 Dr Igor Shvetsov, has been the plaintiff’s treating psychiatrist since April 2010. He first presented with low mood, and also frequently experienced mood swings. He suffered from insomnia and also wakes though the night due to back pain. He felt guilt about being unemployed and unable to provide for his family. He had low energy level and motivation, forced himself to do daily activities, was not interested in his hobbies, was overeating and had put on weight, had suicidal thoughts but had never attempted self harm. He gave the history of a psychotic episode after which anti-depressants were ceased.
77 With ongoing treatment different medication had been introduced, and his mood had improved, but his ongoing stressors were his physical condition and uncertainty of his future, with financial struggle after his payments were stopped.
78 Dr Shvetsov’s opinion was that there is a complex clinical picture, with pre- disposition to mental illness, and unstable parenting during developmental history. Given the history of vocational performance over many years, and a strong and supportive relationship, he considered that the physical injury at work, resulting in loss of capacity for work and ongoing pain impacting on quality of everyday life, had directly impacted on his mental health. He considered the presentation consistent with the diagnosis of Major Depressive Disorder under DSM IV. He had changed the medication to Cymbalta, which had improved his mood and lowered his level of anxiety.
79 Dr Shvetsov’s opinion as to his fitness for work was that from the mental health problems, most prominent being poor concentration and forgetfulness, and low level of energy and motivation, he was unlikely to be fit for pre-injury employment or any alternative duties, and that with his cognitive problems of concentration and memory he would struggle to learn new skills. The prognosis was guarded, as his physical condition had not significantly improved and his mental health problems were secondary to his physical condition.
80 Dr Shvetsov acknowledged that it was difficult to speculate what Mr Clegg’s mental health condition might have been without the back injury, but noted that even with biological pre-disposition and traumas during upbringing, it required a precipitating or perpetuating factor to develop such a depressive illness, and in this case he is only aware of the back injury.[27]
[27] Exhibit H – reports of 8/11/10 and 17/1/11
81 Dr Paul Kornan, examined the plaintiff at the request of his solicitors in February and December 2010[28]. He provided a further report in January 2011 after being provided with a report from Dr LeBas. He was also called for cross-examination.
[28] Exhibit G
82 Dr Kornan noted Mr Clegg to show clinical symptoms of depression, speaking in a voice of quite depressed tone and slightly varying volume, although not slurring and with no dysarthria or dysphasia. He had problems with memory and concentration, and he presented as deeply sad. However there were no psychotic features, no delusions or hallucinations. His diagnosis was of Major Depressive Episodes, and an Adjustment Disorder with Anxiety, which were chronic, of moderate intensity but at times may be more than that. He was incapable of performing his pre-injury duties or alternate ones, and from a psychiatric viewpoint was unemployable. Dr Kornan considered the effects of his psychiatric condition severe, in a psychiatric sense, and likely to continue for the foreseeable future, and that he would need ongoing psychiatric treatment including psychotropic medication.
83 Dr Kornan had thought the condition severe enough on first examination that he wrote directly to Dr McInerney suggesting reintroduction of an anti- depressant, and referral to a psychiatrist for treatment. By the second examination Mr Clegg had been seeing Dr Shvetsov for more than six months, and Dr Kornan thought that there was a little less depression as a result of that treatment, but that there was a chronic state of incapacity from a psychiatric viewpoint. He had not been told by Mr Clegg of his psychological problems in late youth and at 21. On being provided with a report from Dr Le Bas, he noted that Dr Le Bas, treating him, had thought that the condition after the work injury was a second major depressive episode, and that although there were some variable mood issues, that he had not had a longstanding significant psychiatric condition before the work injury.
84 On cross-examination, he said that it was unusual for depressive illness generally to develop psychotic features, but with severe depression one could have such episodes, which often take some time to develop. Dr Kornan considered that the description of his telling the CAT team that he was Jesus Christ was clearly a psychotic manifestation, and psychotic features may have been present as much as six to eight months before that. Even if he later says that he is not sure he believed it at the time (or that he said it to annoy the CAT team) that is not uncommon because when later stable people can be embarrassed about it and reconstruct. He agreed that there were background features indicating vulnerability – with his father, step-father, mother and use of cannabis – but a lot of those had occurred a long time ago and he had come to Australia and been working, you would not expect him to be in this state now.
85 As to whether marijuana use had been relevant, Dr Kornan said that while it is a chemical agent which does seem to affect adolescents with vulnerability, and move them towards a psychotic illness, it is not generally seen in older persons although it is possible. He did not accept that it was likely to have caused Mr Clegg’s Major depressive illness nor the psychotic episode in late March 2009[29]. As to any effect on Mr Clegg’s mental state of an incident described to him by Mr Clegg of having fellow workers leave razor-blades on his toolbox, or of being made redundant, he maintained that he thought the main reason for his psychiatric condition was his back injury and his onging pains and general difficulties in coping with that[30]
[29] T208-209
[30] T 209, l 24 – T210, l 1
86 Dr Timothy Entwistle, psychiatrist, examined the plaintiff and provided reports to the defendant’s solicitors[31] . His first examination was in July 2007, at which time Mr Clegg was off work and attending his GP and psychologist, Ms Bunham. He was depressed, and had had his dosage of Efexor doubled, which had given some improvement in his emotional and psychological functioning, and reduced his shaking. He was noted to be anxious, reticent and at times appeared vulnerable and tearful, speech was slowly produced and he spoke in a monotone. The diagnosis was of an adjustment disorder with depressed mood which was showing some improvement with increased dosage of anti-depressant medication. At that stage he was not capable of managing much more than part-time light duties. Dr Entwisle could not confirm causal relationship with work because he was reliant on Dr Baynes’ report which queried whether there was proof of the back injury occurring at work.
[31] Exhibit 5
87 On second examination in November 2008, Dr Entwistle records that Mr Clegg had been off work for four months and that he was depressed again, as he was broke and that stressed his wife and son, but that his treatment seeing a psychologist and taking anti-depressant medication up until then had been helpful. He complained of being in a lot of pain in his low back and leg, and also in his upper body by then. He was very unhappy with how the company had treated him. On examination he was noted to be dishevelled in appearance and unshaven and his fingernails and hands were dirty. His mood was flat and he appeared depressed but underneath there were glimpses of considerable anger, discontent and resentment. His speech showed normal stream and flow. He complained of being isolated and irritable since being off work although a little less stressed. He complained of no cognition or perceptual problems. The diagnosis was that he continued to suffer from an adjustment disorder with depressed mood, occurring in relation to his work. This was regarded as an aggravation of his prior history, and he had always been a loner, but his injury had significantly contributed to his condition. Dr Entwistle reported that he had a capacity for employment from a psychiatric perspective, but did not specify whether that was for full-time employment.
88 On further examination in September 2009, Mr Clegg told him of the CAT team episode. Dr Entwistle records that he was deemed to have suffered a psychotic episode due to a combination of his various medications and marijuana. He was again in a dishevelled state and unshaven, hands and fingers dirty and smelling of cigarettes. His affect was passively angry, resentful and discontent, his mood was flat, and he spoke in a monotone and appeared depressed. His speech showed normal stream and flow, and he continued to hold considerable grievance. He had no cognitive or perceptual abnormalities, but there was a strong injury focus and some evidence of abnormal illness behaviour with some sighing and groaning.
89 Dr Entwistle diagnosed continued symptoms of an Adjustment Disorder with depressed mood. However he did not believe that the condition remained work related. He considered that other factors now explained it, including issues with his wife, his tendency to be angry with all concerned including members of his family and hers, and his tendency to isolate himself. He was regarded as non-compliant with psychological treatment, and had ceased all his medications. Dr Entwistle also regarded Mr Clegg as having the capacity to return to previous employment albeit on alternative duties, because he had done so in the past, before being retrenched.
90 He subsequently reported that Mr Clegg would be capable psychiatrically of being a customer service manager, spare parts interpreter, vocational education teacher and electronics repairman. I discount this opinion because it does not explain the plaintiff’s psychiatric capacity for retraining, and because the original history taken by this doctor did not include the failure to cope with a building course on leaving school, nor non-completion of the mentioned apprenticeship.
91 On final examination in February 2011, Dr Entwisle had been provided with a fuller range of reports from treating and also some medico-legal doctors. He still interpreted Mr Clegg as having a psychotic episode in April 2009 due to non-compliance with his medication, mixed with marijuana, notwithstanding that Dr McInerney, the prescribing doctor for all medications at that stage, did not suggest that there was non-compliance with taking them. Dr Entwisle’s diagnosis continued to be of a chronic Adjustment Disorder with depressed mood, but he added that this is in the context of a pain syndrome. In light of the orthopaedic opinions, he considered that the back injury is likely to be one of a number of causes for his psychiatric condition. The condition had shown little response to treatment. He noted that Mr Clegg has vulnerable personality style with features of dependence and unresolved anger management issues contributing to his presentation.
92 Dr Entwistle stated that Mr Clegg currently presents as somebody who is either not interested or is incapable of such work. He does not specifically state his opinion of which, but gives the opinion that his lack of improvement does not relate to his back injury as such, but rather to pre-existing personal vulnerability and predisposition to depression.
Has the plaintiff suffered a “serious injury” under part (a) of definition?
93 I am satisfied that during his employment duties with the defendant, the plaintiff suffered an injury to his low back on or about 30 August 2006 which was exacerbated on or about 21 November 2006. I am satisfied that the injury was of organic nature, being either aggravation of facet joint arthropathy at L4-S1, or injury to disc and surrounding soft tissue injury at L4/5, or a combination of these.
94 I am satisfied of this on the balance of probabilities because notwithstanding the absence of confirmation through radiology of any frank disc rupture or nerve root impingement or compression, all physical examiners except Mr Dooley have accepted either or both right facet joint or discogenic origin to the pain. Mr Dooley accepts that there was physical injury, namely a soft tissue injury to the lumbar spine that involves some musculo-ligamentous damage and possibly aggravation of underlying degenerative disc disease. Although Dr Baynes was in doubt about the cause of the chronic back pain in his report of October 2009, he continued to diagnose a chronic pain condition, and a year earlier he had found reduced or absent ankle reflexes, and some positive signs on slump test, such that at that stage he believed the origin of the pain likely to be discogenic. Professor Cook also found reflex abnormality, indicating neurological involvement. Mr Barrett initially thought that the history and clinical signs indicated a lower lumbar disc lesion, ordered an MRI which showed no rupture, annular splits, disc bulges or nerve root irritation or compression, so no serious pathological cause, but stated that the results do not say that this patient has no lower backache. The views of Mr Flanc, and Mr Hunt also support there being an organic basis to the plaintiff suffering chronic back pain.
95 All doctors accept that Mr Clegg does experience constant pain in his low back, aggravated by various activities and postures, and although Mr Dooley attributes its ongoing severity to his depressive condition, and by implication Professor Cook and Mr Hunt consider the psychological condition relevant to the extent of ongoing symptoms, all accept that there is ongoing pain likely to be permanent resulting from the physical injury.
96 All consider him unfit to return to his pre-injury occupation. I am satisfied that he feels pain in his back all of the time, of varying degrees, that the pain requires daily medication, restricts him in his previous hobbies, limits his ability to sit or stand still on a prolonged basis, limits him to driving for only short periods, disturbs his sleep nightly, limits his ability to garden, and is a constant reminder of what he regards as inability to function adequately as a husband and father. I am satisfied that these consequences impact on his daily living and family life to an extent that can fairly be described as more than significant or marked and at least very considerable as to pain and suffering, when compared with other possible impairments.
97 I am satisfied that the physical injury to his low back will permanently render him incapable of returning to employment as a motor mechanic and technician, which had been his employment field for some 20 years. Although there is some medical support for the view that the low back injury has resulted in permanent total incapacity for all suitable employment, I am not satisfied that that that has been proved within the very strict statutory requirements.
98 First, there is the evidence that he was capable of the lighter “pre-delivery” work he was doing between about September 2007 and his retrenchment in August 2008. I accept that his psychiatric condition worsened after retrenchment, but there is no evidence that his physically based back injury did so. There is also his evidence of demolishing and moving his carport, which I am satisfied occurred during a period when his mental state was manic, but indicates extensive physical capacity for building tasks. His general practitioner regards him as fit for suitable alternative duties, but of only four hours per day for 3 days per week, and Mr Flanc also considered that he could at best only perform part-time lighter duties. However, I am not satisfied that they, or Messrs Hunt and Cook, have sufficiently explained their views about the extent of incapacity by isolating it to the organic cause.
99 While I am satisfied that the plaintiff has and is likely for the foreseeable future to experience pain to an extent that will limit any work capacity to less than 60% of his earning capacity had he not suffered injury to his back, I am not satisfied that that is due to symptoms from his organic injury rather than being entwined with or amplified by the psychiatrically based effects on his perceptions of his condition. I am also not satisfied that from a physical basis he is incapable of being retrained for alternative lighter duties utilizing his knowledge of cars and car-parts.
100 I am therefore not satisfied to the necessary degree that the injury to his low back satisfied the strict requirements for leave to claim loss of earning capacity damages.
Has the plaintiff suffered a “serious injury” under part (c) of definition?
101 The defendant points to the absence of any report from Ms Burnham who was the plaintiff’s treating psychologist from mid 2007 for twelve months or more, and asks me to draw inferences adverse to the plaintiff’s case[32]. I agree that this is a witness (or in the context of this type of application, a potential provider of a report) whose omission was unexplained and could be expected to have been provided. The inference could be drawn that she would not have advanced the plaintiff’s case. However, as the plaintiff’s two treating psychiatrists had provided reports, as had the ongoing general practitioner, they are the witnesses whose evidence can more readily be accepted, and that does not advance the defendant’s case. I have concluded that the absence of a report from Ms Burnham does not advance either party’s case to any significant extent.
[32] O’Donnell v Reichard [1975] VR 916.
102 Dr Baynes assessing Mr Clegg for the defendant on 1 March 2007 noted he had a flat affect and was slow in talking and very vague in his past history. Dr McInerney by May 2007 noted that Mr Clegg was showing symptoms of depression, prescribed an anti-depressant, Efexor, and referred him to a clinical psychologist. By August 2007 variable moods prompted a referral to Dr Le Bas who diagnosed a Major Depressive Episode, resulting from the back injury at work, and also soft bi-polar tendency, both in light of pre- disposition from his much earlier history. In mid-July 2007, the defendant’s psychiatric examiner, Dr Entwistle, diagnosed an Adjustment Disorder with Depressed Mood, at that stage incapacitating him from employment. I am satisfied from all of this evidence, as well as the plaintiff’s own descriptions, that from the early months of 2007 he was suffering at least an adjustment disorder with depression, but more likely major depressive illness secondary to the pain and incapacity he was experiencing from the back injury at work a few months earlier.
103 Ongoing struggle to resume work, with exacerbations and further time off clearly escalated his depressive symptoms, and even though he was stabilized psychiatrically by the end of September, 2007, according to Dr Le Bas, that was on the basis that he would continue to require medication and counselling for his psychiatric condition.
104 I am satisfied that his psychiatric condition deteriorated after he was retrenched from his employment. I am satisfied that the back injury and its effects of pain and incapacity remained the most significant contributing factor to his ongoing condition, because it had precipitated the major depressive reaction soon after the injury, as confirmed by all psychiatric opinion, and although that condition was brought under some control by late 2007 with medication and counselling, enabling him to continue working, the back injury had not resolved and nor had the depression.
105 That there was deterioration in his mental state is clear from the descriptions in Mrs Clegg’s letter to Dr McInerney in March 2009. I accept that letter as contemporaneous confirmation of his mental condition, and notwithstanding that as his wife she generally might be expected to be supportive of his case, that was written for a treatment purpose at a time well before this application was made. I found her concern and near despair portrayed in that letter particularly poignant.
106 The only evidence to caste doubt on the acute psychiatric episode of late March 2009 episode being causally linked with his back injury is that of Dr Entwistle. Dr Entwistle ascribes it in one report to description of family tensions, and also to Mr Clegg was being non-compliant with his medication and using cannabis. Clearly there was great strain on Mrs Clegg (and their son) on having to watch and cope with her husband in the state he was, and clearly there was considerable family tension and following her calling the CAT team, and they apparently separated for a while. However, I do not accept Dr Entwisltle’s conclusion that non-compliance with prescribed medication contributed to that episode. On the contrary, I accept Dr Le Bas’s opinion that it was likely to have been caused by the combination of prescribed medications, a view supported by Dr McInerney, Dr Shvetsov and Dr Kornan. Further, I do not accept that family tension at that time was a separate cause of aggravation of his mental state, rather than a result of it, at least to a significant degree.
107 The defendant raised through cross-examination of Drs McInerney, Le Bas and Kornan, the prospect that marijuana use was responsible for Mr Clegg’s lowered mood and lack of motivation generally, or indeed for the acute episode in late March 2009. Mr Clegg did not acknowledge that he had been a regular user of marijuana at any stage, but agreed that he had smoked it infrequently. He is recorded by some doctors, including Dr Le Bas and Shvetsov, as telling them of ceasing its use. I find that his wife’s letter to Dr McInerney in March 2009 is likely to be a reasonably accurate reflection of his use of marijuana at the time[33].
[33] I granted a certificate under s 128(5) Evidence Act 2009.
108 As to whether smoking marijuana is likely to have caused or had a significant effect on his mental state during 2007 (when he was diagnosed by Dr Le Bas as suffering a Major Depressive episode) or from November 2008 to April 2009 (when his mental state worsened culminating in the “psychotic episode”), or ever since, there is no medical support for that theory. Each of Doctors Le Bas, Kornan and McInerney specifically failed to adopt it as a likelihood in this case. I regard the reasons they each gave as reasonable. The only possible support is from Dr Entwistle, but his latter two reports refer to non-compliance with prescribed medication and use of marijuana without differentiating whether it was both of those factors (and I do not accept that there was in fact non-compliance with prescribed medication) or whether each separately contributed, as causative of the psychotic episode, together with family tension. For these reasons I reject the theory that cannabis use was or remains a significant cause of any of Mr Clegg’s psychological condition.
109 Dr Shvetsov was asked to address in a report specifically the issue of whether Mr Clegg would have suffered his current mental state without the back injury. His view was that notwithstanding Mr Clegg’s family history and pre- disposition or vulnerability to further depressive episodes, after the one he describes at age 21, it was likely to need a precipitating factor, and the back injury with its ongoing pain and incapacitating effects is the only known one at the relevant time. Also of significance to Dr Shvetsov was the history that despite his childhood and developmental problems, he had maintained employment for many years before the back injury.
110 Dr Kornan and Dr Le Bas each gives the opinion that the back injury at work precipitated the major depression illness suffered by Mr Clegg, notwithstanding he had vulnerabilities in his mental health history.
111 I am also satisfied that the timing of the development of depressive symptoms as the back injury did not resolve quickly, and their worsening over the following months with his repeated attempts to resume work and exacerbations of back pain hindering that, is consistent with the development of significant depression secondary to the physical injury at work. If the condition was heightened or prolonged due to his underlying pre-disposition, or his personality, that does not assist the defendant, which must take the plaintiff as it finds him.
112 There is nothing to indicate that his mental state was hindering his ability to work or his family life prior to his back injury – indeed Dr McInerney who had treated him since 2001 was not aware that he had any history of psychological problems until Mr Clegg told him of some of his teenage history on presenting with depressive symptoms in May 2007. His work history of some four years with a Honda dealership immediately before joining the defendant is not challenged, and to the extent that Mr Clegg was cross-examined about the number of times he had moved employers, I am satisfied that his explanation that that is usual in the vehicle industry is likely. I am satisfied that whatever his underlying psychiatric pre-disposition or personality, his mental state was not hindering his work capacity or his general daily life before the back injury, but did so to a very considerable extent within months after it, and has continued to do so.
113 I am satisfied that his psychiatric condition was stabilized by late 2007, with medication and ongoing counselling required to keep it stable. His retrenchment would have aggravated his mental state, but also left him with more time to dwell on his grievances about both his injury and how he had been treated by the defendant. His deteriorating mental state led to the prescription of additional anti-depressant which interacted with the Efexor and led to the so-called psychotic episode. In my view that sequence of events is causally related to the precipitating work injury because that is what activated the depressive symptoms which required medication in the first place.
114 I accept from not only his own evidence but that of his wife and descriptions of his presentation to doctors[34], that the consequences of his depression have including the following: feeling deeply sad, frustrated, inadequate as a husband and father, with seriously impaired concentration and memory, varying appetite, sleep disturbance (albeit partly from back pain) and lack of energy, anxiety such that his hands would shake, and general despair about the financial future of his family. He is isolated, and while he will go out walking at times, he spends most of his day at home, and often shutting himself away from his wife and son. He takes a significant daily dose of a psychotropic medication to remain stable.
[34] Eg In both late 2008 and late 2009 his presentation to Dr Entwistle was dishevelled, unshaven and with dirty hands
115 Further, to the extent that the back pain he experiences is not of organic cause, its amplification or his perception of it is likely also to be a consequence of his mental state.
116 Although Mr Clegg has complained to various doctors of suffering long-lasting headaches, I have not taken them into account as a consequence of his work related psychiatric injury, because he acknowledges a history of migraines prior to that injury and the evidence does not enable “disentanglement” of the attributable cause of those headaches he has suffered since the back injury.
117 Although now his depression is a little improved, since prescription of Cymbalta and ongoing treatment by Dr Shvetsov, I am satisfied that Mr Clegg’s mental state is still such that his symptoms and their consequences in his daily life can fairly be described as severe as to pain and suffering and loss of enjoyment of life. I accept from the opinions of Drs Kornan and Shvetsov that his current psychiatric condition is now chronic and likely to remain much as it is at present for the foreseeable future, with ongoing treatment to keep it stable and avoid deterioration.
Loss of earning capacity
118 The remaining issue is whether his psychiatric condition incapacitates him to the extent required to meet the test for a serious injury as to loss of earning capacity.
119 The court cannot grant leave to the plaintiff to bring a claim for loss of earning capacity unless he establishes that he has a loss of earning capacity of 40% or more[35]. That must be measured by comparing the greater of his gross income actually being earned or of which he is capable of earning in suitable employment[36], with the gross income which he was or was capable of earning had the injury not occurred. The latter is to be assessed in light of his earnings for the 3 years before and after injury[37].
[35] Ss 134AB(38)(e)(i)
[36] Ss 134AB(38)(f)(i)
[37] Ss 134AB(38)(f)(ii)
Further –
“(g) a worker does not establish the loss of earning capacity required
…where the worker has, or would have after rehabilitation
or retraining, and taking into account the worker's capacity for
suitable employment after the injury and, where applicable, the
reasonableness of the worker's attempts to participate in
rehabilitation or retraining, a capacity for any employment including
alternative employment or further or additional employment which, if
exercised, would result in the worker earning more than 60 per centum of
gross income from personal exertion as determined in accordance with
paragraph (f) had the injury not occurred”.
120 Also relevant is the definition of “suitable employment”[38].
[38] S
121 The plaintiff bears the onus of proving any inability to be retrained or rehabilitated or to undertake suitable employment or any employment including alternative or further or additional[39].
[39] Ss 134AB(19)(b)
122 The defendant argues that the plaintiff’s mental state, whatever its cause, does not render him incapacitated for all work, and that he is capable of earning at least 60% of what his without injury earnings would have been.
123 His injury occurred in or between August and November 2006. His average gross weekly earnings, including tool allowance, for the financial years 2004, 2005 and 2006 were $689.36. His earnings from late 2006 until retrenchment in August 2008 are of little assistance as they included workcover payments when he was incapacitated by his back injury. The defendant points to gross earnings of comparable employees from 2007, 2008 and 2009 averaging $736.33 per week, and suggests[40], a figure of $765 gross per week as a fair representation of his “without injury” earning capacity at present. That is based on a deemed yearly increase of 2% per annum over the years since the last of the 3 years after his injury. Notwithstanding that this method does not exactly follow the formula under ss 134AB(38) (e), it is not challenged by the plaintiff’s counsel, and as a guide I accept that it is reasonable.
[40] Document submitted during final submissions
124 The plaintiff has not in fact earned any income from personal exertion since his retrenchment in August 2008. The defendant argues that the fact that he was engaged in full-time work, albeit at alternative duties, for about 11 months before retrenchment, proves that he had that capacity and should be found to have retained that capacity ever since. I have already acknowledged that argument in relation to the part(a) basis of this application. However, it overlooks that, as I have found, his psychological condition deteriorated after his retrenchment, and I am satisfied that that his work injury remained a significant ongoing material cause of his mental state.
125 The defendant further argues that on the basis of the opinions of Dr Baynes, Mr Dooley, and Dr Entwistle, the plaintiff could be working full-time at one of the occupations presented to them from the ANZCO database, and that according to other material tendered by the defendant, through the affidavit of Suzanne Squire[41], earnings from jobs approved by these doctors’ opinions would be at least $614 per week gross and would therefore exceed 60% of his without injury earning capacity, and result in him not satisfying the statutory test to entitle him to leave to bring a claim for loss of earnings damages.
[41] Exhibit 3
126 None of the medical opinion, from the physical or psychological viewpoint, suggests that Mr Clegg is or is ever likely in the future to be fit to return to his pre-injury employment as a motor mechanic or technician. That had been his field of employment for some 20 years, and the only one in which he had experience.
127 Dr Kornan and Dr Shvetsov say that Mr Clegg is currently totally incapacitated for all employment from a psychiatric point of view, and likely to remain so for the foreseeable future.
128 Dr Entwistle’s opinion is relied upon by the defendant as supporting him being capable of suitable employment. On first examination, in July 2007, Dr Entwistle thought him likely to have a capacity for employment once his depression had improved, and supported a graduated part-time return to work. Indeed the plaintiff did return to work, at alternative duties until his retrenchment. In December 2008, Dr Entwistle stated “Mr Clegg has a capacity for employment from a psychiatric perspective”[42], without explaining his reasoning, or whether or not it was a capacity for full-time employment, nor of what type, nor whether it required retraining. I infer from the report that the finding that memory and concentration were intact would have been relevant, although the doctor confirmed that Mr Clegg continued to suffer from an adjustment disorder with depressed mood significantly contributed to by his injury[43].
[42] Point 8.05, page 4 of report
[43] Para 8.01 and 8.03
129 The strongest support for the defendant’s position from Dr Entwistle comes in his report of 28 September 2009, in which he lists four occupations approved by Dr Baynes (including electrician without consideration of his capacity to train as such), and concludes that given that he was able to return to his pre- injury employment albeit on alternative duties he must have the capacity to do so again if he sees fit. Dr Entwistle does not address whether there had been an overall worsening of his psychological capacity for work following what he called a drug-induced psychosis earlier that year. He did regard him as still suffering from his Adjustment Disorder with Depressed Mood, set against his underlying personality style, being dependent and passively aggressive, albeit he thought that condition no longer work related.
130 Finally, Dr Entwisltle’s most recent report in my view is equivocal on the issue of psychiatric capacity for employment. He notes the attached ANZSCO database listing eight occupations, from motor vehicle salesperson to product tester. He then states that Mr Clegg presents as somebody who is either not interested or incapable of such work, but does not specify which he concludes is the more likely situation. He notes a lack of improvement despite attending a psychiatrist, and gives his opinion that the lack of improvement does not relate to his back injury as such, but rather to pre-existing personal vulnerability and predisposition to depression. Dr Entwistle therefore does not make clear whether or not it is his opinion that Mr Clegg is incapable of the suggested work options or not interested in them.
131 As I reject the alternatives of family friction and non-compliance with medication or treatment as having replaced the back injury as the precipitating cause of his current psychiatric condition or of its continuation, and accept that the low back work injury was and remains a significant contributing factor to his serious ongoing depression[44], Dr Entwistle’s opinion as to whether the work injury causes his incapacity for work now is diminished. I have no hesitation in accepting the opinions of Drs Shvetsov and Kornan in preference to Dr Entwistle’s in these circumstances. Moreover, the causative effect of underlying personality features or vulnerability to further depressive episodes does not avail the defendant, as I am satisfied that the work-related back injury not only precipitated but continues to materially contribute to his onging psychiatric condition.
[44] Grech v Orica Australia Pty Ltd [2006] VSCA 172 at para [58]
132 I note that the doctor who has treated him the longest, his general practitioner, and who has been certifying him as fit for alternative duties, confines his views to physical restrictions but even then regards his capacity as limited to 4 hours per day, three days per week. Such work hours would not amount to capacity to earn at least 60% of without injury earnings however calculated.
133 Taking into account all of the evidence and my own impressions of the genuineness of the plaintiff’s description of his incapacities, and those of his wife, I am satisfied that he continues to suffer from significant impairment in concentration and of memory, as well as despondency and frustration at his condition and its impact on his life and his family. I am satisfied on the balance of probabilities that he could not sustain full-time employment at any job for which he is now physically capable, as he lacks the concentration or energy to do so. I am satisfied that as a result of his psychological condition he does not have the interpersonal skills or patience for sales work, nor to work co-operatively with others. I am also satisfied given his mental state, and history of not completing formal qualifications attempted, that he is not capable of retraining for any occupation requiring more than simple “on-the- job” instruction. Indeed Dr Shvetsov’s opinion is that his mental state would hinder him learning new skills.
134 I am satisfied that his current psychiatric condition incapacitates him for all suitable employment for now and the foreseeable future. If I am wrong about his being totally incapacitated “permanently”, I am satisfied that any capacity for work in the future is likely to be for no more than a few hours a week, and well below 60% of his pre-injury earnings or earning capacity. I am therefore satisfied that he satisfies the statutory requirements to entitle him to bring a claim for damages for loss of earning capacity due to his psychiatric injury.
Conclusions
135 I am satisfied that the plaintiff has suffered a mental disorder as a result of his employment with the defendant, which satisfies the test for serous injury both as to pain and suffering and as to loss of earning capacity. I am also satisfied that he has suffered injury to his lower back that satisfies the definition as to serious injury for pain and suffering. I propose to grant him leave to bring proceedings to recover damages accordingly.
LIST OF EXHIBITS
Clegg v Peninsula Group Australia Pty Ltd
Number
and Short Description of Exhibit Tendered Date tendered
Identifying by… Mark on Exhibit
A Affidavits of the plaintiff sworn 23/2/10 and 25/2/11 Plaintiff 04/04/2011 B Affidavit of Karen Jane Clegg sworn 25/02/11 Plaintiff 04/04/2011 C Reports of Mr Charles Flanc dated 22/01/10 and Plaintiff 05/04/2011 08/11/10 D Reports of Dr McInerney dated 05/09/08, 27/09/09, Plaintiff 06/04/2011 16/02/10 and 14/09/11 F Report of Dr James Le Bas dated 20/10/10 Plaintiff 06/04/2011
G Reports of Dr Paul Kornan dated 25/02/10, Plaintiff 06/04/2011 25/02/10(Letter), 20/12/10 and 17/01/11
H Reports of Dr Igor Shvetsov dated 08/11/10 and Plaintiff 06/04/2011 17/01/11
J Radiological reports dated 19/01/07, 25/01/07, Plaintiff 06/04/2011 01/02/07, 05/03/07, 19/10/09 and 21/10/10
K Report of Professor Mark Cook dated 07/11/09 Plaintiff 06/04/2011 L Report of Mr Justin Hunt dated 07/10/10 Plaintiff 06/04/2011
M 2006 Application form for employment with Plaintiff 06/04/2011 defendant
N Copy of Register of Injuries dated 31/08/06 and Plaintiff 06/04/2011 27/11/06 O Plaintiff’s workcover claim form dated 05/02/07 Plaintiff 06/04/2011 P Letter from CGU to plaintiff dated 08/03/07 Plaintiff 06/04/2011 1 Copy of letter from Mrs Clegg to Dr McInerney Defence 04/04/2011 2 Affidavit of Michael Taskovski dated 19/07/10 Defence 06/04/2011
3 Affidavit of Suzanne Margaret Squire dated
18/03/11; attaching the following exhibits, “SMS-5”,
“SMS-6”, “SMS-10”, “SMS-11” and “SMS-12”Defence 06/04/2011
4 Reports of Dr Michael Baynes dated 01/03/06, Defence 06/04/2011 08/03/06, 26/09/07, 08/10/08, 21/10/09 and 06/03/11 5 Reports of Dr Timothy Entwise dated 17/07/07, Defence 06/04/2011 25/07/07, 02/12/08, 28/09/09, 23/11/09 and 01/03/11 6 Reports of Dr Brian Barrett dated 05/10/09, 22/10/09 Defence 06/04/2011 and 09/11/09 7 Reports of Mr Michael Dooley dated 07/06/10 and Defence 06/04/2011 03/03/11
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