Connolly v Victorian WorkCover Authority
[2023] VCC 882
•2 June 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| Serious Injury List |
Case No. CI-19-03155
| CLAY ANTHONY CONNOLLY | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 and 9 March 2023 | |
DATE OF JUDGMENT: | 2 June 2023 | |
CASE MAY BE CITED AS: | Connolly v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 882 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – psychiatric impairment – impairment to the cervical spine – organic brain injury – pain and suffering – loss of earning capacity – credit
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b), s134AB(37) and (38)
Cases Cited:Mobilio v Balliotis [1998] 3 VR 833; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Petkovski v Galletti [1994] 1 VR 436; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Meadows v Lichmore Pty Ltd [2013] VSCA 201; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dordev v Cowan & Ors [2006] VSCA 254; Woolworths Ltd v Warfe [2013] VSCA 22
Judgment:Applications dismissed.
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J Frederico | - |
| For the Defendant | Mr T Storey | Thomson Geer Lawyers |
HER HONOUR:
1This is an application for leave to bring proceedings for damages pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of his employment with Request Personnel (“the employer”) on 3 February 2014 (“the said date”).
2The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s134AB(37) and (38) of the Act.
3The plaintiff brings this application pursuant to sub-paragraph (a) and sub-paragraph (c) of the definition of “serious injury” to be found in s134AB(37) of the Act. There, “serious injury” is defined relevantly as meaning:
“(a)permanent serious impairment or loss of a body function;
…
(c)permanent severe mental or permanent severe behavioural disturbance or disorder … .”
4The body functions relied upon in this application are the cervical spine and an organic brain injury. There was also an application in relation to psychiatric impairment.
5Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages.
6The impairment of the body function must be permanent.
7The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, ss(19) and ss(38)(e) of s134AB of the Act impose specific burdens in relation to a claim for loss of earning capacity.
8By ss(38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”.
9The judgment of the Court of Appeal in Mobilio v Balliotis[1] resolved the meaning of “severe”. The word severe was used in the definition as a stronger word than “serious”.
[1] [1998] 3 VR 833
10I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
11Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of 40 per cent or more, both at the date of hearing and permanently thereafter.
12Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured.[2]
[2]The “without injury” earnings figure ranged from $658 per week relied on by the defendant to the plaintiff’s figure of $1,121 per week
13Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the 40 per cent loss has been established.
14Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
15I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak,[3] Petkovski v Galletti[4] and Peak Engineering & Anor v McKenzie[5] in reaching my conclusions.
[3] (2005) 14 VR 622
[4][1994] 1 VR 436
[5][2014] VSCA 67 (“Peak”)
16The plaintiff relied upon three affidavits – sworn January 2019, January 2020 and May 2021. He also relied upon an unsworn handwritten affidavit of 4 February 2022 and an email sent to Judge Tran’s chambers on 21 February 2023.[6] He gave viva voce evidence and was cross-examined. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
[6]Counsel for the plaintiff appeared via the Victorian Bar Pro Bono Scheme
17Counsel for the plaintiff indicated the psychiatric impairment was the first and foremost impairment on which the plaintiff relied.[7]
[7]Transcript (“T”) 162
18The primary submission on the defendant’s behalf was that the plaintiff had not discharged his onus and had not shown the Court how to do so. The head, neck, back, shoulders and psychological issues “were all just mixed in together”.[8]
[8]T142
19Credit, range and capacity were in dispute and there were issues of disentanglement to which the principles in Peak[9] apply.
[9]Supra
20This judgment is lengthy as it required consideration of three impairments. The Joint Court Book was 828 pages and further documents were added in addresses.
21Further, credit was a major issue in this proceeding. The plaintiff’s extraordinary air guitar activity shown on surveillance film was in sharp contrast to the level of disability and restrictions described by him to medical examiners around the time of that film and thereafter. I am required to provide reasons to explain the basis for my conclusions in relation to credit in this case, where credit is a significant issue. I also must take into account the plaintiff’s explanation for what was shown in the film.[10]
[10]Woolworths Ltd v Warfe [2013] VSCA 22 at paragraph [111]
The Plaintiff’s evidence
22At the commencement of the hearing, counsel for the plaintiff advised that the plaintiff struggled with verbal comprehension.[11]
[11] T8-9
23The plaintiff is presently aged forty-five, having been born in August 1977 in Melbourne. He left school halfway through Year 9. He worked for a brief period before going back to school, completing three months of Year 10.
24He has two children, a son aged thirteen, and a daughter aged eight.
Work and health pre injury
25The plaintiff worked as an acrobat with the Silver’s Circus for two years performing tent hand duties. While working there, he suffered a right scaphoid injury which required surgery. He then left the circus and was unemployed for an unspecified period of time.
26He then worked as a courier with Healthscope Pathology for three to four years, before obtaining better paid employment with FedEx, where he worked as a courier between 2010 and 2011.
27In about 2011, he suffered a back injury when lifting some boxes while working for FedEx. He reported the injury and saw his general practitioner (“GP”) at Medibank Health Solutions. He had a lumbar CT scan and was prescribed anti-inflammatories. He made a WorkCover claim. He had some time off work, before he was certified fit to return. He experienced occasional flare-ups of back pain, where he would take a week or two off work up to four times a year.
28He agreed that he worked in physically demanding jobs prior to commencing work with the employer. He suffered multiple injuries to his body including broken toes, left ankle, right wrist, ribs, arms and his right collarbone.[12]
[12] T22
29In March 2012, while working at Polar Fresh, he pulled a muscle in his left shoulder. He had a couple of weeks off and went back to work. He did not recall having a shoulder MRI scan. He did not claim WorkCover. He still has some problems with his left shoulder.[13] It flares up sometimes.[14]
[13]T26
[14]T34; 2 April 2012 attendance with Dr Nassim regarding left shoulder - medical certificate given
30The plaintiff agreed that he had some problems with his neck and back prior to commencing work with the employer.[15] He later clarified that he always had a niggle in his lower back but did not experience any pain in his neck or shoulders.[16]
[15] T23
[16] T31
31Prior to the said date, he suffered from depression from time to time and received treatment from a psychologist.[17] He could not remember attending his GP for depression and anxiety in April 2011, but it was possible, as his brother died. He did not remember seeing a psychologist at that time, but he conceded that he might have received treatment around the time his brother died. However, he denied experiencing depression and anxiety at the time.[18]
[17] Second affidavit
[18] T25
32His mental health was good as at the said date.[19] He denied having depression, anxiety or problems sleeping when he started with the employer. “My life was fine, everything was great.”[20]
[19] Second affidavit
[20]T26
33In June 2012, he commenced work with the employer as a picker/packer and forklift driver at the Linfox warehouse in Truganina. He disclosed his prior back injury and the need for time off work.
34In 2014, he suffered from lower back pain. He had a CT scan and took anti-inflammatories. He experienced ongoing discomfort, but this did not prevent him from carrying out his activities of daily life.[21]
[21] Second affidavit
35Before the said date, for two years while working at Linfox, he went home from work because of a back problem five or six times. His back was giving him a bit of trouble ever since he injured it at FedEx, so he would always have to try and manage it and avoid “popping it”.[22]
[22]T38
The incident
36On the said date, the plaintiff was driving a tugger in the warehouse to obtain and secure loads. He was wearing headphones, listening for directions to attend the next job. He was driving towards the open roller door when the door closed on him, and his head was crushed between the door and the metal tines (“the incident”).
37The roller door hit the whole of his head – “I didn’t get hit, it got completely smashed.”[23] He sustained a laceration from the left side of his forehead to the right. He heard buzzing sounds and felt sensations “as if I had been shot by a stun guns (sic)”. He felt dazed, confused and scared.[24]
[23] T27
[24] First affidavit
38He was transported by ambulance to Footscray Hospital (“the Hospital”). A brain scan was undertaken which did not reveal any brain haemorrhage or fracture. He was discharged the following day. He was placed in a neck brace while investigations were undertaken.[25] He does not remember much at the Hospital.[26]
[25]T121
[26] T28
39It was a “big blur” to him when asked whether he could remember going to Hospital in the ambulance. He recalls “talking to someone after it – I remember like two bosses, apparently it was like 20 bosses everywhere. My mate said he was talking to them, I don’t remember even seeing them.”[27]
[27] T28
40While in Hospital overnight, he complained about his neck. He was in a neck brace for 24 hours before they told him what was wrong with his neck – “In the end, they end up just leaving it.”[28]
[28] T28
41He then conceded that he could not recall when he first complained of his neck following the incident. He could not specifically remember if he complained to his GP, but he remembered telling the Hospital about it because that was the reason they admitted him overnight.[29] He was clear he reported neck pain at the Hospital.[30] The Hospital records, which stated he did not complain of neck pain, were not right.[31]
[29] T37
[30]T38
[31]T39
42He had had severe neck and head pain ever since – “but sometimes it’s more severe than at others.”[32]
[32] T40
Subsequent treatment
43After being discharged, he attended his GP, Dr Sayadi at Tristar in Deer Park, but he could not remember when.[33] He did not return to work and received WorkCover weekly payments. He wanted to go back to work.[34]
[33] T28
[34] T29
44He planned to return to work once his head was right “but it just never got right so I never ended up – I never went back”. His constant headaches prevented him from going back to work.[35]
[35] T30
45He always experienced neck and shoulder pain. His neck was always stiff, and he just felt worse and worse. He denied he had shoulder pain in March 2014.[36]
[36] T31
46Over time, neck pain worsened and “it just started grabbing, like pinching the nerves and that’s when I really got into and started seeing a doctor. It is what it is.”[37]
[37] T40
47When told that on 12 August 2014, Dr Shaista Khan at Tristar recorded a complaint of neck pain and an old neck injury, the plaintiff could not recall discussing an old neck injury with any doctor or that a neurologist had told him he had an old neck injury.[38]
[38] T34
48He could not recall Dr Sayadi telling him on 15 July 2014 that he would not give him another WorkCover certificate. It was a complete surprise to him, because that GP kept giving him WorkCover certificates for years.[39] He did not recall having any cross words with Dr Sayadi in November 2014.[40]
[39] T32
[40] T44
49He could not recall seeing Dr Sayadi on 25 July 2014 complaining of left shoulder pain since two years ago and wanting to submit an application for a disability support pension.[41]
[41]T34
50As at January 2019, the plaintiff continued to suffer from headaches and pressure on his scalp. His headaches worsened with movement or activity.[42] He regularly attended Western Hospital for review and his GP referred him to Dr Michael Poon, neurologist.
[42] First affidavit
51He started to feel helpless and hopeless and had flashbacks of the incident. He was referred to psychologists, including Dr Andrea Putica and Ms Laura Smolcic. He struggled with his memory, focus and concentration, and often forgot what he was going to do. He became easily angry, irritable and frustrated. He had difficulty getting and staying asleep because of his pain. He was prescribed Epilim but developed side effects and the medication was ceased. He was referred to Dr Joubert, neurologist.[43]
[43]No report provided
52He continued to struggle. He had night sweats.
53He developed symptoms of vertigo and dizziness. His head would spin when he put his head down to pick something up and then stand up quickly. His head spins were also triggered when going on rides at the fair with his children and on the trampoline.
54In 2015, he was prescribed Lyrica.
55He spent a lot of time trying to be on his own.
56His headaches also impacted his relationship with his partner. His sexual relationship worsened as he had headaches during sex. He became more difficult to live with. He separated from his partner and was living with his parents. His mother attended to the majority of domestic duties including cooking, but he managed some cleaning tasks for himself.
57He had a constant tight feeling in his head that he likened to wearing a hat too hard over his temples.
58He experienced severe headaches with physical activity, lasting from 30 minutes to an hour. Even minor activity such as walking for 50 to 100 metres or jogging caused these symptoms to worsen. When this happened, he took medication and rested.
59His headaches interfered with his relationship with his children and his ability to participate in sports and physical activities with them.
60He could drive short distances but tried to avoid heavy traffic. Bright lights caused his sharp pain to worsen. He tried to avoid being in the sun.
61He continued to experience nightmares and woke up sweating. He had dreams of suffocating in a space and feeling he was about to die.
62His personality had altered. He was irritable and no longer happy-go-lucky.
63All the work he had done throughout his life involved manual handling. He felt lost and bereft at the loss of his career and the inability to return to domestic and recreational duties which once made his life full of enjoyment.
January 2020
64His accommodation was unstable. He had shared custody of his children. He had lost his driver’s license due to drink driving. He had had a number of court appearances over the years for criminal offences including driving offences, assault, breaches of intervention orders, drug and alcohol offences and dishonesty offences.
65He agreed he lost his license maybe once or twice but could not remember when. He denied being charged with dishonesty offences or fraud. He did not even know what a dishonesty offence was.[44] He accepted that he likely breached an intervention order and had been charged with theft when he was younger.[45]
[44] T55-56
[45] T58
66He saw clinical psychologist, Dr Angelo Pagano, although he did not receive any treatment for a period of time as he did not think he was entitled to it. He re-engaged in treatment with him in about August 2019.
67He saw his GP, Dr Sayadi, on a monthly basis. In late 2019, Dr Sayadi referred him to psychiatrist, Dr Inda Mohan, who advised that he should continue to receive psychological treatment.
68In late 2019, he was also referred to Mr Lo, orthopaedic surgeon, because he had neck pain radiating down his right arm. Mr Lo recommended that he undergo an MRI scan to his cervical spine and a pain management assessment.
69He was not taking any prescribed medications but was taking three aspirin tablets daily about four times a week because of his frequent headaches.
70The symptoms and consequences of his injuries were:
(a) depression and anxiety;
(b) fatigue and reduced motivation;
(c) feeling of hopelessness and that life was not worth living;
(d) low self esteem;
(e) irritability and anger management issues;
(f) difficulty with memory and concentration;
(g) intrusive thoughts about the incident;
(h) difficulty sleeping and nightmares;
(i) panic attacks;
(j) headaches, nausea, dizziness; and
(k) loss of appetite and difficulty eating due to jaw pain.
71He had not returned to work since the incident. He was a casual with the employer, working on average more than 38 hours a week. For the last full financial year he worked for the employer – 2012/2013 – he earned $62,999 gross.
72He did not have the capacity to perform any work. If it was not for his injury, he would have worked full time until retirement.
May 2021
73In 2016 and 2017, he took Effexor and Pristiq but found it did not relieve his symptoms.
74In late February 2020, he had an ultrasound of his right shoulder because his neck and head pain referred down to his shoulder.
75In February 2020, he saw a pain management and rehabilitation specialist, Dr Malcom Ong. He then completed about four weeks of a pain management course but did not complete the full course as he found it increased his stress levels. Dr Ong prescribed medication which the plaintiff ceased because of bad side effects. He still attended Dr Ong as an outpatient and was given some strategies to try and self-manage.
76He saw Mr Lo again in July and October 2020. He was advised to see him again if his injuries became worse but otherwise, there was nothing Mr Lo could do.
77Throughout 2020, the plaintiff continued to consult Dr Pagano on roughly a fortnightly basis receiving treatment for his Post-Traumatic Stress Disorder (“PTSD”), depression and other issues.
78His mental health was very poor. He continued to suffer from daily flashbacks of the incident, particularly when he saw reminders of the roller door. He was worried that that something bad would happen to him or someone he cared about.
79He was taking Panadol Clear and two 5-milligram tablets of Baclofen on a daily basis. Stronger medication like gabapentin gave had side effects and he stopped them.
80He spoke to Dr Ong fortnightly by phone and regularly attended his GP. He had physiotherapy twice a week to treat his neck, shoulders or back. He used exercise equipment at home for about 15 minutes per day, which was all he could take before his head started spinning. He used heat packs on his neck and Voltaren Emulgel. He tried to stay active and walked his children to school.
81He struggled with his memory and became forgetful. These problems started “straight from the moment of the injury”.[46]
[46] T51
82He felt quite hopeless and worthless and had really low self esteem. He often felt suicidal but had not acted on it yet.
83He did not enjoy things in life anymore. He had difficulty interacting with others or socialising normally.
84His sleep was interrupted, and he often woke from nightmares relating to death and woke up covered in sweat. His neck pain made it difficult for him to get comfortable on his pillow – “it just can’t handle the pillow”. He has not had a good night’s sleep in nine years.[47]
[47] T51
85He drank alcohol and smoked marijuana sometimes to try to relieve his mental stress. Recently, he had contacted a rehabilitation clinic to try and stop but he found it very hard to cope with stress without these things. He had managed to get his licence back after going to some compulsory sessions.
86He continued to experience very bad headaches multiple times per week. They totally knocked him out when he got them and had to lie down for several hours. He had vertigo, which was triggered by simple activities such as looking down on a cupboard or low shelf or doing something active like weeding the garden. He had to grab a wall or shelf when he lost balance.
87If he does bend down, he gets up really slowly. If he does it quickly, he falls down instantly.[48]
[48] T49
88He attempted to go bowling once but was unable to concentrate. He was able to physically do it, but the motion of going up and down made him feel like it triggered an episode of vertigo. He probably would have stopped bowling straightaway.[49]
[49] T54 -55
89He lived alone with his daughter and made do around the house on his own. He took things slowly to avoid triggering off his vertigo. He has to be very mindful the way he cleans or picks things up off the ground. He makes sure to bend his knees.[50]
[50] T59-60, T122 - problems with housework
90He had constant aching pain in his neck which radiated from his neck and back of his head to his shoulders. He had discomfort when moving his neck and heard a clicking sound and when he moved his arms too much or overhead, which also caused neck pain. Sometimes, he also experienced numbness in his fingers.
91He had aching lower back pain, which turned into a pinching feeling. It was not as bad as his neck pain but when it got bad, it was hard to walk as it went into his buttocks.[51]
[51]T122
92He had pain and a painful sensation in his head where it was hit.
93He understood a doctor who reported for the defendant did not think his neck pain was related to the incident. While it was true that he had neck pain prior to the incident, it was never as constant or intense as it was post incident. He had had the pain ever since. In the months post incident, it was a bit hard for him to determine whether the source of his pain was coming from his neck or head.
94He started to experience pain in his neck, headaches and vertigo about one month after the incident.[52]
[52] T31
Handwritten statement – 4 February 2022
95The contents of his handwritten statement and the email sent to the Court on 21 February 2023 were true.[53]
[53] T17
96He continued to live by himself in a rental property. He shared custody of his children. He had his daughter (aged seven) eighty per cent of the time and his son (aged twelve), fifty per cent of the time.
97While he had his driver’s license, he had difficulty driving for long periods because it caused his anxiety and neck/shoulder pain to flare up. Driving also caused him to have panic attacks, pain in his neck and shoulders, and sometimes pain in his back. This had been an issue for him since the incident.[54]
[54] T60
98He continued to see doctors when he could. They usually prescribed medication which did not help and made him feel worse. He had been advised that he just needed to try to manage the pain and live it.
99The pressure and pain in his head was constant and a reminder of the incident. It was the first thing he felt when he woke up and the last thing he felt when he went to bed. His sleep was poor, and he woke up at least five to ten times a night.
100He had tried to take sleeping tablets, which had not helped. He took Panadol Clear throughout the week when needed.
101He became easily frustrated and the more he tried to do by way of activity, the more pain it caused in his head. Physical exercise gave him a migraine, as did chewing on meat.
102His symptoms of vertigo were triggered by the heat in summer.
103He continued to struggle with motivation and concentration. He was often forgetful.
104He became easily depressed and found it difficult to change his mood. He considered himself to be overly paranoid and became stressed when he watched his children participate in activities.
105He was still 10 to 15 kilograms lighter than he was prior to the incident because of his poor appetite.
106Sometime in early June 2021, he had a really bad head spin or dizzy spell, which caused him to fall over. He bent down to tie his shoelace or something and he just got up. He tried to make the seat but missed and he hit his shoulder from the vertigo and fell on the floor instead and broke his collarbone.[55]
[55] T61
107Since that incident, he had had two right shoulder procedures, the last in January 2022. He now suffered from a frozen right shoulder. It was still a big problem for him, it was just uncomfortable.[56] He now described himself as a liability, in the sense that he felt like a danger to himself and others in a workplace environment.
[56] T61
108He continued to see Dr Pagano every two weeks or monthly, or by phone, due to the pandemic. He had physiotherapy at Melton Health for his right shoulder, and Back in Motion Physiotherapy twice per week to treat his head and neck.
109He consulted a new GP, who referred him again to Mr Lo. Mr Lo referred him to undergo a further pain management program and had found further problems with his neck. He had pain management consultations in February 2022.
110Mr Lo told him that he wanted to operate on his neck but that it was such a dangerous place that there was essentially no point in surgery until he was older and unable to work. Otherwise, he was told that he would just have to manage the pain. He has not seen Mr Lo since around September 2022, but he could not be 100 per cent sure.[57]
[57] T18
111He completed four weeks of a pain management program in May 2022, and it was recommended that he complete a longer pain management program just before Christmas 2022. He felt like he could not keep going and stopped the program- “It was like every day they wanted me to go in there, I just couldn’t do it as well, and they were just telling me things to manage it which I know anyway.”[58]
[58] T19
112Pre incident, he used to be active all the time. He played indoor cricket in his twenties for a few years on and off with his friends.[59]
[59] T62
February 2023 email
113The problems he described earlier continued – constant headaches, headspins and random sharp stabbing pains in his head and neck, migraines, issues with memory, loss of appetite and lack of enjoyment of life.
114The pain management program was too much for him. They did not listen to him and told him things he already knew. It was better for him to continue seeing Angelo, his psychologist. Neck surgery was too dangerous, so he managed as best he could.
115Problems with WorkCover continued – “It’s always a shit fight … they don’t care.”
Work
116As at May 2021, he felt unable to cope with work because of his mental health. His ability to cope with other people was very limited. He considered himself a danger to himself and to others if he returned to work and was put in a position of responsibility. Even if he had the skills to do light duties, he did not have the disposition due to his mental state.
117His neck and back pain would also have made it very hard to work in the type of physical jobs he was used to. The pain was very unpredictable, and he could get a flare up at any time that knocked him out, particularly in his neck.
118He was in receipt of a Centrelink pension for his PTSD and anxiety. Dr Sayadi certified him unfit for work.
119When he last worked for the employer, his weekly wage would vary depending on how many extra hours he could get. According to his payslips, he earned $1,869.11 gross income for the week starting 13 January 2014 – just before the incident. Other times, he earned well over $1,500 gross per week.
120He has consistently told doctors that he could not think of a job he could do.[60]
[60]T105
121He would not be capable of doing the jobs suggested by the vocational assessor – console operator, cashier and a job that involved some scanning, weighing, receiving payments et cetera.[61]
[61] T106
122He is computer illiterate and can only send an email. He does not have the patience or concentration to learn – he is a labourer.[62]
[62] T106
123He could not perform the duties of a meter reader because he cannot walk around like that. It depends on how cold or hot it is and depends on the day.[63] Walking can bring on headaches.[64] He cannot handle the public at all – “They all shit me.”
[63]T107
[64]T122
124He could not be a gatehouse attendant sitting in a booth and signing in people. His body would just get tight and more tired.[65] He has to keep his body moving and driving to work would cause neck and shoulder pain.[66]
[65] T107
[66] T109
125He is always tired and half the time he was a “grumpy person”.[67]
[67]T127
126He could not work as a console operator/cashier because of the repetitive bending that would be required. The more he strained, the worse his head got. He did not think he had attention to detail and was hopeless meeting deadlines.[68]
[68]T127
127He has had no experience in an administrative role. There is nothing more that he would like than to go back to work because the life he has at the moment “sucks”.[69]
[69]T127
128If he found a job he enjoyed, he would not be willing to try it because he can only do so much before everything gets to him. There is only so much he can take with his head, body and “things” – “I can do things to a certain degree to a certain point on a certain day, it depends what day it is how much I can do … The more I do, the worse it gets. You come and hang around me for a week mate and then make up your mind, ok?”[70]
[70]T119
129He can be sitting still on a couch and then just random head pains drive him crazy. These can last for five minutes “to bloody eight hours sometimes”.[71]
[71]T120
130He would not be able to do a light job where he was able to sit and stand and vary his posture because he does not sleep and has not had a good night’s sleep in nine years. He is that “bloody tired” in the morning and gets frustrated all day because of lack of sleep and being a liability to everyone.[72]
[72]T121
Current treatment
131He takes Panadol Clear every couple of days for his headaches. He uses Voltaren once or twice a week when the pain in his neck flares up.[73] He also uses Panadol and Voltaren when he plays golf on Saturdays. He uses heat packs on his neck a few times per week. He bought a recliner couch so he can relax on his neck and head a bit more as well. He uses it five to twenty times, probably every half-hour, to lay in it and have a rest for about half an hour or so.[74]
[73] T19
[74] T20
132He attends Resolve Medical Clinic for personal health reasons.[75]
[75] T20, Dr Sikka
133He experiences headaches all day, every day. The pressure in his head was “just amazing” and anything he did, triggered head spins, causing him to nearly fall over.
134In describing his headaches, he said:
“Constant? They were constant every day for about three years without doing anything and then the pressure – they they were just sort of five or four times a week and then I can just get random ones, just not doing anything, watching TV. I can’t do anything physical, I’ll get an instant headache. I can’t jog, I can’t have sex … .”[76]
[76] T46
135He had had a constant tight feeling in his head and severe headaches triggered by physical activity ever since the incident – “It’s been the case that from 2014 to 2019 when this [first affidavit] was sworn, to today in March 2023, that’s always been the situation.”[77]
[77] T52
136He suffers from eye and ear problems, which he attributes to a build up of fluid in his head that has “nowhere to go so if just ends up going onto my ears from the inside and then I can’t hear for six months”. It is mainly in his right ear and had been a problem ever since the incident. He gets styes in his eyes every six months and has had nose problems ever since.[78]
[78] T63
137He agreed that he has difficulty being out and about socially and getting around, although he still tries. He struggles to be around noisy environments and tries to avoid them when he can. While at a concert with his daughter, he could not handle the noise. He sat all the way up the back as it got too much for him.[79]
[79] T49
138It is still the case that he continues to drive short distances and avoid heavy traffic as the bright lights cause sharp pain in his head to worsen.[80] He also has difficulty driving because of his neck and right shoulder, having earlier broken his collarbone.[81] The more he drives, the stiffer his neck gets.[82]
[80] T55
[81]T110
[82]T126
Air guitar
139Prior to the incident, he led an active lifestyle despite his accidents in the past. He was a very accomplished air guitarist and placed very high in the world championships in 2006. He attempted to return to this activity but could not perform as he previously had and was unable to stay on stage.[83]
[83]First affidavit
140Pre-incident, he had a passion for air guitar. In 2006, he came second in the World Air Guitar Championships and was the Australian Air Guitar Champion in 2008 and 2009. In 2017, he and his friend re-established the Air Guitar Championships in Australia and he was involved with this for about a year (a few days – the event was on once a year).[84] He attempted to participate in the 2016 Air Guitar Championships in Finland but was unable to perform in the way had been able to prior to his injuries. He was saddened and frustrated that he cannot perform like he used to.
[84]T16
141Air guitar had been a passion of his for many years. It involves someone simulating playing a guitar on stage. He agreed that the activity was “pretty theatrical” and that part of it involved hyping up the crowd and doing a rock star impression in a fairly energetic exhibition.[85]
[85] T63
142It was a serious activity and there were state, national and international competitions. The world titles were held in Finland and were televised. He competed internationally lots of times and came second in the world in 2006.[86]
[86] T64
143His head, vertigo and neck pain effectively put a stop to this activity for a while.[87] He tried to have a go but just did not like it afterwards.[88]
[87] T64-65
[88] T65
144Facebook film posted on 26 August 2016 of 1 hour, 34 minutes and 23 seconds was shown.
145The plaintiff was filmed performing air guitar in a “dark horse” round in Finland. It was not the world championships.[89] He had to be registered to participate.[90]
[89]T67
[90]T79
146His air guitar performance went for about 2 minutes (1 hour, 8 minutes and 15 seconds to 1 hour, 9 minutes and 23 seconds).
147The plaintiff’s stage name was ‘Ranga Banga’ as he wore a bright red wig. At 1 hour and 8 minutes into the film, he entered the stage wearing a long black gown.[91]
[91]T68
148During his performance, he was head banging and spinning his head dramatically in circles to the very fast beat of the AC/DC song “Are you Ready?”. He was doing this with apparent ease and no restriction. He then ripped off his black gown to reveal a red, white and blue bodysuit underneath. He appeared able to move his arms effortlessly over his head.
149He then lay down on the floor, pretending to play a guitar while he spun his body around apparently effortlessly on the floor before he appeared to do a back flip into the audience.
150He quickly returned on stage, without any apparent difficulty, and continued to play air guitar. He jumped and spun his whole body 360 degrees. He completed his performance and high-fived members of the audience. He appeared happy and laughing and in no apparent pain or discomfort.
151The MC then entered the stage (1 hour, 9 minutes and 31 seconds). The plaintiff is seen high fiving members of the audience. The MC commented that “there are easier ways to kill yourself,” referring to the plaintiff’s performance. The plaintiff remained on stage while his performance was scored- what sounded like a number of 5+ votes, and the MC then said – “Oh come on, he almost killed himself. That’s really danger, danger, danger.”[92]
[92] T77
152The plaintiff finally left the stage at approximately 1 hour and 10 minutes.
153He agreed he was shown on the film at the Finland competition. He agreed he was headbanging but said that after that, he was in the corner holding his head and had a headache. The back flip off stage into the crowd caused him to feel dizzy and “stuffed me up completely”. He was not meant to fall off the stage and that was not part of the routine at all.[93]
[93] T68-69
154The headbanging and back flip caused an increase in his head, neck and shoulder pain afterwards. He took about four Panadol before the performance to make sure he was not going to hurt too much.[94]
[94] T69
155He denied practising this routine before arriving in Finland. He had earlier performed the routine in 2010, so he was able to do it “straight off the bat” in 2016.[95] He had that routine 100 times better on another tape.[96] In 2010, he was able to do a proper back flip and landed on his feet.[97]
[95] T74
[96]T69
[97] T75
156The 2016 performance shown was the worst he had ever seen – “I couldn’t concentrate on getting me fingers right. It was just like a mess, like one of me routines was right up – that’s just terrible.”[98]
[98] T75
157He flew to Finland three days prior to the competition. He organised the trip himself and travelled by himself.[99] He took three flights to get to Oulu, where he stayed for a few days – he could not recall the number of nights he stayed.[100] He then travelled to Bangkok for a few days before returning to Melbourne.[101]
[99] T76
[100] T70-71
[101] T72
158He disagreed with the suggestion the film made a mockery of his evidence that he had unrelating pain in his head, neck, back and shoulders asking – “How can you conclude that from one minute of video?”[102]
[102] T77
159He denied that the film showed an extremely energetic performance for him. The only reason the MC made the comment at the end of the performance was because the plaintiff fell off the stage and nearly knocked himself out.[103]
[103] T77
160He stayed at the venue until the contest was finished but did not party afterwards.[104]
[104] T79
161When it was suggested to him that the history provided to occupational physician, Dr Wilkins, in November 2016 was false in light of the film (and photographs) in Finland, he responded – “you just don’t get it, mate”.[105]
[105] T91
162The plaintiff agreed he told Dr Wilkins he had persisting tightness in his head, like wearing a hat that was way too tight. He had intermittent dizziness, particularly when he bent forward and then resumed the vertical, and by physical exertion. His symptoms were made worse by hot weather and physical exertion, particularly straining to lift anything more than trivial weights.[106]
[106]T90
163The trip to Finland was not enjoyable at all. There were a couple of okay times but most of it was not enjoyable.[107]
[107]T103
164In re-examination, he explained that after the performance, he just sat on the stairs holding his head – “but I’m a performer. I’ve broken bones when I was at the circus. The show must go on. You do not let them know you are hurt or anything. It’s part of being a performer. You finish the act and then deal with it afterwards. … Afterwards I was buggered … Me head was sore and because I believe I hit it …”[108]
[108]T124
165He wanted to go to Finland in 2016, as the last time he went there his brother died soon after he arrived and before he performed – “I had to go back because the last time was just terrible and I didn’t want to finish my air guitar career like that.”[109]
[109]T124
166A Facebook page of the air guitar world championships on 27 August showed people on stage, holding balloons and dancing on the stage at the end of the competition. The plaintiff agreed he was in the photograph wearing a green t-shirt but denied it was his comment “sharing the love” on that page.[110]
[110] T80
167Another photograph showed a person, Matt Aristotle Burns, sitting on the plaintiff’s shoulders. The plaintiff agreed it was him in the photograph. It was “the last time [he] was going to be there”. Matt, the winner that day, weighted “like” 40 kilograms. The plaintiff knows he should not have had Matt on his shoulders but he “pushed himself”. It was a one-off thing and that was his “going away sort of retirement thing”.[111]
[111] T81
168In re-examination, the plaintiff confirmed he did not party that night. After the photo ops everyone went their separate ways.[112]
[112]T125
169When it was suggested the film and photographs showed the plaintiff’s complaints of dizziness and constant head and neck pain were nonsense, he replied – “Happens all the time it does.”[113]
[113]T82
170While he could not remember seeing the vocational assessor, Feng Qian, in late November 2016, he accepted the accuracy of his history. He told him about his symptoms of pain and consequences. Amongst other things, he told him he experienced headaches aggravated by any physical activities[114] and that his anxiety was aggravated by sitting in a car by a passenger.[115]
[114] T85
[115] T86
171The plaintiff denied flying on an airplane triggered the same effect because when he was in a car, he had to trust other people are doing the right thing. A plane could crash but was not going to run into something and he did not look out the window “seeing all these things coming at you”.[116]
[116] T87
172He did not know how his head was going to go in the plane “because of all the pressure already on it”. When asked whether his headbanging in the Finland film was a concern, he responded – “What, for a couple of seconds? It’s one minute, it’s not over exertion.”[117]
[117]T96
173He disagreed that the problems he described to Feng Qian were “just nonsense.” He agreed he told Feng Qian that he was unable to tolerate crowds. He was the most stressful person around crowds and people getting in his way and he avoided them as much as he could. He denied having any issues with the crowd in the nightclub during the Finland air guitarist contest. He was not really there for that long – “you’re there for an hour, see you later, let’s go.”[118]
[118] T88
174He agreed he told Feng Qian that he had difficulty interacting with people. He did not talk to other people but was able to talk to people at the contest in Finland. He struggled to explain what he meant about being able to interact with other people.[119]
[119] T89
175When counsel for the defendant suggested the level of activity on the film was at odds with the plaintiff’s description of his problems to occupational physician, Mr Wilkins, in November 2016, to whom the plaintiff had not mentioned Finland, the plaintiff responded – “You just don’t get it mate … I’m allowed to pop a few Panadols … I’m allowed to try to see where I’m at aren’t I?” He denied he did not tell Dr Wilkins about Finland because he thought it would hurt his case.[120]
[120]T91
176He did not deliberately fail to mention his Finland trip to Dr Shan, he just answered the questions asked.[121] He was not trying to hide anything. He did not care about the court case.[122]
[121] T94
[122]T95
177When told there was no mention of the Finland trip by his treating psychologist, Ms Smolcic, he “could not recall anything”.[123]
[123]T95
Canberra
178In 2017, the plaintiff was chosen as one of three judges in Canberra for an air guitar event. He was paid $500. He flew to Canberra but had to get the train back to Melbourne because of fog.[124] He later said he took the train back to Melbourne because of an argument he had with a friend he was supposed to fly back with.[125]
[124]T97
[125] T100
179He was helping his friend organise the relaunch of air guitar Australia competitions by helping him get connections.[126] They secured the name “Air Guitar Australia” and his friend set up the business. The plaintiff did not operate it – he just gave his connections, bought some trophies for the contest and his friend did everything else.[127] – “You ask me questions that belong to the other guy.”[128]
[126] T98
[127] T11
[128]T111
180There were two photographs of the plaintiff at the Canberra event. In one photograph, he was wearing a big blonde wig and headband, posing with about twelve other attendees, also in costume. He was doing devil horns with his hands and had his mouth wide open. In another photograph, he was shown in the same costume and a similar pose, with one other participant.[129]
[129]T100
181He did not really have a good time in Canberra – “Everything always turns to crap.”[130]
[130]T103
182He denied he was shown partying in those photographs – “Is that a party is it? Just because there’s a bunch of people you just think everyone’s partying, woo-hoo. It’s just a photo opportunity, yeah.”[131]
[131]T100
183He still struggles with being a passenger in a car. The traffic gives him PTSD and “anxiety and stuff – because it’s like my life’s the final destination now. Now I’m on the edge all the time.”[132]
[132]T102
184He agreed that after Canberra, he stepped back and did not have anything to do with air guitar concerts.[133]
[133]T112
185Further film was shown of an air guitar contest in 2019. The plaintiff was shown in a Metallica black t-shirt presenting trophies and medals to the winners of the Australian Air Guitar championships in Melbourne, although the plaintiff could not recall at what venue. He did not organise it.[134]
[134] T113
186It was not planned that he would give out the medals. It was a last-minute thing. The guy shown on the microphone was Tommy, the mate he set up the business with, who was running event. The plaintiff showed up halfway through the event and Tommy asked him if he wanted to hand out the medals because he was a previous air guitar champion.[135]
[135]T114
187The plaintiff was not in the competition but participated and celebrated the air guitar final song. He did a big wind up and dropped to his knees, “slowly”.[136]
[136] T114-115
188When it was again suggested what was shown on film was inconsistent with his evidence of his various problems, the plaintiff replied – “I can do shit – stuff to a certain point sir and that’s it. Once I get past that point, it becomes a bit of a problem.[137]
[137]T116
189He believed he got locked up that night because he “lost the plot”. He thinks he just smashed a phone and yelled at people. He does “not remember half of what happens”. He was pretty sure this was the one event he had attended since Canberra.[138]
[138]T116
Golf
190While he did not mention golf in his affidavits, he agreed he had recently taken up golf, as Ms Veronese, specialist anaesthetist, reported in February 2022. She noted it was “interesting” he was playing given his level of shoulder complaint.
191He was playing at Melton Golf Cub. He disagreed playing golf involved repetitive twisting – “you need to keep you head still”. He sometimes used a cart after 9 holes and sometimes just quits at that stage. He tries to enjoy golf but then said, “it sucks”. He tries to get out because it is the only thing in his life – his shoulder is wrecked. It takes him three to five days to recover after a “bloody game of golf”.[139]
[139]T119
Lay evidence
192The plaintiff’s former partner, April Keane, swore an affidavit on 4 May 2022. She was in a relationship with him for six years prior to the incident.
193She recalls receiving a telephone call from someone at the plaintiff’s recruitment agency advising that he had been involved in an accident and had been rushed to hospital. She attended the Hospital and saw his head laceration and sat with him while the nurse stitched his wound.
194Prior to the incident, their relationship was what she considered to be normal. The plaintiff shared housework duties and caring for their first-born son who was almost five years old at the time of the incident. She and the plaintiff were able to communicate and resolve any issues between themselves.
195The plaintiff has been different since the incident. He is unable to tolerate any stress arising from their relationship or children. He is easily frustrated.
196He becomes overwhelmed with any paperwork and stresses easily unless she helps him by reading and explaining the contents to him and providing “easy instructions and assist anytime he needed it”.
197She recalls attending a WorkSafe meeting with the plaintiff at his work a month after the incident where he was able to provide his ideas on how the incident could be avoided in the future. He asked her to join him at the meeting as he was unable to retain any information. He has no recollection of the meeting.
198Since the incident, the plaintiff has been short tempered and had constant headaches.
199Twelve months after the incident, their relationship broke down and they separated in 2015.
Treatment
Western Health
200On 3 February 2014, the plaintiff was brought to Western Health Emergency Department by ambulance at 5.27pm. The ambulance report noted the plaintiff:
“[W]as at work when he drove a motorised pellet jack into a rubberised safety door which caused the patient’s head to be pushed back into the rear safety guard of the pellet jack resulting in a significant avulsion/degloving injury to the left side of the scalp approximately 25cm2 and with depth through to the skull. There was no loss of consciousness. He did not vomit and he had no neurological deficits.”
201The report set out that the plaintiff did not complain of neck pain. His Glasgow coma score was 15. He had not taken any alcohol or drugs. There were no other injuries to his chest, limbs, abdomen or pelvis. He had a deep, approximately 20-centimetre V-shaped laceration down to the bone on the left side of his skull and there was no palpable skull fracture.
202A CT scan of the brain and cervical spine undertaken at the Hospital revealed no intra or extra-axial haemorrhage. No calvarial fracture was demonstrated. No cervical spine fracture was demonstrated. Degenerative changes were noted at C5-6-7 with moderate exit foraminal narrowing.
203The plaintiff’s wound was washed, cleaned and sutured under local anaesthesia and was dressed with Chlorsig ointment. He was given a tetanus shot. He was discharged the following day.
204A further brain CT scan on 17 February 2014 demonstrated no significant intracranial abnormality.
205On 5 March 2014, the plaintiff attended Emergency complaining of headache and pressure on the scalp since the injury, which became worse on movement and activity.
206On examination, he was alert, and his Glasgow coma score was 15. There was no neurological deficit, and his scar was healing well. There was some swelling to his injury and it was tender but there was no discharge. He was advised that he had a healing soft tissue injury which should be managed with analgesia and light duties at work.
207The plaintiff attended Emergency on 13 February 2014[140] because of headaches. He continued to experience pressure in his head since the incident. He had no pain or difficulty in walking or moving his limbs. Examination was normal.
[140]Incorrect date – predates incident
208The plaintiff requested an assessment or report for the purposes of WorkCover or the disability allowance because of his accident-related injuries. He was offered contact details to access his medical record and an outpatient appointment but self discharged before he was given a letter or scan.
Dr Peidman Sayadi – Tristar Medical Group
209Dr Sayadi first consulted the plaintiff the day after the incident and has provided numerous medical reports at the request of his previous solicitors.
210His clinical note dated 4 February 2014 provided the following history of the incident:
“pt came and said has had an injury in his work place at 4 pm yesterday and injured his head on the left side and went to footscray Hospital by Ambulance, they did sutured his wont on the scalp. He came for review today , no infection , no bleeding , L shape wound to the left scalp is sutured (10).
Action: advise not to drive if feel dizziness
Advise to rest
Review in 2/7.”
(sic)
211In his January 2015 report, he noted he referred the plaintiff to neurologists who could not find any abnormality in the examinations and investigations, including a brain CT scan.
212The plaintiff complained of lower back pain on 15 September 2014, which was treated by ani-inflammatories and physiotherapy. He referred the plaintiff to psychologists.
213Dr Sayadi completely agreed with various doctors from QBE who had advised a gradual return to pre-injury duties.
214In his 2017 report, Dr Sayadi diagnosed PTSD, secondary to head concussion. The plaintiff’s “main treatment” was seeing a psychologist. He had been offered to return to work with modifications and restrictions and/or alternative jobs.
215In his May 2019 report, he described the plaintiff’s symptoms of recurrent headaches and depressed mood, which he thought was secondary to PTSD. He thought the prognosis and functional ability required assessment by a psychiatrist. The plaintiff had not seen a psychiatrist despite the several referrals given to him.
216He then thought the plaintiff was physically fit for certain types of work that involved sitting down and minimal concentration such as performing maintenance, process work, packer or storeman. However, his mental functionality needed to be assessed by a psychiatrist and then an occupational therapist.
217As at November 2019, he noted the plaintiff had seen a psychiatrist, who diagnosed him with an Adjustment Disorder with depressive symptoms and anxiety in the context of work-related injury with headaches. Based on recent psychiatric and neurosurgical advice, future treatment recommenced involved psychological treatment and a referral to Mr Lo and a pain specialist at Advance Health Care. Surgery had not been advised.
218In his most recent report in May 2021, having last seen the plaintiff in January 2020, Dr Sayadi diagnosed PTSD with panic attacks, Major Depressive Disorder, Alcohol Use Disorder and a traumatic brain injury that exacerbated an underlying degenerative spinal condition which was as per neurosurgeon opinion, difficult to treat and was dangerous to do via surgery. This caused chronic headaches.
219He referred the plaintiff to a neurologist for his seizure like symptoms and an endocrinologist regarding over sweating.
220He thought the plaintiff did not have capacity to perform his pre-injury duties for the foreseeable future, however, he may have the capacity for suitable employment considering his age and education, skills and work experience which depend on the opinion of an occupational therapist and his medical management team.
Dr Jitesh Sikka, Resolve Medical Centre
221There were note of consultations from 5 September 2019 to 18 January 2022.
222On 5 September 2019, the plaintiff advised of ongoing right wrist pain and left lower rib cage pain after he was punched a week before. He was sent for a right wrist x-ray.
223On 26 October 2021, the reason for attendance was cervical spondylosis, disc prolapse, neck and back pain and a recent right clavicle fracture. The plaintiff suffered a head injury more than a decade ago from which he still experienced dizziness. The plaintiff had a recent hydrodilatation for his right shoulder pain and continued to see his psychologist for anxiety, insomnia and depression.
224Two days later, the plaintiff told Dr Sikka by phone that Panadeine Forte, Tramadol and ibuprofen was not helping his pain. Dr Sikka noted he was not able to prescribe Endone.
225On 9 November 2021, Dr Sikka referred the plaintiff to Mr Lo for a follow up assessment.
226There was no report from Dr Sikka.
Specialists
Cervical spine
Mr Patrick Lo, neurosurgeon
227Mr Lo first saw the plaintiff in November 2019 on referral from Dr Sayadi.
228Mr Lo wrote to Dr Sayadi following a neurosurgical examination of the plaintiff. He noted that in the incident, the plaintiff suffered horrific head and neck injuries and had since suffered severe neck pain.
229On examination, the plaintiff was clinically intact but reported pain radiating down his right arm and into his right hand. He had multiple previous long bone-type injuries as a well as a prior glass injury to his right axilla, causing permanent numbness in his fingers. His clinical picture was quite complex.
230The September 2019 cervical MRI confirmed a focal right-sided C5-6 osteophyte/disc/ossified posterior longitudinal ligament compressing the spinal nerve root. A cervical CT scan undertaken on the day of the incident revealed a prominent calcified fragment. An updated scan was required to determine the extent of calcification or ossification.
231He referred the plaintiff for multi-disciplinary management assessment at Advance Healthcare and arranged an updated cervical CT scan.
232Mr Lo then reviewed the plaintiff on 15 July 2020 via Telehealth conference. The plaintiff had persistent right arm symptoms. The updated cervical CT scan identified a right-sided opacified posterior longitudinal ligament, which added to the narrowing of the canal.
233Based on this updated CT scan, he diagnosed an exacerbation of an underlying degenerative spinal condition. The ossified posterior longitudinal ligament (OPLL) was notoriously difficult to treat, and surgery was dangerous. He therefore recommended conservative treatment. The plaintiff had gained some improvements with the multi-disciplinary approach at Advance Healthcare, and he recommended a further follow up appointment.
234The plaintiff was re-assessed by Telehealth on 13 October 2020. He had completed his pain management, but the medications used to treat his pain caused side effects. He ceased medications but continued attending physical therapy. He was tolerating the persistent pain he was experiencing and was discharged thereafter with the option to return should his symptoms become unbearable.
235Mr Lo diagnosed a neck injury as a result of the incident resulting in aggravation, exacerbation and acceleration of an underlying degenerative cervical spinal condition resulting in his neck pain and occasional right arm pain. There was a further diagnosis of concussion and PTSD.
236On balance, he thought there was a temporal relationship between the onset of the symptoms and the incident and therefore, the incident was a significant contributing factor to the onset of these conditions.
237In relation to the concussion and PTSD, the employment remained materially contributed to the incapacity and impairment. In relation to the cervical spine, while the injurious event and force had subsided, the plaintiff’s employment was no longer materially contributing to the incapacity. That is, the incapacity had been set from the initial injury.
238The plaintiff did not have any current capacity for pre-injury occupation or capacity for any suitable employment.
239Prognosis was poor given the length of time from initial injury. The plaintiff’s condition had become permanent and was likely to further decline.
240On re-examination in November 2021, the plaintiff reported severe neck pain and arm symptoms. He had a head spin, fell and sustained a fractured collarbone and a frozen right shoulder. He underwent hydrodilatation without any great benefit.
241Mr Lo was concerned that the plaintiff had flared up his neck injury, and organised a further cervical MRI scan. The plaintiff reported symptoms of lower back pain and leg symptoms. A lumbar MRI scan was organised for diagnostic purposes.
242On 8 December 2021, Mr Lo reviewed the MRI scans. Lumbar scans revealed mild disc herniation at the L4-5 and L5-S1 level without significant neural compression. Surgery was not advised and a conservative approach involving physical therapy, hydrotherapy and gym exercises was recommended.
243Cervical radiology remained unchanged with clear right-sided foraminal narrowing at the C5-6 level and, to a lesser degree, at the C6-7 level. He did not suggest surgical intervention and instead recommended the plaintiff return to Advance Healthcare to obtain an updated pain management program.
244Mr Lo suggested a review in three to four months.
Dr Malcom Ong, pain specialist
245Dr Ong first saw the plaintiff in February 2020, the plaintiff having failed to attend a number of earlier appointments in the preceding months. He was initially referred to Dr Ong for assessment and to determine his management recommendations for treatments.
246The plaintiff had complex medical issues surrounding his physical injury and pain-related issues but also multiple other secondary psychological and psychosocial issues.
247Following a detailed assessment in February 2020, it became apparent to Dr Ong that the plaintiff suffered from chronic pain and pain-related conditions and also secondary psychological conditions relating to his injuries.
248Following the initial assessment by the entire pain team, it was recommended that the plaintiff participate in a multi-disciplinary pain management program, which he commenced in May 2020.
249Dr Ong saw the plaintiff several times as part of the initial program, as well as preparation to embark on the full program.
250The plaintiff struggled at the beginning of the program with apprehension, pain and pain focus but made a slow gradual progress thereafter. He experienced physical symptoms and limitations, and he was trying to manage his conditions better. Psychologically, he remained apprehensive with anxiety and depression and required some medication adjustments.
251The plaintiff presented to Dr Ong complaining of, inter alia, headaches, dizziness, pain in his neck, right shoulder, lower back and radicular upper limb pain.
252While doing his normal duties in February 2014, he had an injury and developed neck, shoulder and back pain. He developed back pain from his work injury after a tugger he was driving to push pallets went under a roller door and his head was impinged between machine and roller door.
253The pain persisted following the incident and progressively became worse and problematic over time. The plaintiff consulted his GP and was referred for allied health management with limited effect and relief. There was a generalised deconditioning preventing the plaintiff returning to normal recreational and work activities which had not responded to single discipline approaches.
254On examination, the plaintiff appeared unwell and anxious. His gait was slow and guarded with antalgic gait. His mood and affect were flat and depressed with anxious episodes, some suicidal thoughts, frequent nightmares and some flashbacks.
255Cervical spine movement was limited with apprehension and painful arc. There was mild to moderate tenderness and slight reduced sensation in the right C6-C7 dermatomes.
256There was stiff range of motion in both shoulders with painful outer and upper arc. The plaintiff had a slight stiff and restrictive thoracolumbar range of motion with painful arc and apprehension and some tenderness. There was slight reduced sensation L3, L4 and L5 dermatomes on left leg.
257Dr Ong’s impression was that the plaintiff suffered a work-related injury with chronic cervical and thoracolumbar pain syndrome from a traumatic work incident, OA degenerative disease and inflammatory and myofascial conditions, including discogenic and neuropathic components.
258The plaintiff suffered from chronic bilateral shoulder pain syndrome with degenerative disease, inflammatory and myofascial conditions.
259He also diagnosed post-concussion syndrome with chronic headaches and dizziness. Psychologically, he diagnosed secondary Depressive and Anxiety Disorder, Adjustment Disorder and PTSD traits.
260The pain management program focussed on a return to work, better pain management, improved sleep, regular exercise program, psychological review and diet monitoring. Following the completion of the program, the plaintiff would be discharged back to his usual treaters.
261The plaintiff was not working, and a gradual return to any employment was recommended. His capacity was limited, lifting from 3 to 5 kilograms maximum, no prolonged positions, no repetitive duties or overhead or floor level floor work with no bending or twisting duties.
262However, Dr Ong thought the plaintiff did have capacity for lighter duties or a modified role in an office-based or sedentary role with one to three hours per week at two to four hours per day with breaks.
263He suggested that the plaintiff could later drive some light commercial vehicles without manual duties but would be unable to repetitively climb in and out of high ladder rungs. The plaintiff must also minimise excessive or repetitive pushing, pulling, bending, crouching, prolonged walking and on uneven ground, kneeling, crawling, squatting fully, climbing reaching high up or low down or any heavy manual repetitive duties. The plaintiff may be able to continue to long-term duties but restricted to lifting under 5 kilograms and avoiding repetitive or manually intensive work in the future.
264The plaintiff would always have some limited capacity due to his physical and secondary psychological condition, alone or in combination.
265Some of the duties set out in the November 2019 Recovre report, including unskilled labouring-type duties, may fall within some of the plaintiff’s restrictions but he would be limited to restricted duties and hours so would not be feasible employment.
266He related the plaintiff’s symptoms and injury to the incident. The prognosis for all his conditions remain guarded and he would likely suffer persistent pain symptoms and limited capacity for the foreseeable future.
267In his May 2021 report, Dr Ong noted the plaintiff was to undergo the second part of his pain program in August 2020, which was more intense. Due to multiple issues including limited progress, limited participation, limited outcomes and limited benefit from physiotherapy and psychological treatment, he was discharged early from the program. He returned to see his GP and usual treaters. He consulted Dr Ong when required for severe exacerbations or any ongoing issues.
268He confirmed his earlier diagnosis and work restrictions. The plaintiff had capacity for limited alternative duties within the restrictions outlined. Despite this, new employment opportunities remained doubtful. The plaintiff needed to pace himself and to learn to live with his pain to some degree.
269The incident remained a significant contributor to the injuries sustained and the impairment involving the plaintiff’s neck, back, spine upper limbs and lower limbs. The prognosis remained guarded for all injuries, and he would likely suffer persistent pain symptoms, secondary psychological concerns and limited capacity for the foreseeable future.
Psychiatric
Ms Laura Smolcic, clinical psychologist
270The plaintiff first saw Ms Smolcic in June 2015 on referral from WorkCover. Treatment continued until November 2016.
271In November 2015, she reported that the plaintiff presented with symptoms of, amongst other things, increased anxiety, depression, feelings of worthlessness, relationship issues and anger and frustration. He advised that these symptoms commenced following the workplace incident causing a head injury and consequent chronic pain.
272That month on self administered testing, the plaintiff scored in the severe range for his depression (BDI-II) and symptoms of anxiety (BAI). He scored 50 on the Impact of Events Scale, which indicated to her that the event causing his injury was affecting him and that he exhibited symptoms of PTSD.
273She thought that the plaintiff’s symptoms of anxiety and distress were predominately related to his physical health issues arising from the workplace incident. Given the nature of his health issues, psychological treatment was essential in preventing further deterioration of his condition and a return to appropriate work in future.
274Throughout the course of the treatment until November 2016, progress in improving the plaintiff’s mental health had been slow. If he had the motivation and availability of attending regular psychology sessions, he may have had a better prognosis for psychological recovery.[141]
[141]T95. There was no mention of the plaintiff’s air guitar visit to Finland
Dr Angelo Pagano, clinical psychologist
275The plaintiff then saw Dr Pagano from 21 August 2019. He also attended two sleep therapy group consultations with Mr Lush, psychologist, at the practice.
276The plaintiff initially stated he wanted to reduce dreams and insomnia, improve depression and pain management. He reported sadness about what occurred at his workplace, especially regarding the loss of his previous physicality. He reported poor memory and concentration and lacking motivation.
277In relation to his head injury, he reported forgetfulness about what happened on the said date, the day before and short-term memory issues. He experienced a sensation of constant pressure in the head and random sharp pains in the left temporal lobe region. He reported loss of balance, persistent and numerous daily headaches, dizziness following any physical activity, difficulty with prolonged bending and sitting.
278He described significant and cyclical depressed mood every two to three days lasting for an hour to three days. He was not socialising anymore in contrast to his premorbid state where he enjoyed being at friends’ homes, rollerblading and skating with his children.
279He described an increase in his alcohol intake. Some weeks he did not drink. He has been a heavy drinker since a young age, commencing at age fifteen. He had ceased drinking until the incident when he relapsed.
280Dr Pagano diagnosed PTSD, Major Depressive Disorder, Panic Disorder, Alcohol Use Disorder and Traumatic Brain Injury. Based on the 2019 assessment, the plaintiff’s capacity for his pre-injury work was nil.
281On 29 July 2020, the diagnosis remained unchanged, and the plaintiff continued to be incapacitated for work generally or to undertake work in the future.
282In his May 2021 report, having been provided with the 2014 CT brain scan, along with reports of neurologists, Dr Poon and Professor Simon Crowe, Dr Pagano thought that the plaintiff’s symptoms may be related to cognitive functioning problems. He offered a differential diagnosis that the plaintiff’s other symptoms could be accounted for by severe PTSD and mood disorder.
283The plaintiff’s prognosis was guarded, and recovery was poor, based on his minimal response to active psychological treatment and persistent head-trauma based symptoms over a long period of time.
284Dr Pagano still thought that the plaintiff could not perform his pre-injury duties and that his mental state as most recently assessed in February 2021, placed him at risk in the workplace. Given the nature of his conditions, age, limited education and skill set and availability of employment options, he believed that sourcing employment for the plaintiff was very problematic.
Plaintiff’s medico-legal evidence
Psychiatric
Dr Estella Papier, psychiatrist
285Dr Papier examined the plaintiff on multiple occasions in 2016. Her 17 June 2016 report, organised by QBE, was relied on by the plaintiff.
286In her view, from a psychiatric perspective, the plaintiff could not do the jobs identified in the vocational assessment. This was because his PTSD was unremitting. He was focused on his pain and disability. He had become very socially isolated. He did not see himself as having a capacity for work.
287The plaintiff had very significant issues, some were longstanding, and some were aggravated and accentuated by his incident-related injuries. He required trauma-specific therapy in order to recover and it was unclear whether he was capable of undertaking treatment or would respond to it.
Dr Steven Adlard, psychiatrist
288Dr Adlard examined the plaintiff in on 24 July 2015 and 21 November 2017. The plaintiff relied on his July 2015 report.
289The plaintiff told Dr Adlard that his life significantly changed following the incident. He was unable to help his partner with their baby and had no money. His partner kicked him out of the home because of his behaviour. The noise at home was “doing my head in” and there was an incident where he drank a six-pack of beer and acted poorly.
290He had been referred to a psychiatrist six months earlier by his GP and had seen a number of psychiatrists at the clinic. He was commenced on the antidepressant medication Effexor, 75 milligrams daily.
291On mental state examination, the plaintiff was anxious and depressed, particularly when discussing his ongoing symptoms and numerous changes to his life. The themes of his speech focussed on his losses as well as his ongoing physical symptoms, with some post-trauma symptoms expressed including re-injuring his head.
292The plaintiff described subjectively impaired concentration and memory which appeared, during interview, to be grossly within the normal range. Cognition was not specifically tested.
293The plaintiff advised Dr Adlard that he was unable to compete internationally as an air guitarist anymore because he would need to shake his head and it would hurt.
294Dr Adlard concluded that the plaintiff had developed PTSD and an Adjustment Disorder with Depressed Mood arising from the incident.
295He did not comment on the plaintiff’s work capacity but thought he should be able to attend a vocational assessment.
Dr Nigel Strauss, psychiatrist
296Dr Strauss assessed the plaintiff on 3 July 2018. He obtained a history of the incident consistent with the plaintiff’s affidavit evidence.
297The plaintiff complained of experiencing significant memory and concentration problems following the incident. He had not worked since then and was vague when describing what he had done over the years. He had not attempted to return to work and had not completed any retraining programs.
298The plaintiff said that he was not happy but did not cry, and had fleeting suicidal thoughts he would never act on. He struggled to sleep and woke frequently. He described nonspecific dreams of frightening accidents in which he was injured. He denied flashbacks but ruminated about the incident every day.
459At that stage in the address, the plaintiff left the courtroom as he was getting agitated listening to these submissions. His counsel went outside and spoke to him. Counsel then apologised on the plaintiff’s behalf and indicated he would prefer to wait outside rather than hear the addresses.[152]
[152]T139
460Dr Veronese had commented recently that it was surprising the plaintiff was trying to play golf as there is a lot of shoulder movement involved. It was submitted the plaintiff was not merely trying to exaggerate his pain and restriction; he was “outright lying”.[153]
[153]T140
461The plaintiff believed he could both exaggerate and lie in his affidavits and come to Court and lie repeatedly. The upshot of it all was that medical reports were based on a significant level of disability and were therefore contaminated with false histories and untruthful descriptions of pain and restriction.[154]
[154]T141
462It was submitted the plaintiff’s application should fail on the basis the evidence which was revealed in Court was damning against his credit and it flowed through and contaminated the rest of the evidence.[155]
[155]T141
463In response, counsel for the plaintiff submitted the plaintiff gave his evidence in a straightforward manner, having regard to his personality. He tried his best at all times, effectively managing to keep it together before the outburst before lunch when he did become “somewhat upset”.[156]
[156]T157
464It was submitted the plaintiff was hardly on a level playing field, with comprehension difficulties as noted by Dr Gibbs, neuropsychologist.
465It was submitted the plaintiff put in a consistent effort with testing, as Ms Ponsford opined. He tried his hardest, as Professor Crowe and Dr Gibbs noted.[157] Further, Mr Simm found no abnormal illness behaviour or signs of unconscious exaggeration on examination.[158]
[157]CB 219
[158]T157
466The surveillance film, “although somewhat compromising, represented about two to three minutes of the plaintiff’s life in nearly nine years”. There was surveillance as the Court Book index indicated, but no film was shown.[159] It was submitted, in those circumstances, the Court could more readily accept the plaintiff’s account of the incident consequences.[160]
[159]T157
[160]T158-9
467In response to my comment that the whole Finland episode was “quite extraordinary,” counsel for the plaintiff submitted the plaintiff’s personality feeds into it. He had been to Finland before. There was the connection with his brother. He told some doctors he was going there. While he did not tell Dr Shan, Dr Shan said he did not ask him, having regard to his fragile mental state at the time.[161]
[161]T159
468Counsel for the plaintiff agreed that the film was “pretty incredible”. It was conceded the activity shown was extraordinarily intense, but it was submitted the plaintiff had said it was not extremely intense for him.[162]
[162]T159
469I indicated I had significant concerns about the plaintiff’s credit based on the film, although the film was short.[163]
[163]T159
470Counsel for the plaintiff described the plaintiff’s later air guitar participation as “a bit more sedate”.[164] The plaintiff said he did not practise and that it could be accepted he fell off the stage in Finland.[165]
[164]T160
[165]T160
471When looking at issue of bright lights et cetera, the plaintiff also volunteered that he took his daughter to a concert.[166]
[166]T160
472It was submitted Dr Strauss’s opinion was informative in terms of credit, given his view of the plaintiff’s personality and how it contributed to his presentation. He has always had difficulties coping with his circumstances. He is a vulnerable individual and it is an eggshell skull scenario. He was functioning well at the time of the incident, and then things went downhill. He was working consistently up until that time.[167]
[167]T161
473It was submitted that pre-incident, the plaintiff was seemingly very stable, and it took a simple incident which was very violent, where he has this terrible laceration to his head, which was a major event, and he has a bad response because of his lack of coping skills.[168]
[168]T162
474While the defendant submitted the plaintiff was untrustworthy and, in fact, was an outright liar, it was submitted that that was not the case and that his evidence should be seen in light of his personality and difficult background.[169]
[169]T173
Findings
475Counsel for the plaintiff had significant difficulty meeting the numerous credit issues raised by counsel for the defendant, particularly in relation to the Finland film, which was quite extraordinary.
476The film was significant in terms of the plaintiff’s understatement of his involvement in air guitar and also, the level of movement shown, in albeit two minutes of film, and subsequent attendances at other air guitar competitions. There was nothing “sedate” in the plaintiff’s air guitar performances. They were in sharp contrast to the significant disability he described to examiners and in his affidavits.
477Given his activity in the film, I do not accept the plaintiff suffers from the serious issues related to any neck injury he describes now and to doctors around the time the film was taken. I do not accept his explanation, attempting to play down the level of activity shown on film. His evidence in relation to this issue went beyond untrustworthy and was, in my view, untruthful.
478I found the plaintiff to be an unreliable witness who was not prepared to acknowledge significant problems and treatment for his neck pre-incident.
479Given the Hospital report noting no complaint of neck pain and the limited mention of neck pain to his general practitioner following the incident as summarised by Mr Simm, I do not accept the plaintiff’s evidence that neck pain came on soon after the incident and has continued to worsen thereafter.
480I am mindful of what was said by Chernov JA in Dordev v Cowan & Ors,[170] that in this type of case, a plaintiff’s credibility is relevant not only to whether his evidence should be accepted, but it is also relevant to the reliability of the medical evidence, because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.
[170][2006] VSCA 254 at paragraph [14]
481Accordingly, in this case, what appear on their face to be medico-legal opinions supportive of the plaintiff’s application – having been told by him of very significant health problems relating to the incident – must be looked at in the light of my views as to his credit. Taking into account these matters, any supportive medical evidence is significantly undermined.
Psychiatric injury
482Counsel for the plaintiff indicated the psychiatric application was the first and foremost impairment upon which the plaintiff relied. The diagnosis is PTSD or a Chronic Adjustment Disorder, and there are a “myriad of medical opinions which support that diagnosis”. The secondary submission was that the cognitive consequences fall from that psychiatric condition and that they are causing an incapacity for work of their own.[171]
[171]T162
483While the real focus was the psychiatric, under that head, counsel for the plaintiff included views of neurologists, who considered cognitive issues were psychiatric.[172] It was submitted that seemed to be the weight of the medical opinion.[173]
[172]T168
[173]T169
484Dr Adlard, in July 2015, diagnosed PTSD with Depressed Mood and an Adjustment Disorder. He thought the plaintiff could have been seriously injured or killed in the incident.[174]
[174]T167
485Dr Papier, who saw the plaintiff for the insurer in January 2016, thought the plaintiff had no work capacity, and diagnosed PTSD and an Adjustment Disorder. PTSD was then unremitting, and the plaintiff had very significant symptoms.[175]
[175]T167
486Dr Strauss’s 2018 opinion that the incident was significantly contributing to the plaintiff’s psychiatric condition was relied upon. He thought the plaintiff presented with a range of physical, psychological and cognitive symptoms which, to a large extent, were psychologically based, and he doubted whether he would ever be able to work again.[176]
[176]T163
487In response to my comment that the psychiatric evidence was stronger in the years immediately after the incident, counsel for the plaintiff submitted more recent opinion was also supportive of the plaintiff’s application.[177]
[177]T167
488While counsel conceded perhaps Dr Shan “sort of modified” his conclusion to mild PTSD over time, neuropsychologist, Professor Ponsford, in 2020, noted high levels of anxiety and depression, and thought plaintiff’s cognitive difficulties related to the psychiatric condition.[178]
[178]T168
489Dr Sheehan, more recently in July 2020, diagnosed chronic PTSD and a Chronic Adjustment Disorder which had stabilised, and considered the plaintiff is not capable of a return to pre-injury duties for the foreseeable future.[179]
[179]T168
490Psychologist, Mr Pagano, in his most recent report of May 2021, thought the plaintiff had no work capacity, diagnosing PTSD, Depressive Disorder, Alcohol Abuse Disorder and also ABI brain injury and related cognitive functioning problems.[180]
[180]T163
491It was submitted the plaintiff was not capable of a return to pre-injury duties because of his psychiatric condition, nor was he fit for suitable employment.[181] The consequences of this impairment are severe. He cannot work so he has suffered the appropriate loss.[182]
[181]T168
[182]T169
492The defendant conceded the plaintiff suffered a psychiatric injury in the incident but submitted there was clearly some pre-existing psychiatric history.[183]
[183]T151
493In 2015, Dr Adlard initially diagnosed PTSD and an Adjustment Disorder with Depressed Mood; however, in 2017, his diagnosis appears to have a significant downgrading, diagnosing Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood, and no mention of PTSD.[184]
[184]T152
494Dr Adlard also thought that some of the plaintiff’s psychiatric symptoms related to factors outside the workplace injury. Further, in his view, the plaintiff’s presentation in 2015 and 2017 did not suggest an organic brain injury.[185]
[185]T152
495Dr Strauss thought it was a complex case and did not believe all of the plaintiff’s current presentation was a result of the incident. Certainly, it significantly contributed to his problems, but other personality factors were relevant. He diagnosed current Adjustment Disorder with Mixed Anxiety and Depressed Mood, and some elements of traumatisation. It was submitted that that opinion was more on the level of Dr Adlard’s “downgraded” diagnosis.[186]
[186]T153
496In February 2022, Dr Shan thought there was probably a diagnosis of mild PTSD that was difficult to distinguish from the plaintiff’s natural personality by disposition. He also considered the plaintiff had a capacity for alternative employment.
497It was submitted the plaintiff’s personality was a common thread that ran through a number of medico-legal reports.[187]
[187]T153
498There had been psychological, not psychiatric, treatment. While treating psychologist, Dr Pagano, diagnosed PTSD, Depressive Disorder, alcohol and then some cognitive issues and thought that the plaintiff could not do pre-injury duties, he did not “disentangle”.[188]
[188]T154
499Dr Ong thought the plaintiff was pain focussed.[189] He seems to say there are psychiatric and cognitive factors. He also thought it became apparent the plaintiff was suffering from chronic pain and pain-related conditions and also secondary psychological conditions relating to his injuries.[190]
[189]T154
[190]T155
500As far as there was any psychiatric injury, it was submitted the correct diagnosis is Dr Shan’s diagnosis of PTSD of a mild nature, the main opinion relied on by the defendant. Significantly, with that condition, Dr Shan thought the plaintiff had a capacity for work.
Findings
501Taking into account all the evidence, I am not satisfied the plaintiff has a severe psychiatric impairment as a result of the incident.
502The defendant conceded there was a psychiatric injury in the incident but clearly, there were some pre-existing problems. His evidence is these earlier problems related largely to the death of his brother in 2011 when he had some treatment. This situation, however, does not appear to have had any impact on the plaintiff’s level of functioning in 2014.
503Clearly, the incident was a very frightening one, with the plaintiff suffering a significant head laceration. The focus of treatment at the outset was, not surprisingly, on head pain and headaches.
504However, it does not seem the plaintiff has seen a psychiatrist in relation to his incident injury. While the plaintiff deposed that Dr Sayadi referred him to psychiatrist, Dr Inda Mohan, in 2019, there is no report from that psychiatrist or any other. Dr Sayadi did note, however, that the plaintiff had not seen a psychiatrist despite the several referrals given to him.
505Treatment was initially from psychologist, Ms Smolcic, until late 2016. At that early stage, she thought the plaintiff’s PTSD was unremitting and he had very significant symptoms.[191]
[191]T167
506Dr Pagano then took over the plaintiff’s care and continues to see him. In his most recent report of May 2021, he thought the plaintiff had no work capacity and his work future was problematic because of a range of conditions – PTSD, Major Depressive Disorder, panic attacks, Alcohol Abuse Disorder and Traumatic Brain Injury. While he made this range of diagnoses, Dr Pagano did not undertake any disentanglement of these conditions in terms of the plaintiff’s work capacity.
507The plaintiff also received some psychological treatment as part of the pain management program with Dr Ong.
508It is unclear what, if any, medication is currently prescribed for psychiatric issues. Lyrica was prescribed in 2015. In 2016 and 2017, Effexor and Pristiq were prescribed but did not relive the plaintiff’ symptoms. When seen by medico-legal psychiatrist, Dr Shan, in 2022, the plaintiff advised he was no longer taking prescription medication. This history was consistent with the plaintiff’s viva voce evidence.
509From a psychiatric medico-legal perspective, in early days after the incident, there was pretty strong support for a significant PTSD by Dr Papier, psychiatrist, who saw the plaintiff on multiple occasions in 2016. She then thought PTSD was unremitting and the plaintiff had very significant symptoms.[192]
[192]T167
510However, over time, psychiatric opinion has been of a reduction in the severity of symptoms, a “sort of modification”, as counsel for the plaintiff conceded, with the consensus of that opinion that the plaintiff now suffers a mild PTSD as Dr Shan diagnosed in 2022.
511Dr Adlard, while diagnosing PTSD in 2015, by 2017 thought the plaintiff was no longer suffering PTSD but rather chronic Depression and Anxiety.
512Following a psychiatric assessment in 2018, the Medical Panel concluded the plaintiff was suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood with some features of traumatisation relevant to the accepted psychiatric injury and partly unrelated to the injury.
513Dr Strauss’s opinion following examination in 2018 was relied on by both parties. He did not diagnose PTSD but thought the plaintiff was totally incapacitated for work, diagnosing an Adjustment Disorder with Mixed Anxiety and Depression and some evidence of traumatisation.
514Dr Strauss’s view was based on an acceptance of significant psychiatric symptoms described by the plaintiff at that time – a situation I do not accept.
515Further, Dr Strauss identified the plaintiff having personality problems in what he described as a complex case.
516Dr Shan saw the plaintiff on a number of occasions between 2017 and most recently, in February 2022. Ultimately, his diagnosis was a mild PTSD, which he thought was difficult to distinguish from the natural personality of the plaintiff. He thought the plaintiff was fit for suitable duties in terms of his physical capacity.
517When considering an application relating to a psychiatric impairment, the history given by the plaintiff to examiners is particularly relevant when assessing whether ay impairment is “severe” as the legislature recognised, with the higher test of severe under sub-paragraph (c) that must be satisfied before leave is granted.
518Dr Sheehan, psychiatrist, saw the plaintiff twice in 2020, most recently in July. He diagnosed chronic PTSD and a Chronic Adjustment Disorder that was moderately severe; however, he based his view of total incapacity for work on the plaintiff’s description of significant problems – problems I largely do not accept.
519In my view, any psychiatric problem the plaintiff presently suffers does not of itself incapacitate him for work to any significant degree, let alone anywhere near the requisite 40 per cent.
520As counsel for the defendant submitted, in this application, various body parts which make up the application are inextricably meshed together and have not been disentangled as required in Peak.[193]
[193]Supra
521I accept the submission that it is not possible, where the plaintiff’s evidence is an exaggeration, and the medical evidence is so complex and conflicting, for the Court to separate physical from psychological.[194]
[194]T141
522Taking into account my views as to the plaintiff’s credit, the limited psychiatric treatment he has received and the impossibility of disentangling any psychiatric consequences from those relating to his other claimed impairments, I am not satisfied any psychiatric impairment is “severe”.
523Accordingly, the application under sub-paragraph (c) is dismissed.
Organic brain injury
524Having briefly dealt with the psychiatric impairment, counsel for the plaintiff then said, “really, the focus will be on the post-concussive syndrome” rather than (c).[195]
[195]T164
525Counsel relied on the 2015 report of neurologist, Dr Evans, who diagnosed post-concussive syndrome with headaches and also PTSD. Dr Evans made a similar diagnosis in 2017. He thought the prognosis for the plaintiff’s condition was guarded, in terms of chronic headaches, and it was very likely he would remain unemployed.[196]
[196]T174
526Dr Evans opined the post-concussive syndrome with headaches were impacting to an extent on the plaintiff’s occupational functioning, and he was only able to work in activities organising air guitar events.[197]
[197]T173
527In July 2018, the Medical Panel found there were persisting features of post-concussive syndrome including intermittent dizziness and headaches on repeated head movement.[198]
[198]T174
528A/P Pearce’s test results in 2022 were relied upon showing some increased brain inhibition consistent with his research into persistent post-concussive symptoms.
529It was submitted there is an organic basis for the plaintiff’s headaches and the plaintiff’s description of them, and his dizziness and other symptoms meant he had no work capacity at all.[199]
[199]T174
530Counsel for the defendant submitted the starting point was a laceration to the head, and investigations taken soon thereafter which are notable for the absence of any brain injury.
531There were no findings of brain injury on the CT scan on 3 February 2014. The follow up CT scan of the brain on 17 February 2014 demonstrated no significant intracranial abnormality.[200]
[200]T147
532Mr Poon, the first neurologist to examine the plaintiff, had the benefit of both scans and thought there was certainly no evidence of a cerebral injury, clinically or radiologically, and considered the plaintiff’s neurological prognosis was excellent.
533It was submitted Mr Poon’s opinion was significant, as he was the plaintiff’s primary treater. This was “a pretty emphatic opinion and compelling evidence of the existence or absence of any brain injury a year after the incident.”[201]
[201]T148
534While the Medical Panel appears to give the plaintiff some support in this regard, it was submitted their view was based on the history provided by the unreliable plaintiff.
535There was a reasonable opinion from Dr White, neurologist, in November 2019, who thought it was possible that there was a traumatic labyrinth dysfunction, but unlikely on balance. He did not believe the plaintiff suffered a long-term organic injury that would compromise his capacity to function.[202]
[202]T149
536In November 2019, Professor Crowe, neuropsychologist, found no ongoing neuropsychological deficit he could identify.[203] He also thought that the plaintiff may have had a mild, traumatic brain injury at most, which had resolved in full, with no impediment to any work.[204]
[203]T149
[204]T150
537Professor Ponsford, neuropsychologist, who carried out testing in late 2019 at the request of the plaintiff’s solicitors, thought the plaintiff’s symptoms were consistent with Anxiety and Depression and found no cognitive impairment related to the incident. She did not believe that the plaintiff had any cognitive impairment that would reduce his capacity for employment of any kind, including the jobs suggested by the vocational assessor.
538Neurologist, Dr Faragher, also sourced by the plaintiff’s solicitors, found no focal neurological signs.[205]
[205]T151
Findings
539The plaintiff’s main complaint has been of headaches and dizziness/ vertigo/random head spins and issues with memory and concentration. They must be explicable on an organic basis for the plaintiff to succeed under sub-paragraph (a).
540Taking into account all the medical evidence, including his Glasgow coma score of 15 at the Hospital and subsequent extensive neuropsychological testing, I am not satisfied the plaintiff suffered an organic brain injury in the incident.
541The consensus of recent neurological opinion is there is no substantial organic basis for the severe headaches, dizziness, issues with memory and concentration et cetera of which the plaintiff continues to complain.[206] On that basis, the incident has no relevance to any falls and injury the plaintiff has suffered in relation thereto.
[206]Meadows v Lichmore Pty Ltd [2013] VSCA 201 at paragraphs [21]-[22]
542While in July 2018, the Medical Panel concluded that the plaintiff suffered a concussive head injury, complicated by headaches and dizziness, it found no objective signs of brain injury and a laceration of the left scalp complicated by mild allodynia. The Panel found the plaintiff’s neurocognitive function to be intact and in convincingly normal limits.
543There was little support for a brain injury in Professor Pearce’s 2022 testing.
544I also do not accept the plaintiff has the level of cognitive and neurological problems he describes in this regard, given my adverse findings as to his credit.
545Accordingly, this application in relation to cognitive impairment/organic brain injury is also dismissed.
Cervical spine
546Counsel for the plaintiff submitted the plaintiff did suffer a neck injury in the incident. While the Hospital records set out on his attendance he did not complain of neck pain, he had a cervical CT scan and was given a neck collar for 24 hours.
547The plaintiff explained his focus initially was on his head, which was pretty understandable given the severity of the injury. His neck was initially stiff and then it gradually got worse.[207]
[207]T172
548The plaintiff’s position was his neck condition was related to the incident and it prevented him from working.
549Mr Lo diagnosed exacerbation of an underlying degenerative condition and considered the plaintiff had no work capacity.[208]
[208]T170
550Professor Bittar also diagnosed a cervical injury. He thought employment was a significant contributing factor and was now materially contributing to the incapacity. He considered the plaintiff had a permanent incapacity for any of the roles identified by Nabenet.[209]
[209]T171
551It was submitted both neurosurgeons, Mr Bittar and Mr Lo, who are very experienced, accept the relationship between the incident and the plaintiff’s condition which prevents him from working.
552It was submitted Mr Haig’s report could be disregarded. He had seen the plaintiff eight years after the incident and seemed to be the only doctor who thought the plaintiff would be able to do his pre-injury duties.
553Mr Simm did think there was an organic basis for the plaintiff’s pain. He thought the plaintiff had a capacity for suitable employment on a physical basis but deferred to a psychiatrist in terms of work capacity.[210]
[210]T172
554In terms of seriousness, the complaint of neck pain, the need for medication and what the plaintiff said about his physical restrictions were relied upon.[211]
[211]T172
555Counsel for the defendant submitted the plaintiff did not suffer a neck injury in the incident. Further, he had a quite extensive history of pre-existing cervical spine issues, as Mr Simm described in some detail.
556There were issues in 2005. A 2006 MRI scan showed C6 nerve root impingement. The plaintiff had treatment for his neck with Mr Lo in 2008. The plaintiff himself described further pain and soreness at times in his evidence.[212]
[212]T142
557Not only is there pre-existing neck pain, but it was submitted there is just not a causal link between the incident and any neck condition. There was no neck injury. The plaintiff has cervical spondylosis which is degenerative.[213]
[213]T143
558There was just no evidence that the plaintiff suffered any physical injury to his neck in the incident. In particular, despite his evidence, the Hospital discharge notes clearly stated there was no complaint of neck pain. It was submitted the Court should rely on what is in the records to decide which way to fall on issues like this.[214]
[214]T144
559The first clinical note mentioning neck pain and spinal injury was six months after the incident.[215] It seems that the neck really gets a bit of focus with Dr Lo in 2019. It was submitted the centrepiece of the plaintiff’s complaints is now his neck, but there was no injury to it in 2014 and no injury now.[216]
[215]T144
[216]T145
560It was submitted Professor Bittar’s opinion was flawed because he was told by the plaintiff he had no neck issues pre incident, which clearly was not the case. He therefore did not have the full history of the plaintiff’s neck condition, whereas Mr Simm had all material, including the scans.
Findings
561While the plaintiff had a long history of neck problems before the incident, there were neck issues before the incident, he had been able to work full time with the employer for two years prior thereto.
562Given there was specific mention in the Hospital records that the plaintiff did not complain of neck pain, I accept this was the case, although he was given a cervical collar and a cervical CT scan was carried out at the Hospital following his head injury.
563The plaintiff did not complain of neck pain until six months post incident. There were two attendances thereafter in 2014 when it was recorded the plaintiff said he had no neck pain. The next complaint of neck pain was three years later, in 2017, and a CT scan was arranged in August that year. He was referred to Mr Lo two years later.
564A neck impairment was not included in the plaintiff’s original Particulars of Injury dated 19 August 2019 and was only included in the amended version in September 2020.
565The plaintiff made no mention of any incident-related neck complaint in his first affidavit sworn in 2019 or his second affidavit sworn in January 2020. Yet in his third affidavit, he deposed neck pain has always been there since the incident and was a particular problem.
566Both Mr Bittar and Mr Lo simply accept ongoing neck pain since the incident when concluding the incident plays a role in the plaintiff’s current neck condition. I do not accept neck pain has been ongoing since the incident. Further, these examiners had little knowledge of a longstanding neck problem prior to the incident.
567I do not accept the plaintiff’s delay in seeking treatment for his neck had anything to do with his ability to determine the source of his pain as he deposed.
568Taking into account all the evidence, I am not satisfied the plaintiff suffered an injury to his neck in the incident.
569In circumstances where the plaintiff has a history of neck problems, I am not satisfied any neck ongoing problem is incident related and more likely relates to degeneration and problems that were longstanding, going back to when he was an acrobat in the circus.
570However, if causation and ongoing material contribution is established, as counsel for the defendant submitted “there is still the dilemma of what is wrong with the plaintiff’s neck and his alleged restrictions when one looks at him headbanging on the stage at a nightclub”.[217]
[217]T146
571Problems with disentanglement also arise in the context of any claimed neck impairment when considering pain and suffering consequences and the loss of earning capacity.
572Taking into account all the evidence, I am not satisfied the plaintiff has a serious neck impairment related to the incident.
573Accordingly, that application is also dismissed.
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