Curan v Rian Industries Pty Ltd
[2009] VCC 644
•9 June 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES & COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-08-04202
| AZRA CURAN | Plaintiff |
| v | |
| RIAN INDUSTRIES PTY LTD | Defendant |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 21 and 22 May 2009 |
| DATE OF JUDGMENT: | 9 June 2009 |
| CASE MAY BE CITED AS: | Curan v Rian Industries Pty Ltd |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0644 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – serious injury application – assessing physical and psychiatric consequences of injury – application in respect of pain and suffering and pecuniary loss.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J B Richards SC with | Patrick Robinson & Co |
| Ms M A Hartley | ||
| For the Defendant | Mr A Moulds | Thomson Playford Cutlers |
| HIS HONOUR: |
1 In this proceeding, the plaintiff seeks leave pursuant to the provisions of the Accident Compensation Act 1985 (“the Act”) to commence a proceeding to recover damages for the pain and suffering and pecuniary loss consequences of an injury suffered by her in the course of her employment with the defendant on 5 October 2005 (“the incident”).
2 The injury relied on by the plaintiff is an injury to her low-back, specifically to her L4-5 and L5-S1 lumbar discs. In addition, the plaintiff alleges that she has developed a severe mental or behavioural disturbance as the result of the incident.
3 The matter which arises for my consideration in this application relates to the severity and consequences:
(i) of the plaintiff’s physical injury; (ii) of the plaintiff’s emotional injury. 4 There is no issue between the parties that I must consider each of these injuries separately and that the effect of the injuries cannot be aggregated.
The Effect of the Physical Injury Suffered by the Plaintiff to her Lumbar Spine
5 In the proceeding, the plaintiff relied upon the evidence contained in an affidavit sworn 19 May 2009. The plaintiff also gave evidence and was cross- examined.
6 In her affidavit, the plaintiff states that:
•
Following her injury, she initially developed severe back pain which radiated into her right leg and required her to make use of crutches whilst walking.
•
Notwithstanding the presence of continuing symptoms of back and leg pain, she returned to light duties with the defendant in January 2006 and that whilst she initially coped with her work, her duties which involved her in bending and lifting aggravated her symptoms with the result that she was never able to tolerate working for more than five hours per day.
•
In February 2007, she experienced the onset of a sudden sharp pain in her low-back similar to the pain which was associated with the incident of 5 October 2005; although on this occasion the pain was not quite so severe.
•
With the onset of the symptoms in February 2007, the plaintiff ceased work and she has not returned to work since that time.
•
She suffers from low-back pain which is present all the time and which varies in intensity depending on the activities she undertakes. Whereas before her injury the plaintiff helped care for her elderly parents, she is no longer able to do so. The plaintiff is upset and frustrated by the presence of her chronic pain and is reliant on medication to control her symptoms. She is limited in her ability to perform her housework and requires the assistance of her husband to perform basic tasks. Her symptoms have been such that she has been unable to watch her children compete at national and international levels in their sport of Taekwondo.
•
Before her injury she was a healthy and happy person who was very much involved in supporting her children in the sport in which they engaged at which they competed at an elite level.
7 In a further affidavit sworn 27 May 2008, the plaintiff deposed that she suffered from back pain which extended into her buttocks, the outer part of her right leg and the sole of her left foot. She said that her back was stiff and more painful when she bent or twisted and that her symptoms of pain increased if she was required to sit or stand for long periods. She said that she had trouble sleeping and that she remained incapacitated for any form of employment.
The Plaintiff’s Evidence in the Proceeding
8 In her evidence, the plaintiff said that her back pain was constant but that her symptoms varied from day to day. On some days the plaintiff said her symptoms were such that they caused her to have to lie down on her bed, but that on other occasions she was able to “go somewhere and do something light”.[1] She said that she managed her symptoms with the use of painkillers, such as Tramal and Endone, and that her regular regime of pain management was to make use of Tramal on a daily basis and Endone when her symptoms were more severe.[2] The plaintiff said that she used Endone approximately every second day and that on occasions she had to attend her general practitioner for painkilling injections.[3] She said that she had pain in her right leg and foot which was constantly present but which varied in intensity. When questioned as to her capacity to perform light work, the plaintiff said:
“I think maybe I can work two to three hours but not everyday and not the job which I used to do in the factory. Maybe a job like some light – very light job like office working.”[4] (sic)
[1] T 19
[2] T 20
[3] T 20
[4] T 21. The plaintiff qualified this statement by saying that she did not believe that she could do more than two or three hours a day and she did not think that she would be reliable in attending because of her symptoms of pain.
9 The plaintiff described the period during which she returned to work following the incident as being very difficult for her. She said that she was able to keep working due to the painkillers which she was taking but that since the happening of the incident in February 2007, she had been unfit for work by reason of her pain.
10 In cross-examination, the plaintiff said that her symptoms varied on a daily basis and that she could ascribe no reason for the variation in those symptoms.[5] She described the duties which she was required to perform following her return to work in 2006 as involving process work in which she:
[5] T 23-24
(i) operated three machines; (ii)
was required regularly to bend and lift bins, the weight of which varied from between approximately 1 kilogram to slightly in excess of 5 kilograms.[6]
[6] T 27-30
11 The plaintiff said, that at the present time:
“Mine back is like – I can’t say today – I can’t planning nothing for tomorrow because I don’t know how I going to be tomorrow. If I going to be in pain in the morning or daytime – or noon or afternoon, I don’t know what will happen.”[7] (sic)
[7] T 37
12 Whilst it was put to the plaintiff that upon her return to work in 2006 she worked at least five hours a day, five days a week, the plaintiff did not accept this proposition.[8]
[8] T 37-39
13 When questioned as to her daily activities, the plaintiff readily conceded that:
• She visited her parents regularly as they lived very close by; •
She drove a Ford Territory vehicle which had been purchased for her by her husband because she had difficulty getting in and out of her previous vehicle, a Holden Commodore;
• She drove her children to school; •
She could go shopping, although she qualified this by explaining that she attended by herself for personal shopping but always had someone with her when she did “big shopping” such as shopping for groceries.[9]
•
She was able to do very light cooking and housework, such as light dusting, washing and ironing. She said that she would leave activities such as ironing and return to them after a rest.[10]
[9] T 42-43. See further the plaintiff’s evidence at T 46.
[10] T 44
14 The plaintiff was cross-examined as to a medical examination undertaken by Mr Brazenor, orthopaedic surgeon, on behalf of the defendant. Whilst the plaintiff could not remember the specifics of the examination, she said, about that examination:
“I remember he makes me very nervous and uncomfortable, that’s what he does that day and he been very – I don’t know, he makes me nervous, very uncomfortable that day.”[11]
[11] T 43
15 The plaintiff also relies upon an affidavit sworn by her husband, Sauad Curan, dated 27 May 2008. In that affidavit, Mr Curan deposes that:
•
he left his employment as a supervisor in which he earned approximately $60,000 per year to care for his wife and was granted a Carer’s Pension in December 2007;
•
by reason of the plaintiff’s symptoms he is required to perform most of the domestic work around the house;
•
the plaintiff suffers from symptoms of pain which require him to assist the plaintiff in dressing and washing and that as the result of her symptoms the plaintiff has become withdrawn and depressed.[12]
[12] The material contained in Mr Curan’s affidavit was not challenged on behalf of the defendant
The Plaintiff’s Reliability as a Witness
16 By reason of the fact that a considerable issue arises in the proceeding as to whether the plaintiff is genuine in her presentation or is, to use the term employed by Mr Graeme Brazenor in his report dated 8 August 2008, guilty of “vintage malingering behaviour;”[13] it is appropriate at this stage that I express my view as to whether the plaintiff presented as a witness whose evidence as to her symptoms and incapacity was reliable.
[13] DCB 35
17 I had the opportunity of observing the plaintiff as she gave her evidence. At all times I considered that her demeanour was appropriate. Although she gave evidence with the assistance of an interpreter, much of her evidence was given without the assistance of the interpreter. At no time did I form the impression that the plaintiff employed the services of the interpreter for the purpose of allowing her time to formulate a response to cross-examination which was otherwise than the truth or which would necessarily advance her case. Rather the plaintiff impressed me as a person who was doing her best to give an accurate account of her symptoms and their effect upon her. The plaintiff made appropriate concessions as to her capacity to undertake some work, and as to the activities which she was capable of performing.[14]
[14] See in particular the evidence at T 21 and T 46 - T 47. These concessions would appear to be totally inconsistent with the presentation of the plaintiff described by Mr Brazenor.
18 The plaintiff’s return to work following the October 2005 incident is consistent with the response I would expect of a worker genuinely seeking to rehabilitate herself. That the plaintiff continued in her duties until she suffered an exacerbation of her symptoms in February 2007, notwithstanding the fact that her work involved activities which were contraindicated having regard to her injury,[15] is further evidence of the plaintiff’s genuine motivation to minimise the impact of her accident upon her income and employment capacity.
[15] The plaintiff was required every ten or fifteen minutes to bend and pick up a box from the floor and place it on a table before examining its contents. I interpret Mr Brazenor (at DCB 35) to be expressing the opinion that these duties were contraindicated having regard to the injury to the plaintiff’s L5-S1 disc.
19 For the reasons given above, when considered in the context of the absence of any serious challenge made to the plaintiff’s credit in the course of cross- examination,[16] I accept the plaintiff as a witness who gave reliable evidence as to her incapacity, and I accept the evidence given by her.
[16] The defendant did not rely upon the video surveillance undertaken of the plaintiff
The Medical Evidence
20 On 12 October 2005, the plaintiff underwent a CT scan of her lumbar spine which reported the presence of a minor disc bulge at the L5-S1 level and of facet joint degeneration at the L4-5 and L5-S1 level. An MRI scan undertaken on 27 December 2005 however, revealed the presence of a small right paracentral disc protrusion at the L5-S1 level with posterior displacement of the right S1 nerve. That the MRI scan reported the presence of a disc protrusion and that the CT scan did not, is clearly accounted for by the fact that the MRI scan provides a more sensitive analysis of the spinal structure.
21 Following the incident, the plaintiff attended the Sandringham District Hospital where a diagnosis was made that she was suffering from back pain secondary possibly to a disc prolapse. The plaintiff was discharged to the care of her general practitioner, Dr Fatema Ilahee, who saw the plaintiff on 5 October 2005 and has since that time continued to manage her condition. A number of reports from Dr Ilahee appear in the Plaintiff’s Court Book (“PCB”) to the following effect:
•
Dr Ilahee reports that in mid January 2006, the plaintiff returned to light duties employment with the defendant and that between that time and mid May 2006, the plaintiff’s hours of work increased to a maximum of 25 hours per week.
•
In July 2006, Dr Ilahee prescribed the antidepressant, Zoloft, for the plaintiff’s use, having regard to her presentation with constant frustration, anger, and teariness.
•
In her report dated 14 December 2006, Dr Ilahee commented that the plaintiff remained very much pain focussed and that she had constant anxiety regarding her future wellbeing.
•
In December 2006, Dr Ilahee opined that the plaintiff was fit to perform modified duties four hours per day, five days per week.
•
On 31 January 2007, the plaintiff presented to Dr Ilahee with a report of an exacerbation of her condition whilst at work. In a report dated 4 November 2007, Dr Ilahee commented:
“Since then Azra is in constant pain in the back and is unable to
go back to work.”[17]
[17] PCB 36
• In a report dated 25 March 2009, Dr Ilahee diagnosed the plaintiff as suffering from: (i) low-back pain due to disc prolapse (L5-S1) and degenerative facet joints due to prolonged exposure to repetitive bending and twisting at work;
(ii) Post-Traumatic Stress Disorder.[18]
and she expressed the opinion that the plaintiff’s prognosis was very poor
and that if anything her back pain would get worse.[19][18] PCB 38
[19] PCB 40
22 Mr Michael Johnson, orthopaedic surgeon, saw the plaintiff at the referral of Dr Ilahee on 13 December 2005, at which time she presented to him with symptoms of intermittent lower back pain extending from the back into both legs to the level of her knees. These symptoms were reported to be exacerbated by sitting and relieved by walking and lying down. Mr Johnson expressed the opinion that the plaintiff’s pain may possibly be related to a small non-compressive lumbosacral prolapse. He described the plaintiff as presenting with a moderate level of disability such that she would be incapable of performing her previous work duties.
23 On 28 February 2007, the plaintiff came under the care of Mr Brian Barrett, an orthopaedic surgeon. In his report dated 19 June 2007, Mr Barrett opined that the plaintiff had suffered a disc disruption in the incident which was subsequently aggravated by a further lifting incident in the course of her work on 8 February 2007. He commented:
“Lumbar disc injuries of this type have no power of healing or repair and once the disc is ruptured the symptoms tend to increase in severity with any additional bending and heavy lifting situations. Such a situation occurred on 5 February 2007.”[20]
[20] PCB 49
24 In a report dated 19 June 2007, Mr Barrett expressed the opinion that the plaintiff suffered from a profound and severe disability in respect of which her prognosis for recovery was poor. He opined that the plaintiff should not return to her pre-injury employment and that there was a possibility that she would not be able to return to light or part-time work in the future.[21]
[21] PCB 50
25 In a further report dated 27 April 2009, Mr Barrett expressed a similar opinion to that contained in his earlier report, commenting:
“Prognosis for lumbar disc injuries is poor, they have limited capacity to
heal or repair, and it is likely that her symptoms will continue into the
foreseeable future, possibly modified by appropriate operative treatment.These injuries of her lumbar intervertebral discs, following her work episodes of October 2005 and February 2007, will have a profound affect upon her everyday activities, enjoyment of life, and I consider she has no capacity to return to even light and limited work in the future.”[22]
[22] PCB 53
26 Mr Barrett undertook a further examination of the plaintiff in March 2009, following which he did not alter the opinion he had expressed in his report of 19 June 2007.
Cross-Examination of Mr Barrett
27 Mr Barrett was the only medical practitioner to give evidence in the proceeding. In the course of his cross-examination, Mr Barrett elaborated upon the opinion expressed in his report that a lumbar disc injury of the type suffered by the plaintiff had no power of healing or repair. Although Mr Barrett accepted that there were differing views as to the opinion which he expressed in this regard, he said that he based this opinion on the findings of 2000 discograms undertaken over a twenty-year period which revealed that without exception injuries of this nature did not heal.[23]
[23] T 53
28 In the course of further cross-examination, Mr Barrett said:
•
that the plaintiff would have considerable difficulty performing light bench work, sitting or standing as required;[24]
•
that a significant body of orthopaedic and neurosurgical opinion took the view that discs were capable of healing;[25]
•
that whilst the CT scan undertaken in February 2007 showed that the bulge at the plaintiff’s L5-S1 was smaller, this was of no significance if the scan was taken in circumstances in which the plaintiff was relaxed as the bulge would be at its minimum at that time but that this would not be the case when the plaintiff’s muscles were tense or her spine was loaded, in which circumstances the bulge would tend to increase because it pushed out;[26]
•
that some “disc splits” can be minor and in those circumstances a return to ordinary work can be achieved but that successive injuries to the disc are cumulative;[27]
•
that the experience of pain is a subjective matter but that he was in the position to “pick the frauds”;[28]
•
that the exacerbation of her symptoms complained of by the plaintiff meant that:
[24] T 87
[25] T 76
[26] T 84-85
[27] T 87
[28] T 88
“She has had a disc that’s split and now she’s made it so much worse by the subsequent incident that it now is well beyond repair and it’s well beyond being comfortable again.”[29]
[29] T 102
The Further Medical Evidence Relied upon by the Plaintiff
29 The plaintiff was referred by Dr Ilahee to Dr Clayton Thomas, a consultant in rehabilitation and pain management who, in a report dated 2 April 2009, states that he examined the plaintiff on 2 February 2007, 30 March 2006, 25 May 2006, 1 March 2007 and 7 August 2007. On the basis of those examinations, Dr Thomas expressed the opinion:
(i)
that the plaintiff had sustained a disc prolapse at the lumbosacral level on the right side abutting the right S1 nerve root;
(ii) that there had been partial progress in her condition; (iii)
that at the time she was last seen, the plaintiff possessed a partial capacity for work but that she suffered from a permanent impairment to her lumbar spine which was certainly organic.[30]
[30] The opinion expressed by Mr Thomas, which referred to the plaintiff’s condition during the period in which he treated her between February 2007 and August 2007, is consistent with that of Mr Stanley O’Loughlin, an orthopaedic surgeon, who examined the plaintiff on behalf of the defendant on 17 April 2007, and who expressed the opinion that at that time the plaintiff had no capacity for work by reason of the presence of severe back pain with referred pain into her right leg associated with an injury suffered by her to her L5-S1 disc and possibly her L4-L5 disc.
30 The plaintiff was referred by her general practitioner to Mr Armin Drnda, a neurosurgeon, who examined her on 19 January 2009. In the course of that examination, Mr Drnda considered the plaintiff to be presenting with a degree of functional overlay, having regard to her inability to produce full plantar flexion. Mr Drnda expressed the opinion that the plaintiff had suffered an injury to her lower back involving a mild disc protrusion and that she suffered from chronic low-back pain with some referral of the pain into her right leg. He commented that the plaintiff appeared not to be able to resume her pre-injury employment and that given her education, experience and skills, she was unlikely to return to any type of employment.[31]
[31] PCB 55
31 Notwithstanding Mr Drnda’s comments that the plaintiff presented with a mixture of organic symptoms and a degree of functional overlay, I interpret his report as indicating that the plaintiff’s primary problem was organic in nature.
32 Mr Kenneth Brearley, a general surgeon, examined the plaintiff on 17 April 2009. In the course of his examination, Mr Brearley noted the presence of muscle spasm and severe flattening of the plaintiff’s thoracolumbar spine. He opined:
“As the result of her employment up to February 2007, and in particular the incident on 5th October 2005, she has been unable to do her former job or any manual labour, nor has she been able to do any work involving long sitting and standing, bending or stooping or lifting. She is not fit for any type of work at the moment because of ongoing pain and her medication. Moreover her experience which is limited to work as a packer with Rian and a lack of education together with her ongoing disability would certainly preclude her from obtaining work of any kind. She has no work capacity as the result of the back injury having regard to the definition of current work capacity in s.5 of the Act.”
33 Mr Brearley concluded his report by expressing the view that the plaintiff’s limitations “are the result of a very clear organic injury which she has incurred”.
34 The plaintiff was examined by Mr Rodney Simm, an orthopaedic surgeon, on 24 March 2009. On the basis of that examination, Mr Simm opined:
“The physical injury to the lower back which occurred as the result of the incidents on 5th October 2005 and to a lesser extent February 2007 would be responsible for chronic low-back pain and referred pain into the right lower hip. The pain will confine her to light activities both in terms of occupation and recreation. The adverse pain response and associated emotional response will greatly impinge on her enjoyment of life in everyday activities. She is permanently incapacitated for pre- injury employment or any alternative physically-based employment. Her current pain levels will preclude meaningful participation in rehabilitation and re-training for light, non-physical forms of employment.”
35 Although Mr Simm commented that the plaintiff had developed a reactive emotional disturbance with features of spinal pain syndrome. I interpret his comments:
(i)
that the severity of the pain following the lifting strain suffered by the plaintiff in February 2007 was consistent with the plaintiff suffering a further lumbar disc disruption;
(ii)
that from February 2007, the plaintiff had experienced chronic discogenic low-back pain and referred pain into the right limb, together with a more deeply entrenched chronic spinal pain syndrome
as indicating that Mr Simm was of the opinion that the plaintiff’s symptoms, although influenced by emotional factors, were principally caused by her organic injury. This is consistent with the view which I formed of the plaintiff, that whilst her symptoms were to some degree influenced by emotional factors, she was by no means histrionic and the primary cause of her ongoing symptoms was due to the physical injury which she had suffered.
36 The medical opinions to which I have referred are in marked contrast to the opinions expressed by Mr Graeme Brazenor, a neurosurgeon, and Mr David Barton, an occupational physician, who have examined the plaintiff on behalf of the defendant.
37 In his report dated 8 August 2008, Mr Brazenor opines that, whilst the plaintiff had suffered a right posterior quadrant protrusion at L5-S1, the injury to the disc had to a large extent healed by the process of fibrosis, with the result that the plaintiff was fit for full-time work which did not involve repeated bending and lifting. He otherwise described the plaintiff’s presentation as being one of “vintage malingering behaviour”.
38 Dr David Barton examined the plaintiff on 24 January 2006, 16 November 2006 and 27 September 2007. In his first report, Dr Barton commented upon the plaintiff’s presentation which involved repeated grimacing, gasping and moving in a slow and tentative manner and opined:
“I believe she has developed a possible disc injury though her condition has been complicated by a developing functional overlay and features of abnormal illness behaviour.”
39 In his subsequent reports, Dr Barton expressed similar views to those contained in his first report. Following his examination on 16 November 2006, he opined that the plaintiff did not present with convincing evidence of an ongoing physical problem and that her presentation pointed towards a significant functional component to her complaint with features of deliberate exaggeration. In a further report dated 28 September 2007, Dr Barton said that he did not believe the plaintiff was suffering from any underlying physical problem and that from a physical point of view, any work-related condition from which she had suffered had resolved.
40 In this proceeding I have had the opportunity of considering the evidence of Mr Barrett as tested by cross-examination.[32] The evidence of Dr Barton and Mr Brazenor however, which is so damaging to the plaintiff’s case, was not tested by cross-examination. It was submitted on behalf of the defendant that in the circumstances the opinions of Dr Barton and Mr Brazenor should be accepted as being unchallenged.
[32] by reason of the requirement by the defendant that Mr Barrett attend for cross-examination
41 It is clear that in the absence of notice by the plaintiff that witnesses are required to attend for cross-examination their evidence can be relied upon by the defendant. I do not accept however, that the failure by the plaintiff to cross-examine either Dr Barton or Mr Brazenor should move me to accept the opinions expressed by them without exposing them to scrutiny.
42 In deciding the issues which arise in this case, I am required to take account of all the evidence submitted by the parties. Where a conflict arises between medical opinions, I must determine which opinion is more persuasive taking into account the content of each such opinion when considered in the context of the totality of the evidence.
Findings as to the Opinion of Dr Barton
43 Having considered the totality of the evidence adduced in the case, I do not find the opinions expressed by Dr Barton as to the plaintiff’s level of incapacity or her recovery as persuasive.
44 In September 2007, Dr Barton expressed the view that there was a discrepancy in the plaintiff’s presentation which was indicative of the presence of a pattern of abnormal illness behaviour which at that time was the major cause of the plaintiff’s presentation.
45 At about the same time however:
[33] His opinion was expressed in April 2007
[34] This opinion was expressed in August 2007
(i) Mr Stanley O’Loughlin expressed the opinion that the plaintiff had no capacity for work by reason of the presence of severe back pain with referred pain into her right leg as the result of the injury suffered to her L5-S1 disc and possibly her L4-L5 disc;[33] (ii) The plaintiff was under the care of Dr Thomas who, whilst he had expressed the opinion that the plaintiff was having difficulty coping with her symptoms and that she was de-compensating from an emotional point of view, opined that she suffered from a permanent impairment to her lumbar spine which was certainly organic.[34] 46 In his report of 26 September 2007, Dr Barton commented:
“From a physical point of view I believe any work-related condition is no
longer relevant and could be considered to have resolved.”
When this opinion is compared with those expressed by each of the medical practitioners who have either treated the plaintiff or assessed the plaintiff for the purpose of this proceeding, Dr Barton is isolated in expressing this opinion.[35]
[35] If Dr Barton’s opinion is ignored and the balance of the medical evidence as to the plaintiff’s capacity for work is considered on the basis of the most favourable position to the defendant, that evidence supports the proposition that the plaintiff would be fit only for light forms of work by reason of the permanent effect of the organic injury she has suffered to her back
47 For the reasons expressed above and taking into account the findings I have made as to the reliability of the plaintiff as a witness, I find the opinions of Dr Ilahee, Mr Thomas and Mr Barrett to be more persuasive than that of Dr Barton.
The Opinion of Mr Brazenor
48 It is not possible to reconcile the manner in which the plaintiff presented in the course of giving her evidence and the description given by Mr Brazenor of the way in which the plaintiff presented to him. I accept the plaintiff’s evidence that Dr Brazenor’s attitude towards her made her feel uncomfortable. I think that it is likely that this may have influenced in a negative way the plaintiff’s presentation to him. I consider it totally inappropriate however, that a surgeon who is employed to undertake a medico-legal assessment should address comments to an attending patient of the type made by Mr Brazenor, namely:
“I did make the observation to her that this severity of pain was what we would associate with an elderly person with cancer eating away the vertebrae of their spine and at that stage I remarked on the contradiction of her not having a spinal specialist involved in her management.”
49 I consider the whole tenor of Mr Brazenor’s report to be one which suggests that he has failed to maintain the position of impartiality expected from an expert witness. I am of the opinion that the process described by him in which he commenced his examination of the plaintiff by asking her what he declared to her to be a very important question, namely whether she had improved at all in the last six months, to indicate an aggressive approach which would be unlikely to put a patient at ease and was totally unnecessary. Further, his use of emotive terms in his report such as:
• “On examination, this lady gave an incredible display”; • “This is regrettably vintage malingering behaviour”; •
Describing the plaintiff’s presentation in the course of her examination as “the demonstration she gave today”;
when considered together with:
(i) the opinion expressed by Mr Brazenor that the plaintiff was capable of employment as a real estate agent, notwithstanding her presentation to him with an interpreter and a history of employment in process-type work;
(ii) the fact that Mr Brazenor was the only medical practitioner to accuse the plaintiff of deliberate malingering
leads me to the conclusion that I should not prefer the opinion of Mr Brazenor to those of the plaintiff’s treating medical practitioners, including Mr Thomas, Dr Ilahee and Mr Barrett.
Finding as to the Extent of the Plaintiff’s Physical Disability
50 I am satisfied that the general tenor of the evidence, excluding the opinions of Mr Brazenor and Mr Barton which I do not accept, establishes that the plaintiff’s symptoms are predominantly organic in origin. I have previously commented that I accept the plaintiff as a reliable witness. In particular, I accept the evidence given by the plaintiff that her symptoms greatly interfere with her activities of daily living and are such that they render her to be a potentially unreliable worker who would be fit only to engage in modified light duties for very limited periods of time.
51 I interpret the comments made by Dr Ilahee, when commenting upon the plaintiff’s diagnosis; the effect of her ongoing injuries; the plaintiff’s capacity for employment; as identifying the cause of the plaintiff’s disability to be substantially related to the presence of a physical injury which has rendered her unfit for work and which carries with it a very poor prognosis. As the plaintiffs treating general practitioner who has managed the plaintiff since the incident, I consider Dr Ilahee to be well placed to express an opinion as to the cause of her symptoms and their effect upon her.
52 I further accept the evidence of Mr Barrett that the plaintiff’s symptoms are largely caused by the organic injuries suffered to her L4-5 and L5-S1 lumbar discs, that her disability is substantial and that her prognosis for improvement in the future is poor
Finding as to the Extent of the Plaintiff’s Psychiatric Disability
53 I have already commented:
(i) that I do not accept the assertion that the plaintiff is a malingerer; (ii) that the medical evidence to which I have previously referred moves me to make a finding that the plaintiff’s presentation, although influenced to some degree by emotional factors, is attributed mainly to the presence of genuine symptoms of pain, the source of which is the organic injury to her lumbar spine. 54 Generally I consider that the psychiatric assessments of the plaintiff support the findings I have made as to the relevance of the plaintiff’s organic symptoms.
55 The assessments by:
• Dr Victor Botvinik, on 10 August 2007,[36] • Professor George Mendelson, on 22 April 2009,[37] • Dr Edward Cole, on 19 March 2009.[38] [36] See in particular his opinion at DCB 9
[37] See in particular his opinion at DCB 53
[38] See in particular his opinion at PCB 80
did not indicate that the plaintiff was suffering from a major psychiatric condition or that her presentation was influenced to any significant degree by emotional factors.
56 Whilst Dr Paul Kornan, who examined the plaintiff on 3 October 2007, expressed the opinion that the plaintiff presented with major depression of chronic moderate intensity, his opinion that from the psychiatric viewpoint there was no limitation to the plaintiff’s ability to undertake activities of daily living is not inconsistent with the three psychiatric opinions to which I have already referred.
57 In these circumstances, I am of the opinion that the evidence does not establish that the plaintiff has suffered a psychiatric injury which could be classified as a “serious injury” within the meaning of the Act, nor do I accept that there exists persuasive evidence that the plaintiff’s presentation is influenced to a significant degree by the presence of psychiatric factors. Rather I am of the opinion that the psychiatric assessments undertaken of the plaintiff support my finding that whilst emotional factors do influence the plaintiff’s presentation, her symptoms of pain and disability with which she presents are predominantly caused by her organic injury.
Capacity for Employment
58 It is common ground that the plaintiff has not worked since suffering an exacerbation of her symptoms in February 2007. The evidence establishes that following her return to light duties in January 2006, whilst the plaintiff was initially certified as being fit to undertake light duties for 25 hours per week, on 17 November 2006, her hours of work were reduced to 20 hours per week. This situation continued until the aggravation of the plaintiff’s condition which occurred in February 2007.
59 Having accepted the plaintiff as a reliable witness, I find, on the basis of:
(i) the evidence given by the plaintiff as to the effect of the February 2007 incident in increasing her level of pain and incapacity; (ii) the evidence of Mr Barrett, which I accept, that the effect of the February 2007 incident was that it exacerbated the existing injury to the L5-S1 disc; that the plaintiff’s physical capacity to work at the present time by reason of the organic injury to her back, is certainly probably significantly less than the capacity which she possessed before the February 2007 incident. Whilst I accept that the plaintiff continues to have some capacity to work by reason of the physical consequences of her injury, I am satisfied that the plaintiff would not have the capacity to work for four hours every day even if she was offered light alternate duties which did not involve repetitive bending and lifting and allowed the plaintiff to sit and stand at will.
60 On the basis of the evidence adduced by the plaintiff in this proceeding, I find that her present incapacity for work is likely to be permanent. It was accepted by the defendant that if I was satisfied that the plaintiff’ capacity for work was no greater than four hours per day and that this incapacity was permanent in accordance with the meaning of the Act, that the plaintiff satisfied the arithmetical formula set out in s.134AB(38).
61 Having made the findings to which I have referred as to the plaintiff’s capacity for employment, it follows that the plaintiff has satisfied the formula established by s.134AB(38)(f). Given the nature of the plaintiff’s physical injury; her age; her employment history together with her difficulties with the English language; I am satisfied that the plaintiff has no realistic prospect of being re-trained or rehabilitated in a way which would, to any significant degree, alter the level of income which she was capable of earning.
Conclusion
62 I am of the opinion that the finding which I have made as to the plaintiff’s loss of earning capacity requires me to grant the plaintiff leave to commence proceedings to recover damages for both pain and suffering and loss of earnings. In doing so I endorse and follow the judgment on this issue of His Honour Judge Ross in Patterson v Burbank Plumbing & Maintenance Services Pty Ltd.[39]
[39] [2007] VCC 1527
63 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law pursuant to s.134AB of the Act to recover damages for bodily injuries and pain and suffering and loss of earning capacity arising by reason of the injury suffered by the plaintiff in the course of her employment with the defendant on or about 5 October 2005.
64 After discussion with counsel, I will pronounce formal orders and hear the parties on the question of costs.
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