Cutts v Victorian WorkCover Authority
[2024] VCC 656
•20 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Revised Not Restricted Suitable for Publication |
Case No. CI-22-05133
| AARON CUTTS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MAGEE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 July, 1 August, 2 August, and 3 August 2023 | |
DATE OF JUDGMENT: | 20 May 2024 | |
CASE MAY BE CITED AS: | Cutts v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 656 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – pain and suffering – loss of earning capacity – injury to the kidney – hypertension – aggravation – credibility and reliability – video surveillance
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Connelly v Transport Accident Commission [2024] VSCA 20; Popal v Transport Accident Commission [2023] VSCA 222; Johns v Oaktech Pty Ltd [2020] VSCA 10; Dordev v Cowan & Ors [2006] VSCA 254; Petrovic v Victorian Workcover Authority [2018] VSCA 243; Church v Echuca Regional Health (2008) 20 VR 566; Principe v Transport Accident Commission [2016] VSCA 205
Judgment:Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L B R Allan Ms C Shambrook | Slater and Gordon |
| For the Defendant | Mr T Storey | Lander & Rogers |
Table of Contents
Introduction
What are the issues in dispute?
The hearing
Summary
Background
Mr Cutts’ pre-existing kidney condition
The work incident
Post work incident radiology
Credit and reliability
Affidavit evidence of Mr Cutts
Oral evidence of Mr Cutts
Surveillance
Social media material
Was Mr Cutts a credible and reliable witness?
Mr Cutts’ submissions on credibility and reliability
The VWA’s submissions on credibility and reliability
Findings on credibility of Mr Cutts
Does the unreliability of Mr Cutts have an impact on this case?
Affidavit evidence of Ms Dank
Oral evidence of Ms Dank
Is Ms Dank a credible and reliable witness?
The plaintiff’s submissions on Ms Dank’s credibility and reliability
The VWA’s submissions on Ms Dank’s credibility and reliability
Findings on credibility of Ms Dank
The medical evidence
Dr Wayne Friedman, Gastroenterologist
Mr Jeremy Goad, Urological Surgeon
Dr Srinath Jayasinghe, GP
Dr Peita Wilson, GP
Dr Borjana Barth, Urological Surgeon
Associate Professor Rathika Krishnasamy, Renal Physician
Dr Kumar Mahadevan, Renal Physician
Mr Tim Ellis, Osteopath at Advanced Health Care
Mr Cameron Sullivan, Exercise Physiologist at Advanced Healthcare
Mr Cutts’ medico-legal experts
The Medical Panel
Mr Ross Snow, Urologist
Dr Khayyam Altaf, Occupational Physician
VWA’s medico-legal experts
Dr Robert McCartney, Occupational Physician
Dr Mark Faragher, Neurologist
Associate Professor Solomon Menahem, Nephrologist/Renal and General Physician
What is the nature of the injury?
Plaintiff’s submissions
VWA’s submissions
Findings on the nature of the injury including his current condition
Kidney
Hypertension
Is Mr Cutts suffering from a work-related organically based chronic pain syndrome?
Conclusion
HER HONOUR:
Introduction
1This is a serious injury application pursuant to s 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (the Act) in which the plaintiff, Aaron Cutts (Mr Cutts), relies on paragraph (a) of the definition of “serious injury”.
2Mr Cutts seeks leave to issue proceedings for pain and suffering damages and loss of earning capacity damages.
3Mr Cutts alleges that he was injured on 10 January 2019 while lifting heavy boxes while working for his employer, Assembly Now Pty Ltd (the work incident).
4Mr Cutts alleges that since the work incident, he has had constant, ongoing pain in his right upper abdomen, and has consequently developed persisting hypertension.
5The body function relied upon was the right kidney. The claimed impairments were set out in particulars of injury dated 8 March 2023. The impairments were as follows:
· right renal artery pseudoaneurysm;
· perirenal haematoma;
· perirenal fibrosis;
· malrotated kidney; and
· secondary hypertension.
6At the hearing, Mr Allan of Counsel and Ms Shambrook of Counsel appeared for Mr Cutts. Mr Storey of Counsel appeared for the defendant, the Victorian Workcover Authority (VWA).
What are the issues in dispute?
7Mr Cutts’ primary case was that the work incident produced a new, discrete injury to his right kidney.
8In the alternative, Mr Cutts submitted that this was an aggravation case,[1] given his history of previous right kidney issues.
[1] Transcript (T) 268, Line (L) 14-26
9The parties agreed that the question of initial causation would not be disputed in this application.[2]
[2] T5, L1-3
10The defendant disputed the case on the following general grounds:
· any work-related right kidney injury had now resolved, and any remaining kidney issues were unrelated to the work incident on 10 January 2019;[3]
· the cause, nature, and extent of the hypertension condition was in issue;[4]
· credit – the defendant submitted that Mr Cutts was not a credible or reliable witness.
[3] T223, L20-22; T224, L4-9
[4] T223, L22-23
11Whilst not formally raised at the commencement of the hearing, it became apparent that the defendant disputed that, as at the date of the hearing, there was an ongoing causal link between the work injury and Mr Cutts’ kidney and hypertension conditions.
The hearing
12Mr Cutts gave oral evidence and was cross-examined. His fiancée, Ms Ryhia Dank, gave evidence via Zoom (from Queensland) and was also cross-examined.
13Mr Cutts tendered two affidavits sworn by him on 28 June 2022 and 11 July 2023,[5] an affidavit of Ms Dank, affirmed on 11 June 2023,[6] renal radiology, medical reports from his treating practitioners and medico-legal experts, a Medical Panel Opinion and Reasons, a Vocational Assessment report, and a taxation summary.
[5] Plaintiff Exhibit P1, Plaintiff Court Book (PCB) 6-12; PCB 13-16
[6] Plaintiff Exhibit P2, PCB 17-19
14Mr Cutts provided a chronology, a statement as to economic loss and a written outline of submissions.
15The defendant tendered clinical notes from Swinburne University Health Service, medico-legal reports, a Vocational Assessment report, various social media posts from Facebook and Instagram, and surveillance videos. The defendant also provided a summary of surveillance times and dates.
Summary
16I have considered all the tendered evidence, the oral evidence, the surveillance material and the submissions of the parties, but I shall only refer to the materials to the extent necessary to understand these reasons.
17For the reasons set out below, I have determined that the application fails.
Background
18Mr Cutts was born in 1986 and is currently 38 years old. He grew up in country Victoria and moved to Rowville as a teenager. He completed Year 9 at Rowville Secondary College.
19Mr Cutts now lives in Buderim, Queensland with his fiancée, Ms Dank, an Indigenous artist and their young child who is now two years of age. Ms Dank has an arts business which she runs from a studio/warehouse in Maroochydore.
20After leaving Rowville Secondary College, Mr Cutts worked in various roles including quality assurance in the automotive industry for around seven years and then in sales and administrative roles. He worked for his family’s business selling postcards and souvenirs for an unspecified period. Mr Cutts worked for Ikea for around five years. Mr Cutts then ran an online skincare business for a number of years. That business ceased operating in September 2018.
Mr Cutts’ pre-existing kidney condition
21Mr Cutts was diagnosed with a PUJ obstruction of his right kidney on 15 October 2012 which was treated surgically.[7]
[7] Plaintiff Exhibit P4
22Mr Cutts’ pre-injury treatment and radiology is discussed later in this judgment.
The work incident
23In December 2017, Mr Cutts started work for Assembly Now Pty Ltd, as a full-time furniture assembler/delivery man.
24On Thursday, 10 January 2019, Mr Cutts said he was carrying long, heavy, and awkward boxes of shelving at a customer’s premises in the course of his work.
25As he carried the boxes up a flight of stairs, he felt discomfort in his abdomen. He did not drop the boxes and was not struck by them. He worked the rest of that day and the following day with discomfort.[8] His symptoms continued over the weekend.
[8] Plaintiff Exhibit P1, PBC 7 [11]
26On the following Monday morning, 14 January 2019, he attended the Emergency Department at St Vincent’s Hospital and complained of bad pain under his ribs. He was admitted to St Vincent’s Hospital and was diagnosed with a right renal haematoma. Embolisation procedures[9] were conducted on 15 January 2019 and 18 January 2019.[10]
[9]It is understood that these procedures involved the insertion of small coils into the kidney
[10] Plaintiff Exhibit P3
27Mr Cutts was discharged home on 20 January 2019 with Endone and Pramin tablets to be taken as required.[11]
[11] Plaintiff Exhibit P3
28Mr Cutts resigned from Assembly Now Pty Ltd shortly after the work incident. He said he resigned because the employer wanted him to return to work full-time, but he did not feel able to do so.
Post work incident radiology
29Since the work incident, various scans and ultrasounds of Mr Cutts’ right kidney have been performed.
30On 14, 15 and 17 January 2019, CT scans were reported to reveal a prominent subcapsular haematoma of the right kidney with an associated renal laceration, the cause of which was said to be unknown.[12] No active bleeding was reportedly identified, and it was reported that it appeared the haematoma was stable.
[12] Plaintiff Exhibit P3
31On 23 April 2021, a urinary tract ultrasound was reported as revealing no abnormality and recorded there was no apparent cause for Mr Cutts’ flank pain.[13]
[13] Plaintiff Exhibit P24
32On 27 April 2021, a renal scan reportedly revealed that the right kidney was smaller than the left, and showed reduced differential function but there was no evidence of a PUJ obstruction.[14] The radiologist advised that the renal scan should be read in conjunction with a CT performed on 26 March 2021. That CT scan was not tendered, and no explanation was provided for its absence.
[14] Plaintiff Exhibit P23
33The most recent radiology was a renal tract ultrasound dated 25 May 2023. This reportedly showed cortical scarring and an upper pole renal cortical cyst on the right.[15] There was no evidence as to the relevance of the cyst identified on this ultrasound, although Dr Borjana Barth, urological surgeon, commented on an earlier finding in relation to a cyst which she said was benign. This is discussed in further detail later.
[15] Plaintiff Exhibit P15, PCB 91
Credit and reliability
34I must consider the whole of the evidence but, as has been said many times in serious injury applications, the credit of a plaintiff will often be critical to the resolution of the application.[16]
[16]See for example: Popal v Transport Accident Commission [2023] VSCA 222 (“Popal”); Johns v Oaktech Pty Ltd [2020] VSCA 10
35This case is no exception. Mr Cutts’ credit and reliability is central to the determination of the application.
36I am mindful of what the Court of Appeal has said in relation to a plaintiff’s credit in serious injury applications.[17] A plaintiff’s credibility is relevant to the question of whether his evidence should be accepted. It can also be relevant to the reliability of the medical evidence presented, where the opinions of doctors are essentially dependent on the credibility and reliability of the history given to them by a plaintiff.
[17]Dordev v Cowan & Ors [2006] VSCA 254; Petrovic v Victorian Workcover Authority [2018] VSCA 243; Popal (supra)
37Given the defendant’s attack on the credit and reliability of both Mr Cutts and Ms Dank, it is appropriate to deal with their evidence first.
Affidavit evidence of Mr Cutts
38In his two affidavits, Mr Cutts deposed that apart from needing annual check-ups, he was “ok” after the 2012 surgery until 2017. As discussed below, he attended his general practitioner (GP), Dr Srinath Jayasinghe, in 2015 and 2016 complaining of loin pain and was sent for further investigations.
39Mr Cutts said he experienced increasing pain around the area of his right kidney during 2017. He was referred to the urology department of St Vincent’s Hospital by Dr Jayasinghe. He had scans at St Vincent’s in September and October 2017. He said that he was told everything looked normal and that he had pulled a muscle. He said that things settled down completely soon afterwards.
40In March 2019, approximately six-eight weeks after the work incident, Mr Cutts moved to Darwin with Ms Dank. They lived in Ms Dank’s brother’s house in a house-sitting arrangement to save money. In August 2020, Mr Cutts and Ms Dank moved to Buderim.
41Mr Cutts deposed to a significant level of restriction in everyday activities by reason of his compensable injury, as summarised below:
· Almost every form of exercise, except for walking, elevated his blood pressure.
· Abdominal pain in the right upper front area which felt like he had been kicked. He experienced flareups around three or four times a week which required him to lie down for an hour or two or take medication.
· Pain restricted his mobility.
· His social life was affected due to pain associated with sitting.
· His urologist recommended he avoid lifting more than 10 or 12 kilograms which limited his ability to do housework and DIY work around the house.
· His ‘average day’[18] involved going for a walk with Ms Dank, dropping their child at childcare, and then spending the day at Ms Dank’s studio. When at the studio, he generally stayed in the upstairs caretaker’s area whilst Ms Dank worked downstairs. He said they often stayed the night at the studio.[19]
· He provided more care for their child than the “average dad” because Ms Dank worked, but he had to be careful when lifting the child because of the child’s weight.
[18] Plaintiff Exhibit P1, PCB 14 [8]
[19] Ibid
42In addition, he deposed that he believed he would not be a reliable employee due to the unpredictable nature of his pain and the risk of his blood pressure becoming elevated in a work environment. He said that he would never have the capacity to work full-time again but wanted to go back to work in the future, and self-assessed his capacity as 15-20 hours a week in a job that allowed for flexibility.
43He also deposed that he was considering taking on a formal role in Ms Dank’s business helping with business administration, but he did not currently have a role in her business. He deposed he does not receive any wage or other remuneration from the business.[20]
[20] Plaintiff Exhibit P1, PCB14, [9]
44Mr Cutts’ treaters are in Queensland. His GP is now Dr Peita Wilson, his treating urologist is Dr Borjana Barth, and his treating nephrologist is Dr Kumar Mahadevan.
45Mr Cutts takes prescription drugs for hypertension and Panadol for pain. He attends an exercise physiologist up to three times a week.[21]
[21] T19, L10-13
46Although not mentioned in his affidavits, Mr Cutts commenced seeing an osteopath, Tim Ellis, in September 2022.[22] As discussed later, the attendances on Mr Ellis were primarily for an unrelated back condition.
[22] T154, L29-30
Oral evidence of Mr Cutts
47During evidence-in-chief, Mr Cutts minimised his involvement in Ms Dank’s business. He said that he occasionally might apply a clear coat of varnish to a finished artwork.[23]
[23] T58, L17-19
48He said he did not play an active role in the business. He said he would occasionally assist with odd jobs if requested but did so very rarely.[24]
[24] T112, L11-13
49In cross-examination, before the surveillance video was shown, Mr Cutts said:
· He experienced constant pain, which he rated at “6.5 to 7” out of “10”.[25]
· He experienced “twisting knife” pain two to four days per week, which could be brought on by sitting for long periods of time.[26]
· He did not have a history of diagnosed hypertension prior to the work incident.
· Dr Jayasinghe had not discussed his blood pressure with him prior to January 2019. This was despite the records of Dr Jayasinghe showing elevated blood pressures prior to January 2019.[27]
· When at the warehouse/studio, he would “generally stay in the upstairs caretaker’s area, which is like a small flat.”[28] When Ms Dank worked downstairs, he would “spend a lot of time resting or browsing the internet.”[29]
· Light chores such as drying dishes and sweeping with a broom could bring on pain.[30]
· He was attending Mr Ellis for pain on his right side, as well as lower back pain. He said the back pain commenced approximately three months prior to his first visit to Mr Ellis in September 2022.[31]
· He had undergone an MRI scan of his lumbar spine and had a cortisone injection in his sacroiliac joint in late 2022.[32]
· He did not feel capable of working partly due to his unpredictable pain and his belief that he would not be a reliable employee.[33]
· His self-assessed work capacity (15-20 hours a week) was not something he had discussed with any medical practitioner.[34]
[25] T43, L18 and T133, L13-14
[26] T46, L4-6 and T47, L20
[27] T129, L19-29
[28] Ibid
[29] Ibid
[30] T56, L20-24
[31] T154, L29-30; T155, L30-31 – T156, L1 and T155, L26-27
[32] T159, L12-26
[33] T113, L9-18
[34] T121, L2-10 and in re-examination at T181, L12-29
Surveillance
50The defendant produced a summary of surveillance dates and times in response to a call made on behalf of Mr Cutts.[35] The summary showed that Mr Cutts had been placed under surveillance for a total period of 75 hours over 25 days.[36] The defendant tendered surveillance footage totalling approximately 3 hours and 41 minutes.[37] On several days, spot checks were conducted at the studio, but it was closed and Mr Cutts was not seen.[38] On two dates, spot checks were conducted at the studio and Mr Cutts’ vehicle was sighted but no further surveillance was conducted.[39]
[35]Plaintiff Exhibit P25
[36]The summary confirms surveillance occurred on the following dates: 19 January 2023, 20 January 2023, 23 January 2023, 24 January 2023, 17 February 2023, 20 February 2023, 27 February 2023, 6 March 2023, 21 March 2023, 22 March 2023, 13 April 2023, 16 April 2023, 23 April 2023, 24 April 2023, 2 May 2023, 5 May 2023, 8 May 2023, 9 May 2023, 19 June 2023, 20 June 2023, 21 June 2023, 23 June 2023, 27 June 2023, 2 July 2023 and 3 July 2023
[37]The tender included: 7 minutes and 46 seconds of surveillance taken on 19 January 2023, 20 January 2023, 23 January 2023, 24 January 2023, 17 February 2023, 20 February 2023, 21 March 2023 and 22 March 2023 (Defendant Exhibit D8), 1 hours, 25 minutes and 16 seconds taken on 13 April 2023 and 6 seconds taken on 24 April 2023 (Defendant Exhibit D9), 36 minutes and 10 seconds taken on 2 May 2023 and 39 minutes taken on 3 May 2023 (Defendant Exhibit D10), 2 minutes and 50 seconds taken on 8 May 2023 and 35 minutes taken on 9 May 2023 (Defendant Exhibit D11), 8 minutes and 46 seconds taken on 19 June 2023, 8 seconds taken on 23 June 2023, 2 seconds taken on 23 June 2023 and 7 minutes taken on 3 July 2023 (Exhibit D12)
[38]20 February 2023, 27 February 2023, 27 February 2023, 6 March 2023, 21 June 2023, 23 June 2023, 27 June 2023
[39] 20 January 2023 and 2 July 2023
51The surveillance footage was taken from outside the front of Ms Dank’s studio. The studio is attached to a two-storey warehouse with a large concrete driveway/carpark and appears to be located in an industrial estate. The inside of the warehouse was visible through a large, open roller door.
52The surveillance showed Mr Cutts in attendance at the studio on 12 days. On at least five occasions, Mr Cutts was observed greeting and conversing with various people who pulled into the driveway, including a coffee delivery person, delivery/service people, and artists.
53Mr Cutts was seen sitting on a rigid plastic seat at a desk/table in the studio using either a computer or phone on the following dates:
· 13 April 2023 for about 10 minutes at about 7.00am, then again at around 9.00am for about 1 hour and 40 minutes, and finally in the afternoon shortly before 3.00pm for about 12 minutes.
· 2 May 2023 from around 8.20am until 10.00am.
· 3 May 2023 from around 12.40pm until 2.00pm.
· 8 May 2023 from 11.58am until 12.10pm, then sitting back down again at 12.15pm.
· 9 May 2023 for an hour at 10.00am, then sitting back down at around 11.20am for 20 minutes.
· 19 June 2023 at 1.50pm for 10 minutes. Here he was putting cards in envelopes and applying stickers. Ms Dank was seated across from him.
54On one occasion, on 3 July 2023 at approximately 11.56 am, Mr Cutts sat on an adjustable high backed office-type swivel chair.
55Mr Cutts demonstrated an uninhibited range of movement whilst photographing a station wagon for almost one hour on the morning of 13 April 2023. He walked freely around the car taking photos and videos at different angles, leaning in through the open doors to capture details of the interior. Significantly, he was observed squatting on three occasions – the longest period being 30 seconds. During this 30-second interval, he was able to twist to his left in order to bend his head down to look under the car twice. He confirmed in cross-examination he was preparing the car for sale and taking photos for an advertisement.
56Mr Cutts was cross-examined on his pain symptoms during this particular piece of footage. He said those sorts of movements around the car “certainly can” cause the knife-twisting, excruciating pain described in his affidavit, but he could not say if he was experiencing it at that particular moment.[40] Despite appearing to move freely in the video, Mr Cutts said he absolutely would have been in pain while that footage was being taken.[41]
[40] T100, L28-31 – T101, L1-4
[41] T101, L7-9
57The footage also recorded multiple instances of Mr Cutts carrying his child, with no apparent difficulty:
· On 13 April 2023, Mr Cutts lifted the child out of the back seat of a car, holding the child and a child’s backpack in the same arm. He held the child for about three minutes before lowering the child into the front seat of the car and he then instantly lifted the child back out. Ms Dank was nearby during this time, talking to Mr Cutts.
· On 9 May 2023, Mr Cutts was holding his child while Ms Dank and another person were present at the studio. For a minute or so he held out the child with his arms outstretched in a “superbaby” motion – apparently showing the child to the visitor.
58Mr Cutts was seen driving two cars in the surveillance. On all occasions when Mr Cutts and Ms Dank were in the cars together, Mr Cutts was the driver and Ms Dank was the passenger.
59It was put directly to Mr Cutts that there was no sign of pain or discomfort demonstrated on any of the surveillance footage. Mr Cutts explained parts of the surveillance by maintaining the pain was internal, and he was unsure how it should be shown, albeit he accepted there was no visible grimacing or grabbing at his abdomen in the surveillance.[42]
[42] T91, L2-8
Social media material
60In cross-examination, Mr Cutts was shown a variety of social media posts which were predominantly from his Facebook account and his Instagram pages. The posts related to his attendance at events, and holidays and road trips with Ms Dank.
61Mr Cutts was shown Facebook posts dated 26 April 2019, which showed him out in Darwin for dinner with his partner[43] and watching a soccer match as part of the Arafura Games. Mr Cutts said he would have attended games on three or four different afternoons.[44] Mr Cutts said he had discomfort, but he still enjoyed the events.[45]
[43] T65, L29-31
[44] T66, L1-9
[45] T66, L17-20
62Social media posts showed that Mr Cutts and Ms Dank had:
· Driven from Melbourne to Darwin via Adelaide over six days in March 2019.[46]
· Taken a three-week holiday in the United Arab Emirates in late 2019 – early 2020, which involved a four to five-hour flight from Darwin into Melbourne, and then a 12-hour flight to Dubai.[47]
· Driven from the Sunshine Coast to Melbourne over seven days in January 2023, spent approximately two weeks in Melbourne before then driving back to the Sunshine Coast. The number of days spent on the return trip was not clarified.[48]
· Completed a 14-day round road trip from Queensland to the remote community of Borroloola in the Northern Territory in the Gulf of Carpentaria in July 2023, which involved four days of driving each way.[49]
[46] T61, L12-19; T61, L24
[47] T76
[48] T161, L27-31; T162, L1-3
[49] T83, L8-10
63Mr Cutts estimated he did about 70 per cent of the driving on the Melbourne – Darwin trip while Ms Dank did 30 per cent. He said it was easier for him to drive than be a passenger, because he could focus on the driving and he did not have to think about the pain as much.[50]
[50] T49, L3-5
64In relation to the Dubai holiday, Mr Cutts said he was in pain during the flights but that sitting on flights was not inconsistent with his affidavit evidence.[51]
[51] T77, L6-8
65He said he was still able to sight-see and partake in their holiday activities “if I’m up to it on the day”.[52]
[52] T77, L9-15
66Mr Cutts was also shown a social media post which was dated 2 March 2022. The post included a photo of an open laptop next to a coffee cup on a table in the studio with the caption: “Contracts, checks and planning today”.[53]
[53] Defendant Exhibit D7, Defendant Court Book (DCB) 48
67Mr Cutts maintained he was not engaged with Ms Dank’s business and did no work for her business apart from what was already disclosed in his affidavits.[54] He otherwise provided no other explanation for the photograph and caption.
[54] T81, L10-12
68There was social media material regarding Mr Cutts’ attendance at the gym which was equivocal and I accept his explanation that he was assisting his brother-in-law at the gym, and I have placed no weight on it.
Was Mr Cutts a credible and reliable witness?
Mr Cutts’ submissions on credibility and reliability
69During the hearing I expressed my concern to Counsel for Mr Cutts about several matters relating to Mr Cutts’ credit, specifically:
· Mr Cutts’ evidence regarding attending the studio/warehouse and mainly lying upstairs was contrasted by the surveillance footage which showed him undertaking work-like activities, including frequently sitting at a desk/table downstairs and using a computer/mobile phone; and
· Mr Cutts’ failure to mention his lower back problems and treatment in his affidavits or to medico-legal examiners.
70Counsel for Mr Cutts submitted the following in relation to Mr Cutts’ credit:
· The surveillance footage showed slow paced activities which were consistent with Mr Cutts’ evidence and the surveillance was not the same as Mr Cutts’ “daily reality”. It was not explained what was meant by this phrase.
· His affidavits did not say he never entered the downstairs area at the studio.
· During two prolonged periods of sitting, the footage had been cut when it appeared that Mr Cutts had got up and walked around – implying that the surveillance had been altered to create a false impression.
· The surveillance footage totalled four or five hours out of a total 75 hours of surveillance which had been undertaken.[55]
· Mr Cutts told the Court his maximum tolerance for sitting in a car was four hours which was consistent with the evidence about the road trips.
· Mr Cutts was not asserting that any back pain was a consequence of the work incident. Counsel suggested that Mr Cutts did not mention the back condition to medico-legal assessors in 2023 because the injection in December 2022 may have relieved his symptoms. Further, it was said that he did not include such detail in his affidavits as he was a layperson swearing an affidavit in relation to his kidneys.[56]
· Mr Cutts had disclosed “referred pain to his back, flank, right hip and down his right leg”, during an assessment with CoWork.[57]
[55] T360, L24-27
[56] T329, L31 – T330, L1-2
[57] T334, L23-30
The VWA’s submissions on credibility and reliability
71Counsel for the VWA submitted:
· the objective evidence presented a profile of a young man who was leading a full, active, and robust life, and this was contrary to Mr Cutts’ subjective assessment of his pain and suffering consequences;
· social media posts revealed him going on multi-day road trips, long-haul flights and spectating soccer matches which was inconsistent with his evidence that trouble with sitting was one of his key consequences;
· Mr Cutts was apparently attending the studio every day which was inconsistent with his claim that he did not have a role in the business;
· it was unsatisfactory that Mr Cutts had not referred in his affidavits to his lumbar back pain; and
· there were discrepancies between Mr Cutts and Ms Dank’s evidence as to who drove on their road trips and the level of Mr Cutts’ involvement in childcare.
Findings on credibility of Mr Cutts
72I am mindful of the guidance provided by the Court of Appeal in the case of Church v Echuca Regional Health[58] (Church) about the use of surveillance film to discredit a plaintiff.
[58]Church v Echuca Regional Health (2008) 20 VR 566; [2008] VSCA 153
73The surveillance has not been shown to any doctors for their commentary. In accordance with Church’s case, I will not speculate as to whether they would or would not have altered their opinions if they were shown the surveillance.[59]
[59]Ibid at [100]
74Counsel were given the opportunity to comment on my observations of what appeared to be the contrast between the surveillance and Mr Cutts’ affidavit material.
75As a result, there was the following exchange:
“HER HONOUR: … I'm asking you about the disconnect that the court has identified between his sworn affidavit … and the video surveillance … showing a level of activity which is greater than what his affidavit reveals.
MR ALLAN: Your Honour, in the plaintiff's submission there isn't a disconnect.”[60]
[60] T327, L13-22
76After reviewing the surveillance, social media material and Mr Cutts’ evidence, I find that Mr Cutts was an unreliable witness for the following reasons:
· There was a significant contrast between the surveillance footage and Mr Cutts’ evidence regarding his attendance at the studio/warehouse and his involvement in Ms Dank’s business. In the surveillance, he was seen greeting people, running errands, and sitting at a table/desk for long periods of time using a laptop/phone.
· Having regard to the time stamps on the surveillance footage, I accept there were edits in the surveillance footage at points. The critical issue here is that the surveillance footage showed a level of involvement in the business well beyond what Mr Cutts asserted.
· Mr Cutts’ affidavits depicted a man whose constant abdominal pain could reach excruciating levels with minimal activity, such as twisting. This is at odds with the surveillance footage which showed him moving in an unrestricted manner with no obvious pain. I noted that Mr Cutts was able to sit on a rigid hard plastic chair eschewing the use of an adjustable office chair visible in the surveillance, other than on one occasion. This goes against Mr Cutts’ evidence that an issue with sitting was one of his key consequences.
· The evidence of extensive road trips and overseas travel were inconsistent with his claimed restrictions with mobility including sitting, as set out above.
· Mr Cutts’ affidavit also deposed to difficulties caring for his child due to problems lifting the child. This is at odds with the surveillance footage which showed Mr Cutts lifting his child in and out of the car, placing his child in a car seat and holding the child up in a “super baby” move without any obvious restriction or pain. Whilst undertaking parental duties does not impugn a person’s credit, the impugning issue here is Mr Cutts’ denials of being able to care for his child due to his pain.
· Mr Cutts failed to mention his lumbar spine pain, imaging, cortisone injection and attendances upon Mr Ellis in any of his affidavits or to medico-legal examiners. When asked by the Court why he had not mentioned this in his affidavits, Mr Cutts said he did not think it was relevant.[61] This is not a satisfactory answer. I do not accept the explanations provided by Counsel for the plaintiff. Mr Cutts’ solicitors would have asked him about his medical history when preparing this claim. Further, Mr Cutts never suggested the injection in December 2022 had relieved his symptoms. At the time he swore his second affidavit, Mr Cutts was having treatment for his back, and his failure to refer to such a condition reflects poorly on his reliability.
[61] T161, L13-16
77The film directly discredits Mr Cutts in that the picture painted by him in his affidavits is irreconcilable with the surveillance. Mr Cutts’ claimed restrictions of significant pain, frequent flare-ups, and the need to spend much of the day lying down are not borne out on the surveillance footage.
78I find that Mr Cutts is unreliable and is prone to exaggeration and over embellishment of his impairment consequences, as well as understating the extent of his current activities.
79Given the above findings, I have viewed Mr Cutts’ evidence as to the ongoing impairment consequences of the work incident-related injuries with caution, and I will only accept the asserted consequences if there is objective medical evidence to support them.
Does the unreliability of Mr Cutts have an impact on this case?
80As a general proposition, doctors depend on the accuracy of histories provided to them by their patient as to their true level of disability.
81In this case, Mr Cutts’ medical history is of importance, particularly given that he has moved interstate and changed his treatment team.
82The treating doctors in Queensland have relied upon the history provided by Mr Cutts. It is not clear whether they had any, and if so what, contemporaneous material from Victoria such as a complete set of Dr Jayasinghe’s records and material from St Vincent’s’ Hospital.
83Medical opinion based on Mr Cutts’ subjective accounts of his symptoms alone have little or no probative weight as I have determined that he was not reliable.[62] However, I must also consider the objective medical evidence which is discussed later in this judgment.
[62]Dordev v Cowan and Ors (supra) at paragraph [19]
Affidavit evidence of Ms Dank
84Ms Dank said:
· Contrary to Mr Cutts’ assertion that he did more than the “average dad”, Ms Dank said she did not like to leave him alone with their child, as she worried that he could not keep up with the child. Ms Dank said she tended to bathe the child as she was worried Mr Cutts would drop the child.
· She often observed Mr Cutts wincing in pain when picking their child up and twisting and lifting their child into the car seat.
· Mr Cutts relied on Ms Dank to perform lighter housework such as doing the dishes and vacuuming.
Oral evidence of Ms Dank
85Ms Dank gave evidence via audio-visual link from Queensland.
86She denied that Mr Cutts helped run the business. She initially said Mr Cutts would do little things such as collecting coffee, dropping things at the post office, and greeting delivery drivers or other creatives at the studio.[63] When pressed, Ms Dank admitted Mr Cutts might have sent an email on her behalf once in her absence when she was sick and needed to contact her agent.[64] Ms Dank said Mr Cutts would conduct these activities “rarely”.[65] When asked by the Court what she meant by “rarely”, Ms Dank clarified that she meant once a fortnight.[66]
[63] T194, L1--13
[64] T194, L21-23
[65] T190, L22-29
[66] T193, L10-16
87In relation to driving, Ms Dank said:
· She could not initially recall if she did most of the driving on the Melbourne – Adelaide – Darwin road trip.[67] She denied Mr Cutts did a substantial part of the driving on that trip,[68] and later said she probably would have done 80 per cent of the driving.[69]
· She did 80 per cent of the driving on the Sunshine Coast to Melbourne and return road trip.[70]
· She generally drove because Mr Cutts “needs to sometimes move positions and that’s not very safe while driving”.[71] She said he preferred to sit in the passenger seat.[72]
[67] T195, L24-26
[68] T195, L22-23
[69] T196, L5-6
[70] T199, L14-17
[71] T199, L1-3
[72] T200, L4-5
88Ms Dank stated that Mr Cutts participated in their child’s care, but he did not carry or bathe the child.[73]
[73] T201, L6-8
89Contrary to her affidavit, she emphatically said Mr Cutts did not lift their child into or out of the car seat.[74] She said, “he won’t do it because the twisting motion can affect his kidney”,[75] but then said Mr Cutts would put the child into the car seat:
“… when I can’t. If I’m carrying stuff or doing something else, he will sometimes put [the child] in and out of the car seat. It is very rarely that I will allow him to do so. I will try to do it as much as possible.”[76]
[74] T201, L18-21
[75] T201, L24-29
[76] T201, L19-24
Is Ms Dank a credible and reliable witness?
The plaintiff’s submissions on Ms Dank’s credibility and reliability
90Counsel for Mr Cutts submitted:
· Ms Dank’s evidence sat well with Mr Cutts’ evidence.
· The discrepancies between Ms Dank’s and Mr Cutts’ evidence as to who did most of the driving on road trips could be explained due to the passage of time.[77]
· Ms Dank had not given inconsistent answers regarding Mr Cutts lifting their child in and out of the car. It was submitted Ms Dank’s initial emphatic “no” was in answer to the question of whether Mr Cutts was “perfectly capable” of doing this task and her subsequent answers were not inconsistent with that.
[77] T344, L20-30
91It was submitted that in accordance with the analysis in Principe v Transport Accident Commission,[78] (Principe) I should find that Mr Cutts was a reliable witness and therefore the significance of Ms Dank’s affidavit and her oral evidence was undiminished.
[78] Principe v Transport Accident Commission [2016] VSCA 205 at [89]
The VWA’s submissions on Ms Dank’s credibility and reliability
92Counsel for the VWA submitted:
· Ms Dank attempted to downplay Mr Cutts’ abilities and cast a gloomier light on what he could and could not do; and
· she often said things in direct contrast to what Mr Cutts admitted he could do,[79] such as sharing the driving on road trips, caring for their child, and enjoying their overseas holiday.
[79] T255, L6-9
Findings on credibility of Ms Dank
93It is to be expected that Ms Dank, as Mr Cutts’ long-term partner and fiancée, would seek to be helpful to his application. However, Ms Dank went beyond this, becoming an advocate for her partner, both in her affidavit evidence and while giving oral evidence.
94During her evidence, Ms Dank was defensive and unwilling to make concessions when opportunities arose to do so.
95This was evident in a number of ways, including her evidence regarding Mr Cutts’ involvement in her business, his capacity to lift and care for their child, and how they shared the driving on their road-trips.
96There were inconsistencies in Ms Dank’s evidence when compared to the surveillance footage and Mr Cutts’ evidence.
97Ms Dank did not mention the extensive road trips or overseas holiday in her affidavit. She also did not comment on Mr Cutts’ back condition.
98In terms of driving, it is true that the Melbourne to Darwin trip was a number of years ago and memories can fade but, in this case, the evidence as to the time spent driving by each witness was supplemented by reasons as to why Ms Dank and Mr Cutts recalled the driving, and both said they were sure of their assessments.
99Mr Cutts said confidently that he preferred to drive as it was a helpful distraction to his pain. His preference for driving was consistent with the surveillance film, as discussed above.
100Ms Dank was equally confident that Mr Cutts preferred to be in the passenger seat to allow him to adjust his position frequently for comfort. She maintained she did most of the driving on their road trips.
101It is difficult to reconcile these differing recollections.
102Counsel for Mr Cutts’ reliance on what was called the Principe analysis is misguided in this case.
103In Principe, the Court of Appeal was considering a causation case. Credit was not an issue. In fact, the Court of Appeal made it clear that the genuineness of the complaints made by the plaintiff to lay witnesses was not in issue. What was in issue in that case was the timing of such complaints.[80]
[80] Principe v Transport Accident Commission [2016] VSCA 205 at [89]
104In this case credit is very much in dispute. I adopt the analysis set out in Petrovic v Victorian Workcover Authority,[81] given my finding that Mr Cutts is unreliable.
[81] Petrovic v Victorian Workcover Authority [2018] VSCA 243 at [79]
105In considering these issues, I find that Ms Dank was focussed on being an advocate for Mr Cutts and was unreliable.
The medical evidence
106Having dealt with credit and reliability, this is a convenient point to consider the medical evidence tendered by the parties.
107As discussed above, Mr Cutts was diagnosed with a PUJ obstruction requiring surgery in 2012. There was no medical evidence regarding Mr Cutts’ right kidney condition in the period after the 2012 surgery until August 2015.
108In August 2015, Mr Cutts attended his GP, Dr Jayasinghe, at the Swinburne University Health Service with complaints of loin pain and upper quadrant constant pain for two weeks.[82]
[82]Defendant Exhibit D6, “Patient Health Summary from Swinburne University Health Service covering the period 21 August 2012 through 8 February 2019”
109On 25 August 2015, a renal ultrasound and CT scan were conducted which reportedly showed a prominence of the right renal pelvis which was likely due to residual or postsurgical change.[83]
[83] Plaintiff Exhibit P17
110On 20 October 2016, Mr Cutts again attended Dr Jayasinghe complaining of loin pain and a constant dull ache. The notes recorded the pain was “6-7/10”. Dr Jayasinghe arranged a renal tract ultrasound and CT scan of the abdomen and pelvis which reportedly revealed moderately severe right hydronephrosis suggestive of a partial right PUJ obstruction.[84]
[84] Plaintiff Exhibit P18
111On 9 and 10 January 2017, Mr Cutts underwent further investigations, which reportedly revealed mild hepatomegaly, diffuse hepatic fatty infiltration but no other abnormality.[85] Mr Cutts attended Dr Jayasinghe on 19 January 2017 for his ultrasound results and complained of feeling drained, lethargic, and tight in the abdomen.
[85] Plaintiff Exhibit P19 and Plaintiff Exhibit P20
112In 2017, Mr Cutts was referred to a Gastroenterologist (Dr Wayne Friedman) and urological surgeon (Mr Jeremy Goad) for further investigation and treatment, as discussed below.
Dr Wayne Friedman, Gastroenterologist
113Mr Cutts tendered a letter from Dr Friedman addressed to Dr Jayasinghe dated 23 May 2017.[86]
[86]Plaintiff Exhibit P13
114On 23 May 2017, Mr Cutts presented to Dr Friedman with complaints of right-sided abdominal pain in the upper quadrant and para umbilical areas with associated alteration in bowel pattern.[87] Dr Friedman recommended a colonoscopy to exclude any sinister pathology. No documents regarding the colonoscopy were tendered but such a procedure is referred to by Mr Goad in his report discussed below.
[87] Plaintiff Exhibit P13 PCB 88
Mr Jeremy Goad, Urological Surgeon
115Mr Cutts tendered two letters from Mr Goad addressed to Dr Jayasinghe dated 14 September 2017 and 4 October 2017.[88]
[88] Plaintiff Exhibit P 14 PCB 89-90
116Mr Goad recorded Mr Cutts presented with increasing right upper quadrant and flank pain and tenderness. Mr Cutts informed him that an earlier colonoscopy was normal. It is unclear if this was the colonoscopy recommended by Dr Friedman or an earlier investigation. Mr Goad viewed an ultrasound of January 2017 and recommended repeat investigations to ascertain where there was any obstruction in Mr Cutts’ right kidney.
117Mr Goad then prepared a second report dated 4 October 2017, which included a review of the imaging he had recommended.[89] He opined that the scans were “completely normal”.
[89] Plaintiff Exhibit P 14 PCB 90
118Mr Goad could not find a cause for Mr Cutts’ discomfort in his urinary tract and considered he may have muscular discomfort that would gradually resolve.
Dr Srinath Jayasinghe, GP
119Mr Cutts tendered two reports from Dr Jayasinghe dated 26 June 2019 and 24 December 2019.[90] The defendant tendered clinical notes from the Swinburne University Health Service, where Mr Cutts saw Dr Jayasinghe, covering the period 21 August 2012 to 8 February 2019 inclusive.[91]
[90] Plaintiff Exhibit P4, PCB 25-26; PCB 27-29
[91]Defendant Exhibit D6
120In his first report dated 26 June 2019, Dr Jayasinghe described the workplace injury as an acute subcapsular haematoma and laceration of the peripheral renal laceration. He did not consider that Mr Cutts was suffering from an aggravation of a pre-existing kidney condition. It was his opinion that the PUJ obstruction in 2012, and the work-related injury in 2019, were two different anatomical areas of the same kidney.[92]
[92] Plaintiff Exhibit P4 PCB 26
121Whilst Dr Jayasinghe referred to the 2012 PUJ obstruction in his first report, he did not comment on his treatment of Mr Cutts prior to the workplace injury in January 2019. There has been no explanation for this omission.
122Dr Jayasinghe opined that a desk job would be suitable for Mr Cutts. He confirmed this opinion in his later report.[93] He did not specify the hours, but it can be inferred he was referring to full-time work, given he did not qualify his opinion. He also opined Mr Cutts should avoid heavy lifting for at least six-eight months from December 2019.
[93] Plaintiff Exhibit P4 PCB 29
123Dr Jayasinghe did not comment on Mr Cutts’ hypertension.
Dr Peita Wilson, GP
124Dr Wilson has been Mr Cutts’ GP since he moved to Queensland in August 2020.
125Mr Cutts tendered a report from Dr Wilson dated 27 June 2023.[94] Dr Wilson does not identify what, if any, prior health records she received regarding Mr Cutts.
[94]Plaintiff Exhibit P7, PCB 34-36
126Dr Wilson referred to the original diagnosis of right subcapsular renal bleed when carrying heavy boxes at work in January 2019, with resultant hypertension and chronic pain. No specific current diagnosis for the kidney condition was contained in the report.
127Dr Wilson said that hypertension was initially picked up by Mr Cutts’ GP in 2019, two months following his post-capsular haematoma in Melbourne. The source of this information is not clear, as it is not referred to by Dr Jayasinghe. Contrary to this, Mr Cutts said in his first affidavit that Dr Barth told him in 2021 that he had hypertension.[95]
[95]Plaintiff Exhibit 1, PCB 8 [17]
128Dr Wilson opined that Mr Cutts’ hypertension developed as a direct result of his work-related right renal injury. Again, the basis of this opinion is not clear.
129Dr Wilson said that Mr Cutts was under a lifting restriction of less than 7 kilograms to prevent further renal damage. It is not clear from her report whether this was an opinion she held or whether she had been told that another practitioner had recommended the lifting restriction.
130Dr Wilson noted Mr Cutts began taking a new medication prescribed by Dr Mahadevan (Mr Cutts’ treating renal physician, discussed below), in May 2023, meaning his condition had not stabilised. It is not clear what medication Dr Wilson was referring to. It appears that, at the time of the report, Mr Cutts had been prescribed a new blood pressure medication.
131Dr Wilson noted Mr Cutts had been referred back to Dr Barth (Mr Cutts’ treating urological surgeon, discussed below) for consideration of a right nephrectomy.
132Dr Wilson opined that Mr Cutts’ blood pressure and pain may worsen in future, regardless of his best attempts to comply with medication and lifestyle recommendations.
133Dr Wilson envisaged that Mr Cutts may benefit from seeing a pain specialist in future. She opined the medical therapies may fail and he may end up with a right nephrectomy in future.
134Given the above issues, Dr Wilson opined Mr Cutts was unable to return to work.
Dr Borjana Barth, Urological Surgeon
135Mr Cutts tendered two reports from Dr Barth dated 22 March 2022 and 14 February 2023.[96] It is not clear when Dr Barth first saw Mr Cutts.
[96] Plaintiff Exhibit P8, PCB 37-38; PCB 39-43
136In her first report, Dr Barth referred to a 2021 CT scan which she said showed a rotated right kidney and a benign simple right renal cyst which did not require any further investigation. It is likely that this is the March 2021 CT scan referred to earlier which was not produced to the Court. Dr Barth said that she reviewed a MAG3 scan taken in 2021 which did not show any obstruction.
137Dr Barth opined that Mr Cutts’ blood pressure had slowly reduced with the help of medication (Perindopril). Mr Cutts reported his right renal pain disappeared when he took the higher dose of Perindopril. He reported he still had an occasional ache in his right flank, but it was nothing compared to what it was before.
138Dr Barth concluded that Mr Cutts’ blood pressure was slowly stabilising with anti-hypertensive medication, lifestyle, and diet modification. Dr Barth considered Mr Cutts’ current treatment was optimal given his blood pressure had reduced and his symptoms had improved.
139As to future treatment, Dr Barth commented that she would be guided by Associate Professor Krishnasamy, the renal physician. She did not consider surgery was necessary and a nephrectomy was a last resort in the management of Mr Cutts’ symptomatic hypertension.
140In her report dated 14 February 2023, Dr Barth was asked to comment on Mr Cutts’ condition and treatment. She recorded an:
“Onset of hypertension following sustained R subscapular renal haematoma and renal artery coiling to stop bleeding, haematoma expansion and prevent loss of R kidney. Reduction of blood pressure with anti-hypertensives and lifestyle changes” (sic)[97]
[97] Plaintiff Exhibit P8, PCB 42
141Dr Barth declined to comment on whether Mr Cutts had hypertension prior to 2019, as she said she lacked the necessary documentation, and said this question should be directed to a renal physician.
142Dr Barth again opined Mr Cutts had a good prognosis, other than a small risk of developing a Page kidney[98] if his blood pressure was poorly controlled. If this occurred, he would require a nephrectomy but noted he should be able to manage his blood pressure with medication.
[98]Dr Barth said a Page kidney was a “… long time complication from previous renal trauma and sub-capsular haematoma which restricts the blood flow in the kidney by exerting increased pressure due to a tight renal capsule”, Plaintiff Exhibit P8, PCB 40
143Dr Barth opined Mr Cutts should return to work in order to:
“… maintain social integration, as long as it [work] does not entail heavy lifting and an increase in abdominal pressure”[99]
[99]Plaintiff Exhibit P8, PCB 42
144Dr Barth opined that Mr Cutts had a good capacity for work, and she did not place any qualification or restriction on working hours. I infer she considered he could return to full-time work.
Associate Professor Rathika Krishnasamy, Renal Physician
145Mr Cutts tendered a report from Associate Professor Krishnasamy dated 7 June 2021.[100] Dr Barth referred Mr Cutts to Associate Professor Krishnasamy in mid-2021.
[100] Plaintiff Exhibit P5, PCB 30-31
146Associate Professor Krishnasamy was Mr Cutts’ treating renal physician in Queensland before Dr Kumar Mahadevan took over his primary care in 2023.
147In his report, he recommended further testing and investigations.
148No further report from Associate Professor Krishnasamy was produced and it is not clear whether any of Associate Professor Krishnasamy’s recommended investigations were conducted.
Dr Kumar Mahadevan, Renal Physician
149Mr Cutts tendered a report from Dr Mahadevan dated 22 June 2023.[101] Dr Mahadevan took over Mr Cutts’ care in May 2023.
[101] Plaintiff Exhibit P6, PCB 32-33
150Dr Mahadevan reviewed the renal ultrasound dated 25 May 2023 and opined that there was no evidence of hydronephrosis from the past right PUJ obstruction after the surgery in 2012.[102] He also said that there was no evidence of a persistent haematoma on that ultrasound. Dr Mahadevan opined that Mr Cutts continued to maintain normal kidney function.
[102]Plaintiff Exhibit 15, PCB 91
151It was his opinion that Mr Cutts’ biggest problem was uncontrolled hypertension despite compliance with hypertensive medications.
152Dr Mahadevan was told that hypertension had been diagnosed in 2019 when Mr Cutts presented at St Vincent’s Hospital after the work incident. Dr Mahadevan considered thar Mr Cutts’ blood pressure had worsened since 2021 when a 24-hour ambulatory blood pressure monitoring showed stable blood pressures at the recommended target.
153Dr Mahadevan opined that it was difficult to identify the underlying cause of the worsening blood pressure, but he said it was likely that the hypertension was driven by the right kidney complications. He did not explain how or why he formed this opinion.
154Dr Mahadevan did not comment on whether the hypertension was related to the work incident.
155Regarding future management, Dr Mahadevan stated the emphasis would be on blood pressure control with pharmacotherapy, lifestyle modification and stress management.
156Dr Mahadevan reported that the other persistent issue was chronic pain in relation to the right capsular haematoma.
157It appears that Dr Mahadevan relied upon the pain levels reported by Mr Cutts. There is nothing in his report which revealed any objective clinical findings to explain the chronic pain.
158With respect to the chronic pain, Dr Mahadevan stated that Mr Cutts was looking at options, including seeing a pain specialist. Dr Mahadevan commented that if this failed to control the pain, there:
“… is consideration of a possible right nephrectomy which is a serious undertaking and not without its own complications.”[103]
[103] Plaintiff Exhibit P6, PCB 33
159In terms of work capacity, Dr Mahadevan said it was difficult to comment on this issue given the subjectivity of pain experience. He recorded that Mr Cutts reported he was not able to perform regular work given that pain affected his ability to sit for prolonged periods and perform heavy lifting. He did not comment on whether the hypertensive condition affected Mr Cutts’ work capacity.
Mr Tim Ellis, Osteopath at Advanced Health Care
160Mr Cutts tendered clinical records of six sessions with Mr Ellis over the period 19 September 2022 to 27 February 2023.[104] The notes were difficult to interpret. Mr Cutts did not produce a report from Mr Ellis.
[104]Plaintiff Exhibit P16, PCB 93; 100 -111
161Mr Cutts confirmed he commenced seeing Mr Ellis in September 2022.[105]
[105] T154, L29-30
162Mr Cutts’ initial consultation with Mr Ellis on 19 September 2022 was principally for right lumbar pain and a lump around his right sacroiliac joint.
163Mr Cutts attended five further appointments with Mr Ellis between October 2022 and 27 February 2023. Treatment remained focussed on the right sacroiliac sprain.
Mr Cameron Sullivan, Exercise Physiologist at Advanced Healthcare
164Mr Cutts tendered a summary of appointments which referred to 19 sessions with Mr Sullivan in the period March 2023 to May 2023.[106]
[106]Plaintiff Exhibit P16, PCB 92-93
165An incomplete set of clinical notes were produced which related to attendances on Mr Sullivan on 7 March 2023, 9 March 2023, 3 April 2023, 11 April 2023.[107]
[107] Plaintiff Exhibit P16, PCB 94-99
166Mr Sullivan’s notes were also difficult to interpret and no explanation was offered regarding the missing notes for attendances on 23 March 2023, 24 March 2023, 31 March 2023, 6 April 2023, 13 April 2023, 14 April 2023 17 April 2023, 20 April 2023, 21 April 2023, 24 April 2023, 2 May 2023, 4 May 2023, 5 May 2023, 8 May 2023, 9 May 2023 or 12 May 2023.
167Mr Cutts did not produce a report from Mr Sullivan.
168Mr Cutts began seeing Mr Sullivan for treatment on 7 March 2023.[108]
[108] Plaintiff Exhibit P16
169At the first session, Mr Sullivan recorded a history of the kidney haematoma in 2019, and pain in the lower back running down the right leg.
170In subsequent sessions, Mr Sullivan recorded Mr Cutts’ symptoms and progress in the lower back, hip, right leg, glute and hamstrings.
171At the time of the hearing, Mr Cutts was attending Mr Sullivan up to three days a week.[109]
[109] T19, L10-13
Mr Cutts’ medico-legal experts
172The following medico-legal reports were tendered on Mr Cutts’ behalf:
· Medical Panel Opinion and Reasons dated 7 December 2020;[110] and
· Mr Snow, urologist, dated 1 May 2023, together with the letter of instruction to Mr Snow.[111]
·Dr Altaf, occupational physician, dated 12 May 2023.[112]
[110] Plaintiff Exhibit 22, PCB 70-82
[111] Plaintiff Exhibit P10, PCB 65-69 and 119-121
[112]Plaintiff Exhibit P9, PCB 49-64
The Medical Panel
173The Medical Panel responded to a referral from a conciliation officer lodged on 30 January 2020. The Medical Panel was asked to provide opinions in response to the following two questions:
· “What was the nature of the worker’s medical condition (including any sequalae) relevant to the claimed injury?”
· “If the Panel is of the opinion that the worker’s medical condition is a disease or a recurrence, aggravation acceleration, exacerbation or deterioration of any pre-existing injury or disease, was the worker’s employment in fact or could it possibly have been a significant contributing factor to the disease or recurrence, aggravation, acceleration, exacerbation or deterioration of any pre-existing injury or disease?”
174The Medical Panel consisted of Associate Professor Paul Champion de Crespigny (described in the Medical Panel Opinion as a general physician) and Associate Professor Trevor Jones (described in the Medical Panel Opinion as a general surgeon).[113] The Medical Panel examined Mr Cutts via Zoom on 24 September 2020.[114]
[113] Plaintiff Exhibit 22, PCB 70
[114] Ibid
175The Medical Panel was of the opinion Mr Cutts suffered from pre-injury right renal artery pseudoaneurysms which bled, resulting in an acute subcapsular renal haematoma relevant to the claimed acute subcapsular renal haematoma injury. In essence, the Medical Panel opined the condition was an aggravation and acceleration of the pre-existing disease of right renal artery pseudoaneurysms.
176The Medical Panel opined the previously abnormal right renal blood vessels were either attributed to previous right renal intervention and, if not, were congenital or acquired.
Mr Ross Snow, Urologist
177Mr Snow conducted his examination via video on 1 May 2023 and said that Mr Cutts looked to be “in very good health”.
178Mr Snow noted that the ultrasound of 23 April 2021 revealed cortical scarring in the mid-pole of the right kidney, with a 16-millimetre cyst in the upper pole.
179It is not clear what radiology was provided to Mr Snow – the letter of instruction does not specifically refer to any radiology.
180Mr Snow recorded a history that Mr Cutts had monitoring of the kidney from time to time after 2012, but there did not seem to be any ongoing problems. Based on the history provided, Mr Snow opined the renal function had been maintained since the surgery in 2012.
181Mr Snow did not comment on the kidney issues Mr Cutts experienced in 2017, despite having been provided with the Swinburne University clinical records.
182Mr Snow was told that there was no specific trauma to the right flank on 10 January 2019, and that Mr Cutts developed hypertension in 2019, following the workplace incident.
183Mr Snow said the following in relation to hypertension:
“Scarring and damage of a kidney can be a cause of hypertension, so if blood pressure cannot be easily controlled, attention might turn to doing something surgical to the kidney to gain control of the blood pressure. In Mr Cutts’ case, the only thing to do would be to surgically remove the kidney. That sounds like a big step, but it could conceivably lead to good blood pressure control and could also possibly control or cure the chronic pain that he experiences.”[115]
[115] Plaintiff Exhibit P10, PCB 66
184He opined Mr Cutts’ hypertension could be idiopathic and could be independent of the kidney. He had no doubt that a pathological kidney could be a contributor, if not the sole cause, of elevated blood pressure.
185As for the chronic pain, Mr Snow opined Mr Cutts’ descriptions of pain were out of proportion to the pathology identified. He opined the alleged severity of Mr Cutts’ pain was questionable, given he did not like using analgesics and would only use an anti-inflammatory or mild analgesic every two to four weeks.
186Mr Snow found it surprising Mr Cutts reported he was currently unable to work in a sedentary role due to the pain. Mr Snow was of the view Mr Cutts had capacity for part-time sedentary work, initially at reduced hours.
Dr Khayyam Altaf, Occupational Physician
187Dr Altaf examined Mr Cutts via Zoom on 9 May 2023.
188Dr Altaf said that he expected that Mr Cutts’ kidney and associated vascular system were already impaired prior to the work incident and, therefore, Mr Cutts’ position was “unique” and could not be compared to the usual general public.
189He recognised there were questions about the relationship between heavy lifting and the renal haematoma. He accepted that Mr Cutts suffered a haematoma subsequent to heavy lifting on 10 January 2019.[116]
[116] Plaintiff Exhibit P9, PCB 60
190Dr Altaf did not say that the haematoma persisted at the time of his examination. Rather, he offered this as a retrospective diagnosis. This was consistent with his interpretation of scans which were reported to show an almost complete resolution of the previously seen right subcapsular renal haematoma.
191Dr Altaf observed that Mr Cutts sat reasonably comfortably and said, “his range of movement at the core did not appear to be obviously limited”.[117]
[117] Plaintiff Exhibit P9, PCB 54
192Dr Altaf recorded the following symptoms as reported by Mr Cutts:
“ … a ‘sharp twisting knife’ like pain deep in the right flank which is worse with overexertion, sitting with his spine rotated on the floor with his child and sitting for long periods. He can manage sitting in a car for two hours before he has to get out. He prefers going for walks, though he is unable to run. He finds the pain levels are distracting. The intensity of pain can differ day-to-day.
The only time he has relief from his pain is while he is asleep however he still wakes up every couple of hours and remains lethargic during the day …”[118]
[118]Plaintiff Exhibit P9, PCB 52-53
193Mr Cutts told Dr Altaf that he was not currently looking for work, and that he expected he would most likely work for his partner in her own “design company” where he can work at his own pace with no set hours.
194Given Dr Altaf’s observations referred to above, it appears that he relied upon and accepted the description of pain and restrictions provided by Mr Cutts to support his opinion that Mr Cutts was likely to continue to suffer from ongoing symptoms and disability into the foreseeable future.
195Dr Altaf opined that Mr Cutts had the capacity for sedentary-type occupations, so long as he could manage his pain distraction and adjust his posture when required. Dr Altaf opined his hours would need to be limited to three hours per day on three non-consecutive days per week. Dr Altaf did not provide any explanation for these restrictions, other than to say such restrictions would give Mr Cutts the opportunity to provide “a consistent, useful and reliable service”.[119]
[119]Plaintiff Exhibit P9, PCB 63
VWA’s medico-legal experts
196The VWA tendered the following medico-legal reports:
· Dr Navin, occupational physician, dated 27 June 2019;[120]
· Dr McCartney, occupational physician, dated 27 July 2021, 24 August 2021, and 17 July 2023;[121]
· Dr Mark Faragher, neurologist, dated 28 October 2021;[122] and
· Associate Professor Solomon Menahem, nephrologist/renal and general physician, dated 8 March 2023.[123]
[120]Defendant Exhibit 1, DCB 3-10
[121]Defendant Exhibit D2, DCB 11-18; DCB 19-23; DCB 39-59
[122]Defendant Exhibit 3, DCB 24-31
[123]Defendant Exhibit D4, DCB 32-38
197Given the defendant’s concession that initial causation was not disputed in this application, the opinions of Dr Navin and Dr McCartney that Mr Cutts did not injure his kidney in the work incident are not relevant to the issues in dispute in this case.
198I have therefore not summarised Dr Navin’s opinions.
199Dr McCartney’s opinion on capacity is relevant to this proceeding.
Dr Robert McCartney, Occupational Physician
200Dr McCartney examined Mr Cutts in person on 9 July 2021 and on 16 June 2023. He prepared three reports dated 27 July 2021, 24 August 2021, and 17 July 2023.
201In his first report, Dr McCartney opined Mr Cutts had capacity for modified duties, working up to four hours per day initially. He suggested part-time sales or quality assurance work may be appropriate, so long as there were appropriate occupational rehabilitation services available.
202Dr McCartney did not mention hypertension or blood pressure problems in his first report. Dr McCartney expressly stated he was not aware of any other medical conditions affecting Mr Cutts’ recovery including a return to work.
203In August 2021, Dr McCartney prepared a supplementary report on Mr Cutts’ capacity for employment. He was asked to consider the options contained in an IPAR 130 Week Vocational Assessment Report. There was no clinical examination of Mr Cutts.
204Dr McCartney supported the suitability of the roles of business analyst, sales and marketing manager, contract administrator, corporate services manager, accounts clerk, sales consulting and administration officer, so long as they were primarily office-based and sedentary.
205In his most recent report, which followed an in-person examination on 16 June 2023, Dr McCartney recorded that Mr Cutts complained of ongoing pain while performing heavier household chores and playing with his daughter. Mr Cutts denied any problems with sitting, standing or walking, and reported that he was able to perform each of those functions at his own pace. Mr Cutts reported taking Panadol when needed, as well as various medications for blood pressure control. He remained under the care of Dr Barth, Dr Wilson, and Dr Mahadevan.
206Dr McCartney opined that Mr Cutts’ clinical examination was unremarkable with no abnormal findings. Dr McCartney considered that Mr Cutts had significant pre-existing renal pathology with no clear evidence of a work-related injury to his right kidney.
207Dr McCartney opined that Mr Cutts’ ongoing reported symptoms were a result of his pre-existing underlying pathology.
208In June 2023, Mr Cutts told Dr McCartney that he had been diagnosed with hypertension. Mr Cutts did not say when this diagnosis was made or who made it.
209In terms of capacity, Dr McCartney opined Mr Cutts would be capable of performing a wide number of roles which involved no heavy physical labour, initially on a part-time basis, with a gradual return to full-time work given he had been off work for a significant period of time. The suitable roles identified by Dr McCartney included:
· despatching and receiving clerk;
· fleet manager – fleet controller;
· quality assurance manager – quality control officer;
· web administrator – e-commerce coordinator; and
· sales representative – sales account manager.
Dr Mark Faragher, Neurologist
210Dr Faragher examined Mr Cutts via Zoom on 28 October 2021.
211At the examination, Mr Cutts described ongoing, deep-seated constant but variable pain over the right loin. He said he used heat packs, warm showers and baths to relieve the pain when it was really severe. Exacerbations would come unexpectedly, and sometimes after twisting or bending. His sleep was disrupted, partly related to aching, and partly related to nocturia from drinking 2½ litres of water during the day. Mr Cutts reported his average blood pressure was 150/92, according to a blood pressure app.
212Mr Cutts reported that when he drove a car, he would need to stop and stretch after an hour, “as he [would be] a bit stiff”.[124] He was able to do basic domestic activities but had difficulty if they involved twisting. Mr Cutts reported he limited lifting to 5-7 kilograms.
[124] Defendant Exhibit D3
213Dr Faragher expressed the opinion that he considered the subcapsular haematoma had been dealt with via the surgery.
214Dr Faragher diagnosed Mr Cutts with a chronic pain syndrome. This diagnosis was dependent on the accuracy of Mr Cutts’ subjective complaints of pain.
215Dr Faragher opined Mr Cutts had no capacity for modified or alternative duties and recommended he be assessed for a pain management program. He considered Mr Cutts’ work capacity could be reviewed in a year’s time after the completion of a pain management program.
Associate Professor Solomon Menahem, Nephrologist/Renal and General Physician
216Associate Professor Menahem prepared a report on the papers dated 8 March 2023 and did not examine Mr Cutts.
217Associate Professor Menahem opined Mr Cutts had a complex renal medical history. There were three separate independent renal diagnoses which he said were possibly, but unlikely, to be related. The three diagnoses were:
· Chronic right upper quadrant pain syndrome which had persisted from 2012 to date (diagnosis 1).
· Right PUJ obstruction, complicated by scarring and reduced function of the right kidney (repaired without complication in October 2012) (diagnosis 2).
· Acute bleed from right renal pseudoaneurysms complicated by subcapsular and retroperitoneal haematoma, repaired surgically without complication. Associate Professor Menahem recorded this injury was sustained on 14 October 2019, but it is apparent he is in fact referring to the injury sustained in the workplace incident on 10 January 2019 (diagnosis 3).[125]
[125]Note: It was common ground between the parties that throughout the report where Associate Professor Menahem referred to the October 2019 incident, he had intended to refer to the January 2019 incident subject of these proceedings
218In terms of diagnosis 1, Associate Professor Menahem said there was no clear cause of the pain. He recorded that Mr Cutts’ complaints of pain originated in August 2012, shortly before the PUJ obstruction was diagnosed. Associate Professor Menahem commented that whilst a PUJ obstruction was usually painless, in the circumstances, he considered it was the “only conceivable cause” of Mr Cutts’ pain. The picture was complicated by Mr Cutts’ complaints of worsening pain since the surgical repair in 2012.
219Regardless, Associate Professor Menahem considered the workplace incident in 2019 was entirely unrelated to the pain condition which arose years beforehand.
220Associate Professor Menahem recommended referral to a chronic pain specialist, and assessment of mental health and support, physical therapy and cognitive therapy as required.
221In terms of diagnosis 2, Associate Professor Menahem confirmed the PUJ obstruction was identified in scans in 2012 and had been repaired without complication that same year. Associate Professor Menahem opined it was common for a chronic PUJ obstruction to result in parenchymal damage to the kidney and that Mr Cutts had suffered such renal damage. This was consistent with the MAG-3 scans which Associate Professor Menahem reported revealed scarring and reduced function of the right kidney.
222When speaking of the secondary hypertension, Associate Professor Menahem opined:
“It is not common for a chronically scarred and poorly functioning kidney to increase the risk of secondary hypertension. In my opinion this is the cause of Mr Cutts secondary hypertension. He had evidence of hypertension on several occasions when visiting his GP prior to the event of October 2019. The right kidney is small, atrophic, and poorly functioning and this commonly precipitates secondary hypertension and even renal impairment with time.”[126]
(Note: This paragraph provoked controversy between the parties. It is referred to as “the impugned paragraph” in the following discussion, for ease of reference. The parties made submissions regarding the impugned paragraph which are set out below).
[126] Defendant Exhibit D4, DCB 34
223Associate Professor Menahem concluded that Mr Cutts’ hypertension was the result of his atrophic right kidney, which preceded the incident in 2019. He otherwise considered the condition may have been caused by a sedentary lifestyle.
224In terms of diagnosis 3, Associate Professor Menahem confirmed Mr Cutts had suffered an acute bleed from right renal pseudoaneurysms complicated by subcapsular and retroperitoneal haematoma.
225Associate Professor Menahem commented that renal pseudoaneurysms are a rare condition, which occur as a result of severe blunt trauma to the kidney (such as those sustained in a motor vehicle accident or major physical assault) or following renal procedures (such as percutaneous kidney biopsies or partial nephrectomies).
226Associate Professor Menahem went on to opine he could find no evidence within medical literature that a renal pseudoaneurysm and subsequent bleed could occur following heavy lifting. On this basis, Associate Professor Menahem said that diagnosis 3 was not related to Mr Cutts’ employment.
227Given the defendant’s concession that initial causation was not disputed in this application, Associate Professor Menahem’s opinion on this issue is not relevant to the issues in dispute in this case. It has been included for the sake of completeness and to understand the whole of Associate Professor Menahem’s report.
228Associate Professor Menahem suggested the only conceivable possibility, given the lack of blunt force trauma, was that diagnosis 3 occurred as a result of the PUJ obstruction surgery occurring in 2012 (albeit he accepted this was highly unusual given seven years had passed between the surgery and diagnosis 2 occurring).
229Regardless of his opinion on causation, Associate Professor Menahem concluded diagnosis 3 and the associated conditions were entirely cured.
230Ultimately, Associate Professor Menahem concluded there was no objective evidence of current sequalae resulting from the January 2019 workplace event.
231In relation to a Page kidney, he opined that a Page kidney:
“only arises when there is ischemia of a kidney resulting from a subcapsular haematoma. As the haematoma has completely resolved and MAG-3 confirmed brisk perfusion of the right kidney similar to perfusion of the left kidney there is no evidence that Mr Cutts has developed a Page kidney.”[127]
[127] Defendant Exhibit D4, DCB 34
232In terms of capacity, Associate Professor Menahem opined Mr Cutts had capacity to return to full active duties, given there was no objective evidence of any residual abnormalities.
233Associate Professor Menahem considered a wide range of sedentary-based jobs and again provided an opinion these were suitable for Mr Cutts. Associate Professor Menahem specifically supported the roles of contract administrator, corporate services management, accounts clerk, sales consulting, administrations officer, business analyst, project manager, e-commerce manager, e-commerce assistant, indigenous engagement officer and marketing coordinator.
234Associate Professor Menahem opined that if Mr Cutts’ ability to return to work was limited by his symptoms, then such incapacity was not related to the work incident. He further opined that his hypertensive condition did not impact upon his capacity for work.
What is the nature of the injury?
Plaintiff’s submissions
235Counsel for Mr Cutts submitted:
· on 10 January 2019, Mr Cutts suffered a right renal pseudoaneurysm with haematoma and laceration of the renal substance;
· since the work incident, Mr Cutts had suffered persisting chronic scarring and impacted function of the right kidney, resulting in right flank pain and secondary hypertension;
· the work incident caused a new injury separate from Mr Cutts’ pre-existing kidney issues; and
· in the alternative, Mr Cutts aggravated his pre-existing kidney condition at work in January 2019, as per the opinion of the Medical Panel.
236In support of the “new injury” submission, Counsel for Mr Cutts emphasised:
· there were no medical attendances for right quadrant or kidney issues for over a year prior to the date of the work incident;
· Mr Cutts worked for a year prior to the work incident with no recorded complaints related to the kidney;
· Mr Goad, the renal urologist, noted on 4 October 2017 that renal function was “completely normal”;
· no pre-injury ultrasound reported any scarring of the right kidney;
· Dr Barth had concluded the hypertension was caused by the work incident injury; and
· there was no prior diagnosis of hypertension or medical records suggestive of any issue with blood pressure control.[128]
[128] Plaintiff’s Outline of Submissions
237Counsel for Mr Cutts went to some length to link Mr Cutts’ hypertensive condition with the workplace incident in 2019. It was submitted there was an “each way” causal relationship between the blood pressure issues and right flank pain. This was based on the history given by Mr Cutts to Dr Barth that his right renal pain disappeared when he took higher doses of blood pressure medication.
238Counsel also referred to Mr Snow’s opinion that:
“If pain persists, if renal function deteriorates to 20% or below, or if blood pressure is hard to control, then a realistic treatment would be nephrectomy. This hopefully would lead to improvement of blood pressure control and hopefully, but not definitely, would also lead to significant improvement of pain.”[129] (emphasis added)
[129] Plaintiff’s Exhibit P10, PCB 68
239Counsel submitted this meant Mr Snow opined that an improvement in blood pressure control would possibly lead to an improvement in pain and I should therefore draw an inference that Mr Snow linked blood pressure control to Mr Cutts’ pain. This submission overstated Mr Snow’s opinion, as Mr Snow opined that elevated uncontrolled blood pressure could lead to cardiovascular deterioration and damage – he did not link blood pressure to pain.
240In summary, Counsel for Mr Cutts submitted that Mr Cutts’ hypertension was caused by a combination of the scarring of the kidney (which Mr Cutts submitted occurred as a result of the subject injury), as well as poor pain control.
241Additionally, Counsel for Mr Cutts relied on the opinion of Dr Mahadevan that Mr Cutts “has had chronic pain issues with regards to the right capsular haematoma”.[130] However, there is no evidence that there is a current haematoma. In order to deal with that fact, Counsel submitted it could be gleaned from Dr Mahadevan’s recommendations for assessment by a pain specialist and, failing that, a possible nephrectomy, that there remained an organic basis for the chronic pain referable to the original right renal haematoma.[131]
[130] Plaintiff Exhibit P6, PCB 32
[131] T286, L21-32
242Counsel for Mr Cutts submitted Associate Professor Menahem’s opinion that Mr Cutts had experienced ongoing right upper quadrant pain since 2012 was incorrect. They submitted there was intermittent pain up until mid-2017, after which the pain resolved.
243Counsel for Mr Cutts attacked Associate Professor Menahem’s report on the basis that the pre-injury MAG-3 scans did not report scarring on the kidney. Counsel submitted no pre-injury scan (MAG-3, ultrasound or other) demonstrated or reported any evidence of scarring. This was significant as Associate Professor Menahem linked the hypertension to the pre-injury scarring and damage to the kidney.
244Counsel contrasted Associate Professor Menahem’s opinion with that of Dr Snow, who concluded following review of all the radiology there was only scarring post-injury.
245Counsel for Mr Cutts submitted Associate Professor Menahem said that the scarring and damage to the kidney could cause hypertension.[132]
[132] T274, L17-19
246Counsel commented in passing that they were not sure whether the first sentence of the impugned paragraph contained a typographical error.
247Counsel for Mr Cutts ultimately stated that it did not really matter whether there was a typographical error in the impugned paragraph or not, as Associate Professor Menahem’s opinion was that the scarring and poorly functioning kidney caused the hypertension.[133]
[133] T275, L8-16
VWA’s submissions
248The VWA predominantly relied upon Dr Mahadevan and Associate Professor Menahem to assert any compensable right kidney injury had resolved and any remaining symptoms and kidney conditions were due to the pre-existing issues.
249Counsel for the VWA submitted there was a typographical error in the impugned paragraph of Associate Professor Menahem’s report and asserted that it should read:
“It is not common for a chronically scarred and poorly functioning kidney to increase the risk of secondary hypertension. In my opinion this is not the cause of Mr Cutts’ secondary hypertension.”
250The VWA also relied on the opinion of Dr Faragher, who concluded Mr Cutts had a chronic pain syndrome relating to his right loin pain. It was said that Dr Faragher, a neurologist, was qualified to provide a formal diagnosis of an organically based chronic pain syndrome.
251Counsel submitted Mr Snow’s opinions were qualified and related to hypothetical causes for hypertension. It was submitted that Mr Snow did not give a concrete opinion as to the cause of Mr Cutts’ hypertension. Counsel otherwise relied upon Mr Snow’s opinion that Mr Cutts’ description of pain was out of proportion to the pathology identified.
252The VWA criticised Dr Barth for failing to identify a causal link between the plaintiff’s hypertension and its associated consequences to the subject injury.
Findings on the nature of the injury including his current condition
Kidney
253I have carefully considered all the medical material tendered.
254The treating doctors’ reports appear to be lacking a full history particularly in relation to the pre-existing condition and the date when hypertension was first diagnosed.
255There has been no explanation offered as to why Dr Jayasinghe’s report only dealt with treatment post-January 2019 – this is perplexing as it is clear that Dr Jayasinghe had been instrumental in treatment and referrals from at least August 2015.
256It is also unclear whether the treating team in Queensland, Drs Wilson, Barth, Mahadevan and Associate Professor Krishnasamy were provided with a full history, either by Mr Cutts or by way of previous medical records from Swinburne University Health Service and St Vincent’s Hospital, which set out the pre-existing history and treatment.
257These doctors relied heavily upon Mr Cutts’ reported complaints of pain, as did Dr Altaf and Dr Faragher. Dr Mahadevan opined such complaints were subjective.
258Mr Snow expressed doubt as to whether Mr Cutts’ presentation to him was proportionate.
259Dr Altaf’s retrospective diagnosis does not assist in determining the current situation.
260The Medical Panel found that Mr Cutts suffered an aggravation and acceleration of the pre-existing disease of right renal artery pseudoaneurysms. The opinion is almost four years old and the Medical Panel did not apparently include any renal specialists. I do not accept the Medical Panel opinion on this point, as it is contrary to the consensus of medical opinion.
261If there had been an aggravation in January 2019, there was no evidence that the effect of the aggravation continued until the time of the hearing. I find that if there was an aggravation of a pre-existing condition in the workplace, the effect of such aggravation has ceased.
262I prefer the analysis of Associate Professor Menahem, even though he did not examine Mr Cutts. Mr Cutts was not examined in person by Mr Snow or Dr Altaf. Apart from the fact that Mr Cutts told Mr Snow and Dr Altaf about his claimed restrictions, neither Mr Snow nor Dr Altaf had any real advantage over Associate Professor Menahem.
263Associate Professor Menahem is a highly qualified specialist in this area. He was provided with the medical records from Swinburne University Health Service and St Vincent’s Hospital. Associate Professor Menahem’s report is highly detailed and provides a clear path of reasoning for each opinion.
264I find that in January 2019, Mr Cutts suffered an acute bleed from right renal pseudoaneurysms complicated by subcapsular and retroperitoneal haematoma.
265I accept the analysis of Associate Professor Menahem and his conclusion that the pseudoaneurysms were cured, the subcapsular haematoma had completely resolved and there is now no demonstrable residual haematoma. This opinion is consistent with the ultrasound of 25 May 2023 which showed no haematoma.
266There is insufficient evidence upon which I can be satisfied that there is any link between Mr Cutts’ current kidney condition and the work incident.
267I am therefore not satisfied that any impairment consequences from any kidney condition are related to the work incident.
Hypertension
268I have considered the competing arguments about the impugned passage in Associate Professor Menahem’s report discussed above.
269Ultimately, I have formed the view that the debate is a “furphy” and distracting. It is clear from reading the report in its entirety that Associate Professor Menahem considered that Mr Cutts’ hypertension was the result of his atrophic right kidney, which preceded the incident in 2019.
270Whilst there was no formal diagnosis of hypertension prior to the subject injury, the submission that there was no record suggestive of any issue with blood pressure control is an overstatement.
271There was evidence of elevated blood pressure readings in the Swinburne University Health Records.[134] These records were examined by Associate Professor Menahem who opined that “there is clearly documented elevated blood pressures on numerous readings prior to the event of October 2019 [January 2019] …”[135]
[134] Defendant Exhibit D6
[135] Defendant Exhibit D4, DCB 37
272I note that Dr Barth declined to provide an opinion on hypertension. Dr Mahadevan did not link Mr Cutts’ hypertension with the work incident.
273There is insufficient evidence upon which I can be satisfied that there is a current hypertensive condition which was either caused by or aggravated by the work incident.
274In addition, there is insufficient evidence upon which I can be satisfied that there is a current hypertensive condition which is secondary to any work incident kidney condition.
275I am therefore not satisfied that any impairment consequences from Mr Cutts’ hypertensive condition are related to the work incident.
Is Mr Cutts suffering from a work-related organically based chronic pain syndrome?
276The support for an organically based chronic pain condition is found in Dr Faragher’s report and, to a lesser extent, Dr Mahadevan. The opinions were heavily premised on Mr Cutts’ reports of pain.
277Given my findings regarding Mr Cutts’ reliability, I place little weight, if any, on these opinions.
Conclusion
278I have found that any condition Mr Cutts currently suffers from, either renal or hypertensive, is no longer related to the work incident.
279The application is dismissed.
280The parties are invited to provide Minutes of Orders including Orders for costs.
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