Davis v Victorian WorkCover Authority
[2013] VCC 526
•26 April 2013
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-11-06317
| TIMOTHY HAYDEN DAVIS | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 15 and 16 April 2013 | |
DATE OF JUDGMENT: | 26 April 2013 | |
CASE MAY BE CITED AS: | Davis v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 526 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Injury to lower back – reactive depression and anxiety – claim for pain and suffering and economic loss – two workplace incidents – credibility and reliability of plaintiff.
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Lu v Mediterranean Shoes Pty Ltd [2000] VSCA 65
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell SC with Mr D Purcell | Arnold Dallas McPherson |
| For the Defendant | Mr A Moulds SC with Mr R Kumar | Hall & Wilcox |
HIS HONOUR:
Preliminary
1 The plaintiff suffered injuries to his lumbar spine in two workplace incidents in May and June 2009. Prior to these incidents, he had an extensive history of lower back problems over the years from 1991 until 1995, details of which he failed to provide to most of the practitioners who examined him for the purposes of this application.
2 As a result of the workplace incidents, he claims he suffers ongoing pain in the lower spine which has required extensive conservative treatment and, further, that he has developed a chronic adjustment disorder with depressed and anxious mood, and a chronic pain disorder. He claims his domestic and recreational activities, and work capacity has been significantly affected.
3 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered throughout the course of the plaintiff’s employment with Waterstore Products (“the employer”) over the period from August 2008 until June 2009, and, in particular, on 5 May 2009 and 26 June 2009.
4 The body function said to be lost or impaired is the lumbar spine. In addition, the plaintiff claims to have suffered a permanent, severe mental disorder in the nature of an adjustment disorder with anxiety and depression and/or a chronic pain disorder. The application is thus brought under ss(a) and (c) of the definition of “serious injury” contained in s134AB(37) of the Act and leave is sought in respect of both pain and suffering and a loss of earning capacity.
5 The plaintiff was the only witness called to give evidence and be cross-examined. In addition, medical and radiological reports, and rehabilitation documents were tendered into evidence. I have read all the tendered material. I shall not refer to all of this material in the course of this judgment, but rather those reports and opinions which appear to me to be of most relevance in determining the issues in dispute. I shall not refer to all of the evidence of the plaintiff, but rather those parts of his evidence which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature is well-known and it is unnecessary for me to revisit the various relevant sections.
Relevant background
6 The plaintiff is now forty-three years of age, lives in a de facto relationship and has three young children.
7 He left school in Year 9 and has spent all his working life in manual employment, including working at an abattoir, in a sawmill, and various factory jobs. He has worked in Robinvale, Melbourne and Bendigo.
8 According to his affidavit,[1] “Prior to May 2009 I had had occasional back pain and my back would get stiff at the end of a working day. It would usually settle after some massage but this symptoms did not preclude me carrying out my normal duties”.
[1]Plaintiff’s Court Book (“PCB”) 23
9 Prior to May 2009 the plaintiff said he had an active social life and enjoyed a range of recreational pursuits, including scuba diving at least once a year, fishing and camping. He said he was a keen shooter and would shoot feral foxes. He was actively involved with his young children and assisted with the housework and did most of the gardening.
10 In relation to his prior back problems, he said in his further affidavit sworn 15 February 2013:
“As mentioned in my first affidavit, before injuring my back with the defendant in May 2009 I had suffered occasional back pain. That included an incident when I hurt my back at the sawmill in the early 1990s. I did make a claim for that injury and I had a hearing in a compensation tribunal in New South Wales, in which my claim was dismissed. I never thought much about that afterwards as my back was pretty good and I was able to return to manual work from time-to-time. The change in my back since May 2009 is that I have had constant back pain …”[2]
[2]PCB 30, although details of his previous lower back condition by this time had been provided to the plaintiff’s solicitors
11 In fact, as the evidence transpired, the plaintiff’s prior low back pain and pain and restriction was far more extensive. According to a report of Mr Mark Spigelman, of June 1991,[3] on 21 May 1991 the plaintiff was struck by a piece of timber and fell backwards while working at a sawmill in New South Wales. After the incident the plaintiff told Mr Spigelman he could hardly walk because of lower back pain and felt numbness into his legs. Mr Spigelman concluded that the plaintiff had suffered a localised lesion rather than a discal lesion. In a report from Dr Woodall, general practitioner of Narooma, of 13 August 1991,[4] the plaintiff provided a history of being washed off rocks in April 1991. He further presented on 19 March 1991 saying that on the previous day he had been leaning on a piece of equipment when it snapped and jarred his back. There was pain at the lumbosacral spine and tingling in both legs and feet. An x-ray of the lumbosacral spine of March 1991 reported disc narrowing at L2-3. Further, the plaintiff gave a history that on 28 May 1991 he was struck in the chest by a flying piece of wood and knocked to the ground. He felt pain over the lumbar spine which increased after the accident. Dr Woodall prescribed Voltaren and Panadol. The pain continued and further x-rays were taken which showed no abnormality. He was referred to Mr Bryan Ashman, orthopaedic surgeon in Canberra, whom he saw in July 1991, although by that time he was improving. According to Dr Woodall, Mr Ashman reported the plaintiff had suffered a direct injury to one of his lumbar discs and he suggested regular exercise and physiotherapy, with a return to work when his symptoms allowed.
[3]Defendant’s Court Book (“DCB”) 18
[4]DCB 20
12 According to the judgment of the New South Wales Compensation Court of 27 May 1996,[5] which heard the plaintiff’s claim for compensation, he returned to work in the sawmill in July 1991, performing different duties which were heavier than before. He continued in this work until December 1992 when the plaintiff, apparently in evidence, said that he was unable to continue the work because of lower back pain, although he said he had problems with the foreman. He applied for and obtained Social Security Benefits. Although somewhat vague, the plaintiff had periods away from work, but also worked as a storeman and on fishing boats. In June 1994 he spent eight days working on a fishing boat at sea which made his back sore. According to the judgment, he said he could have worked more hours had his back been better. He did other work, including a short time in a saw mill, working for a courier company and in a pizza restaurant.
[5]DCB 11
13 In April 1995 he came under the care of Dr Gock when he fell from a veranda, suffering an exacerbation of lower back pain. According to the evidence given by the plaintiff in the New South Wales Court, he said he was constantly troubled by lower back pain with difficulty walking and with pins and needles into the legs. He did not consult a doctor between seeing Mr Ashman in July 1991 and Dr Gock in April 1995. A CT scan performed in April 1995 demonstrated mild posterior bulging at L3-4 and L4-5 with a minor disc protrusion at L5-S1 without nerve root compression.
14 The plaintiff was examined for the purpose of that earlier proceeding by Mr Thomas Nash, orthopaedic surgeon of Sydney, who provided a report of August 1995.[6] Mr Nash received a history that the plaintiff was then on a disability pension and claimed that he was unable to perform any work because of the pain in his lower spine. At the time he complained of constant lower back pain aggravated by a range of activities. The plaintiff said that he had to give up horse riding, scuba diving and motorcycle riding. According to Mr Nash, the plaintiff, in the various workplace incidents, sustained local bruising and muscular injury with the possibility of very minor ligament damage. He said he thought that the bruising would have subsided. He noted that upon clinical examination the plaintiff had voluntarily restricted his lumbar spinal movements. He said there was no clinical nor radiological evidence to sustain the plaintiff’s complaints of ongoing lower back pain and the degeneration in the radiology was minor only. He said that the plaintiff may be more vulnerable and should avoid heavy and repetitive lifting and frequent bending. Mr Nash said there had been no permanent impairment.
[6]DCB 22
15 Surveillance film was shown in the New South Wales application which indicated the plaintiff was able to remove a wetsuit and pick up equipment without apparent restriction.
16 According to the judgment, the plaintiff’s application for compensation failed. The bases upon which the decision was made would appear to be, firstly, that the plaintiff’s claim that he suffered significant pain after the incidents was inconsistent with the fact that he returned to work, performing heavier duties for 17 months. Secondly, the learned judge found the plaintiff an unimpressive witness, particularly in relation to the surveillance. Further, there was no medical evidence of any treatment over the years from 1991 to 1995.
17 In the course of cross-examination in this application, the plaintiff said his back ‘came good’ and he resumed activities including skin diving and motor bike riding. He moved to Robinvale and then to Melbourne in the early 2000’s. He worked as a picker and packer and in seasonal fruit and vegetable work. He moved to Bendigo in 2005 and worked vaccinating chickens for nine or ten months. He worked in a flour mill which he said involved stacking heavy pallets, and for a company, Ortech Industries where he was required to lift and stack 50kgm bales. He was in and out of work for various employers, including picking grapes, as a pre-fabricator and as a cleaner at Latrobe University. Throughout this work he said he had no problems with his back. He also was in receipt of Social Security benefits.
The workplace injuries and their consequences
18 On 5 May 2009 the plaintiff was loading a large tank into a utility. He fell backwards to the ground and claims he lost consciousness for a few moments. He was taken to the office where he said he was suffering severe lower back pain. The next day he was taken to the Bendigo Hospital where x-rays were taken and a soft tissue injury diagnosed. He then went to see his general practitioner, Dr Banerji, and was given two weeks off work. He returned to work on lighter duties, but after a period was told there was no light work available. He claims that as a result of his financial circumstances, he requested his general practitioner clear him for a return to unrestricted work, which he undertook. He worked on a machine that made water tanks which included heavy lifting.
19 On 26 June 2009, he was attempting to lift the lid of a tank off with the crowbar when he felt a “twinge or pop” in his lower spine. He said he felt extreme pain with pain radiating into his left leg. He saw Dr Banerji, in Bendigo and was again put off work. He commenced physiotherapy. The pain in his lumbar spine continued, with pain radiating to his left leg, and he was referred to Mr Dayananda, orthopaedic surgeon, who he saw in July 2009. To that practitioner, the plaintiff denied any major pain issues in his lower back before the work incidents. A CT scan of the lumbar spine was obtained[7] which showed chronic disc degeneration, but without focal disc protrusion or neural impingement. There was a disc bulge at the L4-5 level. Mr Dayananda prescribed OxyContin and suggested, if the pain continued, an epidural injection at the L4-5 level.
[7]PCB 94
20 In August 2009, he attempted a return to work, three hours per day, three days per week. This continued until January 2010 when the plaintiff ceased work. He has not worked since.
21 An MRI scan was performed on 11 January 2010 which noted degenerative discs at the lower four levels with an annular tear at L5-S1.[8] In February 2010, he was referred by his general practitioner to Mr Perera, orthopaedic surgeon of Bendigo. He gave a past history of intermittent back pain and said that his back had been a bit stiff after work but would settle with massage. He complained of low back pain, shoulder and neck pain and sore buttocks. Mr Perera thought the treatment should remain conservative and suggested an epidural injection of steroid and local anaesthetic. Mr Perera concluded the plaintiff had a longstanding problem with his back aggravated by the work injuries. He said he was not suitable to return to heavy physical labouring work and noted he would find it difficult being retrained and obtaining alternative employment. He described the plaintiff as very genuine and prepared to “give it a go”. He saw the plaintiff again in December 2010, complaining on this occasion of a sore left shoulder, although there was reference to investigations being undertaken for the lumbar spine.[9] This revealed multilevel disc degeneration including bulging at L2-3, L4-5 and L5‑S1. A “defect” in the annulus at L5-S1 was noted.
[8]PCB 95
[9]PCB 97
22 Until August 2010, the plaintiff and his family leased on a 50 acre property where the landlord kept race horses. He said he received rental adjustment for assistance on the property, but, due to his back problems he was no longer able to do the work he had previously done, and his relationship with the landlord altered. As a result, he left the property.
23 He underwent physiotherapy during 2010 at the referral of Mr Perera.[10]
[10]PCB 41
24 He has continued to see Dr Banerji on a regular basis. He is currently prescribed Jurnista, a powerful opioid pain medication, Voltaren and Cymbalta which he takes on a daily basis. He says he suffers constant low back pain which radiates into both legs. The low back pain is aggravated depending upon the activity in which he is involved. He says he attempts to assist his partner with the housework and cooking. He is no longer able to work in his garden, particularly growing vegetables. If he sits for more than 20 minutes his pain becomes worse. His sleep is affected and he is tired during the day as a result. His social life has been reduced. He is not longer able to go scuba diving, nor fishing in the same manner as before. He still goes out shooting and in 2010 was shooting once a week, mainly for foxes. He was offered a job filleting fish in January 2010 but rejected it because it involved heavy work. He is not able to involve himself in his children’s recreational activities. He said he has only ever been able to do physical labouring type work and has limited reading and writing skills.
Consultant medical opinions
25 The plaintiff was examined by Dr Robyn Horsley, occupational physician, in June 2012. He gave no detail of his past lumbar back problems. He complained of pain in his lower back at four to five out of ten, up to eight to nine out of ten. He said pain radiated into his left leg and foot. Examination of the lumbar spine showed a poor range of movement. Dr Horsley concluded the plaintiff had suffered a significant injury to his lumbar spine, in particular an annular tear at L5-S1. She suggested the plaintiff was suffering severe depression relating to his physical symptoms. Because of his limited work history, disadvantaged education and physical deconditioning, Dr Horsley believed the plaintiff had no capacity for any employment.
26 When she was presented with the various medical and radiological reports relating to his injuries in 1991, she noted that the plaintiff was off work for more than four years as a result of that earlier injury. However, she concluded that because the MRI scan of January 2010 showed an annular tear at L5-S1, which was compatible with the workplace injuries in 2009, she said with such a tear he would not have been able to undertake the heavy labouring work, including fruit picking, commercial fishing and the like with such a tear prior to 2009. Her opinion was thus that pre-existing radiology had been aggravated by the injuries in 2009.
27 The plaintiff was examined by Mr John O’Brien, orthopaedic surgeon, in February 2011 and April 2012. Mr O’Brien noted that the plaintiff underwent a twelve week pain management program at the Anne Cordell Centre in Bendigo which provided some pain management strategies. He gave a history that he had had no problems with his lower back in the past. According to Mr O’Brien, physical examination showed signs of illness behaviour. He could not provide a specific diagnosis but said the plaintiff presented with non-specific back pain accompanied by some psycho-social factors. He thought the prognosis was poor and that he was totally and permanently incapacitated.
28 In August 2012, Mr O’Brien was provided with a short summary of the plaintiff’s pre-existing back condition. In addresses, Mr Moulds referred to this as “sanitised” and without any real detail as to the nature and extent of those problems. Mr O’Brien said that the details set forth in the letter did not make him alter his earlier expressed opinion.[11]
[11]PCB 74
29 The plaintiff was examined by Dr David Murphy, specialist in rehabilitation medicine, in October 2012. He received a history of the plaintiff’s pre-existing back problems from 1991.[12] He said that the plaintiff had aggravated pre-existing degenerative disease in his lumbar spine as a result of the incidents. He noted secondary depression. He considered that the injury of 5 May 2009 was responsible at least for a significant aggravation of the underlying disease. He said the plaintiff’s capacity for employment was quite limited. He should not undertake any employment where he was required to sit or stand for more than 30 minutes, lift more than 5 kilograms, nor any repetitive lifting, bending or twisting. He said given the plaintiff’s education and vocational history, it would be unlikely he would be able to obtain employment in the future. He thought the prognosis was fair.
[12]By this time, the plaintiff and his solicitors were aware of the details of the reports obtained by the defendant’s solicitors in respect of that injury.
30 The plaintiff was assessed by Dr David Weissman, consultant psychiatrist, in November 2012. He considered the plaintiff was suffering an adjustment disorder with depressed and anxious mood and chronic pain disorder. He said the plaintiff was suffering from mixed depression and anxiety. His concentration and memory were subjectively impaired. He said the plaintiff was frustrated and had passive suicidal ideation, with sleep disturbance, some appetite and weight loss. He said on psychiatric grounds alone, the plaintiff was incapacitated for all pre-injury duties.
31 The plaintiff was assessed for vocational options by Mr Bill Radley. He noted the plaintiff’s limited education and skills and below average level of general intelligence. He said vocational retraining was not a viable option and that the plaintiff had no employment prospects either now or in the future for his pre-injury employment, or any alternate employment.
32 On behalf of the defendant, the plaintiff was examined by Dr Barry Gilbert, occupational physician, in May 2011. He denied any past history of lumbar back problems. Upon examination, he noted frequent sighing and very slow movements. He said there was voluntary guarding of the lower back and the range of movement was very limited. He believed the plaintiff’s condition to be one of a chronic pain syndrome and that the plaintiff was unlikely to return to his pre-injury duties. He said due to the plaintiff’s level of disability, and his continuing need for medication, he had no current work capacity.
33 Dr Gilbert provided a further report of 17 August 2012 in which he was provided with detailed information of the plaintiff’s prior lumbar back problems. He said the information called into question the validity of the plaintiff’s medical history. He said the new information did not change the radiological findings of degenerative disease in the lumbar spine but did make the plaintiff’s complaints of symptoms and work disability questionable. He said rather than a chronic pain syndrome, the plaintiff’s condition was more one of abnormal illness behaviour. He noted an unusual and exaggerated gait and voluntary guarding. He said the abnormal illness behaviour was for possible secondary gain.
34 The plaintiff was examined by Dr Clive Kenna, occupational physician, in June 2012. As to past history, the plaintiff said he had an episode of back pain 20 years ago and was off work for a few weeks. Dr Kenna noted a limited range of movement on examination. He said the plaintiff presented with chronic back pain and symptoms in his left leg as a result of underlying progressive degenerative change. He said the plaintiff was unfit for work. He noted an annular tear at L5-S1. He said the plaintiff perceived himself as being quite disabled and there were elements of unusual presentation.
35 When provided with more comprehensive details and the various medical reports relating to the 1991 injury, Dr Kenna said his opinion was significantly altered.[13] He said the plaintiff had provided a false impression of his prior back condition. He concluded that there was now no clear evidence that the plaintiff sustained an injury in 2009 which was still in any way materially contributing to his claimed incapacity. He noted that the clinical presentation showed marked similarities to that which the plaintiff displayed 20 years before. He said the plaintiff had not provided a genuine nor accurate account of his previous symptoms and restrictions.
[13]DCB 59
36 When Dr Paul Kornan, psychiatrist, first examined the plaintiff in June 2012, he received no history of the plaintiff’s prior back condition. He noted the plaintiff was using a significant amount of cannabis, seven to eight grams each week, costing $80 to $100. While not denying this, the plaintiff said in cross-examination that he had cut down on this amount, although accepted that he started using cannabis when he was young. Dr Kornan diagnosed a major depressive disorder, together with a pain disorder and cannabis abuse. He said a combination of physical factors and the plaintiff’s psychiatric state prevented him from being capable of any suitable employment.
37 However, when Dr Kornan was provided with full details of the plaintiff’s earlier injury, and the report of the various practitioners, he noted the plaintiff was untruthful about his prior history and he no longer had clear evidence that the work with the employer was contributing to his claimed psychological injury. He noted that he (and other practitioners) relied upon a genuine and accurate account of a person’s symptoms, restrictions and past history being provided. He said that the plaintiff’s psychological state may well be related to his marijuana use, and other personality issues.
Credibility of the plaintiff
38 Generally, I found the plaintiff an unreliable witness. Many of his responses to evidence in cross-examination were designed to assist his application. He was reluctant to make admissions. He frequently refused to answer questions in a responsive manner. He was clearly an unsophisticated man of limited education and modest intelligence. Nonetheless, I formed the clear impression that he was intentionally evasive to many of the questions asked.
39 That impression was compounded by the blatant untruths provided to all of the practitioners who enquired about his prior physical health. With the exception of Dr Murphy, he told all practitioners either that he had no prior problems, or that they were very minimal. That history belies his claims in the proceeding before the New South Wales Compensation Court and to the doctors he saw at the time, of four to five years of chronic low back pain, with altered sensation to both legs. Further, the plaintiff said that by December 1992, he was not able to work and applied for Social Security benefits. While he did some work thereafter, it was with difficulty. Given the findings of that Court, it seems likely that the plaintiff was considerably exaggerating his symptoms, and the restrictions that those symptoms placed upon him, for the purposes of that Court hearing. In the claim form submitted in respect of the 2009 injuries, the plaintiff made no disclosure of the earlier injury.[14]
[14]DCB 107
40 For all of these reasons, in my view, the plaintiff’s credibility is considerably affected. I have very significant reservations about the nature and the extent of the pain which he claims. Further, I am reluctant to rely upon the opinions of those practitioners who have not received a full disclosure of all of the details of the plaintiff’s injury in 1991 and the sequelae that followed.
Conclusions
41 I accept the plaintiff suffered the workplace incidents in 2009 which to some extent aggravated the underlying degenerative condition is his lumbar spine at a number of levels, including L2-3, L4-5 and L5-S1.
42 In submissions, Mr Moulds said the plaintiff could not aggregate the consequences of the two separate workplace incidents. He relied upon the principles established by To Ha Lu v Mediterranean Shoes Pty Ltd & Ors.[15] In response, Mr Mighell said that the plaintiff’s application was “over the course of his employment”, and in any event the second incident was the more significant of the two, given the plaintiff eventually left employment after that. While I found the argument of Mr Moulds persuasive, I will, for the sake of my findings conclude the plaintiff may aggregate the two workplace incidents, or alternatively, the plaintiff’s claim is “over the course of his employment” and he is thus entitled to take into account not only the two incidents in 2009, but also generally his heavy duties with the employer.
[15][2000] VSCA 65 at paragraphs [22] – [28]
43 The reports of the treating practitioners are not of great assistance. Dr Horsley’s conclusion that even accepting the plaintiff’s prior back problems, by reason of the annular tear at L5-S1, the plaintiff was significantly disabled. She said the tear had occurred in 2009 as the plaintiff would have been unable to undertake the heavy duties in the various areas of employment before that time. However, she is the only practitioner to conclude that the plaintiff’s pain emanates from that level alone. Mr O’Brien, Dr Murphy, Dr Gilbert and Dr Kenna all refer to underlying degenerative changes generally. For that reason, I do not accept the opinion of Dr Horsley that the annular tear at the L5-S1 can be responsible for the plaintiff’s pain.
44 Mr O’Brien initially considered the plaintiff had evidence of illness behaviour, although said he had non-specific low back pain. That opinion did not change when he was provided with a summary of the pre-existing problems. However, I accept the submission of Mr Moulds that that summary did not comprehensively address the full nature and extent of the pre-existing problems, and particularly the findings of the Compensation Court. While I cannot speculate what Mr O’Brien’s opinion would be were he provided with the full detail, I have grave reservations whether that opinion would be maintained.
45 I prefer the opinion of those practitioners who received full details of the pre-existing problems, and said that their assessment of the plaintiff changed significantly as a result.
46 However, the plaintiff’s application should not fail simply because he was untruthful. An analysis should be undertaken of the nature and extent of the injuries sustained in the 2009 incidents, and the consequences that flowed. Whatever occurred over the period from 1991 to 2006, I accept the plaintiff was able to resume employment, although it was sporadic. I accept that employment at times was heavy labouring type work which would have been difficult with a painful lower back. I accept the plaintiff suffered an aggravation of his degenerative disease in 2009 in the incidents described, however, I found the plaintiff such an unreliable witness with so little credibility that I have very grave reservations as to the nature and extent of the pain of which he complains and the restrictions that that places upon his social, domestic and work activities. True it is the plaintiff has been provided by his treating doctors with significant quantities of powerful pain relieving and other medication, but those practitioners were reliant upon the accuracy of the symptoms he described. I am not satisfied that the radiology provides any proper explanation for the symptoms. I do not accept he is unable to work as described. I do not accept his claims as to the extent to which his domestic, social and recreational activities have been lost or curtailed. In fact, I have difficulty accepting the plaintiff’s complaints without objective corroboration.
47 I accept the opinions of Dr Kornan in respect of his psychiatric disorder, and Drs Gilbert and Kenna in relation to physical injury. I am not satisfied, the onus being upon the plaintiff, that he has suffered a 40 per cent loss of earning capacity as the legislation requires.
48 For all of these reasons, I am not satisfied the plaintiff suffers the pain and restriction he claims, nor the work incapacity.
49 The plaintiff’s application, both in relation to physical and psychological injury, fails.
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