Dodd v Victorian WorkCover Authority
[2017] VCC 1084
•28 August 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-16-03038
| GRANTLEY STANTON DODD | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 July 2017 | |
DATE OF JUDGMENT: | 28 August 2017 | |
CASE MAY BE CITED AS: | Dodd v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1084 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to lower back – whether the injury to lower back was suffered in the course of and within the scope of the plaintiff’s employment with the employer – analysis of primary medical material – whether the pain and suffering and loss of earning capacity consequences of the impairment of function were “serious” – secondary psychiatric injury – modest medical treatment – absence of pain and suffering and loss of earning capacity consequences which were “severe”
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: Leave granted in relation to pain and suffering and loss of earning capacity with respect to injury to the lower back. Application in relation to claim for psychiatric condition refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison QC with Mr C Sidebottom | Slater and Gordon |
| For the Defendant | Mr D McWilliams | Thomson Geer |
HIS HONOUR:
1 The plaintiff is a fifty-five-year-old married man who alleges that he suffered an injury to his lower back in the course of and within the scope of his employment with Anca Pty Ltd (“Anca”) between 2010 and 11 September 2012.
2 The plaintiff has brought his application for serious injury under paragraph (a) and (c), claiming that his lower back injury has resulted in impairment consequences which are “serious”, and psychiatric injury has impairment consequences which are “severe”.
3 Mr C Harrison QC appeared with Mr C Sidebottom of counsel for the plaintiff. Mr D McWilliams of counsel appeared for the defendant.
The issues
4 The defendant relied on the opinion of Mr Rodney Simm, orthopaedic surgeon, who analysed the materials he was provided with, concluding that the plaintiff’s lower back injury was not caused or contributed to by his employment with Anca.
5 If I am satisfied that causation has been established by the plaintiff, then the defendant submits that the lower back injury has not produced pain and suffering consequences and loss of earning consequences which meet the statutory test. The same submission was made with respect to the psychiatric injury.
The plaintiff’s work
6 The plaintiff worked for Anca in 2010 through a labour hire company. By March 2011 he was employed directly by Anca.
7 The plaintiff was required to assemble moulds which form the base of machines. He described the work as heavy and repetitive, involving a lot of heavy lifting, bending and twisting. It was in the course of exposure to the bodily stresses and strains produced by his work that he suffered injury on 11 September 2012.[1]
[1]Plaintiff’s Court Book (“PCB”) 36
The onset of the Plaintiff’s injury
8 On 11 September 2012, the plaintiff experienced pain in his mid back, shoulders, and tingling in his arms and legs. It was within a few days that he began experiencing pain in his lower back.[2]
[2]Transcript (“T”) 26
9 The plaintiff reported the onset of the pain in his mid back, shoulders and tingling in his arms and legs to Kiran Krishnamurthy, who was an employee of Anca at the time and was one of its first aid attendants, at about 7.00pm. He swore an affidavit in this proceeding on 21 July 2017 exhibiting a statement which he made on 22 October 2012.[3]
[3]Defendant’s Court Book (“DCB”) 13-18
10 When Mr Krishnamurthy first observed the plaintiff, he thought he looked “pretty sick”, and on asking him how he was feeling, the plaintiff informed him that he had “a tingling feeling in his fingers, as well as experiencing a bad shoulder ache”.
11 Mr Krishnamurthy organised for the plaintiff to be conveyed by ambulance to the Maroondah Hospital. Initially, the plaintiff was seen at the hospital at 8.41pm. The triage assessment was:
“… Pain present to shoulder blades down arms and legs feels weak and dizzy. Sudden onset at 1900. Nill (sic) chest pain, nill (sic) blurred vision”.[4]
[4]PCB 66B
12 The plaintiff was seen by Dr Mele at the hospital, who recorded the following history of the plaintiff’s presenting complaint at 11.17pm:
“spray painter in oven
aches and pains no recent URTI etc etc
aches/pains back legs arms
has been lifting and painting
… .”[5]
[5]PCB 66C
13 The plaintiff was discharged at 11.18pm. The “Discharge Diagnosis” was as follows:
“Injury to muscle/tendon of lower back (includes loin).”[6]
[6]PCB 66A
14 At the time of discharge, the plaintiff was provided with a certificate of capacity by Dr Mele dated 11 September 2012 which is very cryptic. In the part of the certificate available for a description of symptoms and diagnosis, Dr Mele referred to the plaintiff suffering “muscle strain/sprain”. I can only conclude that the non-specific nature of that entry is based on the injury referred to in the discharge summary.
15 The plaintiff then saw Dr Ileene Macdonald, general practitioner, on 12 September 2012. In her report dated 27 November 2012, she recorded the following history provided to her by the plaintiff:
“… Mr Dodd tells me after working in the booth he developed pain across his arms, shoulder blades and legs. He said he felt dizzy and told me he attended the ‘First Aider’ and was taken to Maroondah hospital, where he was diagnosed with muscle strain … [He was] re-assured and given a certificate for 2 days off work. On returning to work on the Monday, 17 September, the pain was still present in his shoulders and back … .”[7]
[7]PCB 71
16 Subsequently, the plaintiff attended Dr Macdonald on 26 September 2012. In relation to that attendance, she said:
“… As he had suffered low back pain in the past, a CT scan was requested in order to exclude exacerbation of an old injury, which on checking the films and written result, it was decided this was not an exacerbation of an old injury and once again I considered this to be a case of severe muscle spasm.”[8]
[8]PCB 71
17 It would appear that Dr Macdonald had the certificate of incapacity, but it is not clear whether she had any of the other documents generated by the hospital, such as the discharge summary; however, what is inherent in the passages I have quoted from her report is her understanding that the plaintiff had suffered an injury to his lower back.
18 The report was prepared by Dr Macdonald at the request of CGU Workers Compensation (Vic) Limited (“CGU”). One of the questions asked of Dr Macdonald was:
“The relationship of this injury/condition to Grantley Dodd’s employment.”[9]
[9]PCB 72
19 On the basis of the history obtained by Dr Macdonald, and no doubt her clinical examinations of the plaintiff, she reached the following unequivocal conclusion:
“There is a definite relationship between Mr Dodd’s injury and his work.”
20 Dr Macdonald was asked the following question:
“Whether Grantley Dodd’s medical condition/incapacity results from or is materiality contributed to by the injury?”[10]
[10]PCB 72
21 Dr Macdonald’s answered that question “Yes”.
22 The plaintiff sought treatment from Mr Ian Robertson, chiropractor on 14 September 2012. In his report dated 26 November 2012,[11] he recorded the following history provided to him by the plaintiff:
“… the onset of the pain across the shoulder blade regions with associated tingling/pain in the arms and legs and he felt dizzy … .”[12]
[11]PCB 67-70
[12]PCB 68
23 Mr Robertson obtained a history of the plaintiff’s attendance at the Maroondah Hospital. It would appear that he understood that the plaintiff had been provided with a certificate of incapacity, but it is not clear to me whether he was provided with it. He examined the plaintiff and recorded the following:
“Mr Dodd had 2 days off work as a result of the Maroondah Hospital Certificate, he attended my office on Friday 14 September 2012, I examined Mr Dodd including his thoracic, and lumbar spines, I wrote him a certificate for time off work for the day, he went back to work on Monday, 17 September 2012, working until Thursday 20 September 2012, when he woke on Friday, 21 September 2012 he was unable to move because of the pain.”[13]
(scil).
[13]PCB 68
24 Mr Robertson then arrived at the following diagnosis:
“Thoracic/Lumbar Sprain Pain – Sprain/Stain – Tendonitis Paraspinal Musculature - Disc Injury?”[14]
[14]PCB 68
25 The report was prepared by Mr Robertson at the request of the Accident Compensation Conciliation Services. He was provided with a determination of CGU that the plaintiff had not sustained an injury arising out of or in the course of his employment. He was asked the same two questions which were asked of Dr Macdonald. In answer to the first question, he said:
“Directly related, the onset was immediate whilst working on 11 September 2012, he then attended the Maroondah Hospital because of this, the pain continued in the same regions which persists too today.”[15]
(scil).
[15]PCB 69
26 In answer to the second question, he said:
“Mr Dodd’s medical condition/incapacity directly results from and is materially contributed to by the injury.”[16]
[16]PCB 69
27 A claims consultant from an organisation known as Coverforce Pty Ltd requested Dr Macdonald to revisit the question of causation, asking for an account of the occasions when the plaintiff consulted her, the history he gave her, and her diagnosis. In a report dated 22 May 2013, Dr Macdonald answered those questions, but did not depart from the answers she gave on causation referred to in her report dated 27 November 2012.[17]
[17]PCB 72A-72D
28 The plaintiff sought treatment from Dr Palmer, Chinese medicine practitioner, on 12 October 2012 for severe back pain. She subsequently treated him on 19 October 2012, 21 November 2012 and 27 November 2012 for a number of conditions including his lower back.[18]
[18]PCB 73
The Defendant’s case on causation
29 The defendant provided Mr Rodney Simm, orthopaedic surgeon, with extracts of the records of Dr Macdonald, extracts from the Austin Hospital notes, an incident report of Anca, and Mr Robertson’s report dated 26 November 2012. Mr Simm was asked to consider the relationship of the injury to the plaintiff’s lower back to the plaintiff’s employment.
30 Mr Simm provided a report dated 13 October 2016.[19] Before answering that question, he took a history of the onset of the plaintiff’s lower back injury which appears to be consistent with the histories recorded by Dr Macdonald and Mr Robertson, and indeed, consistent with the oral evidence of the plaintiff at the hearing.
[19]DCB 19-26
31 Mr Simm did not have the advantage of access to the clinical note of Dr Mele, the Maroondah Hospital discharge summary, the report of Dr Macdonald dated 27 November 2012 and the report of Dr Palmer. A comparison between Dr Macdonald’s clinical notes and her report demonstrate that the report explains the basis for the opinions she has expressed on causation which are not demonstrated in her clinical notes. That explanation would no doubt have been very helpful to him in piecing together the critically important events which either demonstrate that causation can be established or not. Interestingly, Mr Simm appears to have completely ignored the opinion of Mr Robertson.
32 In answer to the relevant question on causation, Mr Simm said:
“He seems to attribute his low back condition to the incident at work on 11 September 2012 but, as far as I can determine from his history today and a review of the file material, there was no back injury as a result of the incident. … I questioned him carefully about the location of the pain when taking the history today, and he confirmed the pain was up in the shoulder blades and that initially there was no pain in the lower thoracic or lumbar spine. His history today was that the pain gradually moved from the upper lumbar spine to the lower back and that pain went from the upper limbs and left lower limb, leaving him with right lower back and right lower limb pain. This recollection of his symptoms would seem to be incorrect … .”[20]
[20]DCB 24
33 Mr Simm said that, ultimately, he was unable to establish that what occurred on 11 September 2012 was responsible for the plaintiff’s lower back injury. On the basis of what Mr Simm was provided, it is understandable how he came to that conclusion.
The medico-legal opinions
34 Mr Peter Scott, general surgeon, examined the plaintiff for CGU on 24 October 2012. He provided a report dated 24 October 2012.[21] He was not provided with the relevant hospital and medical material. The history he obtained was that the plaintiff “complained of some backache”, among other things, as a result of work he performed on 11 September 2012. He did note that the plaintiff was taken to the Maroondah Hospital and “was regarded as having sustained a mild soft tissue injury or sprain to the back”. That would appear to be reasonably accurate when compared with the clinical notes of Dr Mele and the discharge summary. Mr Scott concluded that the plaintiff suffered an acute back strain and musculoligamentous injury, and a possible aggravation of underlying asymptomatic degenerative changes in the lumbosacral spine.
[21]PCB 87A-87I. Mr Scott provided a supplementary report (at DCB 87L) which does not affect the opinion he expressed in his principal report
35 Mr Roy Carey, orthopaedic surgeon, examined the plaintiff on 4 September 2015 for CGU. He provided a report bearing the same date.[22] The history he obtained was that after performing work for about four hours, the plaintiff’s back went “extremely suddenly”, but at that stage, the plaintiff was feeling pain mostly over his shoulder blades. Mr Carey was provided with the relevant reports of the Maroondah Hospital, Dr Macdonald and Mr Robertson. However, he was not requested to provide an opinion on causation, but rather to undertake an impairment assessment under the “AMA (4th edition) Guides”.
[22]PCB 87N-87U
36 Despite not addressing the issue of causation, Mr Carey simply described the plaintiffs injury as “a lumbar spine injury” which he considered had resulted from his work.
37 Mr David Brownbill, consultant neurosurgeon, examined the plaintiff on 18 October 2016 and 20 June 2017. He provided two reports dated 16 November 2016,[23] and 20 June 2017.[24] Mr Brown was provided with the plaintiff’s affidavit sworn 1 March 2016 and the reports of Dr Macdonald and Mr Robertson, and Mr Robertson’s clinical records. The history he obtained is reasonably accurate, based no doubt upon the history that he took directly from the plaintiff and from perusing the documents I have just referred to. The plaintiff told him that while performing his work, he noted “severe pain across the mid back (lower thoracic) with tingling in the arms and legs”.[25] What is missing is a reference to pain in his shoulders, but I am not convinced that is so material.
[23]PCB 115-121
[24]PCB 162-164
[25]PCB 116
38 Although Mr Brownbill obtained a history of the initial onset of pain across the mid back or lower thoracic spine, he nonetheless considered that the work the plaintiff was performing on the initial injury which he complained of was indicative of the plaintiff having sustained an aggravation of lumbar spine degenerative changes with disc derangement that acted as the basis for a disc prolapse.
39 Dr Jennifer Flynn, orthopaedic surgeon, examined the plaintiff in May 2017. She provided a report dated 10 May 2017.[26] She obtained a history from the plaintiff that he suffered the onset of severe low-back pain and right leg pain as a result of performing his work. She was provided with the reports of Dr Macdonald, Mr Robertson and the first report of Mr Brownbill. She was asked a number of questions, none of which relate to causation. It would appear that she was engaged to address questions relating to the plaintiff’s injury and its consequences in terms of pain and suffering and loss of earning capacity.
[26]PCB 152-161
40 Dr David Eaton, specialist occupational and environmental physician, examined the plaintiff on 7 October 2016. He provided a report dated 7 October 2016.[27] He obtained a similar history to Dr Flynn regarding the onset of lower back pain. It would appear, like Dr Flynn, that he was engaged to address questions relating to the plaintiff’s injury and its consequences in terms of pain and suffering and loss of earning capacity.
[27]PCB 99-114
Causation
41 On my analysis of the evidence of the Maroondah Hospital, Dr Macdonald and Mr Robertson, I find that the plaintiff probably complained of pain in his lower back during the time he was treated at the Maroondah Hospital and, consistent with that at the time he was discharged from treatment at the hospital, a diagnosis had been made of a lower back injury.
42 Dr Macdonald treated the plaintiff the day after he was discharged from the Maroondah Hospital, and Mr Robertson three days after his discharge. They appear to have understood the initial pain the plaintiff experienced and the parts of his body affected by that pain and the subsequent emergence of pain in his lower back. Neither of them had any difficulty in unequivocally concluding that it was the plaintiff’s work which was the cause of his lower back injury.
43 The only other medical practitioners who appear to have obtained an accurate history of the onset of the plaintiff’s lower back pain are Mr Scott and Mr Brownbill. Neither were particularly troubled by the description they were given of the development of the plaintiff’s lower back injury.
44 Mr Simm, on the other hand, was not given the benefit of material which I consider to be critically important in determining the issue of causation dealt with by Dr Macdonald, then by Mr Robertson, and then by Mr Scott and Mr Brownbill. I think the shortcomings in what Mr Simm was provided render his opinion unreliable. I prefer the opinions of Dr Mele regarding the initial diagnosis of injury to the plaintiff’s lower back, the subsequent opinions of Dr Macdonald and Mr Robertson in close temporal proximity to the date of injury, and the analysis and assessment of Mr Scott and Mr Brownbill after being provided with sufficient of the relevant material to make a proper assessment of causation.
45 Although Mr Carey, Dr Eaton and Dr Flynn obtained different histories from the plaintiff, that is, in some ways, not surprising. Their interest in examining the plaintiff was for entirely different purposes than expressing an opinion on causation.
46 Therefore, I have little difficulty in concluding that the injury to the plaintiff’s lower back occurred in the course of and within the scope of the plaintiff’s employment with Anca.
Pain and suffering – the lower back
47 The plaintiff initially pursued conservative treatment. He was using painkilling medication, having treatment provided by Mr Robertson, and treatment provided by Dr Palmer. The pain he was experiencing was so significant that he could not return to work. He was ultimately made redundant in January 2013. By December 2013, the pain in his lower back and right leg had worsened to the point where it was severe. It was then that he sought treatment at the Austin Hospital.
48 After suffering the injury to his lower back, the plaintiff underwent a number of radiological investigations[28] and subsequently, underwent surgery on 8 August 2014. He came under the care of Mr Gerald Quan, neurosurgeon, who performed an L5-S1 discectomy and instrumental fusion at the Austin Hospital.
[28]A CT scan on 27 September 2012 at PCB 60; a plain x-ray on 12 November 2013 at PCB 62, and an MRI scan on 28 February 2014 at PCB 63
49 The plaintiff did not obtain a particularly good result from the surgery. He was reviewed as an outpatient for some time. He was referred to have a further MRI scan on 11 August 2015,[29] and subsequently, a CT scan on 21 March 2016.[30] He was provided with an epidural injection into his spine on 20 October 2015. He attended a two-day pain management course during October 2015. He was referred to Dr de Graaff, pain management specialist, on 7 December 2016, who altered his medication by increasing his use of Targin and adding amitriptyline to assist him with sleep, anxiety and pain. He sees Dr de Graaff about every three months and has begun having physiotherapy.
[29]PCB 64-65
[30]PCB 66
50 In his affidavits sworn 1 March 2016[31] and 30 June 2017,[32] the plaintiff referred to the pain and suffering consequences of the impairment of the function of his lower back. Most of these were unchallenged:
[31]PCB 34-48
[32]PCB 55-58
· Constant, but varying pain in the lower back and right leg.
· The pain can be severe, resulting in him needing to go to bed or lie down.
· Flare ups which can last for three days straight, resulting in him spending most of that time in bed.
· Pain radiating down his right leg to the toes on the right side of his foot.
· Sensation of numbness and pins and needles which comes and goes in his right leg.
· Occasional pain in the left leg.
· Stiffness in the lower back.
· Restriction in movement and in undertaking activity, for example avoiding stress on the lower back; bending and twisting movements; standing in one position for too long, and the need to shift and change position.
· Interference with sleep, resulting in waking about four times a night. He is now sleeping apart from his wife because he needs the whole bed, presumably to be comfortable.
· The need to take medication, namely Targin and Lyrica, on a daily basis. Meloxicam, Oxynorm and Panadol as required, and amitriptyline.
· Interference with helping his son with his motorcycle racing.
· Interference with undertaking simple chores and handyman work around his home and in his garden.
51 I accept the plaintiff’s evidence that he did not obtain a good result from the surgery and has suffered each of the consequences which I have summarised above.
52 The limited attack upon the plaintiff’s capacity to function was taken from the clinical notes of Dr Macdonald. An entry in the clinical notes of March 2013 discloses that the plaintiff lifted a fridge onto a trailer. The plaintiff denied that he did so. He said he does not own a trailer. When he was pressed about whether the entry in the clinical notes jogged his memory, he said that he could not remember any of what was noted in the clinical notes.[33]
[33]T48
53 The medical practitioners who have examined the plaintiff subsequent to him undergoing surgery all appear to me to be of the opinion that the function of the plaintiff’s lower back is significantly impaired to the extent that he is not fit for his pre-injury duties or for suitable employment, and is likely to be restricted in his social, domestic and recreational activities.[34] Their opinions were not challenged in any material way.
[34]Mr Brownbill at PCB 119; Dr Eaton at PCB 111-113; Dr Flynn at PCB 156-158
54 In summary, the plaintiff suffered an injury with devastating consequences. It was serious enough to involve dramatically invasive surgery which has not ameliorated the pain he was experiencing pre surgery, and has now left him in a situation where he is dependent upon a raft of heavy pain-relieving medication. He is not able to work and his day-to-day non-working activities have been reduced to a level of modesty.
55 It is for these reasons, I have little hesitation in concluding that the pain and suffering consequences are “serious” when judged by comparison with other cases in the range of possible impairments or losses of a body function.
Loss of earning capacity – the lower back
56 The plaintiff has not worked in full-time paid employment for what is now a very long time. He has assisted his son in his earthmoving businesses from time to time. The last occasion when he did so was about four weeks prior to the hearing of the application. He drove a Freightliner, which is a large tip truck. He was occupied with his son for about five or six hours, during which he drove the truck. He estimated that he has assisted his son in that way three or four times this year.[35]
[35]T62 and PCB 57-58
57 The plaintiff says he cannot work and is effectively totally and permanently incapacitated. The medical opinions I have reviewed of Mr Brownbill, Dr Flynn and Dr Eaton are to the same effect. Dr Flynn and Dr Eaton expended some effort examining the plaintiff’s functional capacity. It would appear that their examination of the plaintiff, his functional capacity and his capacity to return to suitable employment was thorough. They were of the opinion that the plaintiff is unfit for his pre-injury work and for suitable employment.
58 I do not think I need to say much more than I have already, relevant to my assessment of the plaintiff’s application for pain and suffering. The plaintiff has been brought down to daily functioning at a modest level. I do not have any difficulty in concluding that he is totally and permanently incapacitated for all work.
59 It is for these reasons that I have concluded that the plaintiff’s loss of earning capacity consequences are “serious” when judged by comparison with other cases in the range of possible impairments or losses of a body function.
The prior lower back problem
60 I have not ignored the fact that the plaintiff suffered a problem with his lower back in 2005 and pain in his lower back as a result of a minor incident which occurred on 9 May 2012 in reaching the conclusions referred to above.
61 The plaintiff referred to what occurred in 2005 in his first affidavit, and to Mr Brownbill.[36] It would appear that the plaintiff was off work for two weeks and then made a complete recovery. There is a reference in Dr Macdonald’s clinical notes of one occasion when the plaintiff reported a problem with his lower back on 8 August 2005, but no further evidence that he attended subsequently for that problem.[37]
[36]PCB 37 and PCB 116
[37]Exhibit 2
62 On 9 May 2012, he was pushing the tynes of a forklift when he slipped, jolting his lower back. He referred to that incident in his first affidavit and also to Mr Brownbill.[38] During re-examination, the plaintiff was shown in incident report dated 9 May 2012 in which he described that incident. He did not have any time off work. The inference I draw is that the plaintiff was not particularly troubled by the occurrence of the incident and the back pain he experienced. According to Dr Macdonald’s clinical notes, he did not see her for treatment around May 2012.
[38]PCB 37 and 116
63 During cross-examination, an entry in the clinical records of the Austin Hospital was put to the plaintiff that he informed someone at the hospital, or an attending medical practitioner, that he had a seven-year history of lower back pain. The plaintiff denied that was so. Again, I have looked at Dr Macdonald’s clinical notes and have not found any other entries relevant to an ongoing lower back condition, and neither counsel referred me to any such entries if they existed.
64 What I have taken from the limited history of the plaintiff having some problem with his lower back prior to what occurred on 11 September 2012 is that they were of little or no significance. The fact that such incidents occurred does not give rise to the necessity to consider whether this is an aggravation case or not without more evidence. In any event, I accept the plaintiff’s evidence that these were merely passing incidents of lower back pain of no consequence when compared with what occurred on 11 September 2012.
The mental or behavioural disturbance or disorder
65 The plaintiff did not refer to the onset of a psychiatric condition in his first affidavit. What he did say about it in his second affidavit is not overly informative:
“I have become anxious and depressed by my ongoing pain and restrictions. … I suffer from stress of not being able to do things that I used to do. I put stress on my family. I feel that my memory and my concentration have got much worse. I have put on weight. I have become very withdrawn. I feel tired and flat. I get teary. I don’t socialise much. At one stage during 2016 I felt suicidal.”[39]
[39]PCB 58
66 The first thing that I must say about that account is that putting on weight and not socialising might equally be caused by, or at least contributed to, by the plaintiff’s lower back condition. It may also be that the combination of the pain and the medication has contributed to his problems with memory and concentration. Obviously, determining this is important, because the onus borne by the plaintiff is to demonstrate that the consequences he now contends for are caused by the psychiatric condition and not by the lower back condition, and if by both, then by what measure.
67 It would appear that it was Dr Colvin, general practitioner, who referred the plaintiff to Ms Madeleine Jablonski, psychologist. Dr Colvin took over the treatment of the plaintiff from Dr Macdonald. Dr Colvin has not said anything at all about the nature and extent of the plaintiff’s psychiatric condition in her report dated 3 November 2016. The referral to a psychologist appears to have been part of her overall treatment and not something which she particularly emphasised in any way.[40]
[40]PCB 77-78
68 Ms Jablonski, psychologist, treated the plaintiff between 2 August 2016 and 18 April 2017, during which time the plaintiff saw her on seventeen occasions. In her undated report, [41] she did not provide a diagnosis, but did refer to the plaintiff being subject to depression, anxiety and stress.
[41]PCB 82-84
69 The plaintiff was referred to Dr David Weissman, psychiatrist, for a medico-legal assessment on 18 November 2016. He provided a report dated 18 November 2016.[42] Dr Weissman diagnosed that the plaintiff was suffering from a Chronic Adjustment Disorder with Depressed and Anxious Mood of moderate intensity or severity, which he considered was related to his employment.
[42]PCB 122-134
70 It would appear that the plaintiff has not had any psychiatric treatment as such, and has not been prescribed any appropriate medication to treat the psychiatric condition diagnosed by Dr Weissman. He considered that the plaintiff should have supportive therapy from Dr Colvin, treatment by Ms Jablonski, and should be given a therapeutic trial of anti-depressant medication, which he thought was “mandatory” given the nature, severity, extent and chronicity of his depressive syndrome.
71 Dr Weissman considered that the plaintiff was partially incapacitated for work by reason of the psychiatric condition which I assume means that despite his diagnosis and the gravity of the condition, it would not prevent the plaintiff from engaging in some suitable employment.
72 The plaintiff has not had any significant treatment for the psychiatric condition. Either that has been an oversight on the part of Dr Colvin and Mr Jablonski in not referring the plaintiff for psychiatric treatment or they have collectively not considered that to be necessary. Certainly, the plaintiff has not considered it to be necessary.
73 Even accepting Dr Weissman’s opinion at its highest, I am not satisfied that the plaintiff’s pain and suffering consequences are “severe”. Assessing applications based upon a psychiatric condition are never easy. Judges look for markers which demonstrate that the consequences are severe, such as prescription of medication, psychological treatment, psychiatric treatment and, most importantly, an account given by the plaintiff of the manner in which the psychiatric condition results in significant impairment in the plaintiff’s capacity to work and engage in non-working activities which were part of the plaintiff’s life prior to the onset of the psychiatric condition.
74 I think I have sufficiently demonstrated that those markers are not present in the evidence advanced by the plaintiff. It is for these reasons that I am not satisfied that what pain and suffering consequences the plaintiff does attribute to the psychiatric condition bring it within the range of being “severe”.
75 I am of the same view with respect to the plaintiff’s claim that the psychiatric condition results in loss of earning capacity consequences, bringing it within the range of being “severe”.
The Plaintiff’s credit
76 Counsel for the defendant made an attack upon the plaintiff’s credit which I do not accept has had any particular impact upon my impression that the plaintiff was both a creditworthy and reliable witness.
77 The plaintiff was alleged to have been a troublesome employee who was subjected to internal review by Anca. Andrew Smith, the continuous improvements leader in the operations department of Anca, swore an affidavit on 20 July 2017 exhibiting a statement in which he referred to, among other things, the plaintiff’s tendency to be disruptive amongst his fellow workers. As a result of conduct of the plaintiff, which Mr Smith considered inappropriate, the plaintiff was demoted and suffered a reduction in income. The reasons for that are set out in Mr Smith’s statement, and, for reasons which will become plain shortly, I do not propose to summarise them.
78 One of the serious allegations made by Mr Smith is that the plaintiff has a vendetta against Anca, with the intention to extract as much financial benefit from it as he can. The plaintiff flatly denied these allegations were true and he gave reasons why he had what appeared to be a falling out with management.
79 Despite the cross-examination, counsel for the defendant did not incorporate this part of the cross-examination into his final submissions. Just in case that was an oversight, I propose to deal with that attack on the plaintiff’s creditworthiness. Just as there are allegations made against the plaintiff by Mr Smith, there is an answer made by the plaintiff. It seems to me to be something of a sideshow. It hardly seems to me that the plaintiff has feigned injury, undergone surgery and takes a raft of the medication I have described as part of some vendetta.
80 Counsel for the defendant made observations in his final submissions that I should draw some adverse conclusion about the plaintiff’s conduct in the course of giving his evidence. No doubt there were answers given by the plaintiff which require examination to determine whether he was telling the truth, but when I look at the whole of the evidence, I am not satisfied that the manner in which the plaintiff gave his evidence nor the content of his answers, seriously call into question his creditworthiness and reliability.
Conclusion
81 In the circumstances, I propose to order that the plaintiff be given the leave that he seeks in relation to pain and suffering and loss of earning capacity with respect to the injury to his lower back. For reasons which are now obvious, I will not make a similar order with respect to his claim for the psychiatric condition.
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