Dolati v Victorian WorkCover Authority
[2018] VCC 803
•6 June 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-17-05988
| NADER DOLATI | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | First Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 and 18 May 2018 | |
DATE OF JUDGMENT: | 6 June 2018 | |
CASE MAY BE CITED AS: | Dolati v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 803 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – injury to spine – development of related psychiatric condition – pain and suffering and pecuniary loss damages – whether consequences in respect of psychiatric injury “severe” – whether the plaintiff has a work capacity.
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s335
Judgment:Leave granted in respect to pain and suffering and pecuniary loss damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie QC with Mr C A Sidebottom | Zaparas Lawyers |
| For the Defendant | Mr P R Trigar | Lander & Rogers Lawyers |
HIS HONOUR:
Preliminary
1 The plaintiff, Mr Nader Dolati, was employed as a tyre fitter at Austyre Pty Ltd (“Austyre”) and worked for that company on and off for three or four years leading up to the time of a workplace accident on 8 September 2015. On that day, he fell about 2 metres from a ladder at premises in Sunshine. He says he struck his back and head on a trolley as he fell. He was admitted into the Sunshine Hospital and investigations revealed a fracture to Mr Dolati’s left L2 transverse process and a bony contusion of his left L3 transverse process, as well as a strain to the ligaments at L3-4 and L4-5 and two fractured ribs.
2 As a result of those physical injuries, Mr Dolati developed a significant psychological reaction, variously diagnosed as an Adjustment Disorder, a Major Depressive Disorder, and Post-Traumatic Stress Disorder (“PTSD”), or symptoms of PTSD.
3 Although, initially, the application was made in respect of both physical and psychological injury, it proceeded only in respect of the psychological part of the claim.
The accident and its consequences
4 This is an application for leave to bring proceedings pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”) for injury suffered in the course of Mr Dolati’s employment with Austyre on 8 September 2015.
5 The application is brought under ss(c) of the definition of “serious injury” contained in s325 of the Act and leave is sought in respect of both pain and suffering and loss of earning capacity.
6 Mr Dolati was the only witness called to give evidence and be cross-examined. In addition, affidavits of Mr Dolati, medical, radiological and vocational reports, and other material, was tendered into evidence. I shall not refer to all of that material in the course of this Judgment, but rather those parts of the evidence and reports which appear to me to be most relevant, and 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 and the principal authorities of the Court of Appeal, are well known, and it is unnecessary for me to revisit the various relevant sections and those authorities.
Relevant background
7 Mr Dolati was born in Iran in June 1986. He was twenty-nine years of age at the time of the incident, and is now thirty-two. He attended school in Iran until he was thirteen, achieving only Grade 5 level.
8 He and his family were impoverished. His father died when he was young.
9 He worked in Iran as a tyre mechanic for nine or ten years. He fell foul of the local authorities and was assaulted. He suffered reduced hearing to the left side as a result.
10 He came to Australia in 2010 as a refugee, having spent fourteen months in detention on Christmas Island. He was released in 2011. He suffered anxiety and distress, while his application for Australian residency was processed, and received counselling on a number of occasions. He says that his mental health improved significantly once released from detention, when his residency in Australia was granted.
11 His English is very poor and he gave his evidence through an interpreter. After he arrived in Australia, he started work with Austyre and remained working for that company on and off until his workplace injury.
12 According to his affidavits, he was physically well and did not suffer any significant psychological issues. He enjoyed working with cars and would do his own servicing and repair work. He said he had an active social life and would go out to parties, functions, pubs and clubs.
13 The parties have agreed that at the time of the incident he was earning $1,082 gross per week, which sum stands as his “without injury earnings”.
The accident and its consequences
14 On 8 September 2015, in the course of his employment, Mr Dolati was required to retrieve a tyre rim hanging on a high wall. He climbed a ladder, and as he attempted to retrieve it, he lost his balance and fell. He struck his back and head on a trolley, which was behind him, and landed on the floor. He was dazed, had a headache, and suffered pain in his back. He was driven to the Sunshine Hospital. An MRI scan revealed a fracture to the L2 transverse process and soft tissue injury to the L3-4 and L4-5 areas. He was an inpatient in the hospital for three days and was prescribed pain-relieving medication. He was on crutches for a number of months.
15 He went to see his then general practitioner, Dr Tahmasebi, at the Sunshine Medical Centre, shortly after the incident. That doctor did not treat patients with WorkCover claims and he commenced seeing his current practitioner, Dr Baglar, on 29 October 2015. To that practitioner, he complained of “unrelenting lower back pain” and feared further hurting himself. A slow-release narcotic medication was provided. Dr Baglar described him as “very pain focused” and thought he was heading towards a Chronic Pain Syndrome. Dr Baglar arranged a referral to a neurosurgeon, Mr Augusto Gonzalvo, in August 2016. Radiology undertaken revealed no evidence of instability in the lower back. Mr Gonzalvo thought there was no room for surgery and suggested pain management and physiotherapy.[1]
[1]Plaintiff’s Court Book (“PCB”) 108
16 In his report of 24 October 2016,[2] Dr Baglar said:
“Nader Dolati sustained a major trauma which caused the fracture of one of his lumbar vertebrae and heavy bruising of another one. His most recent investigations are not revealing any pathology compatible with the reported level of pain. He, as Dr Entwistle (sic) stated, developed pain behavior and he is under the impression that he is permanently and severely disabled. This is strictly not the case. On the other hand, he does not have any work capacity for any work. However, it is due to his psychological state, rather than his physical condition.
His Psychiatrist, Dr Assadi reports that he is having PTSD and his current psychological disability is the result of his injury. I believe his current psychological state is due to his shock he went through at the time of his accident.
He is a young man living in a country where he cannot speak the native language. He had a physical trauma which even could have been (sic) fatal one. He found himself lying on a concrete surface with bleeding from his head. I believe all that experience frightened him severely. I am not optimistic at all about his long term prognosis.
His recovery depends on him in that he has to convince himself that he does not have any serious injury and ongoing pain does not necessarily mean ongoing pathology.”
[2]PCB 36
17 In his report of April 2018, Dr Baglar confirmed Mr Dolati’s emotional state was preventing him from working, rather than any physical injury.
18 Mr Dolati first saw Dr Seyed Assadi, psychiatrist, at the referral of Dr Baglar, in November 2015. He has continued to see him through to the present time. That doctor noted Mr Dolati was pre-occupied with the workplace accident and experienced flashbacks and nightmares. He noted Mr Dolati had little English and had a learning difficulty while at school. He commenced him on an antidepressant, Endep, and increased the dose to 250 milligrams. He also prescribed Seroquel and Zyprexa to assist with sleep, although these medications were later ceased. Dr Assadi provided supportive psychotherapy and assisted him with a referral for accommodation. He diagnosed him as suffering an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He noted symptoms of depression, anhedonia, anxiety, irritability, pre-occupation, sleep disturbance, forgetfulness and social isolation. He thought Mr Dolati was unfit for his pre-injury work, or for alternative duties from a psychiatric perspective. He thought the prospect for any employment in the future was limited given his difficulties with English, lack of work experience and limited support in Australia. He suggested ongoing psychiatric treatment.
19 Dr Baglar referred Mr Dolati to Dr Clayton Thomas, a specialist in rehabilitation and pain medicine, in February 2017. Dr Thomas thought his injury to the lumbar spine was significant but, overwhelmingly, his presentation was related to emotional distress. He thought Mr Dolati was suffering from a Chronic Pain Syndrome with significant psychological and function sequelae. He thought there was no room for a rehabilitation program and suggested review by a psychiatrist.[3]
[3]PCB 106
20 According to his affidavits, Mr Dolati says he continues to suffer ongoing pain and discomfort in his lower back. This results in a range of restrictions in his mobility and capacity to undertake tasks. He says he suffers problems with pain referred to his left leg. Sitting and standing is difficult, and driving long distances causes an increase in back pain. He is restricted in lifting, twisting, stooping and bending.
21 In relation to his psychological symptoms, he says he suffers sleeplessness, irritability, loss of energy, motivation and appetite. He has become socially withdrawn. His sleep is interrupted by nightmares of what occurred to him.
22 He has become reliant upon housemates to undertake many of his domestic chores. He is no longer able to work on his car. He takes pain-relieving medication in addition to Endep. He sees Dr Baglar about once a month, and Dr Assadi about the same.
23 He has not worked since the incident and now receives a Newstart Allowance. He started an English course in April 2018, which is due to continue until the end of this year. The course requires him to attend two days per week between 9.30am and 3.00pm, although because of difficulty sitting for long periods, he does not start until around 11.00am or 12.00pm. He said it is difficult to concentrate in the classes.
24 He suffers financial hardship and has few friends. He feels hopeless and has lost his self-esteem and confidence.
25 In the course of cross-examination, Mr Dolati could not recall having any problems in his back prior to the incident. He could not recall seeing Dr Tahmasebi in the months before, complaining of stress and anxiety. He said he had not looked for any work, but hoped there might be some prospect after he finished his English-language course. He admitted Dr Baglar had suggested that he undertake work, for example in light packing duties.
26 Surveillance film taken in August 2017 was shown and tendered into evidence. Mr Dolati was seen walking along the street without much restriction. At one point he reached and held his back. He got out of his car slowly and walked to various shops. It was put to him by Mr Trigar, counsel for the defendant, that he walked in a restricted manner and held his back when he was approaching a number of medical appointments, but walked freely and without restriction when he left. I was unable to determine that that was the case from the surveillance film.
Consultant medical opinions
27 Mr Dolati was examined by Dr Robyn Horsley, occupational specialist, in December 2017. To that practitioner, Mr Dolati complained of chronic back pain most of the time, with exacerbations and radiation into the left buttock and thigh. The bulk of Dr Horsley’s report deals with physical injury and its consequences. She noted that he had developed a psychiatric reaction to the fall, including a Chronic Pain Syndrome. She thought that his ultimate work capacity would be determined by the prognosis of his psychiatric condition. She noted considerable fear-avoidance behavior.
28 Mr Dolati was seen in September 2017 and March 2018 by Mr Ash Chehata, orthopaedic surgeon. He noted the traumatic spinal fractures at L2-3 and ligamentous strains to the interspinous ligaments of L3-4, L4-5 and L5-6. Mr Chehata said although Mr Dolati had limited function as a result of the physical injuries, they had caused a psychosomatic reaction with psychological overlay, aggravating his anxiety and depression. He thought that psychological or psychiatric support would be necessary, together with the intervention of a social worker to help with community support.
29 Mr Dolati was examined by Dr Richard Sullivan, pain specialist, in February 2018. He noted Mr Dolati, on examination, walked slowly, with a “slightly right favouring antalgic gait”. He said Mr Dolati had developed a chronic pain condition which had an organic basis.
30 Mr Dolati was examined by Dr Christina Furtado, neuropsychologist, in April 2018. Mr Dolati complained of changes to his memory, attention span and motivation since the incident. He said he had lost enjoyment of most things. She performed a range of neuropsychological tests. Some of the results were well below expectations. She said:
“The current neuropsychological assessment was far from ideal and limited by Mr Dolati's poor literacy, language issues and cultural factors, with many of the tasks on the assessment appearing quite foreign/novel to him. … Mr Dolati was easily susceptible to information overload, … Extremely severe levels of depression and anxiety and severe levels of stress were endorsed on self-report measures.
Overall, complete interpretation of the current profile is confounded by several factors including high levels of psychological distress, reported pain levels, medication effects and cultural issues, on a background of relatively low premorbid abilities. A pre-existing learning disorder or even mild intellectual disability cannot be discounted … .
It is difficult to assess whether Mr Dolati sustained a closed head injury following his workplace injury on 8 September 2015, secondary to his low premorbid cognitive reserve. On the basis of available information at time of writing (brief loss of consciousness, if any and normal neuroradiological findings), it is unlikely that Mr Dolati would have experienced a period of PTA [Post-Traumatic Amnesia] … Whilst it is possible he may have suffered a mild concussion, this does not appear to explain his current cognitive and behavioural difficulties alone.”[4]
[4]PCB 98
31 Dr Furtado noted Mr Dolati had suffered significant psychological distress since the injury, that he demonstrated cognitive difficulties in attention, slowed processing speed, inefficient new learning and high level executive dysfunction, together with heightened levels of depression, anxiety and stress. She said:
“The significant psychiatric sequelae he has experienced has permanently changed the way he feels about himself especially his confidence and self-esteem/self-worth, his perceptions about his future and his beliefs. Mr Dolati ruminates a lot about the injury and how his whole life has changed since, which in turn does not leave much mental space to think about other things such as basic tasks of daily living or to engage in meaningful activities … .”[5]
[5]PCB 98
32 She thought he had developed significant psychiatric sequelae which, in turn, meant that he had no capacity for work from a neurocognitive perspective. She said he required intense psychiatric care to address “his extremely severe levels of depression and anxiety”.[6] She said he would find it difficult to learn new skills and would require a highly structured environment with significant support. He was not capable of returning to the workforce in any meaningful way, she said.
[6]PCB 99
33 Mr Dolati was examined by Dr David Weissman, psychiatrist, in 2017 and 2018. That practitioner noted a prior history of worry, anxiety and stress while in detention on Christmas Island. According to what he was told, those emotional symptoms had resolved. Dr Weissman thought it was possible Mr Dolati had a pre-existing intellectual disability, or at least a learning disorder, but did not think there was any basis to apportion those pre-existing problems upon his current psychiatric state. He said, in 2018, that Mr Dolati was still emotionally distressed by the work incident, which was frightening and traumatic for him. He reported that his life had been “destroyed” by the incident. He diagnosed Mr Dolati as suffering a Major Depressive Disorder of Moderately Severe Intensity with Anxiety and Depression and a Moderate Chronic Post-Traumatic Stress and Anxiety Syndrome associated with traumatisation features. He said:
“Due to the nature, severity, extent, and chronicity – moderately severe – of Mr Dolati's employment-related psychiatric conditions and mental injuries, he is totally (and permanently) incapacitated for all work including pre-injury duties, suitable duties or alternate duties.”[7]
[7]PCB 62
34 The plaintiff was examined by Dr Tim Hwang, occupational physician, in 2016. He found, in clinical examination, Mr Dolati presented in an inconsistent manner. He said he thought that even with the fractures, they would have resolved by the time of his examination. He could not identify any pathology sufficient to justify the use of opiate medication. He found it difficult to assess Mr Dolati’s work capacity because of his inconsistent presentation. He said he had not demonstrated optimal capacity. He would have expected the condition to recover to the point that he could return to normal duties. He said any incapacity for work was due to abnormal illness behaviour.
35 The plaintiff was examined by Mr Timothy Gale, surgeon, in February 2017. He thought he had suffered a significant secondary psychiatric reaction with the development of a Chronic Pain Syndrome and possibly some type of Adjustment Disorder. He noted features of abnormal illness behaviour. He said the physical injuries were unlikely to result in any compromise of his social, recreational or employment capacities. His prognosis would be determined on psychiatric grounds.
36 Mr Dolati was examined by Dr Joseph Slesenger, occupational physician, in August 2017 and March 2018. He presented to Dr Slesenger with ongoing pain and severe functional limitations, affecting not only his work, but domestic capacity. Dr Slesenger said:
“Clinical examination demonstrated severe restrictions to the range of lumbosacral spinal movements. Clinical examination also demonstrated improved range of movements upon distraction, non-organic features including non-dermatomal sensory loss and non-myotomal weakness and positive responses to simulation testing.”[8]
[8]Defendant’s Court Book (“DCB”) 42
37 He thought Mr Dolati was suffering from a Chronic Pain Disorder, which had resolved, and some form of psychological impairment. He said there was no physical basis upon which Mr Dolati’s work capacity was impaired.
38 In his 2018 report, he said that clinical examination demonstrated an almost absent range of lumbosacral spinal movement with extensive non-organic features. From a physical point of view, he said that Mr Dolati had the capacity to undertake a range of areas of employment, as was suggested in a vocational assessment, included packer, product assembler and traffic controller. He again referred to a range of inconsistent findings on examination.
39 Finally, Mr Dolati was examined by Dr Timothy Entwisle, psychiatrist, in March 2016, August 2017 and April 2018. Initially, Dr Entwisle diagnosed Mr Dolati as suffering a Pain Syndrome and an Adjustment Disorder with Depressed Mood. He said the prognosis was guarded regarding a return to work as he said psychosocial factors appeared to contribute to his condition on a background of impoverishment, limited education, and persecution and refugee status.
40 He thought Mr Dolati had made some progress by August 2017, and at that time diagnosed an Adjustment Disorder with Depressed and Anxious Mood, largely in remission, and a Pain Syndrome. His concluded diagnosis was of a Pain Syndrome with a Mild Adjustment Disorder with Anxious Mood. He noted both Dr Assadi and Dr Baglar had thought that Mr Dolati’s main problem related to his pain. He thought, from a psychiatric perspective, Mr Dolati’s condition was mild and his symptoms were largely explained by vulnerable personality factors, rather than injury. He thought that the Pain Syndrome was not explained by the injury. He said that Mr Dolati had the capacity for suitable employment from a psychiatric perspective if he was motivated to become involved.
Submissions on behalf of the Defendant
41 Mr Trigar submitted there was a significant disentangling issue in the proceeding in relation, on the one hand, to Mr Dolati’s physical injuries and the consequences which flow, and in respect of his psychological state on the other. A number of doctors, including Dr Horsley and Mr Chehata, spoke of a Chronic Pain Syndrome on physical grounds. He noted that, to a range of doctors, Mr Dolati presented inconsistently on physical examination.
42 He referred to a range of credit issues, including:
·Different complaints made to the original treating general practitioner, Dr Tahmasebi.
·His reasons for changing from Dr Tahmasebi to Dr Baglar were unsatisfactory.
·His explanation of the restriction on his social activities, including going to pubs and clubs, was inconsistent.
·He was unimpressive in cross-examination and reluctant to make concessions which were obvious.
·He presented inconsistently in physical examination to many practitioners.
·On the surveillance film, he was shown going towards medical appointments moving slowly and grasping his back, but yet moving freely afterwards, or when late for an appointment, which was not believable.
43 When one stripped away the consequences related to physical injury, Mr Trigar said I ought to accept the opinion of Dr Entwisle, that his psychiatric condition was mild to moderate only, and he was capable of a range of areas of employment.
Analysis
44 I accept that in the incident of 8 September 2015, Mr Dolati suffered a number of physical injuries, including a fractured L2 transverse process, and soft tissue injuries to lower levels of the lumbar spine. While I accept that the sequelae from these physical injuries did continue over time, the picture is now dominated by psychological or psychiatric symptoms. The real issue in this case is the nature and extent of those psychological symptoms and consequences, and whether they meet the “severe” level, as the legislation requires. The practitioners who I found of most assistance in determining these issues were the treating general practitioner, Dr Baglar, the treating psychiatrist, Dr Assadi, and the consultant psychiatrists, Dr Weissman, Dr Furtado and Dr Entwisle.
45 I did not find the plaintiff a particularly satisfactory witness, in particular, in the course of cross-examination. It is difficult to know the extent to which his capacity to give frank, clear and responsive answers to questions in cross-examination was affected by language difficulties, reduced intellectual capacity, possibly related to a Learning Disorder, or the sequelae of an underlying psychological condition described, variously, as a Major Depressive Disorder, an Adjustment Disorder with Anxiety and Depression, or possibly PTSD symptoms.
46 Mr Trigar submitted there were significant credit issues, as a result of which I ought have reservations about Mr Dolati’s credibility. I did not find the surveillance film of particular assistance. On occasions he appeared to move freely, and on other occasions he moved in a restricted manner. I was not able to determine, on observing the film, whether one related to going into medical appointments and one related to going out. It was simply not clear.
47 While I accept that there were a range of inconsistencies on clinical examination, in particular, with the physical doctors, I am of the view that this was more related to Mr Dolati’s intensely pain-focused presentation, rather than a genuine effort to deceive or exaggerate. He presented as very pain focused in the course of cross-examination. I did not consider the other credit issues of significance.
48 While there was clearly some overlap between the consequences of physical injury and on the other hand, psychiatric injury, I am satisfied from the reports of the treating doctors and psychiatric consultants that Mr Dolati has suffered a range of significant psychiatric symptoms which are related to the incident at work of 8 September 2015.
49 Dr Baglar thought the emotional situation was more dominant than any physical injury. Dr Weissman referred to a range of significant psychiatric symptoms which he diagnosed as a Major Depressive Disorder of Moderately Severe Intensity with some symptoms of PTSD, all of which he said led to a complete loss of earning capacity. These symptoms, and the effect upon Mr Dolati, was supported by the opinion of Dr Furtado, the neuropsychologist, who described the symptoms of depression and anxiety as “extremely severe”.
50 Dr Entwisle was unimpressed with the plaintiff’s presentation. While accepting he was suffering from an Adjustment Disorder with Depressed Mood, he thought the symptoms mild, leaving Mr Dolati with a capacity for some areas of employment.
51 Of most significance, in my view, were the reports of the treating psychiatrist, Dr Assadi. He has treated the plaintiff from November 2015 to the present time, seeing him at regular intervals. He accepted that the plaintiff had become pre-occupied with the accident and noted flashbacks and nightmares related to it. He was prescribed antidepressant medication throughout. He was of the view that Mr Dolati was suffering from an Adjustment Disorder with Mixed Anxiety and Depressed Mood related to his physical injuries. He referred to a range of psychological symptoms from which Mr Dolati was suffering. He thought Mr Dolati was incapacitated for pre-injury or alternative duties, noting he had a learning disability, restricted capacity to speak English and little support. I accept Dr Assadi’s report and his conclusions. I prefer his assessment to that of Dr Entwisle. In my view, he significantly delineates between, on the one hand, physical injuries and symptoms, and psychiatric sequelae.[9]
[9]PCB 31-32
52 In considering Mr Dolati’s capacity for employment, the definition of “suitable employment” requires that consideration be taken on a range of matters, including, relevantly, Mr Dolati’s language difficulties, the consequences of his injury, and his work experience. He speaks little English and his capacity to obtain employment would be affected by that. He has only ever worked as a tyre fitter or in similar mechanical areas. Most significantly, he suffers from serious and debilitating psychological symptoms, and I accept the opinions of Dr Assadi, Dr Baglar and Dr Weissman, that he has very little, if any, work capacity.
53 While, after completing his English course, his English may improve, and with ongoing psychiatric treatment and medication there may be some improvement in his symptoms, I am satisfied that his work incapacity will remain for the foreseeable future.
54 Accepting that he suffers from a range of debilitating psychiatric symptoms and has little, if any, work capacity, I am satisfied that both in respect of pain and suffering and economic loss, he meets the statutory criteria. In these circumstances, I will grant leave to bring common law proceedings and make consequential orders.
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