Goarder v Victorian WorkCover Authority
[2018] VCC 1534
•27 September 2018
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
COMMON LAW DIVISION
Case No. CI-17-04735
SALOCHNA GOARDER Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY Defendant
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JUDGE: HIS HONOUR JUDGE MURPHY
DATES OF HEARING: 17-19 April 2018
DATE OF JUDGMENT: 27 September 2018
CASE MAY BE CITED AS: Goarder v Victorian WorkCover Authority
MEDIUM NEUTRAL CITATION: [2018] VCC 1534
REASONS FOR JUDGMENT
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ACCIDENT COMPENSATION – Application for leave to bring common law proceedings – Serious injury – Disentanglement – Leave refused
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APPEARANCES: Counsel Solicitors
For the Plaintiff Mr P F O’Dwyer QC with Slater and Gordon Ltd
Dr J C Plunkett
For the Defendant Mr D McWilliams Wisewould Mahony
Goarder v VWA
1.By Originating Motion dated 11 October 2017, the plaintiff brings an application pursuant to s. 134AB of the Accident Compensation Act 1985 for a certificate granting leave to bring common law proceedings against the defendant. The plaintiff brings a claim for a serious injury certificate under limb (a) of the definition of injury, for both loss of earning capacity and pain and suffering on the basis that she has suffered in an event on 16 June 2014 an aggravation of degeneration to her cervical, thoracic and lumbar spine.
2.Arising out of the same incident the plaintiff also seeks a certificate under limb (c) for both loss of earning capacity and pain and suffering for a psychiatric condition being causation or aggravation of major depression or adjustment disorder and a somatic condition.
Issues in the proceeding
3.In relation to the plaintiff’s physical injury, it was not in dispute that a Petkovski v Galletti [1994] 1 VR 436 analysis was required. The issues were whether the plaintiff, in circumstances where there was pre-existing spinal degeneration, had identified an aggravation of her spinal condition the consequences of which amounted to a serious injury. The plaintiff sought to apply a before and after injury analysis. She was working before the incident and now she was, according to the plaintiff’s medical examiners, totally incapacitated for any employment as a result of a limb (a) injury. Also in dispute on the limb (a) claim was a characterisation of the plaintiff’s condition and in particular whether, as asserted by Dr Blombery her pain complaints were to be treated as a physical injury as distinct from a psychological condition. There was conflict in the relevant medical opinions between this examiner and an orthopaedic surgeon Mr Dooley, on this point.
4.There was also a dispute as to the plaintiff’s capacity for work, with Dr Yong and Mr Dooley opining that the plaintiff was fit for some light employment, while Dr Blombery, Mr Grossbard and the plaintiff’s GP were of the opinion that the plaintiff was totally incapacitated for employment.
5.The defendant disputed that the plaintiff had properly disentangled the physical from the psychological and, relying on the opinions of Mr Dooley and Dr Yong, asserted that the plaintiff was fit for a wide variety of light employment. Further there was an issue as to whether the plaintiff had provided adequate histories to some examiners.
6.On the limb (c) case, the defendant contended that the plaintiff was not suffering from any psychiatric condition that could be described as severe and amount to a serious injury. Again there was an issue as to whether examiners had been provided with a full history by the plaintiff.
The employment, the incident, and medical treatment
7.The plaintiff swore two affidavits as to her condition and medical treatment. The parties put in evidence an extensive array of competing medical reports and the defendant also tendered a deal of medical records from the plaintiff’s GP’s practice. The plaintiff was the subject of extensive cross examination as to her prior spinal condition and complaints, as well as to her attempts to obtain employment.
8.The plaintiff’s affidavits reveal that she is a 53 year old female who was born in Fiji in 1963. She migrated to Australia in 1985. She is married and has a late teenaged daughter
9.Upon arriving in Australia, the plaintiff worked in her husband’s restaurant for many years. In 2005, she began working for Anthony Innovations Pty Ltd, a company that manufactures and assembles roller doors and windows. The plaintiff worked in the production area of the business.
10.Her duties were partly manual and partly automated, but were fast-paced and repetitive, including constant bending of the neck and lifting boxes.
11.Her affidavits reveal that she did suffer some back pain from time to time especially during 2014. Generally speaking, her back pain did not stop her working or from engaging in activities outside of work. She did occasionally suffer back pain at the end of the work week or after a long day in the garden, especially into 2014. She would see her GP and also started to see an osteopath. It helped her significantly and her back pain has now largely settled and also her neck pain had improved significantly too. In early 2014 she developed hand and wrist pain mainly on the right but also on the left, which worsened during the course of the year and she was referred to a rheumatologist. With treatment by early 2016 the symptoms had somewhat settled and she has learned to manage the condition.
12.On Monday 16 June 2014, the plaintiff was sitting on a chair which gave way whilst working. She fell flat on her back, struck her head, and as a result, suffered injuries to her neck and back. She went to the bathroom for a short time and then resumed work. She reported the injury and returned to work. She was unable to complete work the next day and saw her GP who gave her the day off. She went to work the following day but later in the week was unable to cope and saw her GP and was given the rest of the week off. She returned to work on the Monday 23rd June but found it increasingly difficult to cope as the repetitive nature of her duties aggravated her condition. A week later, on 3 July, she stopped working altogether on the advice of her GP and has not worked since. On 31 July 2014 she was made redundant. On 30 October 2014 she was offered a return to work plan but after discussing it with her GP she was advised against attempting it and was certified unfit for work. A second return to work plan was offered and she was again advised by her GP that she was not well enough to return to work. A third return to work plan was offered and again she was advised by her GP that she was not well enough to return to work. WorkCover payments were terminated but were subsequently reinstated after Magistrates Court proceedings.
13.In her affidavit she indicates that at no time has she felt able to return to her pre-injury duties or any similar physically demanding work due to the constant bending of a neck together with repeated lifting, bending and twisting, that would aggravate her condition. She made a number of attempts at retraining including, starting a floristry course and a computer course, but was unable to complete them due to injury. She recently did a modelling course and is at a loss to ascertain what work she will be able to return to.
14.In a second affidavit she indicates that she has undertaken a security screening course but has been unsuccessful in obtaining an interview. She is hopeful that with more training she may be able to obtain a job in an office environment. She is planning to undertake a course to improve her English language skills.
15.In terms of treatment the plaintiff was referred by her GP to a psychiatrist, Dr Rigby, who she first saw in December 2014 and she continues to see him. She was also sent to a rheumatologist, and to a pain specialist Dr Clayton Thomas in October 2015. She also has treatment regularly from an osteopath, and sees a rheumatologist from time to time. She takes Lyrica daily. She has recently enrolled in a further pain management course. She still sees her psychiatrist for depression and anxiety and is prescribed Avanza and Effexor for her symptoms.
16.The plaintiff’s affidavits set out the pain and suffering consequences of her condition. Her continuing pain and depression has a significant impact on her life and her ADLs. The pain interferes with her sleep, she is restricted in the house work she can undertake and is reliant on her husband and her daughter. The pain restrictions make it difficult for her to do heavier household tasks. It also makes the role of caring for her elderly mother more difficult. Cooking and doing laundry is difficult and causes her pain. She has difficulty sitting for more than 30 minutes and thus has difficulty driving anything other than short distances. She is no longer able to work in the garden. Her pain, anxiety and depression seriously interfere with her social life and she rarely goes out at all apart from special occasions.
Pre-existing medical conditions and the cross examination
17.In evidence, both in her affidavits and cross-examination, the plaintiff conceded that she had ongoing neck and back pain prior to the workplace incident. The plaintiff said, however, that her pre-existing neck and back pain did not prevent her from working, and that she would experience such pain after the end of the work week, or after activities, such as gardening.
18.Part of the thrust of the defendant’s cross-examination of the plaintiff was that her prior spinal condition was more significant than she had conceded in the affidavits. In order to provide a basis for the cross examination, the defendant put in evidence a large volume of medical records and the plaintiff was cross-examined on them. The thrust of the cross-examination was that the plaintiff had made numerous complaints of back and neck pain over the years that she attributed to work as well as other activities, or no specific incident at all. This led to an ultimate submission that the plaintiff’s pre-injury spinal condition was more significant than she had made out, and not dissimilar from the post-accident condition. This applied particularly where there was no observable organic basis for her post-accident claims of injury.
19.The second thrust of the cross examination was that the plaintiff had had a significant history of emotional upset or psychological problems that she had taken to her GP clinic but that she had not disclosed to examining psychiatrists, thus undermining their opinions, particularly where there was a history of her brother committing suicide.
Medical records evidence (physical) pre-injury
20.As early as 16 June 2004, the plaintiff presented to her treating general practitioner, Dr Yasendri Arambepola, complaining of pain and stiffness in her neck. This continued until 7 May 2014, which was the last note the plaintiff’s treating general practitioner had recorded prior to the workplace incident about the plaintiff’s neck and back pain.
21.The doctor’s notes regarding the plaintiff’s back and neck pain are extracted below:
Date Doctor’s notes 16 June 2004 “Pain and stiffness in neck” 26 October 2007 “Pain in left side of neck, occipital area, headaches at times too” 29 February 2008 “Pain in mid-thoracic area to the right of the spine” 13 June 2008 “Slipped down the stair case, pain in lower end of spine” 24 July 2009 “Ongoing back pain, get worse, no injury, aggravated by bending” 11 August 2009 “Neck pain 2/7, no injury, no radiation of pain”
24 May 2010 “Pain in upper back, between scapula and thoracic spine” 22 June 2010 “…pain in lower neck between scapular and spine” 18 October 2010 “Ongoing [right] scapular…pain 12 July 2011 “Back pain since [yesterday], no injury” 23 April 2012 “Car accident today, driver hit from back, seat belt on, neck pain since then, no radiation of pain” 20 June 2012 “[Right] scapular pain few months, [right] handed, flare up of pain few days [sic]” 29 August 2012 “Neck and [right] shoulder blade pain” 1 November 2012 “…also pain in spine coming downt he shoulder, right elbow to hands [sic]” 21 February 2013 “Lower cervical spine tenderness” 22 July 2013 “Upper neck and back pain, headache coming from neck” 12 August 2013 “Ongoing pain in neck…having these conditions for mroe [sic] than 6 months” 14 October 2013 “Right side [lower back pain] sudden onset, more pain when bending and straightening, doing gardening a lot, could have contributed to it, pain at end of day…” 25 November 2013 “Right sided [lower back pain] with radiation to front of thigh and groin area…no recall of any injury or sprain” 2 December 2013 “On going pain in right lower back radiation to ride side of abdomen, more with muscle movements and bending over, sitting down for long” 31 January 2014 “Ongoing lower back pain…last night had back pain 21 March 2014 “…also neck sxs [sic] likely posture related” 1 May 2014 “Pain in right wrist at end of week along with neck pains” referred to a rheumatologist 5 May 2014 “…neck pain recently” 7 May 2013 “…also neck better with using heat packs” 22.In addition to the complaints made to her treating general practitioners, the plaintiff underwent a CT scan on her spine in February 2014 which showed a moderate bilateral narrowing of discs at L3/4, L4/5 and L5/S1. Both Mr Grossbard, and Mr Dooley, orthopaedic surgeons, later commented that the plaintiff’s pain complaints must have been significant for this investigation to be ordered.
23.Furthermore, at the referral of Dr Arambepola, the plaintiff was treated by Ms Kathryn Toohey, osteopath, from the period between 2013 until the incident. In a report dated 20 May 2014, Ms Toohey noted that the plaintiff complained of right back and neck pain, and Ms Toohey opined that the repetitive nature of her work contributed to her pain.
24.The plaintiff was the subject of extensive cross examination as to a number of the above entries. She did not dispute the contents of the entries. Her response however was that notwithstanding the consultations for neck and back pain, and for headaches, and the provision of medication, she was able to continue working.
Assessment
25.The records speak for themselves. The plaintiff was unable to recall a number of specific consultations which, given the time elapsed, is not surprising. Counsel had to extract from her, however, that she would often consult her general practitioner with complaints of pain in a variety of locations that were not related to a specific incident. Thus the cross examination and the records did, in my view, provide some basis for the argument that the plaintiff has not fully disclosed to some of the examiners her full pre-accident medical history, and the fact that it had emanated from workplace and a leisure activity and for no reason at all. Further, in our answers the plaintiff was keen to blame her work for her prior problems, yet this was not fully noted in the records she was taken to in the course of the cross-examination.
Medical records evidence (psychiatric) pre-injury
26.The second theme of the cross examination of the plaintiff related to her psychological and emotional condition before the accident.
27.This was to provide a basis to submit that, in addition to complaints of pain in her back and neck, the plaintiff, prior to the workplace injury, complained of depressive thoughts and anxiety issues to her treating general practitioners. Particularly, relating to her daughter, whether there was a family history of i.e. psychiatric problems, and the plaintiff’s response to stress in the workplace. Some of the entries in the doctor’s notes regarding the plaintiff’s mental state complaints are extracted below:
Date Doctor’s notes 11 September 2006 “Upset with her daughter’s adoption issues” 8 December 2006 “Worrying re daughter’s adoption issues [sic]” 14 December 2006 “Going to US to attend religious ceremony” 1 March 2010 “Feeling depressed, feeling she has been “picked up by this person since incident last year”” 4 June 2010 “For mental health review plan, will benefit from further counselling [Mental Health Plan created]” 4 March 2011 “…also undergoing stress re daughter and adoption (sic), teary, looks stressed [new Mental Health Plan created]” 6 June 2011 [Review of Mental Health Plan] 26 March 2012 “Intermittent depressive thoughts, issues with her daughters imigration [sic]…also need on going mental health plan” 28.Under cross-examination the plaintiff did not dispute that as a result of visa issues relating to her adopted daughter she was upset at times and raised that with her GP. She was unable at first to remember that she had been referred for a mental health plan, and I found her responses as to how many times there was reference to a mental health plan, unsatisfactory. On the basis of the cross-examination, I find that the plaintiff was seeking to downplay her emotional and psychological condition before the accident.
The course of treatment and medical opinions
29.On 17 June 2014, the day following the incident, the plaintiff attended at her GP, complaining of neck and back pain. The plaintiff attempted to continue working, but could not because of the headaches she was suffering as a result of hitting her head.
30.On 19 June 2014, the plaintiff again attended at Dr Arambepola continuing to complain of ongoing neck stiffness with the pain radiating to her neck and upper shoulders. She was advised to use a heat pack, Voltaren and to continue using Brufen.
31.On 24 June 2014, after seeing an osteopath, the plaintiff saw Dr Sara Razaghi-Ghadikolai who noted that the plaintiff presented with ongoing neck pain, but noted in her records that she has had neck pain in the past, and has previously seen an osteopath (as discussed above). The plaintiff said, however, that “it’s a different pain”.
32.As noted above, the employer attempted to have the plaintiff engage in a return to work plan. The plaintiff had been referred by her GP to a psychiatrist Dr Rigby who she did not see until 7 January 2015.
33.In evidence was a report of Dr Dush Shan, consultant psychiatrist commissioned by the defendant, dated 24 November 2014. Dr Shan reported that the plaintiff continued working, except for a couple of days, after her fall and only ceased working when she was retrenched. The plaintiff reported to Dr Shan that she had no family history of psychological illness.
34.Dr Shan opined that no psychiatric disorder or mental illness was identifiable, and that “it is not apparent to me that any of these emotions constituted clinically significant psychological symptoms indicative of the presence of a psychiatric illness. It would be misleading to mistake tearfulness in the context of anger [towards her employer and current situation] to be indicative [of] depression or anxiety.” He noted that the plaintiff had no intention of returning to employment with the defendant and recommended counselling to assist the plaintiff during a period of stress.
35.The plaintiff saw Dr Byron Rigby before her application for reinstatement of weekly payments was heard in court. The matter was obviously hotly contested and the payments were reinstated.
36.The opinion of Dr Shan was strongly contested by that of the plaintiff’s treating psychiatrist. Dr Rigby, consultant psychiatrist, in a report dated 1st February 2015 found that the plaintiff was suffering from a major depressive disorder with anxiety features. It was of sufficient intensity in his opinion to significantly interfere with her capacity to work. He was of the view that she should not return to work until her capacity is further assessed.
37.He repeated that opinion in a further report dated 6 March 2015 for a conciliation conference. Following that conference in a report dated 20 March 2015 he opined as follows:
“I am writing to express the gravest concern that representatives of your company appear to have made unqualified medical assertions and judgments at the Conciliation hearing for [the plaintiff] yesterday.
In my own report…[the plaintiff] was clearly suffering from a Major Depressive Disorder of considerable severity at the time I first examined her, and at subsequent consultations. I made it clear that this psychiatric injury was due to events at work, including the onset of intractable pain.
…
This judgment is a medical judgment, and no person at the conciliation hearing, to my knowledge, was medically qualified to draw any such conclusions [that the plaintiff’s symptoms were not work-related].
…
There has been to my knowledge no medical evidence either available or adduced to contradict this clear clinical finding. The conclusion reported to have been proposed by non-medical personnel present at the conciliation – that because of gradual onset the psychiatric injury could not be due to work events – is completely erroneous and contrary to all clinical findings.
I would strongly adviser [sic] that, if the account given to me is true, the position adopted at present be revised, and that [the plaintiff’s] clear psychiatric injury be recognised as entirely work-related, whether of slow or more rapid onset.”
38.Notwithstanding this opinion, the medical opinion available to the employer was that the plaintiff, whatever her dispute with her employer, did not have a significant psychiatric illness.
39.In a further report of Dr Shan dated 29 January 2016, Dr Shan continued to opine that:
“[the plaintiff’s] emotions are within the normal range for her situation of being in a dispute over a workplace matter. This would be consistent with both the lack of any prior psychiatric history of significance, together with the lack of any improvement whatsoever being reported by the patient despite conjunctive treatment by a Psychiatrist, Psychiatric Nurse and the prescription of medications that would normally be considered effective.”
40.Accordingly, Dr Shan opined that the plaintiff was not suffering a psychological injury related to the workplace and that she did not have an incapacity for work due to a psychiatric illness.
41.The defendant’s counsel in final address strongly criticised Dr Rigby’s objectivity in light of his comments following the court proceedings. I agree. In a later long discursive final report dated 12 June 2016 he maintained his diagnosis. He disagrees with the opinion of Dr Shan. He does however note a change in demeanour of the plaintiff and that there is increased motivation. He describes the plaintiff as “somewhat out of the ordinary as both a patient and a claimant. I regard this as due to a combination of culture, personality and circumstance.” He finds that the plaintiff still has no work capacity and recommended a review in six months.
42.In a letter dated 6 October 2016 to the plaintiff Dr Rigby notes that the plaintiff has not provided histories of her full disability to Dr Brown and Prof Doherty. This evidences, in my opinion, some partisanship on the part of Dr Rigby and leads me to give his report less weight. In closing address senior counsel for the plaintiff made little reference to the reports of Dr Rigby.
43.The plaintiff saw Dr David Weissman, consultant psychiatrist. In his report, dated 12 November 2015, he diagnosed the plaintiff as currently suffering from a moderate, mixed depressive and anxiety syndrome which satisfied the diagnostic criteria for a chronic Major Depressive Disorder, which had not yet stabilised. He records that the plaintiff gave a history of occasional (his emphasis) lower back pain in the past. She also denied a psychiatric history or a family history. He was of the view that it was a complex case and referred to disagreements that the plaintiff had with management and the fact that she had been retrenched. This contributed to her mixed depressive syndrome.
44.His diagnosis was “she is currently suffering from a Chronic Major Depressive disorder with anxiety and a probable Chronic Pain Disorder, associated with psychological factors and a general medical condition.”
45.Dr Weissman opined that the plaintiff’s pre-injury psychiatric prognosis would have been “good and favourable”, however, her current psychiatric prognosis is “moderately uncertain and guarded”. As at the date of his report, Dr Weissman opined that the plaintiff remained totally incapacitated for all work. He was of the opinion that she should be reviewed in six – nine months.
46.The plaintiff in final address relied significantly on the opinion of Dr Blombery. In a report dated 14 November 2015, this consultant physician, opined that:
“Imaging has found that she has had significant degenerative changes in the cervical spine and it is my opinion that these previously asymptomatic changes were rendered symptomatic by the fall off a chair.
…
She also has some tenderness over her lumbar spine and it is my opinion that the injury also exacerbated previously relatively asymptomatic degenerative changes there, which had last been symptomatic in early 2014.
…
The fibromyalgia that the rheumatologist diagnosed her with is a similar disorder of pain pathway sensitisation but in [the plaintiff’s] case, I consider this a disorder which was triggered by the injury that she sustained in the course of her employment. (Emphasis added)
…
It is my opinion that her prognosis for recovery is poor and that there is not likely to be any significant change in her level of disability in the foreseeable future.”
47.The plaintiff relied on the emphasised passage for a limb (a) physical injury. I note that in his report Dr Blombery, in terms of previous history, refers to the development of discomfort in her right wrist in May 2014. He refers to a history of previous lower back pain and the CT scan in February 2014. On a perusal of the osteopath notes, this had been present since at least January 2014 but that at a review on 8th February 2014 it appeared to have significantly improved. He notes that the plaintiff had been referred to a rheumatologist, but does not make reference to the fact that this referral occurred before the incident. He also does not make any express reference to the fact that the plaintiff, as evidenced from the medical records digested the above, had seen her GP on a number of occasions in the year prior to June 2014 complaining of back and neck pain. This significantly weakens the basis of his opinion, particularly where a crucial issue is the plaintiff’s condition and employment capacity before and after the chair incident.
48.Dr Blombery opined that the plaintiff has no capacity to perform her pre-injury duties, and that this incapacity was permanent. He was of the opinion that the plaintiff could undertake some restricted duties but that because of her age, and the severity of her pain and secondary depression it was his opinion she had no capacity to perform suitable employment. He was of the view that she required ongoing pain management.
49.Dr Joseph Slesenger, occupational physician, in a report dated 30 December 2015, reported that the plaintiff has ongoing pain levels of 8-to-9 out of 10 in her neck and upper/mid back and ongoing pain in both wrists that radiates to both hands. On May 2014 the plaintiff described a rapid onset of bilateral wrist, hand and elbow pain. She had also suffered a fall in June 2014.
50.Dr Slesenger diagnosed the plaintiff with:
“1. Aggravation of degenerative disease of cervical spine
2. Soft tissue injury to the thoracic spine
3. Chronic pain disorder (Emphasis added)
4. Bilateral upper limb arthralgia of uncertain cause
5. Psychiatric impairment, although this is out of my area of expertise.”
51.Dr Slesenger further opined that:
“I am of the opinion that [the plaintiff] does not have the capacity to return to her pre-injury duties. In support of this, I note the manual handling requirements, particularly the repetitive and fine dexterous work. I am of the opinion that she could not return to these duties.
…
With regard to alternative duties, I note the severity of [the plaintiff’s] symptoms, I note her limited employment experience to date and the absence of qualifications. I also note her functional limitations and at present I am of the opinion that she is unlikely to be able to find work for which she has suitable experience and expertise given her current level of symptoms.”
52.He found that her condition had not stabilised and was cautiously optimistic in relation to an upcoming pain management program. He was of the view that she would have difficulty obtaining suitable employment.
53.This opinion is significant in that the plaintiff had been referred to this rheumatologist before the incident. Further in his opinion the plaintiff’s musculoskeletal symptoms seem to become more widespread and severe after the plaintiff ceased to work, and he could not attribute the alleged injury to the cause of her current pain and disability at that stage.
54.The defendant referred the plaintiff to Mr Michael Dooley, orthopaedic surgeon. He records that the plaintiff said that she had in the past been treated for pain in her right wrist and pain in her right middle finger, and on 2 February 2016 he opined that:
“[The plaintiff] has underlying and naturally occurring degenerative disc disease of the cervical and lumbar spine regions. Clinically and radiologically there is no evidence of any nerve entrapment…
Based on the history provided, I believe that [the plaintiff] sustained soft tissue injuries to the cervical and lumbar spine regions in the work related fall. Most likely they have involved some aggravation of underlying degenerative disc disease. Accepting the soft tissue injuries sustained, it would be my view that the constancy and intensity of Mrs Goarder’s ongoing pain and her described a disability are greater than one would expect to see for her organic condition. In my view, she has a psychological reaction to her situation and this reaction significantly influences her ongoing symptoms.
…
From an orthopaedic viewpoint only I would have expected [the plaintiff] to have had the physical capacity to carry out the return to work duties.
He concludes by noting that:
“in my view, much of Mrs Goarder’s ongoing presentation relates to that of her psychological condition.… Following any aggravation of an underlying degenerative musculoskeletal condition, patients can note ongoing pain even after cessation of an injurious or aggravating factor.”
55.He noted that given the CT scan in February 2014 this would indicate that the plaintiff was aware of some lower back pain prior to her fall. He recommended conservative treatment. He noted that from an orthopaedic viewpoint only, he would have expected the plaintiff to have the physical capacity to carry out the return to work duties.
56.Implicit from this report is that any soft tissue or physical injury sustained has now been overtaken by a psychological response, manifesting itself in complaints of pain.
57.Dr Shan provided a further report dated 28 April 2016 after being provided with Dr Weissman’s report of 12 November 2015 and Dr Blombery’s report of 14 November 2015 (both discussed above). Dr Shan, however, did not change his opinion of the plaintiff that she had no psychiatric condition that was work-related.
58.Furthermore, Mr Dooley, in a further report dated 29 April 2016, again after being provided with Dr Weissman and Dr Blombery’s reports of 12 and 14 November 2016 respectively, confirmed his opinion that the plaintiff would have been able to carry out the return to work duties.
59.The plaintiff’s general practitioner, Dr Arambepola, provided a report dated 8 June 2016 where she opined that:
“[The plaintiff’s] medical condition has not been stabilised yet. She continues to have pain in the back, neck, both shoulders, wrists and also suffers from headaches. It constantly flares up from doing her ADLs. She has to rely on others for cooking, shopping, driving her to medical appointments and similar tasks. She also has chronic pain syndrome and depression as a result of the injury. (Emphasis added)
…
As a result of the workplace injury, [the plaintiff] does not have the capacity to perform her pre-injury duties. I consider this incapacity to be permanent ie: likely to last for the foreseeable future.
As a consequence of the workplace injury, [the plaintiff] has the capacity to perform alternative duties… She would be suitable for part time work at present but she may be able to increase the number of hours in future.”
60.Dr Rigby provided a further comprehensive report dated 12 June 2016 in which he considered in detail the reports of Dr Weissman dated 12 November 2015 and Dr Shan dated 29 January 2016. Dr Rigby opined that:
In recent months, [the plaintiff] has acknowledged that her relationship with her family, never fully harmonious, has become almost completely disrupted, and that she feels that she will have to abandon her relationship.
…
[Dr Weissman’s] description of depressive symptoms corresponds with my own observations… The diagnosis given is Major Depressive Disorder with anxiety. This accords with my own determination. The diagnosis of Adjustment Disorder with Mixed Anxiety and Depression is also viable, but additional symptoms, together with the severity of the condition, make Dr Weissman’s diagnosis preferable in my view.
…
[Referring to Dr Shan’s note of absence of previous depression illness]: Prior depression is not particularly usual in person’s suffering from depression secondary to injury and pain. In fact is the exception [sic]. It is not clear why Dr Shan would consider it necessary that there be a previous history of depressive illness.
61.Dr Rigby concluded, under the heading ‘Diagnosis’:
“Major Depression with features of anxiety, secondary to pain and perceived workplace factors. The spreading of the pain indicates the development of a chronic pain syndrome in which the pain has become partly independent of the original injury.
…
I consider that the condition would not have developed had the events described in the workplace not have occurred, and that the pain due to injury has been a major precipitating factor for depression.”
62.When Dr Rigby considered whether the plaintiff had the capacity to return to pre-injury duties, he opined that:
“From a psychiatric point of view, return to original employment is not conceivable, owing to the large number of unresolved issues associated with the workplace... [The plaintiff] still has no current work capacity, owing to pain and depressive symptoms. However, she is responding to pain management, and is making her own efforts, and this in turn may have some effect on her depression in the future.”
63.When Dr Rigby considered whether the plaintiff had the capacity for other employment, he opined that:
“Owing to pain and depressive symptoms, [the plaintiff] at present has no capacity for other employment for which she is suited by capacity, age, education, place of residence, skill and work experience.”
64.The plaintiff’s rheumatologist, Dr Lionel Schachna, also provided a comprehensive report, dated 30 June 2016. Dr Schachna had been treating the plaintiff since December 2014. Dr Schachna reported that the MRI of the plaintiff’s cervical spine:
“[d]emonstrated a small left paracentral C6/7 disc protrusion and mild narrowing of the exit foramina at C3/4, C4/5 and C5/6. Nerve conduction studies did not demonstrate evidence of cervical nerve root compression.”
65.Dr Schachna summarised his findings in the following terms:
“I first saw [the plaintiff] in December 2014 approximately six months after her fall at work. Prior to the fall, she had developed right wrist and hand pain. She appears to have sustained a soft tissue injury without fracture. Her pain became more intense and widespread after she stopped work. Over the next few months, she also appeared to have developed significant central pain sensitisation in association with poor sleep and fatigue. This would appear to have been precipitated by the soft tissue injury in the context of the significant emotional stress of losing her job.
…
As outlined above, her musculoskeletal symptoms seem to become more widespread and severe after she ceased work. The central pain sensitisation component of her presentation appears to be responding well to the multimodality pain management program. Her low-grade inflammatory arthritis has responded will to Plaquenil together with several months of low-dose prednisolone.
...
It is not clear to me that the workplace injuries (soft tissue injury) is the cause of her current pain and disability. Currently, [the plaintiff] is unable to resume employment any meaningful employment [sic]. Depending on the outcome of the pain management program, she may be able to return to work in 3 to 6 months.” (Emphasis added)
66.This opinion is significant in that like Mr Dooley, this examiner does not point to the incident as the current basis of the plaintiff’s complaints of pain and disability.
67.Dr Clayton Thomas, consultant in rehabilitation and pain medicine authored a report dated 6 July 2016, after assessing the complainant on 16 October 2015. He notes that she had a problem with her wrist previously. He concluded that:
“On 16 October 2015, I formed the following impressions:
1. Fairly widespread pain complaints. The imaging of the cervical spine by way of the MRI has no possible linking with her problems. It was not surprising that she did develop some musculoskeletal pain after the said incident. I did not find evidence of abnormal illness, behaviour or the link. Accepted there was a psychological sequelae here. Distressed that she had been terminated by the employer. (Emphasis added)
2. I felt that a pain management and rehabilitation program was appropriate and reasonable.”
68.At the request of the defendant, Dr Malcom Brown, occupational physician provided a report, dated 25 July 2016 as to the plaintiff’s physical ability to return to work. Under the heading ‘Examination Findings’, he opined that:
“…There was an unrestricted range of movement at the cervical and lumbar spines. Muscle power and reflexes were normal…”
69.Further, Dr Brown responded to specific questions, without reciting the questions, as follows:
“8.1. With regard to causation, there is radiological evidence of degenerative change, and likely some contribution from the fall. Employment is no longer a cause of any physical condition in my opinion.
…
8.3. From a physical point of view, she has capacity to return to pre-injury duties and hours.
8.4. She has capacity for modified or alternative duties as well.
8.5. She has capacity to complete 100% of her pre-injury hours in my opinion.
…
8.13. There were significant discrepancies between her physical appearance and her description of her abilities and activities. She states she has incapacity for heavy tasks but there is no objective medical evidence of a medical reason for this.
8.14. She does not require any further treatment for a work-related physical injury.”
70.Dr Brown concluded by opining that the plaintiff ‘has unrestricted capacity for employment’.
Assessment of physical injury as at mid-2016
71.Leaving aside the psychiatric examiners referred to above, it is clear from the opinions of Mr Dooley and Drs Brown and Schachna that the investigations conducted do not reveal any serious pathology, and that the predominant problem was the plaintiff’s complaints of widespread pain. That is also implicit in the opinion of Dr Thomas. The opinions of Mr Dooley and Dr Brown are that the plaintiff had a capacity to return to suitable light duties, and from a physical point of view, pre-injury duties. Implicit in their conclusions is that there were psychological factors precluding the plaintiff from returning to employment.
72.Associate Professor Peter Doherty, consultant psychiatrist, authored a comprehensive report dated 4 August 2016 after examining the plaintiff in July 2016.
73.He answered specific questions posed by the plaintiff’s case manager as follows:
“1) Does the [plaintiff] have a diagnosable psychiatric condition relevant to the accepted compensable condition? If so, please explain what this is, and list the DSM IV criteria?
The worker has been diagnosed by the treating psychiatrist [Dr Rigby] has having a depressive disorder. She has been treated…[and] attends that psychiatrist on a weekly basis. The symptom that is predominant is that of pain, not mood. The [plaintiff] has a pre-occupation with pain and claims that pain limits her functional capacity significantly. She indicated that pain causes stress for her. The functional incapacity reported by the worker is out of keeping with what would be expected from physical injury sustained [sic].
…
The worker is attending a pain management program.
In my opinion, there is, based on [the plaintiff’s] presentation and a review of the supplied material, a somatic symptom disorder with predominant pain, persisting (DSM5) condition. That is, there is a pain-related psychiatric condition diagnosable. (Emphasis added)
As well, there is an adjustment disorder present…
2a) In your clinical opinion, can the [plaintiff] return to her pre-injury duties and hours?
The [plaintiff’s] employment position was terminated. With regard to undertaking pre-injury duties and hours at another workplace, the [plaintiff] at the present time could not do that, based on her reported symptoms, particularly the pain-related symptoms.
2b) Would the [plaintiff] be capable of performing her pre-injury duties and hours at a new workplace or with an alternative employer?
…the worker could not undertake her pre-injury duties and hours at a new workplace or with an alternate employer.”
74.Associate Professor Doherty concluded that a further review of the plaintiff in six months’ time was recommended, that she had no currently work capacity and due to her symptoms, the plaintiff would be unreliable and inconsistent in work at the present time. He considered this incapacity for work to be indefinite.
75.After being provided with Dr Brown’s report dated 25 July 2016 (as discussed above) and the outpatient rehabilitation discharge summary, Associate Professor Doherty was asked to provide a supplementary report at the request of the plaintiff. This report was dated 30 August 2016. Associate Professor Doherty opined as follows:
“1. Does the [report of Dr Brown and outpatient rehabilitation discharge summary] alter your opinion on [the plaintiff’s] psychiatric capacity for work as stated in your report dated 4 August 2016?
…
As I noted in my opinion, I was of the view that the reported symptoms and the reported functional loss would lead to a conclusion that the [plaintiff] had no current work capacity. If the pain symptoms and the consequential functional incapacity is due to a non-work related condition, then, that physical condition is no longer compensable.
…
If that is a reasonable and accurate reflection of the [plaintiff’s] functional capacity [as assessed by Dr Brown], then the [plaintiff] does have a current work capacity. The psychiatric conditions in their own right, that is, the adjustment disorder and the somatic symptom disorder, should not cause any significant functional loss, and thus would not in themselves incapacitate the [plaintiff] for work.
76.He further opined that, based on the opinion of Dr Brown, the plaintiff could return to her pre-injury duties and hours from a psychiatric point of view with an alternate employer. Further, he opined that the plaintiff had the capability from a psychiatric point of view to undertake the necessary retraining and all duties listed in the employment options as proposed by the vocational assessment report.
77.Dr Brown re-assessed the plaintiff and authored a further report on 4 July 2017 and following an examination opined that:
“[The plaintiff’s] situation is little changed over the past year and although she continues to complain of significant low back pain, physical examination shows some inconsistencies, and no evidence of a serious spinal injury. Now complains of pain in the left temporomandibular joint, and this is a common site of psychosomatic symptoms. Overall I conclude that she only has minor low back pain which is not severely incapacitating, and there may be significant psychological overlay present. Her condition is completely constitutional in nature, and there is not in my opinion any evidence of a work-related injury. She has capacity for all but the heaviest of physical work.” (Emphasis added)
78.In closing address senior counsel for the plaintiff was very critical of Dr Brown’s reports. This was on the basis that he did not make reference to the neck, refers to the temporomandibular complaint as a site of psychosomatic symptoms, and uses the descriptor that the complaints are “completely constitutional in nature.”
79.I do not accept the criticism. The examiner records an examination of the cervical spine. He concludes that there is no evidence of a work-related injury. He finds inconsistencies in the examination. He finds that there may be a psychological overlay present.
80.In circumstances where the orthopaedic surgeons are of the view that any physical injury sustained by the plaintiff was soft tissue and not serious, and where this examiner’s opinion is similar to that of the rheumatologist, I am not prepared to dismiss his opinion out of hand.
81.Mr Dooley re-assessed the plaintiff on 21 June 2017 and authored a further report dated 19 July 2017 and confirmed his earlier opinion (that the plaintiff sustained a soft tissue injury to her cervical and lumbar spine that most likely aggravated a naturally occurring degenerative disc disease) and opined that:
“Clinically there is no evidence of objective neurological deflect affecting the limbs… I remain of the view that the constancy and intensity of [the plaintiff’s] ongoing pain and her described disability are greater than one would expect to see for her organic condition… I believe that she would benefit from a return to suitable work. I note within the attached documentation that a diagnosis of fibromyalgia has been made. In reality fibromyalgia is a term that is used to medicalise a situation when a patient presents with multiple aches and pains. I do not believe that it is a true medical condition. It is a situation where doctors medicalise a cluster of symptoms giving justification to the patient’s symptoms and in reality only reinforcing the psychological component of their presentation.” (Emphasis added)
82.Ms Toohey, osteopath, provided a further report dated 30 October 2017. At this time, Ms Toohey had been treating the plaintiff since 19 June 2014, three days after the workplace incident. Ms Toohey opined that:
“Taking [the recent pain scale questionnaire completed by the plaintiff] into account, I feel that [the plaintiff] would find it difficult to gain employment in any field at this time as states [sic] that she ‘needs a sleep’ after completing even the most basic tasks…
I believe, taking into account the diagnosis of a cervical disc herniation, that [the plaintiff] should, at some stage, be able to return to some level of employment.”
83.Ms Toohey concluded, however, that despite osteopathic treatment giving temporary relief to the plaintiff, the treatment provided by Ms Toohey is sustainable and suggested that the plaintiff undertake some form of Chronic Pain Management.
84.One matter in relation to this examiner that emerged from cross-examination is that the plaintiff had requested this examiner to write to her GP to remind the GP that the plaintiff had complained of jaw pain commencing immediately after the incident. I prefer the opinion of Dr Brown that this complaint is more likely to be a psychosomatic symptom. The pain focus of the plaintiff is consistent with the reminder to her by Dr Rigby that she should provide full histories of her disability to the employer’s examiners.
85.I also note that this examiner refers to disc herniation. No examiner suggests that this was a result of the fall. The orthopaedic examiners, Messrs Grossbard and Dooley referred to a soft tissue injury.
86.The plaintiff’s treating general practitioner, Dr Arambepola, provided a further report dated 23 November 2017. Dr Arambepola, in answering the plaintiff’s solicitor’s questions, relevantly opined as follows:
“5. As a consequense [sic] of the workplace injuries does my client have the capacity to performher [sic] pre-injury duties?
No. I consider this incapacity to be permanent ie. likely to last for the foreseeable future.
6. As a consequence of the workplace injuries does my client have the capacity to perform suitable employment (taking into account her incapacity, age, education, place of residence, skill and work experience)?
She still would not be able to have any capacity in the foreseeable future due to her current physical limitations, incapacity, age, education, skill and work experience.
She has tried various courses which involved alternative duties such as computer and floristry which she was unable to complete in the past.”
87.Dr Arambepola further opined that the plaintiff’s prognosis is poor and that she is at a high risk of developing secondary osteoarthritis in most of her joints, especially her neck, wrist and temporomandibular joint.
88.The defendant’s counsel criticised the GP’s report on the basis that she had premised her original opinion on a conclusion that there was C2-3 nerve root irritation when subsequent investigations did not support that conclusion.
89.A further matter that I find difficult in accepting the GPs gloomy opinion is that she had in June 2016 originally opined that the plaintiff would have the capacity to perform alternative duties such as in retail, on a part-time basis and may be able to increase the hours in future, yet in November 2017 she was of the view that the plaintiff would not have any capacity in the foreseeable future for suitable employment. It is difficult to accept this opinion in the face of the opinions of the orthopaedic surgeons, Dr Brown and the plaintiff’s own concession under cross-examination that she would be able to try light duties.
90.Dr Blombery provided a final report dated 16 February 2018. He examined the plaintiff on 18 January 2018 and opined that:
“[The plaintiff] has developed widespread pain including the neck and back of her head, the low lumbar spine, the left chest, the hands and wrists, and the thoracic spine after the injury. It is my opinion that it was in the nature of a generalised pain sensitisation disorder triggered by the fall which occurred in the course of her employment in 2014 as well as the injury to her wrists. She has widespread pain and also quite marked secondary depression and anxiety which is tending to enhance her experience of pain.
Nevertheless, the mechanism of her pain is organic in nature and is caused by sensitised pain nerve pathways.”
And that:
“[The diagnosis of the plaintiff being] injuries to her spine with previously asymptomatic degenerative changes being rendered symptomatic and complicated by a generalised pain syndrome.” (Emphasis added)
91.In contrast to Dr Arambepola, Dr Blombery opined that the medical conditions have now stabilised, but concurred with Dr Arambepola that her prognosis for recovery is ‘poor’. Dr Blombery stated, on the basis of the plaintiff’s neck and back impairment, each considered separately, that the plaintiff has no capacity to perform her pre-injury duties, such incapacity is permanent, and that, “given the long duration of her symptomatology, it seems unlikely that she will be able to come to the point of being able to undertake any meaningful work”.
92.Mr Dooley examined the plaintiff for a final time on 20 February 2018, and provided his further report dated 1 March 2018. He confirmed his earlier opinions[1] and specifically opined that:
“I believe that these injuries will have involved some aggravation of underlying naturally occurring and age related degenerative disc disease of the spine… I remain of the view that the constancy and intensity of [the plaintiff’s] ongoing pain and her described disability are greater than one would expect to see for her organic condition. I remain of the view that she has had a psychological reaction to her situation and in my opinion this reaction significantly influences her ongoing symptoms…
From an orthopaedic point of view, I believe that the appropriate treatment for [the plaintiff] is for her to remain generally active and undertake regular low impact exercise… For her overall well being [sic], I remain of the view that it is very important for [the plaintiff] to return to suitable work… [The plaintiff] is about to begin undertaking a pain management programme…and may be referred for a second pain management programme. In my view, continuing to provide ongoing treatment in this setting only tends to reinforce the psychological component of a patient’s presentation.” (Emphasis added)
[1] In his reports dated 2 February 2016, 20 April 2016 and 19 July 2017
93.At the request of the plaintiff’s solicitors, Mr Garry Grossbard, orthopaedic surgeon, assessed the plaintiff on 6 March 2018 and provided a report dated 7 March 2018. This was the first (and only) occasion Mr Grossbard has examined the plaintiff. Mr Grossbard opined (in similar terms to Mr Dooley) that:
“[The plaintiff] describes an injury to her cervical spine following [the workplace incident]. She has probably had a soft tissue injury to her cervical spine in the presence of some pre-existing degenerative change. It is of interest [the plaintiff] did not mention her lower back pain to Dr Schachna in December 2014, and all of the discussion related to her cervical spine It is also of interest [that] [the plaintiff’s] back was X-rayed in the months prior to the incident described, suggesting there was a pre-existing back issue at the time.
I also note a diagnosis of fibromyalgia was made. This would be in keeping with the sensitivity to touch along much of the cervical and thoracolumbar area. I also note some discrepancies within the examination, particularly relating to differences in findings during the formal and informal examination and the generalised collapsing weakness in the upper limb.
With respect to [the plaintiff’s] cervical spine I believe she has had a soft tissue injury in the presence of some pre-existing degenerative change. I do not believe there has been a major spinal injury and her symptoms have to be seen in the context of other generalised findings already alluded to…
…
Irrespective of the cause, [the plaintiff’s] lumbar pain is sufficient to stop her from undertaking work where she is required to bend or lift, or remain in one position for long periods of time, particularly seated positions…
I believe [the plaintiff] does have a physical injury, but I also believe there is a functional component to the injury. She was in fact working until retrenched, and exhibits many functional signs… I noted very early on Dr Shatner had the impression of central pain sensitisation and fibromyalgia as an explanation for much of this lady’s symptomatology.” (Emphasis added)
94.Mr Grossbard was of the opinion that the plaintiff would be precluded from undertaking work that required repeated lifting, above shoulder work or being required to remain in one position for long periods.
95.He notes in his opinion that, like Mr Dooley, there was no evidence of radiculopathy. Further it was not clear to him a level of pain that the plaintiff was experiencing prior to the fall. He noted that for a CT scan to be ordered it would require a significant level of symptomatology.
96.It appears from these comments that this examiner may not have had a complete picture of the pre-accident condition of the plaintiff’s spine. This weakens his conclusions. The examiner also notes the reference to fibromyalgia but does not apportion the functional component of the injury he identifies. In closing address senior counsel for the plaintiff submitted that this opinion should be put into the mix with other opinions including that of Mr Dooley.
97.At the request of the defendant, the plaintiff was assessed by Dr Dominic Yong, specialist occupational physician. Dr Yong authored a report dated 27 March 2018 regarding the plaintiff’s capacity to return to work. In the history the plaintiff provided him she downplayed previous neck, hand shoulder and arm problems. She said she had one previous episode of low back pain many years ago.
98.He noted that the plaintiff’s “condition has been complicated by a psychological comorbidity which is requiring multiple modalities of treatment… I also note that there are features which may be suggestive of a chronic pain syndrome.”
99.He opined that:
“[The plaintiff] has a capacity to do tasks within the following restrictions:
i. Avoid repeated bending or twisting of the neck and back.
ii. Avoid repeated form pushing or pulling tasks.
iii. Vary posture regularly between sitting, standing and walking.
iv. Avoid lifting more than 4 kg on a repeated basis.
v. Reduction in working hours such as 4-hour shifts for 4 days per week.
100.Dr Yong was asked to consider whether the plaintiff could, in light of a report by ‘Recovre’ dated 7 March 2018, have the capacity to perform any of the requirements of a picker, packer, forklift driver or despatch packer.
101.Dr Yong opined that a picker would not be considered a suitable employment option as the weights the plaintiff would be required to lift would exceed 5 kilograms as would the current functional standing/waling tolerance of the plaintiff. Similarly, Dr Young opined that a forklift driver role would not be suitable for the plaintiff would be required to lift rolls of plastic wrap in excess of 15 kilograms and would require the plaintiff to be seated for sustained periods of time.
102.Dr Yong opined that roles of a packer or despatch packer would be suitable to the plaintiff as outlined in the ‘Recovre’ report, as the roles, as described, would fit within the plaintiff’s physical restrictions as outlined above.
103.Dr Young further opined that the plaintiff, after a period of approximately 6 months, could gradually increase her working hours on a progressive basis, ultimately returning to pre-injury work hours.
104.The defendant’s counsel relied strongly on this report as a nuanced assessment of the plaintiff’s employment capability for a suitable light duties position, particularly where the plaintiff in the assessment undertaken by the osteopath had indicated an ability to undertake light duties. In particular reliance was also placed on the opinion that the plaintiff could increase her working hours up to pre-injury hours, and a concession by the plaintiff in cross-exmination that she could lift items weighing 5 kg.
Assessment of physical injury examiners
105.The final report of Dr Yong is consistent with the opinions of Mr Dooley and Dr Brown. To a large extent these three opinions are similar to that of Mr Grossbard. Each make reference to a psychological condition. Each seem to suggest that from a physical viewpoint the plaintiff has a capacity for lighter employment. Further, the barrier to the plaintiff actually engaging in employment was psychological.
106.Ranged against these opinions is that of Dr Blombery and the GP that as a result of a physical condition, whether it be the neck or the back considered separately, the plaintiff is totally incapacitated for work.
Final psychiatric assessment
107.The final report tendered in evidence by the plaintiff was a report by Dr Nicholas Ingram, consultant psychiatrist, dated 26 March 2018. The plaintiff denied any previous history of psychiatric problems and there was no family history of psychiatric illness, according to the plaintiff. Dr Ingram opined that ‘there was some preoccupation with depressive themes and her pain, but there was no formal thought disorder or perceptual abnormality, and her memory, concentration and intelligence seemed normal’.
108.He noted:
“Ms Goarder’s main problem is a chronic pain. It seems there is no clear biological explanation for her pain, which suggest that she has a chronic pain disorder. This is a complex condition with biological, psychological, cultural and environmental factors all contributing to its development…”
109.Further, he opined that:
“Psychologically, [the plaintiff] seems to have become significantly depressed as a result of her pain and limitations and although there has been some improvement in her depression in the last two years with treatment, she remains mildly depressed now.
Assessment:
I feel that [the plaintiff] is suffering from a chronic adjustment disorder with depressed mood. It is also possible that she has a chronic pain disorder.
Discussion:
…
Psychologically [the plaintiff] has become depressed as a result of the pain and the limitations… I would now say she is suffering from an adjustment disorder with depressed mood rather than a major depressive disorder, as was diagnosed by Dr Weissman.
At this stage, I think it is appropriate [that] [the plaintiff] continue to see a psychiatrist… I would not consider her depression stable and feel there could be some improvement with time, especially if she is able to get back to part-time work.
In regard to work, I think her limitations in working are related to her pain and I do not think her psychological problems alone would prevent her from working, though they do have some impact on her ability to enjoy her domestic and leisure activities.
…
From a psychiatric perspective, [the plaintiff] does have capacity to perform her pre-injury duties, on a fulltime basis.” (emphasis added)
110.In the light of this report, in closing address, senior counsel for the plaintiff accepted that the plaintiff could not succeed in a claim for a certificate for loss of earning capacity for a limb (c) condition. The report, however, was relied on for a pain and suffering certificate.
Final address issues: nature and extent of physical injury
111.The plaintiff’s case, relying on the reports of Dr Blombery and Mr Grossbard and her GP, was that the plaintiff had a physical injury to her spine, aggravation of pre-existing degeneration, that was generating significant pain and incapacity that was preventing her from undertaking any employment and seriously impacting her ADL’s and social activities.
112.It was the plaintiff’s case that the medical material adequately identified the aggravation injury based on a before and after consideration of the plaintiff’s condition. The case was that notwithstanding some physical problems before June 2014 the plaintiff had been able to continue working. Now, the evidence on which the plaintiff relies indicates that she is totally incapacitated for any employment. In closing address senior counsel for the plaintiff referred to the plaintiff’s general practitioner’s opinion that the plaintiff had no capacity for employment and it was likely to be permanent. Senior counsel also referred to the opinion of Dr Ingram that the plaintiff had a capacity for full-time employment from a psychiatric perspective. Dr Ingram stated that the plaintiff’s psychological problems do have some impact on her social domestic activities. On that basis he submitted that this examiner was excluding the pain from the psychological evaluation. He submitted: “if the pain is not psychological and not taken into account in terms of the psychological evaluation, then inferentially it’s physical.”
113.Senior counsel then submitted that Mr Dooley had not grappled with Dr Blombery’s opinion regarding central sensitisation where he had opined that based on the plaintiff’s neck condition alone she was incapacitated for employment. The plaintiff was being treated for that condition over a long period and Mr Dooley had no basis to dismiss it out of hand.
114.Counsel submitted that Mr Dooley is expressing opinions specifically excluding the pain sensitisation and about the plaintiff’s physical capacity from an orthopaedic point of view: “He can’t talk about it from the psychological point of view.”
115.The defendant’s case on the other hand was that there was no organic support for an injury, and a significant psychological component to the plaintiff’s claims of pain and that this had to be stripped away for the purposes of identifying the relevant injury. On the present material that could not be done.
116.It was further the defendant’s claim that the any aggravation of her spinal condition in the incident had resolved (Dr Brown) or at most had left her able to undertake most light jobs as suggested by Mr Dooley and Dr Yong. Thus the plaintiff failed on the Petkovski v Galletti requirement.
Discussion
117.Resolution of the disputed issue on the question of the plaintiff’s physical injury is not an easy task when the medical examiners have not directly addressed contradictory other opinions. On the central issue as to whether the plaintiff’s present condition is primarily a physical or a psychological condition, the plaintiff relies strongly on the opinion of Dr Blombery that central sensitisation or fibromyalgia is a physical or limb (a) condition and that it is incapacitating the plaintiff, and was caused by the fall from the chair.
118.Implicitly, Mr Dooley does not accept that opinion. Mr Grossbard, merely notes the central pain sensitisation and fibromyalgia diagnosis. He refers to it in the same paragraph as a reference to “a functional component to the injury.” In that sense his opinion aligns with that of Mr Dooley. He certainly does not refute Mr Dooley’s opinion, although it is not clear whether he was provided with it.
119.Importantly, there is significant evidence that any physical injury is relatively minor or resolved. As noted above however Mr Dooley is of the opinion that whatever physical injury the plaintiff had suffered, the incapacitating pain of which she now complains is predominantly psychological. Further, Dr Brown is of the opinion that there is no longer any work related injury. In June 2016 it was not clear to Dr Schachna that the plaintiff’s soft tissue injury “is the cause of her current pain and disability.”
120.In reports from Dr David Barton, occupational physician, in November 2014, referred to in the report of Dr Rigby dated 1 February 2015, he refers to findings that point towards “illness behaviour”. Dr Thomas did not find illness behaviour but did refer to a psychological sequelae. He referred the plaintiff for pain management. Dr Slesenger refers, into alia, to a chronic pain disorder and psychiatric impairment.
121.Mr Grossbard notes a “functional component” but does not separate it out. I have earlier noted that he does not appear to have been fully appraised of the plaintiff’s prior back complaints.
122.The opinions I have just referred to are a formidable barrier to acceptance of the blanket opinion of Dr Blomberg that the plaintiff’s condition as a result of the June 2014 incident is properly described as a physical injury. Leaving aside the relatively limited reference by Dr Blombery to the plaintiff’s pre-incident complaints of spinal pain, which itself creates a problem in a Petkovski case, the burden of the opinions from the non-psychiatric examiners is that there is no investigatory support for the plaintiff’s alleged spinal injury. Rather, it relies on the plaintiff’s complaints of pain. The defendant argued that this means that the complainant is required to identify a physical injury and exclude psychological or psychiatric elements. On the defendant’s submission the plaintiff has not done so.
The plaintiff must strip away any psychiatric or psychological condition.
123.In closing address counsel for the defendant tendered the Second Reading Speech for a 2000 amendment to the Accident Compensation Act 1985 that indicated that a “functional overlay” could not be the basis for a serious injury claim.
124.Although not referred to in argument, since the decision in Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis [2007] VSCA 46 at [9] for the purposes of a limb (a) injury the plaintiff is required under section 134AB (38) (h) to strip away from the physical injury other conditions such as chronic pain disorder, a pain syndrome, and psychological conditions. In that case Maxwell P said:
9. For the assistance of judges, the applicable principles may be summarised as follows:
(1) Where an applicant for leave under s 134AB(16)(b) relies on physical injury – “permanent serious impairment or loss of a body function” – the Court in assessing the “pain and suffering consequences” must exclude “the psychological or psychiatric consequences” of the injury: s 134AB(38)(h).
(2) Accordingly, so far as the evidence allows, the Court must identify, and exclude from consideration, any pain and suffering consequences which cannot be shown on the balance of probabilities to have an organic or physical basis.
(3) The Court must therefore exclude any pain and suffering consequences
which result from or are a manifestation of –§Any recognised psychiatric condition (eg. depression, adjustment disorder);
§Chronic pain syndrome or disorder;
§Functional overlay;
§Exaggeration of symptoms, whether conscious or unconscious; or
§Any other aspect of the injured person’s psychological response to the physical injury.
(4) Where the Court is unable to “disentangle” the pain and suffering consequences in this way, this will ordinarily mean that the application must be refused, since the Court cannot be satisfied on the balance of probabilities that the organically-based pain and suffering consequences satisfy the statutory criterion (“more than significant or marked, and … at least very considerable”).
(5) For the assistance of the Court in deciding such matters, any medical witness who is of the opinion that there are both organic and non- organic contributors to the pain and suffering should be asked to quantify, so far as possible, the respective contributions to the pain and suffering of the organic and non-organic causes.
125.I accept the submission of the defendant’s counsel that on the material before me the plaintiff has not identified for the purpose of the Petkovski analysis a physical injury that can be considered for the purposes of an application for leave. In circumstances where the plaintiff had the significant musculoskeletal problems referred to in the evidence before the incident, had been referred to a rheumatologist, and had workplace stressors impacting on her, I do not accept Dr Blombery’s “boilerplate” opinion that following the incident she had aggravated her previously asymptomatic spinal condition and that the subsequent pain complaints can be explained as central sensitisation. The opinion notes in any event that the condition is “complicated by a generalised pain syndrome.”
126.Dr Blombery’s opinion as to a physical injury is against the weight of evidence that I referred to above that any physical or soft tissue injury sustained in the fall was relatively minor. It suffers from the further difficulty that he does not attempt to separate out, as required by Stamboulakis the psychological or psychiatric consequences that are referred to in the various opinions.
127.Senior counsel for the plaintiff in final address sought to address the absence of a sharp before and after discussion of the plaintiff’s spinal condition in the reports by referring to the fact that the plaintiff had been able to continue working up until the incident, and now, on the evidence of her doctors, and on her own evidence, was incapable of working. On that basis he submitted that she met the requirements for a serious physical injury for both loss of earning capacity and pain and suffering. He relied on the opinion of Mr Grossbard that the plaintiff was now incapable of working as a result of her neck condition. He submitted that regardless of the reference to “a functional component to the injury” this examiner was expressing an opinion of what she is physically capable of now, as was Mr Dooley. This applied even if the examiner had not been provided with an adequate history as to prior complaints to her neck and back. He submitted that the real issue, at the end of the day, was the plaintiff’s work capacity. He submitted that each of the conditions of the plaintiff’s neck and lumbar spine was sufficient to prevent her undertaking physical work.
128.The defendant’s submission was that given, for the purpose of a limb (a) injury the plaintiff must exclude any psychological and psychiatric condition, the evidence supports a conclusion that the plaintiff retains a significant capacity for work. He referred to concessions by the plaintiff that if she just had a back condition she would be able to do light duties and similarly in relation to a wrist condition and that it is her neck problem that stops her. He relies on the opinion of Dr Brown to the effect that the plaintiff has the capacity to return to her pre-injury duties and hours. He then submits that Dr Yong has identified two occupations that the plaintiff could undertake. He thus submitted that the plaintiff retained a sufficient capacity to achieve at least 60% of her pre–injury wage. Thus she could not succeed in a loss of earning capacity certificate. He submitted that given concessions the plaintiff made under cross-examination as to her standing capacity, and the Courts own observations of her ability to remain seated for significant periods, her evidence that she would not be able to cope with a light duties position should not be accepted. Further she had conceded that she could lift 5 kg weights. He invited the Court to find that the plaintiff’s complaints of pain and incapacity should be seen as unreliable and not provide a basis to find that she had suffered a significant reduction in her earning capacity.
129.The plaintiff’s response was that while she may have had complaints of pain and short periods off work before this incident, now on the basis of the opinions of her GP, Dr Blombery and Mr Grossbard she was now did not have any realistic capacity for employment. Counsel relied on the case of Richter v Driscoll [2016] VSCA 142 at [95]-[97] in support. He submitted that the plaintiff had no saleable commodity. He referred to the opinion of Dr Yong she would need to commence with limited hours, she has only worked in factories, and that it is just unrealistic to suggest she is capable of employment.
Conclusion: plaintiff fails on her onus to strip away psychological condition
130.I accept the defendant’s submission that the plaintiff has failed to strip away, as required by Stamboulakis, the pain and suffering and loss of earning capacity consequences of the various conditions identified in the medical reports such as chronic pain syndrome, functional overlay and exaggeration of symptoms. On the plaintiff’s own evidence she was prepared to give a number of work like activities a try. She has engaged in courses to attempt to redeploy her labour. The non-psychiatric medical examiners, save for her GP and Dr Blombery, all referred to a relatively minor physical injury. The report of Dr Ingram, a psychiatrist, indicates that from a psychiatric viewpoint the plaintiff has the capacity to perform her pre-injury duties.
131.Putting all the evidence together, it is only the plaintiff’s subjective complaints of pain that are preventing her from the capacity to engage in full-time employment. That was the early opinion of Dr Brown which I accept.
132.It is also the implicit opinion of Mr Dooley who is not prepared to accept the diagnosis of fibromyalgia. The general practitioner had opined in 2016 that the plaintiff would be suitable for part-time work and maybe to increase the number of hours in the future. That is the present opinion of Dr Yong, yet for no properly expressed reasons her GP is now of the opinion that the plaintiff is totally incapacitated for work.
133.I do not accept the senior counsel’s submission that the plaintiff’s credit should be accepted. As noted by Dr Barton there was “illness behaviour”. Mr Grossbard referred to “discrepancies” and Dr Brown to “inconsistencies”.
134.To these observations should be added what appears to be incomplete histories as to prior musculoskeletal issues provided to a number of examiners which undermines the Petkovski obligation of the plaintiff. Similarly as I have noted above there was an understatement of the prior psychological and emotional problems to psychiatric examiners. The plaintiff’s claimed incapacity for employment relates to her own complaints of pain.
135.Considering the evidence as a whole, I accept the defendant’s submissions. The plaintiff has not satisfied me that she has sustained pain and suffering consequences that are at least very considerable as a result of the June 2014 incident.
136.Similarly I am not satisfied that she has sustained a 40% reduction in her earning capacity. I accept that she has not obtained further employment but I do not accept that she is made any sustained effort to apply for positions within her physical capacity.
Limb (c) claim
137.In closing address senior counsel for the plaintiff did not press her claim for a loss of earning capacity certificate. This would be difficult given the opinion of Dr Ingram that the plaintiff, from a psychiatric viewpoint, would be able to return to employment.
138.The claim was, however, somewhat faintly pressed for a pain and suffering certificate on the basis that the plaintiff had been under psychiatric care since the incident and was taking psychiatric medication.
139.Dr Ingram notes that the plaintiff psychological problems “do have some impact on her ability to enjoy and engage in her domestic and recreational activities.” He also notes that the plaintiff’s psychological problems largely depend on what happens with her pain, “although I think there might be some further improvement if she were able to find part-time employment.” He described the plaintiff as mildly depressed.
140.Given his opinion that the plaintiff’s psychological condition does not impair her capacity to perform her pre-injury duties, it is difficult to see how, on the basis submitted by the plaintiff’s senior counsel, the plaintiff’s psychiatric condition could be described as “severe.”
141.The relatively mild nature of the plaintiff’s condition at present as identified by Dr Ingram is not surprising given the earlier opinion of Dr Shan in his final report of 28 April 2016 where he opined that the plaintiff did not have a work-related psychiatric condition. He was also of the opinion that clinical judgement was required to be exercised in relation to the plaintiff. As I have noted, in his final report of 30 August 2016 Prof Doherty, relying on the opinion of Dr Brown, was of the view that, from a psychiatric point of view, the plaintiff could return to her pre-injury duties. He was also of the opinion that the plaintiff was being over medicalised at that point.
142.A final matter to consider is the overall demeanour of the plaintiff. She did not appear significantly depressed when giving her evidence over an extended period. Further, in evidence were a number of sparkling photos, some of which had been prepared as part of a training course undertaken by her.
143.Having considered all the psychiatric evidence I am not satisfied that the plaintiff psychiatric condition could be described as “severe.” Certainly the pain and suffering consequences of which she complains do not meet the “at least very considerable” test.
144.The plaintiff fails in her limb (c) claim.
145.I will hear the parties on appropriate orders.
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