Gonzales v Australia Teng Long Investment Management Pty Ltd
[2018] VCC 101
•21 March 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CI-17-01053
| JOSEPH GONZALES | Plaintiff |
| v | |
| AUSTRALIA TENG LONG INVESTMENT & MANAGEMENT PTY LTD | First Defendant |
| AND | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
---
JUDGE: | HER HONOUR JUDGE TSALAMANDRIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 & 2 February 2018 | |
DATE OF JUDGMENT: | 21 March 2018 | |
CASE MAY BE CITED AS: | Gonzales v Australia Teng Long Investment Management Pty Ltd & Anor | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 101 | |
REASONS FOR JUDGMENT
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the neck – complex regional pain syndrome (the injury) – credit – inconsistent medical histories – pain and suffering only
Legislation Cited: Accident Compensation Act 1985
Cases Cited:Ansett v Taylor [2006] VSCA 171; Ifka v Shahin Enterprises Pty Ltd [2014] VSCA 8; Sednaoui v Armac Corrosion Protection Pty Ltd [2017] VSCA 66; Fokas v Staff Australia Pty Ltd [2013] VSCA 230; Peak Engineering Pty Ltd v Victorian WorkCover Authority [2014] VSCA 67; Grech v Orica Australia Pty Ltd [2006] VSCA 172; Dressing v Porter [2006] VSCA 216; Haden Engineering Pty Ltd v McKinnon [2010] 31 VR 1; Davidson v TAC [2015] VSCA 12.
Judgment: Application successful in regards to the neck injury only
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Crennan QC with Mr S Smith | Slater & Gordon |
| For the Defendant | Mr C Harrison QC with Ms K Manning | Wisewould Mahoney |
HER HONOUR:
Preliminary
1 On 15 July 2012, Mr Gonzales was injured during renovations to a restaurant where he was employed to work as a chef. One of the painters involved in the renovation fell from a ladder which resulted in Mr Gonzales’ right hand being caught between the ladder and a power saw. As a consequence of this accident, Mr Gonzales claims that he suffered an injury to his neck, right arm and hand, as well as having subsequently developed chronic regional pain syndrome, together with a psychiatric condition.
2 Mr Gonzales claims that his neck injury has impaired the functioning of his cervical spine, causing him serious consequences in respect of pain and suffering. Mr Gonzales also claims that he suffers chronic regional pain syndrome in his right hand and arm, and that the impairment to his right upper limb also causes him serious consequences. In order for Mr Gonzales to be entitled to claim common law damages for his pain and suffering, the impairment to his spine and/or right upper limb must satisfy paragraph (a) of the definition of “serious injury” contained in s134AB(37) of the Accident Compensation Act 1985. (“ACA”)
3 Mr Gonzales also claims to suffer a psychiatric condition as a result of the workplace accident, the consequences of which satisfy paragraph (c) of the definition of serious injury contained in s134AB(37) of the ACA.
4 The defendant accepts that Mr Gonzales suffered a fracture to his right hand in the workplace accident, but disputes that it caused him to suffer an injury to his neck, or a complex regional pain syndrome in his right arm or a psychiatric condition. The defendant also sought to challenge his claim on the basis that Mr Gonzales was an entirely unreliable witness, such that I should not be satisfied he suffers the consequences of which he claims in relation to either his physical or psychiatric injury.
5 Only Mr Gonzales was called to give evidence and he was cross-examined at length. Also in evidence were medical reports and other material. I have read these tendered documents, together with the transcript of the proceedings. I shall not refer to all of that material in the course of this judgment, but rather to those parts of the evidence and reports which I consider necessary to give context to and explain the conclusions reached in my judgment.
6 For the reasons which follow, I am satisfied that Mr Gonzales suffered an injury to his neck in the workplace accident. Notwithstanding my conclusion that he is an entirely unreliable witness, I am of the opinion that the objective evidence in this case is sufficient to satisfy me that the pain and suffering consequences to Mr Gonzales from his neck impairment can be described as at least very considerable. However, I am not satisfied that Mr Gonzales suffers any ongoing physical injury in respect of his right arm and, due to his unreliability, Mr Gonzales has not satisfied me that any psychiatric condition he suffers is related to the workplace accident.
Mr Gonzales’ life before the workplace accident
7 It is difficult to provide an accurate account of Mr Gonzales’ life prior to the workplace accident as he gave varying accounts to numerous doctors as to when he arrived in Australia, the nature of his childhood relationship with his family, when he left school, what post-secondary education he undertook, what jobs he performed, what medical symptoms and complaints he claimed to suffer, what medication he took and the reason for which he took it.
8 Mr Gonzales is 41 years of age and was born in the Philippines. He told various doctors at various times that he arrived in Australia at either 6, 9 or 11 years of age. Mr Gonzales sought to explain this discrepancy on the basis that he told doctors differing ages as he wanted his partner’s family to accept him. In his oral evidence. Mr Gonzales said he arrived in Australia at nine years of age.
9 Mr Gonzales’ father died when he was young and his mother subsequently re-married. Mr Gonzales said that his family moved around a lot when he was young. At one stage Mr Gonzales claimed that his stepfather was a High Court Judge in Canberra, before later admitting in cross-examination, that this was incorrect.
10 Mr Gonzales said that he moved out of home at 15 years of age, but that he continued to attend De La Salle College in Sydney, where the school fees were $43,000 per year. Mr Gonzales said that his mother paid part of those fees, but he was able to pay about 15 per cent of them by working part-time. Mr Gonzales initially said that he had passed Year 12, but later said that he had received an overall mark of 43 per cent, and that he was unsure whether or not that constituted a pass. In cross examination, Mr Gonzales said that he was embarrassed about this mark.
11 Mr Gonzales was previously married. Some of the medical records refer to him having four children with a wife in the Philippines, whereas other records refer to him having two children there. In July 2011, Mr Gonzales had a child with his then de facto partner, but he has no access to that child. In early 2012, Mr Gonzales commenced his current relationship with Helene Andrewartha.
12 Mr Gonzales told numerous doctors that he had obtained degrees in both physics and engineering. In cross-examination, Mr Gonzales admitted this was incorrect. Mr Gonzales also told a vocational assessor that he could teach quantum physics if he chose, before later admitting in cross-examination that this was incorrect.
13 Mr Gonzales claims that he completed a TAFE course in hospitality management, before subsequently completing an apprenticeship as a chef. He told numerous doctors that he had worked as head chef for the President of the Philippines, and that he had been a consultant to the Sultan of Brunei. In cross-examination Mr Gonzales admitted that neither statement was correct.
14 It was difficult to obtain an accurate history as to whether, and if so where, Mr Gonzales obtained this chef qualification, and where, how often, and in what capacity he had actually worked prior to the workplace accident.
15 Mr Gonzales claimed that in the year prior to the workplace accident, he was working 14-16 hours a day as a chef, and that at one stage he worked as head chef for Spotless, supervising a team of up to 2,000 people.
16 As a chef, Mr Gonzales said that his hourly rate was between $21-$25, although he sometimes earned up to $35 an hour. In the 2010/2011 financial year, Mr Gonzales earned total gross wages of $3,672, including $2,466 from Spotless. His other income was earned from four other employers.
17 In the 2011/2012 financial year, Mr Gonzales earned total gross income of $5,517, including $92 from Spotless. The balance of his income in that year came from five other employers.
18 In cross-examination, Mr Gonzales accepted these sums as accurate. However, when asked to reconcile such low wages with his claim of working up to 16 hours a day, Mr Gonzales said that he loved working as a chef so much, that he worked for free.
19 Mr Gonzales was cross-examined at length about his past medical history and, in particular, his attendances on doctors in the 15 months prior to the workplace accident.
20 In May 2011, whilst living in Adelaide, Mr Gonzales attended the Morphettville Medical Centre in Glenelg East. At his first attendance on 2 May 2011, it was noted that he complained of loud snoring and morning stiffness in both of his hands, whilst working as a chef. In cross-examination, Mr Gonzales accepted that he would have told his general practitioner this.
21 On 20 May 2011, Mr Gonzales consulted Dr Michael Chen, at the Morphettville Medical Centre. Dr Chen noted the following:
“Roll and crash as race car driver.
Day fatigue … had used Prozac, Lithium and Valium – did not work.
Works as head chef.
Fatigue in day can’t sleep at night.
Sleeps well with Valium at night but sleeping day as well.”
22 At that time, Dr Chen prescribed Modavigil.
23 Mr Gonzales was cross-examined about this consultation. He denied that he had been injured as a race car driver, stating instead that the accident to which Dr Chen referred was a go-cart accident. Mr Gonzales also accepted that he had taken Prozac, Lithium and Valium at times.
24 On 31 May 2011, Mr Gonzales consulted Dr Vince Signoriello, at the Morphettville Medical Centre. He obtained a history of depression and chronic insomnia. In cross-examination, Mr Gonzales accepted this past history. The record also referred to Mr Gonzales having been involved in a professional car racing accident in Sydney, after which he had seen a psychiatrist. Mr Gonzales said that he had not previously consulted a psychiatrist.
25 On 7 June 2011, Mr Gonzales consulted Dr Signoriello who diagnosed him as Hepatitis C positive. At that time, Dr Signoriello enquired of Mr Gonzales the possible source of his hepatitis. The clinical records noted that Mr Gonzales had obtained tattoos in Australia, Hong Kong and Thailand. However, in cross-examination, Mr Gonzales said he only ever obtained a tattoo in Sydney. The records also referred to Mr Gonzales undergoing a previous blood transfusion whilst in the Philippines five years earlier. In cross-examination, Mr Gonzales said he could not recall that transfusion.
26 On 12 June 2011, Mr Gonzales consulted Dr Signoriello, who again enquired as to the source of his hepatitis. The records referred to brief intravenous drug use, but noted that Mr Gonzales had not shared needles. In cross-examination, Mr Gonzales denied that he had ever taken intravenous drugs. Dr Signoriello also referred to Mr Gonzales having obtained a tattoo in Thailand. Again, Mr Gonzales denied the accuracy of the record.
27 On 20 June 2011, Mr Gonzales consulted Dr Signoriello. On this occasion, Dr Signoriello recorded that Mr Gonzales had undergone a blood transfusion whilst in Manilla. In cross-examination Mr Gonzales denied the accuracy of the record.
28 On 23 June 2011, Mr Gonzales consulted Dr Benny Tang, at the Morphettville Medical Centre. It was noted that Mr Gonzales sought a script for Modavigil, as he had suffered narcolepsy following a car accident, and that he also required Temaze to help him sleep.
29 On 1 July 2011, Mr Gonzales re-attended upon Dr Tang, who noted that Mr Gonzales was not sleeping whilst taking the Modavigil. It was noted that Mr Gonzales was working 14-16 hours a day, that he had difficulty sleeping and that the Temaze was not assisting. Mr Gonzales then sought Alodorm to help him sleep.
30 On 17 July 2011, Mr Gonzales consulted upon Dr Signoriello, who noted that he was under stress and suffering anxiety in relation to his work. It was noted that he was not sleeping, that he was experiencing anger at work and that he was frustrated.
31 On 25 July 2011, whilst being treated for his Hepatitis C, Mr Gonzales was examined by sexual health physician, Dr Russell Waddell, at the Infectious Disease Clinic in Flinders Private Hospital. Dr Waddell, in attempting to identify the possible source of Mr Gonzales’ Hepatitis C, obtained the following history:
“NVA 1993 blood transfusion Sydney;
Steroid use X1 when bodybuilder;
Cocaine 1995-1999. Sydney No ID VU;
Alcohol +++ at that time. Tattoos Hong Kong;
Gastric bleed 2005 transfusion Philippines.”
32 In cross-examination, Mr Gonzales said that he believed Dr Waddell had obtained the above history from another medical clinic.
33 Dr Waddell also noted that Mr Gonzales, following a motor vehicle accident, had consulted a psychiatrist whilst overseas and was diagnosed with Post Traumatic Stress Disorder. In cross-examination, Mr Gonzales denied this and said that he had self-diagnosed the Post Traumatic Stress Disorder.
34 Dr Waddell also noted that Mr Gonzales had a bullet wound in his upper abdomen from a robbery in the Philippines. The medical record contained a hand-drawn diagram indicating the location of the bullet wound on Mr Gonzales’ body. However, Mr Gonzales denied that he had any such scar on his body.
35 Dr Waddell also noted that Mr Gonzales had been involved in a motor vehicle accident when he was 16 years old, and that since then he tended to fall asleep easily. In cross-examination, Mr Gonzales again insisted that it was not a motor vehicle accident but instead a go-cart accident.
36 On 3 August 2011, Mr Gonzales saw Dr Tang and sought further prescriptions for Alodorm, Modavigil, as well as Celebrex. At that time, Dr Tang considered that Mr Gonzales needed to see a sleep physician.
37 On 13 August 2011, Mr Gonzales consulted upon Dr James Liew, at the Morphettville Medical Centre. He obtained a history from Mr Gonzales that he suffered “insomnia++”. In cross-examination, Mr Gonzales accepted that he was having sleeping problems at that time.
38 On 30 August 2011, Mr Gonzales consulted Dr M Mirza, at the Morphettville Medical Centre. On this attendance, it was noted that Mr Gonzales was being treated with Interferon for his Hepatitis C and that he wanted antidepressants. He was then prescribed Effexor, as well as Alodorm. When cross-examined about this consultation, Mr Gonzales said that, at that time in his life, Interferon was the worst thing that had happened to him. He said it had resulted in sleep problems and that he felt depressed. Mr Gonzales claimed that although he was prescribed Effexor at that time, he did not take it.
39 On 1 September 2011, Mr Gonzales attended Dr Alex Makone at the Morphettville Medical Centre and complained of insomnia. He was prescribed Hypnodorm.
40 On 18 October 2011, psychiatrist, Dr Andrew Beckwith, examined Mr Gonzales. In a report to Dr Waddell, he noted that Mr Gonzales reported having previously been admitted for psychiatric treatment in the Philippines for depression and possibly bipolar mood. At that time, he had been treated with Fluoxetine (Prozac) and Lithium.
41 In cross-examination, Mr Gonzales accepted that it was “probably” correct that he had taken such medication in the past. Mr Gonzales said that he self-diagnosed himself as suffering depression as he was “feeling down and not happy.”
42 Dr Beckwith also noted that Mr Gonzales described a disturbed sleep/wake cycle, for which he had been prescribed Modavigil for daytime stimulation and Benzodiazepines to help him sleep at night. It was noted that Mr Gonzales’ sleep difficulties were secondary to a motor vehicle accident 20 years ago.
43 In cross-examination, Mr Gonzales said that this was a lie. He said that he had sleep problems as a result of the long hours he worked as a chef, and that he took Modavigil to keep him awake whilst at work and then Benzodiazepines to put him to sleep.
44 Dr Beckwith also obtained a history from Mr Gonzales that since commencing Interferon for his Hepatitis C, he had developed irritability, worsening sleep and difficulties in concentration.
45 On 13 November 2011, Mr Gonzales consulted Dr Tang, who noted that Mr Gonzales had been “prescription shopping” between 1 August 2011 and 31 October 2011, and that he had obtained Nitrazepam from seven doctors at the Morphettville Medical Centre. It was noted that he was taking Alodorm for anxiety and also Hypnodorm.
46 In cross-examination, Mr Gonzales said that he could not recall any discussion in which Dr Tang had raised concerns that Mr Gonzales was “prescription shopping”.
47 On 14 November 2011, Dr Waddell re-examined Mr Gonzales in relation to ongoing treatment of his Hepatatis. In a letter to Mr Gonzales’ general practitioner at the Morphettville Medical Clinic dated that same day, Dr Waddell noted the following:
“At the last minute he reported accidentally as he seems to do in consultations that there was loss of all sensation in his right arm. He is right handed but he has full movement and deep tendon reflexes are equal in both upper and lower limbs, left and right, but subjective sensations of light touch and pinprick there was no response. In fact, I accidentally scratched his arm while doing the pinprick tests. The position sense was variable and was inconsistent. I’m not sure what is causing this symptom. Given all his other psychiatric issues at the present time I wonder if this is not some form of hysterical conversion. I will make a neurology referral.”
48 Mr Gonzales was cross-examined regarding this aspect of Dr Waddell’s report. Mr Gonzales said that he is left handed and denied telling Dr Waddell that he was right handed. Further, Mr Gonzales said that he could not recall this incident, and he wanted to talk to Dr Waddell about his letter.
49 Upon further cross-examination, Mr Gonzales denied that he had ever experienced a total loss of sensation in either his left or right arm. When asked by Mr Harrison if he had lied to Dr Waddell in response to the pinprick test that had been performed, Mr Gonzales denied that he had.
50 On 16 February 2012, Mr Gonzales attended Dr Tang, who noted that Mr Gonzales had blacked-out in the week earlier while computer programing and that he had felt breathless and heavy in the right side of his shoulder. Dr Tang considered that his condition was related to either stress or high blood pressure. Mr Gonzales said he could not recall this attendance.
51 On 29 May 2012, Mr Gonzales consulted Dr Liew, who noted that Mr Gonzales was moving to Melbourne and needed medication. Dr Liew also accepted that Mr Gonzales complained of “back of neck aches sometimes with heavy shoulders”. It was noted that such symptoms lasted for half an hour. In cross-examination, Mr Gonzales accepted that history as correct. At that time, Mr Gonzales was prescribed Alodorm, Hypnodorm, Norvasc and Viagra.
The workplace accident and its claimed consequences
52 In June 2012, Mr Gonzales commenced working for the defendant as a chef at the Ocean Hut restaurant in Kew.
53 For a period in July 2012, the restaurant was closed for renovations, during which time Mr Gonzales lived upstairs with his partner, Helene. On 15 July 2012, Mr Gonzales said that he was assisting with the renovations when a painter, who was up a ladder, fell towards a power saw. Whilst trying to push the painter away from the power saw, Mr Gonzales said that his right hand got crushed between the ladder and the power saw.
54 Mr Gonzales said that he experienced strong pain in his right hand after the accident such that he was taken by the defendant to St Vincent’s Hospital. He said that after waiting there about 20 minutes, his employer was not willing to wait any longer, and therefore they returned to the restaurant.
55 On 18 July 2012, Mr Gonzales attended general practitioner, Dr Anjana Arunachalam, at the Kew Junction Medical Clinic. The clinical note of the attendance recorded that Mr Gonzales reported that he suffered narcolepsy following an injury from a car accident. Mr Gonzales said that he lied about the car accident in order to get Alodorm and Hypnodorm.
56 On this date, Dr Arunachalam also noted that Mr Gonzales had a tender fifth metacarpal following a ladder having fallen on his hand. He recommended an x-ray be performed.
57 On 30 July 2012, Mr Gonzales re-attended upon Dr Arunachalam, who noted that Mr Gonzales’ finger was fractured. However, it is not apparent from the tendered medical records whether or not an x-ray had been performed at that time. Mr Gonzales also obtained a prescription for Norvasc, which he said he required for his food allergies.
58 On 22 August 2012, Mr Gonzales attended general practitioner, Dr Glen Koski, at the Kew Junction Medical Clinic. The clinical note from this attendance referred to Mr Gonzales suffering anxiety and insomnia. Dr Koski referred Mr Gonzales to have an x-ray of his right hand, which noted that there was a healing transverse fracture involving the distal shaft/neck of the right fifth metacarpal bone.
59 Mr Gonzales continued to consult Dr Koski from time to time in the following months.
60 On 10 October 2012, Mr Gonzales obtained hand therapy from Ms Cathy Beckwith at Caulfield Hospital. Ms Beckwith noted that Mr Gonzales had suffered an injury to his right, non-dominant forearm and that he complained of difficulty using his right hand due to pain and stiffness, and that he had difficulty sleeping. Ms Beckwith noted that there was generalised oedema, distal to the wrist but she did not note any dystrophic changes.
61 On 18 October 2012, Mr Gonzales consulted Dr Koski, who then prescribed Voltaren medication for his “pain”.
62 On 26 October 2012, Mr Gonzales re-attended Caulfield Hospital. On this occasion, he was reviewed by hand therapist, Jane Aitken. She noted that Mr Gonzales pointed to multiple areas in his hand and forearm, where he described severe pain, which she considered to be disproportionate to the injury. She noted that he was uncooperative with her assessment of his pain, and his range of motion and function. Ms Aitken noted that Mr Gonzales maintained a tight-fisted position and was unwilling to engage in therapy. She considered Mr Gonzales to be an unsuitable candidate for hand therapy.
63 Mr Gonzales consulted Dr Koski on 29 October 2012, 2 November and 20 November 2012. On 29 October, Mr Gonzales complained of a migraine and was prescribed Imigran and Hypnodorm. On 2 November, Mr Gonzales discussed his WorkCover claim, and Dr Koski considered that Mr Gonzales was suffering depression and prescribed Lexapro. On 20 November 2012, Dr Koski, referred Mr Gonzales to the Caulfield Pain Management Clinic.
64 On 23 January 2013, Mr Gonzales was reviewed by pain specialist, Dr Kerry Thompson, at Caulfield Hospital. Dr Thompson obtained a history from Mr Gonzales as to his right hand injury, and noted that he said his hand had been swollen since the accident, especially with movement. She noted that Mr Gonzales wore a compression stocking on his hand most days, and that he had noticed occasional discolouration of his hand to a red or blue colour, especially in the morning.
65 Dr Thompson also noted that Mr Gonzales reported pain radiating up the arm to the shoulder, which caused headaches and a numb face. She noted that he described an occasional stabbing pain in the shoulder.
66 Dr Thompson then conducted a neurological examination and noted that power was reduced in Mr Gonzales’ right side due to pain. She also noted that his reflexes were reduced in the right C5-6 distribution, but normal in C6-7. Dr Thompson recommended that a CT scan be taken of Mr Gonzales’ cervical spine to investigate his upper limb symptoms.
67 On 5 March 2013, Mr Gonzales again consulted Dr Koski, who noted a complaint of “regional pain”. At that time, he prescribed Lyrica, together with Alodorm and Hypnodorm.
68 On 7 March 2013, a CT scan was taken of Mr Gonzales’ neck. It was reported as demonstrating a mild C5-6 cervical canal stenosis, secondary to a central and right C5-6 disc prolapse. It was recommended that an MRI scan be performed to identify any nerve root impingement.
69 On 28 March 2013, Mr Gonzales consulted Dr Koski and complained of severe pain in the left side of the back of his head and neck. When cross-examined about this entry, Mr Gonzales denied that it was the first time he had mentioned neck pain to Dr Koski. Mr Gonzales said that he first told Dr Koski about his neck pain at the time he commenced seeing him in around August 2012.
70 On 22 April 2013, an MRI scan was taken of Mr Gonzales’ cervical spine. It was reported as demonstrating a mild C5-6 cervical canal stenosis secondary to a focal right C5-6 disc prolapse with impingement of the right C6 nerve root within the right lateral recess. No cord impingement was detected.
71 On 22 May 2013, Mr Gonzales was referred by Dr Thompson to neurosurgeon, Mr Patrick Chan. Mr Chan obtained a history of the workplace accident and the pain Mr Gonzales had suffered in his right hand thereafter. He then obtained a history that “the pain gradually extended from his right hand along his right upper limb into his right neck associated with cervicogenic headache”. Mr Chan considered the pain pattern was “clearly radicular in nature with neuropathic component”. Mr Chan reviewed the MRI scan and considered that there was an organic compression on the nerve root.
72 On 6 June 2013, Mr Chan administered a right C5-6 trans-foraminal cortisone injection to Mr Gonzales.
73 On 17 July 2013, Mr Chan reviewed Mr Gonzales and was of the opinion that he had suffered right cervical brachialgia since the work injury. Mr Chan noted that whilst Mr Gonzales presented with symptoms consistent with chronic regional pain syndrome, he also considered there to be a significant organic pathology with right C5-6 disc protrusion completely obliterating the right C5-6 exit foramina with severe compression of right C6 nerve root. In such circumstances, Mr Chan recommended a C5-6 anterior-cervical discectomy and fusion.
74 Throughout this period, Mr Gonzales obtained a multitude of different medications from doctors at the Kew Junction Medical Clinic. Such medications included: Modafinil, Hypnodorm, Alodorm, Voltaren, Imigran, Norvasc, Mobic, Lyrica, Pregabalin, Orudis and Tramal.
75 In July 2013, Mr Gonzales commenced attending the Prahran Market Medical Clinic, where he predominantly consulted Dr Hsin-Hua Liu.
76 From 8 July 2013 until 10 September 2015, Mr Gonzales obtained a range of medication from doctors at the Prahran Market Medical Clinic. Such medications included: OxyContin, Norspan, Endone, Topamax, Neurontin, Zoton, Norvasc, Mersyndol Forte, Valium, Panamax, Imigran, Temazepam, Viagra, Xanax and Alodorm.
77 On 21 August 2013, Mr Gonzales was reviewed by orthopaedic hand surgeon, Mr Stephen Tham. At that time it was noted that Mr Gonzales complained of constant pain in his right hand, which worsened with activities of daily living. Mr Tham considered that there were radiological features in his wrist consistent with arthritis of the distal radioulnar joint. However, Mr Tham did not consider such changes to be the cause of Mr Gonzales’ diffuse wrist symptoms and concluded that such symptoms were suggestive of complex regional pain syndrome.
78 On 2 October 2013, Mr Gonzales consulted Dr Liu for the purpose of obtaining a disability parking form from his local council. In an extract of his notes, Dr Liu set out a questionnaire answer from Mr Gonzales to the WorkCover insurer. The extract included a long and very detailed first person account of a collision, in an unofficial drag race, which had occurred at Sydney’s Eastern Creek Raceway in 1994 or 1995. It was noted that the accident was never reported and that Mr Gonzales had only suffered minor cuts and bruises to his legs.
79 When this extract was put to Mr Gonzales in cross-examination, he said that it was “very fictional”, but that he was unsure whether he made it up.
80 On 2 December 2013, Mr Chan performed the discectomy and fusion on Mr Gonzales. In the surgery, a large right foraminal disc protrusion at C5-6 level was removed.
81 On 17 December 2013, Mr Gonzales underwent an x-ray of his right hand and wrist. The x-ray report noted that there was a slight deformity and shortening of the neck of the fifth metacarpal, which was consistent with a healed fracture.
82 In January 2014, Mr Gonzales attended on psychologist, Dr Jarred Pennington. Dr Pennington diagnosed Mr Gonzales as suffering generalized anxiety disorder and major depressive episode.
83 On 22 January 2014, Mr Gonzales attended the Caulfield Pain Management & Research Centre and was reviewed by a consultant in rehabilitation medicine, Dr Jason Teh. Dr Teh obtained a history that Mr Gonzales had undergone a cervical discectomy and fusion, but that he was still complaining of pain radiating down the right upper limb. On examination, Dr Teh noted that Mr Gonzales was exhibiting some pain behaviours with features of hypersensitivity in the right upper limb suggestive of a sensitisation mechanism. Dr Teh considered that Mr Gonzales was likely to suffer neurogenic pain syndrome and recommended that an attempt be made to wean down Mr Gonzales from his narcotic analgesia.
84 On 5 February 2014, Mr Gonzales was reviewed by Dr Adam Willoughby at The Alfred Hospital’s neurosurgical clinic. He noted that Mr Gonzales reported some improvement in his symptoms, but that he still suffered ongoing pain in his right upper limb.
85 On 12 February 2014, Mr Gonzales commenced treatment with physiotherapist, Mr Rick Gole. In his report dated 20 May 2014, Mr Gole noted that Mr Gonzales complained of constant headache, with right sided neck and upper back pain, radiating to the whole length of his right arm. Mr Gole considered that Mr Gonzales was suffering atypical chronic regional pain syndrome. He stated that his score in the Orebro musculoskeletal pain questionnaire was 197, and said that he had never before encountered a patient with such a high score. Mr Gole also noted that Mr Gonzales often missed his appointments and that he gained minimal subjective and objective improvement from the treatment. Mr Gole discharged Mr Gonzales from his care on 8 May 2014.
86 In March 2014, Dr Liu referred Mr Gonzales to neurologist, Dr Jack Wodak, in relation to pain in his neck and “loss of use of his right arm”. Dr Wodak noted that on examination, Mr Gonzales had almost no cervical movement, but that he had a far greater range of movement when dressing, and climbing on and off the examination couch. Dr Wodak then noted there was no difference in appearance of temperature of his arms, and no muscle wasting. Dr Wodak considered that Mr Gonzales demonstrated “clear and unequivocal non-organic signs” and did not recommend any treatment.
87 On 23 July 2014, Mr Chan reviewed Mr Gonzales and noted that he continued to complain of recurrent right upper limb pain. Mr Chan then organised for a further MRI scan to be taken. He also arranged for Mr Gonzales to be reviewed by pain specialist, Dr Vallipuram.
88 On 28 July 2014, further MRI and CT scans were performed, which Mr Chan considered to demonstrate evidence of the previous neck surgery, with no further neural compression or surgical sequelae noted.
89 In November 2014, Dr Liu arranged for Mr Gonzales to be assessed by pain management specialist, Dr Clayton Thomas. In his report dated 23 February 2015, Dr Thomas noted that Mr Gonzales “almost certainly” had a chronic pain syndrome involving his right upper limb and said that it was “hard to know what the underlying residual nociceptive problem was”. Dr Thomas considered that Mr Gonzales was totally incapacitated for work.
90 In February 2015, Mr Gonzales underwent a ketamine infusion procedure at the Melbourne Pain Group. Mr Gonzales said that he was in hospital for approximately four days whilst he underwent this procedure and that he did not find that it reduced his pain levels.
91 Throughout 2015, whilst under the care of the Melbourne Pain Group, Mr Gonzales attended sessions with psychiatrist, Dr Tom Eimany, and consultant pain specialist, Dr Peter Courtney.
92 Between 20 August and 10 September 2015, Mr Gonzales was admitted as an inpatient to The Alfred Hospital’s psychiatric ward.
93 In about September 2015, Mr Gonzales moved back to Adelaide, where he had previously lived with his partner, Helene. Whilst in Adelaide, Mr Gonzales consulted general practitioner, Dr Emmanuel Afari, at the Morphettville Medical Centre.
94 On 23 September 2015, Mr Gonzales underwent an x-ray and MRI of his right wrist. In the report dated 23 September 2015, it was noted that there was an old fracture of the fifth metacarpal neck with modelling deformity at the distal radius laterally at the level of the physis, which may be related to an old fracture also. Degenerative changes were also seen in the distal radioulnar joint, triscaphe joint and first CMC joint.
95 On 12 November 2015, Dr Afari referred Mr Gonzales to orthopaedic surgeon, Dr Ted Mah. Dr Mah obtained a history of the workplace accident and, on examination, noted that Mr Gonzales showed wasting of the right whole upper limb and stiffness of the right wrist and right hand. Dr Mah noted that the MRI scan showed that Mr Gonzales had a healed right distal fracture, and stated that the plan of management was for him to undergo hand therapy and attend a pain management clinic.
96 On 14 January 2016, Mr Gonzales was examined by immunology/allergy resident, Dr Scott Lorensini at Flinders Medical Centre. Dr Lorensini examined Mr Gonzales in relation to many years of “uncharacteristic reactions to certain foods”, including red meat, shellfish, molluscs, chilli and all types of nuts. It was noted that when he ingested such food, Mr Gonzales experienced swelling of his hands and feet and that he could, at times, collapse. It was noted that despite such severe sounding reactions, Mr Gonzales continued to ingest all the aforementioned food groups.
97 When Mr Gonzales was cross-examined in relation to his food allergies, he said that he had always considered himself to be allergic to these foods, despite admitting that he had never actually undergone food allergy testing. Mr Gonzales also said that he continued to eat foods that he reacted to, as he claimed it was the only food that he could afford to buy.
98 In June 2016, Mr Gonzales was admitted for two nights to the Banksia Mental Health Unit at Tamworth Hospital.
99 In September 2016, Mr Gonzales and his partner moved to Bateman’s Bay in New South Wales as they had both secured work as joint hotel administrators/managers at the Bayside Hotel. However, Mr Gonzales said that after about 4-6 weeks, he ceased work as he was not coping with the physical aspects of the role.
100 In November 2016, Mr Gonzales said that he was referred to pain specialist, Dr Nick Christelis. Mr Gonzales said that Dr Christelis diagnosed him as suffering chronic regional pain syndrome, and said that he subsequently arranged for Mr Gonzales to receive a right sided ganglion nerve block at the C7 level, and a right sided thoracic sympathetic block at T2. Mr Gonzales said that he received only short-term relief from these injections.
101 In March 2017, after returning to Melbourne, Mr Gonzales commenced attending the Toorak Medical Centre, where he has predominantly consulted general practitioner, Dr Richard Smith. Records from the Toorak Medical Centre records were tendered as evidence and aspects of them were put to Mr Gonzales in cross-examination.
102 On 16 May 2017, Dr Smith recorded that Mr Gonzales had been offered a job as CEO of the Hyatt. Mr Gonzales admitted that this was incorrect, and he said that he had lied to Dr Smith to “make him happy”.
103 On 4 July 2017, Dr Smith recorded that Mr Gonzales complained of back pain due to the cold weather. In cross-examination, Mr Gonzales said that, in addition to the pain in his neck, he also suffers pain in his spine between T4 and T10. Mr Gonzales said that he has suffered from this back pain for a long time, and that it gets worse each year. He said that his back pain is so bad it would prevent him from working and that it restricts him around his home.
104 On 16 July 2017, Dr Smith recorded, together with numerous other complaints, that Mr Gonzales was “sneaking” two to three Endone a day, notwithstanding that he was only permitted to take one and, very occasionally, two. In cross-examination, Mr Gonzales admitted to taking additional Endone.
105 On 6 August 2017, Mr Gonzales consulted Dr Smith, and discussed amongst other matters, Mr Gonzales approach to job interviews and his management skills. In his clinical notes, Dr Smith recorded:
“I’m an analyst”
“I am top-level HR … others report to me and I look at skills allocation”
“I do Profit&Loss”.
106 In cross-examination, Mr Gonzales accepted that such matters were incorrect. Mr Gonzales claimed that his medication affected his mind and caused him to say such things.
107 Mr Gonzales received a multitude of medication prescriptions whilst attending the Toorak Medical Centre. From 28 March 2017 until August 2017, such medications included: Nitrazepam, Targin, Oxycodone and Diazepam.
108 On 15 September 2017, Mr Gonzales attended on psychologist, Ms Susie Rotch. In her report dated 27 December 2017, Ms Rotch was of the opinion that Mr Gonzales was suffering from post-traumatic stress disorder and chronic regional pain syndrome with accompanying depression and anxiety of a somewhat complex nature. Ms Rotch also noted that Mr Gonzales had significant ongoing psychotic symptoms, that he had attempted suicide at least once and that he was not fit for any sort of work in the foreseeable future.
109 On 11 October 2017, Mr Gonzales was admitted to The Alfred Hospital due to a deterioration in his mental health.
110 On 22 November 2017, Mr Gonzales was again admitted to The Alfred Hospital following a suicide attempt. Mr Gonzales said that he took an overdose of his medications, after he had been threatened via the internet. Mr Gonzales was discharged two days later, at which time he said that he was “happy on the outside but not on the inside.”
111 Mr Gonzales claims that he has constant pain in his neck, and that such pain extends to his right shoulder and down his right arm. In addition, he claims that he has persistent pain in his right hand and that the temperature fluctuates.
112 Mr Gonzales currently takes the following medication:
·Olanzapine
·Targin-CR
·Endone
·Norvasc
·Nexium
·Valpan
·Nitrazepam.
113 Mr Gonzales said that he avoids strenuous housework due to his neck and right arm pain, and that he relies upon his partner to do most of the cleaning and cooking.
114 Mr Gonzales said that his physical restrictions have caused him to suffer a lowered mood, and that he feels unmotivated, tired and listless for much of the time.
115 In support of his claim, Mr Gonzales relied upon an affidavit from his partner, Ms Helene Andrewartha, in which she detailed the changes she has observed in Mr Gonzales since the workplace accident. Ms Andrewartha noted that he complains of neck pain, right arm and hand pain and that he has difficulty sleeping. She said that she has had to carry the burden of performing most of the household duties. Ms Andrewartha said that she lifts the heavier groceries at the shops and that whatever Mr Gonzales tries to do, “he does in a piecemeal fashion”.
116 Ms Andrewartha said that Mr Gonzales holds his arm in a protective manner and that she frequently witnesses him using a TENS machine to assist with his pain. Ms Andrewartha said that he is now very depressed and he struggles to be around a lot of people. She said that whilst they both obtained work at a motel in September 2016, Mr Gonzales struggled physically in the role, such that they decided to return to Melbourne.
Medico-legal evidence
117 Mr Gonzales’ solicitors arranged for him to be examined by pain specialist, Dr Gavin Weekes, in June 2017. In his report dated 28 June 2017, Dr Weekes detailed the circumstances of the workplace accident, the injuries suffered in it, and the treatment Mr Gonzales had received. Dr Weekes noted that Mr Gonzales described neck pain with radiation down the right arm. He noted that Mr Gonzales complained of neck and right arm pain, that were equal in severity and that he had an average pain score of 9/10. Dr Weekes also noted that Mr Gonzales complained of symptoms of allodynia, swelling and colour change in his arm, as well as a change in temperature.
118 On examination, Dr Weekes considered that Mr Gonzales had evidence of deep mechanical allodynia. Dr Weekes noted that Mr Gonzales’ right hand was red in comparison to the left hand, and that his right upper limb was cooler than his left upper limb. Dr Weekes diagnosed Mr Gonzales as suffering complex regional pain syndrome, together with persistent post-operative cervical surgery pain and degenerative arthritis of the distal and radiolunate joint.
119 Dr Weekes considered that the workplace accident was a “significant contribution” to Mr Gonzales’ neck injury. I note, however, that Dr Weekes offered this opinion on the basis that Mr Gonzales’ symptoms commenced on the day of the accident.
120 Dr Weekes then detailed the restrictions which Mr Gonzales’ neck injury has caused to him. He was of the opinion that any repetitive pushing or pulling using the right arm, or lifting anything above 5 kilograms, would lead to a severe pain flare-up.
121 Mr Gonzales’ solicitors arranged for him to be examined by neurosurgeon, Dr Wayne Ng, in June 2017. In his report dated 30 June 2017, Dr Ng detailed the workplace accident before noting that subsequent to it, Mr Gonzales began to experience severe right arm pain, that began in his right medial hand and radiated up to the posterior forearm and into the interior arm, and into the right shoulder. It was noted that he subsequently underwent a C5-6 anterior cervical discectomy effusion.
122 On examination, Dr Ng noted that Mr Gonzales stated that he was unable to lift or move his right arm due to severe pain. He observed reduced neck movement mainly due to pain, and noted that whilst Mr Gonzales could laterally flex his neck to the right, he was otherwise very restrictive in his neck movements.
123 Dr Ng considered the workplace accident to be a materially contributing factor to Mr Gonzales’ neck injury. He stated that Mr Gonzales was currently unable to perform activities which involved bending, lifting, twisting or stooping due to pain and dizziness. He also considered Mr Gonzales unable to perform overhead activities with his right upper limb. Dr Ng considered that Mr Gonzales was currently unable to perform his pre-injury duties.
124 Mr Gonzales’ solicitors arranged for him to be examined by psychiatrist, Associate Professor Nicholas Paoletti in June 2017. In his report dated 15 July 2017, Associate Professor Paoletti detailed Mr Gonzales’ past history, which I noted included numerous errors, including that Mr Gonzales had withdrawn from university halfway through a physics degree. Associate Professor Paoletti did not obtain a history of any prior psychiatric condition or psychiatric treatment, and was only aware of Mr Gonzales having developmental difficulties, pre-existing relationship problems, and not having access to his son. He then obtained details as to Mr Gonzales’ psychiatric state subsequent to the workplace accident, and the medication that he was then taking.
125 Associate Professor Paoletti then conducted a mental state examination of Mr Gonzales, following which he concluded that Mr Gonzales was suffering an unspecified anxiety disorder with panic attacks and some features of post-traumatic stress disorder, together with unspecified depressive disorder. Associate Professor Paoletti also considered that Mr Gonzales had gone through a period of medication-induced delirium, which he related to the mixture of medications he had been prescribed.
126 Associate Professor Paoletti re-examined Mr Gonzales in December 2017. In his report dated 20 December 2017, he detailed Mr Gonzales’ current state, including his recent suicide attempt, following which he was admitted to The Alfred Hospital.
127 Associate Professor Paoletti confirmed the psychiatric diagnosis he had offered previously and noted that, following the events of October and November 2017, he considered Mr Gonzales suffered unspecified schizophrenia spectrum and other psychotic disorder, with a differential diagnosis of delusional disorder and psychotic disorder due to another medical condition with delusions. Associate Professor Paoletti considered that Mr Gonzales’ employment remained a significant contributing factor to each of his psychiatric conditions.
128 Mr Gonzales relied upon two medical reports obtained by the defendant from orthopaedic surgeon, Mr Michael Shannon, in August 2013 and October 2014. In his first report, dated 8 August 2013, Mr Shannon detailed the workplace accident. It was noted that Mr Gonzales complained of severe pain which involved the whole of his right upper limb and extended into the right side of his neck. Mr Shannon considered that radiology suggested that Mr Gonzales suffered a right C6 nerve root compression from a C5-6 disc protrusion. He noted that the onset of neck pain and spasm had come on some months after the injury. Nevertheless, given the pathology in the neck, Mr Shannon accepted that the neck “could well have been injured in the accident at work”. In such circumstances, Mr Shannon recommended that the defendant accept liability for the proposed neck surgery.
129 In relation to his right upper limb, Mr Shannon considered that Mr Gonzales’ fractured fifth metacarpal had long-healed, and thought there was the possibility of complex regional pain syndrome.
130 Mr Shannon wrote a second report dated 8 October 2014, after having been provided with a Vocational Assessment report and a surveillance report. He was of the view that the surveillance report did not demonstrate Mr Gonzales to be significantly active and considered that the Vocational Assessment report was irrelevant, in circumstances where he was of the view that Mr Gonzales was totally incapacitated for work. Mr Shannon was also of the opinion that, following completion of a pain management program, Mr Gonzales may achieve a work capacity. However, he was “not optimistic about this”.
131 The defendant arranged for Mr Gonzales to be examined by a consultant surgeon, Mr John Roth, in November 2012. In his report dated 22 November 2012, Mr Roth obtained a history from Mr Gonzales as to the workplace accident and the fracture he suffered to his right fifth metacarpal bone. As at the date of the examination, Mr Roth noted that Mr Gonzales claimed to have continued pain and restriction of movement in his right hand, together with pain in his right shoulder. Mr Roth noted that examination of Mr Gonzales’ right shoulder was difficult, with marked painful restriction of all movements in the right shoulder joint. Mr Roth also noted painful restriction of movement in his right elbow, right wrist and right hand. He was of the opinion that Mr Gonzales had sustained a fracture to the distal shaft of his right fifth metacarpal bone and that he had subsequently developed a chronic pain syndrome. At that stage, Mr Roth was of the opinion that Mr Gonzales could not return to work performing his pre-injury duties and hours.
132 The defendant arranged for Mr Gonzales to be examined by psychiatrist, Dr Brendan Hayman, in May 2015. In his report dated 7 May 2015, Dr Hayman detailed Mr Gonzales’ past history, which included his father being a prominent lawyer and judge, that he worked as a chef to the President of the Philippines and later became the director of food and beverage at the Hyatt Hotel. In cross-examination, Mr Gonzales admitted that such matters were untrue.
133 Dr Hayman detailed the history he obtained from Mr Gonzales in relation to the injuries he had suffered in the workplace accident. Dr Hayman then noted that Mr Gonzales reported no prior psychiatric history, but that after suffering his physical injury, he felt depressed from his incapacity and loss of independence.
134 Dr Hayman noted Mr Gonzales’ complaint of muscular cramps involving his neck and pain which he described as a “bow and arrow effect” between his neck and his wrist. It was noted that Mr Gonzales reported that his wrist would turn blue at night and red during the day and that it was sensitive to temperature. Dr Hayman considered that Mr Gonzales met the criteria for chronic pain disorder associated with both psychological factors and a general medical condition, as well chronic adjustment disorder with depressed and anxious mood.
135 The defendant arranged for Mr Gonzales to be examined by rheumatologist, Dr Roy Karna, in July 2015. In his report dated 9 July 2015, Dr Karna noted that Mr Gonzales told him that he was “fundamentally ambidextrous, but used his right hand for writing.” When this was put to Mr Gonzales in cross-examination, he admitted that what he had said to Dr Karna was unreliable.
136 Dr Karna also obtained a history from Mr Gonzales that he had completed a tertiary degree, which Mr Gonzales later admitted in cross-examination, was just a business management course.
137 Dr Karna then obtained a history from Mr Gonzales in respect of the workplace accident and diagnosed him as suffering a fracture of the right fifth metacarpal. It was noted that three to four months after the accident, Mr Gonzales had radiology in his neck but that in the intervening period he had continuous neck pain with “bow and arrow” pain in his right arm, with occasional tingling. It was then noted that the MRI scan suggested a C5-6 disc lesion for which Mr Gonzales subsequently underwent a cervical discectomy and fusion.
138 On examination, Dr Karna noted that Mr Gonzales kept his neck tilted to the right side and that on formal examination there were no neck movements allowed. However, Dr Karna noted that when Mr Gonzales left the examination and also when specifically asking Dr Karna regarding his prognosis, Dr Karna noted that Mr Gonzales held his neck in the neutral normal position.
139 Dr Karna also examined Mr Gonzales’ right upper limb and noted that his reflexes were preserved and that the global sensory loss described by Mr Gonzales was a non-anatomical distribution. Dr Karna also noted there were no temperature changes, sweating changes or colour changes in Mr Gonzales right upper limb, compared to his left.
140 Dr Karna stated that he was prepared to accept that Mr Gonzales:
“… may well have sustained a neck injury in the accident as described. Whether or not he actually prolapsed the C5-6 disc at the time or whether he merely aggravated antecedent degenerative changes is difficult to establish, suffice it to say I believe it is reasonable to suggest that he had at the very least a soft tissue injury of the cervical spine and based on contemporaneous literature may have had some radicular symptoms in the C6 distribution at the time. I would therefore suggest that his current diagnosis in relation to the neck is that in compensable circumstances he has residual symptoms after a soft tissue injury to the cervical spine, treated surgically.”
141 Notwithstanding the difficulties he experienced in examining Mr Gonzales, Dr Karna accepted that there was some, non-uniform, restriction of motion in the neck, but considered that there were no definitive signs of radiculopathy or upper motor neurone signs in the upper limbs.
142 Dr Karna then stated that, in his opinion, there was no structural intrinsic musculoskeletal injury of the right upper limb, including the hand. Dr Karna considered that the psychiatric diagnosis of chronic pain disorder may be an adequate explanation for his presentation, in circumstances where his complaints of pain were not accompanied by evidence of any underlying intrinsic physical injury.
143 Dr Karna re-examined Mr Gonzales on 27 January 2016. At that time, he noted that Mr Gonzales said that he was left hand dominant, and that he does not do anything in his right hand, due to numbness, tingling, weakness and pain he experienced in his right hand.
144 Dr Karna noted that Mr Gonzales had sustained a fracture of the right fifth metacarpal in the workplace accident, which had since healed. He considered that Mr Gonzales presented with global non-localising clinical features, without any features of complex regional pain syndrome or autonomic dysfunction. Dr Karna considered there was marked disparity between spontaneously observed and actively allowed movements, and in conclusion considered that Mr Gonzales’ ongoing presentation of right hand, wrist and forearm discomfort, related to a chronic pain syndrome secondary to psychogenic/psychological factors.
145 The defendant arranged for Mr Gonzales to be examined by hand surgeon, Mr Damian Ireland, in January 2017. In his report dated 18 January 2017, Mr Ireland detailed the injury which Mr Gonzales had sustained to his right hand in the workplace accident. It was noted that after having undergone a cervical fusion, Mr Gonzales continued to complain of pain in his right upper limb. Mr Ireland said that Mr Gonzales was “extremely difficult to examine”, and further commented that Mr Gonzales:
“… had a histrionic reaction to any form of passive examination of the upper extremity pulling the elbow and the wrist into more flexion with the gentlest of light touch to the hand.”
146 Mr Ireland commented that, on distraction and with direct questioning, the degree of flexion in Mr Gonzales’ elbow and wrist changed dramatically. Mr Ireland was of the opinion there was no wasting of the intrinsic muscles, and no trophic skin changes in his right hand. Mr Ireland also considered the colour, temperature, nail and hair growth to be symmetrical and normal. Mr Ireland measured Mr Gonzales’ forearms and noted measurements of 35.7 centimetres on his right side, and 34.2 centimetres on his left dominant side.
147 Mr Ireland stated that he was unable to diagnose any significant physical condition affecting his right upper extremity and considered that there was no evidence to suggest that Mr Gonzales suffered ongoing complex regional pain syndrome in his right hand.
148 The defendant arranged for Mr Gonzales to be examined by neurosurgeon, Mr Kevin Siu, in June 2017. In his report dated 15 June 2017, Mr Siu outlined the history he had obtained from Mr Gonzales, including details of the workplace accident. Mr Siu obtained a specific history that Mr Gonzales claimed to have suffered pain in his neck from the time of the workplace accident.
149 On examination, Mr Siu noted that Mr Gonzales was reluctant to move his neck.
150 Mr Siu reviewed a number of medical records, in particular, the reports of Mr Chan and the MRI scan taken of Mr Gonzales’ neck and cervical spine in April 2013. Mr Siu considered that, at that time, the diagnosis of a C5-6 prolapse compressing the C6 nerve root:
“… was predominantly based on the MRI findings, because the clinical features of pain and other symptoms were present in conjunction with symptoms of complex regional pain syndrome, which makes it difficult to be sure that he had radiculopathy. He did not have symptoms consistent with a radiculopathy. The neurological features of radiculopathy were difficult to ascertain.”
151 Mr Siu also noted that the cervical fusion did not offer Mr Gonzales significant relief and he therefore remained “very sceptical” about the relationship between Mr Gonzales’ neck injury and the workplace accident.
152 Mr Siu also considered that Mr Gonzales had complex regional pain syndrome, but with a significant functional component, and he found it difficult to explain why there was numbness in all the fingers of his right hand.
153 The defendant arranged for Mr Gonzales to be examined by occupational physician, Dr Michael Baynes, in August 2017. Dr Baynes discussed with Mr Gonzales some possible job options, each of which the defendant proposed Mr Gonzales had the physical capacity to undertake. In his report dated 10 August 2017, Dr Baynes stated that in relation to the prospect of Mr Gonzales working as a regional catering manager, Mr Gonzales considered that he had the physical capacity to undertake such a role. Dr Baynes noted that Mr Gonzales considered that he would be fit to undertake a role in customer activities, call centre work and computer work. In cross-examination, Mr Gonzales accepted having said that to Dr Baynes, but said that he had “jumped the gun about this”. Mr Gonzales also said that his pain was such that at the time of the examination, his answer to Dr Baynes was unreliable.
154 Dr Baynes also recorded that Mr Gonzales considered that he had the capacity to work as a regional buyer, as he would have the ability to undertake computer tasks, telephone use, and visit warehouses and do store visits.
155 Finally, Dr Baynes noted that Mr Gonzales had also agreed that he had the capacity to undertake the highly skilled roles associated with being the regional catering manager for an aged care provider, but Mr Gonzales did not believe he could undertake occasional food preparation tasks.
156 The defendant arranged for Mr Gonzales to be examined by psychiatrist, Associate Professor Doherty, in October 2017. In his report dated 10 November 2017, Associate Professor Doherty noted that Mr Gonzales informed him that, at the time of the workplace accident, both his physical and mental health was “fine”. He specifically noted that Mr Gonzales said that he had not had any psychiatric complaint, symptoms, or treatment prior to the workplace accident, and had not received any counselling, or been on any antidepressant medication.
157 Associate Professor Doherty then obtained a history of the workplace accident and the treatment Mr Gonzales subsequently received. Associate Professor Doherty then detailed Mr Gonzales’ current complaints and symptoms, and the medication he was taking.
158 Associate Professor Doherty considered that Mr Gonzales demonstrated pain-related behaviours, but did not consider there to be any accompanying signs of a psychiatric condition. Associate Professor Doherty considered that Mr Gonzales was “chatty, emotionally reactive and did not appear at any time to be in distress”.
159 On 31 January 2018, Associate Professor Doherty provided a supplementary report, having been provided with records from the Alfred Hospital Emergency Department for 10 October 2017 and 21 November 2017. Associate Professor Doherty considered that such material made him suspicious as to Mr Gonzales’ presentation. He noted that at his attendance to on 24 October 2017, Mr Gonzales had not reported his attendance to The Alfred Hospital on 10 October 2017.
160 Associate Professor Doherty considered that following the events of November 2017, a differential diagnosis of a psychotic condition could be entertained, but he did not consider that the workplace accident caused, or materially contributed to, such a psychotic condition.
Mr Gonzales’ credibility
161 The defendant mounted a very successful attack upon Mr Gonzales’ credibility and reliability as a witness. Mr Gonzales himself accepted that the histories he provided to medico-legal doctors, as well as his own treating doctors, were, on many occasions untrue. He sought to excuse such inaccuracies on the basis that he was trying to impress his partner who was present at the medical appointments, or that his medication or pain affected his reliability. Whatever his reason, it was apparent from his own admissions, that Mr Gonzales was an unreliable historian.
162 As detailed in the chronology above, there were a multitude of inconsistencies in Mr Gonzales’ medical records and in the medical reports. Quite often, these matters were of no direct relevance to this application, save to demonstrate that Mr Gonzales is an unreliable witness. This was most apparent when Mr Gonzales was cross-examined on the possible sources of his Hepatitis C, including from receiving blood transfusions and tattoos overseas, as well as suffering a gunshot wound.
163 In such circumstances, I consider that the very detailed clinical notes of doctors such as Dr Waddell and those at the Morphettville clinic are likely to be more reliable than that of Mr Gonzales’ sworn evidence. While I accept that on occasions there can be errors in medical records, Mr Gonzales consistently, and repeatedly, denied matters contained within his medical records. I consider this adversely reflected upon Mr Gonzales’ credibility and reliability.
164 I consider Mr Gonzales’ denial that he was injured racing a car, is a further example of his unreliability as a witness. The records at the Morphettville Medical Centre refer to such an accident. Further, Dr Liu also had a reference of this in his clinical notes, including a detailed first person account of what happened. This collision is of no immediate relevance to this application, as it would appear that Mr Gonzales only suffered minor injuries in it. However, Mr Gonzales’ denial that he had written the detailed information contained in Dr Liu’s notes, and his repeated denial that he had been involved in such an accident, was an example of the very puzzling behaviour exhibited by Mr Gonzales throughout the course of his evidence.
165 Another example of Mr Gonzales’ unreliability as a witness, was the evidence he gave in respect of the income he earned in the two years prior to the workplace accident. Mr Gonzales sought to explain his taxation records by stating that he loved working as a chef, so much so that he worked for free. I listened to this evidence with incredulity, and dismiss it as disingenuous.
166 In addition to my reservations as to his credibility, I also have a significant concern as to Mr Gonzales’ propensity to misreport medical symptoms for the purpose of seeking medication. Mr Gonzales’ admitted that he had previously told his treating doctors that he suffered from medical conditions he had self-diagnosed, including depression, chronic fatigue, sleep difficulties and food allergies. Mr Gonzales then admitted that he had thoroughly researched his medical condition and the numerous medications which might be available to him. Mr Gonzales admitted that at times he had misinformed his treating medical practitioners as to his symptoms and complaints, in order to obtain certain medication. As a consequence of this pattern of medication-seeking behaviour, which pre-dated the workplace accident, I have considerable reservations about Mr Gonzales’ subjective complaints of pain.
167 In circumstances where I have significant concerns as to Mr Gonzales’ credibility and reliability as a witness, I will only accept Mr Gonzales evidence, where he has given a concession against his interests or where his evidence is corroborated by objective evidence or contemporaneous documents.
Did the workplace accident cause Mr Gonzales’ neck injury ?
168 Mr Gonzales claimed that he suffered a C5-6 disc prolapse in the workplace accident, for which he required fusion surgery. The relevant WorkCover insurer accepted liability for this surgery, and subsequently accepted liability for a permanent impairment benefit under s98C of the ACA.
169 In the Court of Appeal decision of Ansett v Taylor,[1] it was noted that the acceptance of liability under the statutory scheme should be considered a “very significant”[2] admission, yet not conclusive, nor an estoppel.
[1] [2006] VSCA 171
[2] Ibid at [36]
170In Ifka v Shahin Enterprises Pty Ltd,[3] the Court of Appeal said:
“Conventionally, Ansett v Taylor is relied upon as authority for the proposition that, by paying compensation, a party (absent some other evidence) may be taken to have made an admission that the relevant worker suffered compensable injury involving the affected body parts in respect of which compensation was paid. However, questions of the extent to which the acceptance of liability to make a payment might constitute an admission as to the full nature or effect of an injury can be problematic.”[4]
[3] [2014] VSCA 8
[4] Ibid at para [57]
171The principle in Ansett v Taylor was recently considered in Sednaoui v Armac Corrosion Protection Pty Ltd,[5] in which the Court of Appeal observed that whilst such an admission should ordinarily be treated as significant, it is an observation only and not a statement of legal principle.[6]
[5] [2017] VSCA 66
[6] Ibid at [67]
172Where the defendant seeks to challenge the significance of an insurer’s previous acceptance of liability, the defendant may call evidence as to the basis for its earlier decisions and the reasons why those decisions should not be used as an admission.[7]
[7] Fokas v Staff Australia Pty Ltd [2013] VSCA 230, [38]
173In closing submissions, Mr Harrison acknowledged that the defendant had not called any such rebuttal evidence in this case. Instead, in disputing the causal relationship between his neck injury and the workplace accident, the defendant sought to focus on Mr Gonzales’ unreliability, and his failure to expressly complain of any neck pain until March 2013.
174As stated above, I consider Mr Gonzales an unreliable witness, and I do not accept that he repeatedly complained of neck pain to Dr Koski who simply failed to record such pain until March 2013.
175However, it is apparent to me, upon reading the initial medical reports in this matter, that the absence of any immediate complaints of neck pain by Mr Gonzales is not determinative of the causal relationship.
176As at November 2012, Dr Roth noted Mr Gonzales complained of pain in his right shoulder. In January 2013, Dr Thompson noted reduced power in Mr Gonzales’ right arm, and that the reflexes were reduced in the right C5-6 distribution. It was Dr Thompson who then recommended that a CT scan be performed on Mr Gonzales’ cervical spine, which resulted in the diagnosis of a C5-6 prolapse.
177Mr Gonzales’ treating surgeon Mr Chan accepted the history that Mr Gonzales’ pain came on gradually, and that it moved up his right upper limb and into his neck. Mr Chan was satisfied that Mr Gonzales’ need for cervical surgery was related to the workplace accident.
178I note that Mr Shannon, Dr Karna and Mr Ng obtained a similar history, and also accepted that the workplace accident was the likely cause of Mr Gonzales’ neck injury.
179Only Mr Siu offered a contrary opinion as to the causal relationship between Mr Gonzales’ neck injury and the workplace accident. He came to this conclusion on the basis that Mr Gonzales did not obtain a favourable outcome from the cervical fusion, together with his assessment that a significant functional component appeared to be present. I note, however, that Mr Siu did not examine Mr Gonzales until June 2017, by which time I consider his opinion was likely to have been adversely influenced by the manner in which Mr Gonzales presented. In circumstances where his assessment of Mr Gonzales occurred almost five years after the workplace accident, I obtain little assistance from Mr Siu’s report.
180 In addition to the Ansett v Taylor admission to which I attach some significance, I have also had regard to the contemporaneous medical records, together with the supportive opinions of Mr Chan, Mr Karna, Mr Shannon and Mr Ng. In considering such evidence, I am ultimately satisfied that the workplace accident was a cause of Mr Gonzales’ neck injury.
What are the pain and suffering consequences to Mr Gonzales from his neck injury, and can they be described as at least very considerable?
181In assessing Mr Gonzales' application, it is impermissible to aggregate the impairment arising from his neck injury, with any other impairments.
182As was noted by Maxwell P in Peak Engineering Pty Ltd v Victorian WorkCover Authority,[8] :
“[24] … where two different injuries are concurrently producing pain and suffering consequences for the applicant, it will ordinarily be necessary to make findings about all of the pain and suffering consequences which are operative at the date of the trial. This would seem to be an essential pre-condition to the task of deciding which of the pain and suffering consequences are attributable to which injury.”
[8] [2014] VSCA 67
183In cases where the injuries cause separate and distinct consequences, this a relatively easy task. However, as was the situation in Peak Engineering, where there is some overlap between the consequences arising from two separate injuries, it is necessary for the plaintiff to disentangle the consequences of each.
184An overlap in consequences from multiple impairments does not automatically disentitle the plaintiff. As was noted Ashley JA in Grech v Orica Australia Pty Ltd, [9]
“……it is quite possible – it will be a matter of determination according to the evidence in the particular case - that each of two or more compensable injuries is a legally sufficient cause of the same consequences.”[10]
“… It is enough to say that the Act, with its predecessors, contemplates that a consequence may have a multiplicity of causes, including a multiplicity of compensable injuries.”[11]
[9] Grech v Orica Australia Pty Ltd & Anor [2006] VSCA 172 at [57]- [58]
[10] Ibid at [57]
[11] Ibid at [58]
185In assessing Mr Gonzales’ claim for serious impairment to his neck, it is obligatory for me to consider only those consequences arising from his neck injury. I note that “it is beside the point”[12] that Mr Gonzales may also suffer impairment in his right arm, and lower back, together with impairment from his psychiatric condition.
[12] Dressing v Porter [2006] VSCA 216 at [47]
186In Haden Engineering Pty Ltd v McKinnon,[13] Maxwell P said:
[13] [2010] 31 VR 1
“In its accepted interpretation, the ‘pain and suffering consequence’ of an injury encompasses both the plaintiff’s experience of pain as such and the disabling effect of the pain on the plaintiff’s physical capabilities (including capacity for work) and enjoyment of life. (I will refer to the second element as “the disabling effect” of the pain.)
The experience of pain
As to the experience of pain as such, the Court must assess the intensity of the pain which the plaintiff experiences. For this purpose, pain intensity is often classified on the scale ‘mild/moderate/severe’. Unless the pain is constant, the Court will need also to assess the frequency and duration of the pain episodes.
The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
(b) what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c) what the doctors say about the extent and intensity of the plaintiff’s pain; and
(d) what the objective evidence shows about the disabling effect of the pain.
As to (a), the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility. The court will make its own assessment of the plaintiff’s credibility if he/she gives evidence, and will also take into account views expressed by examining doctors about the reliability of the plaintiff’s accounts of pain.”[14]
[14] para [9] – [12]
187As I have stated previously, I do not consider Mr Gonzales to be a reliable or credible witness. Therefore, in assessing this aspect of his claim, I will only have regard to what the doctors say about his pain and the objective evidence as to the disabling effects of his pain.
188I accept that Mr Gonzales required a cervical fusion. Mr Chan stated that following the surgery, Mr Gonzales should avoid heavy lifting, the use of his right upper limb and excessive rotation or flexion of his neck.
189Dr Weekes considered that, as a consequence of his neck injury, Mr Gonzales should avoid repetitive pushing, pulling and lifting anything above 5 kilograms. I also note that Dr Weekes stated that such incapacity will be permanent unless Mr Gonzales underwent a trial of a spinal cord stimulator and obtained a significant improvement.
190Dr Ng also considered that Mr Gonzales had restriction of movement in his neck.
191Dr Baynes considered that Mr Gonzales had the capacity to undertake a range of duties in alternative suitable employment. However, he acknowledged that Mr Gonzales would need to avoid heavy lifting and manual handling, that he would require some flexibility in terms of rotating postures and that provision of a hands-free headset would be appropriate.
192Mr Sui did not consider Mr Gonzales’ neck injury to be related to the workplace accident, and he did not discuss whether or not there were consequences flowing from his cervical fusion.
193 Mr Gonzales outlined a range of consequences which he relates to his neck injury. He said that his neck injury stops him returning to work as a chef and doing work around the home. Despite my unwillingness to accept Mr Gonzales subjective complaints of restrictions, I note that Ms Andrewertha also referred to his limitations around the home, such that she now does most of the household tasks and carries the heavier groceries. I consider it is reasonable to accept that, by virtue of his cervical fusion, there are necessary restrictions in Mr Gonzales’ domestic and work activities. Dr Weekes, Dr Ng and Dr Bayne provide support for this conclusion.
194 Mr Gonzales has received a vast array of medications since the workplace accident, including Targin and Endone. However, none of the doctors clearly identify what medication is for what medical condition. Mr Gonzales said that the Targin and Endone are both for his neck pain, and later said that he suffers pain in his neck, back and right arm on a scale of “11 out of 10.” However, without any doctor explaining what medication is required for his neck pain, Mr Gonzales has failed to sufficiently disentangle the need for such medication, and as such, I have not taken this claimed consequence into account.
195Considering the objective evidence as to the consequences referred to above, and in taking in to account that Mr Gonzales was only 37 years old of age when he underwent his cervical fusion, when compared to other cases in the range of possible impairments, I am satisfied that the pain and suffering consequences to Mr Gonzales can be described as at least very considerable.
Impairment to Mr Gonzales’ right upper limb
196There is no dispute that Mr Gonzales suffered a fracture of the fifth metacarpal in the workplace accident. What is in dispute, however, is whether or not he has suffered injury to his hand and forearm, together with complex regional pain syndrome.
197Mr Gonzales demonstrated unusual behaviour regarding his right arm, even prior to the workplace accident. In November 2011, Dr Waddell noted that Mr Gonzales claimed to have suffered a total loss of sensation in his arm, with inconsistent findings. I consider this most unusual event bears a striking similarity to Mr Gonzales current claim of right arm impairment.
198In October 2012, hand therapist, Ms Aitken, noted that Mr Gonzales’ complaints of pain were disproportionate to the injury, that he was uncooperative with her assessment of his pain, and he was unwilling to engage in therapy.
199In January 2013, Mr Gonzales was examined by Dr Thompson, who obtained a history that he complained of occasional discolouration of his hand and he felt sweating in it, together with a cramping sensation in the muscles of his right forearm. However, upon examination, Dr Thompson noted no change in the skin, hair or nail growth, and also noted no oedema, allodynia and no trophic skin changes. In stating her impression of Mr Gonzales, Dr Thompson stated that although he complained of symptoms consistent with chronic regional pain syndrome, Mr Gonzales did not demonstrate any signs of this syndrome. Dr Thompson considered that his complaints of pain were disproportionate to his injury and noted that Mr Gonzales had a lot of anger issues related to his injury and his employer.
200Mr Gonzales’ hand specialist, Mr Tham, considered the radiological features in his wrist to be consistent with arthritis, but he did not consider such changes to be the cause of Mr Gonzales’ diffuse wrist symptoms. Mr Tham concluded that such symptoms were suggestive of complex regional pain syndrome.
201Mr Gonzales’ physiotherapist Mr Gole, considered that Mr Gonzales was suffering atypical chronic regional pain syndrome.
202Dr Thomas considered that Mr Gonzales suffered a chronic pain syndrome in his right upper limb, but stated that it was hard to determine what the underlying residual nociceptive problem was. Dr Thomas noted that at that stage Mr Gonzales was on “a hefty amount of opioid analgesia” which did not seem overly effective. Dr Thomas considered that Mr Gonzales presented with a high degree of emotional distress.
203Mr Shannon doubted the diagnosis of chronic regional pain syndrome, in circumstances where there was no significant muscle wasting, colour or temperature change, notwithstanding Mr Gonzales having some swelling in his hand.
204Dr Weekes noted that there was colour change in Mr Gonzales’ right hand and his right upper limb was cooler compared to the left upper limb. Dr Weekes then concluded that such symptoms fulfilled the criteria for a diagnosis of complex regional pain syndrome.
205Dr Karna noted that although Mr Gonzales claimed to have suffered a global sensory loss in his right upper limb, it followed a non-anatomical distribution. Further, Dr Karna noted there were no temperature changes, no sweating changes or colour changes in the right upper limb and that the measurement of the muscle bulk in both arms was the same.
206Mr Ireland also observed no wasting of the muscles and no trophic skin changes. He also noted that the colour, temperature, nail and hair growth in Mr Gonzales’ hands were symmetrical and normal, and there was a normal temperature gradient along the right upper limb. Mr Ireland also observed that the right forearm was slightly larger than the left.
207Finally, Dr Baynes noted that the colour and temperature of both hands was normal and equal and that Mr Gonzales’ right forearm was 1 centimetre larger than his left. He did, however, notice some slight swelling in his right hand.
208 I note that Mr Gonzales is currently treated by Dr Smith and Dr Christelis and there is no medical report tendered by either doctor.
209 The overwhelming majority of the medical material is that Mr Gonzales’ complaints of right arm and hand pain, are disproportionate to the pathology. There is minimal objective findings to support his claim that he suffers ongoing impairment in his right arm or hand. Given such medical opinions, together with my reservations as to Mr Gonzales’ credibility, I am not prepared to accept Mr Gonzales’ account of pain or that the disabling effects of pain are as he claims. I therefore reject his application that he suffers serious permanent consequences from the impairment to his right upper limb under part (a).
Is Mr Gonzales’ psychiatric condition attributable to the workplace accident?
210 Mr Gonzales suffered some psychiatric problems prior to the workplace accident. The medical records refer to prior depression and post-traumatic stress disorder, treatment from a psychiatrist and the prescription of medication including Prozac and Lithium. In the year prior to the workplace accident, Mr Gonzales had at times reported being depressed and anxious. In August 2011, Mr Gonzales was prescribed Effexor medication, although he claimed that he did not take it.
211 Also prior to the workplace accident, Mr Gonzales had consistently sought medication to help him with his sleep, and to help him stay awake. In addition, on 14 November 2011, Dr Waddell observed Mr Gonzales’ complaint of a complete loss of sensation in his arm, which Dr Waddell considered may be a form of hysterical conversion.
212 The medico-legal doctors who have examined Mr Gonzales, both on behalf of his solicitors and for the defendant, were either not aware of, or not fully aware of, Mr Gonzales’ past psychiatric history. As such, I consider their opinions as to his psychiatric condition, and its cause, to be significantly compromised.
213 In addition, the histories provided to the medico-legal doctors are littered with so many inaccuracies that I consider the validity of their opinions to be further compromised.
214 Given my rejection of Mr Gonzales as a credible and reliable witness, I am also not satisfied as to the veracity of his subjective complaints, as reported to the medico-legal doctors. For those combined reasons, I am not assisted by any of the medico-legal opinions.
215 Such concerns also infiltrate the report which was provided by Mr Gonzales’ current treating psychologist, Ms Roch.
216 The records and discussions which Mr Gonzales has recently had with his treating general practitioner, Dr Smith, further demonstrates that there is whole raft of issues which impact upon Mr Gonzales’ mental state.
217 I consider that Mr Gonzales’ admitted dishonesty was so profound it is difficult to identify what was real and what was not in his life, and in his reported symptoms. Having considered the evidence in its entirety, I am not satisfied that any psychiatric condition which Mr Gonzales now suffers is attributable to the workplace accident. In such circumstances, I dismiss his claim under part (c).
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