Gundogdu v Victorian WorkCover Authority
[2022] VCC 1231
•17 August 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-21-03794
| MEHMET GUNDOGDU | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE PURCELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 and 27 July 2022 | |
DATE OF JUDGMENT: | 17 August 2022 | |
CASE MAY BE CITED AS: | Gundogdu v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1231 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – leave sought for pain and suffering and pecuniary loss damages – video surveillance – credit of plaintiff
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Johns v Oak Tech Pty Ltd [2020] VSCA 10; Nikolic v Transport Accident Commission [2020] VSCA 148; Petkovski v Galletti [1994] 1 VR 436; Church v Echuca Regional Health [2008] VSCA 153; Petrovic v Victorian WorkCover Authority [2018] VSCA 243
Judgment: Proceeding dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Valiotis | Zaparas Lawyers |
| For the Defendant | Mr B McKenzie | Lander & Rogers |
HIS HONOUR:
Introduction
1As has been said many times in serious injury proceedings, the credit of the plaintiff will often be critically important.[1]
[1]Johns v Oak Tech Pty Ltd [2020] VSCA 10 at [76].
2The proceeding before the Court is a serious injury application brought pursuant to s335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) in respect to a workplace injury. It is an example of a proceeding in which the credit of the plaintiff is critically important.
3While the defendant had a fallback submission – that, overall, the plaintiff had not suffered a “serious injury” – the primary defence to this proceeding is that the plaintiff’s credit was impugned to the extent that he ought not be accepted and, therefore, he has failed to discharge his evidentiary burden to establish a “serious injury”.[2]
[2]Transcript (“T”) 45, Line(s) (“L”) 2-8.
4The credit issue arises because of what the plaintiff has said in affidavits and to doctors about his restrictions, as compared to what is revealed in covert video surveillance obtained by the defendant and relied on in this proceeding.
5Relevant to this proceeding, as was said in Nikolic v Transport Accident Commission:[3]
“While there are some injuries which only have to be identified to show that they are serious within the meaning of the Act, the applicant’s injury was not one of these. Her case, like so many personal injury cases was, as has been repeatedly said before, one where the reliability of the applicant/plaintiff was of considerable importance to the ultimate outcome of the proceeding.”
[3][2020] VSCA 148 at [64].
6In this proceeding, contrary to the plaintiff’s contentions, his credit and reliability is of considerable importance to the ultimate outcome of the proceeding.
Background
7Mr Mehmet Gundogdu (“the plaintiff’) was born in Turkey in 1962. He is right- handed and apparently lives on his own, although enjoys a close relationship with his ex-partner[4] who is now paid a Centrelink benefit as his carer. He and his ex-partner are parents to a teenage daughter.
[4] There is no affidavit from her, a topic which will be discussed.
8In approximately late 2004, the plaintiff developed neck pain whilst working as a cleaner for Saturn Cleaning. In response to the onset of symptoms, he required medical attendance and significant time off work. His general practitioner, Dr Dawoud Rowais, arranged investigations and referrals. Dr Rowais diagnosed the aggravation of cervical spine discogenic injuries and a left sided radiculopathy.[5]
[5]Plaintiff’s Court Book (“PCB”) 25.
9Dr Rowais arranged a referral to Mr David Wallace, neurosurgeon, whom the plaintiff attended on 11 July 2005.[6] At review on 7 November 2005, Dr Wallace expressed the opinion that MRI scanning performed on 22 July 2005[7] revealed a disc prolapse of mild degree at C5-6 but no obvious nerve root compression.[8] Thereafter, the plaintiff remained out of work and had various conservative treatments.
[6]PCB 14.
[7] The report of this MRI scan is not in evidence, although it is discussed in the tendered evidence.
[8]PCB 15.
10Therefore, as far back as July 2005, the plaintiff had radiologically demonstrated pathology in his cervical spine.
11In October 2007, the plaintiff obtained full-time employment as a concierge and assistant facilities manager at an apartment complex in Melbourne for Facility Management Victoria Pty Ltd (“the employer”). Whatever symptoms he may have had in his neck before commencing with the employer, there is no suggestion in this proceeding that he was in any way unable to perform his work.
12The work with the employer is described by the plaintiff as at least moderately physical work, and there was no real challenge to that.
13The plaintiff said that, by the time he returned to work with the employer, his neck problem had settled down. Apart from a suggestion in his own evidence that, from time to time, he was mildly symptomatic in his neck, the objective evidence supports a conclusion that his neck problem did settle down and he was able to engage in full-time work with the employer. For the financial year ending 30 June 2015, he had gross earnings of $74,223. He was, however, referred for an ultrasound of his left shoulder on 25 September 2014,[9] which was reported as revealing a thickened bursa, consistent with bursitis. Neither party addressed the Court about that scan, and there is no other direct evidence of it, but it suggests the plaintiff may have been symptomatic in his left shoulder at that time.
[9] PCB 119.
14Against that backdrop, the plaintiff had the return or onset of symptoms in his neck and left arm in late 2015 or early 2016, while performing his work with the employer. He returned to Dr Rowais and was referred for an MRI scan of his cervical spine. An MRI was performed on 1 March 2016[10] and reported a conclusion as follows:
“1.Moderately severe C4/5 and CS/6 cervical canal stenosis secondary to a central and left sided disc prolapse with vertebral end plate osteophytic lipping at both levels with left sided cord impingement, but no myelomalacia. Impingement of the left CS and both C6 nerve roots within both lateral recesses and as they exit the intervertebral foramina noted respectively.
2.Mild to moderate C6/7 cervical canal stenosis secondary to a central and left C6/7 disc prolapse with left sided cord impingement without myelomalacia and impingement of both C7 nerve roots within both lateral recesses, and as they exit the C6/7 intervertebral foramina bilaterally.
3.Marked lower cervical spondylosis.”[11]
[10] PCB 120.
[11]PCB 120-121.
15Shortly after that MRI scan, the plaintiff commenced attending Dr Umit Cenap as his general practitioner for matters in relation to his WorkCover claim. Otherwise, he continued consulting Dr Rowais for other medical conditions, including his longstanding diabetes.
16By 14 April 2016, the plaintiff had been referred by Dr Cenap to see Mr James King, neurosurgeon. Mr King wrote back to Dr Cenap[12] and said that he considered the plaintiff’s symptoms to be consistent with a left C7 radiculopathy, present then for nearly four months. Mr King proffered the option of a left-sided C6‑7 nerve root sheath injection. He said that if symptoms were ongoing, the plaintiff could consider decompressive surgery.[13]
[12]PCB 28
[13]Ibid.
17In approximately March 2016, the plaintiff ceased work with the employer. He has not worked since then. A WorkCover claim was lodged against the employer and that was accepted. For periods the plaintiff received statutory benefits.
This proceeding
18Returning to the nature of this proceeding, the plaintiff claims that in the course of his employment with the employer he has suffered a “serious injury” either in respect to a physical injury to the cervical spine, or a consequential psychiatric injury. In respect to the physical injury, the plaintiff accepts that the injury is the aggravation of underlying degenerative change and must be assessed in accordance with the well-known principles in Petkovski v Galletti.[14] In respect to the claimed psychiatric injury, it was put that the plaintiff had developed major depression, chronic anxiety, and an adjustment disorder secondary to his work-related neck injury.
[14][1994] 1 VR 436; T1 L29-31; T2 L1-2.
19The plaintiff submitted that each of the claimed injuries are “serious” both in respect to pain and suffering and pecuniary loss consequences, bearing in mind that the psychiatric consequences cannot be taken into account for the purposes of assessing the physical consequences from the claimed injury to the neck.[15]
[15] ss325(2)(h), (i) of the Act.
20The defendant accepts that the plaintiff suffered the aggravation of underlying degenerative change in the cervical spine. The defendant raises as an issue whether such aggravation persists, or whether any symptoms that the plaintiff now suffers are due to the underlying condition, but that was not the major thrust of its contentions. Accordingly, for practical purposes, and upon a consideration of all the evidence including the medical evidence, this is not really a proceeding in which causation is a major issue. I accept that, in the course of his employment with the employer, the plaintiff suffered the aggravation of underlying degenerative change in the cervical spine. The totality of the medical evidence tends to the conclusion that such an aggravation persists. The real issue is whether the plaintiff has discharged his evidentiary onus to establish whether he has suffered a “very considerable” pain and suffering consequence or a “very considerable” pecuniary loss consequence.
21The proceeding was otherwise conducted in the “usual manner”. The plaintiff tendered affidavits sworn by him, together with relevant medical and related documents. He gave oral evidence. The defendant also tendered relevant medical and related documents. The defendant also tendered several pieces of video surveillance obtained by it of the plaintiff.
22I have considered all the tendered evidence and the transcript of the plaintiff’s oral evidence. I shall refer to it to the extent necessary in these reasons.
The credit attack on the plaintiff
23The defendant’s credit attack on the plaintiff was made on several bases.
24Firstly, the defendant relied on the video surveillance and submitted that the plaintiff demonstrated a greater range of neck and left shoulder movements in the video surveillance than what he had told the doctors.
25Secondly, the defendant raised the plaintiff’s different descriptions at times as to being left or right-handed, as an example of him trying to maximise the effect of his problems.[16]
[16]T30, L25.
26Thirdly, the defendant raised as an issue the status of the plaintiff’s relationship with his claimed ex‑de facto partner, and the fact that there was no supporting affidavit from her.[17]
[17]T30, L28-29.
27Fourthly, the defendant raised the evidence in medical reports and records of the plaintiff having a low back condition, which was not mentioned in his affidavits, as a relevant credit issue and relevant to assessing consequences from the claimed neck injury.[18]
[18]T40, L4.
28Finally, the defendant raised the plaintiff’s evidence as to why he had not had the injection recommended by Mr King[19] as a credit issue, but this was also more broadly raised as a submission that the injury was not “serious” because the plaintiff had not required the injection.[20]
[19]T40, L24.
[20] T105 L23-31; T106 L1-2.
Video surveillance
29It is convenient to commence an analysis of the plaintiff’s credit by dealing firstly with the video surveillance because, as the defendant submitted, it is the bigger point in relation to his credit.[21]
[21]T31, L30.
30Before dealing with the specifics of the video surveillance played and tendered in this proceeding, I accept that the video surveillance must be seen in both time and context.[22]
[22]Church v Echuca Regional Health [2008] VSCA 153.
31It is relevant that the surveillance was not provided to any of the doctors. The defendant obtained film over a period of several years, albeit for a relatively short period of time on each occasion and chose not to provide the surveillance to any of the doctors, or indeed exchange it as part of the serious injury response. Having said that, the defendant was not compelled to exchange the surveillance. But in circumstances where it has made a forensic decision to keep the surveillance “up its sleeve”, then the question is whether the surveillance is “so good” for the defendant’s case that when considered in time and context it impugned the plaintiff’s credit.
32Turning, then, to the issue of the video surveillance, the defendant played in Court (in the order tendered), and tendered, video surveillance of the plaintiff obtained on the following dates:
· 25 July 2017[23]
· 23 September 2019[24]
· 26 April 2022[25]
· 2 May 2022[26]
· 19 April 2022.[27]
[23]Exhibit D1.
[24]Exhibit D2.
[25]Exhibit D3.
[26]Exhibit D4.
[27]Exhibit D5.
33For the purposes of determining this proceeding, I have had the benefit of the video surveillance being played in Court and the plaintiff’s oral evidence of what is shown in it. Separately, I have watched the video surveillance for the purposes of providing these reasons. The following is a summary of my observations of the video surveillance.
25 July 2017
34The plaintiff was observed on the day that he attended a medical examination with Mr Michael Dooley. The video surveillance demonstrated him to have a full range of movement of his neck and left shoulder, particularly when holding a coat and opening the boot of his car. He was observed to drive without any apparent difficulty. He was also observed walking in the street with a friend, in which he appeared to be chatting and smiling.
23 September 2019
35In a short section of surveillance, the plaintiff was observed standing at an ATM without any obvious restriction.
36Next, he was observed sitting with a friend for coffee. Then, at approximately 1.48pm, he was observed walking through a shopping centre with a woman, who was subsequently identified as his ex-partner. Over a period of approximately forty-five minutes, they were observed moving throughout the shopping centre and spending time in a Coles supermarket. At the Coles supermarket, he was observed to demonstrate a full range of movement of his left arm to reach to select goods (cat food) from a shelf. At no stage did he appear to favour his left arm.
26 April 2022
37The plaintiff was observed attending a bank. He was observed standing and moving in an apparently unrestricted manner. He appeared to have a full range of movement when turning his neck to drive his car. The video surveillance commenced at approximately 9.42am. By 11.46am, there was video surveillance of him exiting a medical examination that had been arranged by the defendant with Dr Soliman in Rowville. The plaintiff appeared to smile and move his left arm without any obvious restriction. Then, at approximately noon, he was observed at a shopping centre, walking arm in arm with his ex-partner. They moved through the shopping centre and spent time looking at a butcher’s counter, and other shops. At one stage, the plaintiff was observed walking freely and swinging his left arm without any obvious restriction, while his right hand was in his pocket. For a short period, he sat and manipulated keys on a keyring, using his left hand. At 1.26pm, he and his ex-partner were observed in a vehicle, with the plaintiff driving. He turned his neck in a rapid manner to check traffic and reverse the vehicle.
19 April 2022
38At approximately 6.17am, the plaintiff was observed at a petrol station, paying for fuel. In a short section of film, he was observed to bend over the counter without any obvious restriction in neck movement and he was observed to walk freely without any apparent sign of restriction.
2 May 2022
39In a short section of film, the plaintiff was observed outside at approximately 7.05am. Next, he was observed at 8.36am driving and again did not demonstrate any apparent restriction. At 8.52am, he was observed shopping and carrying items with his left arm. He was then again seen to drive his car and turn his neck without any obvious restriction to reverse. Apparently the first section of film was taken after he had attended a mosque at Meadow Heights.[28]
[28] T28 L27-29.
Has the video surveillance impugned the plaintiff’s credit?
40As already discussed, the main thrust of the defendant’s credit attack was built around the video surveillance. My impression, from having watched the video surveillance, is that the plaintiff is able to engage in ordinary daily activity without any apparent restriction in the ability to move his neck or left arm. Obviously, pain cannot be seen but, on the video, the plaintiff did not display any obvious limitation caused by pain. He did not appear to favour his left arm. He did not appear to make any effort to modify his activities to allow for a painful neck or left arm. He appeared to be able to grip and lift items – albeit of a relatively light weight – without any restriction. He appeared to be able to enjoy time in the company of a friend and his ex-partner. Insofar as his affect could be judged from the surveillance, at times he appeared to be in good spirits and enjoying the activities in which he was engaged.
41The video surveillance also suggests that whatever his relationship is with his ex-partner, it is a close relationship, as revealed by what I conclude to be a show of affection when walking arm in arm at a shopping centre.
42Pausing, of course it is possible to maintain a close relationship with an ex-partner, particularly where the relationship has produced a daughter but, equally, it might be thought to be unusual to be walking arm in arm with an ex-partner. At the very least, it demonstrates that they are in a sufficiently friendly relationship so that she would be available to provide an affidavit.
43In circumstances where the plaintiff claims that his neck injury is so bad to require his ex-partner to perform household chores for him – described ineloquently by his counsel as there being no relationship other than a “domestic service relationship”[29] ꟷ I consider an adverse inference can be drawn by the failure to provide an affidavit from his ex-partner. During oral evidence, it transpired that she does not drive. The video tends to the conclusion that the plaintiff had taken her shopping and it was he who was providing domestic assistance to her, and not the other way around. The video surveillance suggests that his evidence about the status of the relationship is not credible and the failure to provide an affidavit from her, in my view, adds to the inference that can be drawn regarding the status of the relationship.
[29]T64, L16-18.
44But, more broadly, the video surveillance raises the reliability of the plaintiff’s evidence as to the amount of pain he has in his neck and left arm, and his restrictions caused by the injury to his neck. I conclude that the plaintiff has exaggerated the extent of his pain and disability. To understand that conclusion, it is necessary to then turn to the plaintiff’s evidence and what he has told the doctors about his level of pain and restrictions.
The plaintiff’s affidavit evidence
45The plaintiff swore affidavits in support of his serious injury application on 28 April 2021[30] and 22 July 2022.[31]
[30]PCB 5.
[31]PCB 138.
46In his first affidavit, he said that he continues to take Endep and Tramadol daily and that he also took Seroquel and Valium. He said he was seeing a chiropractor as often as he could afford. He then set out the consequences as follows:
“I still feel pain in my neck all the time. This is present on both sides, and particularly severe on the left. I am stiff on both sides of the neck.
The pain goes from my neck down my left shoulder and arm. In the arm, it is a pulling sort of sensation and I feel numbness in the fingers on the left hand, in particularly [sic] the index and middle fingers and my thumb.
Turning my neck from side to side makes the pain worse. When looking up, I feel pain, particularly in the middle part of the neck.
Cold weather makes the pain worse.
Sleep brings on the pain, and I wake up at night almost every night. I take medication to help me sleep.
I have great difficulty doing household chores. I used to be able to clean my house and vacuum and mop. I now do this less so.
Because of this, I have been getting help from a carer who is my ex-partner. She comes for up to three days a week for three hours per day, to do the household chores. She is paid via Centrelink.
I have never been a great cook but I have problems cooking. Lifting pots and pans is difficult. My carer helps by cooking up big portions of food, which last a few days.
Carrying groceries is very difficult. I tend to carry with my right hand. My carer helps.
My social life has suffered. I used to swim in the pool. I used to visit friends for coffee or to go to restaurants. I now avoid doing so and I make up excuses not to go.
My pain affects my mood. I am feeling down and sad all the time. I feel alone. I don’t want to socialise. I have trouble concentrating. I have problems with my memory and forget things like doctors’ appointments and I lose my train of thought.
I used to be quite active and I was a hard worker. I miss working. Now my life has completely changed, and I feel like I am always under pressure.”[32]
[32]PCB 9-10.
47In his second affidavit, he said that he lived alone and positively responded to a history in a medical report that he lived with his ex-partner as “not correct”.[33] In respect to his current symptoms, he said as follows:
[33]PCB 138.
“There has been little change in my neck symptoms since swearing my previous affidavit.
I continue to suffer from constant pain in my neck. The level of that pain continues to vary depending on activity.
The pain from my neck radiates to both shoulders, but in particular my left shoulder, and down my left arm. I have been advised that there is no specific problem with my shoulders, that this is referred pain from my neck.
I also sometimes experience pins and needles down my left arm and occasional numbness in the fingers on my left hand and my left arm tends to feel weak.
I refer to paragraph 34 of my previous affidavit and note that looking down also aggravates the pain in my neck.
I now suffer from headaches associated with my neck pain.
The following movements/activities aggravate the pain in my left upper limb:
•Driving. In particular doing head checks and having [sic] using my left hand on the steering wheel aggravates my pain. Consequently I tend to rely much more heavily on my mirrors and on my right hand for the steering wheel.
•Reaching. I can still lift my arm up however it is painful when I do it.
•Lifting. I try to avoid using my left hand as much as possible.
My sleep continues to be affected by neck pain. I tend to wake up multiple times during the night with pain in my neck. I have difficulty getting comfortable and the loss of sleep makes me feel fatigued the next day as I have trouble getting proper rest.
My ex-partner continues to help with the household chores including the cleaning and she cooks for me when she comes (as set out in my previous affidavit). She typically comes two to three times a week. I am capable of looking after myself at home as I don’t create much of a mess and she assists with cleaning the bathroom and doing the mopping and vacuuming. I am capable of shopping and capable of keeping things tidy.
Mind
My mental health symptoms have worsened since swearing my previous affidavit.
I continue to feel sad constantly. I now suffer from anxiety. I get tearful regularly. I have become irritable and short tempered. I am frustrated with my life. I have very little motivation.
Recent and current treatment
From in or around March 2018, in the context of frustration and depression associated with my work related injuries, I started seeing Sumeet Kochar, psychiatrist. I continue to see Sumeet today. Presently I see him every 4-6 weeks depending on his availability. There have however been periods where I have not been to Sumeet. During these periods I have been severely lacking in motivation.
I continue to see Dr Cenap on a relatively regular basis for my work related injuries. I also continue to see Dr Rowais to manage by diabetes. Dr Rowais constantly tells me that my diabetes is poorly controlled. The problem is given my physical injuries I eat basic meals and they’re not the healthiest. Consequently I am told my diet is not as it should be. I also sometimes lack motivation to eat all or to take my insulin. I feel depressed and my state of mind as well as my mood is poor.
I go to the chiropractor for the pain in my neck under the GP Health Care Plan. I believe that I have been 2-3 times this year as I’m only allowed 5 sessions per year as WorkCover isn’t funding any further medical expenses.
I currently take the following medication:
(a) Tramadol 200mg. I tend to have one tablet daily for the pain in my neck and left arm;
(b) Seroquel 50mg, every day for my mental health;
(c) Valium 5mg – I usually take this 2 to 3 times per week;
(d) I was taking Endep up until a couple of months ago and I now take Valium. This is managed by my psychiatrist.
Capacity for work
I have not worked since ceasing work for the Defendant nor have I put in any applications to work as I do not believe that I have the capacity to perform any work within my capabilities.
In addition to the matters set out in paragraphs 29-30 of my previous affidavit, I have limited computer skills. I have a laptop at home, but I rarely use it other than for email and internet surfing for things like news from Turkey.
Sometime in early 2017 I applied for a taxi licence. I had been out of work for nearly a year by this stage and was getting frustrated at what I could do. I passed the accreditation, however I never drove a taxi. This lapsed and I renewed it in 2020. I did not drive a taxi driving this period or after a renewal. I thought that this might have been a suitable job for me to do when I first applied, however it never happened.
I did not make mention of this in my first affidavit and this was a mistake on my part. I did not mention this to my solicitors either and that was also a mistake I made. I have not driven a taxi and I don’t think that I am physically capable of performing the duties of a taxi driver being on the road all day and having to perform head checks. I apologize for failing to disclose this application and despite the fact that I have not driven a taxi, I should have disclosed it.”[34]
[34]PCB 138-140.
48Further, in his second affidavit, the plaintiff said he suffered unpredictable headaches, but when they came on, he needed to lie down in a dark room and rest until they passed.[35] He also said, in respect to relevant consequences that:
“I am capable of driving and I have driven my vehicle to Geelong and other places within the Melbourne Metropolitan area. I have had a number of traffic infringements. Driving is not a major problem for me as I tend to drive locally, however at times I got for a longer drive to try and clear my head.
I last went overseas in or around February 2019 to Bali for around a week. I went with a friend. I enjoyed my time in the pool and found the warm weather relaxing. I think this has been the only time I have been overseas for more than 10 years. The flight caused me to suffer increased neck pain and I struggled to get comfortable. The warmer tropical weather was a benefit to me.”[36]
[35]PCB 142.
[36]PCB 143.
49The plaintiff’s affidavit evidence described constant neck pain of varying severity, depending on activity and that movement of the neck aggravates the pain. He described referred pain down the left arm, pins and needles in the left hand and occasional numbness. He said he had “great difficulty”[37] doing household chores and required assistance from his ex-partner up to three days a week, for three hours per day. He described low mood, feeling sad constantly, tearful on a regular basis and with little motivation.
[37] PCB 10.
50To paraphrase, the affidavits paint a picture of a man with constant, chronic neck pain, with a limitation for day-to-day activity, requiring a career and, in his words, injuries that mean his life is now “completely changed”.[38]
[38] Ibid.
The plaintiff’s oral evidence
51It is convenient to deal with the plaintiff’s oral evidence in the order adopted by the defendant’s counsel.
52The plaintiff was first challenged about the history given as to whether he was left or right-handed.[39] It was suggested that he told some doctors that he was left-handed because he was trying to mislead them about how bad his injury was. He said, “[n]o”.[40]
[39]T5, L21-22.
[40]T7, L2.
53Next, the plaintiff was cross-examined about what had been recorded in medical reports as to his symptoms and range of movement in the neck and left arm. In that context, the video surveillance was played and tendered. This cross-examination can be summarised succinctly. Whenever the plaintiff was confronted with what was shown in the video surveillance, his response was to say that he had pain.[41] The flavour of the plaintiff’s oral evidence was that he has pain, but despite that pain, there are times when he needs to move his neck or use his left arm. When asked about reaching up at the supermarket with his left arm, he said “[y]eah, sometimes I use it but it is still sore”.[42]
[41]See, for example, T9, L31 ꟷ T10, L22.
[42]T14, L30-31.
54Next, the plaintiff was cross-examined about the relationship with his ex-partner. When asked whether they were in a relationship he said, “[y]es, we talk. We have a child together”.[43] He then clarified his answer to say that they were “not involved”.[44] When asked about holding hands on the video, suggesting some form of relationship, the plaintiff said, “[l]ook like it, but is not”.[45]
[43]T16, L16-17.
[44]T16, L26.
[45]T17, L28.
55Returning to his range of movement, the plaintiff was cross-examined about the day he attended Dr Soliman and how he appeared on the video leaving that examination. When asked about Dr Soliman recording that an attempt to move the neck more than 50 per cent caused him to express pain verbally and with facial grimacing, the plaintiff said, “I suppose whatever my pain level was, I was showing that”.[46] When it was put to him that the video surveillance after Dr Soliman’s examination showed him moving around freely and using his neck in a normal manner, the plaintiff returned to his theme of pain when he said, “I do have pain but normally, I have to walk and do my business”.[47]
[46]T19, L25-26.
[47]T20, L6-7.
56It was put squarely to the plaintiff that when he goes to see the doctors, he “put on a show”, to which he said “[n]o. Whatever the truth is I say”.[48] It was then put to him, regarding Dr Soliman, as follows:
Q:“And I suggest to you that what you told Dr Soliman on the day you saw him, and the way you presented to him when he examined you, was different to the video before and the video after on the same day?‑‑‑
A:I told the doctor my pains and aches and whatever I felt on the day. But I don't understand what you - why you're - what you're - why you're asking me these. What has it got to do with me smiling.
Q:I suggest your presentation on the video, just before you saw Dr Soliman and just after you saw Dr Soliman, was different to how you were when you saw him. What do you say?‑‑‑
A:I just am acting normally I suppose, whether I'm painful or not. Just trying to make a smile.”[49]
[48]T22, L21-23.
[49]T22, L24;T23, L5.
57In respect to the video surveillance, I asked him was the surveillance an accurate representation of an average day, to which he eventually said, “[y]es, I suppose. I do have pain, but I am the way I am”.[50]
[50]T234, L17-18.
58The cross-examination culminated with the suggestion to the plaintiff that the video demonstrated no problems with his neck, to which he responded, “[a]h, I – I do have pain”.[51] It was further suggested that the surveillance showed him to have no problem with his left arm or left hand, to which he said, “[n]o, I do have pain”.[52] It was then put to him that the video showed he had exaggerated his problems when he sees the doctors, to which he said, “[n]o. Ah, whatever the truth is, ah, I tell the doctors”.[53]
[51]T34, 24.
[52]T34, L25-27.
[53]T34, L30-31.
59The plaintiff was cross-examined about jobs identified in material tendered by the defendant. It was put to him that his previous work experience, including running his own business, combined with his administrative skills, were such that there was work he could now do. He was cross-examined about obtaining a security licence and a taxi licence. His evidence was that he would not be able to do those jobs. This was summarised when it was put to him that he was capable of any type of work, unrestricted work, and said “[n]o, no, I don’t agree with that. I’ve got pain”.[54] When asked what might stop him from doing parts of his old job with the employer, he said, “my pain, excessive pain”.[55]
[54]T55, L4-5.
[55]T55, L29.
60In re-examination, the plaintiff was asked whether, in the video, he could see himself in pain, and he said, “[y]es. I absolutely do”.[56]
[56]T61, L7.
The description of pain and disability given to the doctors
61Next, it is convenient to briefly set out what the plaintiff has said to the doctors regarding his level of neck and left arm pain, together with a description of his disability.
(i)The treating doctors
62Commencing with Dr Cenap, his most recent report is dated 24 July 2022.[57] In that report, he sets out a diagnosis as multiple cervical disc prolapse with multilevel canal stenosis, with impingement on C5, C6 and C7 nerve roots, more on C7 nerve root and cervical spondylosis.[58] He also describes the plaintiff suffering anxiety, depression and chronic adjustment disorder, due to his constant pain and inability to function and work.[59] Finally, he described the plaintiff as having right shoulder rotator cuff tendinitis and subacromial bursitis, which has improved.
[57]PCB 144.
[58]PCB 146.
[59] Ibid.
63But returning to the description of pain and disability, Dr Cenap recorded as follows:
“Mr. Gundogdu has constant neck pain, numbness in arms and hands, more on the left side, restricted movements of neck, shoulder, arms and hands. He has pins and needles in thumb, index and middle fingers of both hands. He is unable to stand, sit or walk for long. He can’t lift, push, bend or kneel.[60]
[60]PCB 145.
64Dr Cenap said, further, in respect to work capacity, that:
“Mr. Gundogdu is not fit to do any pre-injury or any alternative duties at present. As mentioned above he has constant disabling pain at his neck, shoulders and arms and restricted mobility of all his movements at neck, shoulders and arms. He has headaches and insomnia from pain. He has no work capacity at all. He is also restricted with his social, domestic and recreational activities. He needs a care taker for shopping, cooking and cleaning his house.
Mr. Gundogdu’s treatment needs to continue, i.e. medications, hydrotherapy, physiotherapy and psychosocial support as well as home help. He had been recommended C6-7 nerve root block and if this is beneficial, later to consider decompressive surgery with anterior cervical discectomy at C6-7and fusion. He is compliant with his medical treatment. However, he is afraid to have nerve sheath injection or decompressive neurosurgery.
Mr. Gundogdu’s prognosis is not good. He is not improving with his condition. However, his physical as well as his depression, anxiety and Adjustment Disorder is worse. At present his medical treatment consists of Endep 50mg, Tramadol SR 200mg, Valium 5mg, Voltaren 50mg and Famotidine 40mg.”[61]
[61]PCB 146.
65As is clear, Dr Cenap has accepted his patient’s description of constant neck pain, symptoms, and impairments.
66I am not critical of Dr Cenap, but his opinion highlights the issue of the credibility and reliability of the plaintiff’s evidence. Dr Cenap has accepted his patient as telling him the truth. But, in my opinion, the man described by Dr Cenap is different to the man shown in the video surveillance.
67In Petrovic v Victorian WorkCover Authority,[62] Beach, Kaye and Niall JJA commented that:
“As has been said many times before, in a personal injury proceeding, the evidence of the plaintiff (and whether that evidence is accepted by the trier of fact) is often critical to the success or otherwise of the plaintiff’s proceeding. This is particularly so in cases involving psychiatric injuries. Additionally, in such cases, the opinions of medical experts (and the question of whether those opinions should be accepted) are often also heavily dependent upon the acceptance of the plaintiff’s account. Put shortly, the opinion of any particular expert opinion in a case like the present is usually only as good as the underlying history upon which it is based.”[63]
(Footnotes omitted.)
[62][2018] VSCA 243.
[63]Ibid [74].
68I consider the comments in Petrovic to be apposite to the proceeding before the Court and to Dr Cenap’s opinion. Accordingly, I do not accept his opinions as to the level of pain and disability that the plaintiff suffers.
69Next, Dr Khal Rostom is a chiropractor who has treated the plaintiff. In a short report, dated 8 October 2018,[64] he set out the treatment provided to the plaintiff. He noted that prolonged sitting aggravated the plaintiff’s condition, and the pain was so intense at times that it affects his sleep. The report is out of date and the balance of it is not of much assistance in understanding the extent of the plaintiff’s pain and disability.
[64] PCB 40.
70The only other relevant treating practitioner from whom reports have been provided is Dr Sumeet Kochar, a consultant psychiatrist. He has provided several reports, but his most recent report of 14 June 2022[65] is a comprehensive overall summary. He notes the plaintiff was referred in December 2017,[66] for “poor insight, depressed, anxious with non compliance [sic]”.[67] The initial history was of the plaintiff experiencing severe neck pain radiating to his shoulder and arm in January 2016, which progressively worsened. Dr Kochar notes the plaintiff as suffering ongoing chronic neck, shoulder, and arm pain. He said that, despite his treatment and different trials of antidepressant medication, the plaintiff continues to suffer from depressive symptoms, including anxiety and feelings of panic. He said he thought “the adjustment disorder has evolved into Major Depressive Disorder.”[68] This, he said, in combination with the plaintiff’s chronic pain, had a significant impact on his daily functioning and, in his words:
“… not only limiting his ability to attend to his activities of daily living (hence need for carer), but also in his ability to complete any work or occupational duties, or even engage in social activities that would normally cause enjoyment. … .”[69]
[65] PCB 50.
[66]From earlier reports, it would appear it was Dr Rowais who made the referral.
[67]PCB 52.
[68]PCB 53.
[69]Ibid.
71At the risk of repetition, the video surveillance suggests that the symptoms and limitations described to Dr Kochar are not accurate. Accordingly, I do not accept his opinion as to the level of the plaintiff’s claimed psychiatric condition and impairments.
(ii)The plaintiff’s medico-legal reports
72The plaintiff was seen for medico-legal purposes by Mr Harry Clitherow, orthopaedic surgeon, at the request of his solicitors. In his first report, dated 8 September 2017,[70] Mr Clitherow did not obtain any past history of neck or shoulder problems before the onset of symptoms with the employer. On physical examination, the plaintiff demonstrated some limited restriction of movement. Mr Clitherow opined, in his report, that the plaintiff might have some left AC joint pathology. He then provided a further report in answer to a question about the cause of the plaintiff’s neck symptoms and stated that, to answer that question, would need the opinion of a spinal surgeon.[71]
[70]PCB 55.
[71]PCB 59.
73Next, Professor Richard Bittar is a neurosurgeon who examined the plaintiff at the request of his solicitors. In his first report of 19 May 2018,[72] he had a history of neck pain, constant and varying in character between sharp and gnawing. The entire neck was involved, with pain into both shoulders. Professor Bittar recorded that neck pain was of an average severity of 7/10, with a maximum severity of 10/10. He obtained a history, including that:
“His neck pain is exacerbated by a variety of activities including repetitive or sudden neck movements … .”[73]
[72]PCB 60.
[73]PCB 60.
74Professor Bittar provided a further report, dated 8 July 2019,[74] which essentially was in response to a request to review documents and express an opinion about causation.
[74] PCB 76.
75Professor Bittar then provided a third and final report dated 13 May 2022.[75] He repeated his description of the plaintiff having constant neck pain. He said that the pain was:
“… generally dull in character. Both sides of his neck are affected but the left side is more painful than the right. His neck pain has an average severity of 7/10 and generally does not move much from that level of intensity apart from with colder weather. He estimates that his maximum severity is around 9/10. His neck pain continues to cause significant sleep and concentration disruption, with a severe impact on his social, recreational and domestic activities.”[76]
[75]PCB 86.
[76]PCB 78 and PCB 86.
76Professor Bittar recorded that the plaintiff told him that he socialised much less than he did previously due to constant pain and that his recreational activities were severely impacted.[77] In respect to domestic activities, Professor Bittar recorded that:
“His domestic activities, including his ability to undertake vacuuming and mopping are significantly impacted, and his ability to cook is also limited. Shopping is difficult. He requires assistance with these activities.”[78]
[77]PCB 88.
[78]PCB 89.
77Mr Raf Asaid is an orthopaedic surgeon who examined the plaintiff and provided a report dated 24 May 2022,[79] at the request of his solicitors. He recorded the plaintiff’s current symptoms as neck pain, and that the plaintiff had not experienced any improvement in his symptoms, despite ceasing employment more than six years ago.[80] Mr Asaid recorded that:
“The pain in his neck is described as constant in nature. The pain affects the midline and bilateral paraspinal regions of the cervical spine. The pain radiates into both his shoulders and down his left arm. His left arm feels weak and he experiences numbness in his thumb, index and middle finger. The pain differs in intensity depending on his level of activity. His neck feels stiff and he has difficulty turning his neck in any direction.
He is independent with his activities of daily living. His ex-partner whom he lives with, performs the majority of the domestic duties and grocery shopping. He occasionally goes to the supermarket but he has difficulty carrying any heavy grocery bags with his left arm. He is still able to drive. He reports the pain in his neck occasionally wakes him from sleep.
He previously enjoyed activities such as swimming and socialising with friends. He now has difficulty participating in these activities. His mood and mental health has been greatly affected and he has required treatment from a Psychiatrist. He reports that he feels both mentally and physically broken. He is also under a great deal of financial stress as a result of being unable to return to work.”[81]
[79]PCB 94.
[80]PCB 95.
[81]PCB 96.
78Mr Asaid found the plaintiff to be tender on palpation over the midline and bilateral spinal regions of the cervical spine. He also noted the cervical spine range of motion was reduced in all directions and that movement of the neck aggravated the plaintiff’s pain. He described mild globally-reduced power in his left upper limb, secondary to pain, but that upper limb reflexes were normal. He recorded a description of a reduced sensation in the left upper limb in a non-dermatomal distribution. He found bilateral shoulder range of motion as normal.[82]
[82]PCB 97.
79Mr Asaid further recorded that:
“Mr. Gundogdu reports that he has been unable to return to work in any capacity since March 2016. His medication regimen has been outlined in the body of the report.
He is independent with his activities of daily living. His ex-partner whom he lives with, performs the majority of the domestic duties and grocery shopping. He occasionally goes to the supermarket but he has difficulty carrying any heavy grocery bags with his left arm. He is still able to drive. He reports the pain in his neck occasionally wakes him from sleep. He previously enjoyed activities such as swimming and socialising with friends. He now has difficulty participating in these activities. He reports that he feels both mentally and physically broken. He is also under a great deal of financial stress as a result of being unable to return to work.”[83]
[83]PCB 100.
80Next, the plaintiff was assessed by Dr Nicholas Ingram, consultant psychiatrist, at the request of his solicitors. In a report dated 27 May 2022,[84] recorded the plaintiff’s level of activity as follows:
“Mr Gundogdu had not returned to work since he had left in March 2016 and had not felt that he would be able to work in any capacity now because of his pain and the limitations that this had led to.
He had been living on his own for many years prior to his injury, though he said that before he had hurt his neck he had had a good social life and had regularly gone out with friends to restaurants and bars or to swimming pools and he had also been able to do all the cooking and cleaning and shopping and although he had been on his own, he had been fairly content with his life.
In contrast, since he had developed his chronic pain he had been unable to do much at all and for the last few years he had been having a carer come three days a week for three hours a day to do the vacuuming, cooking and washing. He had still made the effort to get up every day and have a shower, despite the difficulty caused by his neck pain, though he had had little to do and much of the day had just sat around and watched television or played with his cats.
He had no longer felt like seeing his friends and had therefore only seen them occasionally, as he had not felt like being with people. He had sometimes gone out for a drive when he had sat in his car for a while, just for a break, which had sometimes helped him feel a little bit better. He had also seen his 16-year-old daughter regularly, which sometimes had been good, though sometimes he had wanted to avoid seeing her because of how he had felt.”[85]
[84]PCB 102.
[85]PCB 103.
81Under a description of “Present Psychiatric History” (emphasis in original), Dr Ingram said:
“Mr Gundogdu stated that his main psychological problem had been that he had become depressed. This had come on a few years previously, related to his ongoing pain and the fact that it had not been getting better and that he had developed significant financial problems and that he had no social life. He said the depression had been with him the whole time and he had no longer enjoyed anything at all and it had slowly been getting worse.
Associated with the depression had been a loss of motivation and he had found it very difficult to get interested in things and he had become more socially withdrawn and had been tearful every week or two. He had often felt hopeless and as though there had been no point living, as he had now felt that he would be unable to achieve anything in his life.
His sleep had been disturbed because of his pain and he had then often lain awake being preoccupied with thoughts about his life and the future. His appetite had been reduced and he had lost four kilograms in weight and his energy levels had been low and he had done no exercise. His memory and concentration had been impaired and there had been a complete loss of libido. He felt angry about what had happened to him and he thought he had become more intolerant and irritable.
As well as being depressed he had felt anxious a lot of the time, worrying about his life and his financial situation and the future, and he had also had episodes every week or two when he had felt quite panicky and had had tightness in his chest, palpitations and sometimes also sweating and difficulty breathing, and these had lasted for about twenty minutes.
He had been seeing a psychiatrist for the last two years and had initially been on Efexor, 300mg a day, though in the last few months he had been started on Seroquel, 100mg at night, which he felt had helped him more than the Efexor.”[86]
[86]Ibid.
82Dr Ingram then summarised the situation as the plaintiff having chronic pain in his neck and shoulder that had not improved and caused the plaintiff to become significantly limited in his physical activities and unable to work. He recorded that, psychologically, the plaintiff had become depressed due to his pain and limitations and financial problems, with an associated loss of motivation and concentration, and the plaintiff has had infrequent panic attacks.[87]
[87]PCB 104.
83Next, the plaintiff was referred to Dr Kilner Brasier by his solicitors. Dr Brasier is an occupational and environmental specialist physician and provided a report dated 8 June 2022.[88] Dr Brasier had a history of the onset of symptoms and the plaintiff ceasing work in March 2016. Dr Brasier recorded that the plaintiff’s neck and left upper limb pain had remained unchanged since then. A history was obtained that the plaintiff’s driving and participation in social and sporting events had been restricted by his neck/shoulder injuries.[89] In respect to current symptoms and function, Dr Brasier recorded that:
[88]PCB 107.
[89]PCB 109.
“Mr Gundogdu complains of bilateral neck pain sharp in nature radiating to his left arm and shoulder. He describes his pain level as a constant 7/10 with exacerbations of up to 10/10. The left side of his neck and shoulders is more affected than the right that is affected intermittently.
He states his neck pain is aggravated by coughing or sneezing.
He also complains of numbness in his left thumb and index and third finger.
He suffers from headaches on a weekly basis. His symptoms are aggravated by cold weather.
He complains of overall weakness of his left upper limb.
With respect to his tolerances Mr Gundogdu states he struggles to lift any object with his left upper limb. His walking and standing he reports is within normal limits.
He is unable to push or pull heavily with his left upper limb.
He states he has been noticing some aching symptoms in his right upper limb as a result of overuse. His sleep is adversely affected due to his neck pain.
With respect to the activities of daily living he states he is independent in dressing and grooming bathing and toileting however he does struggle somewhat with grooming above shoulder height.
He reports he struggles with domestic chores particularly heavy activities such as sweeping of [sic] vacuuming and does not undertake any gardening, he does some light shopping and driving a motor vehicle is limited to about one hour.”[90]
[90]PCB 110.
84Further on in the report, Dr Brasier recorded injury-related functional limitations as follows:
“… In my opinion Mr Gundogdu as [sic] ongoing injury-related functional limitations as follows;
- Lifting limited with his left upper limb;
- Carrying limited with his left upper limb;
- Reaching restricted with his left upper limb;
- His Driving is limited to one hour;
- Prolonged stooping/bending is limited;
- Postural intolerance of neck particularly looking up and left shoulder reaching forward; and
- Limited/reduced range of motion of both his neck and left shoulder.”[91]
[91]PCB 113.
85Pausing here, the evidence from the plaintiff’s treating practitioners and the medico-legal examiners engaged on his behalf is of a man with constant, chronic neck pain, at best described as 7/10 and, at worse, 10/10. I understand that to be a description of constant, unrelenting, and severe neck pain. Further, the medical evidence discussed to this point, paints a picture of a man greatly restricted for any domestic, social, recreational or employment activities. Put simply, the video surveillance suggests otherwise. During his oral evidence other than claiming that he was in pain, the plaintiff provided no useful explanation for the discrepancy between what was seen in the video surveillance, compared to the other evidence.
(iii)The defendant’s medico-legal reports
86Moving, then, to the defendant’s medical reports, several of those are out of date and of little immediate relevance. But starting with Mr Dooley, he is an orthopaedic surgeon who examined the plaintiff and provided a report dated 7 August 2017.[92] His report is of some significance, as it was provided on a day on which there was video observation of the plaintiff. In respect to the physical examination, Mr Dooley recorded the following:
“There is tenderness along the dorsum of the cervical spine.
Flexion is to thirty degrees and extension is to twenty degrees. Lateral flexion to the left and to the right is to twenty degrees. Rotation to the right is to sixty degrees and to the left is to forty degrees.
There is a general reduction in power in the left upper limb. Sensation is intact.
There is a symmetrical reduction in the biceps and brachioradialis reflexes.
The shoulders are normal to examination.”[93]
[92]DCB 78.
[93]DCB 79.
87Mr Dooley further recorded the plaintiff as reporting:
“… constant ongoing neck pain and left upper limb pain. He reports significant disability. Accepting that the history he provides is consistent with him sustaining a soft tissue injury to his cervical spine, it would be my view that the constancy and intensity of his ongoing pain and his described disability are greater than one would expect to see for his organic condition. … .”[94]
[94]DCB 80.
88Next, the plaintiff was seen by Mr Patrick Lo, neurosurgeon, at the request of the defendant. In a report dated 6 March 2019,[95] Mr Lo had a history of neck and left arm pain, with tingling and numbness in the left forearm, thumb, index and middle fingers, and right shoulder pain.[96] On clinical examination, Mr Lo said that the plaintiff had a reduced neck range of movement limited in relation to rotation of the neck, but in both the upper and lower limbs, he had normal tone, power, reflex and sensation.[97] He opined that there had been an aggravation of underlying degenerative spinal condition, but that the effect of any such aggravation had been ceased.[98]
[95]DCB 82.
[96]DCB 84.
[97]DCB 85.
[98]DCB 86.
89Next, Mr Roy Carey examined the plaintiff for the purposes of an impairment assessment. In his report, dated 26 May 2020,[99] Mr Carey recorded the plaintiff describing constant pain over the posterior part of the neck, radiating to both shoulders, more to the left. The plaintiff apparently described to him constant discomfort in the left arm, weakness with grip (he drops things), and that was worse in the cold weather. It was recorded that he awakes stiff and sore in the mornings.[100] Curiously, Mr Carey recorded that the plaintiff “seemed to have quite normal neck movements spontaneously during history taking”[101] and that he had a “full range of motion of both shoulders today with a little discomfort reproduced in the posterior neck only”,[102] and that “[i]nterestingly, whilst neck movements were undertaken with complaints of pain, end range in flexion, extension, lateral flexions and rotations were all normal”.[103] Mr Carey further recorded the results of pinprick testing as indicating a reduced acuity all over the left upper limb, extending to the shoulder, upper chest, left scapular area and, indeed, the whole of the left side of the face and scalp. He said that was a “non-organic sign”.[104]
[99]DCB 88.
[100]DCB 90.
[101]DCB 91.
[102]Ibid.
[103]Ibid.
[104]Ibid.
90Turning, then, to Dr Soliman, as mentioned, a critical piece of video surveillance was of the plaintiff leaving the examination with Dr Soliman. Dr Soliman provided a report to the defendant’s solicitors dated 26 April 2022.[105] In respect to social history, Dr Soliman recorded the following, including a description of daily activity and of tolerances:
“SOCIAL HISTORY
Mr. Gundogdu stated that he is in a de facto relationship with his old partner for 2 months; he said it is a bit complicated. He has one child at home aged 16 years.
He stated that he does not smoke or drink alcohol and he has no hobbies. He stated that he is just watching television all day.
ADL s
[105]DCB 96.
Mr. Gundogdu stated that he is struggling with all daily activities. He cannot lift anything over 1kg as his arm gets tired before letting it go. He stated that now has a cat that he looks after which helps him.
ACTIVITIES TOLERANCE
Mr. Gundogdu stated that his activities tolerance is limited to:
• Sitting is unlimited
• Driving for one hour
• Walking for 45-60 minutes
• Standing for 30-45 minutes. If he is standing for 60 minutes he has lower back pain.”[106]
[106]DCB 99.
91Dr Soliman then conducted an examination and said:
“Mr. Gundogdu presented as a pleasant 60 year old man who was 170cm tall and weighed 80kg.
On examination of his neck he complained of generalised tenderness across the neck and shoulder girdle. He did not attempt to move his neck more than 50% of normal range where he expressed pain verbally and with facial grimacing. However, I noted that when distracted, Mr. Gundogdu was able to move his neck fully toward the interpreter to respond to her (was standing on my right side behind Mr. Gundogdu)
Examination of his right and left shoulders showed 150 degrees flexion, 90 degrees abduction and his internal rotation and adduction was at L5. Mr. Gundogdu again expressed pain verbally and with facial grimacing with all movements.
I noted that there was a considerable degree of functional overlay and abnormal illness behaviour.”[107]
[107]DCB 100-101.
92Based on the information and the clinical examination, Dr Soliman then offered the following opinion:
“Based on the available information, from a physical perspective Mr. Gundogdu is unfit to perform the pre-injury duties if it required manual handling.
In my opinion, Mr. Gundogdu is fit to work full normal hours alternative suitable duties with no repetitive neck bending, overhead work and lifting over 5 kg to minimize the risk of re-exacerbating his underlying degenerative condition.”[108]
[108]DCB 102.
93Dr Soliman said, further, that:
“Based on the available information, from a physical perspective Mr. Gundogdu is unfit to perform the pre-injury duties if it required manual handling. In my opinion, Mr. Gundogdu is fit to work full normal hours alternative suitable duties with no repetitive neck bending, overhead work and lifting over 5 kg to minimize the risk of re-exacerbating his underlying degenerative condition.
…
In my opinion, Mr. Gundogdu has more capacity than he is stating. He is suitable to undertake alternative suitable duties with no manual handling as I explained earlier.”[109]
[109]DCB 104.
94Pausing, with hindsight, it seems to me that Dr Soliman was “on the money” when he described the plaintiff has having more capacity than he is stating.
95Dr Soliman then provided a further report dated 22 July 2022,[110] in which he opined that several jobs would be suitable employment for the plaintiff.
[110]DCB 106.
96For completeness, I note that the defendant relied on a report from CoWork dated 31 May 2022,[111] which was a vocational assessment and labour market analysis report. In that report, the plaintiff described being independent with personal care, but that domestic tasks were completed by his ex-wife. His daily routine was described as watching television and caring for his many cats, although he might go for a drive, or spend an hour with a friend.[112] Accepting that the author of the CoWork report is not a medical practitioner and the limitation of relevant opinion that can be provided, in the report, it was noted that, throughout the interview, the plaintiff demonstrated normal, spontaneous cervical spine movements and no overt pain behaviour.[113]
(iv)The Medical Panel
[111]DCB 108.
[112]DCB 109.
[113]DCB 118.
97Finally, in an unrelated proceeding, the plaintiff was referred on two occasions to a Medical Panel. A Medical Panel provided a Certificate of Opinion and Reasons on 23 April 2020[114] and again on 13 September 2020.[115] In the first Reasons for Opinion, it is recorded that he had easy movement of his head and neck during the informal part of the examination, but on formal examination active neck, flexion, extension, left and right lateral flexion, and left and right rotation, were all mildly reduced, with a report of “stretching pain” at the extreme of each movement.[116] In the more recent Reasons for Opinion, a differently-constituted Panel found the plaintiff to be a somewhat difficult historian, but that he had a full range of cervical flexion and extension, and rotation left and right, while lateral flexion left and right was slightly limited in range, but not dysmetric, being symmetrical to each side. There was a full range of shoulder motion.[117]
[114]DCB 48.
[115]DCB 59.
[116]DCB 53.
[117]DCB 62.
98The Panel Opinions are not binding for this proceeding, but it is relevant, in my view, that the Panel recorded inconsistencies with the range of neck movement on formal examination, as opposed to informal examination. Taken together, the Panel’s examination findings support the conclusion that the plaintiff has a full range of neck movements.
Analysis
99As already mentioned, I conclude that the video surveillance demonstrates the plaintiff to be able to move his neck and left shoulder in a free and unrestricted manner, with no obvious restriction caused by pain.
100Further, I conclude that the video surveillance supports the contention of the defendant that the plaintiff’s pain is not as bad as he makes out. Obviously, pain cannot be seen, but then, again, the ability to engage in ordinary daily activity without any restriction, over a period of several years, and particularly in the setting of the exaggerated clinical examination with Dr Soliman, in my view, supports a conclusion that the plaintiff’s pain is not as bad as he has made out.
101It was on this basis that I indicated to his counsel, notwithstanding that the case must be considered based on the whole of the evidence, I would not accept the plaintiff’s description of his pain and disability without corroborating evidence.
102The corroborating evidence is the fact of ongoing medical attendance with Dr Cenap and Dr Kochar. There is also the prescription of medication for pain and for his mood, and I accept that those prescriptions might ordinarily tend to a conclusion of “serious injury”. But, of course, the frequent medical attendance and the prescription of medication is predicated on an assumption that his neck and psychiatric condition is as bad as he says it is, which I do not accept.
103The issue of credit was raised by me, and his counsel was invited to consider that issue by dealing with the objective evidence in support of the plaintiff’s claim for serious injury. However, much of the final submission was dedicated to highlighting what the plaintiff had told doctors.
104Rather, the plaintiff’s submissions were predicated on the basis that the video surveillance had, in fact, not impugned his credit. Further, when dealing with the lack of an affidavit from the ex-partner, it was submitted that:
“It’s pointless to have an affidavit from the ex-partner when the plaintiff’s case in toto is so strong.”[118]
[118]T122 L24-26.
105Doubling down on that submission, his counsel said, “[w]hat I’m saying in this case is, the plaintiff’s evidence is that he struggles to undertake these activities and that’s supported by medical evidence”[119] and, therefore, in respect to an affidavit from the ex-partner, it was said to be “[c]ompletely unnecessary”.[120]
[119]T124 L17-20.
[120]T124 L22.
106The submissions of the plaintiff were to the effect that nothing in the video surveillance impugned his credit because the video surveillance was consistent with what he had said in his affidavits and to the doctors.
107Ultimately, on behalf of the plaintiff, it was submitted that either the plaintiff’s neck pain, or, in isolation, his psychological condition, was what was preventing him from working.[121] The thrust of the plaintiff’s submissions was, effectively, that the medical evidence is supportive, the plaintiff was broadly a reliable witness, and the video surveillance had not impacted his credit or liability. However, when pressed whether the video surveillance was consistent with the plaintiff’s description of pain of 7/10 up to 10/10, his counsel, in my view correctly, said that “I can’t make that submission, Your Honour”.[122] However, in further submission, it was said about that description of pain, that: “if you accept that the plaintiff says it is, then it is”.[123]
[121]T148 L3-4.
[122]T153 L24.
[123]T153 L26-27.
Conclusion
108In circumstances where I do not accept the plaintiff’s description of pain, or of his disabilities, it is trite to note that it is he who bears the onus to establish a “very considerable” consequence either from his neck injury, or from the claimed psychiatric condition. The video surveillance demonstrates his physical and psychiatric conditions are not as bad as he has said.
(i)The psychiatric injury
109Dealing in reverse order and bearing in mind that the claimed psychiatric condition must be “severe”, the plaintiff has not made out his claim for serious injury. The video surveillance demonstrates that he is more active socially and recreationally than what he has told the doctors. The video surveillance throws into doubt the true status of the relationship with his ex-wife. The video surveillance demonstrates that he can attend a mosque, go shopping, spend time with his ex-partner, socialise with friends, drive a car, and the like. There is no suggestion in the video surveillance that he is in any way isolated. Further, on several occasions in the surveillance, he demonstrated a happy demeanour.
110Notwithstanding considerable psychiatric consultations and provision of prescription medication, in my view, the plaintiff has exaggerated his psychiatric symptomatology to Dr Kochar and Dr Ingram, and he has not made out his claim based on a psychiatric injury, either in respect to pain and suffering or pecuniary loss consequences.
(ii)The neck injury
111Turning, then, to the claimed neck injury, on a consideration of the whole of the evidence, I conclude the plaintiff suffered the aggravation of underlying cervical degeneration in the course of his employment with the employer. I conclude that any such aggravation continues and is productive of symptoms down the left arm. I accept that he continues to regularly attend Dr Cenap and is prescribed painkilling medication. But, once again, the difficulty, then, is objectively determining what his true level of impairment consequences/disability are. As by now, it will be clear I do not accept his evidence and there is a dearth of objective evidence and, including the absence of any evidence from his ex-partner. The comments given at paragraph 109 apply equally to the claim based on the neck injury.
112The plaintiff, bearing the evidentiary onus, has failed to discharge it. It is impossible to know what his true level of neck pain, symptoms and impairments is. If I was to accept Dr Soliman’s opinion, which was provided in ignorance of the video surveillance, but nevertheless seems to me to be probably the most accurate description of the plaintiff’s situation, then it could be said that he has pain and suffering consequences (the need for GP attendance, medication, some pain and restriction for physical activity) which could be described as “significant”, but would not meet the test of “very considerable”, but, to some extent, that involves speculation given the state of the evidence.
113Further, I conclude that the plaintiff has failed to discharge his evidentiary onus to demonstrate why he is unable to work. In my view, the ability to engage in ordinary day-to-day activity without any obvious restriction, and on numerous days, tends to a conclusion that there is a residual capacity for work, even if some limitations should be placed on activities such as bending and lifting. Doing the best I can due to the unreliable evidence of the plaintiff, I conclude that Dr Soliman is correct when describing the plaintiff as having a residual capacity for full-time work. But, once again, there is an estimation involved as the evidence, as determined my me, does not enable a conclusive determination to be made.
114It is accepted that if the plaintiff can work full time in the jobs identified by the defendant as “suitable employment” then the claim for pecuniary loss fails. I conclude that he can work full time and that disposes of the claim for pecuniary loss.
115In summary, the defendant in this proceeding attacked the plaintiff’s credit by holding back the video surveillance until the hearing. Accepting that the surveillance was not shown to any medical practitioner, and accepting that, overall, only approximately thirty-three minutes of surveillance was tendered, the surveillance does, however, impugn the plaintiff’s credit. On several occasions since 2017 through until recent time, he is seen to be able to engage in ordinary, everyday activity, without restriction. In my view, that is completely at odds with what he has said in his affidavits and to the doctors. The plaintiff has exaggerated his pain and symptoms and he has failed to discharge his evidentiary onus.
116Accordingly, the plaintiff’s proceeding is dismissed.
117I shall hear from the parties as to the question of costs.
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