Jason Heard v Bronzewing Linehaul Pty Ltd
[2013] VSCA 200
•8 August 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2012 0128
| JASON HEARD | Appellant |
| v | |
| BRONZEWING LINEHAUL PTY LTD | Respondent |
---
| JUDGES | WARREN CJ, OSBORN JA and ROBSON AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 30 July 2013 |
| DATE OF JUDGMENT | 8 August 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 200 |
| JUDGMENT APPEALED FROM | Jason Heard v Bronzewing Linehaul Pty Ltd (Unreported, County Court of Victoria, Judge Bourke, 26 June 2012) |
---
ACCIDENT COMPENSATION – Appeal – Serious injury – Application under s 134AB(16)(b) of the Accident Compensation Act 1985 for leave to bring proceedings – Where dispute as to whether the pain and suffering consequences were organically-based –Whether the trial judge misstated, failed to properly consider, or decided contrary to the expert medical evidence – Appeal dismissed.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr R Gorton with Mr I Fehring | Ryan Carlisle Thomas |
| For the Respondent | Mr S O’Meara SC with Ms M Norton | Lander & Rogers |
WARREN CJ:
I have had the benefit of reading in draft form the reasons for judgment of Osborn JA. I agree with his Honour, for the reasons that he gives, that the appeal should be dismissed.
OSBORN JA:
On 31 August 2006 the appellant suffered injury to his back when lifting a heavy 4-wheel drive tyre in the course of his employment.
In June 2012 a judge of the County Court dismissed the appellant’s application for leave to bring a claim for common law damages in respect of that injury pursuant to s 134AB(16)(b) of the Accident Compensation Act1985 (Vic) (‘the Act’). He now appeals pursuant to s 134AC.
The question before the Court was whether the injury suffered by the appellant was a ‘serious injury’ as required by s 134AB(2), and in particular whether its pain and suffering consequences could fairly be described as being more than significant or marked and being at least very considerable.[1]
[1]Section 134AB(38)(c) reflecting the terms of the decision of the Full Court in Humphries & Anor v Poljak (Crockett and Southwell JJ) [1992] 2 VR 129, 140.
The following matters are not in issue:
· The appellant is now 36 years old.
· He suffered an end plate fracture at the T8 level of the thoracic spine in the incident in question.
· The bony injury has healed.
· There is no continuing injury demonstrable by way of medical imaging.
· The appellant lived a very active life prior to the injury and although he is able to undertake various tasks associated with managing a flock of sheep he has not been able to resume his pre-accident level of activity.
· The appellant complains of continuing persistent pain in the thoracic spine which fluctuates in intensity and materially disables him.
The serious injury claim was not put on the basis of a psychiatric condition and by reason of s 134AB(38)(h) of the Act the psychological or psychiatric consequences of a physical injury are to be disregarded for present purposes.[2]
[2]Barwon Spinners Pty Ltd v Podolak (2005) 14 VR 622, 664 [117].
The trial judge was not satisfied that the appellant’s ongoing pain and suffering were organically based as distinct from the product of a psychological overlay.
The notice of appeal filed in this matter asserts, first, that the trial judge failed to provide proper reasons for her decision; secondly, that she erred in rejecting the medical opinion of Dr Lim postulating an organic basis for the appellant’s condition;[3] and, thirdly, that the judge erred in the manner in which she dealt with the evidence of the appellant’s treating doctors as to the consequences of the T8 fracture.[4]
[3]Grounds 2 and 3 of the original Notice of Appeal are as follows:
2.The Learned Trial Judge erred in rejecting the opinion of Mr T. Lim that the Plaintiffs condition was organically based and that the Plaintiffs condition was one of "central sensitisation" which was a medical condition which had been scientifically proven to involve organic changes in the central nervous system.
3.The Learned Trial Judge erred in rejecting the evidence of Mr T. Lim as to the organic basis of the Plaintiffs condition when he had not been cross-examined or his opinion challenged as to his diagnosis in the proceedings.
[4]Grounds 4 and 5 of the original Notice of Appeal are as follows:
4.The Learned Trial Judge erred when she took into account irrelevant considerations when she relied upon medical opinions which related to the T8 end plate fracture which was the Plaintiffs original injury when the Learned Trial Judge determined that-
"The Plaintiffs thoracic condition is no longer physically based, and I am not satisfied that he has a serious injury in that regard pursuant to paragraph (a)".
The Learned Trial Judge erred in relying upon such evidence as it was not relevant or probative as to whether or not the Plaintiff had a central sensitisation which involved an organic injury resulting in his incapacities at the time of the trial.
5.The Learned Trial Judge did not appropriately or properly deal with the evidence of Mr David de la Harpe and Mr David Wallace as to the nature and consequences of the Plaintiffs thoracic injury.
As the matter was argued however the appellant’s case assumed a different emphasis from that expressed in the original grounds. Ultimately it was reduced to two core propositions and leave was given to abandon the original grounds and substitute two new grounds of appeal for those originally relied on:
(1) The reasons of the learned trial judge misstated the medical evidence and demonstrated that in determining the case she failed to properly consider the medical evidence.
(2) The learned trial judge’s decision was contrary to the medical evidence.
The complaints now made focus upon the trial judge’s ultimate conclusions about that evidence and her process of reasoning. In order to understand these complaints and the submissions now made it is necessary to summarise the medical evidence put before the judge.
The medical evidence
Dr Lovell, a musculoskeletal specialist, first saw the appellant at the spinal clinic on 15 November 2006 and reported as at 11 December 2006. Following examination, consideration of x-ray and MRI scan images, Dr Lovell considered the appellant had persistent thoracic pain probably due to a relatively recent compression fracture of the thoracic spine and that management should be conservative. He concluded that normally this form of injury and effect would have a high probability of resolution over some three to six months.
Mr Ross Warrick, a remedial massage therapist, saw the appellant on 14 February 2007. The appellant was complaining of severe thoracic pain. In October 2007, after numerous visits, the appellant remained in constant pain and unable to engage in heavy manual labour.
Mr David Wallace, neurosurgeon, saw the appellant on 13 February 2007. After examination, consideration of a CT scan and MRI, he was uncertain whether there was a thoracic spinal fracture or not and referred the appellant to Mr de la Harpe, an orthopaedic surgeon. In turn Mr Wallace concluded on 13 October 2007 that it appeared the appellant had suffered an end plate fracture of the T8 vertebra which was responsible for his symptoms. He noted that the appellant had no evidence of neurological complications, and he expressed the view that the appellant’s ongoing pain should settle with conservative treatment. Nevertheless the injury rendered the appellant more prone to back pain than an average individual and he recommended that the appellant avoid returning to manual work. He expressed the hope that the appellant might be able to return to some form of truck driving or delivery work in due course. He also recommended that the appellant attend a rehabilitation program.
Mr de la Harpe saw the appellant on 6 July 2007. He noted complaints of mid-thoracic pain. On examination, the appellant had a full range of movement of his thoracic spine and no neurological abnormality in the lower limbs. After viewing CT and MRI scans he expressed the opinion the appellant had suffered a minor end plate fracture of T8 from his lifting injury and that the fracture was well-healed. The appellant was ready to start some physiotherapy and this should improve his situation within a few months. Mr de la Harpe would not recommend that he go back to manual labour.
Dr Kesarapu of the Horsham Medical Clinic was the appellant’s general practitioner and had produced a series of reports relating to him. In addition, he was the only medical witness to give oral evidence. His reports recorded the progress of the appellant’s treatment including a referral to pain management clinics at St Vincent’s and Epworth Hospitals. In his most recent report of January 2012, Dr Kesarapu confirmed the appellant still had moderately severe thoracic back pain. He was currently taking 60 mg of Morphine twice daily, using Valium 5 mg one to two tablets a day to relax back muscles and Lyrica 300 mg twice daily.
Dr Kesarapu noted that the appellant had been working intermittently with sheep on the farm. His back pain worsened when he worked and it took a few days
of rest to subside. In his view the appellant’s reported level of pain indicated a severe disability.
In cross-examination, Dr Kesarapu agreed that the various specialists to whom he had referred the appellant were uncertain about the origin of the appellant’s pain and had recommended conservative treatment. He agreed that the T8 fracture had healed. He gave a detailed history of the appellant’s medication. He explained that after the initial end plate damage something else was triggering the pain from the thoracic spine possibly nerve damage but there were no investigations to pick it up and no-one had actually pointed out what caused the appellant’s pain. In his view pain sensitisation involving nerve damage was causing the pain. He agreed that there was a psychological element to the appellant’s condition. He agreed there was no real identifiable organic cause of the appellant’s pain. He thought it was difficult to say the pain was there or not there and the ability to find the origin of the pain and treat it was limited. He had never thought a psychiatric opinion was necessary. He did not consider the appellant to be addicted to opiates. He disagreed with Mr Kierce’s view that if the appellant was weaned off opiates he would be fit for work. The appellant is in pain every time he sees Dr Kesarapu. His body language shows he is in pain.
In re-examination Dr Kesarapu agreed with Dr Lim’s view about pain sensitisation as expressed in a letter of 30 November 2009, namely that once sensitisation is established within the nervous system then the pain sufferer is prone not only to suffer chronic pain but also to experiencing spontaneous flare-ups of pain.
Dr Muir, an interventional pain physician, saw the appellant on referral from Dr Kesarapu in May 2008. The examination was relatively normal but the appellant’s ability to flex his thoracic spine was reduced. There was no abnormal neurology and palpation to the spine and paraspinal muscles was not terribly tender.
Dr Muir thought the appellant would be well-suited to participating in a cognitive behavioural pain management program. He referred him to the Barbara Walker Centre for this purpose. Subsequently in July 2008 he reported that since starting MS Contin the appellant’s pain was much better controlled and he was starting to do more activity.
Dr Kim, a pain consultant, saw the appellant at the Barbara Walker Centre and reported on 23 February 2009. At that point the appellant was presenting with a two year history of thoracic spinal pain and in Dr Kim’s view the mechanism and investigation results were suggestive of discogenic pain with significant myofascial tenderness as well as trigger points in the paraspinal muscles. He noted that currently the appellant was unable to work and noticed an increasing social isolation and added relationship stress associated with his level of depression. There were ongoing ‘mediation issues’ against WorkCover and the appellant was on long term use of opioids. He recommended physiotherapy and recommended altering the appellant’s medication. On 24 August 2009 Dr Kim referred the appellant to Dr Terence Lim, a rehabilitation and pain medicine consultant.
On 30 November 2009 Dr Lim reported to the WorkCover insurer seeking approval to admit the appellant as an inpatient to the North Eastern Rehabilitation Centre. He advised that the appellant was well-entrenched in a chronic pain syndrome where his whole life was totally focussed on and dominated by the persistence and severity of his pain, a consequence of the work injury in 2006. On examination he noted that the appellant had terrible posture with an increased forward curve of the thoracic spine. Palpation revealed tender tight left-sided mid-lower thoracic paraspinal muscles consistent with persistent painful spasm in reaction to the previous T8 wedge fracture. It was noted that the persistence of this paraspinal muscle hyper-irritability spasm reflected the development of central sensitisation which Dr Lim believed was the main driver of the appellant’s chronic or persistent pain condition.
Dr Lim stated central sensitisation is a scientifically proven, organic change in the central nervous system pain pathways in reaction to an original injury. Dr Lim stated that once central sensitisation is established, then the pain sufferer is primed not only to suffer chronic or persistent pain well into the future but also prone to experience spontaneous flares of increased pain, independent of any other factors or pathology. Unfortunately there is no cure for central sensitisation and therefore no cure to chronic pain. However, he recommended that the appellant be treated at the North Eastern Rehabilitation Centre (‘NERC’) as an inpatient in a series of pain management programs.
On 15 April 2010 Dr Lim wrote to Dr Kim advising that the appellant had attended that day for the third of his four week program. He advised that at that stage the appellant was not fully on board psychologically with the program. However, they were continuing to encourage him to practice the self-treatment management process, including considering his future vocation rather than being medication focussed. He noted the appellant would like to work as a farm manager.
Dr Lim re-examined the appellant on 13 May 2010, two months after he had commenced the program, at which time the appellant was no better. He said:
Jason has suffered pain for about four years and in the process has become so entrenched in a chronic pain syndrome that he was barely doing any physical activity whatsoever. However his posture and movement patterns are more normalised though he remains extremely sensitised so that low levels of physical activity can evoke pain exacerbation.
I have indicated to Jason that he does need to appreciate that there is no ‘magic’ in desensitisation and he will be expected to continue to self-treat. However, his attitude would indicate to me that he is just going through the motions of self-treatment as he is not fully engaged psychologically in that process.
Dr Lim had also indicated to the appellant that despite his wish to return to developing his family farm, his degree of sensitisation was so significant that he would be fit to perform light duties at best. If however the appellant persisted with his desire then Dr Lim would not be too sympathetic to hearing the appellant’s complaints of pain. For that reason, he had ceased the appellant’s NERC attendance.
Mr Schofield examined the appellant on 6 January 2012. He thought the onset of the appellant’s symptoms was consistent with the development of an acute or vertebral bone lesion in the thoracolumbar spine. He noted that it was nearly five and a half years since the injury and no exact diagnosis had been made, except that the appellant had a very minimal superior end plate fracture involving T8, which would heal within six months, but may have caused injury to the disc in the vicinity of that area. He noted the appellant also had persistent low back pain and his clinical signs were consistent with lower lumber disc prolapse despite lack of leg pain. No reliance was placed upon Mr Schofield’s opinion upon the hearing of the appeal.
Mr John Bourke, orthopaedic surgeon, initially examined the appellant in December 2006 and re-examined him in May and November 2007. Following his initial examination Mr Bourke thought that the T8 fracture would now have healed to the extent that the appellant could be involved in a more active program of low back care. He accepted that the appellant most likely had a compression fracture of the body of the T8 vertebra as a result of the incident. The appellant then had inflammation in his lower thoracic spine with an associated restriction of spinal movement and weakness of spinal muscles. He advised that the appellant needed to be taught how to look after his spine and how to control the pain and how to get fit again. At the time the appellant was unfit for all types of work.
Following his May 2007 examination Mr Bourke concluded that the appellant had mild thoracic spine dysfunction secondary to the work injury. His condition seemed to have improved. He thought the appellant required an exercise program for three to four months and thought that at the end of that time the appellant should be able to progress to fulltime work. He considered the appellant’s condition had largely resolved. On the last examination in November 2007 the appellant described constant pain in his low back in addition to pain at the lower level of his shoulder blades which could extend down his spine. The appellant told Mr Bourke it took him a week to get over his pain from the last examination when he was asked to perform active spinal movement. No passive, potentially pain-causing manoeuvres were carried out. The appellant had an almost normal range of thoracospinal movements and there was no tenderness of the spinous processes. Mr Bourke thought the appellant appeared to have a pain management problem and, although he may have injury to thoracolumbar spine, that had largely now resolved. He considered the appellant required new or alternative duties avoiding repeated bending and twisting movements of his thoracolumbar spine and heavy lifting. It would be appropriate for him to attend a pain management program.
Dr David Ho, Occupational Health Consultant, examined the appellant on 8 May 2008 and 4 September 2008. In his first report Dr Ho noted that the appellant complained of a tight feeling in his upper back between his shoulder blades. Dr Ho’s view was that it was likely that the end plate fracture at T8 had healed. The appellant appeared to have progressed into an abnormal pain syndrome. The appellant had recovered fully from the end plate fracture at T8. The appellant was fit for fulltime work duties suitable for his age, skill and level of physical fitness as well as his slim build. The appellant was likely to benefit from psychological counselling and cognitive behaviour therapy.
When seen again, the appellant told Dr Ho he was worse than when previously seen as the analgesics were less effective. He reported a heavy feeling, like the top of his body was breaking up. He felt his body giving way and drifting to his left now and again. On examination the appellant looked depressed and was tearful and crying. Despite the appellant’s complaints, Dr Ho reported that the clinical examination was completely normal with a full range of pain-free movements in the neck and thoracolumbar spine. Dr Ho confirmed that he believed the appellant had fully recovered from the physical injury and was currently fit for fulltime suitable work. He considered the appellant was suffering from depression.
Mr Kierce, orthopaedic surgeon, saw the appellant in September 2008 and then in May 2012. In his first report Mr Kierce stated that the appellant’s symptoms were difficult to explain in view of the minor nature of the fracture and the length of time since the injury. In his report of 7 May 2012 Mr Kierce noted that there were no physical or radiological findings that could explain the appellant’s complaints of pain and that he was unable to explain why the appellant had ongoing pain as it appeared to him that any fracture of the vertebra had definitely healed. He expressed the view that the injury was a minor injury and should have healed in the normal course of events within a few months. From a physical point of view there was no reason for the appellant to be off work and he should have a current work capacity without any significant restrictions. He recommended that it would be worthwhile having the appellant examined by a psychiatrist to ascertain whether he had a chronic pain disorder.
Dr Senadipathy, psychiatrist, saw the appellant in September 2008 and reported on 7 October 2008 that in his opinion the appellant suffered from mild anxiety and depression secondary to his injury and consequent pain. He further said the appellant’s inability to work was due to chronic pain that ‘has had’ a physical basis. The appellant may have developed chronic pain syndrome despite the fracture healing.
Dr Paul Kornan, psychiatrist, examined the appellant on 5 February 2009. He noted the appellant was then upset over the breakup with his fiancée, had lost weight and had sleeping problems. The appellant was living on his own on WorkCover payments. In Dr Kornan’s view the appellant suffered from major depression and an adjustment disorder with anxiety. He thought the appellant’s psychiatric state was stabilised.
Mr Andrew Miller, an occupational health consultant, saw the appellant on 22 February 2010. His clinical examination revealed a slight disability of the back due to local discomfort and limitation of movements but there was no evidence of spinal nerve root involvement. Mr Miller expressed the view that the appellant’s recovery has been complicated by the onset of a chronic depressive condition. He believed that sufficient time had passed for the appellant to have recovered from the T8 end plate fracture.
Ultimately her Honour reasoned as follows:
320Looking then at the medical opinion to date from treating practitioners and medico-legal examiners.
321As previously noted, there is no dispute as to the nature of the initial compensable injury. Further, all doctors agree the fracture at T8 healed some time ago.
322Save for Dr Lim, with whom Dr Kesarapu agreed in his viva voce evidence, it is accepted that the plaintiff does not suffer any ongoing physical problems related to the fracture.
323Relying on Dr Lim's opinion, counsel for the plaintiff ultimately submitted that the plaintiff's present condition is organically based, with the main driver of his chronic pain being central sensitisation - a proposition later accepted by Dr Kesarapu.
324In his report, Dr Lim described central sensitisation as a scientifically proven organic change in the central nervous system pain pathways in reaction to the original injury. He explained there was a lowering of the pain threshold, resulting in amplification of existing pain, the generation of spontaneous pain, i.e. pain generated from the CNS pain pathways, and not due to ongoing injury, and the recruitment of other parts of the body, not previously injured, to experience pain due to the expansion of the pain sensitised fields within the CNS.
325From his report, Dr Lim appears to have based his diagnosis in this case on a finding of the persistence of paraspinal muscle hyperirritability spasm on examination in November 2009.
326 However, no other medical examiners have made a similar finding.
327Relying on an ongoing organic basis for the plaintiff's condition, counsel for the plaintiff submitted the plaintiff's condition is not one of a Chronic Pain Syndrome to which subsection (c) applies in circumstances described by Ashley JA in Veljanovska v Socobe/1 Oem Pty Ltd [2005] VSCA 227.
328It was submitted that the plaintiff does not have a psychologically motivated or driven condition, as suggested by the defendants, Dr Kesarapu being of the view there was no mental illness, but the plaintiff has chronic pain which has been treated at a high level. It was submitted it is not a situation where the plaintiff's physical condition has resolved and he does not have an underlying physical driver of pain.
329In these circumstances, as an application has not been brought pursuant to subsection (c), I am not required to consider psychiatric factors, and my focus is entirely on the application pursuant to subsection (a).
330The plaintiff's early treaters, Mr de la Harpe and Mr Wallace, in 2007 both thought the T8 endplate fracture was well healed and of no ongoing significance.
331Dr Lovell and Dr Vivian at the Spinal Clinic had difficulty working out the nature of the plaintiff's problem as they found only minor lateral compression at T8 and little else on radiology. Conservative treatment was suggested and neither practitioner considered there was any scope for undertaking diagnostic interventions. Dr Lovell commented that normally that form of injury would have a high probability of resolution over some three to six months.
332Pain specialist, Dr Muir, in May 2008, did not diagnose neuropathic pain and suggested a cognitive behavioural pain management program was appropriate for the further treatment of the plaintiff. He made no mention of Dr Lim's diagnosis of central sensitisation.
333In early 2009, Dr Kim thought the plaintiff's condition was suggestive of discogenic injury with significant myofascial tenderness. He did not diagnose central sensitisation but he did suggest prescription of an anti neuropathic medication, amongst other treatment, and later that year engaged with the plaintiff and tried to support Dr Kesarapu and the local physiotherapist for desensitisation in view of the possible START program.
334At Dr Kim's request, Dr Lim then arranged the plaintiff's participation in the NERC program which the plaintiff undertook in late 2009/early 2010.
335There are also a number of medico legal opinions as to the nature of the plaintiff's condition.
336Mr Bourke, orthopaedic surgeon, who examined the plaintiff on three occasions between December 2006 and November 2007, concluded the plaintiff had a pain management problem in relation to his back.
337Following two examinations in 2008, Dr Ho considered the plaintiff had recovered from his physical injury and appeared to be suffering from depression and an abnormal pain syndrome.
338On re examination in 2012, Mr Kierce thought there was no physical or radiological explanation for the plaintiff's current complaint of pain and no objective evidence of radiculopathy.
339Dr Kornan, psychiatrist, diagnosed major depression and adjustment disorder with anxiety following examination in early 2009.
340Mr Andrew Miller, in February 2010, thought there was a slight disability of the back but he concluded that the onset of a chronic depressive condition had complicated the plaintiff's recovery.
341In early 2012, Mr Schofield, orthopaedic surgeon, thought the very minimal superior end plate fracture involving T8 would have healed within six months of the incident but may have caused injury to the disc in the vicinity of that area and he diagnosed a lumbar disc prolapse.
342Thus, save for Dr Lim, no other medical practitioner has diagnosed central sensitisation in their reports. There has not been any cross examination as to a diagnosis in these terms or its application to the plaintiff's present condition, save for Dr Kesarapu.
343Whilst Dr Kesarapu agreed in general terms with Dr Lim's opinion, in my view his explanation thereof was somewhat unclear, with no mention of a diagnosis of central sensitisation in his numerous reports.
344In answer to my question as to the nature of neuropathic pain, a condition he had not earlier mentioned in his evidence, Dr Kesarapu described how despite the fracture having healed, the plaintiff is still in constant pain and pain sensitisation, basically damage to the nerve, is causing the pain.
345Dr Kesarapu then agreed that the plaintiff had no injury from an organic point of view and there are no investigations that can identify neuropathic pain. Further, he agreed that neuropathic pain cannot be identified on any basis –
"it was an evolving area of medicine".
346Dr Kesarapu conceded every specialist had a different opinion on what was the cause of the plaintiff's pain and he agreed that there was a psychological element to the plaintiff's condition.
347The onus is on the plaintiff to establish on the balance of probabilities the existence of an ongoing organically based thoracic spinal impairment that is serious.
348 In this case, I am not satisfied that this onus has been discharged.
349In summary, Dr Lim has only the support of Dr Kesarapu for his view, and Dr Lim's diagnosis was based on clinical findings of spasm that have not been noted by any other examiner.· Further, in addition to the diagnosis of central sensitisation, Dr Lim considered the plaintiff was significantly entrenched in a chronic pain syndrome and some focus of the individualised NERC program was on counselling the plaintiff how to deal with his pain.
350Dr Lim's opinion is also now somewhat outdated, not having seen the plaintiff since May 2010 and, accordingly, there is no report available from him since that time.
351Significantly, the other pain management specialist involved in the plaintiff's care, Dr Muir, made no mention of a diagnosis of central sensitisation.[5]
[5]Heard v Bronzewing Line Haul Pty Ltd (Unreported, County Court of Victoria, Judge Bourke, 26 June 2012) (‘Reasons’) [320]-[351].
In my view her Honour’s decision demonstrates a clear path of reasoning. The real question raised by this appeal is whether it is plainly wrong.[6]
[6]Mobilio v Balliotis [1998] 3 VR 833.
Despite the thrust of the original notice of appeal, it was not contended in argument that her Honour’s reasons for rejecting the evidence of Dr Lim were not open to her. In my view it is not surprising this line of argument was abandoned, but by its abandonment the appellant effectively withdrew from an attack upon the core reasoning of her Honour.
In oral argument it was submitted that the evidence as a whole supported the conclusion the appellant suffered from organically based pain (whatever its clinical cause) and that her Honour failed to acknowledge and properly take account of that evidence.
Particular criticism was directed to [322] at the outset of the relevant reasoning:
322Save for Dr Lim, with whom Dr Kesarapu agreed in his viva voce evidence, it is accepted that the plaintiff does not suffer any ongoing physical problems related to the fracture.[7]
[7]Reasons [322].
It was submitted that it was not accepted by all doctors other than Drs Lim and Kesarapu that the appellant does not suffer from any ongoing physical problems related to the fracture. There is a threshold ambiguity in this statement. If all that was meant was that the consensus was that the bony fracture had healed then there can be no criticism of it. Assuming however that the words ‘related to’ are to be given a broader meaning the appellant submitted that the initial 2007 reports of Mr Wallace and Mr de la Harpe accepted there was pain associated with the consequences of the initial injury and the report of Dr Lovell in December 2007 (some 16 months after the accident) accepted that the appellant still had persistent thoracic pain while stating that normally this type of injury would resolve over some
three to six months. Next it was pointed out that Dr Muir accepted that the T8 fracture was probably the cause of pain suffered in May 2008.
Next it was said that Dr Kim accepted that there was an organic basis for pain in February 2009 and postulated a discogenic origin, recommending physiotherapy and medication accordingly.
Further, it was submitted that Mr Bourke accepted that there was inflammation of the thoracic spine in December 2006, and in November 2007 he diagnosed a pain management problem.
It was also submitted that Dr Senadipathy and Dr Kornan identified psychological conditions secondary to physical injury.
There are four answers to these criticisms:
(a) the earlier reports,[8] while acknowledging organically based pain, contemplated further improvement;
[8]Mr Wallace, Mr de la Harpe and Dr Lovell.
(b) Mr Bourke, after initially accepting that the appellant suffered from organically based pain, ultimately stated that the injury had now largely resolved;
(c) Dr Kim’s opinion was not current, proffered a diagnosis not supported by any other opinion and led to the referral to Dr Lim; and
(d) the opinions addressing the three year period prior to trial were effectively those of Dr Lim and Dr Kesarapu on one side and Mr Miller and Mr Kierce on the other. What her Honour said was true of the opinions which could be said to bear upon the appellant’s current condition.
Accordingly, if her Honour’s statement is to be understood as referring to more than the bony injury (which is far from clear) then it is explicable as describing the opinion evidence relating to the appellant’s condition at trial.
Moreover, as her Honour went on to say immediately thereafter, the appellant’s case was expressly put to her on the basis that she should accept Dr Lim’s opinion. It is not surprising that this forensic choice was made given that Dr Lim was in effect the appellant’s ultimate treating specialist (despite the breakdown of that relationship) and the fact that his opinion explained away the competing diagnosis of psychological overlay.
Nevertheless the appellant cannot now complain that her Honour responded to the way he put his case. The statement in [322] which is now criticised is not necessary to her Honour’s decision. Indeed, given the way the case was put, any over-simplification in the terms of [322] cannot be seen to be significant to her reasons.
It is next submitted that there was no evidentiary foundation for the suggestion that it was likely the appellant was suffering from a psychiatric condition (as contemplated in the reasons [328]). There is nothing in this point. The opinions of Dr Ho and Messrs Miller and Kierce expressly envisaged a non-organically based pain syndrome. Dr Kesarapu also accepted that it was possible the appellant’s pain syndrome was psychologically based either in whole or part. Drs Senadipathy and Kornan accepted the appellant suffered from a depressive condition secondary to his initial injury and its consequences.
It was further submitted that [330] of her Honour’s reasons misstates the effect of the evidence of Mr de la Harpe and Mr Wallace by saying both thought in 2007 that the T8 end plate fracture was well healed and of no ongoing significance. As I have already indicated, Mr Wallace relied upon the opinion of Mr de la Harpe who thought the appellant had suffered a minor end plate fracture of T8 that was well healed. Both doctors were of the view that the appellant’s situation should settle
with conservative treatment. There was no material error in her Honour’s statement. Insofar as Mr de la Harpe indicated he would not recommend the appellant go back to manual labour, that recommendation was indicative of no more than ongoing susceptibility to further injury and did not indicate acceptance of the appellant’s central complaint of severe ongoing organically based pain. There is nothing in this point.
Next it is submitted that her Honour’s summary reference to the evidence of Dr Muir at [332] was inadequate. The critical point from her Honour’s perspective was that Dr Muir did not diagnose central sensitisation. In so saying she was correct.
Lastly it is submitted that her Honour’s summary of the effect of Dr Kesarapu’s evidence was selectively unfair. Having carefully considered the transcript of his cross-examination I do not accept this to be so. Further and in any event, it seems to me that the diagnosis of central sensitisation ultimately fell to be justified (if at all) by Dr Lim and not the appellant’s general practitioner.
In the event I am not persuaded either that her Honour’s reasons materially misstated the evidence, or demonstrated a failure to have regard to relevant evidence, or demonstrated reasoning which was not open to her. Ultimately her Honour was not persuaded the appellant had discharged the onus upon him. In so finding she was not plainly wrong. I would dismiss the appeal.
ROBSON AJA:
I have had the benefit of reading in draft the reasons of Osborn JA. For the reasons he gives, I agree that the appeal should be dismissed.
1
0