Jayatilake v Toyota Motor Corporation Australia Ltd

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3730 of 2007

SARATH JAYATILAKE
	Appellant
v
TOYOTA MOTOR CORPORATION AUSTRALIA LTD	Respondent

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JUDGES:	ASHLEY and NEAVE JJA and PAGONE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 July 2008
DATE OF JUDGMENT:	2 September 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 167

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Accident compensation – Application under s 134AB(16)(b), Accident Compensation Act 1985 – Whether serious injury for purpose of s 134AB(16) and (19), as defined by s 134AB(38), established – Whether ‘disentangling’ of physical consequences of injury and psychological or psychiatric consequences of a physical injury made necessary by s 134(AB)(38)(h).

Courts – Appeals – Appeal from County Court – Content of obligation that Court of Appeal decide serious injury question for itself – Dwyer v Calco Timbers Pty Ltd (2008) 244 ALR 257 – Appeal allowed, judgment below set aside, leave granted to appellant to bring proceeding for damages in respect of serious injury.

Accident Compensation Act 1985, s 134AD.

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr J Moore QC with Mr L Paine	Zaparas Lawyers
For the Respondent	Mr J Ruskin QC with Mr J Gorton	Minter Ellison

ASHLEY JA:

Sarath Jayatilake, the appellant, brought an application in the County Court seeking leave pursuant to s 134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring a proceeding for damages in respect of injury to his low back. To succeed in his application he had to establish, on the balance of probabilities,[1] that the injury was a serious injury. ‘Serious injury’, for the purpose of s 134AB(16) and (19) is defined by s 134AB(38). At the hearing of his application, in May 2007, the issue upon which the parties focussed was whether, not taking into account the psychological or psychiatric consequences of a physical injury,[2] the alleged injury met the statutory definition. The judge held against the appellant. In his opinion, there never had been a physical injury sufficiently significant to account for the applicant’s ongoing symptoms and complaints at time of hearing.
[1]See s 134AB(19)(a).
[2]See s 134AB(38)(h).

By this appeal, brought pursuant to s 74 of the County Court Act 1958 as affected by ss 134AC and 134AD of the Act, the appellant seeks to establish that he suffered serious injury within the meaning of paragraph (a) of the definition in s 134AB(38) – that is, a permanent serious impairment or loss of a body function. The appeal raises squarely – subject to an issue which I will later discuss - the question whether the appellant suffered serious injury. In those circumstances, s134AD of the Act requires this Court to decide for itself whether the appellant has made out his case.[3]
[3]Dwyer v Calco Timbers Pty Ltd (2008) 82 ALJR 669, 675[32], 677 [43], 678 [47], 678 [48]-[50].

‘The evidence and other material’

As is the norm in applications of this kind, the appellant swore an affidavit in support of his application and was cross-examined. Other than that, a considerable number of reports by medical practitioners, physiotherapists and vocational consultants were put in evidence; as were reports of MRI investigations and a CT scan. Also put in evidence was a document showing the appellant’s gross earnings in his employment by the respondent, Toyota Motor Corporation Australia Ltd, and three return to work plans prepared by the employer in the period June – September 2001.

None of the medical practitioners, physiotherapists or vocational consultants was called viva voce. This Court has to decide the critical question in circumstances where there is conflict in relevant opinion – conflict neither elucidated nor resolved by cross-examination. The situation is entirely unsatisfactory. A judge must attempt to conduct what is essentially a trial but with one hand tied behind his or her back. That is not a new observation. This Court repeatedly made the point when considering appeals against s 134AB(16)(b) determinations in the years before the High Court’s decision in Dwyer. That said, the Court must decide the application as s 134AD commands, and with whatever problems there may be in the state of the ‘evidence and other material’.

The necessary approach

Section 134AB is concerned with injuries which are compensable under the Act. Where an impairment or loss of body function is alleged to result from compensable injury,[4] the worker is only entitled to a favourable s 134AD(16)(b) determination if ensuing pain and suffering consequences and/or loss of earning consequences are ‘serious’ as defined.
[4]I analysed the relationship between compensable injury and serious injury in Grech v Orica Australia Pty Ltd and anor (2006) 14 VR 602 particularly at 614-617 [45] – [58] and 618-619 [67]-[68].

In Church v Echuca Regional Health,[5] I set out a number of general propositions concerning the necessary approach in appeals governed by s 134AD. To the extent that it is pertinent, I adopt what I there said.[6]
[5][2008] VSCA 153.
[6][2008] VSCA 153, [104]-[113].

That said, an issue arose in Church – as to the worker’s credit - which does not arise in this case; and an issue arises here which did not arise in Church.

The first of those issues was as follows: the applicant carried below, and carries in this Court, the onus of establishing that he suffered serious injury, namely a permanent serious impairment or loss of function of the low back. The effect of s 134AB(38)(h) is that “the psychological and psychiatric consequences of a physical injury” are not to be taken into account in considering whether the applicant’s impairment is of that quality.

The judge below, having referred to various authorities, held that ‘on the question of disentanglement of the physical consequences of an injury from its psychological consequences, Stamboulakis[7] is the law’. He went on to say:

… I must be aware of not only the existence and application of s 134AB(38)(h) of the Act, but also what I see as the expectations of the Court of Appeal in respect of the nature of the medical evidence upon which a judge of this Court must base his or her decision.[8]

[7]Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis (2007) 15 VR 649.

[8]Reasons [8].

That focuses attention on MutualCleaning & Maintenance Pty Ltd vStamboulakis. Before us, counsel for the respondent relied upon certain observations in that case when submitting that it was for the appellant to “disentangle”, or “strip out” the psychological or psychiatric consequences of injury from other consequences when seeking to establish that the only relevant impairment consequences were serious. Most often, counsel submitted, such disentanglement or stripping out must depend upon medical opinion.

Maxwell P observed in Stamboulakis that it could not be doubted, because it is what s 134AB(38)(h) requires, that, as Phillips JA, speaking for the Court, said in Barwon Spinners Pty Ltd and ors v Podolak,[9]

the proper identification of pain and suffering attributable to impairment which is physical, or physiological in origin… requires that any psychological or psychiatric overlay be stripped aside.

[9](2005) 14 VR 622, 664-665 [117].

Against that background, and having given meaning to the term “chronic pain disorder” by referring to material supplied to the Court by the parties at its request, his Honour characterised “functional overlay” as a “somatoform disorder” – meaning that physical symptoms are present which are not explained by any organic condition. He then observed that -

Because of s 134AB(38)(h), the Court must endeavour to separate the physical from the psychological causes of pain and suffering…

His Honour added that -

Of course, it may be that the clinical assessments in a particular case simply do not permit a sufficient “stripping out” of the psychological causes of pain to enable the Court to be satisfied, on the balance of probabilities, that the physically-based pain and suffering consequences satisfy the “serious injury” test. Where pain is referable to both physical and psychological causes, it will obviously assist the court if medical experts on both sides are asked to quantify, so far as possible, the respective contributions of the physical and the psychological to the pain and suffering being experienced by the injured person.[10]

And
… so far as the evidence allows, the Court must identify, and exclude from consideration, any pain and suffering consequences which cannot be shown on the balance of probabilities to have an organic or physical basis.[11]

And
Where the Court is unable to “disentangle” the pain and suffering consequences in this way, this will ordinarily mean that the application must be refused, since the Court cannot be satisfied on the balance of probabilities that the organically-based pain and suffering consequences satisfy the statutory criterion.[12]

[10](2007) 15 VR 649, 652 [8].

[11]Ibid, 652 [9].

[12]Ibid, 653 [9].

Neave JA gave the leading judgment. Under the heading “Necessity to ‘disentangle’ the physical, psychological consequences of the injury”, her Honour cited with evident approval the observation in Podolak v Barwon Health and Ors[13] that

[the judge who heard the application], wanting any basis in the evidence for separating out the organically based impairment from the other, was content to proceed without differentiation because even on that footing her Honour considered that the plaintiff failed. If so, we agree. But we agree also with [counsel for the respondent] that wanting the proper identification of pain and suffering attributable to impairment which is physical, or physiological in origin, the plaintiff cannot have established pain and suffering that answers the statutory description. To do so requires that any psychological or psychiatric overlay be stripped aside.

[13]One of the matters the appeal in which was heard together with Barwon Spinners. See (2005) 14 VR 622, 664-665 [117].

Her Honour then said this:

Except in cases where the effects of the injury are manifestly due to physical factors (for example paralysis caused by the severing of a plaintiff’s spinal cord) or due solely to psychological factors (in which case the definition in (a) cannot be satisfied) it will be necessary for the trial judge to undertake a careful comparison and analysis of the medical reports put in evidence, in order to determine whether the physical consequences of the injury are “serious” within the definition.[14]

And
It is likely that medical experts will often be unable to define the precise contribution which organic and other factors make to the plaintiff’s pain and suffering. Despite this difficulty, that process is required…[15]

[14]Mutual Cleaning and Maintenance Pty Ltd v Stamboulakis (2007) 15 VR 649, 660-661 [43].

[15]Ibid, 661 [47].

As I pointed out in another connection in Grech,[16] this Court in Barwon Spinners used language, in addressing the case at hand, which is not the language of the Act; language which was capable of being misunderstood. When it spoke of “disentanglement”, in the passages cited by Maxwell P and Neave JA, it again used language susceptible of misunderstanding. The submission made for the respondent in this case[17] suggests that what was said by their Honours in Stamboulakis, building upon the notion of “disentanglement”, is likewise susceptible of being misunderstood.
[16]See (2006) 14 VR 602, 613-616 [43]-[56].
[17]And, indeed, the observation by the learned judge below which I cited at [9].

In point of principle, the question whether a worker has established that he or she has suffered serious injury should be decided by consideration of all the evidence. As I observed in Grech,[18] re-expressing a long-established position -

The matters which the plaintiff needed to establish… were to be resolved upon all the evidence before the court. It was not a trial by doctors’ opinions; nor a trial in which relevant questions were to be decided on the footing, in effect, that medical opinion did not provide answers to those questions.

[18](2006) 14 VR 602, 611 [85]. The observation was directed to a different issue, but nothing turns on it.

Section 134AB(38)(h) says nothing to suggest that the general approach is to be abandoned in favour of trial by medical opinion. Simply, a plaintiff is required to establish, in order to satisfy the presently pertinent aspect of the definition of “serious injury”, that he or she suffers an impairment or loss of function the consequences of which, physically based, are serious in terms of pain and suffering or loss of earning capacity. Like any other question for determination, it is a question to be resolved by consideration of all the evidence before the court. Stamboulakis should not be understood to mean that, upon the serious injury question, the principle that an issue is to be determined by reference to all admissible and relevant evidence is inapplicable.

If a question arises whether, because there is said to be a psychological aspect (say) of pain and suffering, the plaintiff has made out the necessary proof, that question might, as a matter of theory, be resolved by identification of the “quantum” of psychologically based symptoms, and their exclusion from the whole. But it is another thing to say that such an approach is required. A court might well be able to conclude, considering all the evidence, that on the probabilities the plaintiff has suffered a physically-based impairment which satisfies the statutory test even though identification of the precise quantum of a supervening psychological overlay has not been attempted, or is in the real world impossible.

In Shock Records Pty Ltd & Anor v Matthew James Jones[19] Bell AJA,[20] said (in the context of consideration of the economic consequences of impairment) that,
[19][2006] VSCA 180.
[20]With whom Callaway JA and I agreed.

… we saw that s. 134AB(38)(e) required the judge to determine whether Mr Jones’s loss of earning capacity was “40 per centum or more”. Taken together with the other elements of the test, this required her Honour to be satisfied that, among other things, Mr Jones’s back injury of itself caused a loss of earning capacity of this degree, which required her to exclude the contribution of the other medical conditions and, of course, the psychiatric or psychological consequences of the back injury.
A judge is quite capable of making such a determination once he or she has reached the point of being properly satisfied that the plaintiff’s injury is enough in itself to cause a loss of earnings capacity of 40 per centum or more. How much disentangling or stripping away is necessary to reach that point will depend upon the circumstances of the given case. If the submissions of counsel for Shock Records mean that, even after reaching that point, a judge still has to identify and quantify all of the other potential causes, I cannot agree with it.[21]

And, in the circumstances of that case, that
as the judge saw it, once the back pain was found to arise from the work injury, it was obvious, because the pain was so severe, that the major contributor to Mr Jones’s loss of earnings capacity was the work injury. Having reached that point, her Honour felt there was no need to quantify the contribution of the other minor causes. No more “disentangling” or “stripping away”, to use the words of counsel for Shock Records, needed to be done.[22]

In my respectful opinion, those statements were correct in principle.

[21]Ibid [69]-[70].

[22]Ibid [79].

I should refer also to certain observations of Redlich JA in Zivolic v Hella Australia Pty Ltd[23]

Although [the judge at first instance] spoke, in the language of Barwon Spinners Pty Ltd & Ors v Podolak,[24] of “disentangling” the relevant injury, it was unnecessary for him to do so in the light of the accepted medical evidence concerning her physical injury which the plaintiff relied upon. Where an application is made under s 134AB of the Act, and the evidence is consistent with the plaintiff having suffered both physical and psychiatric or psychological injury, if the nature of the medical evidence permits the conclusion that the physical consequences of the injury constituted a serious injury, then, notwithstanding the requirements of s 134AB(38)(h), no disentangling or stripping away of psychological or psychiatric consequences may be required. These concepts rest upon the often false assumption that there will be a need to work backwards from the plaintiff's condition as found at trial and which may be the consequence of multiple causes.
The use of such terminology, which is not to be found in the Act, may, as it did in this case, lead the trial Judge to conclude that the plaintiff necessarily had an obligation to demonstrate the nature and extent of the psychiatric or psychological injury, so that it could be excluded when assessing whether the plaintiff had suffered a serious injury within s 134AB(37)(a) or (b). Whether it will be necessary in a particular case for a plaintiff to do so, that is to say, to unravel the plaintiff's condition and exclude the consequences of another contributing cause, will depend upon whether the medical evidence has sufficiently identified the physical consequences of the injury for the plaintiff.

[23][2007] VSCA 142 [19]-[20].

[24](2005) 14 VR 622.

I respectfully agree with what his Honour said, except that I would not confine the relevant evidence of the physical consequences of injury to “the medical evidence”.

In the present case, the learned judge below perceived a conflict in the approaches in Stamboulakis and Shock Records. He concluded that observations made by Neave JA in Cakir v Arnott’s Biscuits Pty Ltd[25] showed that “Stamboulakis is the law”.[26] In my opinion, that conclusion read into a passing observation in Cakir more than was warranted. The determination of that appeal rested on there being substantial evidence that the appellant had sustained a compensable and significant spinal injury in circumstances where the judge, relying simply upon the appellant’s want of credibility, had refused to make such a finding. The subject-matter of the application was remitted for re-hearing. Neave JA briefly remarked, not as a necessary part of the decision, that this would require a disentangling of consequences.[27]
[25][2007] VSCA 104 [64].
[26]Reasons for Decision [7].
[27]Her Honour’s account of the circumstances of the matter, and the pungent observations of Buchanan JA at [2007] VSCA 104, [4]-[5], in fact suggest that, on consideration of all the evidence, disentangling was unlikely to be necessary.

In some instances, disentangling might be a useful methodology in resolving the question whether the worker has suffered serious injury. It may be the case also that, in some instances, doctors will be able to offer opinions of substance – not mere form – which will assist in disentangling physically and psychologically-based pain and suffering. But it would be simply wrong to think that Stamboulakis commands such an approach, failing which a plaintiff cannot succeed. Indeed, Neave JA, in the first of the passages from her reasons in that case which I cited at [13], explicitly recognised that this must be so.

Many examples might be given to illustrate the point. I will take just two.

Suppose a man loses a dominant right arm in an industrial accident. For a year or so he attempts to resume his former manual work; but he cannot do so. It is also clear that he cannot enjoy any of his previous recreations – gardening, golfing, and so on. These sequelae will be permanent. Later, in response to his injury and its effects upon him, he begins to suffer from somatic symptoms which make his life more of a misery. He has recurrent headaches, chest pain, and abdominal discomfort, all of which would preclude him working and from enjoying his former recreations. These somatic symptoms could be “stripped away”, almost certainly without the assistance of medical practitioners. But it could not sensibly be said that this would be necessary in order for the appellant to establish that the impairment in its physical consequences constituted serious injury.

Consider another example. A man of mature years, who has always been a labourer, suffers spinal injury. It is sufficiently serious to require a three level spinal fusion. He is left with a stiffened back. The spinal segments above and below the fusion are at increased risk of injury because of the fusion. Medical opinion is that the man will be limited, permanently, in the work which he can perform; and his essential recreational pursuits are seriously and permanently inhibited. Later on, he develops intractable pain in the affected area with radiation to his lower limbs. The pain cannot be explained physically. It is a psychological phenomenon, and it is very disabling. There could be no need to disentangle the psychologically-based symptoms and their consequences – although again it may be assumed that it would be possible to do so.

Finally, consider a variant of the second example. Suppose that the intractable pain, psychologically-based, has its onset very soon after surgery. The physical impairment, and its impact upon work capacity, would be no less ascertainable only because the psychologically-based symptoms were not “stripped out”.

It is impossible to specify a ‘one size fits all’ template of circumstances which a judge might find useful in determining a particular serious injury application. To take a single example, it could be that the judge hearing a particular application would consider himself or herself assisted by evidence that the applicant had a sound work record, or that the applicant had previously sustained injury but had recovered and got back to work. The judge might think it significant that the applicant had responded favourably to earlier injury affecting the area of the body now said to be affected. The fact that a person had coped with injury in the past, but not with injury now, might suggest, together with other circumstances, the likelihood that symptoms attributed to the present injury had a substantial organic basis – at least sufficient to satisfy the serious injury threshold. But whether such a conclusion should be drawn would depend upon consideration of all the evidence.

I said at [2] that this appeal, subject to an issue which I would later mention, raised squarely a question governed by s 134AD of the Act. The issue is this: there is a question whether, in understanding Stamboulakis as he did, the judge below misdirected himself as to the necessary approach to resolving the critical issue. He may have done so despite the fact that, having stated that ‘the essential question in dispute is the extent of [the] non-organic component’, he preferred the opinion of several doctors whose reports were relied upon by the respondent, and ultimately held that the state of the evidence was such that the appellant should fail ‘leaving Stamboulakis to one side’.[28] If the judge did so misdirect himself, the powers of this Court would include the power to remit for re-hearing[29]. But I will not address the issue further. The appellant squarely challenged the serious injury finding made below, and it is enough, for the purposes of this appeal, to address the issue thereby raised in conformity with s 134AD.
[28]Reasons [75].
[29]Dwyer v Calco Timbers Pty Ltd [2008] 82 ALJR 669, 675 [31]-[33].

I said earlier that two issues were raised in this case which were not raised in Church v Echuca Regional Health. The second of them was as follows.

Counsel for the respondent submitted that this Court must decide the matter as at the date of hearing of the appeal. He relied upon s 134AB(38)(j) of the Act, which provides that the assessment of serious injury shall be made ‘at the time that the application is heard by the court’. It is unnecessary to decide whether the submission was correct. It need not be decided because nothing was said to turn on it in this case. That said, my provisional opinion is that the submission ought not be accepted.

The language of s 134AB(38)(j), by its reference to ‘the application’, a concept embodied in s 134AB(16)(b), is opposed to the submission. Further, by s 134AD this Court is to decide the question, subject to receipt of fresh evidence, on the evidence and other material ‘before the judge who heard the application’. So there is distinguished the hearing of the application and the hearing in this Court. Again, s 134AD distinguishes between “a decision made on an application” and “the hearing of an appeal”; and its provision for adducing new evidence emphasises that this Court will ordinarily act on the evidence current at the time when the application was heard below.

Resolution of the Appeal

In my opinion, contrary to the conclusion of the judge who heard the application, the applicant has established that he suffered serious injury – both in its pain and suffering and its loss of earnings capacity consequences. To explain that conclusion, for reasons already given, I must consider all the evidence, and not only the expressions of medical opinion.

Personal and employment history

The appellant was born in Sri Lanka on 20 April 1963. He is now aged 45. He is a married man, and has two children. After eleven years schooling in Sri Lanka, he did a motor mechanic apprenticeship, and then worked in that trade for about seven years before migrating to Australia in 1992.

The appellant commenced employment with the respondent on 7 March 1994. Before that, in Australia, he had worked as a labourer.

The appellant’s employment by the respondent, as an assembler, involved physical exertion.

Chronology of injury and treatment

Over the years before 2000, the appellant suffered occasional problems affecting his neck and back spine, his right shoulder and wrists. He sought treatment, his condition improved, and he kept at work.

In 1999 the appellant’s work duties became more strenuous.

In about April 2000 the appellant became aware of increasing back pain. He attended the work’s medical centre on 8 May 2000. That is, he did not run straight to the doctor as soon as he felt some pain.

On 9 May 2000 the appellant attended his general practitioner, Dr Menon.[30]
[30]The doctor holds a postgraduate surgical qualification, but apparently practised at relevant times as a general practitioner.

On the following day, the appellant attended the then company doctor, Dr Middleton.

He was then given modified work duties.

In the period between about 12 May 2000 and 8 June 2000 the appellant was off work for several days; but mostly he carried on his employment. In that period he was medically examined, underwent an MRI of his lumbar spine and had physiotherapy.

The appellant continued to complain of back pain, and was put off work by his general practitioner between 8 June and 11 August 2000. He began a new course of physiotherapy. It continued, in fact, until November 2000. In addition, he was treated by a second physiotherapist between late July and 19 September 2000.

I pause in the chronology to note that the second of the physiotherapists later reported that the appellant’s complaint of mainly right-sided leg pain correlated poorly with objective findings and MRI reports, the latter of which revealed possible displacement of the left L-5 nerve root. The discrepancy, the physiotherapist opined, ‘could indicate the presence of a non-organic component’ to the appellant’s condition.

Notwithstanding that he remained under treatment, the appellant resumed work on restricted duties on 12 August 2000, usually working 4 – 5 hours per day. He carried on, although losing some time, until 31 October 2001. He did not precipitately cease all work. Rather, from time to time, because of exacerbation of symptoms, he had to take time off work.

In that lengthy period of resumed employment the appellant continued to receive medical and like treatment – it included physiotherapy and hydrotherapy – and to undergo medical assessment. In the latter connection, he was referred to a rheumatologist, Dr Barraclough, whom he first attended in early August 2000.

The appellant underwent X-ray and ultrasound of his right shoulder in late March 2001. A CT scan was performed of his thoracic spine in mid-June 2001. He was referred to a neurologist, Dr King, in July 2001. Dr King arranged further MRI scan of his cervical and thoracic spine. It was performed on 3 August 2001.

The appellant had to stop work on 31 October 2001 because his back pain, as he said, had in general got worse.

Subsequent to 31 October 2001, the appellant was subjected to further investigations. They included an MRI of his right shoulder on 28 November 2001 and a further MRI of his lumbar spine on 12 December 2001.

In late 2001 the appellant was referred to a psychiatrist, Mr Wijesinghe. He saw that doctor three or four times.

Between 3 January 2002 and 20 May 2002 the appellant attended Mr de la Harpe, orthopaedic surgeon, on three occasions. He was given epidural injections into his back and right shoulder. He was referred for continued physiotherapy and hydrotherapy.

On 24 February 2002 the appellant felt much worse back pain. He attended the Northern Hospital and was given medication.

In late 2002, the appellant was referred by a second general practitioner whom he had been periodically attending to Mr Pease, orthopaedic surgeon. This doctor saw the appellant twice – in November 2002 and in December 2003. Following his first examination, he arranged for the appellant to have yet another MRI of his lumbar spine.

In April 2003 the appellant travelled to Sri Lanka. His mother was ill. Whilst there, he attended hospital, and on 17 April 2003 underwent an MRI of his whole spine.

Subsequent to his return to Australia the appellant changed his general practitioner. He explained this by saying that he had difficulty getting appointments with Dr Menon. In the event, he began to attend Dr Hewa in February 2004.

Dr Hewa referred the appellant to a number of doctors. They included Dr Orchard, psychiatrist; Dr Janovic, rehabilitation specialist; and Dr Travers, rheumatologist.[31] The first of those referrals was in April 2004, the others in March and April 2005.
[31]No reports by those doctors were put in evidence. No significance was said to attach to that circumstance.

Dr Janovic arranged for the appellant to attend a pain management clinic. There he was treated by a psychologist, a physiotherapist and by medication.

Also during 2005, the appellant attended Dr Middleton on several occasions. He did so as a private patient, as he did when he attended the doctor in 2007.

In early 2006, the appellant was referred to Dr Clayton Thomas. That doctor arranged for the appellant to undergo an exercise programme.

The appellant’s account of symptoms and impairment

So much for the sequence of treatment. I turn to what the appellant said about his situation. This is his account of his symptoms and their effect upon him as set out in his affidavit sworn 9 December 2005:

20.I have low back pain across my low back, spreading down into both my buttocks and into my right hip all the time. I also have discomfort going down the back of both my legs to the heel with numbness and tingling in my toes and the soles of my feet. These symptoms in my legs come and go but are worse in my right leg. I have particular difficulties however with numbness in the sole of my left foot and big toe and have difficulties raising this toe. My back pain is made worse if I sit for more than about ten minutes. After this time I want to stand up or move around in my seat or otherwise alter my position. I find that if I stretch my legs out in front of me this can improve my back discomfort. I also cannot stand in one position for more than a few minutes. I have to move around. Bending at the waist more than a short distance is also painful as is lifting weights of more than about 3 kilograms.
21.I can drive a car, but after about fifteen minutes I have increased back pain and want to stop. I use a lumbar support for my back in the car, as suggested by my physiotherapist. My physiotherapist also suggested that I might benefit from wearing a back brace. I obtained one in about 2001 and used to wear it most of the time, except in bed. Unfortunately since I have been injured I have put on weight and it is not as comfortable to wear now and since about 2004 I have only worn it occasionally if my back pain has been worse. I go for a walk every afternoon, weather permitting. I usually walk about 1 kilometer. I often go to a park near my house where I can sit on the benches. After my walk I usually feel tired and have increased back pain into my right hip. When I am walking I have increased discomfort with slopes or uneven ground. I also have difficulty with steps where I will use a hand rail if available. I usually go up steps one step at a time, stepping off with my left foot and bringing my right foot up to it. When I walk I also find that the rotation movement seems to give me right shoulder and neck pain as well.
22.I have difficulty sleeping. It is usually more comfortable to sleep on my stomach. If I sleep on my back I will put pillows under both my knees which was suggested by my physiotherapist. Three to four nights a week I will end up getting out of bed and sleeping on a plastic mat which I have by my bed which sometimes feels more comfortable. I find it hard to get to sleep because of the back pain and once I have got to sleep I do not stay that way for very long and wake with discomfort. I will get up virtually every night to walk around to try and ease the back pain. I also do stretching exercises whilst lying down. In the morning my back feels very stiff. To get out of bed I roll onto my left side and then slide my legs out of bed and use my arms to get myself up to a sitting position before pushing myself to my feet. I dress slowly. I have to put my pants on sitting down. Usually my wife will help me put my socks on. If my wife is not home, I can put my socks on my squatting down onto one knee and putting the sock on the other leg, but it is quite painful. Sometimes I do not wear socks. I clean my teeth and shave in the shower as this is less uncomfortable than bending over a basin. I find it painful to sit down on the toilet because it is a low seat. I pull myself up from the toilet by using a bench next to the toilet. If I am standing in front of the toilet or over a basin I will put my arm out in front of me to support myself. I cannot soap my legs properly in the shower.
23.Prior to my injury I used to look after the garden and would dig vegetables and flower patches. I used to grow herbs and vegetables for cooking. In particular I used to grow Gotukola and Mukunuwenna leaves which I would use to cook Sri Lankan food. I also used to grow onion, silver beet, parsley, tomatoes and chilli. I used to like cooking. Since I have been injured no one has mowed the lawn. A friend comes and sprays weed killer in the backyard over the areas which were grassed and these are now largely dirt. There are still some vegetables and flowers but my wife does most of the work attending to these. I rarely cook now. Prior to my injury if people came to dinner my wife and I would both cook. I used to like cooking fish curries. I would usually use tune. The prolonged standing in one area and bending makes it difficult for me to prepare any dish that will take more than a few minutes. I continue to clean the inside of my car occasionally, particularly where my daughter sits. I have to be careful doing this as twisting in and out of the car is painful. Even getting in or out of the car to drive is discomforting and I usually put my backside in first and then swing my legs inward and to get out I swing my legs out first and then use my hands on the steering wheel and the car door to support myself to my feet. My wife now works from 3pm to 6pm, 3 days per week and I try to help around the house to keep it clean. I will usually wash the dishes and get a meal for my daughter. I take her to kindergarten sometimes. I cannot pick my daughter up now because she would be too heavy for me but she is an obedient child and will stay where I tell her.
24.I used to play cricket occasionally before I was injured. I would play with the Ceylon German Technical Institute Old Boys Association. This association has 800 members in Melbourne. I would play about every second Saturday during the summer. The association also held dinner dances and barbecues which I would attend about three or four times a year. I have not played cricket or been to any of their functions since I have been injured. I would find it too painful to sit or stand around at a social function. I would prefer to be at home. I also used to like cycling. Prior to my injury I rode about once or twice a week, either by myself or with a friend, Ravi. I cannot cycle now. The bending forward over the bike would be too painful for my back. I can still play with my daughter even though I cannot pick her up but I have to be careful with my movements and cannot be too energetic.[32]

[32]The emphasis is mine.

The gist of the appellant’s viva voca evidence on the hearing of the application was that the situation there described was unchanged. Other than that, the appellant stated that he was still attending his general practitioner, was taking panadeine forte 2 – 3 times per week, was no longer receiving physiotherapy but was still performing light exercises each day, and that he was still ‘walking in (a) pool’ about once a week.

The appellant was not cross-examined to suggest that the disabilities of which he complained were not real to him – whatever might be their cause. I note two matters in that connection. First, respondent’s counsel conceded below – and no different position was taken in this Court - that the appellant’s credit was not in issue. Second, respondent’s counsel admitted below that the appellant had been put under surveillance on six occasions in January, February and May 2007; and no surveillance film was shown.

I pause again. In the passages in his affidavit which I have emphasised the appellant described quite specific difficulties which he encountered in day to day living because of back symptoms, and specific strategies which he adopted for dealing with them. The picture thus created is quite unlike the picture of inability to do almost everything which is commonly characterised by doctors as the stigmata of a ‘functional’ or ‘psychogenically determined’ condition. The same may be said of the appellant’s account of his need for medication, which was measured rather than being an assertion of the need for strong painkillers every day.

I turn now to the medical and like material. It can be conveniently grouped into five categories: investigations; assessment by treating medical practitioners; medico-legal assessments for the appellant; reports relied upon by the respondent; and vocational assessments.

Investigations

MRI of the lumbar spine performed 23 May 2000 was reported as follows:

L1-2, L2-3, and L3-4: Very mild broad based disc bulges are identified at all of these levels. The central canal and bilateral foraminae throughout these levels appear satisfactory. No evidence of neurological compromise.
L4-5: Disc dessication is combined with a mild to moderate broad based disc bulge with a small, inferior extruded component. This appears to contact and mildly compress the anterior thecal sac. The exiting L4 nerve roots bilaterally appear satisfactory and there is no evidence of sub-articular/lateral recess narrowing. However, the traversing L5 nerve root appears to be mildly displaced postero-laterally but not appreciably compressed. No evidence of central canal stenosis.
L5-S1: A well hydrated disc is identified without evidence of a disc bulge, herniation or evidence of foraminal or central canal narrowing.

No evidence of pars defects and the nerve roots are equally distributed within the thecal sac.
CONCLUSION
Mild to moderate broad based disc bulge at L4-5 with a small inferior extruded component comprising the thecal sac and displacing the left traversing nerve root postero-laterally but not appreciably compressing this nerve root.

CT scan of the lumbosacral spine performed 25 October 2001 was reported as follows:

At L4-5 there is a moderate sized disc protrusion which is broad based but slightly more accentuated on the left side. A small central disc protrusion is present at L5-S1. The remaining discs are normal.
There is no canal stenosis and no facet arthropathy.
CONCLUSION
Moderate sized broad based protrusion at [L4-5] slightly more marked on the left. Small central disc prolapse at L5-S1.

The report of an MRI performed on 12 December 2001 was essentially similar. The same may be said of an MRI performed on 19 November 2002, in which the report was as follows:

L4-5 Level
There is mild disc desiccation. A broad based posterior disc bulge is present. Disc material extends 4mm posterior to the end plate and lies between the traversing L5 nerve roots. There is possibly mild impingement of the traversing right L5 nerve root in the subarticular region. The exiting L4 nerve root is unaffected. The central canal diameter remains adequate. The left L5 nerve root is not affected.
Subtle disc desiccation affects L5-S1 without loss of contour. The other discs retain their normal contour and signal intensity. The conus lies at T12-L1 and is normal as is the cauda equina. No advanced facet joint arthropathy has been demonstrated.
Treating medical practitioners

Dr Menon reported on six occasions between September 2000 and June 2003. It was his opinion that the appellant’s work had caused ‘an aggravated L4-5 disc prolapse’, that when he last saw the appellant in June 2003 the pain had ‘a discogenic element to it’, and that ‘the chronicity of the pain has induced a functional overlay causing [the appellant] anxiety.’ He considered the appellant’s prognosis to be guarded. As at June 2003, the doctor considered him ‘incapable of any work.’

Dr Hewa reported on three occasions between October 2004 and May 2007. In his initial report he diagnosed the appellant’s problem as ‘degenerative disease affecting neck, back, shoulders and wrist’. There was ‘depression with functional overlay’. It was unlikely that the appellant would go back to previous duties. In his report dated 28 November 2005 he observed that the appellant ‘feels life has been ruined secondary to injuries which he believes to be more severe showing functional overlay.’ He opined that ‘given no progress whatsoever and being depressed it is unlikely that he will go back to gainful employment in the near future.’ In his last report, he summarised the situation as follows:

1.Lower back injury he has suffered is L4/5 disc prolapse proven by MRI with associated fibromyositis and multi level disc degeneration.
2.It was my opinion that an alternative duties that will not aggravate his back pain should be provided as a trial his pain relief by the pain specialist and effort by the rehab specialist has failed to achieve it. Accordingly it is my opinion he does not have the capacity to continue his previous employment into foreseeable future.
3.The “extent” you have requested cannot be quantified, except to say the pain due to injury alone is severe enough to interfere to enjoy general activities, mood, walking ability, relations with other people, sleep and general enjoyment of life. This is excluding psychological and psychiatric consequences of the physical injury.
4.As to the capacity to undertake pre injury employment, it is my opinion being nil excluding completely the psychological or psychiatric consequences. This is given his previous job was very manual with repetitive back movements and prolonged sitting (as with driving to work place) is discomforting. All this despite all the occupational rehabilitation services, pain management.
b. Alternative suitable employment. So far this has not been achieved despite intervention by various specialists in various specialities and I do not think any body will employ him given his disabilities [nor] he will cope for the same reasons as mentioned.
5.Given the injury dating nearly 7 years and has not made any progress to date I do not believe he will recover from consequences and incapacities in the foreseeable future excluding completely the psychological or psychiatric consequences of the physical injury.

No doubt paragraphs numbered 3, 4 and 5 were an attempt, in response to questions posed by the appellant’s solicitors, to ‘disentangle’ or ‘strip out’ a psychological aspect of the appellant’s entire compensable disability.

Dr Barraclough, a rheumatologist, reported on four occasions between January 2001 and July 2003. In his first report he diagnosed ‘minor lumbar spondylosis with musculo-ligamentous low back and neck pain.’ He accepted that the symptoms were aggravated to some extent by the appellant’s work. He expected that the appellant should be able to continue with light duties.

By the time that the doctor reported in August 2002, the appellant had consulted him twice more – in June and October 2001. The appellant had then been working on light duties. His symptoms, as recorded by the doctor, were not gross. The doctor maintained his diagnosis. It was his opinion, given the duration of symptoms, that any improvement was likely to be very slow. The appellant should have been fit for the part-time work which he had then been performing.

In March 2003 Dr Barraclough reported to the WorkCover agent. He had last seen the appellant in March 2003. The relevant complaint had been of low back pain with radiation to the legs. Examination had shown some restriction of lumbar spine movement. The doctor stated, in answer to questions, that:

2.The diagnosis was of lumbar spondylosis and musculo-ligamentous back pain.
3.He was still experiencing pain in his spine and ongoing stiffness. The level of disability was high.
4.In view of the duration of symptoms and the lack of improvement, I do not feel it is likely he will get back to work in the foreseeable future.
5.It seems unlikely he will be able to get back to work in the foreseeable future.[33]

[33]I note, for completeness, that Dr Barraclough reported to the appellant’s solicitors on 10 July 2003. His opinion was in substance unchanged from that expressed to the WorkCover agent in the report dated 28 May 2003.

Mr de la Harpe, the orthopaedic specialist, reported on four occasions between May 2002 and May 2007. His last report was in part an exercise in ‘disentangling’, undertaken at the instance of the appellant’s solicitors.

Mr de la Harpe’s report dated 12 October 2005, focusing upon his initial examination of the appellant on 3 January 2002, expressed the gist of his then opinion:

On examination on the 3/1/2002 he was a pleasant young calm gentleman who was walking with a normal gait pattern with slight apprehension of performing full movement of flexion and extension of the lumbar spine, but eventually was able to do this within normal range of movement. Examination of the lower limbs with respect to tone, power, reflexes, sensation and coordination was normal. An MRI performed in December 2001 concluded there was a small central L4/5 disc protrusion causing indentation of the thecal sac, but no definite nerve root compression. Tiny L5/S1 disc protrusion is non neural compressive. The MRI was basically in keeping with two level disc degeneration at L4/5 and L5/S1. There was a high intensity zone at the L4/5 disc, but as there was no neurocompressive element, I didn’t feel there was anything from a surgical point of view that should be offered. It is most likely that some of his pain is related to discogenic pain and there may be some functional overlay as well.

The doctor re-examined the appellant on 11 May 2007. On examination, he noted some limitation of lumbar spinal movement, but no neurological abnormality affecting either leg. He expressed this opinion:

1.I believe that he has suffered an injury to his lumbar spine and most likely this is a disc injury causing discogenic back pain.
2.But for the injury referred to above and in the history given to me, Mr Jayatilake had the capacity to continue in his employment into the foreseeable future.
3.Excluding the psychological or psychiatric consequences of his physical injury, I believe that he has true organic pain derived from his lumbar disc injury.
4.(a) I believe that he is incapable of going back to his pre-injury
level of employment, &

(b)It would seem that he is extremely limited for any form of employment.

5.I believe that he will continue to suffer into the foreseeable future due to his physical injury.

My general comments are such that I believe that his prognosis is quite poor. Given his lack of English and educational skills, it would be unlikely that he is going to find suitable sedentary alternative employment into the future and equally it may be difficult for him to re-train. I believe that his poor response to date to conservative management and his failure to improve, given considerable lapse of time from the injury to date, bodes ominously for him to return to any form of gainful employment.

Dr Middleton, whom the appellant first consulted as the Toyota company medical officer, and later consulted privately, reported on 7 May 2007. In the period 2000-2001, the doctor noted complaints of specific symptoms in the back and legs, and observed particular deficits on examination. The appellant acknowledged improvement in his symptoms on occasions, and complained of deterioration on resumption of work duties.

When seen in 2005, however, and when he attended for review in 2007, the appellant was exhibiting, in the doctor’s opinion, not only chronic compensable injury to his low back, but also ‘clear evidence of pain behaviour and associated depression.’. Pain was said to be constant, and aggravated by even simple activities.

Dr Middleton summarized his opinion this way:

(b)It is my opinion that the nature of the work that Mr Jayatilake was performing at the time of the injury was the cause of those injuries and I point to the immediate referral to have the work station modifications undertaken at the time of his first visit. Noting Mr Jayatilake had some early degenerative changes it is reasonable to assume that these conditions were an aggravation and made symptomatic, out of which the condition became chronic, resulting in his Complex Regional Pain Syndrome.
(c)Mr Jayatilake suffered a chronic strain of his lumbar spine. The repetitive bending I feel resulted in the prolapse of the L4/5 disc thereby causing permanent impairment.
…

Because of the chronic pain, Mr Jayatilake developed Complex Regional Pain Syndrome Type 1 without sympathetic involvement. This was associated with a depressive overlay.
(d)(i) Mr Jayatilake is not fit to resume his pre-injury employment.
(ii)It is my opinion that currently Mr Jayatilake does not have the capacity to perform even alternative duties largely as a result of his Complex Regional Pain Syndrome and the resultant disability to his physical capacity.

And
4.… clearly the physical injury resulted in him not being able to resume his pre-injury employment. In regards to suitable alternative employment undoubtedly there would have been the need to avoid significantly manual tasks for any duties to be suitable. It is possible to consider a capacity to perform part-time, non-manual work subject to Mr Jayatilake’s ability to be retrained and re-employed.
5.With the existing situation and no further active treatment being provided, it is my opinion that Mr Jayatilake will continue to suffer the consequences and incapacities significantly related to the physical injury and into the foreseeable future.

I should briefly refer to reports provided by treating physiotherapists.

Mr Du reported in October 2002 upon the appellant’s attendance at Westgate Physiotherapy between May and July 2000 and in September and October that year. Examination had revealed particular areas of lumbar spinal tenderness, back stiffness, limited straight leg raising and a specific neurological deficit. Tests for non-organic pathology had been negative. The appellant had been treated for ‘mild to moderate lumbar disc pathology’. Seen later that year, he had been treated for an ‘acute re-aggravation of cervical and lumbar pain’. Mr Du opined that the appellant’s road to recovery would be slow, and that his ‘future incapacity and employability would depend very much on how he responded to [a] functional restoration program’.

Mr Simon Li of Hadfield Physiotherapy Clinic reported upon attendances of the appellant in the period June to November 2000. He noted that when the appellant first attended there had been marked decrease of back movement with moderate muscle spasm. When last seen the appellant had returned to work. He had still been ‘suffering from low back pain and on and off legs pain.’ He had been having ongoing physiotherapy and hydro therapy elsewhere. The picture as reported, it can be seen, was not an overstated one.

Adam Walters was the physiotherapist to whose opinion I referred at [46]. Additional to what I there noted, Mr Walters reported that the appellant had been discharged from the attendance ‘due to continued non-compliance which was detrimental to the progression of his rehabilitation program and effective increase in his functional capacity.’ He opined also that he saw no reason why the appellant would not be able to continue to perform restricted work duties, and that he had confidence that the appellant would be able to gradually increase his hours of work.

Pausing for a moment, examinations by two of the three reporting physiotherapists, early on in the history of the appellant’s problems, revealed particular findings on examinations consistent with organic pathology. Only the third physiotherapist suggested the presence of a non-organic component. Nonetheless, Mr Walters’ initial diagnosis was ‘some degree of discogenic back pain with possible irritation of the left L5 nerve root.’ Evidently, he was dissatisfied with the appellant’s attendance pattern, a matter which the appellant explained.

The last of the physiotherapy reports, dated 9 August 2002, was provided by Mr Heilbronn who had been treating the appellant since August 2001 by physiotherapy and hydro therapy. Concerning the appellant’s low back he reported that:

MRI studies of the lumbar spine on 5/00 and 12/01 show mild central bulge L5-S1, and central protrusion of L4-L5 causing indentation of thecal sac. Results of CT on 10/01 show similar bulges. These results tend to correlate with patient examination. He complains of constant pain, pins and needles and numbness right lower back into buttock, right posterior thigh and calf, and left calf and foot numbness aggravated by lifting, bending, twisting, walking more than 20 minutes, standing more than 15 minutes, sitting more than 15 minutes and driving.
Objectively, he has moderate flexion (pain right low back/buttock), moderate extension (pain right thigh), pain limited right lateral flexion in right shin and foot, positive neural slump test and bilateral positive straight leg raise.

Mr Heilbronn in substance opined that the last two of those recorded findings had an organic basis. His prognosis was guarded.

Appellant’s medical-legal opinions

Mr Mangos, general surgeon, examined the appellant on 5 March 2007. He noted very restricted low back movement, limited straight leg raising worse on the right side, wasting of the right thigh, loss of extension of the left toe, and otherwise no abnormal neurology. He opined that:

(b)The condition is certainly work related and the worker’s employment in my opinion has been a contributing factor to the worker’s condition and to the aggravation, acceleration, exacerbation and deterioration of any pre-existing injury or disease.
(c)This man is suffering from ruptured L4/5 intervertebral disc with aggravated multilevel lumbar disc degeneration.
(d)This man is totally and permanently incapacitated for all forms of regular work.
(e)I note that operation has not been performed and it seems that the problem is too widespread to perform a fusion. It involves most of the lumbar intervertebral bodies and discs. Conservative therapy is best method of treatment with swimming massage and medication.
(f)His prognosis for return to work is extremely poor.
(g)The disability is wholly related to the work related injury.

In answer to a request to disentangle, he said this:

3.Excluding completely the psychological or psychiatric consequences of the physical injury referred to above, I consider that your client’s pain, restriction, disability and incapacity are derived from the physical organic injury above.
4.Excluding completely the psychological or psychiatric consequences of the physical injury referred to above, I consider that your client is unable of returning to; (a) His pre-injury employment; (b) To any regular alternate suitable employment which I feel he would not be able to cope with either.
5.Excluding completely the psychological or psychiatric consequences of the physical injury referred to above, I consider that your client will continue to suffer the consequences and incapacities of the physical injury into the foreseeable future.

It is noteworthy that Mr Mangos did not opine, prior to his answers to questions 3, 4 and 5, that the appellant in fact had psychological or psychiatric consequences of his physical injuries. He rather concluded that the appellant had suffered a ‘major back injury’ which had produced both low back pain and stiffness as well as abnormal signs in both the right and left legs.

Mr David Brownbill, neurosurgeon, reported on 11 April and 22 May 2007.

The doctor’s examination on 3 April 2007 revealed much restriction in back movement – said by the appellant to be ‘because of the pain’ - absence of lumbar tenderness or spasm, equal circumference of the thighs but circumference of the right calf measured at 1 cm less than on the left side, and variable weakness of extension of the left great toe. Further, there were identifiable areas of reduced sensation in the right and left lower legs.

Mr Brownbill was evidently supplied with reports of investigations of the appellant’s lumbar spine, and with copies of many medical reports – including reports relied upon by the respondent on the hearing of the application.

He opined that the appellant had suffered a work-contributed L4-5 lumbar intervertebral disc derangement; and had developed ‘a marked non-organic reaction to that pain and activity restriction.’ He was unfit for his previous work by reason of his physical disability. Further –

Noting the radiologically demonstrated intervertebral disc derangement and his likely ongoing pain, together with his work experience limited to manual activities and his restricted command of English, I consider it likely that he will have difficulty in obtaining work for which he is fitted.

MrBrownbill undertook the ‘disentangling’ task set for him this way:

3.I consider that excluding the psychological or psychiatric consequences that as a result of the injury discussed, this man’s pain, restriction, disability and incapacity derive from the organic injury to a significant degree.
4.Excluding completely the psychological or psychiatric consequences, I consider that the injury has affected his capacity to undertake his pre-injury employment to a marked degree and to any alternative suitable employment to a moderate degree.

5.Excluding completely the psychological or psychiatric consequences of the physical injury discussed, I consider that on probability this man will continue to suffer the consequences and incapacity of the physical injury into the foreseeable future.

In his subsequent report, Mr Brownbill relevantly said this:

I anticipate that on probability with his described pain having continued in a fluctuating manner for seven years, that it will continue with fluctuations.

Mr Charles Flanc, vascular and general surgeon, reported on 13 April 2007. He was another doctor who had been provided with many earlier medical reports and reports of investigations.

On examination, the doctor noted that the appellant’s back movements were very restricted. Attempts to move were associated with spasm and a pain response. The right thigh was 1 cm less in circumference than on the left side, likewise at calf level. Straight leg raising was reduced, and was not much different when the appellant was asked to sit up on the examination couch. There was no extension of the left great toe.

In the doctor’s opinion, the appellant’s continuing symptoms were in part related to work-aggravated lumbar disc degenerative disease. But the extent of limitation of spinal movement suggested that non-organic factors were also playing a part in the symptom complex. Wasting of the right leg was consistent with disuse, but there was no objective neurological abnormality. The doctor was not satisfied that radiculopathy affecting the right leg was established. The doctor further considered that not enough attention had been paid to the inability of the appellant to extend his left great toe, which is one of the clinical signs of a nerve root lesion, particularly at the L5 level.

Mr Flanc answered a number of questions, including questions related to ‘disentangling’, this way:

1.What is the precise physical or organic injury suffered by our client as a consequence of the work undertaken by our client during the period since 20/10/99 to May 2000?
In my opinion, he has sustained an aggravation of pre-existing disc degeneration of the lumbar spine at the L4/5 and L5/S1 levels, in the sense that this condition became symptomatic. In my opinion, the change in his working conditions since October 1999, have been a significant contribution to the development of these symptoms.
He has significant weakness of extension of the left great toe and I have suggested further investigation of this because it may indicate a left radiculopthy.
2.But for the injury referred to above, on the history obtained by you, did our client have the capacity to continue in his employment into the foreseeable future?
In my opinion, Mr Jayatilake had the capacity to continue his employment into the foreseeable future but for the injury to his lower back which occurred from 1999 onwards.
3.Excluding completely the psychological or psychiatric consequences of the physical injury referred to above, to what extent does our client’s pain, restriction, disability, and incapacity derive from the physical or organic injury above?
In my opinion, the physical injury to his lower back which occurred from 1999 onwards, has made a significant contribution to his continuing symptoms although non organic factors are also contributing.
4.Excluding completely the psychological or psychiatric consequences of the physical injury referred to above, to what extent has the injury affected our client’s capacity to undertake his pre-injury employment and alternative employment?
(a)Capacity for pre-injury employment. In my opinion, he is not fit to return to his pre-injury employment. In particular, he would not be capable of any work involving repeated bending, twisting, standing or heavy lifting. It is likely that this incapacity will be permanent.
(b)Alternative suitable employment. In assessing his capacity for light alternative duties, I have considered the following:
(i)He suffers from continuing low back pain with poor postural tolerance.
(ii)He speaks English well and has had a good education and would therefore be a potential candidate for vocational training into a light job.
(iii)I have noted the report of Dr Michael Baynes, Occupational Physician – 25.1.07, pg. 5. He reports on the vocational assessment made on 14/11/02 in which vocational options are presented including those of a supervisor, shop assistant, cargo assistant, package and container filler, and this list includes jobs such as motor mechanic and motorcycle mechanic.
In my opinion, he would certainly not be fit for work as a motor mechanic or as a motorcycle mechanic and I am concerned that the job mentioned above would still involve stooping, bending, twisting or lifting.
I have serious doubts whether he would be able to be channelled successfully into a sustainable occupation and I believe that realistically, he probably has no work capacity.

5.Excluding completely the psychological or psychiatric consequences of the physical injury referred to above, will our client continue to suffer the consequences and incapacities of the physical injuries into the foreseeable future?
In my opinion, your client continues to suffer the consequences and incapacities of his physical injuries into the foreseeable future.

Dr Richard Bittar, neurosurgeon, reported on 21 May 2007. He diagnosed work-related discogenic low back pain and lumbar radiculopathy secondary to L4-5 disc prolapse. He opined that the appellant was unfit for both his pre-injury employment and alternative duties. Whilst further investigation might suggest that consideration be given to a fusion operation, the doctor recommended conservative treatment. His ‘disentanglement’ opinion was as follows:

3.Excluding completely the psychological or psychiatric consequences of the physical injury referred to above, Mr Jayatilake’s pain, restriction, disability and incapacity derive wholly from the physical injury described above.
4.Excluding completely the psychological or psychiatric consequences of the physical injury referred to above, the injury has rendered Mr Jayatilake incapacitated in terms of being able to undertake both his pre-injury employment or any alternative suitable employment.
5.Excluding completely the psychological or psychiatric consequences of the physical injury referred to above, it is my opinion that Mr Jayatilake will continue to suffer the consequences and incapacities of the physical injury into the foreseeable future.

The appellant also relied upon the reports of Mr Ronald Quirk, orthopaedic surgeon, which was provided to the employer in September 2000; and of Mr Clive Jones, orthopaedic surgeon, dated 2 June 2002.

Mr Quirk diagnosed ‘a significant disc prolapse’ at L4-5, to which the appellant’s employment had been a significant contributing factor. The appellant, when examined, had been partially incapacitated. It was too soon to tell if there would be permanent impairment.

Mr Jones opined that the appellant ‘appears to have a possible L4-5 disc injury causing right-sided buttock and groin pain and some leg referral.’ He was unfit for work as a vehicle assembler. There was ‘likely a capacity for suitable lighter employment’, but the doctor was ‘unable to define this exactly’. It was ‘difficult to be sure about the extent of permanent impairment and its material contribution by injury.’

Medical reports relied upon by the respondent

The respondent called in aid reports of Dr Martin Sia, Dr John King, Dr Wijesinghe, Mr de la Harpe and Mr Pease. The appellant had consulted Dr Sia’s practice on 2 occasions in mid 2000. Dr Barraclough had referred the appellant to Dr King for neurological assessment in 2001. Dr Menon had referred the appellant to Dr Wijesinghe, a psychiatrist, in late 2001. Mr de la Harpe was the orthopaedic surgeon to whose reports I have already referred. Mr Pease was another orthopaedic surgeon to whom the appellant was referred by his general practitioner in late 2002.

Dr Sia’s report was based upon notes taken by other doctors in the practice. Seen in May 2000, the appellant had some limitation of movement of his neck and lower back. Seen a month later, there was no discussion of further neck or back pains. From this, Dr Sia deduced that that appellant must have improved. But in fact the appellant was then having treatment elsewhere.

Dr King reported to Dr Barraclough on 11 July 2001. He noted extension weakness of the left great toe, but opined that it was ‘probably a local lesion.’ Sensory loss was of the ‘stocking’ kind. He was dismissive of the significance of what was shown by MRI examination of the appellant’s lumbar spine. In his view the appellant’s illness was largely functional.

On 19 November 2001 Dr Wijesinghe reported to Dr Menon, following recent examination, that –

My psychiatric diagnosis was of a reactive depression. I note that Dr John King has concluded that this is largely a functional illness. This probably does apply to his sensory impairment. His other physical symptoms should be judged on their own merits.

Following review in July 2002 he reported that the appellant was not clinically depressed. Psychiatric treatment was not indicated. The appellant’s sensory loss was probably functional.

At review in February 2003 the appellant was complaining of increased areas of sensory impairment. It appeared functional. The appellant was not, however, clinically depressed, and did not require psychiatric treatment.

The additional reports of Mr de la Harpe add very little to what I have already noted. One of them was simply a replica of a report relied upon by the appellant. It may be observed, however, that in a report dated 15 January 2002 the doctor’s diagnosis was of ‘some problems related to discogenic pain and possibly some mild functional overlay as well.’

The appellant was first seen by Mr Pease on 12 November 2002. The doctor reported that at re-examination on 2 December 2003 there was now a response to non-organic factors which had previously been negative. The ‘only positive findings were of 2 cm wasting of the right mid-calf and a reduced right ankle jerk.’ The doctor opined that MRIs ‘suggest pathology at the L4-5 level but when last seen [the appellant] demonstrated signs of a significant functional overlay which was not present when he was first assessed.’

I turn to medical reports obtained by the respondent. First in point of time was the report of Dr Stephen Stern, psychiatrist. Following interview on 3 December 2002, the doctor opined that:

1.This man is suffering from an adjustment disorder, with depressed mood.
2.This has been caused by the work injuries of April 2000 and the continuing pain. Employment is a significant contributing factor.
3.From a psychiatric aspect alone, he is fit for work, including his pre-injury duties.
5.His psychiatric prognosis depends largely on improvement of his physical disorder and return to work.

It is difficult to imagine how that report could be said to have assisted the respondent.

Mr Michael Shannon, orthopaedic surgeon, reported five times between February 2003 and May 2007.

In his first report, he assessed the appellant’s pre-injury job, at odds with the assessment of the company doctor, as not appearing to be particularly physically demanding. At initial examination, unlike other doctors, he observed no wasting of the appellant’s right leg. Acknowledging the presence of ‘some disc bulging’ at L4-5, he opined that it was ‘conceivable this disc degeneration and disc bulging was at least aggravated’ by the appellant’s work. But there was ‘certainly no definite evidence’ of disc prolapse or neurological improvement. His overall impression was of the development of ‘a functional overlay or pain syndrome’. He suspected that ‘the effects of the aggravation have long since ceased.’

In November 2004 he noted that there had been little change in the appellant’s condition. But in range of movement he had deteriorated, with increasing sign of non-organic behaviour. ‘The effects of any aggravation by employment [had] substantially ceased.’

In December 2004, having been referred the report of Mr Neufeld, physiotherapist, for comment, Mr Shannon observed, inter alia, that ‘you may have chosen to accept that there was an original injury which was work related but I am unable to establish that.’ The appellant, he opined, had a pain syndrome which was not ‘significant (sic) work related.’

Mr Shannon next examined the appellant in April 2006. He noted inconsistent presentation in respect of back movement. Straight leg raising was improved – but not full – when sitting up on the examination couch, by contrast with formal examination. There was no abnormality in the legs.

On this occasion, the doctor opined that the appellant’s apparent deterioration could not be ‘explained by a work related injury and is probably not genuine.’ He doubted that there was any significant causal connection between the appellant’s present condition ‘and injuries between October 1999 and May 2000.’

Finally, in February 2007, Mr Shannon again noted conflicting physical signs, absence of neurological abnormality, and the presence of non-organic features in the appellant’s presentation. He opined that there had never been any objective evidence of radiculopathy, that there had always been significant sign of a non-organic component, and that the ongoing problems were essentially due to underlying degenerative change and a functional overlay. He found it ‘almost impossible’ to separate the non-organic from the organic components. From a purely physical point of view the appellant was fit for ‘suitable employment.’

Mr Neufeld, physiotherapist, reported on 3 May 2004. At examination, he noted ‘significant pain behaviour’. On the other hand, he observed extension weakness of the left great toe, the significance or otherwise of which was unclear. He noted also that ‘muscle bulk in the calves and thighs appeared symmetrical.’ That language strongly suggests that he did not measure the circumference of the appellant’s calves or thighs. It was his opinion that –

This man is suffering from a chronic pain condition, significant pain in his neck, back, right arm and lower limbs related to degenerative disease in the neck, shoulder and lower lumbar spine with significant secondary psychological sequelae, most prominent of which is depression.

This diagnosis seems to have involved acceptance that pain felt by the appellant in his back and lower limbs had an organic explanation, notwithstanding the additional presence of ‘chronic pain condition’ and ‘significant secondary psychological sequelae.’

Dr Peter Stevenson, consultant physician, reported in March 2006 and January 2007. This doctor noted at his initial consultation, contrary to the observations of a number of other examiners, that the appellant could achieve straight leg raising of 90 degrees on the examination couch. His analysis of the MRI reports was that they showed ‘probably age related’ changes and were ‘not significant’. He had been provided with reports of a number of doctors, among them the assessments of doctors whose opinions as to the appellant’s physical disability had been the most dismissive. Overall, he could ‘identify no substantive pathology that would account for the various restrictions.’ Sensory loss in the lower limb ‘appear[ed] pseudoneurological’. There had been marked inconsistencies on physical examination.

The doctor’s opinion in 2007 was unchanged. It was quite possible that the appellant had suffered initial back discomfort in the ordinary duties of his work, but his presentation was certainly not explained by ‘minor soft tissue injury’.

Finally I must refer to the report of Dr Michael Baynes, specialist in occupational medicine, dated 25 January 2007. On examination, he found that the appellant’s back movements were apparently much restricted; and that his straight leg raising – unlike the examination finding of any other doctor – was 0 degrees. There was global weakness of the legs, glove and staking sensory loss of the entire right leg, weakness in dorsiflexion of the big toe and a decreased right ankle reflex.

The doctor opined that there was evidence of L4-5 degenerative change, but no clinical objective evidence of radiculopathy in the lower limbs. He further concluded that the appellant was suffering from ‘chronic pain syndrome reporting ongoing back pain, neck pain and right shoulder pain with evidence of abnormal illness behaviour.’ He concluded, still further, that any aggravation of degenerative disease of the lumbar spine by work had ceased. Any continuing organically-determined symptoms were, in effect, attributable to age-related degenerative disease.

Return to work plans. Vocational assessment.

The respondent put three return to work plans in evidence. Relating to the period June to September 2001, they show that the appellant was provided with restricted duties in accordance with medical advice.

Next, Industrial Work Conditioning Clinic provided a continued functional and vocational assessment on 14 November 2002; and in the period January to March 2003 provided certain subsidiary reports.

The author of the reports was apparently Hema Srinivasan, a person described as a ‘rehabilitation counsellor’, and also as an ‘occupational rehabilitation consultant/vocational adviser’. It appears that this person has a post graduate diploma in physiotherapy.

In any event, armed with a few medical reports, and based upon her own examination of the appellant, which was said to reveal certain inconsistencies, Ms Srinivasan opined that the appellant ‘certainly has the current work capacity to undertake sedentary duties.’ She assessed the appellant – despite his very good work record over the years – as having ‘a low work focus’. According to her initial report, a number of job options might be suitable. They included ‘supervisor motor mechanic’, ‘motorcycle mechanic/light engine mechanic’, ‘shop assistant or counter assistant’ and ‘product assembler’. In order to facilitate the appellant’s translation back into employment, Ms Srinivasan advised, unsurprisingly, the availability of the organisation which employed her to assist.

Subsequent reports by Ms Srinivasan reveal, I think, a degree of annoyance that the appellant was being, as she perceived it, unco-operative.

That leaves for mention the vocational assessment conducted in April 2006 by ‘Australian Vocational Link’ in the person of Ms Leonie Schneider, whose professional qualifications were stated to be ‘BA Post Grad Counselling (Vocational Counselling)’. For the purposes of her report, Ms Schneider interviewed the appellant, and was provided with the reports of many doctors.

Ms Schneider noted inconsistencies in the appellant’s presentation.

According to her assessment of the medical reports –

There is overwhelming consensus of medical opinion to the effect that Mr Jayatilake has no real capacity to perform the rigours of his pre-injury job at Toyota Motor Corporation assembling the rear bumper bars on vehicles but he does have an undoubted physical capacity to engage in suitable light duties.

And
… most medical examiners noted that he displays a great deal of functional overlay and exaggerated pain and illness behaviour.

Ms Schneider opined that, provided the appellant adhered to work restrictions broadly outlined by a number of doctors, there were many jobs that he could do. She instanced the positions of laundry attendant, car wash attendant, lunch assistant, school crossing supervisor or attendant and light commercial cleaner, as well as the kind of jobs mentioned earlier by Ms Srinivasan.

In a very real sense, Ms Schneider saved her powder for one last shot. She put it this way:

The medical reports stated that Mr Jayatilake had displayed exaggerated illness behaviour during their assessments and was magnifying the severity of his injury. In my 3-hour assessment with him he displayed immense negativity and seems unwilling to help himself, preferring to wallow in what appears to be self-centred pity and a distorted view of what actually constitutes ‘disability’. I am certainly not convinced that Mr Jayatilake is anywhere near as disabled as he would have me believe. I can only describe his behaviour at this assessment as a ‘performance’ to ensure he projects as negative an image as possible. He was inconsistent in his presentation. He was observed to move freely and flexibly when he thought he was not being watched. He also tended to surreptitiously glance about to ensure people were watching him in the waiting room. It was quite obvious to me that this man was consciously attempting to present in a misleading manner for reasons best known by him.

And
While I believe that Mr Jayatilake has a capacity for suitable employment, I do not believe that he has any intention of returning to the workforce in any capacity. I also suspect that as long as there is outstanding litigation in progress, he will continue to actively work against any efforts that could see him employed or preparing for work.

Questions and answers

It must be accepted that, to an extent which increased with the passage of time, the appellant complained of symptoms and exhibited signs with respect to his low back which were of a non-organic kind.

It should next be accepted that, consistently with the respondent’s concession, any such signs and symptoms were not a conscious exaggeration by the appellant. I would have so concluded in any event. The high water mark of the contrary view was expressed by Ms Schneider, who is not a medical practitioner. No medical practitioner who has treated the appellant expressed such an opinion. Some of them had examined the appellant quite often, and therefore had good opportunity of making observations apt to distinguish between persons who feign symptoms and those who experience them.

Against that background, the first question which arises is whether, notwithstanding the presence of non-organic symptoms and signs at the time when the s 134AB(16)(b) application was heard, the appellant was still suffering from compensable physical injury.

The second question which arises – depending always upon there being an affirmative answer to the first question – is whether such injury was, at that time, serious in its pain and suffering or loss of earning capacity consequences. In respect of both questions the appellant carries the burden of persuasion.

The answer to the first question depends, in my view, upon the nature of the compensable low back injury which the appellant suffered. The possibilities really reduce to three: simple musculo-ligamentous strain; aggravation of pre-existing lumbar spinal degenerative disease (for convenience, ‘ lumbar degeneration’); and lumbar intervertebral disc damage – either internal derangement or prolapse – in the setting of pre-existing lumbar degeneration. In general terms, if the first situation was the case, continuance of physical symptoms over a seven year period would be at least improbable. If the second situation was the case, whether continuance of physical symptoms was probable would sensibly depend upon the extent of the aggravation which was established. If the third situation was the case, it could most readily be concluded that physical symptoms continued.

In deciding what kind of injury the appellant sustained, I consider that his complaints at the outset, early investigation reports and early diagnoses, together with the appellant’s progress in rehabilitation and return to work, will be helpful markers. That is because, at least very largely, his injury was then assessed as being a physical one. I think that it will also be useful to consider whether, despite the later appearance of non-organic signs and symptoms, there were any objective signs of injury as time went by that would point in favour of a particular diagnosis.

In mid 2000, the appellant was complaining, relevantly, of low back pain, of tenderness which localised at L4-5, and of some leg symptoms. As I have earlier noted, particular examiners observed reduced movement with muscle spasm, limited straight leg raising and absence of non-organic pathology.

The appellant’s low back problem was diagnosed, in those early times as being –

· ‘A degenerative lumbar spine with discogenic pain emanating from the L5 nerve root’.[34]
[34]Dr Middleton.

· ‘An aggravated L4-5 disc prolapse’.[35]
[35]Dr Menon.

· ‘A significant disc prolapse at L4-5’.[36]

· ‘Mild to moderate lumbar disc pathology’.[37]

· ‘Some degree of discogenic low back pain with possible limitation of the left L5 nerve root’.[38]

[36]Mr Quirk.

[37]Mr Du.

[38]Mr Walters.

Whilst there is an element of equivocation in those diagnoses, it seems to me that overall they favour a conclusion that the appellant had suffered compensable disc injury in the setting of pre-existing lumbar degeneration. In so concluding I have not ignored the opinion of Dr Barraclough which was that the appellant ‘had minor lumbar spondylosis and some musculo-ligamentous low back pain.’ That diagnosis, which in substance admixed what I have characterized as the first and second diagnoses, was somewhat at odds with the burden of then current opinion.

The appellant’s symptomatic progress appears to have been consistent with an injury of that kind, and not with simple musculo-ligamentous strain - which should be expected to resolve quickly enough. The appellant acknowledged improvement at times, and he went back to work. But even on return to restricted duties, his symptoms were exacerbated. That circumstance stands in contrast to his response to earlier work-related injuries – which had included injuries productive of back pain and discomfort. For in those instances he seems to have had no time off work.

Further again, MRI examinations which were performed in 2000 and 2001 were reported to show not only lumbar degeneration, particularly at L4-5, but also an ‘extruded component’ - also described as a ‘disc protrusion’ – with some indentation of the adjacent thecal sac.

Does later opinion render doubtful my conclusion that, considering the appellant’s early history, investigations, treatment and progress, it is probable that he suffered compensable disc injury in an already degenerate lumbar spine? I think not.

A number of doctors were much affected in their assessment of the appellant by his presentation with symptoms and signs which reflected non-organic injury. Doctors in that category include Mr Shannon, Dr Stevenson and Dr Baynes. It was an easy step from such a presentation to opine that there was no physical component to the complaints, or that any compensable physical injury had burned itself out. But so to opine, in my view, paid insufficient attention to the picture which had been present at the outset, and in the period until the appellant ceased work altogether in late 2001. It also paid too little attention, I consider, to findings which did not fit the template of non-organic injury. It also ignored opinion that psychiatric illness could not account for many of the appellant’s symptoms, or explain the extent of his impairment.[39]
[39]I have already referred to, and will not recapitulate, the gist of the opinions of Drs Wijesinghe and Stern.

To particularise what I have just said, Mr Shannon had a view of the appellant’s employment duties which I think was inaccurate. His interpretation of the MRI reports was that there was simply ‘disc degeneration’ and ‘some disc bulging’ at L4-5, which ‘conceivably’ had been aggravated by work. There was ‘certainly no definite evidence to disc prolapse or neurological investigation’. Even when he first examined the appellant, Mr Shannon ‘suspect[ed] that the effects of the aggravation had long since ceased’. Later on, as I have already noted, he referred to WorkCover having ‘chosen to accept’ that there had been original injury, which he was ‘unable to establish’. Constantly in his reports he referred to the appellant’s non-organic presentation. At no stage did he refer to wasting of the appellant’s right leg, or to relative weakness of the right ankle jerk, or to weakness of the left great toe, all of which were features described by more than one examiner. These were objective signs which at least required comment.

Dr Stevenson did not see the appellant for the first time until March 2006. I should say that this impaired his ability to assess the nature of any injury initially sustained. He dismissed the significance of MRI investigations. Observed changes were, certainly or at least probably, age-related. He either did not look for, did not detect, or (improbably) saw no significance in the three objective signs to which I referred in the previous paragraph. The doctor’s diagnosis of the original injury appears to have been ‘non specific discomfort or transient soft tissue strain.’ That diagnosis seems to me to have ignored the original picture and to have been reached in the absence of awareness of objective findings which required explanation.

Dr Baynes first saw the appellant in January 2007. He was also at a disadvantage in assessing the nature of any injury originally sustained. He did observe weakness in dorsiflexion of the [? left] big toe and a decreased right ankle reflex. For reasons which are left unexplained, he concluded that there was no clinical objective evidence of radiculopathy in the legs. In opining that any work caused aggravation of lumbar degeneration had likely ended, he relied upon the elapse of time and the appellant having ceased work. He did not explain why those factors should lead to such a conclusion.

I should mention also Dr King. When he examined the appellant, he noted absent extension of the left great toe. He dismissed it as a ‘probably a local lesion’. He was dismissive of the extent of abnormality revealed by MRIs. He either did not observe, or there was not then present, wasting of the appellant’s right leg.

There is next a group of doctors who examined and/or treated the appellant in later years, and who concluded that he did have work aggravated lumbar degeneration, or else work-related lumbar disc prolapse in the presence of lumbar degeneration. Into that category fall Mr Jones, Dr Hewa, Mr de la Harpe, Mr Mangos, Mr Brownbill, Mr Flanc, Dr Bittar; and, on re-examination, Dr Middleton.

Mr Jones, who examined the appellant in 2002, diagnosed possible L4-5 disc injury with some symptoms referred to the right buttock, groin and leg. Mr de la Harpe spoke in terms of ‘discogenic pain’. Dr Hewa latterly described ‘L4-5 disc prolapse proven by MRI with associated fibromyositis and multi level disc degeneration’. Mr Mangos, who did not examine the appellant until March 2007, and who was therefore at a disadvantage, observed, however loss of extension of the left great toe and wasting of the right thigh. It is plain that he took account of those findings in diagnosing a ruptured L4-5 disc with severe aggravated lumbar spondylosis. Mr Brownbill, another doctor who first examined the appellant in 2007, noted wasting of the right calf and variable weakness of extension of the left great toe. He diagnosed an L4-5 disc derangement. Mr Flanc, yet another doctor who first examined the appellant in 2007, diagnosed an aggravation of lumbar degenerative disease which was still operative. He noted slight wasting of the right leg. He was unpersuaded that there was a radiculopathy. On the other hand, he considered that it had been too simplistic to write-off the appellant’s inability to raise his left great toe as being attributable to a local lesion. Dr Bittar, also, examined the appellant in 2007. He discerned some weakness of the left great toe, and as well reduced sensation to touch in the right L5 dematome. His diagnosis was discogenic low back pain and lumbar radiculopathy secondary to L4-5 disc prolapse. Dr Middleton ultimately settled upon a diagnosis of aggravation of pre-existing lumbar degeneration, the condition having become chronic.

All of the doctors to whom I referred in the last paragraph were of the opinion, as at the time when they last reported, that the spinal injury was chronic, continued to be productive of symptoms, and would continue to do so into the foreseeable future.

In the event, few doctors espoused the diagnosis that the appellant had either suffered nothing more than a soft tissue strain, or else a minor aggravation of lumbar degeneration which had burned itself out; and their opinions were suspect for reasons which I have earlier attempted to explain.

That takes me to the second question which I earlier formulated; that is, has the appellant established that his physical injury was serious in its pain and suffering and/or lack of earning capacity consequences at the time when his application was heard? The question should be answered affirmatively in respect of both consequences. The explanation for that conclusion can be stated more briefly.

Once accept that the appellant sustained compensable injury which was, more probably than not, injury to an intervertebral disc in an already degenerate lumbar spine, there is reason to accept the probability of a continuance of symptoms at the level and with the impairment which was present before the picture became clouded by a non-organic overlay. The same should probably be said, at least in this case, if I had characterised the injury as an aggravation of pre-existing but essentially symptomless lumbar degeneration.

It must be accepted, consistent with what I said at [139], that the functional element led to the appellant presenting, as time went on, with a level of apparent restriction in movement which was greater than could be explained by physical injury; and the same may be said of complaint of intractable pain throughout each day – which was, in effect, the history given by the appellant to some examiners. But none of that is to deny the likely continuance of previous levels of disability and pain which had an organic basis.

So, I consider that the appellant’s presentation in the period between May 2000 and late October 2001, his inability – despite what seems to have been a fair effort over a quite protracted period – to continue working in restricted duties, and the picture which he painted in his affidavit and viva voce evidence of the impact of his injury upon his daily activities, constitute a good guide to the extent of his organically-determined impairment at the time when his application was heard. I think that some reliance can be placed upon the third of those matters because of the characteristic which I mentioned at [61]-[65].

The picture thus created of the pain and suffering consequences of physical injury, and of the impact of such injury upon the appellant’s ability to work in a real -life situation, is one which in my view, as a matter of fact and degree, value judgment and impression, satisfies the serious injury test; and does so both as to its pain and suffering and loss of earning capacity consequences.[40] The situation, I must add for sake of completeness, in my opinion satisfies the necessary test of permanence. As I have said earlier, except for those doctors (whose opinions I have rejected) who opined that compensable physical injury was - or probably was - spent, the opinion was overwhelming that the then current consequences of physical injury would persist into the foreseeable future.[41]
[40]To be clear, I consider that, when regard is had to the circumstances mentioned in the definition of that term by s5 of the Act, there was no ‘suitable employment’ for him.
[41]Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, 632–633, [18]-[19] (Phillips JA, for the Court).

Thus far I have said nothing about the attempts by a number of doctors to ‘disentangle’ the physical and psychological or psychiatric consequences of compensable injury. I have not done so for two reasons. First, because it has been unnecessary to do so in order to resolve this appeal. Second, because in my view the attempts seem to have failed to achieve what they evidently set out to do. I will give a few examples. Dr Hewa concluded that the appellant was not fit for pre-injury employment, excluding all psychological and psychiatric consequences; and that, so far as alternative employment was concerned, he did not think that anybody would employ the appellant. Mr Mangos’ answer to question (3), which I set out at [90], was impressive in its circularity, although its intent was probably clear enough. Mr Flanc’s answer to question (3), set out at [101] did not grapple with the issue posed for his consideration. The same may be said of Dr Bittar’s answer to question (3), set out at [102]. It seems to me at least doubtful that the various doctors fully understood the task which they were asked to perform - a task, I should say, removed from practise of the medical profession.

I should mention one further matter. The learned judge below called upon his experience in applications of this kind in concluding that the appellant had not satisfied the serious injury test. Whether a conclusion below based upon such experience could ever assist this Court - when it must decide the serious injury question for itself – need not be decided here. For his Honour’s conclusion was founded on a view of the evidence which does not coincide with my analysis of the situation.

Orders

I would allow the appeal, set aside the judgment below, and in lieu thereof order that the appellant have leave to bring a proceeding for damages in respect of the pain and suffering consequences and loss of earning capacity consequences of serious injury, that is to say, impairment and loss of function of the lumbar spine.

NEAVE JA:

I agree with Ashley JA, for the reasons that he gives, that the appeal should be allowed and the appellant be given leave to commence proceedings to recover damages for the pain and suffering and loss of earnings consequences of his serious back injury. I wish only to add some brief remarks about the decision of this Court in Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis.[42]
[42](2007) 15 VR 649 (‘Stamboulakis’).

In that case, the Court allowed an appeal against a County Court judge’s decision giving the respondent leave to commence proceedings to recover damages for serious injury.[43] The learned judge had concluded that the plaintiff’s back injury had an organic basis, without examining in detail a number of medical reports which attributed the plaintiff’s severe pain to her psychological reaction to the injury. In these circumstances, the Court considered that his Honour had not fulfilled the statutory task of determining whether the plaintiff had suffered a ’permanent serious impairment or loss of a body function’ within the definition in s 134AB(37)(a) of the Accident Compensation Act 1985.[44] Although the appellant’s success on the above ground made it unnecessary in that case to determine whether a ground of appeal relating to adequacy of reasons was made out,[45] I commented that

[t]he obligation to give reasons required his Honour to refer to the evidence which suggested that the respondent’s pain was attributable to functional overlay and to explain why he took the view that [the plaintiff’s] chronic pain and limitation of movement arose from her physical injury.[46]

[43]Accident Compensation Act 1985 s 134AB(16)(b),(19).

[44]When read in combination with s 134AB(38).

[45]The judgement was delivered prior to the High Court decision in Dwyer v Calco Timbers Pty Ltd (2008) 244 ALR 257, which held that the task of the Court of Appeal was to ‘decide for itself’ whether the injury was a serious injury.

[46]Stamboulakis (2007) 15 VR 649, 662 [51].

Although I referred to the ‘disentangling’ of the physical and psychological consequences of injury, I agree with Ashley JA that the task which must be performed by the court is to determine whether, on all of the evidence, an applicant for leave has satisfied the onus of proving that either the physical consequences or the psychological/psychiatric consequences of the injury are serious, within the statutory definition contained in s 134AB(37), as qualified by s 134AB(38)(h).

There are passages in my judgment in Stamboulakis which suggest that if the medical evidence does not permit the Court to precisely apportion the separate contributions which physical and psychological/psychiatric factors make to a physical impairment suffered by a worker, then it is not open to the Court to find that the worker has suffered a ’permanent serious impairment or loss of a body function.’ But I agree with Ashley JA’s observation that the absence of medical evidence which clearly ‘disentangles’ physical and psychological/psychiatric consequences, does not prevent a Court holding that the plaintiff has suffered a serious injury. I also agree that Mr Jayatilake has satisfied the onus of showing that his back injury was serious within the statutory definition.

PAGONE AJA:

I have had the advantage of reading the draft reasons for judgment of Ashley JA and agree that the appeal should be allowed for the reasons which he gives.

I should specifically add my agreement with what his Honour had to say about the observations from Mutual Cleaning and Maintenance Pty Ltd v Anastasia

Stamboulakis.[47] Any ‘stripping out’, ‘stripping away’, ‘disentangling’ or ‘apportionment’ to be undertaken for the purposes of s 134AB(38) of the Accident Compensation Act 1958 is to determine those consequences of a person’s injury which are referable to the non-psychological or non-psychiatric consequences. The fact that there may be overlap between the consequences of an injury does not warrant an exclusion of that part of the overlap which, but for the overlap, would independently have been referable to non-psychological or psychiatric consequences. The three examples given by Ashley JA at [26]-[28] illustrate the importance of ensuring that the task of attributing consequences is not done at the expense of excluding some consequence which may have more than one explanation.

[47](2007) 15 VR 649.

I agree that Mr Jayatilake has satisfied the onus of showing that his back injury was serious within the statutory definition and gratefully adopt the reasons articulated by Ashley JA.

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[2008] VSCA 167

2 September 2008