Kane v VWA

[2017] VMC 9

IN THE MAGISTRATES COURT OF VICTORIA

AT LATROBE VALLEY

WORKCOVER DIVISION

Case No.G11329381

DARREN KANE	Plaintiff
v
VICTORIAN WORKCOVER AUTHORITY	Defendant

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MAGISTRATE:	S GARNETT
WHERE HELD:	LATROBE VALLEY
DATE OF HEARING:	23, 24, 25 & 26 MAY 2017
DATE OF DECISION:	6 JUNE 2017
CASE MAY BE CITED AS:	KANE v VWA
MEDIUM NEUTRAL CITATION:	[2017] VMC009

REASONS FOR DECISION

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Catchwords: Termination of weekly payments after 104 weeks. Plaintiff sustained closed head injury and psychiatric injury in truck accident on 6 September 1988. Weekly payments terminated on 22 March 2016 on basis he had a current work capacity or if no current work capacity it was not likely to last indefinitely – somatic symptom disorder.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Horner	Maurice Blackburn
For the Defendant	Mr Middleton	Minter Ellison

HIS HONOUR:

1       Mr Kane is aged 48 years and commenced an apprenticeship as a plumber and gas fitter with the Gas and Fuel Corporation in 1985. On 6 September 1988, whilst driving a truck in the course of his employment he collided with a tram causing his head to hit the windscreen, steering wheel and side door window. He was transported by ambulance to the Preston and Northcote Community Hospital where various tests were conducted.

2       Mr Kane gave evidence that he was incapacitated for a few weeks and then returned to work on light duties and managed to complete his apprenticeship in January 1989. He told the court that he resigned in May 1989 as he was unable to cope with the duties he was given. He gave evidence that he remained off work until January 1990 and that since that time he has either been incapacitated for work or worked for various employers on a short term basis in Victoria and the Northern Territory where he relocated in June 1993.

3       The evidence indicated that his initial WorkCover claim was accepted as was his claim for a reinstatement of weekly payments in March 2000. The defendant terminated his weekly payments of compensation on 22 March 2016 on the basis that he had a current work capacity or if he had no current work capacity it was not likely to last indefinitely. Although the Defence filed on behalf of the defendant raised the issue of ongoing compensability, it was not pursued at the hearing.

4       Mr Kane gave evidence as did his current treating general practitioner, Dr Perry from the Moe Medical Group. The parties tendered numerous medical and vocational assessment reports many of which were tendered for the purposes of providing a historical context only.

5       Mr Kane gave evidence that since returning to work in 1990 he has attempted a variety of jobs mostly of which were of short duration because of the ongoing effects of his injuries. These included; 2 weeks as a trades assistant with a security company; 5 months as a trades assistant with TJ Johnson,  commercial plumbers between February and July 1990; 12 months as a trades assistant at the Rialto Tower between August 1991 and August 1992; a maintenance plumber at the Northern Territory University between June 1993 and January 1994; shelf stacking at a grocery in Darwin for a few weeks; a plasterer’s assistant for a few weeks; a film library assistant with the Northern Territory government for few weeks in February 1997; a gardener at the Wayside Inn for 2 weeks; and as a lawnmower and waiter for a few weeks in 1999.

6       Mr Kane told the court that whilst he resided in the Northern Territory he commenced an Associate Diploma in Fine Arts and then a Bachelor of Fine Arts degree for two years but was unable to complete the third year of the Degree because of his condition and he discontinued the course in December 1996.

7       He gave evidence that whilst residing in the Northern Territory he was treated by Dr Howe, General Practitioner and was not referred for any specialist treatment. He said that he returned to Victoria in 2005 or 2006 and has been treated by Dr Perry without being referred for any specialist treatment. He told the court that he currently suffers from pain in the right side of his head which he described as a ‘constant numb pain’ which fluctuates in severity. He said he suffers from anxiety and experiences migraines and his anxiety prevents him from being able to concentrate or mix in large social groups or with people he does not know. He said that he has poor balance and has memory and concentration problems. Mr Kane told the court that he is prescribed Olanzapine for his stress and anxiety and Tegretol.

8       Mr Kane gave evidence that he has been participating in lawn bowls at the Trafalgar Lawn Bowls Club since 2009 and has done so at the suggestion of his doctor for social interaction. He told the court that he is also a member of the pennant team and participates in lawn bowls 3 times a week. He said that he also tried to do voluntary bar work at the club on two occasions in 2015-6 for a total of 45 minutes but was unable to cope as he could not remember how to operate the till and was confused about the different types of beer and wines that were ordered by members. He said that he keeps himself busy by drawing/painting 2 to 3 hours per day, 4 to 5 days per week, caring for his 8-year-old son, shopping and doing jobs around the garden including; mowing, raking, pruning, and tending to the chooks and vegetable patch. Mr Kane told the court that he has not looked for any work since returning to Victoria as he does not consider himself fit for work.

9       During cross examination, Mr Kane told the court that he has sold some of his paintings over the years but has not done so for 10 or 11 years. When questioned as to why he has not sought a referral to a psychiatrist or psychologist he said that he was not aware that WorkCover would pay for that treatment. He agreed that when playing in the lawn bowls pennant team it could take between 4 and 5 hours to complete a match but said it did not require that much concentration and he tended to ‘wing it a bit’. He told the court that he plays in Division 1, he was a member of the team who won the premiership 2 or 3 years ago and that he has managed to hold his position in the team over the past 4 years notwithstanding his ongoing symptoms. Mr Kane disputed that he would be able to perform bar work with the appropriate training as he considered his severe anxiety would cause him to be too confused and also disputed the suggestion that he would be able to work in a sales position in a plumbing store as he said he would have trouble interacting with people and would become easily confused. He told the court that the 4 day computer course he participated in as part of his vocational training did not assist his computer skills as all he learnt was ‘how to turn the computer on and off’.

Medical and Vocational Evidence

10      I do not propose to refer to and detail the contents of all of the historical medical reports tendered by the plaintiff as I do not consider them to be relevant to the issues to be determined in this matter. The historical opinions I consider to be relevant having regards to the subsequent opinions expressed by others are those of: Dr Nye, Neurosurgeon, who assessed Mr Kane for Allianz on 18 February 2004, 28 October 2008 and 5 July 2011; Dr Gill, Psychiatrist, who assessed him on 21 July 2009 and; Dr Strauss, Psychiatrist, who assessed him on 23 August 2011.

11      Dr Nye reported that a MRI scan of the brain in December 2000 revealed no abnormality and following his examination on 18 February 2004, he concluded that Mr Kane suffered from a minor concussive headache for which he expected there would be a natural and complete recovery. He opined that Mr Kane developed a post-concussion syndrome but because the symptoms have continued over many years psychological factors have affected Mr Kane and he has remained injury focused. He reported that on presentation, Mr Kane has developed abnormal illness behaviour and has adopted a chronic invalid role which has a psychological basis. Dr Gill opined that Mr Kane was suffering a post-concussional syndrome which has precipitated a somatoform disorder. He noted this condition consists of physical symptoms which are psychologically based but which are not intentionally produced or feigned. He considered the treatment he was receiving from Dr Perry was appropriate although noted that Mr Kane may benefit from antidepressant medication and considered him to have no capacity for employment. Dr Strauss, opined that Mr Kane had a somatoform disorder and a major depression and doubted that psychological or psychiatric treatment would make much difference. In his opinion Mr Kane had no capacity for any work.

12      Dr Perry gave evidence and medical reports prepared by him and dated 14 April 2016 and 9 May 2017 were tendered. Dr Perry confirmed that he commenced treating Mr Kane on 15 February 2006. He told the court that he obtained various medical records from Mr Kane’s previous treating general practitioner, Dr Howe in the Northern Territory. In his initial report, he noted that Mr Kane was experiencing problems with concentration, anxiety and memory issues and had difficulty retaining simple requests or directions which caused him significant frustration and poor anger control. He reported that he was prescribing Mr Kane Olanzapine, being a long acting sedative medication for his stress and anxiety and that he added Tegretol to assist in mood stabilisation and anger control. In his report dated 9 May 2017, he noted that Mr Kane’s condition had remained the same, that his mood had been stable with exacerbations of stress which he had difficulty controlling and managed by avoidance behaviours. He reported that there had been episodes of increased stress, low mood and anxiety which were dealt with by counselling. Dr Perry reported that Mr Kane still had low frustration triggers and has difficulty committing to long-term projects. He considered him unfit for all work and that he would require retraining but that his poor concentration and easy frustration remains a severe obstacle.

13      Dr Perry told the court that when he first saw Mr Kane in 2006 he complained of headaches, tinnitus, anxiety and poor recall. He said that Mr Kane had already been prescribed Olanzapine due to a prior history of having hallucinations and being psychotic and having significant anxiety issues. He maintained his opinion that Mr Kane is unable to work because of his concentration problems and that any employment would require constant supervision. He told the court that he has not referred Mr Kane for specialist treatment as he does not believe it would assist him. During cross examination, Dr Perry was questioned concerning the efficacy of the prescribed medication but maintained his view that it was appropriate. He also told the court that he did not believe it is appropriate to refer Mr Kane for specialist treatment as he had been assessed by specialists for WorkCover but conceded he was unaware of their opinions as he had not been provided with any of their reports. In relation to the lack of psychiatric or psychological referral, he justified the lack of referral by informing the court that his plan involves discussing issues with Mr Kane which includes strategies to implement if he feels frustrated or anxious. He conceded that he does not have any psychiatric or psychological expertise. When told that Professor Davis is of the opinion Mr Kane has a ‘technically mild head injury’ and Associate Prof Doherty diagnosed Mr Kane as having a somatoform disorder he replied that they were entitled to their opinions. Dr Perry maintained his opinion that Mr Kane does not have a capacity for suitable employment because; he cannot follow through on instructions and he is unable to concentrate and therefore he would need constant supervision. He said that Mr Kane would need to find a patient employer and an employment which is akin to a ‘sheltered workshop’.

14      A Vocational Assessment report prepared by Mr Bedggood from Recovre dated 13 November 2015, indicated suitable employment options were; trade counter sales, general sales assistant, nursery assistant and light delivery driver. Mr Bedggood reported that Mr Kane perceived that he would struggle to return to work without retraining and that he was not motivated to return to work due to ongoing symptoms and physical limitations. He also reported that Mr Kane has a limited range of transferable skills and informed him that he has poor reading, numeracy, computer and memory skills. In subsequent reports, Mr Bedggood noted that Mr Kane completed the Computers for Beginners course Moe Neighbourhood House in December 2015 in order to assist in developing his computer skills and that he would be a suitable candidate for the job seeking service which is a 12 week program enabling him to obtain the relevant skills to become an independent jobseeker. He reported that Mr Kane commenced the program on 25 February 2016 and that at the completion of the program Mr Kane continued to believe that he had no capacity to return to work due to his ongoing symptoms that included poor memory, dizziness, headaches and anxiety attacks on a daily basis. Notwithstanding these concerns, Mr Bedggood noted that Mr Kane was an active participant throughout the 12 week job seeking service and that he continued to engage in the job seeking process in July 2016 but reported that he had suffered a decline in his health in that he was suffering from increased symptoms including severe stress, poor memory, dizziness, headaches and anxiety attacks on a daily basis and maintained that he had no capacity to return to work.

15      Mr Hartley, Rehabilitation Consultant, provided a report on behalf of Mr Kane’s lawyers dated 12 October 2016 following his interview and assessment of Mr Kane on 1 September 2016. He reported that Mr Kane does not have; manufacturing skills or experience, hospitality skills or experience, security skills or experience, stores or warehousing skills or experience, transport or distribution skills or experience, retail or general sales skills or experience, clerical skills or experience, or technological ability, knowledge and aptitude. Mr Hartley expressed the view that with such a limited vocational history and having worked for about 33 months of transient employment since 1989, Mr Kane must be considered as de-skilled for vocational purposes. He further stated that Mr Kane does not have a range of transferable skills that would allow him to gain, undertake or sustain suitable employment and that he would require substantial up-skilling in literacy, digital literacy and technology in order to gain sedentary to light employment. He suggests that Mr Kane would need to attain basic to intermediate computer skills and a vocational qualification to become employable.

16      A neuropsychology assessment report prepared by Ms Vernieux, Clinical Neuropsychologist and Clinical Psychologist, dated 4 October 2016 was tendered on behalf of Mr Kane. Ms Vernieux assessed Mr Kane on 15 September 2016 and was provided with a multitude of more recent and historical reports to assist her in reaching an opinion. Ms Vernieux performed a large number of neuropsychological tests and commented on the vast array of medical opinions that had been expressed over the years concerning the nature of his condition. She noted that the vast majority of opinions was to the effect that Mr Kane had suffered a mild brain injury which has resulted in some mild frontal type cognitive deficits and behavioural and personality changes together with significant psychological factors.

17      Ms Vernieux concluded that Mr Kane has mild cognitive deficits in the areas of concentration, attention, speed and executive difficulties with cognitive flexibility, idea generation and maintenance and shifting of mental set. She noted that these difficulties combined with his psychological symptoms affect his memory to a mild to moderate degree and that it is possible that these are the long-term consequences of his brain injury in the form of a post-concussion syndrome although his neuro psychiatric distress is most likely the current primary driver of his difficulties. She agreed with the diagnosis of Dr Strauss, Psychiatrist, who in 2011 opined that Mr Kane had somatoform disorder, more recently termed somatic symptom disorder. Ms Vernieux made the diagnosis on the basis that Mr Kane met the criteria of; physical symptoms primarily consisting of headaches and severe head pain-migraines;  the opinion of neurologists to affect that these symptoms are in excess of what would be expected from a mild head injury; that Mr Kane is excessively worried about his symptoms and this is out of proportion to the severity of the physical complaints themselves; the symptoms have persisted more than 6 months; he experiences anxiety and depression; and, the symptoms are not a result of malingering or of a factitious disorder.

18      Ms Vernieux reported that the diagnosis of somatic symptom disorder is controversial in that it is based on the absence of a medical explanation for the physical complaints. She noted that Mr Kane’s responses on the Personality Assessment Inventory were consistent with somatic symptom disorder and conversion disorder and that although there may have been some exaggeration of his symptoms, this is consistent with the disorder. She also noted that his historical presentation was consistent with post-concussion syndrome. Ms Vernieux noted that Mr Kane’s difficulty with memory limits his capacity to learn a new job and his difficulties with idea generation and concentration would require him to be placed under supervision and that his symptoms would be exacerbated if placed under stress.

19      Professor Davis, Neurologist, assessed Mr Kane on behalf of his lawyers on 5 September 2016. He was also provided with more recent and historical medical reports and although commenting that it would be useful to have had access to the initial ambulance and hospital reports, he opined that it appears that Mr Kane sustained only a mild but not insignificant acquired brain injury which in isolation would not be severe enough to preclude a return to work. He noted that the major impact of the accident seems to be a serious psychiatric sequelae with some psychotic symptoms as well as major depression. Prof Davis stated that Mr Kane perceives that he has had a major brain injury and he noted that Dr Gill and Dr Strauss diagnosed him as suffering a somatoform disorder, in other words a psychologically based perception of a brain injury with formal neuropsychological testing indicating deficits of a fairly mild nature. He opined that from a neurological viewpoint, Mr Kane has a realistic prospect of obtaining employment with suitable vocational guidance and training.

20      Dr Tagkalidis, Psychiatrist, assessed Mr Kane on behalf of his lawyers on 8 September 2016. After obtaining the appropriate history, current symptoms and treatment regime and after referring to reports provided to him, he diagnosed that Mr Kane is suffering from a major depressive disorder related to the incident in the course of his employment. He opined that Mr Kane would not be able to perform his preinjury or alternate duties on a reliable and consistent basis.

21      Dr Seneviratne, Neurologist, assessed Mr Kane on behalf of Allianz on 31 May 2013. He diagnosed that Mr Kane sustained a head injury/concussion injury as a result of the car accident in 1988 and although suffering from mild neuropsychological/cognitive issues which include; mild memory impairment, problems with multitasking and concentration, his pre-dominant and continuing symptoms are related to psychological/psychiatric issues that have been previously diagnosed as a somatoform disorder/major depression. Dr Seneviratne opined that from a neurological perspective Mr Kane has a work capacity and does not require ongoing medical treatment.

22      Associate Professor Doherty, Consultant Psychiatrist, assessed Mr Kane for Allianz on 21 June 2013 and 20 August 2015. After conducting an assessment which included obtaining a history of injury, personal circumstances, current complaints, symptoms and medication and after referring to the medical reports with which he was provided, Associate Professor Doherty agreed with the diagnosis of others that Mr Kane has a somatoform disorder which he described as being a constitutional psychiatric condition that has been precipitated by the injuries in the motor vehicle accident. He opined that having regards to Mr Kane’s reported symptoms, he would be an inconsistent and unreliable worker as he reports ongoing frequent headaches and impaired concentration. Associate Professor Doherty also noted that Mr Kane is prescribed 5mg of antipsychotic medication olanzapine (Zyprexa) and an antiepileptic carbamazepine (Tegretol) which he considered to be unusual treatment. He assessed Mr Kane as having a chronic psychiatric disorder best diagnosed as an un-differentiated somatisation disorder with him being significantly and chronically impaired. In a supplementary report dated 1 October 2013, he stated that there are multiple contributing factors to Mr Kane’s condition. He noted that a somatoform disorder is constitutional in nature and that Mr Kane had a particularly disturbed childhood and developed insecurities in his personality, has drifted socially and has been unsettled. He opined that the work-related part of his condition had not yet resolved, was minor and that the work-related component would continue to fade over the next year or so.

23      After reassessing Mr Kane on 20 August 2015, Associate Professor Doherty stated that the ongoing use of the antipsychotic sedating medication, olanzapine was not required or necessary as Mr Kane is not psychotic and his condition is not assisted by having this medication prescribed to him. He noted that Mr Kane told him that he was still experiencing the same symptoms although of less intensity and that he was suffering from a significant restriction in his social, domestic and leisure activities. Associate Professor Doherty commented that the surveillance footage with which he was provided would not suggest that this was the case. He opined that Mr Kane’s condition was no longer materially contributed to by the motor vehicle accident on the basis that he has less objective evidence of the presence of a psychiatric condition. He considers Mr Kane probably does have a current work capacity. After being provided with the vocational assessment report prepared by Recovre, he considered that Mr Kane would have the capacity to perform each of the identified suitable employments from a psychiatric point of view.

24      Dr Baynes, Occupational Physician, assessed Mr Kane for Allianz on 20 August 2015. He was provided with reports from Dr Perry, Associate Professor Doherty, Dr Seneviratne and video surveillance reports dated 15 November 2013 and 30 June 2014. He opined that Mr Kane would be fit for alternative duties with appropriate physical restrictions. Dr Baynes was provided with a further surveillance report and DVD dated 24 September 2015 and provided a supplementary report dated 6 November 2015. In his report he referred to the surveillance footage depicting Mr Kane driving, attending the Moe Racing club and playing lawn bowls for a period of 45 minutes. Dr Baynes considered that Mr Kane’s presentation on examination was consistent with the capacity he demonstrated on the video surveillance material. He remained of the opinion that Mr Kane would be fit for alternative duties with physical restrictions.

Conclusion

25      I found Mr Kane to be a genuine and truthful witness. He appears to be a shy and introverted person who honestly believes that he has been significantly impacted by the injuries sustained in the course of his employment on 6 September 1998. The court was told that the surveillance material referred to by the doctors focussed on the lawn bowling activities of Mr Kane. He freely admitted to participating in lawn bowling although incorrectly asserted that Dr Perry recommended he engage in this activity for the purposes of improving his social interaction. The surveillance material was not shown to the court and therefore I consider it to have no evidentiary value. It appears that the contents of the surveillance material only influenced the opinion of Associate Professor Doherty.

26      The general consensus of medical opinion is to the effect that Mr Kane suffered a mild brain injury in the motor vehicle accident which has left him with minor cognitive deficits which taken in isolation would not prevent him from returning to employment. However, he has also developed a somatoform disorder which was diagnosed by Dr Gill in 2009, Dr Strauss in 2011 and Associate Professor Doherty in June 2013.

27      The comprehensive neuropsychological assessment conducted by Ms Vernieux in 2016 indicates that Mr Kane continues to have difficulties in relation to concentration, attention and memory which has been a consistent pattern over many years. These traits have and will make it difficult for him to return to work as a settled or established member of the wage earning workforce. He has attempted to return to various employments over the years but failed.

28      I find that Mr Kane does suffer from a somatoform disorder/depressive condition precipitated by the injuries sustained in the motor vehicle accident in September 1988 which renders him incapacitated for his preinjury employment and the suggested suitable employments as identified in the Recovre report. On the basis of the consistency of his symptoms and their effects on his activities of daily living over the past 29 years, I do not accept the basis on which Associate Professor Doherty changed his opinion in 2015 that the work-related component of his condition has ceased.

29      I find that Mr Kane has no current work capacity which is likely to last indefinitely. I have reached this conclusion on the basis that; he is 48 years of age; he resides in Moe; he has a limited educational standard; he has very few transferable skills as noted in the reports of Recovre and Mr Hartley; he has only been gainfully employed for approximately 33 months since 1988; and, is effectively de-skilled for vocational purposes.

30      Notwithstanding the opinion expressed by Dr Perry, it may be beneficial to Mr Kane to be referred for specialist psychiatric/psychological treatment and medication review which may enable him to meaningfully engage in vocational re-training with the aim of re-entering the workforce at some point in the future. Unless and until he is able to actively participate in and complete a rehabilitation program he is unlikely to be able to return to meaningful employment.

31 The Notice of termination dated 17 December 2015 is set aside. Mr Kane is entitled to receive weekly payments of compensation and reasonable medical and the like expenses from 22 March 2016 in accordance with the provisions of the Accident Compensation Act 1985.