Kheir-Bik v Toll Holdings Limited
[2015] VCC 910
•3 July 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-05743
| LOUAE KHEIR-BIK | Plaintiff |
| v | |
| TOLL HOLDINGS LIMITED | Defendant |
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JUDGE: | HER HONOUR JUDGE KINGS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11, 12, 13 and 14 March 2015 | |
DATE OF JUDGMENT: | 3 July 2015 | |
CASE MAY BE CITED AS: | Kheir-Bik v Toll Holdings Limited | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 910 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Damages – serious injury application – injury to the spine – spine as one body function – Major Depression – Adjustment Disorder – Anxiety – Depression – Chronic Pain Syndrome – pain and suffering and loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB(37)(a) and (c)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Stijepic v One Force Group Aust Pty Ltd [2009] VSCA 181; Petkovski v Galletti [1994] 1 VR 436; Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170; Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592; Sabo v George Weston Foods [2009] VSCA 242; Transport Accident Commission v Zepic [2013] VSCA 232; Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317; Georgopoulos v Silaforts Painting Pty Ltd & Ors (2012) VSCA 179
Judgment: Leave granted to the plaintiff to commence proceedings at common law for damages for pain and suffering and economic loss consequences as a result of his employment with the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Ingram | Nowicki Carbone |
| For the Defendant | Mr D Oldfield | Moray & Agnew |
HER HONOUR:
1 This is an application brought by the plaintiff for leave pursuant to s134AB(16)(b) of the Accident Compensation Act (1985) (as amended) (“the Act”) for injury suffered by him throughout the course of his employment with the defendant and, in particular, on 20 July 2009.
2 The plaintiff seeks leave to bring proceedings for damages in relation to pain and suffering and loss of earning capacity.
3 The plaintiff brings this application pursuant to clause (a) and (c) of the definition of “serious injury” to be found in s134AB(37) of the Act.
4 There, “serious injury” is defined as meaning:
“(a) permanent serious impairment or loss of a body function; or
(c)permanent severe mental or permanent severe behavioural disturbance or disorder.”
5 The body function relied upon in this application in respect to s134AB(37)(a) is injury to the spine. The mental or behavioural disturbance relied upon in respect to s134AB(37)(c) is Major Depression, Adjustment Disorder, Anxiety, Depression and a Chronic Pain Syndrome.
6 The plaintiff relied upon two affidavits, sworn by him on 5 March 2013 and 10 February 2015. The plaintiff and Dr Pathak were cross-examined. I have not summarised the evidence of the plaintiff and Dr Pathak; however, I will refer to their relevant evidence in my reasoning. I have read all the tendered material.
The issues
7 Counsel for the defendant informed the Court that:
· The plaintiff’s credit was in issue as a reliable and accurate historian, in relation to the cause of the injury and its nature and extent, the plaintiff’s presentation and the consequences.
· Further, the subsequent consequences do not meet the statutory test in respect to the organic injury and the mental and behavioural disturbance or disorder.
Relevant legal principles
8 In order to succeed, the plaintiff must prove, on the balance of probabilities that:
(a) “the injury suffered by him arose out of, or in the course of, or due to the nature of, his employment with the defendant;[1]
[1]Section 134AB(1) of the Act and Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 at paragraph [11]
(b) “the injury” with its resulting impairment must be permanent, in the sense that it is likely to continue into the foreseeable future;[2]
[2]Barwon Spinners (supra) at paragraph [33]
(c) “the consequences” to the plaintiff of his impairment to the spine in relation to “pain and suffering” or “loss of earning capacity” must be “serious” – that is, “when judged by comparison with other cases in the range of possible impairments … be fairly described as being more than significant or marked and as being at least very considerable”;[3]
[3]Section 134AB(38)(b) and (c) of the Act
(d) “the consequences” to the plaintiff of his mental or behavioural disturbance in relation to “pain and suffering” or “loss of earning capacity” must be “severe” when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders as the case may be;[4]
[4]Section 134AB(38)(d) of the Act
(e) the judgment of the Court of Appeal and Mobilio v Balliotis & Ors[5] resolved the meaning of “severe”. Brooking JA held that the considerations in Turner v Love & Transport Accident Commission[6] were not sufficient to warrant departing from the conclusion at which one would prima facie arrive; namely, that the change in language from “serious” to “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, Brooking JA said that “severe” was used in the definition as a stronger word than “serious”;[7]
[5][1998] 3 VR 833
[6](1995) 21 MVR 314
[7](Supra) at 846
(f) Winneke P agreed with Brooking JA’s reasons, and further agreed with him that the word “severe” where used in s93(17)(c) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act;[8]
[8](Supra). See also Phillips JA at 858 and Charles JA at 860-861 to similar effect
(g) the psychological or psychiatric consequences of a physical injury are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise;[9]
(h) the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purpose of paragraph (c) of the definition of “serious injury” and not otherwise.[10]
[9]Section 134AB(38)(h) of the Act
[10]Section 134AB(38)(i) of the Act
9 In addition, in relation to “loss of earning capacity consequences”, the plaintiff has a specific burden to establish:[11]
[11]Section 134AB(19B) and 38E of the Act
(a) that at the date of hearing, he had a loss of earning capacity of 40 per cent or more, measured (subject to certain irrelevant exceptions) as set out in paragraph (f) of s134AB(38) of the Act;[12]
[12]Section 134AB(38)(e)(i) of the Act
(b) that after the date of hearing, he will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more;[13] and
(c) that even with rehabilitation and retraining, he will still sustain a loss of 40 per cent or more.[14]
[13]Section 134AB(38)(e)(ii) of the Act
[14]Section 134AB(38)(a) of the Act
10 If the plaintiff satisfies the test laid down by the Act in relation to loss of earning capacity, then he is at large to make a claim for damages; that is, both pain and suffering and loss of earning capacity.[15]
[15]Advanced Wire & Cable Pty Ltd & Anor v Abdulle [2009] VSCA 170 at paragraph [63]
11 Consequently, the Court must consider the impairment of body function suffered by the particular plaintiff, but the test also requires an objective comparison between the impairment suffered by the plaintiff and the range of possible impairments.
12 As Ashley JA and Beach AJA said in Stijepic v One Force Group Aust Pty Ltd:[16]
“The emphasis in s 134AB(37)(c) and (d) is upon seeing where the facts of a particular case sit in the broad spectrum of cases, remembering that this includes cases which do not end up in litigation – because, it may be supposed, the consequences are glaringly apparent one way or the other. … .”[17]
[16][2009] VSCA 181
[17](Supra) at paragraph [42]
13 In determining the application, the Court:
(a) must make the assessment of “serious injury” at the time the application is heard;[18]
(b) notes that it has been observed that the question of whether any injury satisfies the narrative test is largely a question of impression and value judgment.[19]
[18]Section 134AB(38)(j) of the Act
[19] See Kelso v Tatiara Meat Company Pty Ltd [2007] 17 VR 592 at 628; Sabo v George Weston Foods [2009] VSCA 242 at paragraph [67]
Investigations
Pre- accident investigations
14 On 13 December 1996, an x-ray of the lumbosacral spine showed:
“There is a slight scoliosis convex towards the right. Slight narrowing of the L4/5 disc space is seen. Minor asymmetry is seen in the facet joint direction and early degenerative change is beginning to occur, with some sclerosis and just a suggestion of osteophyte lipping.”[20]
[20]Plaintiff’s Court Book (“PCB”) page 51
15 On 17 November 1998, a CT scan of the lumbar spine concluded:
“Mild disc bulge at the L4/5 level without radiological evidence of any neurological involvement, a clinically significant lesion would produce symptoms at the L5 level.”[21]
[21]PCB 52
16 On 19 May 2003, a CT scan of the lumbar spine concluded:
“L3/4 level:
There are small Schmorl’s nodes associated with the inferior aspect of L3 and superior aspect of L4. Early hypertrophy and degenerative change of the facet joints is seen, the right side is perhaps more affected. The canal at the disc level is a relatively small structure.
L4/5 level:
There is a small lateral right sided disc herniation. This involves the right exit foramen slightly. As far as can be determined on the CT it potentially could affect the right L4 nerve root although the nerve root appears to be relatively clear of this. Some asymmetry of the facet joints is seen with early hypertrophy and degenerative change. Again, the canal is a relatively small structure and this is further contributed to by some hypertrophy of the ligament flavum.
L5/S1 level :
There is a small disc bulge which just encroaches upon the spinal theca. Early hypertrophy and degenerative change of the facet joints is seen.”[22]
[22]PCB 53
17 On 6 May 2009, an x-ray of the lumbosacral spine showed:
“Vertebral alignment is normal.
There is minimal narrowing of the lumbosacral disc space. Disc spaces are otherwise well preserved.
There is minor lipping about the L3-4 and L4-5 disc margins.
There appears to be facet joint degenerative changes bilaterally at the lumbosacral level of a mild degree.
No focal bony lesion is evident.
The sacroiliac joints appear normal.”[23]
[23]PCB 54
Post-accident investigations
18 On 28 July 2009, a CT scan of the lumbar spine showed:
“No abnormality is seen at the L3-4 level.
At the L4-5 level there is a small right lateral disc herniation mildly encroaching on the right L4 nerve root exit foramen and at the L5-S1 level there is a small central and right paracentral disc herniation mildly encroaching on the right S1 nerve root recess.
No other disc herniation is seen. No canal stenosis is identified. No significant bony abnormality is seen.”[24]
[24]PCB 55
19 On 4 August 2009, a CT scan of the cervical spine concluded:
“Small focal right para central C5-6 disc protrusion.”[25]
[25]PCB 56
20 On 18 August 2009, an MRI scan of the lumbar spine concluded:
“The focus of clinical interest is the broad based central disc protrusion at L5-S1, this is slightly more prominent in the right paracentral distribution, where it just contacts the traversing right S1 nerve root, it may also just contact the left S1 nerve root at disc space level. However there is no specific focus of nerve root compression.”[26]
[26]PCB 57
21 On 21 September 2009, an MRI scan of the lumbar spine concluded:
“No evidence of thecal sac compression.
Broad based disc bulge at L4/L5 and large central disc protrusion at L5/S1 result in bilateral subarticular lateral recess contact of traversing L5 and S1 nerve root, left > right.”[27]
[27]PCB 58
22 On 25 September 2014, an MRI scan of the whole spine concluded:
“1.Multilevel degenerative mid to lower cervical spondylosis, particularly at C4/5 where a disc osteophyte complex eccentric towards the right results in indentation of the right anterior hemicord and results in mild central canal stenosis.
2.Uncomplicated multilevel Schmorl’s nodes of the mid to lower thoracic spine.
3.Developmental central canal stenosis at L3/4 and L4/5 with osteophyte complexes and bilateral facet arthropathy at these levels resulting in mild acquired central canal and mild bilateral neural exit foraminal stenosis.
4.Hyperintense central protrusion at L5/S1 results in posterior displacement of both emerging S1 nerve roots and mild central canal stenosis.”[28]
[28]PCB 61
The Plaintiff’s medical evidence
Austin Health
23 The plaintiff presented to the Austin Hospital on 20 and 31 July 2009 and 6 August 2009.
24 On 31 July 2009, the plaintiff re-presented with exacerbation of back and neck pain, which started on 20 July 2009. The Summary records:
§ Back pain at work, works as a truck driver;
§ Heavy goods and trolley pushing;
§ Back pain a/w pins and needles and numbness down bilateral legs to toes.
25 The Discharge Summary recorded that the nature of the pain was explained to the patient, as well as the possibility of referral to an orthopaedic surgeon for disc repair if non-surgical management did not improve in six weeks.
26 On 6 August 2009, the plaintiff re-presented at the Department of Emergency Medicine. The Discharge Summary reported that the plaintiff presented with worsening back pain, which he has had since 20 July 2009. He was admitted to their short-stay unit for analgesia and physiotherapy. He was reviewed by an orthopaedic spinal surgeon, who felt that his spinal cord issue was not acute.
Dr Israa Hassani
27 The clinical notes of Dr Hassani, general practitioner, confirm that on 1 May 2009, the plaintiff reported lower back pain with pushing at work. No radiation of pain and no numbness; continuing to work.
28 On 6 July 2009, the plaintiff reported stiff muscles and shoulder pain; he was provided with valium.
29 On 21 July 2009, the plaintiff reported attending the Emergency Department the previous day with severe back pain and neck pain at work.
Dr P Rajan Thomas
30 Dr Thomas, psychiatrist, treated the plaintiff on referral from his general practitioner from June 2010. Dr Thomas provided reports dated 18 September 2010; 27 January, 26 July and 12 December 2011; 18 October 2012, and 24 February 2015.
31 In October 2012, Dr Thomas diagnosed Major Depression and Chronic Pain Syndrome. He said the depression was secondary to the injury sustained by the plaintiff. He said the pain caused by the injury to the back, neck and shoulder, and the depression that developed, materially contributes to his incapacity to work and are work related. Due to the persistent pain, the depression has worsened. He has no capacity to work. He said the plaintiff’s incapacity was indefinite.
32 Dr Thomas provides treatment and psychotherapy for the plaintiff’s depression and Chronic Pain Syndrome. In February 2015, he said that the plaintiff would require ongoing treatment for depression – to keep him stable – and Chronic Pain Syndrome.
Dr Jack S Pathak
33 Dr Pathak, general practitioner, provided medical reports dated 7 August 2009, 11 October 2009; 3 May and 24 August 2010; 22 June and 30 November 2011; 21 September 2012, and 31 August 2014, and he was cross-examined. Dr Pathak qualified as a surgeon in Edinburgh in 1954 and practised as a general practitioner in Australia for approximately forty years. The plaintiff was a longstanding patient.
34 Dr Pathak reported in August 2009, that the plaintiff attended the Melbourne Central Clinic on 24 July 2009 complaining of back pain at work. The plaintiff reported injuring his upper and lower back and shoulders at work from lifting and putting approximately 250 heavy boxes on a trolley every day. He attended the Emergency Department of the Austin Hospital; a Certificate of Incapacity was issued. Dr Pathak said the plaintiff suffered a right lateral disc herniation encroaching on the right L4 nerve root exit foramen and a central and right paracentral disc herniation encroaching on the right S1 nerve root recess. In addition, he had muscle strain of the upper back and shoulder, with right paracentral C5-6 disc protrusion. He said the plaintiff’s injury was work related. The plaintiff was suffering severe pain and was unfit for pre-injury or suitable duties. He said it was difficult to determine the likely duration of incapacity at that stage.
35 In October 2009, Dr Pathak said the injury of July 2009 was an acute aggravation of a pre-existing condition in regard to the plaintiff’s lumbar spine and a fresh injury of the C5-6 disc. He said the plaintiff’s employment was a significant contributing factor to the cervical and lumbar spine injury. He was treating the plaintiff with opiates, NSAIDs and other analgesics to relieve his pain. The plaintiff was unfit for pre-injury duties or suitable duties. He noted the plaintiff was keen to return to work. He referred the plaintiff to Associate Professor Bittar, neurosurgeon. He said the plaintiff required six weeks of physiotherapy, (and a discectomy, if physiotherapy did not help), analgesics, NSAIDs and opiates. His prognosis was uncertain and guarded.
36 In November 2011, Dr Pathak diagnosed that the plaintiff was suffering from symptoms relating to L5-S1 invertebral disc prolapse, with discogenic back pain and bilateral leg pain, a fresh initial outburst of a focal right paracentral C5 disc protrusion and Major Depression. The plaintiff had no current capacity for pre-injury duties or suitable duties, which was likely to continue indefinitely. He said the plaintiff’s prognosis was relatively poor and he was permanently incapacitated for all forms of employment. He said the plaintiff’s treatment had included OxyContin, Naprosyn and Panadeine Forte. The plaintiff elected to pursue ongoing, non-operative management.
37 In September 2012, Dr Pathak said the plaintiff’s low-back injury, cervical spine injury and secondary psychiatric injury would continue to materially contribute to his incapacities. His physical injury continues to be work related. The plaintiff was taking medication of:
§ OxyContin, 10-milligram tablets twice daily
§ Naprosyn, 5 milligrams twice daily; and
§ Panadeine Forte tablets, one prn.
38 In August 2014, Dr Pathak said the plaintiff is incapacitated for pre-injury employment due to the injury in July 2009. He does not have any capacity to work due to depression and back pain/cervical pain. When the pain is severe, the depression gets worse. His depression is secondary to the back injury. Dr Pathak considered the plaintiff’s injuries had stabilised. The plaintiff was taking the following medication:
§ Naprosyn, 500-milligram tablet – 1 bd
§ Panadeine Forte tablet – 1 prn
§ OxyContin, 10-milligram tablet – 1 bd
§ Citalopram, 40-milligram tablet – one-and-a-half tablets daily.
39 In evidence, Dr Pathak, said the plaintiff was a longstanding patient. In 1998, he treated the plaintiff for a low-back injury. The CT scan of November 1998 of the lumbar spine performed showed a mild disc bulge at L4-5. Dr Pathak said that because the plaintiff complained of back pain, he sent the plaintiff for a CT scan in May 2003. The CT scan report in 2003 refers more to a degenerative condition in his spine. In comparison, the CT scan of July 2009 identified a broad-based central disc protrusion indenting the thecal sac interiorly, but also contacting the transverse right-sided S1 nerve root and possibly the left-sided S1 nerve root, and there was a small mild disc desiccation at L4-5, or L5-S1, in the disc space. As a result of the CT scan, Dr Pathak referred the plaintiff to Associate Professor Bittar, neurosurgeon, who recommended surgery. Dr Pathak said the degenerative condition has nothing to do with the disc injury caused by the work injury.
40 Dr Pathak said after the 2009 injury, the plaintiff complained of neck pain, which the doctor related to the C5-6 disc protrusion. He was not aware of the plaintiff having neck symptoms of any significance before the 2009 work injury.
41 In cross-examination, Dr Pathak agreed that in May 2003, he signed a medical certificate to the effect that the plaintiff was unfit for work for three months because of low-back pain, disc herniation at L4-5 and L5-S1 encroaching upon the spinal theca. He agreed that it would have been quite a significant event that would cause the plaintiff to be unfit for work. He was unable to recall the circumstances of the certificate.
42 Dr Pathak agreed the plaintiff consulted him following a motor vehicle accident about low-back pain in February and March 2004, and the plaintiff was provided with certificates for two days each. In May 2004, he prescribed Panadeine Forte. He agreed that he did not see the plaintiff between 2005 until August 2009, when the plaintiff presented following the work injury.
43 Dr Pathak said he had not noticed any exaggerated behaviour by the plaintiff. In re-examination, he said he did not believe there was anything in the Austin Health report which suggested signs of exaggeration on behalf of the plaintiff. He could not recall discussing the plaintiff with Mr Kendall-Francis, surgeon.
44 Dr Pathak said he disagreed with Mr Kendall-Francis that the plaintiff’s injury in 2009 was not serious or significant, and disagreed with Mr Stuart that the aggravation ceased in January 2010. He said it never ceased, and referred to the opinion of Professor Bittar. He said the ongoing pain was all about the lumbar disc injury, the disc prolapse, the disc pressing against the nerve, and that is why the plaintiff is getting pain going down his legs, sciatic pain, which is entirely different. He said the plaintiff required medication to control pain. Dr Pathak disagreed with Mr Shannon’s opinion that there had been a development of a Chronic Pain Syndrome with dependence on narcotics. On re-examination, he said the plaintiff suffers from a lot of pain; the medication he prescribes is needed by the plaintiff, it helps control the pain. Further, the plaintiff is treated by Professor Bittar and Dr Thomas.
Professor Richard Bittar
45 Professor Bittar, neurosurgeon and spinal surgeon, provided letters and reports dated 12 October, 2 November, 23 November and 15 December 2009; 31 March, 26 July and 17 November 2010; 28 January, 1 August and 1 December 2011, and 3 November 2014.
46 In a letter dated 12 October 2009 to the general practitioner, Associate Professor Bittar (as he then was) said he thought that surgery was probably warranted, given the plaintiff’s bilateral leg pain and large disc prolapse. After review in November 2009, the plaintiff was placed on a waiting list as a Category 1 patient for a left L5-S1 microdiscectomy.
47 In a letter to the defendant dated December 2009, Associate Professor Bittar said the plaintiff was unfit for work as a result of his lower back condition. He viewed a surveillance video, which showed the plaintiff walking on several brief occasions. He said on one of these occasions, the plaintiff did appear to be walking without significant limp or restriction and, on other occasions, there is evidence of an antalgic gait. The surveillance material did not provide him with sufficient information to be able to draw any significant conclusions.
48 In July 2010, Associate Professor Bittar reported to the general practitioner that the plaintiff returned with worsening of his lower back pain, and left sciatica. It was his view that the plaintiff should undergo surgery at the L5-S1 level; however, the plaintiff was reluctant to pursue surgery and preferred further conservative treatment.
49 In November 2010, Associate Professor Bittar said, after surgery, the plaintiff would be able to return to work on modified duties part time, four to six weeks post-operatively.
50 In a report to the defendant in January 2011, Associate Professor Bittar said surgery would offer the plaintiff a significant benefit in terms of his leg pain.
51 In November 2014, Professor Bittar (being a titled Professor at this point) said he reviewed the plaintiff in January 2013. He said the plaintiff continued to experience neck pain and bilateral arm pain, particularly on the right, and ongoing lower back pain and left sciatica. His treatment comprises reviews by his general practitioner every two to four weeks. He takes daily medication including OxyContin, Naprosyn, Celebrex and Panadeine Forte.
52 Professor Bittar diagnosed an L5-S1 intervertebral disc prolapse and aggravation of lumbar spondylosis – this results in lower back pain and bilateral leg pain – and C5-6 intervertebral disc prolapse with neck pain and right arm pain. Work was a significant factor to his injury.
53 In Professor Bittar’s opinion, the plaintiff was permanently incapacitated for his pre-injury duties. He said the plaintiff’s prognosis was relatively poor and that he was likely to suffer from significant symptoms and disabilities into the foreseeable future. The plaintiff did not have a current capacity for full-time unrestricted pre-injury employment, nor did he have a capacity for restricted or modified pre-injury employment. He thought he had no realistic capacity for suitable employment. He accepted the work injuries had a detrimental impact on the plaintiff’s social, domestic, recreational and employment activities, and his restrictions were permanent.
Professor Kenneth Myers
54 Professor Kenneth Myers, general surgeon, examined the plaintiff in October 2012 and October 2014 at the request of the plaintiff’s solicitor.
55 In 2012, Professor Myers diagnosed an aggravation of pre-existing, essentially asymptomatic degenerative intervertebral disc disease in the lumbar spine and cervical spine, with a major disc prolapse at L5-S1, possibly causing spinal cord compression. He said the plaintiff had no capacity for pre-injury duties. He said the plaintiff’s educational and vocational background would make it impossible for him to obtain employment performing alternate modified duties. He was of the opinion the plaintiff was unfit for all work in the foreseeable future. He thought the opportunity to perform successful surgery had long passed. The plaintiff should continue with conservative treatment, and thought he should be referred to a multi-disciplinary pain clinic. However, he thought there would be no further improvement with any future treatment, and the only management that will be effective is ongoing medication.
56 In 2014, Professor Myers noted the plaintiff was relying on medication of OxyContin, Naprosyn and Panadeine Forte, as well as anti-depressants and Valium. Professor Myers diagnosed an aggravation of pre-existing largely asymptomatic degenerative intervertebral disc disease and spondylosis in the lumbar and cervical spine, particularly with disc prolapse at L5-S1. He said the plaintiff would not be a candidate for surgery, but reiterated his view that the plaintiff would benefit from referral to a pain management group for a course of rehabilitation. He did not anticipate any future improvement of the plaintiff’s condition in the neck and low back.
57 Professor Myers said the plaintiff had no capacity for full-time, unrestricted pre-injury employment, nor did he have any capacity for restricted or modified pre-injury employment. He said the plaintiff had no capacity for any form of employment at the present time, due to ongoing disability in the neck and low back, and the effects of medication. He accepted the plaintiff would be restricted in respect to social, domestic or recreational and employment activities, which is permanent.
Mr Hugh Weaver
58 Mr Weaver, orthopaedic specialist, examined the plaintiff at the request of the defendant in December 2010.
59 Mr Weaver obtained a history that after returning to Australia in 1996, the plaintiff experienced onset of low-back pain in the course of his employment. He was off work for a significant period, treated with medications and physiotherapy, and resumed work as a bee-keeper part-time.
60 Mr Weaver said the plaintiff presented as suffering from a lumbar-intervertebral disc prolapse at the lumbosacral level. He said his employment with the defendant has been responsible for initiating his current symptoms. He thought the plaintiff’s condition was fairly stable. He thought that surgery would probably not have much effect for the plaintiff, particularly given his presentation as someone who is probably suffering from an element of psychological elaboration of his underlying physical condition.
61 Mr Weaver said, at best, the plaintiff could make a graduated return to light duties work. He did not consider the plaintiff would return to working of his own volition. He said the plaintiff’s organic problem was genuine but noted there was a possible element of elaboration of his underlying physical problem. Mr Weaver said the plaintiff did not complain of his neck and on examination, had a completely full range of neck movement. He was aware of CT scan findings, which disclosed a small focal right-sided paracentral disc protrusion at C5-C6 level. He said there might be a relationship between the CT scan findings and the employment incident; he could not be definitive either way.
Mr Michael Shannon
62 Mr Shannon, orthopaedic surgeon, examined the plaintiff in November 2014 at the request of the defendant’s solicitor.
63 On examination of the cervical spine, the plaintiff demonstrated severe restrictions of all movements by about two-thirds. The plaintiff was reminded of his obligation to co-operate with the examination, and a substantially improved range of movement was obtained. Mr Shannon noted and recorded that the plaintiff had full, free cervical flexion and rotation to both sides, and a near normal range of lateral flexion. There was no evidence of spasm in these movements. There was no neurological abnormality in the upper limbs. Mr Shannon said the plaintiff had a degenerative disc disease in the cervical spine and in the lumbar spine, and had a lumbosacral disc prolapse without definite evidence of radiculopathy. The only treatment he recommended was pain management.
64 In respect to the neck, he said the plaintiff sustained a soft-tissue injury which he doubted had resulted in significant permanent damage to the previously degenerative cervical spine.
65 In regard to the back, Mr Shannon accepted the plaintiff sustained a lumbosacral disc prolapse with symptoms but no signs of radiculopathy. Mr Shannon said the plaintiff sustained permanent aggravation and acceleration of a degenerative change in the form of lumbosacral disc prolapse. He accepted that employment was a significant contributing factor to the development of the disc prolapse in the lumbar spine.
66 Mr Shannon said the plaintiff did not have a capacity for employment as a truck driver or any other heavy physical work. He said the plaintiff had limited English skills. He said there were non-work related factors contributing to his condition, including the presence of pre-existing degenerative changes, and a previous injury with another employer. There was also the development of a Chronic Pain Syndrome with dependence on narcotics. He said there were non-organic features in his condition. He thought the injury had stabilised and that the plaintiff had sustained a permanent injury to his back.
Mr Hugh Hadley – Previous injury
67 In March 1998, Mr Hadley, surgeon, medically examined the plaintiff in relation to a previous injury in respect to his low back with a previous employer.
68 The plaintiff reported no injury or symptoms of back pain prior to November 1998. A CT scan reported mild bulging of his L4-5 disc without radiological evidence of any neurological involvement.
69 Mr Hadley diagnosed a strained muscle attachment to the plaintiff’s lumbar region from injury to his lumbar disc, with mild bulging of his L4-5 disc, and depression. He was being treated for depression.
The Defendant’s medical evidence
Austin Health
70 On 20 July 2009, the primary diagnosis at Austin Health was “back pain, not associated with trauma, recurrent episodes of musculoskeletal pain”.
71 The progress notes recorded:
“[T]his man presents after pushing a heavy trolley with lower back pain. He is very tender to touch over the SI joints and neck, but has no neurological signs or symptoms.
I am not concerned about his back pain, but worry about the underlying reason for his 2 work related musculoskeletal injuries in the last few months. He has worked for the same company for 3 years and has only had such problems in the last 3 months.”[29]
[29]Defendant’s Court Book (“DCB”) 132
Dr J Kendall-Francis
72 Dr Kendall-Francis, surgeon, examined the plaintiff in August 2009 and October 2013. He provided reports dated 10 August, 26 August and 23 December 2009 and 10 October 2013.
73 In August 2009, the plaintiff attended without an interpreter, with his sister and, later, his wife. The sister was virtually the only one involved in the history giving. The plaintiff walked into the room, slumped into a chair and finally ended up lying on the floor throughout the interview. Mr Kendall-Francis said the examination was conducted with great difficulty; it was impossible to perform due to the reaction and extraordinary behaviour of the plaintiff. His wife and sister helped him onto the couch. He had a panic attack and writhed in agony to the lightest touches on his thigh while testing sensation. The plaintiff writhed and shouted without control, even when untouched. He took a tablet of Oxycodone, became slightly quieter, but was still overreacting. Further examination was terminated because of the overreaction.
74 In a report dated 26 August 2009, Mr Kendall-Francis noted that an MRI scan dated 18 August 2009 indicated a broad central disc protrusion at L5-S1. The scan shows no specific focus of nerve root compression, although it mentions there may just be contact with the right and left S1 nerve roots. He said this would not be considered a grossly abnormal picture and would not explain the performance exhibited by the plaintiff earlier in August. Mr Kendall-Francis subsequently received summaries of the plaintiff attending the Austin Hospital on 31 July and 5 August 2009. He concluded there was exaggeration which was consistent with the behaviour when seen by him on 10 August 2009. He concluded there was no evidence demonstrated of any serious or significant injury.
75 Mr Kendall-Francis reported that he spoke with Dr Pathak, the plaintiff’s general practitioner, who stated that the plaintiff’s behaviour was less dramatic, but had been similar when examined by him.
76 In October 2013, Mr Kendall-Francis re-examined the plaintiff and reported that the plaintiff provided a history of initial low-back pain occurring in the 1990s. He was able to continue work until a pushing/jerking episode occurred at work on 20 July 2009. The plaintiff reported that back pain, and later neck pain, have persisted and he has been unable to return to work.
77 Mr Kendall-Francis diagnosed physical neck and back symptoms causing pain in the region due to age-related constitutional degenerative spinal disc disease in both cervical and lumbosacral regions of a multi-level nature. He did not recommend continuing the narcotic medication as it affects his whole approach. He doubted whether anti-inflammatory medication has any further place in the plaintiff’s treatment. He considered the work incident was a precipitating factor in causing his neck and back degenerative underlying disc disease to be aggravated. He did not consider that the long-term effects were due to the plaintiff’s employment. He believed the aggravating factor had ceased but that the plaintiff’s symptoms have become firmly embedded, both psychologically, along with the ongoing underlying degenerative multi-level disc disease. He believed there were non-organic factors contributing to his condition such as his domestic problems, plus his ongoing psychiatric stress/depression which was best commented upon by an expert.
Mr Gordon Stuart
78 Mr Stuart, neurosurgeon, examined the plaintiff in April 2010 at the request of the defendant. He had mild difficulties in communicating with the plaintiff due to language problems. The plaintiff described low-back pain prior to the injury.
79 It was Mr Stuart’s opinion that the plaintiff suffered from chronic low-back and leg pain due to degenerative disease of the lumbosacral spine which was temporarily aggravated by a soft-tissue injury at work. He said the plaintiff was currently incapable of resuming work. The plaintiff’s recreation and social functioning had been affected significantly. He believed the plaintiff had an exaggerated pain response with discrepancy between supine and straight-leg raising. He said the prognosis in the short term was poor.
80 Further, Mr Stuart said the plaintiff would benefit from the services of an occupational rehabilitation provider to assist with return to work. He thought the aggravation would have ceased by approximately January 2010; that is, six months after the incident of July 2009. He believed the plaintiff’s current physical condition was no longer work related.
81 Mr Stuart was asked to view surveillance dated 20 April 2010. He said there was nothing in the video surveillance he viewed which would cause him to change any opinion he expressed in his report of 22 April 2010 or his supplementary report of 16 June 2010.
Dr Nigel Strauss
82 Dr Nigel Strauss, psychiatrist, examined the plaintiff at the request of the defendants and provided reports dated 19 May 2010, 24 January 2011, 3 October 2013 and 7 October 2014.
83 Prior to his examination in October 2014, Dr Strauss diagnosed a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood and, on the basis he was suffering from a work-related physical condition, he concluded that the plaintiff’s psychiatric condition was work related.
84 In October 2014, Dr Strauss said the plaintiff’s complaints of pain had become more generalised and, because of his underlying anxiety and depression, the plaintiff had some psychologically-based pain; that is, some of his pain is organically based and some is psychologically based. He said, as well as a Pain Disorder associated with a medical condition and psychological factors, the plaintiff continues to suffer from a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood.
85 Dr Strauss said, on the basis that the plaintiff’s physical problems are work related, his psychiatric problems remain work related. He said the plaintiff should be seeing a psychiatrist monthly into the foreseeable future, and should be on anti-depressant medication. He said the psychiatric injury is secondary.
86 From a psychiatric point of view, the plaintiff should be capable of light duties’ work. Dr Strauss suggested a graduated return to work; however, as the plaintiff complains of extensive pain and has not worked for many years, and his past work record is limited, he was doubtful that the plaintiff would return to work in the foreseeable future.
Dr Phillip Mutton
87 In January 2013 Dr Mutton, occupational physician, examined the plaintiff at the request of the defendant’s solicitor.
88 Dr Mutton only addressed the plaintiff’s neck injury. He said the plaintiff presented with minimal symptoms in relation to the cervical spine in terms of range of movement. He said the plaintiff had a very mild loss of cervical range of movement and no variable evidence of radiculopathy. His diagnosis was mild cervical disc degeneration. He thought the relationship to employment was quite indirect. He suggested it was generally age-related degenerative changes consistent with the plaintiff’s age. He considered the injury had stabilised.
Previous Injury
Dr Barry Gilbert
89 In December 1998, Dr Barry Gilbert, occupational medicine advisor for the plaintiff’s then employer, recommended that the plaintiff be independently assessed for a number of reasons, including the fact that it was impossible to examine the plaintiff because of a hysterical reaction. Dr Gilbert referred the plaintiff to Dr McNicol Smith in respect to an injury suffered with a former employer, Joshua Pitt Pty Ltd.
Mr Ian McNicol Smith
90 Mr McNicol Smith, surgeon, examined the plaintiff in December 1998 at the request of the insurer of Joshua Pitt Pty Ltd. Mr McNicol Smith reported that there was no interpreter, the plaintiff attended with his sister and communications were primitive. He said there was inconsistent behaviour on the part of the plaintiff.
91 The plaintiff reported that there had been no back trouble prior to November 1998. Mr McNicol Smith did not think the CT scan findings were of significance. He recommended the plaintiff be admitted to a rehabilitation clinic for monitoring.
Video of the Plaintiff
92 I was shown two films: one being surveillance of the plaintiff going through his normal daily activities, and the other being film of a police interview.
93 The surveillance film was taken on 12 June 2012 at 11.10 am. The plaintiff was seen as a passenger in a car. Later, he was seen reversing the car. In evidence, the plaintiff said he would have relied upon the mirrors to reverse. He was seen walking with a woman; then later, unassisted, descending steep stairs. He did not use the handrails and had a piece of paper in his hand. The plaintiff was smartly dressed, moving without any limitation. He moved confidently. In cross-examination, the plaintiff said he would have had light pain on that occasion.
94 The plaintiff’s presentation in the surveillance was inconsistent with the plaintiff’s presentation in Court. Although the plaintiff was neatly dressed in Court, he did not exude the same confidence shown in the video. I was informed that the defendant had the plaintiff under surveillance for approximately 222 hours over eight days. The defendant obtained approximately one hour and 46 minutes of surveillance, of which I was shown approximately eight minutes. None of the further surveillance was shown. Some of the surveillance that was not shown to the Court was shown to Professor Bittar and Mr Stuart. Both concluded that the surveillance did not warrant them changing the view they had expressed in their reports about the plaintiff. I infer the surveillance not seen by the Court did not assist the defendant.
95 The second film was of a police interview on 13 June 2011. It was shown to support the defendant’s submission that the plaintiff could speak English and could sit in the one position for a period of time. In Court, the plaintiff continually stood up throughout the Court hearing every 10 to 15 minutes.
96 As to the plaintiff’s English skills, I had difficulty understanding what the plaintiff said in the record of interview. I note that a number of the medical witnesses commented on their difficulty in understanding the plaintiff.
97 In cross-examination, the plaintiff said he was able to stand up when the police officer left the interview room. Further, the plaintiff was being interviewed in a stressful situation, and I only saw a few minutes of that interview. I am not prepared to conclude that the plaintiff did not move about or stand up during the interview.
Credit
98 In considering the credit of the plaintiff, I must consider the evidence as a whole. Overall, I accept the plaintiff was prone to exaggeration, which I take into account in assessing the evidence as a whole. As a result, I will be particularly influenced by the independent evidence of the medical witnesses and radiological investigations.
99 I observed the plaintiff’s responses to questions in Court, and his physical behaviour. The plaintiff gave his evidence through an interpreter. He often did not answer questions directly. On a number of occasions, he volunteered information that did not respond to the question asked. On occasions, he waited a number of minutes before answering a question; often the answer did not relate to the question. On occasions, the answers were lengthy and related to the plaintiff’s current presentation, which he was not being asked about. Mr Shannon had a similar experience interviewing the plaintiff with an interpreter present and said:
“Mr Kheir-Bik is extremely verbose and wandering in the presentation of history so that questions requiring a simple answer were responded to by a one to two minute discussion of his current problems and it was very difficult to keep him to the point in history taking.”[30]
[30]DCB 83
100 This tendency of the plaintiff to ‘wander’ in his evidence made it more difficult to follow. However, I do not find this was a deliberate attempt by the plaintiff to evade giving evidence. I also take into account that the evidence was being provided by an interpreter.
101 In terms of behaviour, when in the witness box, the plaintiff regularly stood up in an apparent attempt to change his position. He said he stood up because he felt numbness in his legs. He said this was dependent upon whether he is comfortable sitting in the chair.[31] He could not estimate whether he had been standing every 10 or 15 minutes.[32] This continued throughout the hearing. While all plaintiffs are different, this was so unusual in its regularity that I did conclude it was exaggerated. A further example of what I considered to be his exaggerated behaviour was his reaction to watching the film of the police interview. The plaintiff left his seat in front of the screen, returned to the body of the Court and leant his head against the wall of the Court room. A number of the medical witnesses addressed the plaintiff’s behaviour, and counsel for the defendant made submissions on this issue.
[31]Transcript (“T”)59
[32]T61
102 Counsel for the defendant made a number of submissions about the plaintiff’s reliability as a witness. Counsel referred to Transport Accident Commission v Zepic[33] and submitted that the current proceeding was similar both factually, and on the analysis of the evidence, as to that decision. In the circumstances, I should be guided by the reasoning of the Court of Appeal in Zepic and, because of a finding by the trial judge in that case that the plaintiff was an unreliable witness, a number of matters flowed. In Zepic, it was said:
[33][2013] VSCA 232
“4 The question for determination was whether the pain and suffering consequences of the impairment of spinal function satisfied the test for serious injury. A number of particular features of the case combined to make the judge’s task exceptionally difficult. Specifically:
(a) his Honour found that Mr Zepic was an unreliable witness, who had exaggerated the consequences of the 2008 accident both under cross-examination and in what he had told a number of medical practitioners;
(b) because the LS injury was said to be an aggravation of an existing back injury which was symptomatic immediately before the accident, his Honour had to decide whether and to what extent any post-accident pain and suffering in the LS region (including referred pain in the legs) was attributable to an aggravation of the earlier injury;
(c) Mr Zepic had been involved in a subsequent motor vehicle accident, some two-and-a-half years later (the ‘2010 accident’), and any contribution of that accident to his pain and disability had also to be excluded. (As will appear, only three of the medical practitioners whose reports were in evidence had seen Mr Zepic in the period between the two accidents, and several of those who saw him after the 2010 accident were not made aware of it);
(d) the 2008 accident also had significant psychological consequences for Mr Zepic. (His Statement relied on an injury described as follows: ‘Mental and/or behavioural disturbance or disorder including stress, anxiety and depression’. The claim of direct psychiatric injury was not pressed.) The assessment of his impairment had to exclude ‘any psychiatric or psychological injury, impairment or symptoms arising as a consequence of, or secondary to’ his physical injuries; and
(e) the assessment had to exclude any pain and disability referable to ageing, including natural degeneration of the spine.
5 In those circumstances, the onus was on Mr Zepic to ‘disentangle’ the various contributors to his pain and disability, in order to:
(a) identify the physical injuries sustained in the 2008 accident and the impairment of spinal function attributable to those injuries;
(b) identify the pain and suffering consequences attributable to that impairment; and
(c) establish that those consequences were ‘at least ... very considerable and certainly more than significant or marked’.
6 Self-evidently, Mr Zepic faced substantial forensic obstacles in seeking to discharge that onus. First, his own oral evidence was disbelieved. Secondly, and no less importantly, the probative force of the medical opinions on which he relied was significantly reduced on account of the judge’s finding that he had given exaggerated accounts to doctors. Thirdly, his failure to inform at least some of the medical practitioners of his pre-accident condition and/or of the 2010 accident made the necessary disentangling of consequences all the more difficult.”
(Footnotes omitted)
103 Counsel for the defendant relied upon the following matters.
The Plaintiff gave inconsistent statements about how the accident occurred
104 Counsel for the defendant submitted that the plaintiff gave inconsistent statements about how the accident occurred. The plaintiff deposed in his affidavit that the accident occurred on 20 July 2009 as a result of him pushing a trolley loaded with boxes over an elevated kerb. On his second attempt to push the trolley, he felt a sudden onset of lower back pain that radiated into his calves. The plaintiff’s evidence to the Court in cross-examination was that the boxes were about to fall, and he held onto the trolley, trying to prevent the boxes from falling.[34]
[34]T26, L17-19
105 The plaintiff told Dr Thomas, psychiatrist:
“The load fell down and while trying to hold onto them, he also fell down and hurt his back.”
106 In cross-examination, the plaintiff said it was a reference to him “psychologically falling down”. He agreed he did not physically fall over.[35]
[35]T31, L15-22; T35, L21-23
107 On 7 August 2009, Dr Pathak, general practitioner, reported the plaintiff’s problems started at work on 20 July 2009 with back pain at work. He works as–
“… a truck driver, heavy goods and trolley pushing.
…
He stated that he sustained an injury to his back, upper and lower back and shoulders, at work from lifting and putting about 250 heavy boxes on the trolley every day.”
108 The Austin Hospital Emergency Discharge Summary recorded in the primary diagnosis that the plaintiff presented with back pain “not associated with trauma”, and “recurrent episodes of musculoskeletal pain”. Under the heading “Progress Notes”, it is recorded:
“This man presents after pushing a heavy trolley with lower back pain. It is very tender to touch over the SI joints and neck.”
109 An x-ray of the plaintiff’s lumbosacral spine on 6 May 2009 is referable to some earlier presentation of pain to Dr Hassani in May and July 2009. Dr Hassani’s notes record the plaintiff complained of lower back pain with pushing at work.
110 Professor Bittar reported:
“The onset of his symptoms occurred on 20 July 2009 at work. He was unloading his truck and placing the goods on a trolley. These trolleys weighed in excess of 75 kg. He was then required to push each trolley and on approximately the second occasion that he attempted this, he experienced a sudden onset of pain in his lower back radiating into both legs.”[36]
[36]PCB 150
111 Counsel for the defendant did not suggest to the plaintiff that there was no specific incident that occurred at work on 20 July 2009 or that he was exaggerating the accident.[37] No medical witness suggested that the plaintiff’s injury was not work related.
[37]T154
112 Although there was some variation in the accounts of the accident that were recorded, I accept this could be attributed to a number of reasons, including what the plaintiff reported, the plaintiff’s difficulty with English and his need for assistance by an interpreter, his tendency to wander when giving answers, and, at times, his difficulty in grasping what was being asked of him. Furthermore, what the note taker reported. I do not consider much turns on this point. I rely upon Ashley JA’s comments in Franklin v Ubaldi Foods Pty Ltd.[38]
[38][2005] VSCA 317 at paragraph [22]
The Plaintiff’s account of pain following the accident
113 Counsel for the defendant submitted that the plaintiff’s presentation to medical witnesses was inconsistent. Counsel for the defendant submitted the plaintiff told the Court that immediately after the incident, he had pain down the lower back, through his buttocks to his calves.[39] Counsel for the defendant submitted there was no mention of this in the Austin Health note.
[39]T1321, L1-2
114 As to this submission, I note the Discharge Summery of Austin Health on 31 July 2009 reported:
“… started on 20/7/09 p/w back pain at work, works as a truck driver, heavy goods and trolley pushing… back pain a/w pins and needles and numbness down bilat legs to toes.”[40]
[40]PCB 156
115 Given the plaintiff’s limited English, I accept the Austin Health Discharge Summary is consistent with what the plaintiff told the Court. The plaintiff’s statement is consistent with his affidavit. In cross-examination, the plaintiff’s evidence was that he had not suffered this type of pain before.[41] His evidence was that, prior to the work incident, he had back pain but not as severe. Accordingly, I reject the defendant’s submission on this point.
[41]T25, L26
The Plaintiff’s reported behaviour at medical examinations
116 Counsel for the defendant submitted that the plaintiff’s behaviour at medical examinations was strange and exaggerated. The evidence was that the plaintiff suffered an earlier work injury with another employer. The plaintiff was seen by Mr McNicol Smith on referral from Dr Gilbert in respect to the earlier injury. The plaintiff reported that a week after the onset of back pain, he developed pain in both calves. Both Dr Gilbert and Mr McNicol Smith made mention of unusual behaviour. Dr Gilbert said it was impossible for him to examine the plaintiff due largely to an hysterical reaction whereby he required assistance to his brother’s car, and was sent immediately to his treating doctors for treatment. Mr McNicol Smith noted that the plaintiff’s entry to his consulting room was fairly normal. After the plaintiff undressed, “he indulged in some weird writhing and constant pointing to his back which was apparently exquisitely tender”.
117 This unusual behaviour is consistent with the plaintiff’s presentation at a number of medical examinations, but not all, in the current case.
118 I accept that the plaintiff’s presentation and behaviour at several medical examinations was inconsistent and noted by a number of the doctors. I refer to the examinations conducted by Mr Kendall-Francis in August 2009, Mr Stuart in April 2010, and Mr Shannon in December 2014.
119 Mr Kendall-Francis reported that the examination was restricted because of the plaintiff’s behaviour. The examination had to be aborted because the plaintiff was impossible to examine properly. Mr Kendall-Francis said of the plaintiff:
“… he was intermittently lying on the floor with his feet up and holding his crotch, but his wife and sister managed somehow to undress him and help him onto the couch. He then had a type of panic attack in which he writhed in agony to the lightest of touches on his thigh while testing sensation. He kept saying it was numb and grabbing his genitalia repeatedly. It was impossible to ascertain whether pain of numbness was the actual symptom he was mentioning, but he was writhing and shouting without control, even when untouched. It was at this stage he had the tablet of oxycodone and he became slightly quieter but he was still overreacting enormously.”
120 The plaintiff’s behaviour at this appointment was consistent with the reports of Mr McNicol Smith and Mr Gilbert in relation to an earlier work incident. However, I note that Mr Kendall Francis conducted an uneventful examination of the plaintiff in 2013, upon which he based his opinion.
121 In April 2010, Mr Stuart said the plaintiff walked with a slow cautious gait, holding his lower back with his left hand. He appeared to experience difficulty climbing onto and from the examination couch, and removing footwear. Mr Stuart noted that in relation to the plaintiff’s back, spine and lower limbs, there was no muscle wasting in the lower limbs. He noted the plaintiff had an exaggerated pain response with discrepancies between supine and straight-leg raising.
122 In December 2014, Mr Shannon examined the plaintiff and reported that on initial examination of the cervical spine, the plaintiff demonstrated severe restriction of all movements by about two-thirds. The plaintiff was reminded of his obligation to cooperate with the examination, and a substantially improved range of movement was obtained. Mr Shannon went on to say there were non-work-related factors contributing to the plaintiff’s condition and there were non-organic features to his condition. The widespread nature of symptoms involving both upper limbs and both lower limbs, in the absence of objective neurological abnormality, confirmed this. However, Mr Shannon concluded the plaintiff suffered an aggravation and acceleration of degenerative changes in the lumbar spine and in particular, a central lumbosacral disc prolapse which was work related.
123 Accordingly, I accept that the plaintiff, on occasions, exaggerated his presentation when examined by some of the medical witnesses. This was consistent with the view I formed of the plaintiff in his presentation in the witness box. Whilst I accept this exaggerated behaviour was, at times, a feature of this particular plaintiff, it must be viewed in the context of all the evidence. I am not prepared to make an adverse finding against the plaintiff on this point alone, and will consider all the evidence. The medical witnesses who were aware of this type of behaviour nonetheless went on to examine the plaintiff’s report of injury. Mr Shannon, for instance, was able to remind the plaintiff of his duty to cooperate in the examination.
Previous episodes of back injury or pain
124 The evidence was that the plaintiff suffered a low-back injury in 1998 with another employer which resulted in the plaintiff being examined by medical practitioners. The plaintiff agreed in cross-examination that he would describe the 1998 occurrence of back pain as “a small episode of back pain”.[42]
[42]T41, L3-4
125 Furthermore, there was evidence from Dr Pathak that the plaintiff was certified unfit for work for three months in 2003. Dr Pathak agreed that would have been a significant event. Dr Pathak reported that the plaintiff complained on two occasions of low-back pain in March 2004 following a motor vehicle accident. Other than that, the plaintiff did not consult his regular general practitioner in relation to his back until 2009.
126 Mr Stuart reported under ‘Past Medical History’:
“He has what he describes as small episodes of low back pain. There have been no major injuries, no serious illnesses and no previous motor vehicle accidents.”
127 Furthermore, Mr Stuart obtained a history that the plaintiff’s health had been satisfactory and the plaintiff described a small episode of low-back pain. He viewed the following investigations: x-ray of the lumbosacral spine (December 1996) and CT scans of the lumbosacral spine of November 1998 and August 2003. I infer Mr Stuart asked the plaintiff about his past medical history and Mr Stuart recorded his answers accurately. If the questions were put to the plaintiff, I accept the plaintiff underreported his previous history in relation to his low back.
128 However, despite these episodes, I accept that after 2003, the plaintiff was not receiving ongoing treatment or making ongoing reports of his low-back pain until 2009.
The Plaintiff’s recall
129 Counsel for the defendant submitted that in cross-examination, the plaintiff stated he could not remember information. Counsel for the defendant submitted this amounted to the plaintiff being vague and attempting to avoid answering specific questions. The plaintiff was cross-examined about attendances at medical examinations and his medical condition dating back to 1998, almost seventeen years ago. In response to a number of questions, the plaintiff said he could not remember the details.[43] Given the attendances were seventeen years ago, I accept his ability to recall details is reasonable.
[43]T52
130 The plaintiff was unable to provide information about his return from Syria in 2001. He was asked about a medical certificate in 2003 and whether he was in receipt of Centrelink benefits at that time. In re-examination, he thought it was a Newstart Allowance. I accept that these failures were in respect to incidents some time ago, and further, that the plaintiff was confused as to what was being asked of him on this point in relation to Centrelink payments.
The altercation incident with a family member
131 In 2011, the plaintiff had an altercation with a family member which resulted in him being charged by the police. Counsel for the defendant submitted the plaintiff’s evidence was evasive and internally inconsistent. Further, the physical and verbal altercation suggested that the plaintiff’s level of functioning was greater than the level of functioning he presented with in medical examinations.
132 As to that submission, the evidence was that the plaintiff was charged by police, there was no conviction recorded against the plaintiff and he was placed on a good behaviour bond. I accept that the penalty imposed upon the plaintiff places the incident at the lower end of the range. There was no medical evidence regarding the plaintiff’s level of functioning in respect of the altercation. I am not prepared to make any adverse findings; namely that the plaintiff’s level of functioning was significantly greater than that level of functioning he presented with in medical examinations.
133 In considering the credit of the plaintiff, I must consider the evidence as a whole. Overall, I accept the plaintiff was prone to exaggeration, which I take into account in assessing the evidence as a whole. Although there were medical reports which mentioned the plaintiff’s unusual behaviour, medical witnesses nonetheless assessed his complaint in connection with his work. As a result, I will be particularly influenced by the independent evidence of the medical witnesses.
Analysis of the evidence
The physical injury
134 All medical witnesses accepted the plaintiff suffered a work-related injury. The injury was variously described as:
(a) a right lateral disc herniation encroaching on the right L4 nerve root exit foramen and a central and right paracentral disc herniation encroaching on the right S1 nerve root recess. In addition, he had muscle strain of the upper back and shoulder with right paracentral C5-6 disc protrusion.[44]
[44]Dr Pathak
(b) a L5-S1 intervertebral disc prolapse and aggravation of lumbar spondylosis which resulted in low-back pain and bilateral leg pain. In addition, a C5-6 intervertebral disc prolapse with neck pain and right arm pain.[45]
[45]Professor Bittar
(c) an aggravation of pre-existing largely asymptomatic degenerative intervertebral disc disease and spondylosis in the lumbar and cervical spine, particularly with a disc prolapse at L5-S1.[46]
[46]Professor Myers
(d) a lumbar intervertebral disc prolapse which is at the lumbosacral level.[47]
[47]Mr Weaver
(e) a lumbosacral disc prolapse with symptoms but no signs of radiculopathy. In relation to the neck, the plaintiff suffered an aggravation of a pre-existing cervical disc degeneration, the effects of which aggravation had ceased.[48]
[48]Mr Shannon
(f) physical neck and back symptoms causing pain in the region due to age-related constitutional degenerative spinal disc disease in both cervical and lumbosacral regions of a multi-level nature.[49]
(g) chronic low-back pain and leg pain due to degenerative disease of the lumbosacral spine which was temporarily aggravated by a soft-tissue injury at work.[50]
[49]Mr Kendall-Francis
[50]Mr Stuart
135 Overall, the medical evidence was that the plaintiff suffered an aggravation of the lumbar spine with a disc prolapse, and a C5-6 disc protrusion.
136 In determining the application, I must make the assessment of “serious injury” at the time the application is heard. Accordingly, I rely upon the current medical evidence of Dr Pathak, Professor Bittar, Professor Myers and Mr Shannon.
137 The plaintiff’s evidence was that in October 1998, when working with his employer, Joshua Pitt Pty Ltd, he experienced onset of lower back pain and sustained an injury to his lower back. His injury was treated by his general practitioner, Dr Pathak, with medication, physiotherapy and time off work.
138 Dr Pathak was aware of the plaintiff’s work injury in 1998 and confirmed that in 2003, the plaintiff complained of back pain. A CT scan was performed, which showed degenerative changes. In 2003, the plaintiff was given a medical certificate for three months, which he conceded was a significant period to be off work. Following the injury in 2003, Dr Pathak did not treat the plaintiff for back pain until 2009, save and except that the plaintiff consulted him in the interim, following a motor vehicle accident, complaining of back pain. Dr Pathak said the injury of July 2009 was an acute aggravation of a pre-existing condition in regard to the plaintiff’s lumbar spine and a fresh injury of the C5 disc related to the injury of July 2009.
139 Professor Bittar obtained a history of an episode of lower back pain which occurred following an injury at work with his previous employer in October 1998. He said the injury was treated with medication and physiotherapy and the plaintiff made a full recovery. Professor Bittar did not have access to investigations prior to August 2009. In that respect, I consider his report is limited.
140 Professor Myers did not refer to the plaintiff’s past medical history, but he was provided with the report of Mr Weaver, who detailed the plaintiff’s history, and the report of Mr Stuart, who provided a summary of investigations both before and after the 2009 incident. I infer that he was aware of the plaintiff’s history of low-back pain.
141 Mr Shannon was aware of the plaintiff’s injury in 1998, that he was off work for two to three weeks, returned to light duties and did not resume normal duties. He was aware that the plaintiff was essentially out of the workforce until he commenced employment with the defendant in 2006.
142 On the basis of the evidence of Dr Pathak, Professor Myers, Mr Shannon and Professor Bittar, I accept the plaintiff’s work injury of July 2009 produced an aggravation or exacerbation to the plaintiff’s pre-existing degenerative disease in the spine. In Transport Accident Commission v Zepic,[51] it was accepted that the spine as a whole is one body function.
[51]Supra
Aggravation injury
143 In respect of an aggravation to a pre-existing condition, Southwell and Teague JJA, in Petkovski v Galletti,[52] said that the task of the Court is to analyse the extent of the impairment of the body function before and after the relevant injury. The Court said:
“… a comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of the additional impairment … .”[53]
[52] [1994] 1 VR 436
[53](Supra) at 443
144 Where the injury for which compensation is claimed is an aggravation injury, the additional impairment must, itself, involve a permanent serious impairment or loss of body function.
145 Accordingly, I must consider what the evidence discloses as to the plaintiff’s condition prior to 2009, and determine whether the additional impairment resulting from the work injury was “serious”.
146 The plaintiff’s evidence was that in about October 1998, and during the course of his employment with Joshua Pitt Pty Ltd, he experienced an onset of lower back pain and sustained an injury to his lower back for which he received compensation. He was treated by his general practitioner, with medication and physiotherapy and had time off work.
147 In 2003, his general practitioner said the plaintiff complained of low-back pain, radiating down both legs with limited spinal movements. A CT scan was organised which reported degenerative changes and disc herniation at L4-5 and L5-S1 encroaching upon the spinal theca. He provided a medical certificate stating the plaintiff was unfit for work for three months because of low-back pain, disc herniation at L4-5 and L5-S1 encroaching upon the thecal spine. In his experience, it would be a significant event that caused somebody to be unfit for work for three months. To his knowledge, after 2003, the plaintiff did not have ongoing problems with his low back until 2009.
148 The evidence of the plaintiff and Dr Pathak was that in the past, the plaintiff experienced low-back pain in 1998 for which he received treatment, was off work and returned to light duties. In 2003, the plaintiff complained of low-back pain, and was off work for three months. Dr Pathak did not treat the plaintiff for low-back pain until 2009, apart from the plaintiff reporting low-back pain as a result of a transport accident in 2004 for which he received minimal treatment. I accept that the transport accident produced temporary consequences from the plaintiff’s spine, which was limited to two attendances with his general practitioner.
149 The evidence of the plaintiff was that he commenced full-time work with the defendant in October 2006 as a truck driver. His work involved him loading and unloading boxes from trucks onto trolleys and delivering goods to customers. The work was heavy and strenuous manual work.
150 Accordingly, on a Petkovski v Galletti[54] analysis, the impairment extent of the spine is referrable to the work with the defendant.
[54]Supra
151 The Court must examine the consequences of a physical impairment in the separate context of:
(a) pain and suffering; and
b) loss of earning capacity.
152 Accordingly, it is appropriate for me to look first at the various tests for loss of earning capacity which must be satisfied by the plaintiff in respect to the spinal injury.
Loss of earning capacity
The narrative test
153 If the plaintiff satisfies the test laid down by the Act, then he is at large to make a claim for damages; that is, for both pain and suffering and loss of earning capacity.[55]
[55]Advanced Wire & Cable Pty Ltd & Anor v Abdulle (supra), at paragraph [63]
154 In respect of loss of earning capacity, it is necessary for me to consider the plaintiff as at the present time. As I have previously indicated, I am more influenced by the up-to-date reports and evidence of Dr Pathak, Professor Bittar, Professor Myers and Mr Shannon.
· Dr Pathak’s evidence was that the plaintiff is incapacitated for any employment due to the physical injury. In the presence of the symptoms of his spine, he is unable to work.[56] While Dr Pathak did not say this was for the foreseeable future, given the plaintiff has suffered symptoms for six years, and there is no suggestion of improvement from any of the doctors, I consider the work restriction is likely to be for the foreseeable future.
[56]T74, 17-21
· Professor Bittar said the plaintiff did not have a current capacity for full-time unrestricted pre-injury employment, nor did he have a capacity for restricted or modified pre-injury employment. He thought he had no realistic capacity for suitable employment.
· Professor Myers said the plaintiff had no capacity for full-time unrestricted pre-injury employment, nor did he have any capacity for restricted or modified pre-injury employment. He said the plaintiff had no capacity for any form of employment at the present time due to ongoing disability in the spine, and the effects of medication.
· Mr Shannon said the plaintiff did not have a capacity for employment as a truck driver or any other heavy physical work. He noted the plaintiff had limited English skills.
155 The plaintiff’s evidence was he attended university in Syria, where he obtained a degree in agriculture. He then travelled to Moscow, where he stayed for approximately three years, studied the Russian language and undertook casual labour jobs. He migrated to Australia in 1996. He obtained employment with Joshua Pitt Pty Ltd, and in about December 2000, he returned to Syria, where he remained for approximately one year. Upon returning to Melbourne, he undertook a bee-keeping course and studied English at Epping TAFE. He worked as a bee-keeper on a casual basis. In October 2006, he commenced full-time employment with the defendant as a truck driver. I accept the plaintiff’s employment since being in Australia has involved manual work. There was no vocational assessment provided.
156 Given the evidence of Dr Pathak, Professor Bittar, Professor Myers and Mr Shannon, the fact that the plaintiff has been out of employment for almost six years, and based on my impression of the plaintiff’s presentation in Court, I consider the plaintiff does not have the capacity to return to work for the foreseeable future.
157 The plaintiff’s evidence was that he misses work; he wants to return to work. His family supports him financially and he is embarrassed and ashamed of this fact. He is now is unable to provide for them.
158 I accept the plaintiff can no longer work in pre-injury employment. He has few transferrable skills. Given his age of forty-nine years, the fact that he cannot return to pre-injury employment represents a significant loss to the plaintiff, both with respect to his enjoyment of life and self-esteem. I am satisfied that the plaintiff’s impairment is permanent, given the medical evidence, and that it has continued since 2009.
159 I am satisfied it is fair to describe the consequences of this plaintiff’s loss of earning capacity as being “more than significant or marked” and properly described as “very considerable” when judged by a comparison with other cases in the range. The plaintiff therefore satisfies the narrative test.
160 In reaching the finding, I have made a comparison with other cases in the range of possible impairments. No element of the mental component is taken into account in this assessment; indeed, the mental component is required to be excluded by s134AB(38)(h) of the Act.
161 In addition to satisfying the narrative test for loss of earning capacity, the plaintiff must also satisfy the statutory test for loss of earning capacity.
162 Given the medical evidence and that the plaintiff’s injury has continued since 2009, I find that the plaintiff is effectively excluded from any suitable employment as a result of the injury to his spine as a whole and the consequences flowing from that. Accordingly, there is no need to enter into an analysis of wage rates. I do not accept the plaintiff has any residual work capacity, when the medical restrictions placed on him by the medical witnesses are looked at in the context of the real commercial world. The plaintiff has not been offered re-training. The plaintiff’s English is poor. Accordingly, I am satisfied the plaintiff will continue permanently to have a loss of earning capacity which will be productive of a financial loss of 40 per cent or more.
163 In view of the matters I have described, the plaintiff has discharged the onus with respect to his impairment of the spine regarding his loss of earning capacity.
164 I grant leave to bring to proceedings for pecuniary loss damages.
165 In accordance with Advanced Wire & Cable Pty Ltd & Abdulle,[57] it follows I grant leave to bring proceedings for pain and suffering damages.
[57]Supra
166 Having made these findings, it is not necessary for me to further consider this plaintiff’s claim in respect of severe mental or permanent severe behavioural disturbance or disorder.[58]
[58]See Georgopoulos v Silaforts Painting Pty Ltd & Ors (2012) VSCA 179
167 Accordingly, I will make an order that the plaintiff be granted leave to issue proceedings at common law for pain and suffering damages and economic loss. I accept that the plaintiff’s employment was a cause of the plaintiff’s condition.
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