Kollaris v Queensland Property Investments Pty Ltd
[2015] VCC 559
•12 May 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-13-06044
| CHRISTOS KOLLARIS | Plaintiff |
| v | |
| QUEENSLAND PROPERTY INVESTMENTS PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE SACCARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 and 28 April 2015 | |
DATE OF JUDGMENT: | 12 May 2015 | |
CASE MAY BE CITED AS: | Kollaris v Queensland Property Investments Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 559 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the cervical spine – impairment of function of the neck and shoulders – major depressive condition – pain and suffering and pecuniary loss damages
Legislation Cited: Accident Compensation Act 1985, s135(17)(a) and s135(17)(c)
Cases Cited:Davies v Nilsen & Transport Accident Commission [2014] VSCA 278; Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125; Tabet v Gett (2010) 240 CLR 537; Roads and Traffic Authority v Royal & Anor (2008) 245 ALR 653
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell QC with Ms M Pilipasidis | Maurice Blackburn |
| For the Defendant | Mr J M Forbes QC with Mr M J Hooper | Sparke Helmore |
HIS HONOUR:
1 In this proceeding, the plaintiff seeks leave to commence a proceeding claiming damages for the pain and suffering and pecuniary loss consequences associated with injuries sustained by him in the course of his employment with the defendant.
2 In the proceeding, the plaintiff asserts that:
· He has suffered an injury to his cervical spine resulting in an impairment of function of his neck and shoulders which in itself constitutes a serious injury as defined under the definition of “serious injury” in s135(17)(a) of the Accident Compensation Act 1985 (“the Act”);
· He has developed a major depressive condition which in itself constitutes a serious injury as defined under the definition of serious injury in s135(17)(c) of the Act.
3 In the proceeding, the plaintiff relies upon two affidavits sworn by him on 18 July 2013 and 13 April 2015 respectively. In addition, the plaintiff gave viva voce evidence and was cross-examined. Otherwise, the parties rely upon medical reports and like documents tendered by them.
4 The plaintiff’s affidavits and his viva voce evidence are a matter of record and speak for themselves. I do not propose to set out that material in the course of my Reasons other than where it is necessary to give context to those Reasons. That having been said, it is appropriate to set out the following evidence as detailed in the plaintiff’s affidavits:
(a)In his first affidavit, the plaintiff said he had suffered an injury to his cervical and lumbar spine in the workplace incident which occurred on 7 May 2010, as the result of which he was absent from work for several days, finally being cleared to return to his pre-injury duties on 28 May 2010. The plaintiff described those duties as involving physically demanding activities which required him to repeatedly bend, lift, twist and carry heavy cartons of stock. The plaintiff said that, having returned to work, he continued to experience pain and restriction of the movement in his neck and shoulders and lower back from time to time, and that in October 2011:
“… I experienced increasing pain in my neck, shoulders and lower back together with headaches, dizziness and ringing in my ears. I was unable to continue working and I ceased work as the result of my work-related injuries.”[1]
[1]Plaintiff’s Court Book (“PCB) 25
(b) In his first affidavit the plaintiff described consulting Dr Nettleton, a general practitioner, in 2011 for treatment of his workplace injuries. He said that he was referred for investigation and treatment of symptoms of dizziness and ringing in his ears and that he consulted a number of medical practitioners with respect to these symptoms. He said that he had suffered from ongoing pain in his neck, shoulders and spine since the May 2010 incident together with severe anxiety attacks and like symptoms which impair his ability to concentrate and function generally.
(c) In his second affidavit, the plaintiff described the continuing presence of neck, back pain and headaches, which symptoms impose significant restrictions upon his capacity for activity in general. He said that he was isolated and depressed and that he suffered from mood swings and panic attacks. He described employing medication in the form of Ativan, 2.5 milligrams; Cymbalta, 600 milligrams, and Epilim, 200 milligrams, the effect of which made him feel dopy and dazed. He said that he remained incapable of returning to his pre-injury employment or any other work.
(d) For the reasons which I will develop below, I am satisfied that the determination of this application largely involves the resolution of the issue raised by Dr Anthony Sheehan, a psychiatrist, who examined the plaintiff on behalf of the defendant in February 2012 and opined that the plaintiff presented at that time with an Adjustment Disorder, the severity of which was such that the plaintiff had no current work capacity, and commented:
“… If his neck pain and headaches are seen as work related, then his adjustment disorder would also be seen as work related. If his neck pain symptoms and headaches are not seen as work related, then the adjustment disorder also would not be viewed as work related. … .”[2]
[2]Defendant’s Court Book (“DCB”) 19
5 There is no issue that the following timeline applies in this instance:
·In 2004, the plaintiff instituted a WorkCover claim as the result of being punched in the face by a fellow worker which was the subject of a conciliation undertaken on 23 October 2004.
·In October 2009, the plaintiff suffered an injury at work when he was struck by a 40-kilogram box which fell onto his chest. As the result of each of these injuries, the plaintiff received medical treatment, was prescribed prescription-strength pain medication, missed short periods from work and then returned to his previous duties.
·7 May 2010 – the subject accident.
·7 May 2010 – the plaintiff files an Incident Report as to the accident.
·7 May 2010 - 28 May 2010 – the plaintiff is treated at the Campbellfield Medical Centre with respect to cervical neck and shoulder pain.
·10 May 2010 – the plaintiff commences physiotherapy in respect of upper cervical pain and back pain.
·28 May 2010 – the plaintiff is certified as fit to return to pre-injury unrestricted duties subject to his duties being rotated.
·11 June 2010 – the plaintiff last consults his physiotherapist for treatment of spinal symptoms.
·28 August 2010 – the plaintiff attends the Mill Park Super Clinic with symptoms of a sore throat. The plaintiff does not report the presence of any spinal symptoms.
·2 October 2010 – the plaintiff attends the Mill Park Super Clinic with symptoms of a sore throat. The plaintiff does not report the presence of any spinal symptoms.
·16 July 2011 – the plaintiff attends the Mill Park Super Clinic describing the presence of generalised body ache associated with his work which involved lifting and bending, and obtained a medical certificate for one day.
·10 September 2011 – the plaintiff attends the Mill Park Super Clinic with symptoms of a runny nose and a mild temperature. The plaintiff does not report the presence of any spinal pain.
·29 October 2011 – the plaintiff attends the Mill Park Super Clinic complaining of ringing in his ears and makes no complaint as to the presence of spinal pain.
·31 October 2011 - this is the last day the plaintiff works for the defendant.
·14 November 2011 – the plaintiff attends the Mill Park Super Clinic complaining of dizziness and ringing in his ears which have been present for two weeks. He makes no complaint of the presence of spinal pain.
·26 November 2011 – the plaintiff attends the Mill Park Super Clinic complaining of tinnitus in both ears. He makes no report of the presence of spinal pain.
·On a date identified by Dr Mark Rogers, general practitioner, as being late November 2011, the plaintiff reports to Dr Rogers that he had sprained his neck in a workplace accident in May 2010 and that he had suffered severe ongoing neck pain and disability ever since.
·21 December 2011 – the plaintiff reports to Dr D Mouratides, a psychiatrist, that since an incident which involved a pallet transporter that occurred on 7 May 2010, he had experienced cervical pain radiating into his shoulders, as well as occipital headache; that whilst he had returned to work, the pain persisted and with time had increased; that he was forced to leave work on 21 October 2011 because the pain and the buzzing in his ears were unbearable; that he was, at that time, suffering from cervical pain which radiated to the back of his head and into his shoulder.
·16 January 2012 – the plaintiff lodges with the defendant a WorkCover claim with respect to the 7 May 2011 accident.
6 It is essentially the defendant’s position that the plaintiff’s failure to complain to any doctor or to seek any treatment for the injury which he suffered in May 2010 in respect of a condition which he asserts caused ongoing symptoms, when considered in the context of the fact that:
(i)Within three weeks of the 7 May 2011 incident, the plaintiff returned to full-time and normal duties with the defendant which he continued to undertake until he ceased work with the defendant in October 2011;
(ii)The plaintiff attended various medical practitioners during the period between 28 May 2010 and late November 2011 to whom he reported the presence of various symptoms, none of which included the presence of spinal pain associated with his May 2010 injury;
(iii)The plaintiff presented to the Mill Park Super Clinic on 17 July 2011 and reported the presence of body aches associated with his work, at which time he was reporting the presence of generalised body ache associated with his work which involved lifting and bending such that he was unable to present to work on that day
speak unequivocally against the plaintiff’s assertion that he failed to make an uneventful recovery from the injury he suffered on 7 May 2011 and, accordingly, that the plaintiff’s evidence that he continued to experience neck pain, shoulder pain and headache during this period should be rejected.
7 Whilst the defendant’s position in this respect appears compelling, it is clear that in deciding the issue as to causation which arises in this instance, I must do so taking into account all the relevant evidence.[3] In that process, the approach which I should adopt was succinctly described by the Court of Appeal in Transport Industries Insurance Co Ltd v Longmuir,[4] wherein Tadgell JA stated:
“… The evidence is to be evaluated as a whole in order fairly to consider whether the party bearing the onus of proof has established what is ultimately sought to be proved. The object of the exercise of evaluation is to discover whether the evidence paints a picture reflecting real life, rather than to place a tick or a cross against paragraph after paragraph of torpid pleading. A true picture is to be derived from an accumulation of detail. The overall effect of the detailed picture can sometimes be best appreciated by standing back and viewing it from a distance, making an informed, considered, qualitative appreciation of the whole. The overall effect of the detail is not necessarily the same as the sum total of the individual details. … .”[5]
[3]See Davies v Nilsen & Transport Accident Commission [2014] VSCA 278 ( 7 November 2014)
[4][1997] 1 VR 125
[5](supra) at 141
8 In considering the issue of causation, I also bear in mind the fact that the analysis which is to be applied in determining whether causation has been established to the requisite legal standard, may well be different to that applied by a medical practitioner when considering causation in a medical setting, where immediate attention may be focussed upon an obvious precipitating cause and not events which materially contributed to the eventual outcome to a greater or lesser degree.
9 My approach to the analysis required on the issue of causation which arises in this case is guided by the following authoritative statements:
10 In Tabet v Gett,[6] Kiefel JJ observed:
“The common law requires proof, by the person seeking compensation, that the negligent act or omission caused the loss or injury constituting the damage. All that is necessary is that, according to the course of common experience, the more probable inference appearing from the evidence is that a defendant’s negligence caused the injury or harm. ‘More probable’ means no more than that, upon a balance of probabilities, such an inference might reasonably be considered to have some greater degree of likelihood; it does not require certainty.”[7]
[6](2010) 240 CLR 537
[7](supra) at paragraph 111
11 In Roads and Traffic Authority v Royal & Anor,[8] the Court listed the common law principles which governed decisions on contested issues of causation in relation to claims framed in negligence insofar as they are relevant to the present proceeding, as follows:
[8](2008) 245 ALR 653
“… causation is essentially a question of fact. … the decision-maker must reach a conclusion by the application to the entirety of the evidence of common sense and the lessons of common experience. ….”[9]
“… the burden of proving causation-in-fact …, is on the claimant. The standard of proof that must be met is the balance of probabilities. ….”[10]
“… whilst the ‘but for’ test may be useful in defining the outer limits of liability where causation is contested, it is ‘not a comprehensive and exclusive criterion, and the results which are yielded by its application properly may be tempered by the making of value judgments and the infusion of policy considerations’. … .”[11]
“… where …, several acts or omissions on the part of contesting parties are alleged to be causes-in-fact of a claimant's damage, the resolution of the contest presents a question of fact that is itself to be decided by reference to the following considerations. The search is not necessarily for ‘the’ cause because, in some cases, two or more factors may be found to have contributed in a legally relevant way to the damage that occasions the action.”[12]
“If … a conclusion is reached that two or more causes have played a part in causing the damage, legal liability will attach so long as a nominated cause is held to have ‘materially contributed’ to that result … .”[13]
“If the defendant’s breach has materially contributed to the loss or damage suffered, it will be regarded as a cause of the loss or damage, despite other factors or conditions having played an even more significant role in producing the loss and damage.”[14]
“… the way in which individual decision-makers ought to reason to their conclusions about contested issues of causation-in-fact cannot be expressed in terms of imperative rules of universal application. As with most legal reasoning, several considerations will typically combine to bring the mind of the decision-maker to his or her conclusion about the preferable view of the facts. … .”[15]
[9]at 674, paragraph 81
[10]Paragraph 82
[11]Paragraph 83
[12]Paragraph 83
[13]Paragraph 85
[14]Paragraph 85
[15]Paragraph 88
12 The plaintiff, both in his affidavit evidence and his sworn evidence, maintained the position that throughout the fourteen-odd months between his May 2010 accident and his presentation to Dr Rogers in November 2011, he continued to suffer from symptoms in his neck, shoulder and back.
13 In the course of his evidence, the plaintiff said that he had not sought treatment with respect to his symptoms because, having reported the presence of the symptoms in June to Ms Toni Massoli, the defendant’s WorkCover officer, he was told by Ms Massoli:
· that he had only suffered a muscle injury; and
· that he should not make a WorkCover claim
and for that reason the plaintiff kept working.
14 The plaintiff said that he thereafter kept working without complaint because he was concerned about his financial situation given that his wife was unwell, that he had to support his wife and two children and that he was concerned about his mortgage.
15 The plaintiff was asked:
Q:“Why were you going to the doctor for those things but not mentioning your neck problems?---
A:I mentioned my neck problems to Toni, she is the only one that would approve the WorkCover there, so if she didn’t’ approve it, what could I do?
Q:If you had - - -
A:If I had an approval from her I would have gone on WorkCover from the date I got injured.
Q:If you had gone to a doctor during the 16 month odd period and got a medical certificate and brought it to work what was your understanding as to what would have happened?---
A:I thought I would get the sack or something, they would make me redundant because they don’t like injured workers in the warehouse.”
16 The primary issue for me in this application is whether I should accept the plaintiff’s evidence as to the fact that he had ongoing symptoms and his explanation for his failure to report the presence of his symptoms to the doctors he consulted between May 2010 and November 2011. It was conceded by Mr Mighell QC, on behalf of the plaintiff, that should I not accept the plaintiff’s evidence on this issue, this application must fail.
17 In considering this issue, I am satisfied that I should first consider:
· the evidence as to the circumstances of the collision; and
· the medical evidence
in order to determine whether there is evidence which, if accepted, would support the position that the plaintiff in the accident sustained an injury sufficient to cause symptoms in his spine and shoulders which were more than just transient and which may have persisted during the period alleged by the plaintiff.
18 As to the circumstances of the collision and the forces to which the plaintiff’s body was exposed, I note the history given by the plaintiff on 10 May 2010 as to the severity of the collision at PCB 65. No issue was taken by the defendant as to this evidence and I accept it. In the circumstances, I am satisfied the nature of the collision was such that it most probably exposed the plaintiff to considerable forces and jerking movements which in turn, had the potential of causing him to suffer more than a mere transient injury.
19 As to the medical evidence, I am satisfied that evidence does exist which supports the position that the plaintiff in the accident may have sustained an injury sufficient to cause symptoms in his spine and shoulders which were more than just transient and which may have persisted during the period alleged by the plaintiff. I make this finding on the basis of the various diagnoses by Mr Iain Kelman, consultant orthopaedic surgeon, at PCB 62, paragraph 3.2; Dr Mark Rogers, general practitioner, at PCB 35; Professor Richard Bittar, consultant neurosurgeon, at PCB 112 and Dr Joseph Slesenger, specialist occupational physician, at PCB 114-121.
20 These reports, considered in the context of circumstances of the collision, satisfy me that the accident of 7 May 2010 had the potential of:
· occasioning to the plaintiff a whiplash-type injury to his spine which involved an aggravation of his pre-existing pathology in his cervical spine
· causing the plaintiff to suffer from continuing symptoms of the type about which the plaintiff gave evidence and had complained to Ms Massoli.
21 The defendant takes issue with the plaintiff’s reliability as a witness in this instance and points to:
· Occasional vague and non-responsive answers given by the plaintiff in the course of his cross-examination.[16]
[16]See paragraph 3 of the outline of submissions of the defendant
· Inconsistencies in the plaintiff’s evidence as to whether there was any improvement in his symptoms associated with the physiotherapy treatment which he underwent. (The plaintiff’s position that there was no real improvement being in contrast with the medical record of the physiotherapist to suggest otherwise.)
· The medical report of Associate Professor Owen B White, neurologist, dated 17 August 2012 in which Professor White, in the course of his history, comments:
“It would seem that his pain subsequently settled and was absent until October 2011 when he developed further pain in the left side of the cervical spine in the absence of any significant provocative events, at work or elsewhere. The pain was unremitting and was associated with pain towards the shoulder and up into the occipital region.”[17]
[17]DCB 88
22 As to this history recorded by Professor White, I accord it little weight given:
· the care which should be applied generally in relying upon untested medical notations; and more particularly
· the fact that it is inconsistent with every history provided by the plaintiff to medical practitioners to whom the plaintiff has presented since he first presented to Dr Rogers in November 2011.
23 At its highest, I am satisfied that whilst the history recorded by Professor White may attest to the plaintiff’s unreliability as an historian on this issue at the time at which he consulted Professor White, this disparity in the plaintiff’s history should not be accorded any significant weight in my decision making.
24 As to the other matters raised by the defendant in pressing its position that the plaintiff was an unreliable witness, I am satisfied that:
· notwithstanding the impression I formed of the plaintiff as he gave evidence, namely that he was an unsophisticated man who was obsessed with his medical condition who at times had a tendency towards being an advocate for his cause; and
· putting aside the issue as to whether I accept the plaintiff’s evidence as to his history of ongoing symptoms;
when account is taken of the fact that the plaintiff presents with a mental illness and that he had to cope with cross-examination centred around an incident which had occurred five years ago, and an allegation that he had invented a history of the presence of ongoing symptoms,[18] the plaintiff presented as a largely reliable witness.
[18]In making this statement it is appropriate that I make it clear that I have no criticism whatsoever as to the way Ms Forbes QC conducted the case on behalf of the defendant. To the contrary, as I commented to Senior Counsel at the conclusion of the matter, the case was managed in the manner expected of Senior Counsel.
25 Further, again putting aside the issue as to whether I accept the plaintiff’s evidence as to his history of ongoing symptoms, I am satisfied that no real issue arose as to the plaintiff’s credit either in the course of:
· the plaintiff’s cross-examination; or
· the medical examinations conducted in this matter.
26 To the contrary, the plaintiff’s history of returning to work after having been the victim of two previous workplace accidents (the description of each of which suggesting that they both would have involved not insignificant trauma), attests, in my opinion, significantly to the plaintiff’s credit as a worker possessing some tolerance for adversity. It is also supportive of the plaintiff’s evidence that he valued his employment with the defendant and that the maintenance of that employment was important to him.
27 Whilst it is the defendant’s position that the report of Dr Nettleton should carry some weight upon the issue as to causation in this instance, I have little confidence in that report for the following reasons:
(i)Firstly, Dr Nettleton asserts that the plaintiff made no mention that he had suffered an injury to his neck and shoulders in a work incident which occurred on 7 May 2010 until he presented at his surgery on 16 December 2011. To the contrary, it is clear that the plaintiff had reported the occurrence of the incidence to Dr Nettleton a month earlier,[19] at which time the plaintiff had most probably provided Dr Nettleton with a copy of the incident report form and his WorkCover certificates of capacity issued on 10 May, 18 May and 28 May 2010.[20]
(ii)Secondly, having regard to the fact that by late November 2011, the plaintiff was reporting to Dr Rogers that he was suffering from significant symptoms in his neck and shoulders and that he was making similar complaints to Dr Mouratides when he consulted her on 21 December 2011, I find it unlikely that the plaintiff would fail to mention the presence of those symptoms on 16 December 2010 when he consulted Dr Nettleton. For this reason, I accept the plaintiff’s evidence that he did so, and that Dr Nettleton failed to note the complaint or to follow it up.
(iii)Finally, I do not interpret the comment by Dr Nettleton in the penultimate paragraph of his report dated 29 November 2013 to be a comment directed to whether the accident of 7 May 2010 caused any injury to the plaintiff’s cervical spine or shoulders.
[19]See the note in the medical record by Dr Nettleton of 9 November 2011 at DCB 94
[20]See the entry in the medical record at DCB 84 and the comments made by Dr Nettleton in the fourth paragraph of his report dated 29 November 2013. I interpret this entry as referring to an earlier consultation than that of 16 December 2010, namely that of 9 November 2011 when the transport incident was first recorded by Dr Nettleton.
28 In my opinion, the history provided by the plaintiff to Dr Mouratides in December 2011, which she recorded as follows:
“Mr Kollaris said that on 7-5-2010, he had been driving a pallet transporter at work, when his pallet transporter was struck from behind by another pallet transporter, whose driver had not seen him. Mr Kollaris said that since that time he had experienced cervical pain which radiated to his shoulders as well as occipital headache. He was treated with muscle relaxants and physio and returned to work but the pain persisted and with time increased. Mr Kollaris said that he was forced to leave work on 21-10-11, because the pain + the buzzing in his ears were unbearable … .”[21]
is of critical importance upon the issue as to whether I should accept the evidence by the plaintiff that he had continuing symptoms from the injury to his cervical spine but sought no treatment for those symptoms by reason of the discussion he had with Ms Massoli.
[21]PCB 48
29 The history given by the plaintiff to Dr Mouratides that he had used his sick leave and his annual leave between the date he ceased work in October 2011 and his presentation to Dr Mouratides because he hoped to recover from his condition, in circumstances which the plaintiff had a belief that all of his symptoms may be somehow related to his 2010 accident, is clearly consistent with the approach which would be employed by someone who was motivated primarily to maintain his job and to not prejudice his job security by commencing a claim which was controversial.
30 When account is taken of the fact that the plaintiff ceased work on 31 October 2011, but delayed instituting a claim for compensation until 16 January 2012, I am satisfied that the plaintiff’s actions in this regard are consistent with and supportive of the accuracy of the statement made by the plaintiff to Dr Mouratides that it was his intention to employ sick leave and annual leave in an attempt to recover. In turn, I interpret that statement as being consistent with the plaintiff’s evidence that he had a financial need to work and that he wished to retain his employment.
31 When considered in this context, and in the context of the plaintiff’s evidence:
· that he was told that a WorkCover claim would not be accepted with respect to the injury sustained in May 2010 because he had suffered only a muscular injury: and
· that he believed the production by him of a WorkCover certificate may have compromised the security of his employment;
the failure by the plaintiff to mention to the various medical practitioners he consulted that he was suffering from continuing symptoms of neck and shoulder pain, the severity of which did not prevent him from continuing to work, becomes understandable.
32 In her report of 12 March 2012, Dr Mouratides opined:
“I believe that Mr Kollaris sustained an injury at work on 7-5-10, which did not completely resolve. Mr Kollaris’ condition deteriorated in October 2011, either because the injury was aggravated by work or because he developed an acute ? ear infection/Meniere’s like syndrome. He became extremely anxious + depressed as to the result of the aggravation of his neck pain + the development of buzzing in his ears. He was so distressed that he remortgaged his home to pay for a treatment which would allay his symptoms.”[22]
[22]PCB 51-52
33 In that report, Dr Mouratides records that on 21 December 2011, the plaintiff accompanied his wife to her appointment with Dr Mouratides, at which time the plaintiff presented as an extremely anxious, agitated and dishevelled man who was extremely distressed and depressed, his presentation being so acute that Dr Mouratides saw the plaintiff rather than her patient. The plethora of symptoms with which the plaintiff presented to Dr Mouratides at that time,[23] included weeping, loss of concentration, feelings of hopelessness, social withdrawal and suicidal thoughts, the plaintiff commenting that he felt he would be better off dead as he could not continue like this.
[23]PCB 49
34 This presentation by the plaintiff is, in my opinion, more consistent with the presentation of a man at the end of his tether, namely someone who has been suffering from a symptomatic condition such as that described by the plaintiff as being present in his cervical spine which had been present for a period longer than the condition with which the plaintiff presented to the Bundoora Medical Clinic as described in the records of that clinic on 26 October 2011.[24] In my opinion, this in turn tends to support the plaintiff’s position that he had been struggling with the ongoing symptoms associated with the injury occasioned to his cervical spine in May 2010.[25]
[24]PCB 95
[25] If the plaintiff had not been coping with symptoms of the type described by him to Dr Mouratides of varying levels between May 2010 and October 2011, it would be difficult to imagine why a condition as innocuous as one involving the presence of noise in the right ear and the left ear feeling blocked (see the plaintiff’s presentation to the Bundoora Medical Clinic on 26 October 2011 at DCB 95) would have been responsible for the plaintiff ceasing work some five days earlier.
35 Finally, as to whether I should accept the plaintiff’s evidence, I give due weight that the plaintiff, who I found to be a generally credible witness who gave sworn evidence in the course of which he maintained the position set out in his affidavits.
36 Taking into account the totality of the evidence considered in light of the findings I have made, I am satisfied, notwithstanding the plaintiff’s continued employment in largely unrestricted duties between 28 May 2010 and 31 October 2011, and the plaintiff’s failure to report any symptoms of neck, shoulder or back pain to the various medical practitioners he consulted during that period or seek treatment for such symptoms, that I should accept the plaintiff’s evidence that he was experiencing symptoms of neck, shoulder and back pain during this period and that such symptoms were impacting adversely upon his ability to undertake the duties required of him at work.
37 In the presence of the finding which I have made as to the plaintiff’s ongoing symptoms I go on to consider the medical evidence in the case, some of which becomes irrelevant given the fact that the opinions which have been expressed by a number of medical practitioners who have opined in this matter has been based upon a premise inconsistent with my finding as to the forces involved in May 2010 incident and/or the fact that the plaintiff experienced ongoing symptoms following the incident.
38 In his report of 5 March 2012, Dr J S Pathak, the plaintiff’s treating general practitioner, describes the plaintiff as presenting at that time with neck pain and headaches which were work related, and an associated Adjustment Disorder, which was also work-related. He opined that the plaintiff had no work capacity due to the severity of his psychiatric symptoms, as well as his claimed neck pain and headaches, and that he required ongoing psychiatric treatment. He further opined that the plaintiff’s total incapacity was likely to continue until his psychological state was brought under control and his prognosis was very guarded.
39 In his report of 9 February 2015, Dr Pathak described the plaintiff as presenting with a Complex Regional Pain Syndrome, an Adjustment Disorder and with symptoms generated from his cervical injury. I interpret Dr Pathak, in this report, to be expressing the opinion that the plaintiff’s primary disability arose by reason of his Adjustment Disorder.
40 As at late November 2011, Dr Mark Rogers opined that the plaintiff had suffered a whiplash-type injury to his cervical spine which had caused ongoing severe neck pain which at that stage, continued to render him unfit for work.
41 Professor White, in a report dated 17 August 2012, opined that the plaintiff may well have suffered an aggravation of pre-existing soft-tissue injury and minor degenerative changes in his cervical spine, there being no evidence of pathology that should not have responded to conservative therapy, and on this basis, Professor White opined that the plaintiff presented with a Chronic Pain Syndrome with an Adjustment Disorder. On a purely organic basis, Professor White opined that the plaintiff should be able to undertake physical work with a lifting limit of 5 kilograms and the ability to take a 10-minute break every hour.
42 Dr Joseph Slesenger opined, as at 17 April 2015, that the plaintiff had suffered an injury involving an aggravation of pre-existing degenerative disease of the cervical spine and had subsequently developed a Chronic Pain Disorder and that his physical injuries alone made it unlikely that he would be able to find employment in the open job market.
43 In December 2014, the plaintiff was examined by Professor Richard Bittar, who diagnosed the plaintiff as presenting with an aggravation of cervical spondylosis which resulted in neck pain radiating into his left shoulder. Professor Bittar opined that the injury which the plaintiff had sustained at work in May 2010 remained a significant contributing factor to his ongoing pain and disability and required treatment.
44 In arriving at his diagnosis, Professor Bittar noted the findings of a CT scan examination of the plaintiff’s cervical spine performed on 17 February 2012 which reported the presence of a disc osteophyte complex at C6-7, and opined that the work-related condition in the plaintiff’s cervical spine, when considered separately from any other condition, incapacitated the plaintiff from his pre-injury duties as a storeman on a permanent basis.
45 In his report of 2 March 2015, Dr Gary Davison, consultant occupational physician, opined that it was reasonable to accept that the plaintiff may have suffered a minor soft-tissue strain-type injury in the collision but that his presentation as at March 2015 was associated with the development of a Chronic Pain Syndrome or some other form of disorder, and that his presentation appeared to be dominated by of the presence of non-physical factors.
46 I exclude from my consideration:
· The report of Mr W Max Wearne, orthopaedic surgeon, dated 7 February 2012, whose report appears to be based upon an assumption that the incident of 7 May 2010 involved a low velocity collision of little physical consequence which is inconsistent with my finding.
· The report of Dr Kevin Fraser, rheumatologist, which seems to contain a correct history from the plaintiff as to the circumstances involved in the collision and the presence of continuing symptoms thereafter, but Dr Fraser appears to have based his opinion on the basis that the plaintiff’s continued employment was evidence of the fact that he had no continuing symptoms.
· The opinion of Mr Iain Kelman, who opines that the plaintiff presented with functional symptoms involving voluntary exaggeration, and opines that the plaintiff presented with functional symptoms involving voluntary exaggeration, and opines that the plaintiff’s physical symptoms, whilst stemming from the presence of a degenerative disease in his spine, would have occurred regardless of the incident of 7 May 2010. I find neither of these statements by Mr Kelman to be persuasive as they are generally inconsistent with all the other evidence in the case.
47 I am satisfied that the evidence relevant to the nature of the organic injury suffered by the plaintiff establishes that the plaintiff suffered a soft-tissue injury to his cervical spine which involved an aggravation of pre-existing asymptomatic pathology in the spine. I am further satisfied that that the nature of that injury was sufficient to occasion ongoing symptoms which were such that although they did not incapacitate the plaintiff from performing his work, were nonetheless present.
48 The medical evidence relevant to the plaintiff’s psychiatric state is of relatively short compass.
49 When authoring her report of 12 March 2012, Dr Mouratides opined that the plaintiff had settled significantly since he was first seen in December 2011, from a psychiatric perspective.
50 By 30 March 2013, Dr Mouratides described the plaintiff as presenting in an anxious, depressed and weepy state, and opined:
(i)that he had been taking Lexapro and Ativan with very little effect;
(ii)that his prognosis remained poor in view of his lack response to the treatment; the chronicity of his symptoms; his vicious cycle of pain and depression and his somatisation of depression.
51 In February 2012, Dr Anthony Sheehan, consultant psychiatrist, examined the plaintiff on behalf of the defendant. In his report, he opined that the plaintiff presented with no current work capacity due to the severity of his psychiatric symptoms, commenting:
·“His adjustment disorder appears to have developed secondary to his neck pain and headache symptoms, and may be partially related to alleged ‘death threats’.”[26]
[26]DCB 19
· “If his neck pain symptoms and headaches are not seen as work related then the adjustment disorder also would not be viewed as work related.”[27]
[27]DCB 19
·“… the mental injury has resulted in a total incapacity for work at this time … .
I am unable to determine the duration of the mental injury. This will depend on ongoing psychiatric treatment as well as appropriate treatment for his pain symptoms and headaches. Considering the complexity of his condition, it is quite likely that he will have an ongoing and significant impairment and response to treatment will be slow … .
…
He does have a current total incapacity; however, on the basis of his current symptoms and limited response to treatment, I am unable to determine if this is likely to continue indefinitely. Overall, his prognosis does appear guarded, however, treatment has only recently been commenced and, hopefully, there will be a definite improvement in his condition albeit slow over the next 3-6 months.”[28]
[28]DCB 20
52 In a report dated 18 February 2015, Dr P Thomas, the plaintiff’s current treating psychiatrist, describes the plaintiff as presenting with Major Depression, a Chronic Pain Syndrome and a neck and shoulder injury. He opined that the plaintiff had no capacity for work now or in the future, having regard to the persistence of his depression for the last four years. Although Dr Thomas commented that the plaintiff’s depression was caused by his neck and shoulder injury and his tinnitus, I am satisfied, taking into account the evidence of the three psychiatrists to whom I have referred, that the injury to the plaintiff’s cervical spine sustained in the work-related accident on 7 May 2010 involved a soft-tissue injury in the form of an aggravation of pre-existing asymptomatic cervical spondylosis, which has resulted in neck pain and shoulder pain, which condition has materially contributed to the plaintiff developing the psychiatric condition with which he currently presents.
53 Whilst it is put on behalf of the defendant that the opinion by Dr Thomas would suggest that there is some room for improvement in the plaintiff’s condition, I am satisfied that the comment made by Mr Thomas in paragraph 7 of his report that the plaintiff’s prognosis was poor, when considered in the context of his previous statement that the plaintiff possesses no current capacity for work, now or in the future, involves the expression of a definitive statement as to the permanency of the plaintiff’s incapacity for work.
54 Associate Professor George Mendelson, psychiatrist, who examined the plaintiff in October 2014, expresses a more rosy opinion as to the plaintiff’s capacity for employment than Dr Thomas. When account is taken of the consistency in the plaintiff’s presentation to:
· Dr Sheehan
· Dr Mouratides; and
· Dr Thomas
and the respective assessments and prognoses expressed by these three practitioners, I do not find the opinion of Professor Mendelson to be persuasive. Rather I prefer the opinions of these three medical practitioners as to the plaintiff’s incapacity for work, which in turn I find to be consistent with the plaintiff’s evidence as to the level of activity which he undertakes in the course of his daily life. I am satisfied, on the basis of those opinions, that the plaintiff’s psychiatric illness is such that it incapacitates him presently and permanently from employment.
55 Whilst it is clear that at the time the plaintiff last worked for the defendant he was suffering from a disturbance in his hearing, I am satisfied, for the reasons which I have mentioned, that the plaintiff was also at that time, presenting with symptoms emanating from the injury to his cervical spine.
56 As to the defendant’s position that the plaintiff’s cervical spine is not identified with sufficient particularity by the evidence as being a cause of his psychiatric illness, I do not accept that position. I interpret the psychiatrists who have opined in this instance to be expressing opinions unanimously to the contrary, in that:
· Dr Thomas expressed the opinion that the symptoms emanating by reason of the injury to the plaintiff’s cervical spine were the sole cause of his psychiatric illness.[29]
[29]PCB 59, paragraph 7
· Dr Sheehan expressed an identical opinion to that held by Dr Thomas.[30]
[30]DCB 19, paragraph 4
· I interpret Dr Mouratides as expressing the view that the symptoms emanating by reason of the injury to the plaintiff’s cervical spine made a significant contribution to the cause of his psychiatric illness.[31]
· I interpret Professor Mendelson, whilst disagreeing with the three other psychiatrists upon the issue as to the severity of the plaintiff’s symptoms, as expressing the opinion that the plaintiff’s neck pain was the primary cause of his depressive illness.
[31]PCB 51 and PCB 53-54
57 Taking an overview of the evidence, I am satisfied that the plaintiff’s primary disability at the present time arises by reason of the psychiatric illness which he developed as a consequence of the symptoms he experienced by reason of the injury which the plaintiff suffered to his cervical spine in the May 2010 incident.
58 In making that finding, I rely upon the opinion of Dr Pathak,[32] Dr Gary Davison[33] and the reports of Dr D Mouratides,[34] Dr T Thomas[35] and Dr A Sheehan,[36] each of whom opine that the plaintiff presents primarily with symptoms generated primarily on a non-physical basis.
[32]PCB 40
[33]DCB 48
[34]PCB 47-54
[35]DCB 57-60
[36]DCB 14-22
59 For this reason, I find the opinions expressed by Professor Bittar and Dr Slesenger as to the primary influence of the plaintiff’s organic condition upon his level of capacity for employment not to be persuasive.
60 It follows that I am satisfied that the plaintiff has, by reason of the workplace injury sustained by him on 7 May 2010, suffered a condition which is appropriately described as involving a permanent severe mental or permanent severe behavioural disturbance or disorder, in that the effect of that condition is to preclude the plaintiff for the foreseeable future from returning to gainful employment and accordingly, that the plaintiff is entitled to the leave which he seeks in this proceeding.
61 I will hear the parties as to the form of the order which is to be made in the matter and also upon the issue of costs.
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