Kovacic v Just Jeans Group Pty Ltd
[2013] VCC 1791
•22 November 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-13-00169
| NEDELJKA KOVACIC | Plaintiff |
| v | |
| JUST JEANS GROUP PTY LTD (ACN 004 947 460) | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 and 13 November 2013 | |
DATE OF JUDGMENT: | 22 November 2013 | |
CASE MAY BE CITED AS: | Kovacic v Just Jeans Group Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1791 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Injury to the neck – whether the impairment consequences are “serious” – secondary psychiatric reaction – whether the impairment consequences are “permanent” – whether the impairment consequences are “severe”
Legislation Cited: Accident Compensation Act 1985, s134AB(16)(b) and (38)
Cases Cited:Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170; Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167
Judgment: The plaintiff has leave to bring a proceeding at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Oldfield | Zaparas Lawyers |
| For the Defendant | Ms F Spencer | Herbert Geer |
HIS HONOUR:
1 Before the Court is an application brought by Originating Motion filed 17 January 2013 by which the plaintiff applies for leave pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings to recover damages for injury suffered by her arising out of or in the course of her employment with the defendant.
2 The plaintiff seeks leave to bring such a proceeding for pain and suffering and loss of earning capacity damages.
3 Mr D Oldfield of Counsel appeared for the plaintiff and Ms F Spencer of Counsel appeared for the defendant.
4 The injury suffered by the plaintiff for which leave is sought is an injury to the lower back, and a secondary psychiatric condition.
5 The following evidence was adduced during the hearing:
· The plaintiff gave evidence and was cross-examined;
· Dr Rigby, psychiatrist, gave evidence and was cross-examined;
· The plaintiff tendered her Court Book (“PCB”), pages 1-10 and 34-100: Exhibit A;
· The defendant tendered its Court Book (“DCB”), pages 6-10; 18-72; 85-130, and from the plaintiff's Court Book, pages 101-126: Exhibit 1;
· Extracts from the clinical file of Dr Pjesivac, general practitioner: Exhibit 2;
· Extracts of the clinical notes of Dr Pjesivac: Exhibit 3;
· Report of Mr Barrett, orthopaedic surgeon, dated 16 December 2009: Exhibit 5;
· Assessment by the Dorset Rehabilitation Centre dated 22 June 2010: Exhibit 6;
· Extracts of the clinical notes of Dr Rigby, psychiatrist: Exhibit 7.
6 The application is brought under the definition of “serious injury” contained in ss(37)(a) of the Act which requires the plaintiff to prove that she has suffered a “permanent serious impairment or loss of a body function” and ss(37)(c) of the Act which requires the plaintiff to prove that she has suffered a “permanent severe mental or permanent severe behavioural disturbance or disorder”.
The statutory scheme
7 The relevant considerations which apply to such an application based upon paragraph (a) are as follows:
(a) The plaintiff must prove that she suffered a compensable injury; that is, an injury which she suffered arising out of or in the course of her employment on or after 20 October 1999;[1]
[1]Section 134AB(1); Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622, at paragraph 11
(b) The injury and the impairment must be permanent; that is, permanent in the sense that it is “likely to last for the foreseeable future”;[2]
[2]Barwon Spinners, at paragraph 33
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by ss(19)(a), (19)(b) and (38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity;
(d) Subsection (38)(c) provides that the impairment must have consequences in relation to pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments or losses of a body function, may fairly be described as being more than “significant” or “marked”, and as being at least “very considerable”;
(e) Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently;
(f) Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(g) Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application;
(h) Subsection (38)(b) provides that the consequences of an injury and impairment in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity, it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event;[3] an approach which I intend to follow in the appropriate case;
(i) In conformity with Barwon Spinners, I must identify the injury and the impairment said to be produced in consequence of the injury, whether the impairment is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the “very considerable” test contained in ss(38)(c). I have applied the principles set forth therein in reaching my conclusions in this application.
[3]Advanced Wire & Cable Pty Ltd v Abdulle [2009] VSCA 170
8 The relevant considerations which apply to such an application based upon paragraph (c) are as follows:
(a) The plaintiff must prove that she has suffered a compensable injury, that is, an injury which she suffered arising out of or in the course of her employment on or after 20 October 1999.[4]
[4]Section 134AB(1); Barwon Spinners Pty Ltd & Ors v Podolak (supra)
(b) The injury and the consequences must be permanent, that is, permanent in the sense that it is “likely to last for the foreseeable future”.[5]
[5]Barwon Spinners, at paragraph 33
(c) The plaintiff bears the burden of proof to be determined upon the balance of probabilities, and in addition to the general burden imposed by subsection is (19)(a), (19)(b) and (38)(e), impose a specific burden on the plaintiff in relation to a claim for loss of earning capacity.
(d) Subsection (38)(d) provides that the injury must have consequences in relation to pain and suffering and loss of earning capacity which, when judged with other cases in the range of possible mental or behavioural disturbances or disorders, may fairly be described as being more than “serious to the extent of being severe” .
(e) Subsection (38)(i) provides that the physical consequences of a mental or behavioural disturbance or disorder are to be taken into account only for the purposes of paragraph (c) of the definition of “serious injury” and not otherwise.
(f) Subsection (38)(e) provides that in a claim for loss of earning capacity, that such loss must be to the extent of 40 per cent or more both at the date of hearing and permanently.
(g) Subsection (38)(f) and (g) provide the formula to be applied by which a claim for loss of earning capacity is to be determined.
(h) Subsection (38)(j) provides that the assessment of serious injury is to be made at the time of the hearing of the application.
(i) Subsection (38)(b) provides that the consequences of a mental or behavioural disturbance or disorder in terms of pain and suffering and loss of earning capacity are to be considered separately. Furthermore, if a plaintiff is successful in proving loss of earning capacity, it follows, without the necessity to determine the consequences to that plaintiff in terms of pain and suffering, that the plaintiff is entitled to leave to bring a proceeding for pain and suffering in any event,[6] an approach which I intend to follow in the appropriate case.
(j) In conformity with Barwon Spinners, I must identify the mental or behavioural disturbance or disorder said to be produced in consequence of the injury; whether it is permanent; that is, likely to last for the foreseeable future, and whether the consequences for the plaintiff are such as to satisfy the test contained in ss(38)(d). I have applied the principles set forth therein in reaching my conclusions in this application.
[6]Advanced Wire & Cable Pty Ltd v Abdulle (supra)
The issues
9 Mr Oldfield opened the plaintiff’s case on the basis that the pain and suffering consequences and loss of earning capacity consequences of lower back injuries which occurred on 5 April 2008 and 22 July 2009 are serious, and that the pain and suffering consequences and loss of earning capacity consequences of a secondary psychiatric condition are severe.
10 However, after I engaged in an exchange with Mr Oldfield, he restricted the application to the pain and suffering consequences and the loss of earning capacity consequence of a psychiatric condition which are secondary to a lower back injury which the plaintiff suffered on 22 July 2009. As he was completing his final address, he reopened the application for pain and suffering consequences and loss of earning capacity consequences of a lower back injury which the plaintiff suffered on 22 July 2009. I mean no disrespect to Mr Oldfield, but the submissions were rather token and made in order to hold the plaintiff’s position. I will not write a judgment when a submission is made in that manner where what underwrites the position points to there being no substance to the application.
11 Ms Spencer submitted that the plaintiff must fail because:
· the impairment consequences of the psychiatric condition are contributed to by both the impairment consequences of the lower back injury and the psychiatric condition, requiring disentangling to be undertaken by the plaintiff.
· If disentangling can be successfully undertaken, then the impairment consequences both with respect to pain and suffering consequences and loss of earning capacity consequences do not meet the statutory test for both the injuries to the lower back and the psychiatric condition.
Disentangling
12 I debated the process of reasoning which a trial judge must follow where concurrently there is a physical injury with the impairment consequences and a psychiatric condition with impairment consequences with Ms Spencer. The product of the debate necessitates reviewing the relevant principles of law which suggest that disentangling is required.
13 The issue was dealt with in Jayatilake v Toyota Motor Corporation Australia Ltd[7] by Ashley JA who referred to other Court of Appeal decisions and observed:
[7][2008] VSCA 167
“[20] In Shock Records Pty Ltd & Anor v Matthew James Jones Bell AJA, said (in the context of consideration of the economic consequences of impairment) that,
… we saw that s 134AB(38)(e) required the judge to determine whether Mr Jones’s loss of earning capacity was ‘40 per centum or more’. Taken together with the other elements of the test, this required her Honour to be satisfied that, among other things, Mr Jones’s back injury of itself caused a loss of earning capacity of this degree, which required her to exclude the contribution of the other medical conditions and, of course, the psychiatric or psychological consequences of the back injury.
A judge is quite capable of making such a determination once he or she has reached the point of being properly satisfied that the plaintiff’s injury is enough in itself to cause a loss of earnings capacity of 40 per centum or more. How much disentangling or stripping away is necessary to reach that point will depend upon the circumstances of the given case. If the submissions of counsel for Shock Records mean that, even after reaching that point, a judge still has to identify and quantify all of the other potential causes, I cannot agree with it.
And, in the circumstances of that case, that
as the judge saw it, once the back pain was found to arise from the work injury, it was obvious, because the pain was so severe, that the major contributor to Mr Jones’s loss of earnings capacity was the work injury. Having reached that point, her Honour felt there was no need to quantify the contribution of the other minor causes. No more “disentangling” or ‘stripping away’, to use the words of counsel for Shock Records, needed to be done.
In my respectful opinion, those statements were correct in principle.
[21]I should refer also to certain observations of Redlich JA in Zivolic v Hella Australia Pty Ltd
Although [the judge at first instance] spoke, in the language of Barwon Spinners Pty Ltd & Ors v Podolak, of ‘disentangling’ the relevant injury, it was unnecessary for him to do so in the light of the accepted medical evidence concerning her physical injury which the plaintiff relied upon. Where an application is made under s 134AB of the Act, and the evidence is consistent with the plaintiff having suffered both physical and psychiatric or psychological injury, if the nature of the medical evidence permits the conclusion that the physical consequences of the injury constituted a serious injury, then, notwithstanding the requirements of s 134AB(38)(h), no disentangling or stripping away of psychological or psychiatric consequences may be required. These concepts rest upon the often false assumption that there will be a need to work backwards from the plaintiff's condition as found at trial and which may be the consequence of multiple causes.
The use of such terminology, which is not to be found in the Act, may, as it did in this case, lead the trial Judge to conclude that the plaintiff necessarily had an obligation to demonstrate the nature and extent of the psychiatric or psychological injury, so that it could be excluded when assessing whether the plaintiff had suffered a serious injury within s 134AB(37)(a) or (b). Whether it will be necessary in a particular case for a plaintiff to do so, that is to say, to unravel the plaintiff's condition and exclude the consequences of another contributing cause, will depend upon whether the medical evidence has sufficiently identified the physical consequences of the injury for the plaintiff.
[22] I respectfully agree with what his Honour said … .”[8]
[8]I have deleted the footnotes
14 I have read the exhibits, transcript of the evidence of the plaintiff and Dr Rigby, and I have considered the submissions made by Mr Oldfield and Ms Spencer. I am satisfied that the pain and suffering consequences and loss of earning capacity consequences of the psychiatric condition meet the statutory test. In my analysis of that evidence and those submissions, I have concluded that no so-called disentangling is required.
15 In short, the plaintiff suffered an injury to her lower back on 22 July 2009. It has been diagnosed by a number of medical practitioners from different medical disciplines resulting in different diagnoses. The plaintiff’s psychiatric condition is a secondary psychiatric condition; that is, secondary to the injury to her lower back. A number of psychiatrists have examined the plaintiff and have been able to diagnose the psychiatric condition, and its medical consequences. The two injuries are quite distinct and have not resulted in me having any difficulty approaching the determination of the issues in this application by needing to resort to any so-called disentangling. I have applied the approach referred to in Jayatilake.
The Plaintiff's background
16 The plaintiff was born in 1965 in Croatia. She is a married woman. She has two children, who are in their mid to late twenties. She obtained eight years of primary schooling in Croatia. Subsequently, she did a three-month course in childcare. She then worked in a preschool centre for about twelve years until war broke out in the old Yugoslavia in 1991.
17 The plaintiff arrived in Australia in October 1999. She did a basic English course for about a year. She then obtained work as a machine operator in 2001. She then obtained work with the defendant at its warehouse in Altona North in September 2003.
The first lower back injury
18 The plaintiff was involved in picking and packing orders in her work with the defendant. On 5 April 2008, she was working overtime. One task which she was required to perform involved reaching up with a knife to cut a window into boxes which were on a pallet. The boxes were stacked 2 metres high on the pallet. It was in the course of tilting a box with her right hand and picking out the window she had cut into a box with her left-hand that she felt pain in her lower back.
19 The plaintiff reported the incident. She attended Dr Pjesivac, general practitioner. He prescribed the plaintiff medication. He gave her a certificate to be off work for two weeks. She subsequently returned to work on light duties for about two weeks. She then returned to her normal duties. She continued with those normal duties, noting intermittent back pain.
The second lower back injury
20 On 22 July 2009, the plaintiff was involved in a stocktake. She was replacing a box on a top shelf when she experienced sharp pain in her lower back. On this occasion, the pain was severe and radiated down her left leg.
21 The plaintiff reported the incident. She telephoned her husband and asked him to pick her up. She then attended Dr Pjesivac. He referred her to have a CT scan which was taken on 23 July 2009.[9] He also referred her to Mr Barrett, orthopaedic surgeon. She first saw Mr Barrett on 13 August 2009.
[9]PCB 68
The Plaintiff’s medical treatment
22 Mr Barrett obtained a history from the plaintiff of both the incidents which occurred on 5 April 2008 and 22 July 2009. It was after the incident of 22 July 2009 that the plaintiff told Mr Barrett that she experienced lower back pain radiating into both buttocks, intermittently into both groins, particularly on the left side. She told him that her symptoms were not improving; that the injury to her lower back was aggravated by prolonged sitting and walking; that the symptoms were somewhat eased by using analgesia and lying down, and that her sleep was disturbed.
23 Mr Barrett inspected the CT scan. He referred the plaintiff to have an MRI scan, which was taken on 27 August 2009.[10] He was of the opinion that neither the CT scan nor the MRI scan demonstrated any significant abnormality. He re-examined the plaintiff on six subsequent occasions, the last being on 18 August 2011. He referred her to have a repeat MRI scan on 23 February 2011.[11]
[10]PCB 70
[11]PCB 71
24 On 18 August 2011, Mr Barrett examined the plaintiff. I think it is fair to say that the plaintiff presented as if she were in severe pain. His clinical examination of her demonstrated very significant loss of movement. Despite the foregoing, it would appear that he found no abnormality on clinical examination. He also found no abnormality on inspection of the most recent MRI scan. The upshot of the plaintiff’s presentation and Mr Barrett’s clinical examination of her led him to say the following in his report dated 22 August 2011:[12]
“ Following my now sixth clinical orthopaedic examination of Mrs Kovacic, between the 13th of August 2009 and the 18th of August 2011, she has complained of gross and serious, ongoing symptoms throughout her lumbar spine and lower limbs, followed by apparent inability to move her lumbar spine, to any significant degree, these symptoms and clinical features, in my opinion, represent a considerable exaggeration of her lumbar spinal true condition, and quite out of keeping with the radiological normality of her lumbar spine, revealed at two separate radiological MRI investigations, carried out at Cabrini Hospital, on the 27th August 2009 and the 23rd of February 2011.
In my opinion, no significant genuine orthopaedic lumbar spinal lesion has been detected, to support these ongoing symptoms.”[13]
[12]PCB 40-43
[13]PCB 43
25 Dr Pjesivac ceased treating the plaintiff in around November 2009. She subsequently saw Dr Adrianakis, general practitioner, on 26 November 2009. He has treated the plaintiff since that time. Dr Adrianakis provided two reports, dated 20 February 2012[14] and 23 May 2013.[15] His reports are rather more directed to describing the treatment provided to the plaintiff by a number of specialists to whom he referred the plaintiff. What opinion he has expressed in those reports is very brief and not very edifying.
[14]PCB 35-37
[15]PCB 38-39
26 Dr Adrianakis referred the plaintiff back to Mr Barrett. I have dealt with Mr Barrett’s opinion of the plaintiff’s lower back injury above. Dr Adrianakis also referred the plaintiff to Dr Thomas, consultant in rehabilitation in pain medicine, and later to Dr Blombery, vascular physician.
27 The plaintiff first saw Dr Thomas on 17 March 2010. The plaintiff told Dr Thomas that she had difficulty sitting; difficulty lying on her back; when sleeping would lie on her side; was most comfortable either walking or lying down, and standing and sitting were the most painful positions for her. She described the pain she experienced as like electricity; deep aching; cramping; long-lasting, spasms and that the pain was persistent. She moved constantly to ease her pain.
28 On examination, Dr Thomas found marked allodynia[16] but otherwise found no neurological abnormality. Straight leg raising was painful when she was seated and lying down.
[16]Which is pain due to stimulus which would not normally provoke pain
29 Dr Thomas considered that the plaintiff’s presentation looked to him to be more like a neuropathic type pain phenomena. He commenced her on Cymbalta[17] and Lyrica.[18] The plaintiff’s use of Cymbalta did not improve her pain. Dr Thomas increased her dosage of Lyrica. He referred her to the Dorset Rehabilitation Centre, where she was treated by what appears to be a multidisciplinary team of health providers.[19] Dr Thomas was not convinced that his treatment of the plaintiff and the treatment provided at the Dorset Rehabilitation Centre had improved her situation.
[17]It is used to treat depression, chronic pain disorders and nerve damage
[18]It is used to treat fibromyalgia pain and nerve pain
[19]Exhibit 6
30 Dr Thomas last saw the plaintiff on 20 October 2010. It is clear from his report dated 26 August 2013[20] that he considered that the plaintiff had a pain syndrome with pain in her lower back and pain in her right leg, and less pain in her left leg. At the end of that report, he said that he considered that the condition for which she was treating the plaintiff was consistent with the stated cause. The stated cause was the lower back injury suffered by the plaintiff on 5 April 2008 and 22 July 2009.
[20]PCB 65-67
31 The plaintiff first saw Dr Blombery on 18 April 2011. At that time, the plaintiff was in receipt of prescriptions for Mobic (an anti-inflammatory), Panadeine Forte (a painkiller), Endep (an antidepressant) and Losec to treat stomach complaints resulting from the ingestion of medication. The plaintiff was taking up to eight Panadeine Forte tablets per day. The plaintiff told Dr Blombery that she had ongoing pain in her lower back which radiated into her hips. It was more marked on the left side than the right side. The pain radiated into her groin. She experienced pain in her left leg which was sometimes a shooting pain. She experienced numbness in her left leg below the knee. She said her legs were cold and swollen. She said she was suffering interference with her sleep because of the severity of pain she was experiencing.
32 Dr Blombery reviewed an MRI scan. He noted that there were only minor changes shown on the MRI scan. He concluded that the pain might have arisen from the facet joints and ligaments as well as the discs near the vertebrae. He noted that there was no evidence of nerve root compression or other major surgically treatable lesions. He then made the following observation:
“ She appeared to be somewhat depressed and I thought that she had a component of a pain syndrome present as well, where there is non-specific sensitisation of pain nerve pathways, both in the periphery as well as in the brain and spinal cord, such that non-painful stimuli became interpreted by the cerebral cortex as well as being painful.”[21]
[21]PCB 46
33 Dr Blombery gave the plaintiff a trial of amantadine. He suggested an intravenous lignocaine ketamine infusion. However, the plaintiff did not have that treatment. It would appear that she expressed concern about its potential side-effects. She last saw him on 26 March 2013. At that stage, Dr Blombery had prescribed the plaintiff Topamax (an anticonvulsant) as a treatment for her pain. He noted that the plaintiff was in receipt of prescriptions for other medication to treat pain and her psychiatric condition.
34 Dr Blombery provided two reports, dated 3 December 2011[22] and 30 April 2013.[23] In the second of those reports, he expressed the following opinion:
“Mrs Kovacic has ongoing features of a pain syndrome affecting her lumbosacral spine. This is caused by a combination of the previously asymptomatic degenerative changes in the spine being rendered symptomatic as a consequence of the heavy work that she was doing in the course of her employment, as well as some sensitisation of pain nerve pathways in the affected area.
It is my opinion that her prognosis for recovery at this stage is very poor. She has also developed secondary depression and anxiety which will require ongoing treatment.
Her prognosis for recovery is poor and it is my opinion that there will be no significant change in her level of disability in the foreseeable future.”[24]
[22]PCB 44-49
[23]PCB 50-52
[24]PCB 51
35 Dr Adrianakis referred the plaintiff to Dr Rigby. The plaintiff first saw him in January 2012. Dr Rigby provided four reports, dated 11 August 2012,[25] 6 July 2012,[26] 21 December 2012[27] and 1 May 2013.[28] Dr Rigby obtained a history from the plaintiff that she had suffered an injury to her lower back. On the first occasion she saw him, her presenting symptoms were:
[25]PCB 53-56
[26]PCB 56a
[27]PCB 57-63
[28]PCB 64-64a
“Mrs Kovacic indicated that the long-standing severe pain and difficulty moving had so restricted her life and ability to enjoy that she had become sad, lost energy, and felt hopelessness. She reported the following depressive symptoms:
Initial Insomnia Sadness Anergia
Early waking Anxiety Low motivation
Rumination Anger Low self-esteem
Poor concentration Crying Self-blame
Impaired memory Inability to cry Diurnal mood shift
Hopelessness Weight gain Suicidal thoughts
Suicidal ideation was of concern, as she said that she experienced this several times a week, and when asked would she do it, she said ‘I never know’. However she had not formed a plan or identified the method.
The above symptom pattern is consistent with the presence of a depressive disorder of significant severity and/or a chronic adjustment disorder accompanied with anxiety and depression.”[29]
[29]PCB 54
36 When Dr Rigby commenced treating the plaintiff she was in receipt of a prescription for amitriptyline (an antidepressant) 25 milligrams daily. He noted that the dosage was escalated to 200 milligrams daily. It is not clear whether Dr Rigby increased the dosage or if it was Dr Adrianakis. Dr Rigby was of the opinion that because there was little improvement in the plaintiff’s depression, he augmented her treatment with lithium carbonate, 450 milligrams (an antidepressant). It was later reduced to 225 milligrams.
37 In his first report, Dr Rigby was of the opinion that the plaintiff was suffering from chronic pain, major depression, and an Adjustment Disorder. He considered that she was not capable of working in her normal occupation. He added that the incapacity was likely to last for an indeterminate period of time, and that the plaintiff was suffering from a permanent impairment.
38 In his second report, he recorded the same symptoms of depression, but noted, for example, in August 2012, that the plaintiff reported that she was almost free of depressive symptoms. She reported a similar situation in November and December 2012. This was a subject on which Ms Spencer cross-examined Dr Rigby. The premise of the cross-examination was that the plaintiff had no real psychiatric component to her injury. I took the reference to injury to mean the injury to her lower back. However, Dr Rigby did not accept that the wide fluctuations in the plaintiff’s psychiatric symptoms from August through to December 2012 are indicative of the level of her psychiatric condition. He said:
Q:“So your view was, certainly at that stage, there was no real depressive symptoms at all?---
A:Correct. I should clarify this, however. This means – ‘no depressive symptoms’ does not necessarily mean she doesn’t have a psychiatric state of major depression. If I win a million dollars and I’m profoundly depressed, I won’t be on that day. It is very anomalous. You might see on p.4 of my report I list her depressive scores as 18, 15, 12, 13, 15, 11 and on this occasion 5 and this is the most well I’ve seen her. I think there may have been one other occasion when she had a low score and seemed comparatively happy. It is very puzzling, but - - -
Q:Thank you, doctor. I’ll just stop you there before you go onto a monologue. The picture, I would say to you, through that 2012, looking at the entries I’ve taken you to, is of a progressive improvement through to November 2012?---
A:No, I wouldn’t say that at all. I would say a fluctuating course with a sudden improvement when she scored 5 in November.
Q:Doctor, you’ve said from starting in January there was an improvement, a further improvement in April that I took you to, a further improvement in May, July some had returned, but by August already ‘almost free’. So the more consistent picture, I put to you, over that 12-month period is of an improvement rather than a sort of higher - a better level rather than a worse level; a fluctuation up, if I put it that way, rather than a fluctuation down. Would you agree with that?---
A:No, I wouldn’t, Your Honour. I think the highlighting of moments of improvement, of course, is something which is very important clinically. However, my experience of her under - I hope my records of Mrs Kovacic’s state indicates a fluctuating state with a fortunate improvement in November, which again subsequently to that she has been very deteriorated, so I think we have a fluctuating condition. The condition is fluctuating, but the degree of severity is entirely stable, in my opinion.
Q:I put to you, doctor, that it is not correct to say that she had this sudden improvement in November and that if your report is read and your entries as reported in your report are taken as correct, then there is improvement noted on numerous occasions prior to November, including in August where she was almost free of depressive symptoms, on your own account?---
A:That may be what is put to me, Your Honour, but in fact that is not the clinical case with Mrs Kovacic.
Q:So when you have written in your report that she was almost free of depressive symptoms in August, you now say that is not correct?---
A:No, that is correct at the time. I remember it quite clearly and I was very delighted to see it. It hasn’t continued, but it does show she has the potential to suffer less than someone who has chronic, long-term steady depression. That is a fortune for her. On the other hand, the disappointment of becoming unwell again counterbalances that somewhat. I consider her entirely stable.
Q:Yes, I’m not making any point about stability. The point is, doctor, the extent of the wide variations that you’ve noted and as you’ve described?---
A.There has been some wide variation and at least two occasions of almost symptom-free states, that’s true. Variation is definitely the case and I wish to draw that out and point it out.”[30]
[30]Transcript 25-51
39 The references to the considerable reduction in the plaintiff’s depressive symptoms is to be found in Dr Rigby’s report dated 21 December 2012. Despite what he described as wide variations in the plaintiff’s symptoms and a fluctuation in her symptoms in the latter part of 2012, he expressed the following opinion in that report:
“1 Injury treated
Adjustment Disorder with anxious and depressed mood, amounting to Major Depression, secondary to back injury, pain and disability.
2 Treatment
Fortnightly to monthly consultations, Cognitive Behaviour Therapy, Acceptance and Commitment Therapy, non-pharmaceutical anxiety and pain management measures, amitriptyline 50 mg to 200 mg daily, lithium carbonate 450 to 900 mg daily, analgesics as provided by general practitioner and pain management specialist.
3 Medication
Amitriptyline 50 mg to 200 mg daily, lithium carbonate 450 two 900 mg daily, analgesics as provided by general practitioner and pain management specialist.
4 Return to work
Not currently appropriate.
5 Worker health
Treatment is essential. Without it, worker would deteriorate significantly.”[31]
[31]PCB 61
40 Dr Rigby provided a final report dated 1 May 2013 recounting very similar depressive symptoms reported to him by the plaintiff previously, and variations in her physical and psychiatric condition. He expressed his final opinion as follows:
“ My opinion remains that Ms Kovacic suffers from a depressive disorder secondary to pain and loss of work capacity. I see no prospect of recovery in the foreseeable future, so long as pain earning capacity for work remain.
She has a strong work ethic, and it is my view that she is highly motivated to work, in spite of a substantial degree of despair at the prospect of ever doing so.”[32]
[32]PCB 64a
41 What appears to me to be so clear is that the plaintiff suffered an injury to her lower back for which she has had treatment from two general practitioners, Dr Pjesivac and Dr Adrianakis, and from Mr Barrett, Dr Thomas and Dr Blombery. There is not much doubt about whether there is pathology which can be identified as the source of the plaintiff’s pain and incapacity. Dr Thomas and Dr Blombery diagnosed what appears to me to be pathology which they have subsequently treated.
42 In addition, the plaintiff has suffered a secondary psychiatric condition which Dr Rigby has been treating since about January 2012. Despite wide variations in depressive symptoms and fluctuating symptoms, he nonetheless has described himself as being in a position to make a diagnosis and provide a prognosis. It is without question a poor prognosis, and I think consistent with a permanent severe mental or permanent severe behavioural disturbance or disorder.
43 There are other psychiatric opinions which support the conclusion reached by Dr Rigby, and one which is at odds with his opinion. I will refer to those opinions below.
The Medico-legal opinions
The lower back
44 The plaintiff was examined by Dr Baker, specialist in occupational medicine, on 11 September 2009 and 24 August 2011 for the defendant. He visited the plaintiff’s workplace on 11 November 2009. He provided four medical reports, dated 27 August 2009,[33] 20 November 2009, [34]2 December 2009[35] and 25 August 2011.[36]
[33]DCB 45-50
[34]DCB 40-42
[35]DCB 43-44
[36]DCB 34-39
45 The plaintiff told Dr Baker that she was suffering constant pain in her lower back which fluctuated. She told him that she is able to shower; her husband has to help her to dress; she only drives short distances in her car; she can only walk for 10 to 15 minutes; she cannot stand for more than 15 minutes; her ability to sit is very restricted, and her pattern of sleep is affected by pain. She also told him that she was taking up to eight Panadeine Forte tablets per day, Mobic, Endep and Losec.
46 On the second occasion on which Dr Baker examined the plaintiff he observed her to behave as if she were grossly disabled. It led him to conclude that there was a non-physical component to her presentation. He considered that she was suffering from a Chronic Pain Disorder and that she had a perception of being an invalid. As a result of the foregoing, he considered that she was totally incapacitated because of her perception of being an invalid.
47 Dr Middleton, occupational health and rehabilitation consultant, examined the plaintiff on 7 October 2010 for the defendant. He provided a report dated 7 October 2010.[37] The plaintiff told Dr Middleton that she experienced aching in her lower back with occasional knife-like pain which extended into her hips, with acute sharp pain down the back of her left thigh, and with numbness across her left lower leg down into her left foot and great toe. On examination, he observed her to change her posture regularly, and it was a similar observation made by Dr Baker and by Dr Baynes (below). Dr Middleton considered that the plaintiff had probably suffered a disc protrusion at L5-S1 impacting on the left L5 nerve root. He suggested that she have an MRI scan and that she undergo a structured functional restoration program.
[37]PCB 71a-71d
48 Dr Baynes, occupational physician, examined the plaintiff on 9 November 2010 for the defendant. He provided a report dated 9 November 2010.[38] The plaintiff’s complaints of pain and disablement made to Dr Baynes and her behaviour when he examined her bore the same characteristics as were noted by Dr Baker. That led him to consider that the plaintiff was suffering from a Chronic Pain Syndrome. He also considered that the plaintiff was demonstrating abnormal illness behaviour. However, despite the foregoing, he considered that the plaintiff had suffered a soft tissue injury to her lower back, but added that it was difficult to determine why she was suffering from significant ongoing pain.
[38]DCB 56-62
49 Mr Mangos, general surgeon, examined the plaintiff on 9 September 2013 for the plaintiff. He provided a report dated 9 September 2013.[39] The plaintiff’s complaints of pain and disablement and her behaviour when he examined her bore the same characteristics as were noted by Dr Baker and Dr Baynes. He was of the opinion that the plaintiff had mainly suffered a muscular ligamentous injury of minimal severity. He considered that she was not fit for her pre-injury employment, but was fit for alternative employment, but she needed to avoid regular bending, lifting and carrying weights over 4 to 5 kilograms.
[39]PCB 72-74
50 Mr Kossmann, orthopaedic surgeon, examined the plaintiff on 18 September 2013. He provided a report dated 18 September 2013.[40] The plaintiff’s complaints of pain and disablement and her behaviour when he examined her bore the same characteristics as were noted by Dr Baker, Dr Baynes and Mr Mangos. That led him to consider that the plaintiff had suffered a Chronic Pain Syndrome which he believed was psychologically based. He agreed with Mr Barrett that the plaintiff did not demonstrate a significant or genuine orthopaedic lumbar spinal lesion.
[40]PCB 77-82
51 I have undertaken the foregoing analysis of the medical evidence of the plaintiff’s lower back injury simply to identify the fact that apart from Dr Middleton, the majority of the other medical practitioners considered that the plaintiff’s complaints of pain and disablement were more consistent with a non-organic basis.
52 The foregoing is in contrast to the opinions of Dr Thomas and Dr Blombery, who appear to have found an organic basis for the complaints made by the plaintiff. However, Dr Baker, Dr Middleton, Dr Baynes and Mr Mangos appear to have considered that the plaintiff did suffer an identifiable injury to her lower back, although their opinions on the pathology of the injury obviously differ.
53 The issue of the identity of the physical injury suffered by the plaintiff to her lower back is a difficult one which is plainly obvious from my summary of the medical evidence. Despite that, it appears to me that there is a basis upon which I am able to conclude that the plaintiff initially suffered an injury to her lower back. It is difficult to resolve the difference of opinion between Dr Thomas, Dr Blombery, Dr Middleton and Mr Mangos, who consider there is an organic basis to the plaintiff’s complaints of disablement, and Mr Barrett, Dr Baker, Dr Baynes and Mr Kossmann, who consider that the plaintiff’s complaints of pain and disablement and her behaviour when examined are more consistent with a non-organic basis.
54 I prefer the opinions of Dr Thomas and Dr Blombery to the opinions of the other medical practitioners regarding whether the plaintiff has suffered an injury to her lower back with an organic basis. The reason for that is because Dr Thomas and Dr Blombery are specialists in the treatment of pain. It appears to me that such a specialty permits them to engage in the process of diagnosis with their medical background, and a background which the other medical practitioners appear not to share. Furthermore, they have treated the plaintiff for a significant period of time with a range of medication which I accept has been undertaken by them in the serious belief that they are treating organic elements to the plaintiff’s lower back injury.
55 The foregoing becomes important, because Dr Rigby appears to have accepted a similar thesis to that of Dr Thomas and Dr Blombery. Under cross-examination, he said the following:
Q:“We’ll come back to that. Doctor, in essence, if I understand your answer there, you agree with me that you see the pain as separate to the psychiatric - essentially separate to the psychiatric illness in this case?---
A:I would say separate, but not essentially separate because as a treating doctor I can’t treat two parts of something, both subjective experiences if they are unrelated to each other. I don’t think anyone can tease that out that way. Yes, they have a separate diagnostic category and although I haven't mentioned pain syndrome, I probably should have. I accept the statements of other practitioners that she has a pain syndrome or a chronic pain syndrome which may now no longer be directly connected to tissue damage at the periphery.
Q:Are you trying to embark on an organic diagnosis of a pain syndrome there, doctor?---
A:Yes.
Q:You’re not qualified to make any diagnosis as to any nerve, chronic pain diagnosis, are you?---
A:You mean a cause of chronic pain resulting in peripheral tissue damage? Is that the way I understand the question?
Q.I think that’s what you were trying to embark on as I understood you, there’s an organic basis, as I understand it, to her chronic pain. Is that what you were trying to diagnose?---
A:No. It has to be understood that chronic pain is usually organic, or most always, and the classic example is phantom limb pain. The person hasn’t even got peripheral tissue and there can be severe intractable pain which is unquestionably organic but is initiated higher up in the central nervous system in the brain or the pain pathways. So I am satisfied in Mrs Kovacic’s case and in most cases of chronic pain we are stuck with something where pain impulses are being generated organically but no longer necessarily in the peripheral tissues. Now, what I’m not qualified to say is whether at present pain impulses are generated in the periphery. I was qualified once, but I’m not now.
Q:As I understand it your opinion is a bit similar to – I’m sure you’ve seen the reports of Dr Blombery?---
A:Yes.
Q:That she has some sort of organic basis because of nerve sensitisation to her pain in the central nervous system, you said. That’s what you’re trying to agree with, is that as I understand it?---
A:The word ‘nerve’ refers to peripheral nerves reaching the peripheral tissues. So nerve sensitivity, couldn’t say, and I don’t think anyone could say whether that’s the cause of her pain. But disturbances of neural activity in the central nervous system, not necessarily in nerves per se, the actual physical nerves threading through the body, yes, I would agree with that and I think Dr Blombery appeared to me to be of the same opinion. Most people who treat pain don't regard it as some figment of the imagination.”[41]
[41]Transcript 55-57
56 It appears to me that Dr Rigby considered that there is an organic basis to the complaints of pain and disablement made by the plaintiff arising from the injury to her lower back. It appears to me to be consistent with the opinions of Dr Thomas and Dr Blombery. Dr Rigby is worked on the basis that there was a nexus between the existence of an organic injury and the onset of the secondary psychiatric condition and its persistence.
The psychiatric condition
57 I propose to give only a short summary of the opinions of four psychiatrists, whose opinions appear to me to be consistent with the opinion of Dr Rigby. It is only the opinion of Dr Jackson, psychiatrist, which appears to be at serious odds with the opinion of Dr Rigby.
58 Dr Duke, psychiatrist, examined the plaintiff on 5 January 2010 for the defendant. He provided a report dated 5 January 2010.[42] He was of the opinion that the plaintiff was suffering from a secondary Adjustment Disorder with Mixed Anxiety and Depressed Mood. He considered that it had been caused by a lack of resolution of her “putative physical injury” as he put it, and in that respect he was referring to the injury to the plaintiff’s lower back. He considered the plaintiff’s psychiatric treatment at that stage to be inadequate. He considered that she had a lack of pharmacological measures in the treatment of her psychiatric condition. He suggested that she be prescribed with Mirtazapine, 30 milligrams at night. He suggested she be reviewed in six months. He did not review the plaintiff.
[42]DCB 63-70
59 Dr Jager, psychiatrist, examined the plaintiff on 26 October 2010 for the defendant. He provided a report dated 12 November 2010.[43] He was of the opinion that the plaintiff was suffering from a Major Depressive Disorder. He considered that she needed to be referred to a consultant psychiatrist for her psychiatric condition to be managed by comprehensive care, therapy, and antidepressant medication. He considered that the psychiatric condition was secondary to her lower back injury. He considered that she was unfit for work at that time. He suggested that she be reviewed in three months. He did not review the plaintiff.
[43]DCB 51-55
60 Dr Kornan, psychiatrist, examined the plaintiff on 13 August 2013 for the plaintiff. He provided a report dated 19 August 2013.[44] He was of the opinion that the plaintiff was suffering from a Pain Disorder with associated psychological factors and an Adjustment Disorder with Mixed Anxiety and Depression. He considered that her psychiatric condition was related to her other symptoms, which included lower back pain. He considered that she was unfit for work. He considered that the treatment provided by Dr Rigby was unlikely to offer the plaintiff any more than management with antidepressant medication and support. He considered that her prognosis was poor, and that she was entering a group of people who present with chronic pain which is not amenable to standard treatments.
[44]PCB 86-93
61 Dr Jackson examined the plaintiff on 10 August 2011 and 1 August 2013. He provided two reports, dated 11 August 2011[45] and 6 August 2013.[46] In his first report, he said that he was of the opinion that the plaintiff was suffering from a depressive illness, but he considered that the plaintiff’s use of narcotic analgesics was not appropriate for the treatment of chronic pain. He considered that the plaintiff was physically addicted to that medication, and that she should be commenced on a program of detoxification. He considered that the plaintiff had significantly less symptoms than she reported to Dr Jager which led Dr Jackson to consider that the plaintiff was fit for any form of employment.
[45]DCB 26-33
[46]DCB 18-3225
62 In his second report, Dr Jackson considered that there were three appropriate psychiatric diagnoses: Pain Disorder with associated psychological factors and a general medical condition; an Adjustment Disorder with Depressed Mood which she considered was chronic, but largely in remission, and dependence and abuse of prescribed medication, particularly narcotic analgesics, which he then described as technically not being the psychiatric diagnosis. He repeated his earlier stated opinion regarding the plaintiff’s use of narcotic analgesics and added that he could not identify the reasonable basis for the use of medication long term. He again advocated detoxification.
63 Dr Jackson was also of the opinion that the plaintiff’s prognosis was entirely dependent upon her physical condition. He considered that her prognosis was poor. However, he did not consider that the plaintiff was unfit for work, and he considered that returning the gainful employment would greatly enhance her psychological wellbeing.
64 Dr Jackson is the only medical practitioner who is of the opinion that the plaintiff is addicted to narcotic analgesics and should undergo detoxification. The proposition was put to Dr Rigby under cross-examination, and I put the same proposition for the purpose of clarification. I think the following answer adequately summarises Dr Rigby’s opinion that the plaintiff’s treating medical practitioners should consider detoxification, but the impression I gained is that it will provide the plaintiff with some marginal improvement only:
Q:“Dr Jackson makes some rather strong statements about the aggregate effect of the medication, whether it be for pain, pain management or psychiatric management and that this woman should be detoxified because that will remove the contributor by that medication to her psychiatric illness. Now, I need to understand your answer because you’re the only medical witness I’m going to hear from and I’m the person who has to write the decision in this case. What do you say about that?---
A:I would think there would be, Your Honour, a percentage decrease in her drowsiness, her lack of motivation which is particularly affected by narcotics; her sleep as well because although narcotics make you sleepy, it's not really a sleep you get it's a kind of dreamy state which doesn’t leave the person refreshed. So although these look like depressive symptoms, I think actual depressive symptoms can also arise from narcotic use. If, as I would like to see, she is withdrawn from narcotics, Tramadol, with assistance goes through detoxification, I would expect her to return to her present state of fluctuating pain and fluctuating depression, but with a reduction in the intensity of depression and with a reduction in those symptoms which are a direct side effect of opiates, such as drowsiness, lack of motivation, et cetera, et cetera.
Q:The next question is in the general context of medical treatment to the extent that you can look at your general medical background and your special interest in psychiatry, is that a recommended course, that she be put through some sort of detoxification, or is it not, or what's the case?---
A:Yes, I would recommend that. I wouldn’t hold out any hope that it would make her more employable, but it would make her life amenity better.”[47]
[47]Transcript 75-76, and the cross-examination on the subject at Transcript 72-74
65 Dr Rigby appears to agree with Dr Jackson’s general thesis that the narcotic analgesic taken by the plaintiff is contributing to her depressive symptoms; however, if detoxification is to occur, it would only relieve her of those symptoms which are directly associated with the narcotic analgesics. The telling feature of Dr Rigby’s opinion, however, is that, even speculating on the reduction in symptoms through detoxification, it would not make the plaintiff any more employable, but it might improve aspects of the quality of her life.
66 There is a significant difficulty in making any finding that the plaintiff should undergo detoxification and that it will be as productive as Dr Jackson believes it should be. Dr Thomas and Dr Blombery, and to lesser extent Dr Adrianakis, are prescribing the plaintiff the medication referred to by Dr Jackson. My impression from the cross-examination of Dr Rigby is that although he has a general medical background permitting him to understand the treatment perspective of Dr Thomas and Dr Blombery, what they do is not within his medical discipline. Neither Dr Thomas nor Dr Blombery was cross-examined. Neither of them said anything in their reports to suggest that the narcotic analgesics they prescribed are in some way deleterious to the plaintiff’s health, and in the absence of anything of that kind and cross-examination on the subject of narcotic dependence, I do not accept Dr Jackson’s opinion. I prefer the opinion of Dr Rigby that there would be some reduction in the plaintiff’s depressive symptoms, but I am cautious not to give that opinion much weight, because it is rather more in the province of treatment of Dr Thomas and Dr Blombery.
Consequences
67 I propose to turn to the question of the plaintiff’s loss of earning capacity consequences first. A finding that the plaintiff is incapacitated for suitable employment does not then require me to consider pain and suffering consequences separately.
68 I have little doubt that the plaintiff suffered an injury to her lower back. I prefer the evidence of Dr Thomas and Dr Blombery, who appear to me to have found an organic basis for the plaintiff’s complaints of pain and disablement, and are treating her accordingly.
69 I also have little doubt that the plaintiff has suffered a secondary psychiatric condition. I am fortified in reaching that conclusion, because it is the unanimous view of all of the psychiatrists whose evidence I have reviewed above.
70 I prefer the opinion of Dr Rigby for a number of reasons: firstly, both Dr Duke and Dr Jager were of the opinion that the plaintiff required psychiatric treatment, and in the opinion of Dr Duke, the plaintiff was being undertreated at the time when he examined her. Secondly, the treatment provided by Dr Rigby appears to me to be the very sort of treatment contemplated by Dr Duke and Dr Jager. Thirdly, Dr Rigby appeared to me to clearly understand the controversy relevant to a diagnosis and treatment of the plaintiff’s lower back injury. However, he appears to prefer the diagnosis made by Dr Thomas and Dr Blombery as being based on an organic injury to the plaintiff’s lower back, and therefore, that the psychiatric condition is secondary to that physical injury. There is nothing to suggest that he has done other than treated the plaintiff appropriately. Lastly, there was no criticism of Dr Rigby’s treatment or the diagnosis by Dr Kornan or Dr Nathar. They confirm that the plaintiff has suffered a psychiatric condition which requires treatment and is seriously disabling for the plaintiff.
71 There is a hint in the medical evidence that the plaintiff does not have an organic basis for her physical injury and is now in the grips of a Pain Disorder. Furthermore, there more than a hint in some of that medical evidence that the plaintiff has a capacity for work. It almost suggests that the plaintiff is not to be believed when she gives an account of the extent of the disabling effect of her psychiatric condition.
72 I do not accept that there is any issue going to the plaintiff’s creditworthiness or reliability in any sense. Her work history is one of someone who found work and made a commitment to it. There is nothing in the evidence to suggest that she had anything other than a sound working ethic. I am fortified in reaching that conclusion, because after suffering the first lower back injury, she obtained appropriate medical treatment and returned to work full time despite having some level of persisting lower back pain. I think that is strong evidence of someone who is well intentioned and committed to work.
73 It appears to me, leaving Dr Jackson out of the picture for one moment, that the psychiatric evidence is all one way. Dr Rigby’s opinion, supported by the opinions of Dr Kornan and Dr Nathar, is that the plaintiff is suffering from a very serious psychiatric condition and is unfit for suitable employment. His opinion is supported to a lesser extent by the opinions of Dr Duke and Dr Jager, and I say to a lesser extent only because their opinions are somewhat stale and they are without the benefit of understanding the treatment that has more recently been provided to the plaintiff by Dr Rigby.
74 Therefore, I find that the plaintiff has suffered a permanent severe mental or permanent severe behavioural disturbance or disorder. I prefer the diagnosis made by Dr Rigby, although the diagnoses made by the other psychiatrists are similar and appear to me to be based upon the same symptoms complained of by the plaintiff. I should add that in reaching that conclusion, I have applied the interpretation of the relevant definition of serious injury that the word “severe” is a word stronger than the word “serious”.
75 In the circumstances, it must follow that having found, as I have, that the plaintiff must succeed in having leave granted for both pain and suffering consequences and loss of earning capacity consequences.
Conclusion
76 On the basis of the foregoing reasons, findings and conclusions, I grant the plaintiff leave to bring a proceeding at common law to recover damages.
77 After discussion with counsel, I will pronounce formal orders and will hear the parties on the question of costs.
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