Lakic v Woolworths Group Limited
[2022] VCC 2234
•15 December 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-22-01248
| ALEKSANDAR LAKIC | Plaintiff |
| v | |
| WOOLWORTHS GROUP LIMITED | Defendant |
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JUDGE: | HER HONOUR JUDGE ENGLISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 November 2022 | |
DATE OF JUDGMENT: | 15 December 2022 | |
CASE MAY BE CITED AS: | Lakic v Woolworths Group Limited | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2234 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Damages - serious injury - injury to lumbar spine - pain and suffering and pecuniary loss - substantial organic basis - credit
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013
Cases Cited:Meadows v Lichmore Pty Ltd [2013] VSCA 201; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; State of NSW v Moss (2000) 54 NSWLR 536; Victorian WorkCover Authority v Nguyen [2016] VSCA 284;
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell KC with Ms K Popova | Zaparas Lawyers |
| For the Defendant | Ms S Manova | Hall and Wilcox |
HER HONOUR:
Introduction
1On 20 December 2018, the plaintiff, Mr Aleksandar Lakic, suffered an injury at work whilst lifting a box. He experienced pain in his lower back and down his right hamstring. He has not worked since January 2019.
2This is a serious injury application pursuant to s335(1) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) by the plaintiff. He seeks leave of the Court to commence common law proceedings pursuant to paragraph (a) of the definition of ‘serious injury’ in s 325(1) of the Act for pain and suffering and economic loss for an injury to his lumbar spine.
3It is not in dispute that the plaintiff sustained a compensable injury on 20 December 2018. The plaintiff’s case is he had a pre-existing condition, lumbar spondylosis/spondylolisthesis, and the work injury caused an aggravation of that condition.
4The plaintiff claims he has a total incapacity for work. As he was under 26 at the time of the accident, he has to establish at the date of the hearing he has a loss of earning capacity of forty per cent or more. Further, he must establish, that he will, after the date of the hearing, continue to have a permanent loss of earning of forty per cent or more.[1] That assessment is made on common law principles.
[1] State of NSW v Moss (2000) 54 NSWLR 536 at [71]
5The issue in dispute is whether the plaintiff continues to suffer from the effects of the aggravation. The defendant’s position is that the plaintiff “most likely sustained a soft tissue injury to the spine, which temporarily aggravated underlying minor degenerative changes, and has now resolved”.[2]
[2]Defendant counsel’s submissions, page 2
6The defendant submits there is no substantial organic basis for the plaintiff’s injury to the lumbar spine under (a).
7If he still has an organic spinal injury, the plaintiff bears the onus to disentangle the physical and psychological causes of his pain and symptoms and consequences. The defendant submitted it is impossible on the medical evidence to disentangle the physical and psychological consequences to the extent required under (a).
8The defendant also disputes that the plaintiff’s impairment meets the relevant statutory threshold of being “more than significant or marked and ... at least very considerable” in relation to pain and suffering and pecuniary loss. With respect to pecuniary loss, the defendant noted the plaintiff has completed a degree and submits there are a range of jobs that have been identified as suitable for him.
9Finally, the defendant raised the plaintiff’s credit as a live issue in this case.
Background
10The plaintiff is now aged 28 years old. He completed year 12 and has recently completed a degree from Victoria University. At age 16 he started working at Woolworths and in 2012 he transferred to the Liquor Distribution Centre where he worked as a picker and packer before sustaining his injury.
The plaintiff’s evidence
11The plaintiff provided three affidavits, dated 22 October 2021, 25 October 2022 and 24 November 2022, in support of his application. His mother, Milena Lakic, affirmed an affidavit in support dated 21 November 2022. His mother’s affidavit confirms the symptoms he has described.
Pain
12In his first affidavit, he stated that following the injury on 20 December 2018 he tried to work the next day, but the pain was too great. He went onto light duties and had physiotherapy.
13On 21 January 2019 he went to his GP at Sonic Health: “I was shaking and having spasms. I had severe back pain and numbness in my legs.”[3]
[3]Plaintiff’s Court Book (“PCB”) 14
14Treatment included physiotherapy and hydrotherapy. In 2020 he was prescribed Lyrica for the pain. In 2021 he was prescribed Tramadol then Cymbalta, and in August 2021 he was prescribed Valium for pain and anxiety.
15He continues to suffer constant pain in his lower back which varies in strength but is always there. He takes CBD oil[4] for pain relief and Tramadol for flare-ups of pain. He also uses heat rubs, anti-inflammatory creams and hot showers.
[4] T 6 Plaintiff’s counsel was not sure if this product is cannabis oil or not.
16He also has pain and numbness in his left leg. The pains come and go and can be like an electric shock or numbness like pins and needles. Sometimes he gets this in his right leg. His left leg can collapse beneath him.
17The pain affects his sleep.
18In his second affidavit he noted continuing pain in his lower back which varies in strength and can rise to a strong level. He still takes CBD oil and Tramadol for flare-ups, which is most weeks, more than once. He also takes Panadol and Advil for pain and occasionally Valium for muscle spasms. He continues to use heat rubs, heat packs, anti-inflammatory creams and hot showers.
19He continues to have the same symptoms described above with his left leg, however not in his right leg.
20He still has difficulties sleeping.
Consequences
21The plaintiff’s pain increases when he sits or stands in the one position for any length of time. He has to continually adjust his position to get comfortable. He has lost strength and movement in his lower back, and pain is aggravated by bending and twisting.
22He is unstable on his feet as his left leg may collapse. Due to back pain he avoids heavy lifting, repetitive strenuous movements, and even simple movements such as washing the dishes.
23He has been unable to do chores around the house and garden.
24He used to enjoy taekwondo, swimming and gym work. He used to train in the gym every week and now goes for rehabilitation rather than fitness.
Work
25He has not been employed since January 2019. He has almost completed his studies and wanted to obtain fulltime employment in the bio-medical field.
26In his second affidavit he noted he finished his degree in October 2021. During 2021 he unsuccessfully applied for work at a call centre. Because of his serious back pain, he does not believe he is capable of working.
Mental symptoms
27The plaintiff described anxiety and feeling hopeless when the pain gets bad. He gets panic attacks where he struggles to move and feels frozen and has bad thoughts when the pain is bad.
28In his second affidavit, he recounted the same mental symptoms and that he believes he also suffers from depression as he feels flat and low. He stated he gets teary, upset and has lost confidence. His concentration and memory are poor.
29In his third affidavit, dated 24 November 2022, the plaintiff noted he wanted to pursue work in a laboratory in the future. Further, he noted that in 2019 he attempted to develop an app for a video game called Pig Bit Digital and invested a few thousand dollars for development assistance, but it never got off the ground.
30His mother describes him as “like a different person since the injury.”[5] She described his temperament has changed: “Since the injury, he is moody, easily irritated and at times aggressive or non-responsive.”[6]
[5] PCB 149
[6]PCB 149
Medical treatment
31On 21 January 2019 the plaintiff saw his GP at Sonic Health Medical Clinic.
32In March 2019 the plaintiff saw Dr Michael Wong, neurosurgeon.
33In November 2020 he was reviewed by Mr Ivan Bhaskar, surgeon.
34In 2020 and 2021 he was prescribed Tramadol, Cymbalta and Valium.
35In May 2022 the plaintiff started treatment with psychologist Mr Brendan Partridge.
Is there is a substantial organic basis for the pain and suffering consequences?
MRI scans
36Following the work incident on 20 December 2018, on 23 January 2019 the plaintiff had an MRI of his lumbar spine.
37On 31 January 2020 the plaintiff had a further MRI scan on his lumbar spine.
CT scans
38On 26 November 2019 the plaintiff had a brain scan which was normal and is referred to in Dr Khayyam Altaf’s report dated 26 July 2022.[7] It is also referred to in Dr Caroline Tan’s report dated 20 November 2019.[8]
[7]PCB 93 and PCB 97
[8]Defendant’s Court Book (“DCB”) 20
39On 25 November 2020 the plaintiff had a SPECT CT scan known as a nuclear medicine regional bone scan. Mr Ivan Bhaskar, neurosurgeon, in a letter dated 1 December 2020, notes the results were normal.[9] The SPECT CT results are referred to in Dr Tan’s report dated 8 October 2022.[10]
[9]DCB 5
[10]DCB 30
Medical opinions
40Dr Michael Wong, neurosurgeon and spinal surgeon, prepared a report dated 21 March 2019 for the plaintiff’s GP.
41He reviewed the January 2019 MRI scan which demonstrated “a grade 1 L5/S1 spondylolisthesis with bilateral L5 pars defect.”[11]
[11]PCB 29
42He recommended non-surgical treatment and referral to Dr Christine Wong, a chronic pain physician, and a specialist spinal physiotherapist, and hydrotherapy.
43In a second report to the employer Woolworths Limited, dated 28 June 2019, Dr Wong stated “It was likely that the work injury aggravates this patient’s pre-existing lumber [sic] spondylolisthesis.”[12]
[12]PCB 31
44In Dr Wong’s third report, dated 20 February 2020, to the plaintiff’s GP, he reviewed the January 2020 MRI, which he advised demonstrated “L5/S1 grade 1 spondylolisthesis, with moderate left-sided and mild right-sided foraminal stenoses.”[13] Given these findings, he “organised a left-sided L5 nerve root injection to improve this patient’s low back and left leg pain.” He also referred the plaintiff to Dr Christine Wong, chronic pain physician, noting given the plaintiff’s young age he should have a good trial of all non-surgical treatments first.
[13]PCB 33
45Mr Ivan Bhaskar, neurosurgeon, had a telehealth consultation and prepared a report for the plaintiff’s GP dated 5 November 2020. He states the MRIs from January 2019 and 2020 showed a “Grade 1 spondylolisthesis (3mm) with no evidence of any disc degeneration or any neural compression”.[14] He recommended a SPECT scan and further review. On 1 December 2020 Mr Bhaskar advised the plaintiff’s GP that “the SPECT scan returned normal.”[15]
[14]PCB 41
[15]DCB 5
Medico-legal reports
Dr Ales Aliashkevich
46In his report for the plaintiff dated 29 May 2019, Dr Ales Aliashkevich, neurosurgeon, noted the plaintiff’s “current diagnosis is a grade 1 L5/S1 spondylolisthesis secondary to pars interarticularis”.[16] Examination revealed restricted lumbar spine movements associated with pain and spasms but no neurological findings in his lower limbs. In his opinion, “The symptoms of low back pain are consistent with the diagnosis but there was a significant functional overlay, anxiety and some inappropriate clinical signs noted.”[17]
[16]PCB 46
[17]PCB 47
47Dr Aliashkevich stated the underlying cause of the condition was not lifting the box but the spondylolisthesis and pars interarticularis defects, and the condition is an aggravation of a pre-existing disease.[18] He was also of the opinion the pre-existing condition had overtaken any effects of work-related aggravation. He was also of the opinion the plaintiff is involuntarily exaggerating the symptoms.
[18]PCB 47
48Dr Aliashkevich’s opinion was that the plaintiff should be assessed by a psychologist and pain clinic review as “there appears to be significant psychological and anxiety issues associated with his symptoms”, and that he had a good prognosis.[19]
[19] PCB 49
Professor Richard Bittar
49Professor Richard Bittar, neurosurgeon, prepared a report for the plaintiff dated 23 July 2020.
50Professor Bittar diagnosed the plaintiff with aggravation of lumbar spondylosis/spondylolisthesis which results in lower back pain and left leg pain and associated disability. In his opinion, the work injury was a significant contributing factor. He stated given the extremely severe pain and failed response to prolonged conservative treatment, the plaintiff should be considered for surgical intervention, namely a spinal fusion.[20]
[20]PCB 63
51In his second report, dated 4 July 2022, Professor Bittar agreed with Dr Asaid that the plaintiff appears to have developed functional overlay since his last assessment.
Mr Raf Asaid
52Mr Raf Asaid, orthopaedic surgeon, prepared a report for the plaintiff dated 14 August 2021.
53Mr Asaid diagnosed the plaintiff as having developed chronic mechanical lower back pain and aggravation of lumbar spondylolisthesis.
54In his second report, dated 9 November 2021, Mr Asaid recommended the plaintiff undergo a SPECT/CT of the lumbar spine and given his presentation of functional overlay, he should be assessed by a pain specialist and psychologist or psychiatrist.
55Mr Asaid confirmed there is a likely organic component contributing to the plaintiff’s condition which could be confirmed by further investigation. The previous treatment recommendations of corticosteroid injections and surgical intervention would not have been made absent an organic component.[21]
[21]PCB 91
Dr Khayyam Altaf
56Dr Khayyam Altaf, occupational physician, prepared a report for the plaintiff dated 26 July 2022. He noted the plaintiff’s current treatment included CBD oil and Tramadol, as well as Ibuprofen and Diazepam when required, and hot showers and massages. He has current ongoing care with a psychologist but is not under the care of a surgeon or pain specialist.
57Dr Altaf diagnosed the plaintiff with an aggravation of underlying lumbar spondylosis and spondylolisthesis at the L5/S1, and since the injury on 21 December 2018 he has developed a chronic lumbar spine dysfunction with chronic mechanical back pain.[22]
[22]PCB 97
Dr Richard Sullivan
58Dr Richard Sullivan, pain specialist, prepared a report for the plaintiff dated 21 September 2022.
59Dr Sullivan diagnosed the plaintiff as having an aggravation of lumbar spondylosis resulting in a post-traumatic chronic pain condition, presenting as chronic lower back pain and chronic left-sided lower limb pain consistent with left L5 sciatica.[23] In his view the aggravation was caused in the course of the plaintiff’s employment. In his view the plaintiff has subsequently developed a post-traumatic chronic pain condition presenting as chronic lower back pain, predominantly on the left side, and left-sided sciatica. He also was of the view the plaintiff has a likely secondary psychological injury presenting with depression, stress and anxiety, that should be considered by a psychiatrist.
[23]PCB 110
60Dr Sullivan considered the plaintiff should be referred to a structural spinal surgeon for consideration of stabilisation of his L5/S1 segment, in light of his persisting symptoms. He should also be referred to a pain specialist.
Mr David Lyon
61Mr David Lyon, consultant orthopaedic surgeon, prepared a report for the defendant dated 8 March 2019.
62Mr Lyon diagnosed the plaintiff with a “grade 1 L5/S1 spondylolisthesis secondary to pars interarticularis defects”.[24] This is a pre-existing condition, likely to have been present for several years but is often asymptomatic. The condition is an aggravation of a pre-existing disease.[25]
[24] DCB 10
[25]DCB 11
63In his report dated 8 March 2019, noting it is not possible to predict when an aggravation might cease, he stated “The pre-existing condition has in my opinion overtaken any effects of work-related aggravation”.[26] In his opinion the plaintiff was involuntarily exaggerating symptoms, as indicated by his anxiety levels, spasms, whole body paralysis and inappropriate or non-organic clinical signs.[27]
[26] DCB 12
[27]DCB 12
Dr Caroline Tan
64Dr Caroline Tan, neurosurgeon, prepared a report for the defendant dated 20 November 2019.
65In terms of diagnosis, Dr Tan noted it is possible that the plaintiff may have suffered a strain of the L5 pars defects or some lower lumbar facet joints while working on 21 December 2018. There is no radiological or clinical evidence for a more severe injury to the lower back or of any injury to either leg.[28] She described the plaintiff’s shaking as bizarre, and not a manifestation of lumbar spine injury she had ever seen, which raised the possibility of a functional neurological disorder.[29]
[28]DCB 22
[29] DCB 22
66Dr Tan accepted that the injury on 21 December 2018 might cause pre-existing bilateral L5 pars defects to become symptomatic of back pain, ie exacerbation, but was not of the view this explained the symptoms including shaking of the plaintiff’s left leg.
67Dr Tan considered the plaintiff might have involuntarily exaggerated symptoms as part of a functional neurological disorder.
68In her report dated 4 December 2019 Dr Tan expressed “major doubts” as to the existence of the plaintiff’s back injury but stated it is possible that the spondylosis was exacerbated by the plaintiff’s employment.[30] She stated it is a possibility that the plaintiff has suffered an exacerbation of a pre-existing L5/S1 spondylosis.
[30]DCB 25
69In her report dated 8 October 2022 Dr Tan stated, “I remain of the view that if Mr Lakic suffered an injury on 21 December 2018, this was a self-limiting musculoskeletal injury and not of a serious nature and it has long ago resolved completely. There is no convincing evidence for a persistent physical or structural diagnosis.”[31] She considered his principal diagnosis to be a psychiatric one.
[31]DCB 30
Dr David Barton
70Dr David Barton, consultant occupational physician, prepared a report for the defendant dated 18 February 2022.
71In Dr Barton’s diagnosis the plaintiff had a pre-existing congenital small spondylolisthesis and minor radiological findings of no particular clinical significance or consequence.[32]
[32]DCB 49
72In his view, the plaintiff “has recovered from any mild physical problem that may have occurred at the outset. I do not believe there is any ongoing physical diagnosis.”[33] Further, he stated, “his reported pain and restrictions are inconsistent with any clinical course of any particular injury and simply reflect his illness belief and his exaggerated presentation.”[34]
[33]DCB 49
[34]DCB 50
Medical Panel – reasons for opinion
73The Medical Panel examined the plaintiff on 2 and 18 February 2021.
74After taking the plaintiff’s history, examining him and reviewing the diagnostic imaging, the Panel concluded that, notwithstanding his complaint of low back and left leg symptoms, in the presence of multiple inconsistencies on physical examination and no verifiable evidence of ongoing physical injury to the plaintiff’s spine or evidence of neurological compromise, there is no longer any evidence of symptomatic physical injury involving the spine, and that any physical injury to the low back has now resolved.[35]
[35]DCB 109
75The Medical Panel concluded the plaintiff suffered a temporary soft tissue injury to his low back in the presence of pre-existing spondylosis and minimal spondylolisthesis that has resolved, and is currently suffering from a somatic symptom disorder with predominant pain, persistent (DSM-V), relevant to the claimed injury.[36]
[36]PCB 136
76The Medical Panel noted the presence of bilateral pars defects with minimal anterior slip of L5 on S1 on the MRI scan is a pre-existing condition of spondylosis and minimal spondylolisthesis. The Medical Panel concluded the plaintiff suffered a work-related soft tissue injury to his low back on 20 December 2018 in the presence of pre-existing spondylosis and minimal spondylolisthesis. However, the Medical Panel considered the plaintiff’s post-injury course and presentation to be inconsistent with an ongoing physical injury to the low back with non-organic symptoms and signs that persist. The Medical Panel considered that any temporary soft tissue injury to the low back had resolved as would be expected within a couple of months of the injury.[37]
[37]DCB 116
77The Medical Panel concluded the plaintiff’s somatic symptom disorder with persistent pain results from and still is materially contributed to by the claimed injury.
78The Medical Panel noted it came to different conclusions to independent medical examiners such as Mr Aliashkevich, Mr Lo, and Professor Bittar, noting multiple inconsistencies on physical examination and an absence of any findings consistent with an ongoing physical injury to the low back. The Medical Panel considered any soft tissue injury to the plaintiff’s lumbar spine accepted to have occurred on 21 December 2018 to have resolved, and that the plaintiff’s current presentation is explicable through the development of a somatic symptom disorder with predominant pain that persists.[38]
[38]DCB 118
The plaintiff’s credit
79The plaintiff has described a number of unusual symptoms. I turn to his evidence, as his credit was in issue in this case.
80With respect to his symptoms, the plaintiff’s evidence was he experiences constant back pain as well as numbness in his foot and left leg. For a couple of weeks, he also experienced problems whereby he struggled to open his left fist and it felt weak. He also suffers from muscle spasms in his lower back and left leg and his left leg starts shaking.[39]
[39]Transcript (“T”) 21
81He was asked about spasms, and described his whole body shaking, and afterwards he feels hopeless “because I could feel like I can’t control myself.”[40] He feels scared as if he is having a panic attack. Sometimes when he is shaking, he goes into a foetal position “because I’m scared.”[41]
[40]T22
[41] T23
82One morning in January 2019 he felt pain in his leg and started shaking. He tried to walk. He fell on the floor as his left leg collapsed on him. He could not move for a while, for 10 or 15 minutes. He was taken to Footscray Hospital Emergency Department. He assumed he was having a panic attack and was given Valium. He said the spasms calmed down, but the pain was still there.[42]
[42]T24
83He described falling in the shower when his left leg “folds on me”.[43] He estimates this occurs once or twice a month. The same thing has happened when he climbs stairs: “my left leg would kind of fold and I’d collapse and hurt myself on the edges of the stairs and stuff like that.”[44]
[43] T25
[44]T25
84He agreed with a description of the pain he experiences which he described in an email he sent to Victoria University in September 2020: “My body feels like it’s on fire and like I’m getting electrocuted from constant nerve pain making me constantly fatigued.”[45]
[45]T26 and DCB 177
85He agreed his shaking symptoms were a bit like a fit, and described it being brought on, for example, by helping his mum with the dishes, and bending over the bench for a long period of time and getting back pain.[46]
[46]T27
86The plaintiff agreed it was sometimes difficult for him to lift himself on the doctor’s examination table, and also agreed, because of adrenaline, he was able to climb onto the roof of his car during an anti-COVID rally in November 2021 in Spring Street armed with a bow and arrow. He denied being part of the rally, “no, I wasn’t of no rally at all”,[47] saying he was there because he was suicidal and was “already set on dying ... hoping to get shot by a police officer or something.”[48]
[47]T37
[48]T38-39
87In his affidavit, the plaintiff noted in 2014 he started his degree at Victoria University and was studying on a part-time basis. He noted after his back injury on 20 December 2018 “I had to defer my studies because I was struggling to sit in class. I was in too much pain.”[49]
[49]PCB 16
88In cross-examination he acknowledged that he was failing subjects between 2014 and 2017 and was given notice he would be excluded from the course due to his unsatisfactory progress. He stated after his ex-fiancée cheated on him he went “downhill”.[50]
[50]T40
89In correspondence with the university in January 2018, the plaintiff advised he had been kicked out of home, he was living in his car, he attempted suicide by driving his car at 100 kph into a barrier, and luckily sustained only a bruise to his head although the front of the car was destroyed. He denied exaggerating his position to the university to avoid exclusion.[51]
[51]T47-48
90The plaintiff did not acknowledge these prior difficulties, such as psychological or emotional problems in the past, to doctors he was assessed by for this case; for example, Professor George Mendelson.[52]
[52]As the plaintiff only claimed under (a), any psychiatric material in the court books was not tendered into evidence or relied on in this judgment.
91In his affidavits the plaintiff also stated he has not worked since January 2019 and confirmed this in the witness box.[53]
[53] T52-53
92He was taken to an email with his university lecturer dated 26 August 2020 when he advised his lecturer, “I lead an international application development company so I’m up at late hours communicating with my team as we’re currently working on a large project, afternoons/evenings work best though I can always try to compromise”.[54] In evidence he explained he had registered a trademark, Pig Bit Digital, and hired people in Turkey and India and other countries “making this app for me.”[55] He worked on this for between six months and a year. He stated he would communicate with them “very kind of rarely”.[56] When asked whether he was exaggerating to his lecturer about how busy he was, he stated, “Probably during that period I probably was like genuinely busy because I wanted to get it happening. I needed money.”[57] He did not tell any of the doctors he saw that he was busy leading an international team creating an app.[58]
[54]DCB 176
[55]T55
[56]T57
[57]T58
[58]T58-59
The medical evidence about symptoms
93Dr Aliashkevich’s opinion was that the plaintiff should be assessed by a psychologist and pain clinic review, as “There appears to be significant psychological and anxiety issues associated with his symptoms.”[59]He was also of the opinion the plaintiff is involuntarily exaggerating his symptoms.
[59]PCB 49
94In his second report, dated 4 July 2022, Professor Bittar agreed with Dr Asaid that the plaintiff appears to have developed functional overlay since his last assessment. Mr Asaid recommended, given his presentation of functional overlay, that the plaintiff should be assessed by a pain specialist or a psychologist or psychiatrist.
95Dr Lyon was of the opinion the plaintiff was involuntarily exaggerating symptoms as indicated by his anxiety levels, spasms, whole body paralysis and inappropriate or non-organic clinical signs.[60]
[60]DCB 12
96Dr Tan described the plaintiff’s shaking as bizarre, and not a manifestation of lumbar spine injury she had ever seen and raised the possibility of a functional neurological disorder. She considered the plaintiff might have involuntarily exaggerated symptoms as part of a functional neurological disorder.
97Dr Barton agreed with the Medical Panel and the non-physical basis of the plaintiff’s complaints; namely, a long history of dramatically described behaviour, the lack of objective evidence of a physical problem, the profound discrepancy between his physical appearance (ie, his physique) and the way he made out he was severely injured, the discrepancy between his limited straight leg raising and postures noted at other times, the marked increase in symptoms with the gentlest of axial loadings, the non-anatomical sensory changes and the global weakness in the left leg that does not fit with any physical problem. Dr Barton opined the plaintiff was deliberately exaggerating his presentation and clearly pointed to his condition being functional.[61] Functional means an additional or an emotional response to the plaintiff’s organic pathology.
[61]DCB 49-50
98The Medical Panel concluded the plaintiff suffered a temporary soft tissue injury to his low back in the presence of pre-existing spondylosis and minimal spondylolisthesis that had resolved, and that he is currently suffering from a somatic symptom disorder with predominant pain, persistent (DSM-V), relevant to the claimed injury.[62]
[62]PCB 136
99I note that many of the plaintiff’s symptoms do not fit with his organic pathology and have been described by specialist doctors as bizarre or (non-deliberately) exaggerated. For example, the symptoms of spasms, left leg weakness and collapse appear to have no organic basis. Dr Tan has never seen such symptoms in all her years of practice. Some of the opinions, for example Dr Lyon, Dr Barton and the Medical Panel, are of the view the organic component of his injury has completely resolved and he now has a somatic type of condition. Other reports from Dr Aliashkevich, Dr Asaid and Professor Bittar, report the need for him to be assessed by a pain specialist or a psychologist or psychiatrist because of the functional overlay he appears to suffer from.
100Only Drs Wong, Bhaskar and Altaf are of the view the plaintiff has organic-based physical symptoms. I note Dr Wong’s last report was dated 20 February 2020, so is now over two years out of date, and Dr Bhaskar prepared two very short reports to the treating GP dated 5 November 2020 and 1 December 2020. Dr Altaf, an expert in occupational medicine, was not shown the SPECT CT.
101Dr Sullivan notes the plaintiff has aggravation of lumbar spondylosis resulting in a post-traumatic chronic pain condition, presenting as chronic lower back pain predominantly on the left side and left-sided sciatica.
102As well as referring the plaintiff to a surgeon for stabilisation of the L5/S1, Dr Sullivan noted he should be referred to a pain management unit and a pain medicine specialist as well as a team including psychology and physiotherapy.[63]
[63]PCB 111
103The plaintiff did not have the ‘left sided L 5 nerve root injection’ that Dr Wong mentioned in his 2020 report, nor did he have the spinal fusion that Professor Bittar talked about in his 2020 report. Only Dr Sullivan in 2022 suggested a ‘stabilisation of the L5 S1 segment.’ The plaintiff has not had this done.
104Unfortunately, due to his being overseas, there is no report from the plaintiff’s treating GP, Dr Rawal.
Analysis
105In Meadows v Lichmore Pty Ltd,[64] Maxwell ACJ approved the practice, following Ashley JA’s decision in Jayatilake v Toyota Motor Corporation Australia Ltd,[65] in pain and suffering cases involving both physical and psychological causes, to first ask whether there is a substantial organic basis for the pain and suffering consequences relied on.
[64][2013] VSCA 201
[65](2008) 20 VR 605
106His Honour stated:
‘The Court, in assessing the pain and suffering consequences of an injury, must exclude the psychological or psychiatric consequences of that injury. It follows that, to establish serious injury, the applicant must satisfy the Court, on the balance of probabilities, that the organically based pain and suffering consequences satisfy the criterion of being ‘more than significant or marked and…at least very considerable.’[66]
[66] Meadows v Lichmore Pty Ltd [2013] VSCA 201 at [2] (Maxwell ACJ)
107In Meadows v Lichmore Pty Ltd,[67] Maxwell ACJ approved a two-step approach for serious injury applications in pain and suffering cases involving both physical and psychological causes. The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If that answer is affirmative, and the pain and suffering consequences satisfy the statutory criterion, then the applicant will succeed without the need for “disentangling” of the physical contributions to the pain and suffering from psychological contributions.
[67] [2013] VSCA 201
108I now turn to consider whether, on the balance of probabilities, the plaintiff’s current pain symptoms have a substantial organic basis.
109The plaintiff’ counsel submits seven doctors find the plaintiff has suffered injury to his lumbar spine in the form of aggravation of lumbar spondylosis/spondylolisthesis.[68] In closing submissions Counsel stated that that condition continues to afflict the plaintiff.[69]
[68] Plaintiff’s outline of submissions [6]
[69] T 104
110I agree the medical evidence supports that at the time the injury occurred in December 2018, there was a substantial organic basis for the plaintiff’s symptoms. It is accepted he had a pre-existing degenerative condition, lumbar spondylosis/spondylolisthesis, and the workplace incident aggravated that condition.
111The question is whether now, four years later, there is still a substantial organic basis for the plaintiff’s symptoms.
112I do not accept the evidence supports that there is presently a substantial organic basis for the plaintiff’s pain and suffering consequences, for the following reasons.
113In Professor Bittar’s first report in 2020 he recommends consideration of spinal surgery. However, by the time of his second report in July 2022 he has changed his opinion, and, noting the plaintiff has developed functional overlay, states “the findings on examination would suggest that he would not be a good candidate for spinal surgery.”[70]
[70]PCB 68
114In respect of causation, Professor Bittar’s opinion was, noting the plaintiff had longstanding spondylolisthesis which was largely asymptomatic, that symptoms “may have been arising from the spondylolisthesis but may also have been soft tissue/musculoligamentous in nature.”[71] In terms of treatment, Professor Bittar recommended conservative treatment and that he be reviewed by a pain specialist.
[71]PCB 68
115The suggestion of a soft tissue injury coincides with Dr Tan’s opinion from 8 October 2022 that if the plaintiff suffered an injury on 20 December 2018,[72] it was a self-limiting musculoskeletal injury and not of a serious nature, and it has long ago resolved completely.[73]
[72] The plaintiff in his affidavit states the incident took place on 20 December 2018 however medical practitioners refer to 21 December 2018.
[73]DCB 30
116Another more recent report was prepared by Dr Altaf, occupational physician, dated 26 July 2022. In his opinion the plaintiff had sustained an aggravation of underlying lumbar spondylosis and spondylolisthesis at L5/S1 which was previously asymptomatic, though since the subject injury on 21 December 2018 he has developed a chronic lumbar spine dysfunction with chronic mechanical back pain.[74]
[74]PCB 97
117As early as May 2019, six months after the workplace accident, Dr Aliashkevich noted the plaintiff’s significant functional overlay, anxiety, and some inappropriate clinical signs.
118Dr Aliashkevich stated the underlying cause of the condition was not lifting the box but the spondylolisthesis and pars interarticularis defects, and the condition is an aggravation of a pre-existing disease.[75] He was also of the opinion the pre-existing condition had overtaken any effects of work-related aggravation. He was also of the opinion the plaintiff is involuntarily exaggerating the symptoms.
[75]PCB 47
119In his report dated 8 March 2019, Dr Lyon said exactly the same thing, namely, “The pre-existing condition has in my opinion overtaken any effects of work-related aggravation.”[76] He was also of the view the plaintiff was involuntarily exaggerating symptoms.
[76]DCB 12
120In his report of 29 May 2019, Dr Alishkevich suggested the plaintiff have a SPECT/CT of the lumbar spine.
121In his reports of 14 August 2021 and 9 November 2021, Dr Asaid recommended a SPECT CT scan to be conducted. When he recommended it, he was of the view a likely organic component was contributing to the plaintiff’s condition which could be confirmed by further investigation. He noted that the previous treatment recommendations of corticosteroid injections and surgical intervention would not have been made absent an organic component. Both these recommendations were made in 2020. However, Dr Wong, despite recommending a corticosteroid injection, ultimately advised the plaintiff to pursue conservative treatment, and by 2022 Professor Bittar had changed his mind about the plaintiff having spinal surgery.
122By letter dated 1 December 2020 to Dr Vipan Kapadia of Melton Medical Clinic, Mr Bhaskar advises the SPECT scan returned normal.[77] It does not appear this result was provided to Dr Asaid, as his reports post-date the result.
[77] DCB 5, Exhibit D-A
123Neither Professor Bittar, Dr Altaf nor Dr Sullivan were given the plaintiff’s SPECT CT scan, the results of which were normal. This is despite the fact all three prepared reports in 2022, and the SPECT CT scan was conducted in November 2020. No explanation was provided for this. In a case where there is a dispute as to whether the plaintiff has a substantial organic basis for his injury, I would have expected all the radiology material would have been provided to the medical-legal experts.
124I note that Dr Tan had access to the SPECT CT results and references them in her last report.[78] As she had that material I prefer her opinion, and note it coincides with that of Dr Lyon and Dr Barton and that of the Medical Panel. The Medical Panel supports the view that the soft tissue aggravation to the pre-existing condition has long since healed and the plaintiff is currently suffering from a somatic disorder.
[78]DCB 30
125Counsel for the plaintiff at the outset of his closing submissions stated: ‘There is no doubt that he is a complex individual who probably suffers from some form of mental health issue. There’s no medical evidence to suggest that he has a psychiatric illness, but it’s quite clear that at various points in his life he’s been very troubled.’[79]
[79] T 102
126I take into account the oral evidence, the affidavit material as well as the tendered material and the submissions. Noting Counsel for the plaintiff’s submission, and assessing his evidence, I have formed the view that aspects of the plaintiff’s evidence is unreliable and give it lesser weight.
127I am of the view the weight of the medical opinions from the medical-legal experts supports a finding that the plaintiff suffers from a somatic psychologically-based condition and has unintentionally exaggerated his symptoms. From assessing the plaintiff when he gave evidence, I am of the view the plaintiff has demonstrated a tendency to exaggerate, for example when dealing with the university to avoid exclusion, as well as with his lecturer in his email about his app business, describing himself as leading “an international application development company…”.[80] There is an element of embellishment in these interactions, consistent with the opinions of the doctors that he may have exaggerated symptoms, whether consciously or otherwise.
[80]DCB 176
128I am not able to distinguish between whether the pain and suffering symptoms described by the plaintiff arise from his physical injury (which according to many medical opinions has resolved) or were the consequences of the functional overlay or somatic disorder or the chronic pain condition. The preponderance of his symptoms, although believed by him to be severe, cannot be adequately explained by the physical injury he suffered.
129I am of the view the weight of the evidence supports an original organic basis for the plaintiff’s symptoms in December 2018; however, by November 2022 the evidence has shifted. I am satisfied by the weight of the medical evidence there is no substantial organic basis for the plaintiff’s symptoms.
130I note the plaintiff’s counsel relied on Victorian WorkCover Authority v Nguyen [2016] VSCA 284 at paragraph [36], which provides:
‘We are satisfied that the finding was intended to exclude from consideration the psychological consequences of the physical injury. It was a positive answer to the question postulated by the first step articulated in Meadows v Lichmore Pty Ltd.[81] In consequence, there was no need for any further ‘disentangling’ of the physical contributions to disability from the psychological contributions.’[82]
[81] [2013] VSCA 201
[82] Victorian WorkCover Authority v Nguyen [2016] VSCA 284 at paragraph [36]
131In this case, the first step articulated in Meadows v Lichmore is answered ‘no’. The plaintiff’s claim fails, as I am not satisfied he has established on the balance of probabilities there is a substantial organic basis for his pain and suffering consequences.
132I am therefore not required to consider whether the plaintiff’s pain and suffering consequences meet the statutory criterion of being more than significant or marked and at least very considerable or whether his loss of earning capacity meets the required threshold.
133The application is dismissed.
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