Lawn v Victorian WorkCover Authority
[2018] VCC 1670
•17 October 2018
| IN THE COUNTY COURT OF VICTORIA AT MILDURA COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-17-05519
| PHILLIP JAMES LAWN | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | 24 September 2018 | |
DATE OF JUDGMENT: | 17 October 2018 | |
CASE MAY BE CITED AS: | Lawn v Victorian WorkCover Authority | |
| MEDIUM NEUTRAL CITATION: [First revision 25 October 2018] | [2018] VCC 1670 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury application – impairment of the face – trigeminal nerve – TMJD – pain and suffering only
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Barwon Spinners & Ors v Podolak (2005) 14 VR 622; Grech v Orica Australia (2006) 14 VR 602; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Kelso v Tatiara Meat Company Pty Ltd (2007] VSCA 267; Sabo v George Weston Foods [2009] VSCA 242; Transport Accident Commission & Anor v Dennis [1998] 1 VR 702; Stijepic v One Force Group Aust Pty Ltd & Anor [2009] VSCA 181
Judgment: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C W R Harrison QC with Mr C S O’Sullivan | Maurice Blackburn |
| For the Defendant | Mr W R Middleton QC with Mr R Kumar | Hall & Wilcox |
HER HONOUR:
Preliminary
1 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) in relation to an incident at work with Southcorp Wines (“the employer”) on 18 April 2012 (“the said date”).
2 The application is made under ss(a) of the definition of “serious injury” contained in s134AB(37) of the Act, and the plaintiff seeks leave to claim damages for pain and suffering only.
3 The body function said to be impaired is the face,[1] involving the trigeminal nerve and the temporomandibular joint (“TMJ”). Applications in relation to the right shoulder and psychiatric impairment did not proceed.[2]
[1]Transcript (“T”) 96
[2]T1
4 The plaintiff bears an overall burden of proof upon the balance of probabilities.
5 By ss(38)(c) of the Act, the impairment must have consequences in relation to pain and suffering which:
“… when judged by comparison with other cases in the range of possible impairments, or losses of a body function or disfigurement, as the case may be, fairly described [as at the date of the hearing] as being more than significant or marked, and as being at least very considerable.”
6 I am required to consider the consequences to this particular plaintiff, viewed objectively, arising from the injury. Comparison must also be made of the impairment arising from the injury in this particular application with other cases in the range of possible impairments or losses of body function, mental or behavioural disturbances or disorders.
7 Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases.
8 I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak[3] and Grech v Orica Australia Pty Ltd & Anor[4] in reaching my conclusions.
[3](2005) 14 VR 622
[4](2006) 14 VR 602
9The plaintiff swore two affidavits and was cross-examined. His wife, Cassandra, swore an affidavit on 11 September 2018. Also in evidence were medical reports and other material. I have read all the tendered material.
The Plaintiff’s evidence
10 The plaintiff is currently thirty-nine, having been born in April 1979. He is married, with two children, aged eighteen and nineteen.
11 Having completed Year 12, the plaintiff worked in various roles until starting with the employer on about 3 July 2006 as a full-time cellar hand.
12 On the said date, at work, the plaintiff fell when he tripped on a hose that had been left on a catwalk, landing heavily on his right side (“the incident”).
13 The plaintiff immediately felt right shoulder pain, as well as some pain in his back and right knee. The fall caused a hole in the right knee of his work pants. Within about an hour, he also noticed a tingling sensation and some pain in the right side of his face. That sensation increased throughout the shift, and by the time he arrived home from work, his face was tingling a lot.
14 The plaintiff could recall parts of the incident. He could not remember telling some doctors he did not feel anything initially apart from a tear in his trousers. He did trip on a hose, but he was not carrying one, as his physiotherapist had recorded.[5] He was holding turbo disc cleaning equipment to clean the tank. He was also wearing a safety helmet.[6]
[5]T13
[6]T14
15 When he came to, the plaintiff was lying on his back. He was then not aware that his face, or any part of it, had hit the ground.[7]
[7]T14
16 In the following months, the plaintiff had a lot of right-sided face pain and pain in his head and neck. It bothered him at work, particularly when doing physically taxing tasks. He was also having a lot of pain in his teeth and was referred to a dentist; however, the only dental treatment he has had since the incident was the removal of a tooth that was decayed.[8]
[8]T15- Dr Tankard 24 April 2013- referred to in Dr Slesenger’s report
17 In May 2012, the plaintiff started physiotherapy, and in that month he saw Dr Egesi at the Tristar Medical Group (“Tristar”) as he had increasing pain. He was referred for tests, including a CT scan of his facial bones on 21 May 2012.
18 The plaintiff completed a WorkCover claim on 1 June 2012. In that form, he described his injuries as sore face/shoulder/neck/right side. The injury occurred when he tripped up stairs on a catwalk and fell on the right-hand-side, carrying a turbo disc to clean a tank. The claim was accepted.
19 On 8 August 2012, the plaintiff saw pain specialist, Dr Sullivan, who recommended an MRI scan of his brain, and changed his medication. The MRI scan was undertaken on 21 August 2012. The plaintiff could not really remember seeing this specialist nor could he remember seeing an Ann French for treatment.[9]
[9]T15
20 Throughout 2012, the plaintiff continued to attend Tristar and was prescribed pain medication, including Tramal, Lyrica, Panadeine Forte and Endep. He continued to work despite pain.
21 In early 2013, the plaintiff was referred to neurologist, Dr Skibina, whom he saw probably three times. She increased his dosage of Endep.[10]
[10]T15
22 The plaintiff could not remember being referred to a maxillofacial surgeon[11] about his face because it was so long ago and he could not remember all the doctors he had seen.[12]
[11]Mr Kevin Spencer
[12]T15
23 The plaintiff returned to work the day after the incident, initially on normal duties. Two weeks later, he went to his health and safety officer, who put him on modified duties because he was not to do any physically demanding work because of both his shoulder and his face. The plaintiff continued to work normal hours on modified duties and did not have any time off. He eventually returned to normal duties two years after the incident.[13]
[13]T16
24 The return to normal duties led to an increase in the plaintiff’s pain when he had to lift anything heavy or exert himself. Fortunately, he was promoted to second in charge of the cellar, which meant less taxing physical work, and that made his pain levels more manageable.
25 The plaintiff thought he must have gone back to normal duties before he got this promotion.[14] His earnings increased from $68,987 in 2012 to $101,543 in the last financial year.[15]
[14]T16
[15]T17
26 The plaintiff disagreed that he had no difficulty with his work after the incident. He thought he got promoted because the employer did not know what to do with him.[16] On his return to work, he had pain doing tasks like dragging pumps and hoses, and asked for assistance, as is still the case.[17]
[16]T17
[17]T55-56
27 In May 2014, the plaintiff saw Dr Bhat as he was feeling depressed and anxious about his pain. It was having a negative effect on his sexual relationship with his wife and he was often moody and irritable. They were having marital problems and he was referred to a psychologist.
28 In cross-examination, the plaintiff denied he had seem a psychologist for these problems. He had seen a psychologist a couple of times but could not remember when, as it was a fair while ago.[18]
[18]T20
29 Mr Spencer referred the plaintiff to Dr Gerschman, whom he saw on 22 August 2014 about his head and face pain. He provided a splint for the plaintiff to wear at night. The plaintiff has seen Dr Gerschman about six times and last saw him last year for treatment to his jaw.[19]
[19]T27
30 Throughout 2015 and 2016, the plaintiff continued full time work. During that time, he had ongoing pain in the right side of his face and neck. He continued to wear the splint and take Lyrica and Nurofen Plus for pain.
31 By letter dated 4 May 2017, Gallagher Bassett advised the plaintiff’s liability had been accepted for a head injury resulting in TMJ and trigeminal neuralgia and right shoulder, based on the assessment of Dr David Elder on 21 April 2017.
32 The plaintiff continued to work with the employer as second in charge of the cellar. Although the work was largely supervisory, at times he had to do manual work, and that caused increased pain in his head and face. He continued to suffer pain and tingling in the right side of his head and face.
33 As of July 2017 when he swore his first affidavit, the plaintiff was taking 150 milligrams of Lyrica twice a day and also Nurofen Plus daily. He saw his general practitioner every few months and Dr Gerschman every six months.
34 Many day-to-day activities led to increased head and face pain. Talking for long periods increased the plaintiff’s pain, as did chewing food, so he now avoided things such as steak, chewing gum and lollies that required a lot of chewing. He found that situation frustrating. Now, he only eats slow-cooked beef. He does eat chicken and lamb which require chewing. He does not eat steak, but he has tried.[20]
[20]T30
35 The plaintiff noticed, when he got angry he tended to clench his face, and that led to a sharp increase in his pain. That had been an ongoing problem because of his mood difficulties.
Sleep
36 As of July 2017, the plaintiff’s pain was keeping him awake at night and causing him to sleep poorly, In September 2013, Dr Bhat had prescribed Temaze to help him sleep.
37 The plaintiff could only sleep on his left side and if he rolled on his right, he woke with a lot of pain in his face and head. Within about five minutes of waking each morning, he got a sharp pain in those areas.
38 The plaintiff continues to wear his dental splint. He wears it every time he goes to bed and also for long drives because his face tends to tense up when he drives, leading to increased pain. If he does not wear it when he sleeps, he has severe facial pain when he wakes up.
39 The plaintiff cannot remember telling Dr Slesenger his shoulder caused problems sleeping.[21] He agreed he told Dr Slesenger that his shoulder symptoms had persisted and, indeed, had deteriorated.[22] He did not mention that in his affidavit, because most of his pain is from his face going down into his neck.[23]
[21]T29
[22]T45
[23]T46
Golf
40 The plaintiff started playing golf when he was about fifteen, and by seventeen, he played off a handicap of 3. He was playing off scratch at the time of the incident. He had played since, but not to the same level, with his handicap being 6 as at July 2017. When he then played, he had to take painkilling medication before the round and again partway through. By the time he got to the second nine holes, he had a lot of pain in the right side of his head, going to his shoulder, therefore golf was nowhere near as enjoyable as it had been before his injury; however, he had been urged by his treaters to keep playing, so he did so.
41 Prior to the incident, the plaintiff was club champion at Wentworth Golf Club in 2011 and also won the club championships at Red Cliffs in 1998, 2000 and 2007, as was highlighted on the Club’s honour board.[24] He could not remember winning the handicap event at Red Cliffs in 2014.[25] All he could remember was a second – when playing with his brother-in-law at Coomealla in 2016.[26]
[24]T10
[25]T33
[26]T34
42 When he swore his second affidavit on 11 September 2018, the plaintiff’s golf handicap was 9.2. It is frustrating for him to not be as good at golf anymore and to have to play in pain, so he gets nowhere near as much satisfaction out of playing anymore. He often feels like stopping completely out of frustration, but Dr Gerschman and Sandy Boulton have urged him to keep playing.[27]
[27]T46
43 The problem with playing golf is the plaintiff’s head. If his shoulder was a problem, he would not be able to swing at all.[28]
[28]T32
44 The plaintiff takes one Nurofen Plus before, and one halfway through playing a round. There had been a dramatic effect on his ability to play golf because of his head and shoulder injury.[29]
[29]T32
45 The plaintiff agreed he had told Dr Schutz that the main impact of his injury was he used to be a scratch golfer and was no longer able to play at the same level because shoulder pain and exertion causes facial pain.[30]
[30]T35
46 The plaintiff’s current handicap is 9.1.[31]
[31]T35
47 The plaintiff agreed his handicap was progressively reducing from 6.2 in February 2007,[32] to the point where, on 5 November 2011, it was 0.8 and then on 22 December 2011, he was, in fact, on scratch. He agreed, on 12 April 2012, his handicap was 3.3, and that was not scratch.[33]
[32]T36
[33]T37
48 The plaintiff agreed he played golf three days after the incident, on 21 April 2012 and also the following day.[34] He drank a lot to be able to play. In May 2012, after the incident, his handicap went down to 1.3.[35] He agreed he played seven out of ten days in late May 2012, immediately after his injury. At that time, he drank a lot and the alcohol numbed the pain.[36]
[34]T38
[35]T39
[36]T40
49 The plaintiff played two rounds in the one day at Robinvale on 27 May 2012. He could play golf with this frequency drinking alcohol and taking Nurofen. He was “dead serious”.[37] He agreed he had told doctors before the incident he played off scratch and was then playing the best golf of his life.[38]
[37]T40
[38]T41
50 The plaintiff agreed he had played golf four times in seven days in April 2013 and could do so by taking pain relief.[39] He also agreed that his handicap was not that much different to prior to the incident; it goes up and down according to how well he is playing.[40]
[39]T42
[40]T37
51 When he was drinking and playing, the plaintiff had a six-pack, drinking a couple before he started, and he kept drinking as he played. He has been trying to cut down his drinking since last year, and he only drinks now at big social events.[41]
[41]T55
52 The plaintiff always plays golf with his father. He won the men’s doubles match with him on 12 July 2014. The plaintiff did not play well at all on that occasion. His father struggles by himself, but plays really well in pairs events with him.[42]
[42]T49
53 In re-examination, the plaintiff confirmed that pre-incident, he was playing off scratch, but he was no longer able to play to this higher level because of shoulder pain, exertion or facial pain.[43]
[43]T51
54 The plaintiff has not won any annual club championships from scratch since the incident. In the last year, he has played less golf this year because of work commitments.[44]
Golf records – 7 February 2007 - 21 July 2018
[44]T51
Date Handicap 7 February 2007 6.2 October 2007 - October 2010 below 5 October 2010 above 7 10 July 2010 below 6 30 September below 5 23 October 2010 – 1 January 2011 3.7 – 4.3 25 August 2011 4.9 10 September 2011 3.4 11 September 2011 below 2 29 October 2011 0.8 22 December 2011 0 5 February 2012 1.1 24 March 2012 3.2 15 April 2012 2.9 (incident 18 April 2012) May 2012 2.7 June 2012 below 2 February 2013 – 20 April 2013 2 – 2.3 28 April 2013 5.2 19 January 2014 7.3 April 2014 8 1 November 2014 below 6 19 September 2015 3.8 26 June 2016 above 7 July 2017 5.8 26 December 2017 8 21 July 2018 9.2 Current handicap 9.1 Speech difficulties
55 The plaintiff had had speech difficulties since the incident and when he had pain in his face and head, he had trouble opening his mouth properly, and that made speaking difficult. At work, his co-workers would often ask him to repeat what he had said because they could not understand him.
56 The plaintiff continues to have trouble speaking when he has facial pain. His wife and children frequently tell him they cannot understand what he is saying, and that causes him to become frustrated and arguments occur.
57 No one has referred the plaintiff to a speech a therapist. He has not sought any treatment in that regard because he “knows how to speak”. He agreed his speech is a little bit muffled, as Mr Millar described. It was not a problem before the incident. It bothers the plaintiff now because he gets frustrated as people always ask him to repeat what he has said.[45]
[45]T25
58 When the plaintiff yells or speaks loudly, he gets excruciating pain from his ear up to his temple and across the front of his eye. He has seen Dr Gerschman because of that pain.[46]
[46]T26
Activities
59 Gardening increased the plaintiff’s head and face pain while pushing the lawn mower and using a Whipper Snipper due to the vibrations. He now had to have three goes to do the lawn, whereas previously it took him half an hour. His doctors have encouraged him to be as physically active as possible.[47]
[47]T47
60 Shaving leads to increased head and face pain and the plaintiff had grown a beard to avoid shaving as much as possible. He had shaved recently because he had to go to a wedding.[48]
[48]T47
61 While he has difficulty with golf, gardening and shaving, the plaintiff still does these activities.[49]
[49]T48
Smoking
62 The plaintiff sometimes has difficulties moving his facial muscles to smoke. He cannot draw in as hard as he used to. The right side of his face is numb. He would say, on average, he smokes fifteen cigarettes a day, but used to smoke a packet of thirty before the incident.[50] He cut down for medical reasons because he would just like to give up.[51]
[50]T21
[51]T22
63 The plaintiff agreed he was shown smoking two cigarettes in an hour on the surveillance film on the morning of 4 November 2017. He thought it seemed to take a long time to smoke one cigarette, but agreed he was not shown having any difficulty smoking on the film but he cannot smoke like he used to.[52]
[52]T23
Driving
64 The plaintiff found driving increased his pain, which built up to a point that it became distracting and he did not feel safe driving. He often wore a splint when driving. If he drove to Melbourne to see a doctor, he stopped about once an hour to take a break and relieve the pain. If his wife came, she would often drive.
Intimacy and kissing
65 As of July 2017, the plaintiff’s pain continued to interfere with his intimacy with his wife. He found kissing very painful and the lack of intimacy had had a negative impact on their marriage.
66 The plaintiff confirmed his pain continues to have a negative effect on his sexual relationship with his wife. He found kissing very painful, as he deposed in his first affidavit, and told Dr Schutz.[53] That impacted on foreplay, depending on the type of kissing. He can kiss his wife on the lips.[54] They currently have a sexual relationship.[55]
[53]T20
[54]T21
[55]T24
67 The plaintiff had seen the surveillance film, but what he was shown doing he “[did] not call being affectionate”.[56]
[56]T21
68 The plaintiff agreed, at 11.20am, he was shown quite clearly kissing his wife on the lips. He had seen this film when he swore the second affidavit. He did not mention difficulty kissing in his second affidavit because it was already in his first affidavit. He agreed, so was golf and medication, and problems with speaking which were mentioned in his second affidavit.[57]
[57]T24
69 The plaintiff had not told Dr Gerschman about any problems with kissing or smoking.[58]
[58]T28
Current pain
70 In his supplementary affidavit sworn on 11 September 2018, the plaintiff confirmed he continues to get the pain and tingling to the right side of his face, as previously described, and those symptoms get worse with physical activity. He described the trigeminal nerve as the area up around his ear and down the right side of his jaw.[59]
[59]T28
71 The plaintiff agreed his pain is pretty much the same as reported by Dr Burns in 2013.[60] In re-examination, he confirmed his face pain is constant.[61]
[60]T31; T53, see paragraph [189] of my Judgment
[61]T53
72 The post-incident headaches he had described to Dr Roberts were part of the pain in his face he had mentioned in his affidavits.[62]
[62]T44
73 The plaintiff agreed with Dr Gerschman’s comment, that his progress had been slow, steady and a promising response to treatment.[63]
[63]T45
Current work
74 In about July this year, the plaintiff resumed cellar hand duties. This involved more manual work, which in turn leads to more pain in his face and head; however, he needs to keep working with things as best he can.
75 The plaintiff was in charge of an area, not second in charge as Mr Tierney deposed. He was in charge of the crushing area. He would be the second in charge leading hand when the supervisor was away.[64]
[64]T18
76 The plaintiff had given up the second in charge role, because he was getting too frustrated with the casuals not listening and the pain in his face, and he was getting too unfit, so he was going back to work with people in the cellar. He would not, then, get a supervisor’s allowance and $3,000 bonus or be able to do 300 hours overtime a year as he had done previously.[65]
[65]T54
77 The plaintiff had complained to his supervisor, Mr Cursaro, about problems doing his job, not to Mr Tierney, because Mr Tierney was above his supervisor. The plaintiff only speaks to Mr Tierney, at most, one or two minutes at a time, and not every day. There is no reason to talk to him. He is the cellar manager. The plaintiff talks to his supervisor and people under him, or who work with him. Although he has spoken to Mr Tierney,[66] the plaintiff never mentioned to him any difficulties he had speaking since the incident.[67]
[66]T25
[67]T19
78 During the vintage, Mr Tierney would come and say hello once a day on dayshift. In the afternoon and night the plaintiff did not see him at all. The plaintiff would speak to his supervisor, Mr Cursaro, every day, and they would have a smoke together.[68]
[68]T56
79 Seventy five per cent of the plaintiff’s current job is supervisory and 25 per cent physical. He continues to work normal hours, working three day shifts, 7.00am to 3.00pm, afternoon shift, 3.00pm to 11.00pm and nightshift, 11.00pm to 7.00am. He works overtime only when required on the weekends, or the fifteen-minute shift change. He was trying to do as much overtime as possible in his three years as a supervisor because it was non-physical work.[69]
[69]T19
80 The plaintiff normally works 41.25 hours a week outside vintage. In a vintage year, in roughly the last few years, he has done nearly 300 hours a year overtime.[70]
[70]T20
81 From June 2011, when the plaintiff earned $66,191, he earned a similar amount until the financial year ending 30 June 2014. Thereafter, he earned in excess of $92,953, with his most recent financial year earnings being $101,543.
Current treatment
82 The plaintiff continues to take Lyrica twice a day and also Nurofen Plus each morning. He has tried to go to work without medication, but the pain and tingling in his face is too much, and he cannot cope, and he needs to take it to stay at work.
83 The plaintiff sees Dr Bhat every five months for prescriptions and not for any other treatment. To start with, he saw him a lot. In total, he has seen him close to fifty times.[71]
[71]T12
84 The plaintiff last saw Dr Bhat on 2 September this year. He just sees him for prescriptions.[72] He disagreed with Dr Bhat’s most recent comment that his pain had improved significantly and affected him only occasionally. He always got some pain, and it increases with vigorous activity. He then gets more pain, more excruciating pain. He gets pain all the time. His pain has not changed and his face was numb while giving evidence. He disagreed with Dr Bhat’s comment that his pain happened every now and again.[73]
[72]T10
[73]T11
85 The plaintiff also disagreed with Dr Bhat that, at the moment, he does not have restrictions on the type of work he can do. He also disagreed with his comment that he had no reason to believe the plaintiff needed any significant restrictions on his ability to do day-to-day activities[74] and that he had no significant residual sequelae.[75]
[74]T12
[75]T13
86 The plaintiff sees Sandy Boulton, physiotherapist, at his work for a number of problems, including his back.[76]
[76]T46
Lay evidence
87 The plaintiff’s wife, Cassandra, swore an affidavit on 11 September 2018. She and the plaintiff have been together since they were seventeen.
88 Since the incident, Cassandra has noticed a number of changes in the plaintiff. His speech has changed and he often seems not to open his mouth properly when he talks and the words come out mumbled. She often finds it difficult to understand him, as do their children. When they raise it with him, he gets physically frustrated and arguments occur.
89 The plaintiff puts in his dental splint every night he goes to sleep. When he has forgotten to wear it, he has appeared to have a lot of pain in his face and wakes. She has seen that he has difficulty sleeping and wakes during the night because of face pain.
90 Since the incident, the plaintiff has been unable to eat certain foods that require a lot of chewing. For example he will not eat steak anymore or crinkle cut potato chips. She mashes up a lot of his vegetables.
91 Cassandra does a lot of the gardening, whereas the plaintiff previously did it. If he exerts himself physically doing some lawn edging, it causes him a lot of extra pain and she sees him getting very frustrated he cannot do things around the house.
92 Since the injury, the plaintiff has had difficulty with kissing. He said he finds it painful, and that has been very noticeable to her. They kiss far less frequently than they used to and the intimate side of their relationship has been reduced significantly.
93 The plaintiff appears to be in a lot of pain when he gets home from work and he is moodier than he used to be. They have had relationship difficulties since the incident, not having had them before.
94 The plaintiff used to be a very good golfer and won club championships. He told her he finds golf painful and difficult now, but he continues to play because his doctors have told him he should. She can see he gets a lot less enjoyment out of golf now than he used to before the injury.
The Plaintiff’s medical evidence
Treaters – general practitioners
Dr Egesi
95 Dr Egesi of Tristar in Mildura initially reported on 19 September 2012 that the plaintiff was being managed for ongoing facial pain after the work-related injury. At that time, he noted the plaintiff reported a good outcome with amitriptyline which was used in managing chronic pain and neuropathic pain.
Dr Bhat
96 Dr Bhat from Tristar later treated the plaintiff. He referred him to neurologist, Dr Skibina, in November 2012 for persisting right facial pain radiating to the temple region as well as the neck area after the fall. Dr Bhat noted the presence of neuropathic pain as the plaintiff seemed to be responding to recent Lyrica tablets.
97 Dr Bhat provided a medical certificate in April 2013. The diagnosis was then traumatic trigeminal neuropathy. He thought symptoms were consistent with the stated cause and considered future capacity for work would depend on the prognosis.
98 In July 2013, Dr Bhat advised that the plaintiff had been tried on various medications to control his ongoing facial pain secondary to trigeminal neuralgia. These included Lyrica, 150 milligrams twice a day, and Tegretol, 40 milligrams twice a day.
99 In January 2017, Dr Bhat reported that a second opinion was obtained from another neurologist, who suggested the diagnosis to be more in line with atypical facial pain, and suggested a referral to a maxillofacial surgeon who diagnosed the plaintiff with right-sided temporomandibular disc displacement. The plaintiff was treated with an occlusal night-splint for the same, and physiotherapy.
100 Dr Bhat thought, in effect, the plaintiff had coexisting TMD and trigeminal neuralgia. When last seen in October 2016, the plaintiff mentioned his pain had improved after applying a night-splint. As of January 2017, he remained on Lyrica for his facial pain, and Dr Bhat thought his condition was stable.
101 Dr Bhat’s clinical notes indicate the following
17 August 2017 – “came for a script.”
24 January 2018 – “here for review and scripts continues to have right jaw pain takes 1 tab of Nurofen Plus daily and also Lyrica.”
4 July 2018 - “here for review also needs scripts continues to have jaw pain and is on Nurofen Plus.”
102 The list of current medications indicated that Lyrica and Nurofen Plus were both prescribed on 4 July 2018.
103 In a medical certificate provided by Dr Bhat on 2 September 2018, he set out the plaintiff’s pain had improved significantly and affected him only occasionally. His condition remains stable and he presently does not have any restrictions on the type of work he can do. The prognosis is good.
104 Dr Bhat had no reason to believe the plaintiff has any significant restrictions on his ability to perform day-to-day activities. He thought the plaintiff’s injuries have improved and are presently stable, and he has no significant residual sequelae.
Dr Richard Sullivan, pain management specialist
105 Dr Richard Sullivan wrote to the plaintiff’s general practitioner at Tristar in August 2012 thanking him for the referral.
106 At that stage, Dr Sullivan noted the plaintiff had had intractable facial pain involving the zygomatic arch on the right side, with pain radiating into the jaw and up into the frontal and temporal region. He also had a pressured feeling behind his eyes, and sensitivity in his teeth.
107 Dr Sullivan did not examine the plaintiff but saw him via Telehealth. His best guess was that the plaintiff had facial pain following the work injury which was at risk of becoming a Chronic Pain Syndrome.
108 Dr Sullivan recommended a trial of amitriptyline medication, and for the plaintiff to come to Melbourne to be assessed by him and also see his colleague, Dr Ann French, for her expert opinion.
109 Dr Sullivan suggested consideration of a range of treatment as a prelude to a trial of peripheral nerve stimulation, depending how the plaintiff went with diagnostic blocks, and, if his pain persisted beyond five months, there be consideration for assessment and engagement in a multidisciplinary outpatient-based pain-management program. He also suggested an MRI scan of the brain and cervical spine. He looked forward to seeing the plaintiff in the near future in Melbourne.
Dr Olga Skibina, neurologist
110 Dr Skibina, saw the plaintiff on 8 January 2013.
111 The plaintiff described tingling on the face within an hour of a fall and two weeks later, pain in the right TMJ. That pain had been persisting with varying intensity of 6 to 7 out of 10. The pain was exacerbated by any movements and opening of the mouth. He also described episodes of blurred vision in the right eye.
112 In her report dated 15 May 2013, Dr Skibina did not provide details of her examinations, but diagnosed traumatic trigeminal neuralgia and possible traumatic right optic neuropathy or migraines. She noted previous brain MRI scans were all in normal limits.
113 Dr Skibina reported that the plaintiff was treated with Lyrica, and later amitriptyline (Endep), which was only partially effective in controlling his facial pain. He was advised to stop Endep and start carbamazepine in March 2013.
114 Dr Skibina thought there were no detectable injuries that could be identified on the MRI; however, in her view, right facial pain developed subsequently to injury and was consistent with the diagnosis of traumatic trigeminal neuralgia – a disabling and painful condition with variable course and outcomes. She also diagnosed possible traumatic right optic neuropathy or migraine.
115 Dr Skibina also noted behavioural therapies can be of significant benefit in managing Chronic Pain Syndrome. She suggested a formal ophthalmological review in light of the plaintiff’s ocular symptoms.
Dr Jack Gerschman, oral medicine specialist
116 The plaintiff was referred to Dr Gerschman by Dr Bhat in May 2014.
117 Dr Gerschman noted the prescription of Tegretol and Lyrica did not alleviate the plaintiff’s incapacitating pain, and another neurologist suggested the condition may represent atypical facial pain or TMJ dysfunction (“TMJD”). That specialist recommended an oral and maxillofacial surgeon, Mr Kevin Spencer, who in turn recommended Dr Gerschman see the plaintiff, as there was no surgical cure.
118 Dr Gerschman first saw the plaintiff in August 2014. The plaintiff then complained of excruciating spasms of right-sided TMJ joint pain, sensation of lump in the site of the right-sided masseter muscle, severe right-sided TMJ pain on biting into or mastication of anything but semi-solid or soft food.
119 On TMJ examination, maximum interincisal opening was limited to 37 millimetres (range 45-52 millimetres). There was deviation to the right on opening. There was severe right-sided TMJ pain and severe right-sided masseter, temporalis and pterygoid pain. There was right-sided clicking at 25 millimetre opening.
120 Dr Gerschman described these findings as mild anterior articular disc subluxation of the right TMJ and a minor irregularity of the right anterior articular disc. There was a right-sided TMJD present, with a severe myogenous component, with restricted opening (muscle-based) and mild to moderate arthrogenous[77] component (there was mild anterior articular disc subluxation of right TMJ). There was also a mild irregularity of the right anterior articular disc.
[77]“of articular origin, starting from a joint”: Younger, Stedman Medical Dictionary (28th ed, Emerald Group Publishing Limited, 2007) page 160
121 There was moderate to severe bruxofacets (tooth attrition due to bruxism, grinding and clenching).
122 Dr Gerschman thought the relatively asymptomatic TMD was most likely exacerbated by the fall. He noted that traditionally treatment of that is initially conservative with an occlusal night splint, targeted physiotherapy and muscle relaxants, with surgical procedures as a last resort.
123 Dr Gerschman commented the plaintiff experiences a much higher level of pain than expected by the MRI imaging, suggesting that secondary peripheral and central sensitisation was occurring. He thought the plaintiff had a comorbid condition of trauma-induced trigeminal neuralgic symptoms, as well as TMD. An orthotic device, namely an occlusal night-splint, was therefore provided to mitigate the effects of nocturnal bruxism, maintaining the TMD, along with the continuation of Lyrica. As of October 2014, Dr Gerschman thought there had been a slow, steady promising response to multimodal treatment.
124 Dr Gerschman considered the long-term prognosis was guarded, as there was a pre-injury history of nocturnal bruxism and most likely right-sided disc subluxation. He thought the TMD was likely to wax and wane, depending on a multiplicity of factors, besides the emotional issues and associated bruxism, for example wide oral opening such as yawning, biting into an apple or other hard or solid food, general anaesthetics involving wide oral opening, prolonged dental work, trauma to the joints, and arthritis.
125 Dr Gerschman noted that an AMA assessment was not applicable at that time as the plaintiff’s condition had not stabilised. He left blank the percentage impairment for mastication and deglutition, impairment of the Cranial Nerve V (trigeminal nerve), facial scarring disfigurement and olfaction (smell). He concluded there were no orofacial injuries which impaired mobility, eating in company was embarrassing, and there was an ongoing level of pain which may affect any work situation.
126 In a supplementary report dated 5 December 2014 , Dr Gerschman advised the right-sided disc subluxation was most likely pre-existing but asymptomatic; however, a sudden fall could produce that condition. He thought the sensation of a lump was most likely related directly to the trauma of the fall. The comorbid condition of trauma-induced trigeminal neuralgic symptoms was most likely directed to the fall. It was therefore reasonable to consider the plaintiff’s facial condition to be materially contributed to by the accepted work injury.
127 Dr Gerschman provided a further report in September 2018 at the request of the plaintiff’s solicitors. He confirmed that the plaintiff had a comorbid condition of trauma-induced trigeminal neuralgic symptoms as well as TMD, having accepted the neurologist’s diagnosis of trigeminal neuralgia. These conditions were organic in nature.
128 Dr Gerschman explained that the TMD prevents wide oral opening. The trigeminal neuralgia along with the TMD, will amplify the facial pain considerably.
129 Dr Gerschman noted an occlusal night splint was provided to mitigate the effects of nocturnal bruxism, maintaining the TMD, along with the continuation of Lyrica. There had been a slow, steady promising response to multimodal treatment.
130 Dr Gerschman thought the long-term prognosis was guarded.
131 There was no mention of any examination after July 2017 in this report.
132 Having reviewed the surveillance and report thereof, Dr Gerschman’s assessment of restrictions in day-to-day activities of living did not change.
133 In his records from 22 August 2014 to 17 August 2017, Dr Gerschman set out a timetable of treatment and progress as follows:
Date Action 12 September 2014 Occlusal splint fitted 3 October 2014 Splint adjustment, no change in symptoms 7 November 2014 Splint adjustment, minor improvement 19 November 2014 Splint adjustment, minor improvement 6 March 2015 Splint adjustment, a little better 8 April 2016 Splint adjustment, minor improvement 14 October 2016 Splint adjustment, moderate improvement 11 July 2017 Splint adjustment, moderate improvement, about 50 per cent better
134 In the Treatment Summary following the July 2017 attendance, Dr Gerschman noted:
“[O]cclusal splint has stabilised right TMJ dysfunction no worse slightly better. Stabilised trigeminal neuralgia no worse. Both conditions still present. Due to both conditions acting together no further improvements likely because of trigeminal neuralgia. Surgery to right TMJ is contraindicated.”
135 Dr Gerschman noted the MRI scan dated 26 August 2014 confirmed clinical findings.
136 Dr Gerschman’s notes indicated the plaintiff drank little alcohol and did not smoke.
137 In a report to the insurer of 17 August 2017, Dr Gerschman noted treatment of the plaintiff’s trigeminal neuralgia by his neurologist with medication and that his chronic TMD is ongoing and may require treatment indefinitely.
138 Dr Gerschman advised he would need to continue to see the plaintiff six monthly unless anything unforeseen happens, and replace his splint when it wears down and breaks. He noted, at times, conservative TMD treatment is inadequate and surgical approach is unnecessary.
Physiotherapy
139 The plaintiff attended Red Cliff’s Therapy Centre, where he last saw Sandy Boulton in July 2015, having first seen her in May 2012.
140 At the last visit, the plaintiff continued to have flare ups of his right-sided neck pain, right temporal and face pain, numbness of right cheek and right shoulder pain. Ms Boulton thought he would need to continue a functional strengthening program and general fitness programs to cope with the demands of physical employment.
Medico-legal evidence
Dr Joseph Slesenger, specialist occupational physician
141 Dr Slesenger examined the plaintiff in June 2018.
142 The plaintiff told him that his right shoulder symptoms had persisted and, indeed, had deteriorated. He had ongoing pain in the right shoulder with some restrictions to his range of movement. He tended to sleep on the left side and was generally more reliant on the left side.
143 The plaintiff then told him of sharp and stabbing pain aggravated by cold weather and chewing. The pain around the right side of his face had persisted and radiated to his temple to the right side of his neck, just below his ear.
144 The plaintiff was then taking 150 milligrams of Lyrica and Nurofen.
145 Dr Slesenger examined many areas of the plaintiff’s body.
146 Dr Slesenger thought the plaintiff presented six years after the incident injury in his right knee, right shoulder and sustaining right facial injury. He had been managed under his general practitioner, physiotherapist and maxillofacial surgeon and dentist, and described residual right shoulder pain, residual right facial pain, with symptoms radiating into the right maxillary sinus area, right temple area and right subauricular area.
147 Dr Slesenger noted the plaintiff had been able to remain in work despite ongoing impairment, performing modified duties. Initially, there were formal restrictions, having more recently changed his role, and he continued to perform duties with restrictions, working his pre-injury hours. He also described some residual restrictions with regard to domestic duties and recreational pursuits.
148 Dr Slesenger thought there was a soft-tissue injury, possible bursitis and residual right shoulder dysfunction. He also diagnosed right facial injuries resulting in right facial pain, including the TMJ area, the subauricular area and temple (outside his expertise). He also diagnosed a psychological impairment, which was also outside his expertise.
149 Dr Slesenger thought there was an organic basis to the plaintiff’s right shoulder injury that was causally related to the fall and he recommended restrictions on physical work.
150 The clinical evaluation was restricted to Dr Slesenger’s area of expertise, the shoulder and knee. He made no comment as to any restrictions required because of the plaintiff’s facial complaints.
Associate Professor Brue Love, orthopaedic surgeon
151 Mr Love examined the plaintiff in June 2018.
152 The plaintiff then described a non-specific pain over the anterior and posterior aspect of the right shoulder. He also described an altered sensation on the right side of the face radiating from ear to cheek, with an altered sensation of the right side of the scalp above the right ear, and pain when eating.
153 Mr Love noted around the house the plaintiff could no longer use vibrating equipment because he felt the vibrations aggravated his facial symptoms.
154 Examination was confined to the right shoulder, for which Mr Love thought there was an organic basis and was work related. He had seen the surveillance film and it did not change his view.
Dr Gregor Schutz, psychiatrist
155 Dr Schutz examined the plaintiff in June 2018.
156 The plaintiff described pain and numbness in the right side of his face. At times he has to lie in a dark room. The trigger can be chewing too hard or lifting something too heavy. The pain radiates into the nose and right temple. His cheek can get numb. His pain is up and down and generally is around 5 out of 10.
157 The plaintiff reported he had difficulty using vibrating machinery when gardening. There had been an impact on his marital relationship as it was difficult to French kiss, and oral sex was painful.
158 The main impact had been that the plaintiff used to be a scratch golfer and he was playing at a higher level when he injured himself. He stated he is no longer able to play golf at the same level because of shoulder pain, and exertion causes facial pain. If he is angry, he clenches his jaw, increasing his facial pain.
159 The plaintiff had changed from being an easygoing person to being angry. At times, he does not “give a shit”. When he is in pain, he feels like he has had enough.
160 On examination, the plaintiff’s speech, although slightly slurred, was easily understood.
161 On the history provided on mental state examination, as well as collateral sources of information, Dr Schutz thought the plaintiff had developed psychiatric conditions as per a recognised classification system DSM-5. The plaintiff had sufficient evidence of a Chronic Moderate Adjustment Disorder with Depressed Mood relevant to the reported work-related injury in the context of his ongoing pain and inability to engage in meaningful pre-injury activities. He reported mood changes and becoming irritable and angry, loss of motivation, poor short-term memory, loss of interest in activities, reduced energy and lowered motivation. He also reported negative rumination.
162 Dr Schutz thought the plaintiff’s psychological injuries had arisen in the context of the development of his chronic facial pain.
163 In Dr Schutz’s opinion, there was likely to be a psychiatric component to the plaintiff’s physical symptoms, which would be best described as psychological factors affecting a general medical condition. There was then sufficient evidence of a Major Mood Disorder, Personality Disorder, Psychotic Disorder or Post-Traumatic Stress Disorder.
164 Dr Schutz’s opinion did not change, having viewed the surveillance film.
Dr Debo Gorai, neurologist
165 Dr Gorai examined the plaintiff in June 2018.
166 Neurological examination showed slight decreasing pinprick sensation over the right side of the face starting from in front of the tragus of the ear, extending to about a few centimetres anterior up to the level of the palpebral fissure and the corner of the mouth. The plaintiff’s muscles of mastication, like the masseters, appeared to be well formed with no obvious wasting. The rest of the cranial nerve examination was normal.
167 Dr Gorai noted that since the incident, the plaintiff had been experiencing right-sided face pain. He had atypical features of trigeminal neuralgia and hence the clinical diagnosis is possibly of atypical trigeminal neuralgia. The possibility of TMJ may remain; however, it was outside his expertise to comment on TMJ dysfunction but he had noted the letters of dentist, Dr Gerschman, and would certainly agree with him that the fall could have led to the dysfunction of the TMJ because it was on the right side of the face.
168 Dr Gorai put the atypical definition on the plaintiff’s condition because the symptom’s duration tended to be lasting for much longer as compared to typical trigeminal neuralgia, which is usually described as short bursts of pain.
169 Dr Gorai explained the diagnosis of atypical neuralgia comes from the clinical history and the history of episodic pain and activity-related pain over the distribution of the trigeminal nerve of the right side of the face in the area related to the fall which are pointers towards an organic basis for the plaintiff’s symptoms.
170 Dr Gorai thought the plaintiff’s restrictions were multiple in his activities of daily living, with intimacy with his wife and social recreational activities of playing golf, all of which trigger off his pain, definitely affecting his life in a big way and would likely be a permanent problem.
171 Dr Gorai noted in May 2014 that the plaintiff went to see his general practitioner as he felt depressed and anxious about ongoing pain and the way it was affecting his life. The pain was having a negative effect on his sexual relationship and he was often very moody and irritable. He was then referred to a psychologist.
172 The plaintiff complained of less enjoyable golf, speech difficulty, pain in his face and head, opening his mouth properly, making his speech difficult. People ask him to repeat things because they cannot understand him, and increased head and face pain. Shaving led to increased face pain and he had grown a beard to avoid shaving as much as possible. Driving also increased this pain. The plaintiff effectively mentioned his pain continues to interfere with his intimacy with his wife and he finds kissing very painful, and the lack of intimacy has had a negative impact on their marriage.
173 Dr Gorai thought the plaintiff would definitely require ongoing pain management from a pain specialist as his condition was likely to be permanent.
Investigations
174 A CT scan of facial bones on 21 May 2012 showed no facial fracture.
175 An MRI scan of the brain in August 2012 was normal, as was the MRI scan of the cervical spine.
176 There was a further MRI scan in February 2013 that was normal for the brain and bilateral optic nerves.
177 There was an MRI scan of the TMJs on 26 August 2014. It was reported there was mild anterior subluxation of the articular disc noted on the right TMJ, which was associated with minor irregularity of the disc. There was normal left TMJ and no acute bony lesion identified.
The Defendant’s lay evidence
178 Thomas Tierney, the employer’s cellar manager, swore an affidavit on 23 August 2018.
179 Mr Tierney remembered, after the incident, the plaintiff had time off work. He commenced performing modified duties but continued to work full time.
180 In about April 2014, the plaintiff was promoted to the role of second in charge as a leading hand in the vintage area. The vintage season typically runs from January to May each year. This role involves the plaintiff managing a range of employees, including a number of temporary casuals during the vintage season.
181 The plaintiff has continued to work as second in charge on a full-time basis during that season. Outside the season, from about June to January each year, he works as a cellar operator. He is currently undertaking his pre-injury duties with the employer in that role, without any modification to his duties.
182 Outside of the vintage season, the plaintiff will occasionally fill in as second in charge leading hand when the usual second in charge leading hand is away.
183 The plaintiff has not made any complaints of pain, or that he is unable to perform any of the duties required of him in his various roles, since April 2014.
184 Mr Tierney has never noticed any issues with the plaintiff’s speech or his ability to communicate with him or other team members. The plaintiff has never mentioned any issues to him regarding any difficulty in speaking as a result of the alleged incident at work.
Video surveillance
185 There was video surveillance of the plaintiff conducted in November 2017. He was shown over an hour sitting at the front of his house, leaning forward on a chair whilst apparently on a mobile phone, smoking a cigarette. He admitted he smoked two cigarettes during that time.
186 The plaintiff was also shown talking to his wife. She then sat on his lap and he played with her, fondling her and kissing her for forty seconds or so.
The Defendant’s medical evidence
Medico-legal evidence
Professor Richard Burns, neurologist
187 The plaintiff was examined by Professor Richard Burns in Adelaide on 12 December 2013.
188 The plaintiff then described persistent tingling in the right cheek from his ear to below the eyelid, as well as around the ear, above and behind. He could not sleep on his right side because he would wake with pain. He gave up golf for two months, but this made no difference. If he chewed steak or had a heavy meal he would subsequently experience increased pain.
189 The plaintiff described pain lasting for fifteen minutes, occurring up to four times a day, relieved if he just sits and relaxes. He has some more severe pain in the same location; however, lasting for up to four hours, occurring every two weeks, made worse if he opens his eyes and his whole right side seems to pulsate, although the symptoms never waken him.
190 Generally, the plaintiff thought he was getting worse and that his jaw felt tighter, and the frequency of pain periods was increasing.
191 Neurological examination revealed a very indefinite subjective alteration to light touch in the circular area on the plaintiff’s right cheek, not strictly confined to the maxillary nerve. He could perceive light touch and temperature and there were no other signs neurologically. The right side of the plaintiff’s face appeared slightly swollen and his right TMJ was tender to palpation.
192 Professor Burns was unable to make a definite diagnosis. He thought the differential diagnosis lies between atypical facial pain and TMJD. The description is not typical of trigeminal neuralgia. The diagnosis has been reached on the basis of the history predominantly, together with the physical examination.
193 Professor Burns thought if the diagnosis is atypical facial pain, then one would have great difficulty in explaining it on the basis of trauma. If it is TMJD, then it is possible the plaintiff did injure his jaw in some way in the fall.
194 Professor Burns did not think the plaintiff was physically incapacitated and he could not see that physical restrictions were necessary. The issue was one of pain and the plaintiff’s ability to work when he was experiencing pain, but he does seem to manage reasonably well in that regard. He could not see a clear need to restrict the plaintiff’s activities.
195 Professor Burns thought the plaintiff should discontinue his medication gradually; firstly, carbamazepine, and then the Lyrica, under the supervision of his general practitioner. He thought the opinion of an oro-maxillary surgeon would be helpful, as the plaintiff’s symptoms might be helped by such simple measures as wearing a special plate.
196 Professor Burns was impressed by the history of symptoms being much worse after heavy chewing, together with the plaintiff’s TMJ tenderness and possible facial swelling. If that opinion indicates there is no dental explanation for the plaintiff’s symptoms, then he would treat him for atypical facial pain, and the usual treatment of that is with an antidepressant of some sort. He noted the plaintiff does have some symptoms to suggest he is depressed, but that may simply be reactive.
197 Professor Burns thought the plaintiff’s general prognosis was good but there was some concern because of the lack of diagnosis. If one of the diagnoses he had proffered was correct, then hopefully there would be some good prospect of relief of symptoms.
Dr Leslie Roberts, neurologist
198 Dr Roberts examined the plaintiff in March 2014.
199 The plaintiff told him, immediately after the fall he was aware of having a sore right knee and noted there was a hole in his pants. About an hour later, he was aware of tingling and numbness over the right side of his face and that had been the case since that time. In addition, he had pain in the same area and localised this to the lateral part of the face, just anterior to the ear on the right. He described some persisting pain, but more commonly he would have a stabbing sharp pain.
200 About once a month, the plaintiff had headaches that were localised to the same area. He complained of a lot of tightness in the head and localised this over the right temporal area. There was some neck pain over the anterior aspect to the right side of the neck.
201 The plaintiff continued to have recurrent headaches about once a month, with loss of vision in the right eye and dizziness. He also described a sharp stabbing pain, particularly coming on when he strains. He did describe having had mental strain when working in the area by himself, and doing two or three jobs at once made his symptoms worse. The tingling paraesthesia persisted.
202 The plaintiff was then being treated with 100 milligrams of Lyrica, and Tegretol, 200 milligrams, and Panadeine Forte as required. He sometimes had Nurofen as required and had had Endep in the past.
203 The plaintiff said he smoked ten cigarettes a day, having cut back several years ago from a packet a day. He drank alcohol in what he termed “binges” about once a month.
204 The plaintiff reported chewing food such as steak often gave him a shooting pain and chewing other food, at times, will trigger the pain. If he concentrates when driving, then the right side of his head hurts. He does play golf, but does find that his neck becomes quite tight and his head starts hurting; however, he plays once a week. On advice, he now uses a cart, but walks with it to try and improve his level of fitness.
205 On examination, there was a report of slight decreasing pinprick sensation over the right side of the face, just anterior to the ear, extending about 2 to 3 centimetres anteriorly from the level of the palpebral fissure to the level of the corner of the plaintiff’s mouth. There was subtle right facial asymmetry which was probably constitutional. Reflexes were symmetrical. The remainder of the examination was unremarkable.
206 Dr Roberts thought the plaintiff’s current treatment was appropriate. He agreed it is appropriate to try and reduce and withdraw the Tegretol slowly, although the plaintiff reported symptoms worsened since he did that. He thought the plaintiff ought to continue with Lyrica and take analgesics as required.
207 Dr Roberts also noted the plaintiff appeared to have migraine, which appeared, temporally, to be related to the work injury. In addition, he described symptoms of a suggested trigeminal neuralgia. Dr Roberts thought that was a little atypical with respect to the localisation, and there was no way of actually proving a diagnosis. He thought there was some sensory disturbance, in part, of the distribution of the second division of the right fifth cranial nerve. It seemed possible the plaintiff may have damaged this in the fall, although the site of it was unusual.
208 The plaintiff, himself, agreed that there had been a mental strain at work that would trigger his symptoms. Dr Roberts thought there was an element of depression and anxiety and recommended a psychiatric opinion regarding this.
209 Dr Roberts considered the use of Lyrica appropriate; however, that drug had been associated with an increased risk of depression and that needed to be taken into consideration. He agreed with the reduction in Tegretol, if tolerated, and suggested keeping Nurofen and Panadeine Forte to a minimum.
210 Dr Roberts would recommend an increase in the plaintiff’s physical activity with improvement in his general physical fitness and sense of wellbeing. A psychiatric opinion regarding the advisability of treatment for anxiety and depression would seem appropriate.
211 Dr Roberts recommended a continuation of Lyrica in the minimal effective dose, although that needed careful assessment as it may be associated with depression. He also would recommend the plaintiff continue with exercises he is doing by playing golf to try and increase his general levels of fitness and sense of wellbeing.
Dr David Elder, occupational physician
212 Dr Elder examined the plaintiff on 21 April 2017 for the purposes of his right shoulder injury.
213 On physical examination, Dr Elder thought the plaintiff’s speech was slightly difficult to hear because he tended to speak with his jaw still clenched, minimising jaw movement. There was no obvious asymmetry of the plaintiff’s face. Although the plaintiff stated he thought his cheek was swollen, it looked the same as the other side. Range of motion of the jaw was slightly limited opening and limited in natural motion to the right. He was tender over the right TMJ.
214 Sensation was diminished and slightly unpleasant over the cheek, but this region did extend over the forehead, the chin, the posterior part of the right scalp and down into the neck/trapezius, not all of which was in the distribution of the trigeminal nerve. Dr Elder thought this may represent abnormal illness behaviour.
215 Dr Elder considered there was good evidence that the plaintiff suffered a right shoulder injury and he had right shoulder dysfunction.
216 Dr Elder carried out a permanent impairment assessment under the AMA Guide. He assessed the plaintiff’s TMJ joint disc dysfunction on mastication and deglutition resulted in a 5 per cent whole person impairment and a slight disruption to speech, a 5 per cent speech impairment. Dr Elder also made an allowance for trigeminal neuralgia.
Mr Hugh Millar, ENT specialist
217 Mr Millar examined the plaintiff on 9 October 2017.
218 Mr Millar noted the recurring right facial pain was the main problem and aggravated by any form of exertion to the extent the plaintiff needed to take Lyrica and/or Nurofen in the course of playing golf now on a handicap of 7. Similarly, exertion from mowing the lawn aggravated the pain, so that usually his wife did it.
219 Dr Gerschman had provided a night splint, and that helped in the sense of preventing clamping or bruxism. The plaintiff may wear that during golf. Mastication was restricted and the plaintiff mainly used the left side of his mouth when chewing, and his diet was reduced to chicken or fish, as he cannot chew or eat any solid material, which includes most meat. He believes his speech is impaired due to difficulty on opening his mouth to project words.
220 Mr Millar noted that the plaintiff’s speech was a little muffled as he tended to articulate with a semi-closed mouth. There was no facial asymmetry. There was mild tenderness to palpation over the right TMJ. Mandibular excursion appears basically within normal range and occlusion appears adequate. The plaintiff also located an alleged palpable lump over the centre of the right mandibular lower border, which was a normal anatomical notch. There was no abnormality of facial sensation.
221 Mr Millar thought it seemed clear the plaintiff suffered a significant soft tissue injury to the right side of the face in the areas of the zygomatic arch and TMJ. The MRI examination quoted by Dr Gerschman indicated there was mild disc damage. The diagnosis was, therefore, mild right TMJD secondary atypical facial neuralgia.
222 Mr Millar considered the findings on examination are minimal and indicated only mild tenderness of the right TMJ, with no significant restriction of jaw mobility, and no crepitus, all of which would indicate a mild joint injury. There was no other explanation for the symptomatology than the incident.
223 Mr Millar noted the plaintiff’s claimed pain and restrictions were somewhat inconsistent with the clinical presentation and the mild degree of injury to the right TMJ. The term “atypical facial neuralgia” is used usually when there is no apparent cause for intractable facial pain; however, the pain described by the plaintiff in the area of the TMJ was referral upward to the temple and sometimes anteriorly to the eye is all within the distribution of the fifth cranial nerve. This does raise the question as to a psychosomatic condition contributing to the alleged severity of the symptomatology.
224 Mr Millar could not demonstrate any significant speech disability. He thought the prognosis appeared poor, in that all forms of medication only modified the facial pain, and there is certainly no indication for surgery. He suggested a psychiatric referral may be appropriate.
225 Caution should be applied to Dr Elder’s diagnosis, as he is an occupational physician, not an ENT.[78]
[78]T8
Overview
226 The plaintiff suffered injury to the trigeminal nerve and his TMJ as a result of the incident. His statutory benefits claim for injury to the face was accepted, as was his s98 application in relation to both conditions, following an examination by Dr Elder. Although Mr Millar, ENT specialist, was not involved in that process, he confirmed this diagnosis.
227 Whilst the plaintiff has little recollection of the incident circumstances and he has given different versions as when he first experienced facial pain,[79] I am satisfied he injured his face when he fell on the said date at work.[80]
[79]T89
[80]T97
228 Counsel for the defendant indicated the following matters were central to the determination of this application: credit; the nature and extent of the plaintiff’s injury and whether it has an organic basis; issues of disentanglement and, finally, questions of range, given the plaintiff’s full-time work, promotion and involvement in golf post incident.[81]
[81]T71
229 Counsel for the defendant submitted that there was no substantial organic basis for the plaintiff’s present condition and “certainly” there were no consequences that met the test of “very considerable”.[82]
[82]T7,T91
230 In relation to the first point, counsel for the defendant relied on the following:
· Dr Skibina could not identify any detectable injuries on the MRI scan, describing a Chronic Pain Syndrome which, it was submitted, put some doubt as to her confidence in her diagnosis.[83]
[83]T83
·Dr Roberts noted that psychological factors almost certainly contribute significantly.
·Mr Millar found an inconsistency between claimed pain and restriction and the nature of an organic injury and raised a question of psychosomatic factors contributing.
·Dr Sullivan thought there was a risk of the plaintiff’s becoming a Chronic Pain Syndrome.
·Dr Skibina suggested behavioural therapy in managing the plaintiff’s chronic pain.[84]
·Dr Gerschman thought the plaintiff was experiencing a much higher level of pain than expected.[85]
[84]T90-1
[85]T91
231 In response, counsel for the plaintiff relied on the views of each of the defendant’s doctors, Dr Roberts, Dr Elder and Mr Millar, who found, on examination, involvement of the trigeminal/fifth cranial nerve “which has an ophthalmic, maxillary and mandibular component”. Dr Elder found sensation diminished in the trigeminal nerve and Mr Millar similarly identified involvement of the fifth cranial/trigeminal nerve.[86]
[86]T103
232 In addition to these practitioners, I note that neurologist, Dr Skibina, thought the plaintiff’s post-incident right-sided facial pain was consistent with the diagnosis of traumatic trigeminal neuralgia. Dr Gerschman, oral medicine specialist, accepted this diagnosis.
233 Significantly, the plaintiff continues to be prescribed Lyrica and Nurofen to control the pain related to this neurological condition.
234 Accordingly, I accept there is an organic explanation for the plaintiff’s ongoing facial numbness.
235 There has been no suggestion by any examiner that the plaintiff’s TMJ problem is not organically based.
236 While Professor Burns was unable to make a definite diagnosis, he thought the differential diagnosis lay between atypical facial pain and TMJD. Dr Elder allowed an impairment under the AMA Guides for TMJD. Mr Millar diagnosed mild right TMJD – finding a significant soft tissue injury in that area.
237 Dr Gerschman is the expert in relation to TMJD, the plaintiff having been referred to him to by oral and maxillofacial surgeon, Mr Spencer. Dr Gerschman continues to treat the plaintiff for that condition, providing a splint and seeing him for regular, ongoing review. He also accepts that the trigeminal nerve is involved in the plaintiff’s current presentation. In his view, these two conditions together will amplify the plaintiff’s facial pain considerably.
238 Whilst Dr Gerschman noted the TMD was pre-existing,[87] there no evidence of the plaintiff having any facial or jaw pain prior to the incident.
[87]T80
239 Having been satisfied that the plaintiff’s facial impairment is organically based as at the date of hearing, the issue then is whether the consequences thereof are “serious”.[88]
[88]T77
Credit
240 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[89]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[89](2010) 31 VR 1 at paragraph [12]
241 In terms of credit, counsel for the defendant relied on the surveillance film and the plaintiff’s failure to mention problems with kissing in his second affidavit, after having seen the film. Further, the plaintiff did not mention any difficulties in this regard to Dr Gerschman.[90]
[90]T72
242 I indicated during the hearing that I did not consider what was shown on the film to be inconsistent with the plaintiff’s description of his problems with kissing. Further, in my view, this activity was not one that was central to the determination of this application.[91]
[91]T72
243 Counsel for the defendant also criticised the plaintiff’s failure to mention any problems with his shoulder in his affidavits, yet he agreed he told Dr Slesenger about persisting shoulder pain and difficulty sleeping on his right side.[92] It was submitted it was rather disingenuous the way the shoulder was treated, having been initially one of the Particulars of Injury.[93]
[92]T74
[93]T74
244 It was also submitted the plaintiff was slow to make concessions, an example being that he finally accepted his pain was of the nature described by Professor Burns.[94]
[94]T75
245 It was submitted the plaintiff’s evidence about difficulty smoking should not be accepted as he had not complained to any doctor in this regard and it was suggested he became more equivocal about the issue, having seen the film.[95]
[95]T75
246 Further, the plaintiff was not critical of Mr Tierney’s affidavit until cross-examination, having had a chance to respond to it earlier.[96] It was submitted “the whole work scenario underscored the reliability of the plaintiff as a witness”.[97]
[96]T75
[97]T76
247 In response, counsel for the plaintiff submitted the plaintiff was “utterly guileless”, citing his evidence as to why he had not played much golf recently. It was submitted the plaintiff was forthright and made appropriate concessions quite readily and was not evasive. It was submitted, self-evidently, the plaintiff was a “fairly taciturn, stoic and phlegmatic personality”, explaining why some matters were mentioned to some doctors and not others.[98]
[98]T96
248 I found the plaintiff to be a rather unsophisticated witness. I accept, however, that he generally did his best to give an honest account of his pain and restrictions although I found his evidence about his golf since the incident difficult to accept.
Pain
249 As Maxwell P said in Haden Engineering Pty Ltd v McKinnon,[99] the evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain (both in court and to doctors).
[99](supra) at paragraph [11]
250 The plaintiff continues to suffer constant pain and tingling to the right side of his face, around his ear and down to the right side of his jaw, worse with physical activity or stress. He has consistently described his jaw facial pain to medical examiners in similar terms.
251 The plaintiff’s description of excruciating pain at times was in addition to, and not inconsistent with, his complaints of pain to Professor Burns in 2013, which he readily accepted were accurate.[100]
[100]T82
252 Whilst his right shoulder causes the plaintiff some difficulty sleeping, his main problem at night is his facial/jaw pain for which he requires a splint every night.
253 As counsel for the plaintiff submitted, Dr Bhat’s clinical notes show ongoing complaints of jaw pain. That pain never disappears and continues right through to now. The entry of 4 July 2018 is in these terms. Lyrica continues to be prescribed exactly for that complaint.[101]
[101]T102
254 In those circumstances, it is difficult to explain Dr Bhat’s recent medical certificate dated 2 September 2018.
255 I accept that the plaintiff’s facial pain persists, with Dr Bhat continuing to prescribe the strong medication, Lyrica, for this condition
256 Whilst Dr Gerschman thought there had been a slow, steady, promising response to treatment,[102] he made this comment in both his 2014 report and also his supplementary report of September this year. Despite these comments, the plaintiff continues to experience pain and restrictions in various activities.
[102]T81
Medication and treatment
257 Counsel for the plaintiff relied on the comments of Dodds-Streeton JA in Kelso v Tatiara Meat Company Pty Ltd,[103] where her Honour noted that where chronic pain was a prominent feature of the appellant’s case, the endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a “very considerable” consequence.
[103](2007] VSCA 267 at paragraph [199]
258 Counsel for the plaintiff submitted the plaintiff continues to take significant medication for his facial pain, presently taking Lyrica twice a day and also Nurofen Plus each morning. He needs to take this medication to stay at work.[104]
[104]T103
259 I do not accept, as counsel for the defendant submitted, that Lyrica is being prescribed for headaches.[105]
[105]T93
260 Although Professor Burns at an early stage thought Lyrica was not required, this medication has continued to be prescribed and Dr Roberts had thought it was appropriate.[106]
[106]T104
261 The plaintiff continues under the care of Dr Gerschman, who reviews him every six months or so. He has provided the plaintiff with a splint which he wears at night to sleep, as his wife confirmed.
262 The plaintiff requires ongoing treatment, as Dr Gerschman advised the insurer in his letter of August 2017. The TMD needs to be treated in its own right but it also aggravates the plaintiff’s excruciating trigeminal neuralgia. Treatment of that condition (also termed “suicide disease”) by the plaintiff’s neurologist is with medication, and his chronic TMD is ongoing and may require treatment indefinitely.
Work
263 Counsel for the defendant submitted that full-time work militated against a serious injury.[107]
[107]T84
264 However, as counsel for the plaintiff submitted, the plaintiff had difficulties on his return to work and continues to experience problems doing various manual tasks, such as dragging pumps and hoses, because of his facial injuries.[108]
[108]T97
265 For two years after the incident, the plaintiff worked on modified duties, as Mr Tierney confirmed. The plaintiff then returned to normal duties which led to an increase in pain when he had to lift anything heavy or exert himself.
266 The promotion to second in charge meant less physically demanding work for the plaintiff; however, since the middle of the year, he has returned to cellar work. Whilst earning less in this role, he gave up his supervisory role because of the stresses involved in that job.[109]
[109]See paragraph [76] of my Judgment
Gardening
267 The plaintiff is unable to operate machinery involved in gardening and his wife now does most of those tasks. Operating vibrating machinery, such as a Whipper Snipper, causes him increased facial pain.
Driving
268 The plaintiff often wears his splint whilst driving, as he experiences increased facial pain when concentrating behind the wheel. He has to take breaks during longer drives and at times, his wife drives.
Speech
269 The plaintiff claims that his speech has been affected by his facial injury. His family and co-workers have difficulty understanding him and he is frustrated when he is asked to repeat himself.
270 Whist the plaintiff gave evidence, there were many occasions when he was asked to repeat his answers as it was difficult to understand his responses. He explained that his pain increased when he opened his mouth properly to speak loudly or for a long time.[110]
[110]T101
271 Medical examiners on occasion have noticed problems with the plaintiff’s speech.
272 Mr Millar described the plaintiff’s speech as a little muffled, otherwise normal. Whilst it is outside Dr Elder’s specialty, he raised the issue in his report and allowed a 5 per cent impairment under the AMA Guides in relation thereto.[111]
[111]T84
273 When asked why he did not go to a speech therapist if he had a problem with talking, the plaintiff responded he did not need to learn how to speak.[112]
[112]T87
274 Whilst Mr Tierney had not noticed any difficulty with the plaintiff’s speech post incident, he does not speak to the plaintiff often.[113] The plaintiff’s wife confirmed he spoke normally pre incident and had difficulty thereafter. Her evidence was not challenged.[114]
[113]T88
[114]T100
275 It is unusual, with this background, that Dr Gerschman made no mention of any speech problems in his somewhat convoluted report. He did note however the plaintiff had problems opening his mouth widely because of his TMJD.
276 As counsel for the plaintiff submitted, if the plaintiff presents all the time like he did in the witness box, there is no reason to believe that this would be a frustrating experience listening to him.[115]
[115]T105
Mastication
277 I accept, because of his facial pain and jaw problems, the plaintiff has difficulty chewing and eating solid food, as Dr Gerschman explained. As the plaintiff told Dr Slesenger and others, he experiences a sharp and stabbing pain when chewing. This situation was confirmed by the plaintiff’s wife, who described having to smash up the plaintiff’s vegetables for him.
278 Further, Dr Elder made an allowance under the AMA Guides for an impairment in this regard.
Intimacy and kissing
279 Counsel for the plaintiff submitted problems with kissing were a consistent complaint and would have been embarrassing for the plaintiff to depose to. The plaintiff’s difficulties in this regard were corroborated by his wife.[116]
[116]T106
280 I accept the plaintiff may have some issues in this regard in the very intimate sense because of facial pain, as noted by Dr Schutz,[117] but he clearly is still able to engage with his wife in an intimate/affectionate sense as shown on the surveillance film, with her sitting on his lap kissing him for a short time.
[117]See paragraph [157] of my Judgment
Golf
281 Save for the need to take medication before playing golf, I am not satisfied the plaintiff’s facial injuries have seriously impacted on his golf capacity.
282 Prior to the incident, the plaintiff was not consistently playing off scratch. Thereafter, his handicap fluctuated and at times went down to very low figures. He was able to play golf only a couple of days after the incident. At one time, he played seven times in ten days, and on another occasion, he played two rounds on one day.
283 I do not accept the plaintiff could play golf with that frequency and success by drinking his way through a round as he described.[118]
[118]T77
284 Further, there is no evidence from the plaintiff’s father, with whom he has played golf regularly in recent years, confirming his difficulties.
285 I do not accept the plaintiff has gone from a scratch golfer before the incident to his current handicap of 9.1 because of facial pain.[119]
[119]T80
286 Counsel for the defendant submitted the consequences that were claimed were “pretty sketchy” in the plaintiff’s affidavit. Further, many of the activities were still within his capacity.[120]
[120]T95
287 Reliance was placed on the decision of Sabo v George Weston Foods,[121] where the Court cited, with approval, Callaway JA’s comments in Transport Accident Commission & Anor v Dennis,[122] that many impairments are considerable, in the sense they are important or substantial without being very considerable.
[121][2009] VSCA 242
[122](1998) 1 VR 702
288 When doctors talk about activities of daily living, intimacy, social recreational activities of playing golf all triggering off the plaintiff’s pain and definitely affecting his life in a big way, and likely to be a permanent problem for him, it was submitted that is not borne out by the facts.[123]
[123]T89
Findings
289 The plaintiff, now aged only thirty-nine, is still a relatively young man and will continue to experience facial/jaw problems for many years to come.[124]
[124]T104
290 In Stijepic v One Force Group Aust Pty Ltd,[125] Ashley JA and Beach AJA discussed the circumstances of a young plaintiff who faced, in the foreseeable future, a continuation of painful symptoms and of consequential inhibitions upon his enjoyment of life.
[125][2009] VSCA 181 at paragraph [43]
291 The Court held, when judging the pain and suffering consequences for the appellant, by comparison with other cases, it was relevant to look at the likely period for which those consequences would be experienced. It was noted, all things being equal, impairment consequences which a man or woman would have to put up with for forty years might well be judged more serious than the same consequences which a man or woman may have to put up with for a much shorter period of time.
292 I accept the plaintiff will continue to suffer facial and jaw pain for the foreseeable future. Despite ongoing strong medication, Lyrica and the use of a night splint, his difficulties continue.
293 Facial pain and the need to be careful of what he eats, are an everyday occurrence for the plaintiff. The need to wear a splint at night is ongoing and he is woken by pain if he forgets to wear it, as he wife confirmed.
294 I accept that in situations of stress or heavy activity such as at work or driving, the plaintiff’s face tenses up and his pain level increases.
295 Whilst Dr Gerschman does not specifically deal with any speech problems experienced by the plaintiff, I accept that because of facial pain and difficulties fully opening his mouth, as Dr Gerschman confirmed, the plaintiff speaks in a somewhat muffled voice and is difficult to understand.
296 Taken as a whole, in my view, these consequences satisfy the statutory test of “serious”.
297 Accordingly, I grant leave to the plaintiff to bring proceedings for damages for pain and suffering.
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