Mahmandar v Melbourne Chef (Aust) Pty Ltd
[2012] VCC 1715
•16 November 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-04447
| MOWAFFA MAHMANDAR | Plaintiff |
| v | |
| MELBOURNE CHEF (AUST) PTY LTD | Defendant |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 October 2012 | |
DATE OF JUDGMENT: | 16 November 2012 | |
CASE MAY BE CITED AS: | Mahmandar v Melbourne Chef (Aust) Pty Ltd | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1715 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – pain and suffering and loss of earnings consequences of mental or behavioural disturbance or disorder – whether the consequences of injury were more than “serious” to the extent of being “severe”.
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited: Barwon Spinners Pty Ltd v Podolak & Ors [2005] VSCA 33
Judgment: Leave to the plaintiff to bring common law proceedings for pain and suffering and loss of earning capacity damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Chancellor | Maurice Blackburn Pty Ltd |
| For the Defendant | Mr I Gourlay | Hall & Wilcox |
HIS HONOUR:
1 Mowaffa Mahmandar alleges that he suffered injuries in the course of his employment with the defendant in 2007. He seeks the leave of this Court to issue proceedings to recover damages for pain and suffering and loss of earning capacity in respect of those injuries.
2 His right to do so is governed by the provisions of s134AB of the Accident Compensation Act 1985 (“the Act”). In order to obtain such leave, the Court must be satisfied, on the balance of probabilities, that he has suffered a “serious injury”.[1]
[1]Section 134AB(19)(a)
3 The term “serious injury” is defined in s134AB(37) of the Act, insofar as is relevant to this application, as a “permanent severe mental or permanent severe behavioural disturbance or disorder”.
4 The term “permanent” is to be interpreted as meaning “likely to persist in the foreseeable future”.[2]
[2]Barwon Spinners Pty Ltd v Podolak & Ors [2005] VSCA 33
5 The term “severe” is to be satisfied by reference to the consequences to Mr Mahmandar of any mental or behavioural disturbance or disorder with respect to pain and suffering and loss of earning capacity, when judged by comparison with other cases in the range of mental and behavioural disturbances or disorders.[3]
[3]Section 134AB(38)(b)
6 A mental or behaviour disturbance or disorder shall not be held to be severe unless the pain and suffering consequences or the loss of earning capacity consequences are, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe.[4]
[4]Section 134AB(38)(d)
7 The Court shall not grant leave on the basis that Mr Mahmandar has established the loss of earning capacity required by s134AB(38)(b) unless he establishes, in addition to the requirements of ss38(d), that at the day of the hearing, he has a loss of earning capacity of 40 per cent or more, measured in accordance with sub-paragraphs (38)(f) and (38)(g).[5]
[5]Section 134AB(38)(e)
8 In this proceeding, initially Mr Mahmandar alleged that he had suffered a “serious injury”, in that he had suffered a physical injury to his left and right shoulders, together with a Chronic Pain Syndrome.
9 At the hearing of this matter, counsel for Mr Mahmandar indicated that the claim, in substance, was that Mr Mahmandar had suffered a permanent severe mental or permanent severe behavioural disturbance or disorder so as to satisfy the definition in the Act of the term “serious injury”. Although he did not formally abandon the claim by Mr Mahmandar that he had suffered physical injuries to his shoulders which were sufficient to constitute a serious physical injury, such allegation was not pursued at the hearing. That is, the case put for Mr Mahmandar was that he had a “serious injury”, in the sense in which that term is defined in part (c) of the definition of that term in s134AB(37) of the Act. On the evidence before me, I am not satisfied that Mr Mahmandar suffered a physical injury which satisfied the definition in part (a) of that definition. Counsel for Mr Mahmandar did not seek to persuade me otherwise.
10 The issues to be determined in this case are:
(a)Has Mr Mahmandar suffered a mental or behavioural disturbance or disorder which can fairly be described as being more than serious to the extent of being severe?
(b)Is such disturbance or disorder permanent?
(c)Did such disturbance or disorder arise in the course of his employment with the defendant?
(d)Has he established a loss of earning capacity of 40 per cent or more?
Background and Relevant History of Events
11 Mr Mahmandar is currently fifty years old. He resides in Melbourne.
12 He was born in Syria and came to Australia from Dubai in February 2006. He had previously worked as a shop assistant and later as a filing clerk for the City Council of Abu Dhabi where he had worked for about fifteen years before departing for Australia.
13 He commenced working for the defendant on a casual basis in early 2007. In June 2007, he was employed by the defendant on a permanent basis as a full-time cook. He gave evidence that his work was heavy and repetitive. He was no challenged in respect of this. After June 2007, he was working on a full-time basis but regularly worked overtime when it was available to him.
14 By December 2007, he experienced discomfort in his left arm which became increasingly painful. He developed considerable pain in his left shoulder. This appears to have been aggravated by a busy day of mixing, pushing trolleys, carrying trays and general heavy and repetitive work.
Aftermath of Injury
15 On 8 December 2007, Mr Mahmandar attended at the Mill Park Super Clinic where a doctor provided him with painkillers and a referral for an x‑ray. Soon after, on 10 December 2007, Mr Mahmandar attended his usual general practitioner, Dr Basman Marcus, at the Settlement Road Clinic in Thomastown. Dr Marcus examined him and advised him to rest. He certified him as being unfit for work.
16 Mr Mahmandar has never returned to work since that time.
17 In March 2008, Mr Mahmandar was referred to Mr John Owen, orthopaedic surgeon. His shoulder was injected with anaesthetic and cortico-steroid. This produced no relief, but the following day he experienced severe headaches and nausea.[6]
[6]Plaintiff’s Court Book (“PCB”) 12
18 In April 2008, Mr Mahmandar was referred back to Mr Owen, who recommended that he undergo surgery.
19 On 22 April 2008, Mr Mahmandar underwent surgery on his left shoulder at Vimy House Private Hospital. He remained in hospital for about a week. He alleges that after the surgery he was in terrible pain. He alleges that it was more painful after the surgery than before it.
20 Mr Mahmandar gave evidence by way of affidavits and also gave oral evidence and was cross-examined at the hearing of this matter. Since the injury, he has complained of a broad spectrum of pain symptoms. These relate to his shoulders, neck, head, knees, upper limbs and back.
21 He has been prescribed Panadeine Forte and some tablets for his stomach, which has been irritated by the former medication.
22 Dr Marcus has not referred Mr Mahmandar to a treating psychiatrist but has referred him to a psychologist, Dr Julia Hooper, for counselling. In addition, he has been referred to a pain management specialist, Dr Terence Lim, where he underwent a chronic pain rehabilitation program.
Diagnosis of Injury
23 Mr Mahmandar has complained of symptoms of pain in his shoulders, knees, upper limbs, neck and low back. It seems likely that he did suffer physical injury to his left shoulder in the course of his employment with the defendant, but there was no medical evidence that supported a case that such injury would be likely to be producing ongoing significant symptoms of pain and restriction on any physical basis. Counsel for Mr Mahmandar did not seek to persuade me otherwise. Likewise, there was no suggestion that the knee, neck, back or arm symptoms experienced by Mr Mahmandar related to any physical injury suffered in the course of his employment with the defendant.
24 Counsel for Mr Mahmandar relied upon part (c) of the definition of “serious injury” in s134AB(37) of the Act.
25 Mr John Owen, the treating orthopaedic surgeon, saw Mr Mahmandar in March 2008. He had been provided with an ultrasound of the left shoulder indicating that there was a full-thickness of the supraspinatus tendon. He performed an arthroscopic subacromial decompression and inspection of the rotator cuff of the left shoulder in April 2008. At that time, he found no such tear, no sign of intra-articular pathology and no sign of frozen shoulder. In the subacromial space, there were mild impingement signs and a standard decompression procedure was performed. He opined that the earlier ultrasound report was incorrect.
26 Mr Owen reported that Mr Mahmandar gave a “general air of invalidism”.[7]
[7]PCB 53
27 In October 2012, Mr Owen reported that Mr Mahmandar still portrayed a picture of extreme invalidism and needed referral to a chronic pain specialist. He recounted that in April 2008, at the time of the arthroscopy and decompression of the left shoulder, he had very little wrong with the shoulder in terms of any major intra-articular pathology. There were mild signs of impingement in the subacromial space.
28 He had more recently seen Mr Mahmandar in relation to pain in his right shoulder, and for neck pain. He concluded that Mr Mahmandar had gross signs of invalidism and restriction of function of the right shoulder which was beyond what would be considered to be explicable by any organic pathology. At that time, he did not re-examine the left shoulder. He thought it unlikely that Mr Mahmandar had any major organic pathology in his shoulders but considered that he had suffered a major psycho-social collapse leading to chronic invalidism.[8]
[8]PCB 56b
29 In April 2010, Dr Terence Lim recommended that Mr Mahmandar be referred to an Arabic speaking psychiatrist/psychologist, as it was his opinion that Mr Mahmandar was then well entrenched in a Chronic Pain Syndrome where his whole life was totally focussed on, and dominated by his pain that had left him dependent, demoralised, depressed and disabled. He noted that Mr Mahmandar had made little positive gain through intensive inpatient pain management programs.
30 I see no need to make additional references to the reports of Mr Peter Wilde, Dr James Rowe, Mr Peter Battlay or Mr Rodney Simm. These deal with the issue as to whether Mr Mahmandar has a physical explanation for his pain and restriction of movement in his shoulders. In view of his counsel’s concession that the evidence before the Court would not warrant a finding that his symptoms could be explained on a physical basis, I shall not comment further on these reports.
31 Mr Mahmandar was referred to a psychologist, Dr Julia Hooper, in August 2010. She is Arabic speaking. In September 2010, a short time after she first consulted with him, Dr Hooper diagnosed him as having an Adjustment Disorder with Mixed Anxiety and Depressed Mood. At that point, she had taken a history from him of shoulder pain and was clearly under the impression that he was suffering from a full-thickness tear in his left supraspinatus tendon and a subacromial tear. In July 2012, she maintained that diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood (chronic).
32 Dr Hooper was asked about the prognosis of his returning to suitable employment. She stated that her opinion regarding his ability to return to prior duties or any other duties remained unchanged from earlier report. The difficulty I have is that in her earlier report, she had stated that as she had only been seeing Mr Mahmandar for a very short period of time, she could not comment on his future capacity for work and that it would depend on his recovery and the existence of any exacerbating/maintaining factors. However, in the later report, she did state that she anticipated that he would not cope (and by this I accept she meant that he would not cope with a return to work) as he continued to report significant changes in his physical capacity, chronic pain, and psychological symptoms, including deterioration of cognitive functioning, fatigue and loss of drive and motivation.
33 Dr Hooper states that she has not observed a significant improvement in his symptoms.[9] However, her opinion that Mr Mahmandar would not cope with a return to employment appears to be based upon his continued reporting of changes in his physical capacity, chronic pain and psychological symptoms, rather than a finding on her part of any particular psychological condition or symptoms. In her report of 23 July 2012, she states that she has not seen him for several months. Mr Mahmandar was uncertain as to when he had last seen her.
[9]PCB 65
34 Mr Mahmandar was seen for psychological evaluation as part of a multidisciplinary team assessment in February 2009. This was an assessment in order to determine his suitability for inclusion into a chronic pain rehabilitation program at the request of Dr Lim. Ms Jenny Fahey, psychologist, reported that he presented with bilateral shoulder pain. She reported that emotionally, he had struggled with changes to his life post injury. His wife had apparently reported that she had found him in tears when she returned from work and that he had been extremely bored during the day. He reported that he experienced anger easily. Ms Fahey stated that his personal losses post injury included incapacity to work at that time, financial insecurity, loss of sense of worth, reduced capacity to engage with his young children in an active way, sleep deprivation (which she indicated made an individual more sensitive to pain) and reduced ability to engage in leisure pursuits, such as soccer and gardening.
35 Dr Paul Kornan, psychiatrist, saw Mr Mahmandar at the request of his solicitors on 22 October 2012, shortly before the hearing of his application. Dr Kornan’s diagnosis was that, from a psychiatric viewpoint, Mr Mahmandar presented with a Pain Disorder with associated psychological factors. Those factors included some noticeable anxiety and depression. He considered there were indications of him having some significant brooding and introspection. He complained of ongoing symptoms to his shoulders, neck and knees. He complained of numbness in the arms, elbows and wrists and had problems with fingers of both hands. He also complained of pain in the lower back. He provided a history of some suicidal ideation but there had not been any actual suicide attempts. He reported that he was not coping in his marriage, either generally or sexually.
36 Dr Kornan considered that the prognosis for his psychiatric ill health condition was poor. He considered that Mr Mahmandar had retreated into having a major Pain Disorder with associated psychological factors. He stated that this condition, once it has overwhelmed an individual, tends to continue in a sustained way into the future. He considered that his psychiatric condition would persist at current levels into the foreseeable future. He considered that these had been caused by his employment problems and their after effects.
37 Dr Kornan was of the view that Mr Mahmandar was unfit to work in either his pre-injury duties or alternative duties. He saw him as a person who was totally disabled at this stage and thought that could continue indefinitely into the foreseeable future. This was due to his psychiatric ill health condition, secondary to the physical injuries from the employment.
38 The only other psychiatrist to have examined Mr Mahmandar was Associate Professor George Mendelson, who saw the plaintiff on two occasions, in December 2009 and September 2012 at the request of the defendant. At the first examination, Professor Mendelson considered that Mr Mahmandar did not show any abnormalities of motor activity; no manifestations of psycho-motor retardation or agitation; his speech was fluent; he was cooperative; his demeanour was unremarkable; he maintained eye contact as appropriate; he was alert throughout the examination; there was no evidence of cognitive impairment; no indication of any significant problems with either memory or concentration; no indication of formal thought disorder and no indication of abnormalities of perception.[10] He reported that Mr Mahmandar did not describe or acknowledge the presence of any specific emotional symptoms or any particular manifestations of mood disturbance. He found no abnormality on mental state examination.
[10]Defendant’s Court Book (“DCB”) 40-41
39 Professor Mendelson opined that Mr Mahmandar was not mentally ill and had no loss of work capacity due to any diagnosable mental disorder or psychiatric impairment. He considered that he was not precluded by any psychiatric factors from working in a range of employment alternatives; including as a packer, container filler, product examiner, sales assistant, sales person or plastics production machine operator.[11] He considered that Mr Mahmandar did not have any diagnosable mental disorder.
[11]DCB 46
40 By his second examination of Mr Mahmandar in September 2012, Professor Mendelson had had the opportunity of reading reports from Mr Owen, Mr Simm, Mr Wilde, Dr Horsley and Dr Hooper.
41 It remained Professor Mendelson’s opinion, following the re-examination, that there was no indication that Mr Mahmandar had any diagnosable mental disorder and that he had no loss of work capacity due to any psychiatric illness or impairment. He thought there was no psychiatric contraindication to Mr Mahmandar undertaking gainful employment within the limitations of his physical condition. He considered that Mr Mahmandar could be described as showing what had been termed as “learned pain behaviour”. He annexed an article from the January 1986 edition of the British Medical Journal dealing with this topic.[12]
[12]DCB 38
42 Professor Mendelson stated:
“You will note that in this situation environmental factors, such as pain-contingent attention and possible secondary gain, such as eligibility for pain contingent benefits, perpetuate the pain complaints, pain behaviour, and the alleged resultant disability. I note that Mr Mahmandar told me that he has been granted the Disability Support Pension because the complaint of pain and alleged resultant inability to work. Such validation of pain behaviour, in the absence of objectively demonstrable organic abnormalities congruent and consistent with the nature and extent of the pain complaints, indicates that Mr Mahmandar is unlikely to acknowledge any improvement in his complaints for as long as environmental factors continue to reinforce the pain complaints and pain behaviour.
In this situation the prescription of opiate analgesics can similarly reinforce pain complaints.
… Opiate analgesics should not be prescribed is the pain described by the individual cannot be attributed to an objectively demonstrable organic abnormality, or it is not congruent and consistent with such an abnormality or abnormalities. Similarly, if a trial of an opiate analgesic does not result in functional improvement, that medication should be gradually withdrawn, as otherwise the continued use of the opiate tends to reinforce and perpetuate pain complaints and pain behaviour.
…
In reply to your further question, I have stated that in my opinion he does not have a diagnosable mental disorder such as a clinically significant depressive illness or any specific type of an anxiety disorder. The irritability to which he referred is due to an understandable psychological reaction to his current situation.
…
In my opinion he does not require treatment for any mental disorder. He should be involved in a vocational rehabilitation program.
In reply to your question concerning prognosis, as noted above in my view the overall prognosis is that of Mr Mahmandar’s physical condition. He is unlikely to acknowledge any improvement for as long as his pain complaints and pain behaviour are reinforced by environment factors.”[13]
[13]DCB 33-34
43 Professor Mendelson continued to have the view that Mr Mahmandar was not precluded by any psychiatric factors from working in the positions described in his earlier report.
44 Having considered all of the medical evidence tendered, I accept that in the course of his employment with the defendant, Mr Mahmandar did suffer a soft-tissue injury to his left shoulder for which he quite properly sought medical attention. Following radiological examinations, he underwent a cortico-steroid injection to the shoulder, and later arthroscopic surgery. Minor impingement was found, such that would not explain the ongoing nature of his symptoms. Nevertheless, Mr Mahmandar claims to have continued to suffer from extensive pain and restriction of movement since late 2007. He has not worked since that time in any capacity.
45 His symptoms of pain extend to his legs. He walks regularly with the aid of a walking stick. Symptoms of leg pain or weakness do not appear to be physically related to his employment in any way. However, I do find that they are part of a behavioural or non-physical disorder of which his employment is a cause.
46 In order to succeed in this application, Mr Mahmandar must establish that he has suffered a permanent severe mental or permanent severe behavioural disturbance or disorder. Such a condition shall not be held to be severe for the purposes of this application unless the pain and suffering consequences or the loss of earning capacity consequences are, when judged by comparison with other cases in the range of possible mental or behavioural disturbances or disorders, as the case may be, fairly described as being more than serious to the extent of being severe. The onus of proving his case lies on Mr Mahmanda.
47 I am faced with reports of two psychiatrists. Dr Kornan has seen Mr Mahmandar on one occasion, about a week before the hearing. He diagnosed a Pain Disorder with associated psychological factors. Unlike Professor Mendelson, Dr Kornan considered that Mr Mahmandar spoke in a voice of anxious and depressed tone. He found that his mental faculties seemed initially reasonable, but as the consultation went on, there did appear to be significant problems in concentration. He found no disorder of perception. There was no history of recurrent nightmares, flashbacks or illusions. He did appear to have some problems with judgment due to his mood situation. He found there were ongoing subjective distress, anhedonia, depression, and raised tension levels. He appeared to be concerned about his symptoms and showed indications of brooding and being introspective. There appeared to be problems with his confidence levels and self-esteem, although no psychotic features.
48 It was not suggested by counsel for the defendant that Mr Mahmandar was a malingerer, or that he was consciously exaggerating his symptoms or misleading the Court. I found no indication that he was doing so. Although it is more difficult, when a witness gives evidence through an interpreter, to make an assessment of credit, I find that there is no reason for me to doubt the contents of his affidavit material or the evidence that he gave in Court. Further, I consider that Mr Mahmandar’s preparedness to undergo invasive procedures is indicative of genuineness of his complaints of pain. I accept Mr Mahmandar as a witness of truth.
49 I accept that he is suffering from substantial levels of pain and that his lifestyle has been very severely affected as a consequence. Whether this pain has a physical basis or whether it is non-physical makes little difference from Mr Mahmandar’s perspective. Pain is pain, regardless of its cause.
50 I accept that there is really no physical explanation for Mr Mahmandar’s symptoms of pain. I consider the most likely explanation for those symptoms is that he does suffer from a mental or behavioural disturbance or disorder. Whether the source of that disorder is as diagnosed by Dr Kornan or whether it may be in some way related to a learned pain behaviour, as suggested by Professor Mendelson, does not appear to me to be of great importance. I consider that Mr Mahmandar is suffering from such a disorder and that he has done so for approximately five years.
51 Dr Kornan considers that his condition is likely to continue into the foreseeable future. No medical practitioner who has examined Mr Mahmandar has suggested that his condition is likely to improve significantly in the future. Accordingly, I accept that the condition is a permanent one.
52 I accept the evidence of Dr Kornan in preference to that of Professor Mendelson. Professor Mendelson could find no psychiatric condition on the occasions he examined Mr Mahmanda. However, he did not opine that this was a case of malingering. He simply proffered no explanation for Mr Mahmandar’s ongoing experience of pain, which I find is genuine. I accept that there is no physical explanation for his symptoms and I consider it likely that the explanation for them is that he does suffer from a mental or behavioural disorder of the type referred to by Dr Kornan.
Consequences of Injury
53 The consequences of the condition for Mr Mahmandar are, on any view, severe:
(a)He has not been able to work.
(b)His recreational and leisure activities have been virtually eliminated.
(c)He suffers from widespread and constant pain.
(d)His ability to study and learn the English language has been significantly impeded.
(e)His ability to perform household and gardening chores has been significantly impeded.
(f)He suffers from depression, loss of self-esteem and irritability.
(g)As Dr Lim reported in April 2010, Mr Mahmandar’s whole life was totally focussed on, and dominated by, his pain that had left him dependant, demoralised, depressed and disabled.
54 I find that Mr Mahmandar has been a co-operative patient, in the sense that he has agreed to go ahead with whatever medical and other treatment has been suggested for him by one or other of his medical treaters. He has undergone invasive procedures such as cortico-steroid injection and arthroscopic surgery, together with pain management programs. There is no suggestion that he has declined any proposed treatment. At present, it does not appear that any medical practitioner considers that further treatment should be undertaken or is likely to benefit him.
55 I find that the consequences of Mr Mahmandar’s disorder are, when judged by comparison to with other cases in the range of possible mental or behavioural disturbances or disorders, fairly described as being more than serious to the extent of being severe.
56 I find that his disorder is permanent in the sense that it is unlikely to improve in the foreseeable future.
57 I find that the disorder arose in the course of his employment with the defendant.
58 I accept the evidence of Dr Kornan that Mr Mahmandar is unfit for employment of any description and has suffered the loss of earning capacity nominated I s.134AB (38) (f) and (g).
Conclusion
59 For the reasons expressed above, I am of the view that Mr Mahmandar has suffered a serious injury as defined in the Act.
60 I am satisfied that Mr Mahmandar has not been capable of working since late 2007 and that this is likely to continue for the foreseeable future. Accordingly, I am satisfied that he has suffered the loss of earnings required by s134AB of the Act.
61 Accordingly, there will be leave pursuant to s134AB(16)(b) of the Act for Mr Mahmandar to issue proceedings for the recovery of damages for pain and suffering and loss of earning capacity in respect of injuries suffered by him in the course of his employment with the defendant.
62 I shall hear the parties in respect of costs.
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