Markes v Futuris Automotive Interiors (Australia) Pty Ltd and Victorian WorkCover Authority
[2014] VCC 1420
•29 August 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION LIST
SERIOUS INJURY DIVISION
Case No. CI-09-03430
| CON MARKES | Plaintiff |
| v | |
| FUTURIS AUTOMOTIVE INTERIORS (AUSTRALIA) PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 August 2014 | |
DATE OF JUDGMENT: | 29 August 2014 | |
CASE MAY BE CITED AS: | Markes v Futuris Automotive Interiors (Australia) Pty Ltd & Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1420 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury application – severe mental disorder – disentanglement of physical components responsible for the disorder – whether consequences “severe” – whether 40 per cent loss of earning capacity
Legislation Cited: Accident Compensation Act 1985, s134AB
Cases Cited:Mobilio v Balliotis [1998] 3 VR 833; Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227
Judgment: Leave granted to the plaintiff to bring proceedings at common law for pain and suffering and pecuniary loss damages as a result of injury suffered during the course of his employment with the first defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Gorton QC with Mr J P Brett | Arnold Thomas & Becker |
| For the Defendants | Mr D Churilov | Hall & Wilcox |
HIS HONOUR:
1 The plaintiff suffered injury to various areas of his spine, including the lower thoracic spine, and the lumbar spine, in the course of his employment with the first defendant, in particular, on 19 September 2005. On that day, in the course of what he described as heavy and repetitive duties, he attempted to lift an automotive seat from a pallet which had become jammed. In that process, he hurt his neck and, he alleges, his back. As a consequence of the physical injury, he developed a significant Chronic Pain Syndrome and a Major Depressive Disorder which he said had a very significant impact on his recreational, domestic and social activities, and has prevented him working to the present time.
2 Mr Gorton, Senior Counsel for the plaintiff, also relied on the physical injury to the plaintiff’s thoracic spine, but that limb of the application was not pursued.
3 This is therefore an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of the plaintiff’s employment with the first defendant. The plaintiff claims to have suffered a permanent severe mental disorder in the nature of a Chronic Pain Syndrome and/or a Major Depressive Disorder. The application is thus brought under ss(c) of the definition of “serious injury” contained in s134AB(37) of the Act and leave is sought in respect of both pain and suffering and loss of earning capacity.
4 The plaintiff was the only witness called to give evidence and be cross-examined. In addition, affidavits of the plaintiff and his wife, medical and radiological reports and a determination and reasons of the Medical Panel of 24 May 2012, were tendered into evidence. I shall not refer to all of that material in the course of this judgment, but rather those parts of the evidence and reports which appear to me to be most relevant and which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature, and the principal authorities of the Court of Appeal, are well known, and it is unnecessary for me to revisit the various relevant sections and those authorities.
Relevant background
5 The plaintiff was born in 1977 in Iraq, and is now thirty-six years of age. He came to Australia at age three and has lived in Melbourne all his life. He completed Year 12 at Fawkner High School. After school, he undertook studies for approximately a year-and-a-half in electronic engineering but did not finish the course. He also studied for a short time in accountancy, but again, did not complete the course. He commenced working for the first defendant around 2005. He first worked through a labour-hire company, and then on a casual basis, and then as a full-time employee.
6 The plaintiff’s work with the first defendant involved quality control relating to automotive seats. The seats would be delivered by pallet and each frame weighed about 10 kilograms. The plaintiff worked on an assembly line and was required to pick the seats from a pallet onto a bench or table and undertake some work to it. He worked on hundreds of seats in the course of each shift. On occasions, seats would become stuck in the pallet and were difficult to remove.
7 In October 2002, the plaintiff was involved in a motor vehicle accident, saw his general practitioner, Dr Minas, and had some transient neck and back pain. Those problems resolved by the time he commenced work with the first defendant.
8 There were a number of incidents at work, including in November 2004 and January 2005, when he suffered some pain in his back as a result of his work with the seats. Again, he said these were transient episodes and the pain abated. He was otherwise well in September 2005 and in particular, was not suffering any significant pain in his mid or lower spine. He had no significant past medical nor psychiatric history, and there was no family history of psychiatric illness.
9 In terms of his social activities, in 2005, he had three young children. He now has four children. Prior to September 2005, he enjoyed kicking a soccer ball around with friends, and was passionate about his car. He was heavily involved in his family life and his children’s activities. According to his affidavit, and that of his wife, he was an outgoing person and enjoyed socialising with friends and relatives. In the year ended June 2005, he had a gross income of $34,000.
The physical injury and psychological consequences
10 According to the plaintiff’s affidavit, he believes that on 19 September 2005, in the course of lifting a metal-framed seat out of a pallet, he suffered injury. However, according to the reports of a number of practitioners, including Mr O’Brien[1] and Dr Minas,[2] there were two incidents: one in April or May of 2005, and the second in September 2005. In cross-examination, Mr Churilov, for the defendants, took the plaintiff to the reports of those practitioners, suggesting that in one or both of those workplace incidents, the plaintiff suffered pain only to the left side of his neck. However, according to the plaintiff’s Claim Form,[3] and a statement of Ms Diana Dolevska, an employee of the first defendant, the injury to the plaintiff said to have occurred on 19 September 2005 was to his neck, upper and lower back. Even accepting that the plaintiff’s initial complaints of pain may have been to his neck, I am satisfied, on the balance of the evidence, that in addition, and within a relatively short time, he complained of pain in his upper and lower back.
[1]Plaintiff’s Court Book (“PCB”) 48
[2]PCB 108
[3]Defendants’ Court Book (“DCB”) 16
11 The plaintiff kept working and finished his shift, but then had a number of days off work and returned on light duties. According to his affidavit,[4] he never returned to normal duties.
[4]PCB 25
12 At some point, he went to see his general practitioner, Dr Minas, who observed tenderness over the cervical and thoracic areas. She provided analgesia, anti-inflammatory medication and referred the plaintiff for physiotherapy. X-rays taken at the time, of the cervical spine, showed no abnormality.[5]
[5]DCB 22
13 The plaintiff continued on light duties until some time around May 2006, when, according to his affidavit, he was unable to keep working. He said that around that time, he was abused and belittled in the workplace and there was very little work available to him.
14 The plaintiff remained under the care of Dr Minas, who referred him to Mr Brendan O’Brien, neurosurgeon, in January 2006. To Mr O’Brien, he complained of pain in the cervical region and in the lower lumbar area. He described pain radiating down the right leg with some numbness. Mr O’Brien arranged an MRI scan,[6] which showed no abnormality in the cervical region, and a central disc protrusion at T10-11 said to minimally contact the spinal cord. The lumbar discs were said to be well preserved, and in particular, there was no abnormality at L5-S1. Mr O’Brien continued to treat the plaintiff in 2006 and the plaintiff continued to complain of pain in the lumbar region, although the cervical pain resolved. In March 2006, he referred the plaintiff to Dr Clayton Thomas, rehabilitation specialist. Mr O’Brien noted a subsequent MRI scan of September 2008 which referred to a thoracic disc protrusion at T8-9 and a further protrusion at T11-12 without any cord abnormality. He also noted some subtle spondylotic changes at L4-5. He thought the plaintiff had suffered a soft-tissue injury to his lumbar spine and thought the prognosis was good.
[6]PCB 235
15 When seen by Dr Clayton Thomas in March 2006, the plaintiff complained of low-back pain, upper back pain, interscapular pain and neck pain. He reported stiffness in both legs and pain going down the right leg. Dr Thomas said that the investigations were reasonably non-specific and it was difficult to formulate any diagnosis. He said the plaintiff had suffered an “industrial reaction”. He referred the plaintiff to the Dorset Rehabilitation Centre for a spinal rehabilitation program which he attended over a number of months in 2010, several days per week. According to the history to various practitioners, the rehabilitation program provided little lasting benefit.
16 The plaintiff was again referred to Mr Clayton Thomas by Mr D’Urso, neurosurgeon, in November 2009, and then complained of symptoms predominantly in his back, with some pain into both legs. Dr Clayton Thomas diagnosed the plaintiff as suffering primarily from a Chronic Pain Syndrome. He said the only structural problem was some degenerative changes at the lower end of the thoracic spine. He noted the plaintiff’s presentation was complicated by emotional distress and obesity. At that time, he did not think the plaintiff had the capacity for any employment due to both organic and non-organic components. He said the prognosis was poor.
17 In September 2007, the plaintiff was referred to Mr Chris Haw, orthopaedic surgeon, for problems with his right knee. Mr Haw thought the condition at the thoracic spine at T11-12 gave rise to referred pain into the plaintiff’s right leg and knee and it was unlikely the knee itself was the problem.
18 Dr Minas referred the plaintiff to Mr Michael Khan, orthopaedic surgeon, in January 2008. The plaintiff complained to Mr Khan of an aching lower back, more on the right side of the midline. He said that the pain frequently woke him at night and radiated down the right buttock and the outer aspect of the leg to the foot. Mr Khan arranged a bone scan, which was said to be normal.[7] Mr Kahn observed the plaintiff was limping badly and walking using a cane. He said the plaintiff was not totally unfit for all work, but was unable to perform heavy, strenuous work. He thought the plaintiff had sustained an injury to the thoracolumbar spine in the incident of September 2005 and had developed discogenic pain without nerve root compromise. He said that the plaintiff had non-organic symptoms and had developed a Chronic Pain Syndrome.
[7]PCB 240
19 Because of the onset of psychological symptoms, the plaintiff was referred by his general practitioner to Ms Juliette Hooper, psychologist, some time around the second half of 2006. Save for a break between 2009 and 2011, Ms Hooper has continued to treat the plaintiff through to the present time. The break over that period was due to lack of funding by the insurer. The plaintiff presented to Ms Hooper with significant anxiety and distress. He described feelings of frustration, temper loss, changes to sleep pattern and reduced concentration and memory. Ms Hooper, in 2006, diagnosed chronic pain difficulties of a moderate level, and an Adjustment Disorder with Mixed Anxiety and Low Mood.[8] She said that condition made him a very poor candidate for employment and at that time, was unlikely to be able to perform any type of work.
[8]PCB 63
20 Over the years of her treatment, the symptoms of which the plaintiff complained included insomnia, persistent low mood, poor concentration and memory, social withdrawal, loss of interest/pleasure in life, feelings of helplessness/hopelessness, loss of motivation, worry about the future, fatigue and feelings of worthlessness. Ms Hooper described the plaintiff’s lack of sleep as “chronic insomnia”. She further noted that by 2012, the plaintiff was complaining that his right leg gave way. By October 2011, she had diagnosed the plaintiff as suffering a Major Depressive Disorder with features of Anxiety, insomnia and chronic pain which compounded his condition. She said those symptoms and that diagnosis were related to the plaintiff’s employment, and as a result, he was not able to work. She has maintained that assessment through to the present time.[9]
[9]PCB 70-71
21 The plaintiff’s first affidavit in support of his application was sworn in February 2009. At that time, he said he would rarely go out without taking a walking stick because of the pain and weakness in his right leg which tended to lead him to collapse. He complained of pain in the middle of his back, and down to his low back, present all the time. He had stabbing pain down his right leg into his calf and a numb feeling in his foot. He was taking a range of medication, including Panadeine Forte, Voltaren and Lexapro. He said a range of recreational and social activities were significantly restricted, and his relationship with his wife and family was adversely affected.
22 In his second affidavit sworn 22 February 2012, he said that he continued to suffer intense pain in the middle and lower part of his back. He continued to use a stick. He was taking a range of powerful pain-relieving medication. Around this time, he said he started to get pain into his left leg, whereas previously it had been in his right leg. Initially, he had a CT-guided injection into the back which provided little assistance.
23 It would appear, in late 2010 or early 2011, the symptoms in his lower spine became more significant. He commenced to attend The Royal Melbourne Hospital Emergency Department and in February 2011, complained of a week of worsening back pain in both the thoracic and lumbar spine, with referred pain into both buttocks and thighs, worse on the left, and two episodes of faecal incontinence and episodes of falling down due to leg weakness. A further range of radiological investigations were undertaken, and an MRI scan taken of 11 February 2011 showed a left paracentral L5-S1 disc protrusion which contacted and displaced the S1 nerve. Mild L4-5 and L5-S1 joint arthropathy was observed.[10] This is the first reference to any demonstrable pathology at the L5-S1 level.
[10]PCB 246
24 The plaintiff continued to present at The Royal Melbourne Hospital on a number of occasions in 2011, and came under the care of Mr Craig Timms, neurosurgeon, in February 2011. Mr Timms described the most likely cause of the plaintiff’s back pain and sciatica as being the L5-S1 disc bulge. He thought that the plaintiff had suffered injuries to both the thoracic and lumbar spines in the workplace incident.
25 A microdiscectomy was conducted at The Royal Melbourne Hospital on 13 May 2011. The plaintiff was said to make good progress. However, he complained to that hospital of worsening back pain, and an MRI scan of the lumbar spine undertaken in September 2011[11] showed a prominent scar surrounding the S1 nerve root with a residual broad-based disc bulge at that level, although reduced in size as compared to the earlier scan of February 2011. The scarring was said to encase the budding left S1 nerve root. Accordingly, a laminectomy and further decompression was carried out at the Hospital on 6 November 2011. Again, it would appear there was an improvement in the symptoms in the legs, although it is clear from the report of the hospital,[12] that the plaintiff returned there on a regular monthly basis throughout 2012 complaining of exacerbation of sciatic pain. He was further treated over that year by the Outpatient Pain Services Clinic. By December 2012, he was said to have stable symptoms of pain in his back, right groin, right leg and chest.
[11]PCB 248
[12]PCB 190-192
26 In the course of his cross-examination, the plaintiff said that the two episodes of surgery had led to a significant improvement in both his lower back pain and, to a lesser extent, referred pain into the legs. However, he has given a varying history of the ongoing lower back and leg pain to the various practitioners.
27 In 2009, the plaintiff had presented to the Emergency Department of the Northern Hospital, and was seen by Mr Paul D’Urso, neurosurgeon. At that time, he was using a walking stick, complaining of global weakness in the legs and acute lumbar back pain.
28 The plaintiff has remained under the care of Dr Minas. At the current time, he is taking a raft of medication.[13] The medication includes strong pain-relieving medication, Endone and Gabapentin. He also takes antidepressant medication.
[13]Exhibit A
29 In April 2014, at The Royal Melbourne Hospital, he had an epidural injection to the thoracic spine which relieved the pain for a short period, but the symptoms returned. According to his most recent affidavit, he complains of pain in the middle of his back, with referred pain into the groin, legs and sometimes as far as the feet. He says that if he does not use a walking stick, his legs can give way. He says his sleep is poor and he is only able to sleep for four or five hours at a time. He has become very depressed about his situation and worried about the future. He now does not have much to do with his children, and his relationship with his wife is fractured. They have a poor intimate relationship. He suffers from episodes of bladder and bowel incontinence, which he finds acutely embarrassing.
30 The plaintiff has not worked since May 2006, when he left employment with the first defendant, and has not applied for any jobs. He says he does not believe that he would be able to work in any capacity, even upon light duties.
31 The plaintiff presented in the witness box as a distressed and forlorn person, regularly moving from a sitting to a standing position and back again. He winced with movement and walked with a pronounced limp and giving the appearance of being unsteady on his feet. He said that he spends his time largely at home, watching television and walking around the house. He says he can drive for 15 or 20 minutes and walk for a short distance. He obtains little enjoyment from life, and has little association with his children.
Consultant medical opinions
32 The plaintiff was examined by Dr David Weissman, psychiatrist, on a number of occasions between July 2007 and June 2014. The plaintiff complained of pain in his middle and lower back, radiating down his right leg to the toes of his right foot. In terms of psychological symptoms, the plaintiff said that he could do nothing and felt useless. He complained of getting only two to three hours’ sleep a night, had lost energy and motivation, confidence and self esteem. On that first occasion, Dr Weissman diagnosed the plaintiff as suffering a Major Depressive Disorder of moderate severity. He said:
“Based upon the current nature, severity and extent of his psychiatric symptoms, particularly his depression, irritability, frustration and feelings of uselessness, he is totally incapacitated for all work … .
There has been a major loss to his day-to-day functioning as well as quality of life and enjoyment.
In my opinion, Mr Markes is psychiatrically unfit to participate in occupational rehabilitation, functional capacity evaluation, or job seeking assistance.”[14]
[14]PCB 79
33 Dr Weissman said the prognosis was “only fair”.
34 By the time of his second report in July 2010, Dr Weissman maintained the diagnosis of Major Depressive Disorder, but also said:
“He has probably also developed symptoms and features of a chronic pain disorder associated with a general medical condition and psychological factors.”[15]
[15]PCB 87
35 In his most recent report of June 2014, the plaintiff complained of ongoing pain despite the two episodes of surgery in his middle and lower back. The plaintiff said the pain radiated into his buttocks, right hip, right groin and thigh, to both legs, but worse on the right. He continued to complain of the same psychological symptoms, including lack of interest, energy and motivation, and was anxious and depressed. Dr Weissman maintained his diagnoses of Major Depressive Disorder, and Chronic Pain Disorder. He said the plaintiff remained totally and permanently incapacitated for all work.
36 The plaintiff was assessed by Mr Russell Miller, orthopaedic surgeon, on a number of occasions between April 2010 and June 2014. At the first presentation, the plaintiff complained of diffuse spinal pain in the thoracic and upper lumbar areas. The pain was said to radiate into his buttocks and thigh of the right leg. On the first occasion, Mr Miller was of the view that the plaintiff had suffered a musculoligamentous strain to the thoracolumbar spine which had aggravated a pre-existing degenerative condition. He also said at that time, that his features were consistent with a “developing” Chronic Pain Syndrome. He noted the plaintiff was also suffering anxiety and depression. He said the plaintiff was not fit to return to pre-injury work and would have difficulty with work that involved repetitive lifting of weights of more than 5 kilograms and bending.
37 In his most recent report of June 2014, he said the plaintiff had suffered an injury to his lumbar spine at the L5-S1 level from which he continued to suffer ongoing symptoms. He also said the plaintiff had problems with anxiety and depression, with the probable development of a Chronic Pain Syndrome.
38 The plaintiff was examined on behalf of his solicitors by Dr Helen Sutcliffe, occupational physician, in November 2011 and July 2014. In her later report, she was asked to differentiate between the injuries to respectively the plaintiff’s lumbar and thoracic spines. She said, taking account of the thoracic disc lesions alone, the plaintiff would be able to undertake sedentary work, although she said that he would experience difficulty in re-training for other work, given persisting symptoms of depression and anxiety.
39 Dr Nigel Strauss, psychiatrist, provided a report of August 2014. He received complaints from the plaintiff of extensive pain virtually throughout his body, including back, neck, arm and leg pain, together with leg paraesthesia. He considered that the plaintiff was suffering a Chronic Major Depressive Disorder, and a Chronic Pain Disorder, associated with a medical condition. He said, on psychiatric grounds alone, the plaintiff was totally and permanently incapacitated.
40 For the defendants, the plaintiff was examined by Mr Jonathan Hooper, orthopaedic surgeon, in 2006 and 2007. Mr Hooper considered the plaintiff had strained his back in the lifting incident of September 2005 which he thought was probably discogenic, although noted that the MRI was within normal limits. In 2007, he said that the diagnosis was of non-specific chronic low-back pain.
41 The plaintiff was examined by Dr Malcolm Brown, occupational physician, in May 2006 and May 2007. In the second report, he concluded that although the plaintiff complained of thoracic pain, the main symptoms were from the lumbar spine. He said the plaintiff had “uncomplicated lower back pain” which was mild in nature, and the radiology was of little clinical significance. He noted the plaintiff was a vague historian, and concluded that the low-back pain was unrelated to the initial workplace incident. He said that the plaintiff’s work incapacity was primarily psychiatrically based.
42 The plaintiff was examined by Dr Alan Jager, psychiatrist, in September 2006, June 2007 and May 2009. He was sceptical about the plaintiff’s description of pain, although said if one accepted the reported symptoms, the plaintiff suffered a mild Major Depressive Disorder with Anxiety.
43 By the time of his second report in June 2007, Dr Jager diagnosed the plaintiff as suffering an Adjustment Disorder with disturbance of emotion and conduct. He said this was moderately severe and the plaintiff’s prognosis was poor. He said the Adjustment Disorder did not incapacitate him from employment.
44 In a third report of May 2009, Dr Jager considered the plaintiff as suffering a Chronic Major Depressive Disorder with Anxiety. He said the psychiatric injury was at the mild end of the spectrum and did not cause incapacity for employment.
45 The plaintiff was examined by Dr Paul Kornan, psychiatrist, in November 2007. He obtained the history of a range of emotional problems, and diagnosed the plaintiff as suffering an Adjustment Disorder with Mixed Anxiety and Depressed Mood.
46 Mr Peter Battlay, orthopaedic surgeon, assessed the plaintiff in November 2007. The plaintiff complained of continuous pain over the lumbar and thoracic spines, with pain spreading to the right leg and foot with a feeling of numbness. He noted the plaintiff limped heavily, favouring his right leg. He noted, in accordance with the radiology to that point, that there was no lumbar disc pathology to explain any of the symptoms into the plaintiff’s right leg. He said the only abnormality was a disc protrusion at T11-12, which was indenting the theca. He said the explanation for the plaintiff’s right leg pain was unclear. He thought the plaintiff had non-physical problems which were confusing the clinical picture.
47 The plaintiff was examined on a range of occasions between 2009 and 2014 by Mr Rodney Simm, orthopaedic surgeon. To Mr Simm the plaintiff complained of constant pain from the lower thoracic spine to the lumbar spine, with radiation of pain into the right buttock and leg. He said neurological examination revealed non-anatomical findings, and concluded that the plaintiff presented with clinical features of a Chronic Pain Syndrome. He said that the plaintiff’s symptoms were diffuse, initially involving not only the back but the neck, and not consistent with any specific injury. He said that one could not expect referred pain into the right leg and foot as relating to the degenerative T11-12 disc. Even as early as 2009, Mr Simm considered that the plaintiff’s pain was essentially related to a Chronic Spinal Pain Syndrome with non-organic signs. He said there was also secondary depression.
48 In his report of October 2011, Mr Simm said:
“… On the basis of Mr Timms’ report I would not conclude that this man had significant symptoms relating to a left L5/S1 lumbar disc protrusion. On the basis of the patient’s current reporting of his pre-operative symptoms there did seem to be a component of his symptom complex consistent with left S1 nerve root irritation from the recent left L5/S1 lumbar disc protrusion. However, this must be viewed in the context of a man with a severe chronic spinal pain syndrome with thoracolumbar pain, referred pain into the buttock and down both lower limbs with the predominant symptoms for some time being in the right lower limb. The contribution to his symptom complex from left S1 nerve root irritation has subsequently proved to be of little relevance. Addressing these radicular symptoms with a microdiscectomy has not led to any improvement in his overall level of pain or function. He is still presenting as a severely disabled spinal invalid with severe and persistent pain which reaches 10/10 on a Visual Pain Scale each day.”[16]
[16]DCB 106
49 In his most recent report of April 2014, Mr Simm continued with his diagnosis of the plaintiff as suffering a Chronic Spinal Pain Syndrome which he said was a substantial emotional disorder. He thought the prognosis poor. He described the changes in the thoracic spine as relatively minor degenerative changes.
50 The plaintiff was examined on a number of occasions by Dr Tony Kostos, rheumatologist. He noted complaints of constant pain from the middle of the plaintiff’s thoracic spine to the low back, as well as into the legs and buttocks. He described diffuse tenderness all over the area of the back. He noted a range of discrepancies and inconsistencies on physical examination, which he said were non-organic signs. He concluded the plaintiff had a Chronic Pain Syndrome with a very poor prognosis.
51 The plaintiff was assessed by Dr George Mendelson, psychiatrist, on a number of occasions from October 2010 to April 2014. When Dr Mendelson asked the plaintiff as to his physical symptoms in April 2014, he was told that the plaintiff had constant pain in the thoracic area, although the low back was not painful. The plaintiff said he had pain involving the whole of both legs, more severe on the right. As to emotional symptoms, the plaintiff said that his memory and concentration were poor, that he was concerned about the future and his relationship with his children. He said he became angry at both his children and his wife, and difficulties with sleep.
52 Dr Mendelson concluded the plaintiff was suffering an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He said there was nothing to indicate, from a psychiatric perspective, that the plaintiff’s employment capacity was limited. He thought the plaintiff’s emotional symptoms were well controlled with medication. He noted the plaintiff was taking Pristiq, and Allegron, both antidepressants.
53 Finally, Dr Ross Wilkie, a radiologist, inspected the various radiological studies. He concluded that the presence of the L5-S1 broad-based disc herniation only became apparent from the MRI scan of February 2011. This was despite a range of other CT and MRI scans of the lumbar spine disclosing no abnormality at that level. He concluded, agreeing with the opinion of Dr Kostos, that the disc protrusion at L5-S1 was not related to the plaintiff’s employment, and in particular, to the episode of September 2011.
54 Finally, a Medical Panel, comprising Mr Roy Carey, orthopaedic surgeon, and Associate Professor Peter Gibbons, musculoskeletal physician, were asked to consider two questions. The questions posed and the answers provided were as follows:
Q1:What is the nature of the Plaintiff’s medical condition with respect to the alleged injury to the lumbosacral spine at the L5-S1 level?
A:In the Panel’s opinion the Plaintiff is not suffering from a medical condition with respect to the alleged injury to the lumbosacral spine at the L5-S1 level.
Q2:Was the Plaintiff’s employment in fact, or could it possibly have been a significant contributing factor to an alleged injury to the Plaintiff’s lumbosacral spine at the L5-S1 level?
A:In the Panel’s opinion, the Plaintiff’s employment was not in fact, and could not possibly have been, a significant contributing factor to any alleged injury to the plaintiff’s lumbosacral spine at the L5-S1 level, nor to any alleged recurrence, aggravation, acceleration, exacerbation of deterioration of any pre-existing injury or disease of the lumbosacral spine at the L5-S1 level in any way.”[17]
[17]DCB 203
55 It is clear from a reading of the Reasons of the Panel that crucial to its determination was that the radiology at the L5-S1 level showed no abnormality until the MRI scan of 11 February 2011. The Panel noted that despite the complaints by the plaintiff of referred pain in the left and right extremity, that pain did not correlate to anything shown on the earlier radiology. It concluded that the plaintiff’s employment could not have led, or been a contributing factor to the injury to the L5-S1 disc. The Panel disagreed with the opinions of Mr Russell Miller, Dr Helen Sutcliffe and Mr Craig Timms of the work-related injury at that level.
Conclusions
56 This is an unusual and somewhat complex application.
57 The onus is upon the plaintiff to satisfy the Court that the consequences of a psychological disorder achieve the “severe” level as the legislation prescribes. The word “severe” has been defined as a word of stronger force than “serious”.[18] In describing a psychological disorder which may be regarded as consistent with the term “severe”, judges of this Court have regularly referred to symptoms such as regular psychiatric treatment, inpatient admissions to psychiatric hospitals, prescription of significant quantities of antidepressant medication, suicidal ideation and planning, and even, at the extreme end, psychotic or delusional episodes. However, each case must be assessed upon its own facts and circumstances.
[18]Mobilio v Balliotis [1998] 3 VR 833 at 846
58 Further, in order for the plaintiff to be granted leave in respect of loss of earning capacity, he is obliged to show he has suffered a loss of earning capacity of 40 per cent or more.
59 In assessing the consequences to the plaintiff of the psychological condition, it is the effect upon this particular plaintiff of those consequences, albeit viewed objectively.
60 I had the opportunity to assess the reliability and credibility of the plaintiff in the course of his cross-examination. In the witness box, he was vague, uncertain, and unable to remember dates and times relevant to his injury. He recalled some of the names of doctors who had examined him, but not others. On occasions he answered questions in a manner designed to satisfy the questioner, rather than to be truthful and accurate. On a number of occasions he accepted that he had misled doctors by giving an incorrect history; however, I formed the distinct impression that he was either confused, or incapable of understanding what was being asked. All in all, I assessed him as a quite unreliable witness and am unable to place great weight upon the answers he gave in the course of cross-examination. However, I did not find him to be intentionally untruthful nor deceptive. There was only a modest challenge to the credibility of the plaintiff put in the course of cross-examination. This surrounded an early history given to Dr Minas and Mr O’Brien, that the initial injury was to his neck, rather than back. That aside, however, it was not suggested to the plaintiff that he was being intentionally untruthful nor even significantly exaggerating the physical symptoms of which he complained. There was no surveillance or other material put to suggest that his presentation to the Court and to the doctors was significantly different to what might have been observed on other occasions. I thus conclude that while unreliable, the plaintiff was not an untruthful witness.
61 On behalf of the plaintiff, Mr Gorton identified the psychological disorder from which the plaintiff suffered arising out of his employment as a combination of a Major Depressive Disorder with the various symptoms, in particular described to his treating psychologist, Ms Hooper, together with a Chronic Pain Syndrome, as described to many of the physical practitioners. There is no doubt that a Chronic Pain Syndrome is a psychological disorder, capable of meeting the criteria referred to in sub-paragraph (c) of the definition of “serious injury”.[19]
[19]Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227 at paragraph [40]
62 On behalf of the defendants, Mr Churilov did not contest that the plaintiff suffered a Chronic Pain Syndrome. He relied upon two principal issues in submissions:
(i) The injury to the plaintiff’s lumbar spine at the L5-S1 level was, in accordance with the finding of the Medical Panel, unrelated to his employment. He submitted it was clear from the radiology that the damage to the lumbar spine at that level was not evident until the MRI scan of February 2011. Thus, to the extent that the physical symptoms arising from the L5-S1 level contributed to the Chronic Pain Syndrome, those symptoms had to be disentangled and set aside. He submitted that the physical symptoms arising from that injury were a significant contributing factor to the Chronic Pain Syndrome and no practitioner, in particular, no psychiatrist, had assessed the plaintiff’s psychological disorder distinguishing the L5-S1 injury;
(ii) Further, Mr Churilov submitted that whatever the nature and extent of the plaintiff’s psychological disorder was, it did not meet the definition of “severe”. In particular, he pointed to the fact that the plaintiff had not been treated by any psychiatrist, had not been admitted to any psychiatric hospital, and generally, aside from some interrupted treatment by Ms Hooper, the psychologist, his psychological treatment had been modest.
63 I am bound to accept the decision of the Medical Panel of 24 May 2012, that the injury to the plaintiff’s lumbosacral spine at the L5-S1 level is unrelated to his employment. In any event, I respectfully agree with that assessment. It is clear from the various radiology up until February 2011, that there was nothing to indicate any derangement nor damage to the disc at that level. For reasons unrelated to his employment, I am satisfied that the plaintiff suffered a disc protrusion at L5-S1 at some point around late 2010 or early 2011 which was detected in the MRI scan of 11 February 2011. That event coincides with the regular attendance by the plaintiff at The Royal Melbourne Hospital in February 2011. From that time, he presented in the Emergency Department, which resulted in surgery directed at the L5-S1 disc in both May and November 2011.
64 I therefore accept that the disc protrusion at L5-S1 and the consequences emanating from it, both organic and non-organic, have to be disentangled or set aside when a consideration is made as to the plaintiff’s psychological state. It is therefore important to assess the nature and extent of the plaintiff’s psychological condition over the years from the injury in 2005 up until around 2009 and 2010.
65 Of significance is the fact that from shortly after the incident of September 2005, the plaintiff complained of pain not only in his mid-back area; that is the thoracic spine, but also in his lower back. As early as late 2005 and 2006, he was complaining of pain in his lower spine, radiating down the right leg.[20]
[20]See reports of Mr O’Brien – PCB 51; Dr Minas – PCB 108
66 In 2006, Mr O’Brien noted the distribution of pain down the plaintiff’s right leg but thought that that did not have a strong organic cause.[21] Mr O’Brien did not think the small disc protrusion at T11-12 explained the complaints of pain to the plaintiff’s right calf.[22]
[21]PCB 54
[22]PCB 55
67 Similarly, Dr Clayton Thomas, when he saw the plaintiff in March 2006, thought that the radiological investigations were reasonably non-specific, and it was difficult to be precise in formulating a diagnosis.[23] He said and “industrial reaction” had occurred.
[23]PCB 166
68 In October 2006 and again, in November 2009, when seen by Dr Clayton Thomas, the plaintiff complained of persistent pain not only in his back, but in both legs. Dr Thomas considered the plaintiff was suffering a Chronic Pain Syndrome. He thought the problems were complicated by emotional distress and obesity.
69 Mr Hooper, orthopaedic surgeon, who saw the plaintiff on behalf of the defendants in 2006 and 2007, considered that the MRI scans of the thoracic and lumbar spines were within normal limits.[24]
[24]PCB 232
70 Mr Simm, who first saw the plaintiff in June 2009, thought the plaintiff presented with clinical features of a Chronic Pain Syndrome.[25]
[25]DCB 90
71 Mr Miller, in 2010, noted the plaintiff had features of a Chronic Pain Syndrome which he said was “developing”.[26]
[26]PCB 140
72 It is significant to consider the opinions of the treating psychologist, Ms Hooper, and the consultant psychiatrist, Dr Weissman. Ms Hooper treated the plaintiff regularly upon the referral of Dr Minus from 2006 until 2009, when the funding was discontinued. In her first report of July 2006, she described the plaintiff suffering immense frustration, irritability, temper loss, effect upon concentration and memory and changes to the plaintiff’s sleep pattern. She initially diagnosed “chronic pain difficulties”, together with an Adjustment Disorder. In her report of October 2006, she said that from a psychological point of view, the plaintiff would not be able to cope with work.[27]
[27]PCB 65
73 In her report of October 2011, she referred to a history of the plaintiff’s symptoms which were extensive and included insomnia, persistent low mood, poor concentration and memory, social withdrawal, low tolerance to frustration, loss of interest/pleasure in life, feelings of helplessness/hopelessness, loss of motivation, worry about the future, fatigue and feelings of worthlessness. She concluded that the plaintiff was suffering a Major Depressive Disorder with Anxiety, insomnia and chronic pain issues.[28] She confirmed that, because of the psychological symptoms, the plaintiff was unable to work.
[28]PCB 67
74 Similarly, Dr Weissman, as early as July 2007, concluded the plaintiff was suffering a Major Depressive Disorder of moderate severity. He noted depressive symptoms, anxiety and frustration, and said that from a psychiatric perspective, the plaintiff was totally incapacitated for all work duties. He further noted that the plaintiff would be unable to participate in any rehabilitation and had little job-seeking ability. He said the prognosis was only fair.[29] By July 2010, Dr Weissman, in addition to the Major Depressive Disorder, concluded the plaintiff was suffering from a Chronic Pain Disorder.
[29]PCB 78-79
75 I accept the opinions of each of these practitioners. I was impressed by the reports of Ms Hooper, which I found considered and based upon a longstanding relationship with the plaintiff. I was further impressed by the opinions of Dr Weissman, and prefer those opinions to those of Dr Jager and Dr Mendelson. Even Dr Jager, in 2006, accepted that the plaintiff was suffering a Mild Major Depressive Disorder, presuming that the complaints of symptoms were genuine.
76 I thus conclude that prior to the onset of the significant symptoms related to the plaintiff’s L5-S1, the plaintiff was suffering from both a Major Depressive Disorder and a Chronic Pain Syndrome. I further accept the opinions of Ms Hooper and Dr Weissman, that as a result, the plaintiff had no work capacity as a result of these disorders, over a number of years leading up to mid-2010. I further accept their opinions that the plaintiff had extensive symptoms, as described by Ms Hooper, which had a significant impact upon his domestic, social and recreational activities.
77 It is clear that the plaintiff complained of pain not only in his thoracic spine, but also in his lumbar spine and into, firstly, his right leg and then both legs. However, absent the L5-S1 disc, I am satisfied that these complaints were, in significant part, related to his Chronic Pain Syndrome, which had a psychological genesis. In syndromes of this type, complaints of diffuse pain in a number of areas of the body are regularly found, often significant and debilitating, and yet without radiological support. I accept the opinion of many of the practitioners that the radiology at T11-12 and L4-5 was not of great clinical significance, but rather, the plaintiff’s complaints of pain, initially in the neck, and then in the mid and lower backs and into the legs, were related to the Chronic Pain Syndrome.
78 True it is that the damage to the L5-S1 disc imposed additional significant problems of a physical nature upon the plaintiff’s presentation, but those additional symptoms do not detract from the fact that the plaintiff had a Major Depressive Disorder, and Chronic Pain Syndrome absent the overlay of the L5/S1 disc problem. I am satisfied that the Major Depressive Disorder, and Chronic Pain Syndrome, and the symptoms related to each, have persisted through to the present time.
79 As Mr Churilov pointed out, the treatment of the plaintiff’s psychological symptoms has not been as extensive as is often seen in psychiatric conditions at the severe end of the spectrum. It should be noted, however, that the plaintiff has been seen by his treating general practitioner, Dr Minas, on a regular basis and has had antidepressant medication prescribed over a long period, including to the present time. He has also been treated regularly by Ms Hooper, with a break over the years 2009 to 2011 because funding ceased. Although there has been some suicidal ideation, there has been no treatment by a psychiatrist, nor admission to a psychiatric hospital. However, this is explained, in part, by the fact that a Chronic Pain Syndrome is not an easy matter to treat. The focus of the attention has been principally upon the physical doctors in an attempt to determine the underlying nature of the plaintiff’s condition, both in his thoracic and lumbar spines. Dr Clayton Thomas attempted treatment by a rehabilitation program but, not unexpectedly, that failed to provide any significant relief.
80 Of most significance, in my view, are the opinions of Dr Weissman and Ms Hooper that the plaintiff had no work capacity as a result of psychological symptoms prior to the onset of the L5-S1 disc derangement. As the authorities have said, a lack of capacity for any employment meets the “severe” level when consideration is given to sub-paragraph (c). I further accept the psychological symptoms as described by Dr Weissman and Ms Hooper have had a very substantial impact upon the plaintiff’s life. There is nothing to suggest that before September 2005 he was anything other than a person able to perform full-time work in a physically demanding job, and able to undertake a normal range of recreational and domestic activities with his family. Over the years from 2005 until 2011, there was a very dramatic turnaround in that position which I am satisfied was related to the psychological disorder as a result of the incident of September 2005.
81 In all these circumstances, the plaintiff’s application succeeds, both as to pain and suffering and economic loss.
82 I will make the appropriate orders, including orders as to costs.
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