Merhi v Ford Motor Company of Australia
[2011] VCC 491
•28 March 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-1001624
| GHASSON MERHI | Plaintiff |
| v | |
| FORD MOTOR COMPANY OF AUSTRALIA | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 24, 25, 27 and 28 January 2011 |
| DATE OF JUDGMENT: | 28 March 2011 |
| CASE MAY BE CITED AS: | Merhi v Ford Motor Company of Australia |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 491 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – Accident Compensation Act 1985 – impairment of the lumbar spine – right knee – non-organic factors – psychiatric impairment – pain and suffering – loss of earning capacity.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D F Hore-Lacy SC with | Clark Toop & Taylor |
| Mr M J Ruddle | ||
| For the Defendant | Mr P A Scanlon QC with | Herbert Geer |
| Mr A T Coote | ||
| HER HONOUR: |
1 This is an application for leave to bring proceedings for damages pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered by the plaintiff during the course of his employment with the defendant, and in particular on 2 February 2004 (“the said date”).
2 The plaintiff seeks leave to bring proceedings for damages in relation to both pain and suffering and loss of earning capacity. These discrete heads of damage require the application of different statutory tests, as mandated by s.134AB(37) and (38).
3 The plaintiff brings this application pursuant to clause (a) of the definition of “serious injury” to be found in s.134AB(37) of the Act. There, “serious” is defined relevantly as meaning:
“(a) permanent serious impairment or loss of a body function.”
4 The plaintiff also brings this application pursuant to clause (c), claiming a permanent severe behavioural disturbance or disorder.
5 The body function relied upon in this case is the lumbar spine, right knee and psychiatric impairment.
Outline of Section 134AB
(i) Apart from being a serious injury, the injury must have arisen on or after 20 October 1999 before the plaintiff is entitled to recover damages;
(ii) The impairment of the body function must be permanent;
(iii) The plaintiff bears an overall burden of proof upon the balance of probabilities. Apart from the general burden, subsections (19) and (38)(e) impose specific burdens in relation to a claim for loss of earning capacity;
(iv) By subsection (38)(c) of the Act, the impairment must have consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”;
(v) The judgment of the Court of Appeal in Mobilio v Balliotis [1998] 3 VR 833 resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission (1995) 21 MVR 314, that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”;
(vi) Winneke P, in Mobilio, agreed with Brooking JA’s reasons, and further agreed with him that the word “severe”, where used in sub-paragraph (c) of sub-s.(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.);
(vii) 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;
(viii) Where there is a claim for loss of earning capacity, that loss of earning capacity must be to the extent of forty per cent or more, both at the date of hearing and permanently thereafter;
(ix) Subsections (38)(e) and (f) recite the formula by which loss of earning capacity is to be measured;
(x) Subsection (38)(g) requires questions of rehabilitation and retraining be considered in determining whether the forty per cent loss has been established;
(xi) Subsection (38)(h) provides consequences which are psychologically based are to be wholly disregarded in paragraph (a) cases;
(xii) I have applied the principles identified by the Court of Appeal in Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622 and Grech v Orica (2006) 14 VR 602 in reaching my conclusions.
6 The plaintiff relied upon two affidavits and gave viva voce evidence. He was cross-examined. Dr Rowais, the plaintiff’s general practitioner, was required for cross-examination. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
7 The plaintiff is presently aged fifty-one, having been born on 2 May 1959 in Lebanon. He migrated to Australia in 1984 at the age of twenty-five.
8 The plaintiff understands English, but has problems with fluency. He can read basic English and his writing skills are poor.
9 The plaintiff trained as a welder in Lebanon, obtaining certification in 1981. His only employment in Australia has been with the defendant, with whom he commenced work at its Broadmeadows plant (“the plant”) in 1984.
10 The plaintiff was employed as a maintenance welder and his work required he ensure that equipment at the plant was maintained in working order. It was heavy and strenuous manual work, requiring considerable physical strain. He worked as a Level 2 Welder and was always looked after by the defendant. He did a range of jobs in addition to welding, including fitting and plumbing.
11 The plaintiff was given a Reward Certificate by the defendant on 24 August 2000.
12 The plaintiff deposed he believed his work with the defendant from 20 October 1999 had caused injuries to his lower back and right knee.
13 The defendant’s medical records indicated the plaintiff complained of back pain on 10 May 1988 and 20 April 1991. There was also a complaint on 5 November 2003 of acute right-sided back pain, which the plaintiff deposed would be consistent with his heavy work. He believed his symptoms gradually settled down with the use of analgesics.
14 On the said date, the plaintiff was involved in the construction of a stairway access to a storage area. He was standing on a platform waiting for the top flight of stairs to be manoeuvred into position so he could fit the bolts to secure it. Whilst being manoeuvred under the direction of a labourer, the flight of stairs shifted suddenly and struck the plaintiff in the back, knocking him from the platform on which he was working to the ground below, a distance in excess of 2.7 metres (“the incident”).
15 The plaintiff was immediately aware of pain in his back and rib areas in particular. He was dizzy and had trouble breathing. He was also suffering from some right shoulder pain, having landed on the floor.
16 The plaintiff was taken to the Northern Hospital where he was observed. X-rays were performed and a cracked bone was identified in his right hand. He had also cracked a rib on the left side and was advised it would heal by itself. He was given Panadeine Forte and discharged.
17 The plaintiff subsequently saw Dr Hwang at the defendant’s clinic. He organised a right wrist ultrasound and referred the plaintiff to a hand surgeon, Mr Bennett, who advised him he did not require surgery but that he should wear a splint for a couple of months. In the longer term, the plaintiff had intermittent symptoms in his right wrist but they have not been a major source of concern.
18 The plaintiff deposed the injuries which he believed related to the incident, and had been his major source of concern, were those affecting his right knee and lower back.
19 The plaintiff saw Dr Habib, a local doctor in Campbellfield, who gave him a certificate for three days off work. The plaintiff then returned to work, although suffering from persisting pain, and he continued under Dr Hwang’s care.
20 The plaintiff first saw Dr Rowais in relation to his injuries on 13 March 2004, by which time the pain was radiating through his right leg and he was walking with a limp. The plaintiff was advised to continue with pain-relieving medication, physiotherapy at the defendant’s clinic and light conservative treatment.
21 Further investigations were not performed until 11 October 2004 after another incident at work when the plaintiff aggravated his back working on the skids.
22 An entry in the plaintiff’s medical record progress card from the defendant dated 4 October 2004 set out that at 7.45 am that day, the plaintiff appeared to have a lot of pain in his lower right back region regarding a fall last February. The plaintiff stated his pain had been worse, but he wanted to work. The plaintiff stated he had been provided with two people to help him. They positioned the skids while he mig welded in an upright position, which he stated caused no aggravation. It was noted he was seen by Dr Henderson on 5 October 2004 where he was certified unfit to work that day and the following day, and to see his own doctor.
23 The defendant’s medical attendant, Mr Matters, wrote to Dr Henderson on 5 October 2004.
24 Mr Matters advised Dr Henderson that the plaintiff reported to him yesterday of having aggravated an ongoing back condition following a fall last February. Mr Matters believed the plaintiff’s work generally was okay, as stated by him, and in times of increased pain, he was assisted with his work. The plaintiff’s supervisor had told Mr Matters that morning he would allow the plaintiff to start later than normal to allow ample time for his back to settle, if needed, in the morning. The plaintiff stated three weeks ago his back was a lot worse and on the odd occasion he claimed sick pay for a day off due to his back pain. The plaintiff had asked about some physiotherapy and Dr Henderson was asked if that was appropriate. Mr Matters noted that the plaintiff said his job does not cause him pain but long walking, driving and sitting did.
25 Dr Hwang gave the plaintiff an injection into his spine following this aggravation; however, it did not result in any lasting improvement in his condition.
26 The plaintiff was put off work for a period of time by Dr Rowais, and again returned to his employment.
27 The plaintiff deposed that a further injury which he sustained, and of which he was increasingly aware in the weeks after the incident, was right knee pain which he initially thought related to his back injury.
28 The plaintiff was cross-examined about the date of onset of his right knee problems. He said he explained the injury to his doctor immediately after the incident, but then said he could not remember when he mentioned a knee problem.
29 The plaintiff agreed his right knee was not mentioned in his initial Claim Form but said he had told the defendant’s WorkCover safety officer, Georgia, two weeks after he completed it.
30 The plaintiff agreed his later Claim Form in June 2005 mentioned a right knee injury. It set out the date of injury as October 2004 and that the condition was first noted from that time.
31 The plaintiff said his knee hurt from the beginning and was worse from working on the skids which weighed 700 kilograms.
32 The plaintiff’s right knee was x-rayed on 29 December 2004.
33 The plaintiff underwent an MRI scan to his knee and back on 29 March 2005. Review by an orthopaedic surgeon was recommended in relation to a tear shown of the plaintiff’s lateral meniscus. The plaintiff was referred to Mr Lynch, orthopaedic surgeon, who advised him he required a right knee arthroscopy. Liability for this surgery has yet to be accepted by the defendant.
34 The plaintiff was also referred to Mr de la Harpe, orthopaedic surgeon, on 6 October 2005. Mr de la Harpe advised the plaintiff to persist with conservative treatment, including physiotherapy, and he suggested the plaintiff required a right knee arthroscopy.
35 The plaintiff was referred for a further opinion to neurosurgeon, Mr O’Brien, who recommended conservative treatment for his spine and also an MRI scan, which was performed on 25 January 2006.
36 When he finished at Ford, the plaintiff was working full-time doing skids, the frame that a car rests on. He was lifting 7 to 10 kilograms and was working full time.
37 The plaintiff agreed with the description set out in Dr Ho’s report of his duties in early 2005, explaining these were not light duties but in fact the heaviest job at Ford.
38 Whilst there was some confusion as to the date the plaintiff stopped work, having deposed he struggled on at work until June 2006, it became clear he last worked for the defendant in June 2005.
39 The plaintiff went to work in June 2005, the day after he had problems standing from the toilet at home, and has not worked since. He was in a bad way, having pinched a nerve in his back, and he was unable to move his back freely. He had trouble walking and that problem persisted until he was given a morphine injection which eased off his pain and it started improving.
40 A medical record progress card of the plaintiff dated 17 June 2005 set out that there was a callout to the workshop when the plaintiff was unable to walk and he was transported by ambulance to the medical centre, having reported the onset of back pain at 6.30 pm the previous night when he took Panadeine Forte. An ambulance was called to transport the plaintiff to hospital but was cancelled by Dr Hwang on his arrival.
41 There were also details of an email involving a callout on Friday, 17 June 2005.
42 It was noted medical centre staff were requested to go to the workshop to attend the plaintiff who was in severe pain and unable to walk. The plaintiff advised he had severe back pain, which commenced at 6.30 pm the previous evening at home.
43 The plaintiff was taken by an emergency vehicle to the medical centre. After a brief assessment, it was decided to call an ambulance to transport the plaintiff to hospital for further assessment. It was noted at 8.30 am, Dr Hwang arrived and was informed of the plaintiff’s condition.
44 The plaintiff deposed that he had been offered a redundancy package of about $200,000. His solicitor at that time told him to sign the redundancy contract, which he did, and returned it to the defendant. However, by this time the expiry date for the offer had lapsed and the defendant rejected the plaintiff’s offer. The plaintiff’s employment was formally terminated by letter dated 5 December 2006.
45 That correspondence was preceded by another letter to the plaintiff dated 21 November 2006, asserting that he had been working at residential construction sites in Dallas, Broadmeadows and Campbellfield.
46 In cross-examination, the plaintiff disputed he was working, explaining that within the Lebanese community it was often the case that people with a particular skill assisted others without payment, in anticipation that some time in the future the favour would be returned.
47 It was in those circumstances that the plaintiff assisted three friends with some light welding tasks on a number of days during 2005. These tasks were considerably lighter in nature than the work the plaintiff was required to perform with the defendant, up until the time he was forced to cease working because of his injuries.
48 The plaintiff probably did odd jobs for his friends, probably for an hour or two. The plaintiff thought he could handle soldering for about an hour or two and then would have to have a rest. If his doctor says he can work, he will work.
49 The plaintiff denied that whilst receiving weekly payments, he worked for his friends. He explained WorkCover only paid him for about two years. He then took long service leave and sick leave on the advice of his union.
50 The plaintiff disagreed he was working for friends when telling the defendant he was unfit for work. He was being paid wages when helping out friends in February and March 2005.
51 The plaintiff is not doing any work for friends at the moment and he does not even have a gate on his house.
52 The plaintiff deposed it was his belief the defendant was anxious to either retrench him or, if he did not accept that offer, to terminate his employment, because it was well aware he had suffered significant lower back and right knee injuries in the incident.
53 In cross-examination, the plaintiff agreed his employment was terminated because the defendant had some evidence he had been doing work.
54 Because of his persisting spinal pain, Dr Rowais referred the plaintiff for a further MRI scan on 21 October 2008.
55 The plaintiff returned to see Mr O’Brien on 21 April 2009. By that stage, the plaintiff was suffering referred symptoms into both legs. Mr O’Brien advised the plaintiff to undertake a medial branch block and referred him to Dr Verrills for that purpose. However, the defendant refused to fund that treatment.
56 The most recent radiological examination was an MRI scan of the lumbar spine on 12 September 2009.
57 The plaintiff deposed, by reason of the chronic nature of his pain, there had been a psychological reaction. He found, particularly, he was much more temperamental and easily angered and upset. This placed considerable strain on his marriage, and at one point he and his wife separated for about three months.
58 The plaintiff initially had counselling with psychologist, Mr Tsironis, but Mr Tsironis fell ill and the plaintiff has subsequently had counselling from Dr Kochar, psychiatrist, whom he continues to see monthly. They discuss issues affecting the plaintiff and his level of pain. He provides the plaintiff with guidance as to how best manage his condition.
59 The plaintiff deposed that by reason of his injuries, he is not fit for work, and continues to be certified unfit for any employment by Dr Rowais.
60 The defendant has failed to accept liability for treatment for the plaintiff’s knee and back, in particular the arthroscopy, and a series of treatments for his lumbar spine.
61 The plaintiff deposed, in November 2009, that he continued to suffer constant but variable levels of pain in his right knee and lower back.
62 Stemming from his lower back injury, the plaintiff suffered referred symptoms into both lower limbs which were of significant concern to him. The pain has never gone since the incident. His knee is now ten times worse than it was earlier.
63 In late 2009, Dr Rowais was then prescribing Norspan morphine patches in addition to a variety of other analgesic medications, including Panadeine Forte. The plaintiff was also prescribed antidepressant medication and other medication to help him sleep.
64 The plaintiff deposed that his social, recreational and domestic activities had been considerably impaired by reason of his injuries.
65 The plaintiff was in constant pain in both his right knee and lower back and his manoeuvrability has been adversely affected. If he had to sit or stand for extended periods, then he suffered increasing levels of discomfort from which his medication provided only partial relief.
66 The plaintiff’s sleep was interrupted nightly because of pain.
67 The plaintiff tried to undertake domestic tasks around the house, but found that as his condition deteriorated. Even mowing the lawns became too much for him and he now had someone to do that for him.
68 The plaintiff found the more strain he placed on his spine and knee, the greater the degree of pain. Given the persistence of symptoms and the failure to obtain treatment, he felt it was likely he would be left with those problems in the long term.
69 In his supplementary affidavit sworn 7 December 2010, the plaintiff deposed he continued to see Dr Rowais, who prescribed medication, including Panadeine Forte, which the plaintiff takes once a day; one Valium a day as required; and an antidepressant four times a day. The plaintiff also wore Norspan patches which he changed every two weeks. He regularly attended hydrotherapy.
70 Further, the plaintiff continued to see psychiatrist, Dr Kochar, once a month due to his depression, anxiety and loss of concentration and memory. The plaintiff also suffered from insomnia.
71 Because of his injuries, the plaintiff continued to be unable to return to any work. When asked if he had looked for light bench work, the plaintiff replied that he is not crippled. He could probably check the oil in the car, but he could not do a job in a factory. He agreed he could try some light welding. He tried to work with the defendant, but they sacked him. “What company is going to give [him] light duties?” He would not have a problem doing light assembly of small items at a bench.
72 The plaintiff had probably done “a bit of light gardening or put a plant in the ground”. He could do a little bit of mowing and he attended his vegetable patch. Further, he did the dishes and tried to help as much as he could around the house.
73 The plaintiff’s social life is greatly restricted as he does not want to go out as much and he feels depressed and anxious and does not see friends as much.
74 The plaintiff tried a little dancing; however, that has been very painful. Before the incident, he used to play ping pong regularly and had tried to play since, but cannot. He used to be able to drive long distances and go down to the beach but those activities have been curtailed greatly by his injuries.
75 He has tried to squat and sometimes when he feels better he can. He can lift to a limit and cannot carry 50 or 100 kilograms. He could carry an empty 20- litre jerry can.
76 The plaintiff has constant pain in his back, with pain going down both legs, although the right is worse. Further, he has pain in the lower back near his coccyx.
77 The plaintiff has difficulty standing or sitting for lengthy periods of time. He has difficulties going up and down stairs or walking over uneven ground, and driving is difficult.
78 The plaintiff’s right knee is painful all the time and is getting worse, and he has difficulty bending and kneeling. Because of these problems and the pain in his knee, he has difficulty driving.
79 The plaintiff agreed his doctor had said if he had a knee operation then he could go back to light duties. He had not had the surgery, because he thought the defendant was responsible and he had not put himself on the public waiting list. The defendant had given him the run-around, and appealing the whole issue of medical expenses was not getting him anywhere. He had gone to conciliation for his wages.
80 The defendant was paying for his medicine. The chemist sent the bills to the insurance company for payment. A pharmacy tax invoice sent to the defendant detailing the plaintiff’s medication for the period 18 April 2006 to 12 January 2011 was tendered.
81 The plaintiff was cross-examined about his ANZ and credit union accounts. His pension is paid into the former. Other transactions on that account include repayment by his children of money he has advanced against his mortgage.
82 The plaintiff claimed a deduction in relation to a welding machine in the 2004-2005 financial year of $1,813.00, but said he had paid $1,200.00 for the welder. He had bought it to keep at home to do jobs himself, “not to just hang it on the wall”.
Summary of the Plaintiff’s Earnings
Financial Year Gross Amount 1997 $44,126
1998 $48,290
1999 $43,216
2000 $48,377
2001 $56,001
2002 $55,937
2003 $60,261
2004 $60,610
2005 $53,029
The Plaintiff’s Medical Evidence
83 The plaintiff has been a regular patient of Dr Rowais since 1996. On 13 March 2004, the plaintiff first consulted him regarding the incident injury. The plaintiff then told him that he continued working with minimal time off.
84 On this initial examination, the plaintiff complained of coccogeal-type pain, lumbosacral pain, pain radiating to the right leg, hip and knee, and difficulty handling heavy manual tasks at work. He had difficulty in sitting and standing and he was walking with a limp.
85 On examination, there was tenderness over the lumbosacral and coccogeal area. Straight leg raising was restricted to 80 degrees on the right. Power in the right leg was normal and reflexes were intact.
86 Treatment was recommended, with work restrictions monitored by Dr Hwang.
87 When the plaintiff next saw Dr Rowais on 15 October 2004, he advised that his local doctor had not shown any interest in his back pain and his condition was going downhill. It was becoming impossible to cope with work due to persistent and progressive back and leg pain.
88 On examination, the plaintiff had moderate to severe restriction of back movement with flexion to only 20 degrees and tenderness experienced on palpating the right paraspinous area.
89 In October 2004, the plaintiff was referred for an x-ray and a CT scan of his lumbosacral spine. Dr Rowais concluded the plaintiff was suffering spondylosis at L5 with consequent Grade 1 spondylolisthesis and degenerative disc disease at T12-L1 and L3-L4.
90 Dr Rowais put the plaintiff off work for a week and advised he continue analgesics.
91 On subsequent visits, there was slow but gradual recovery, and on 18 November 2004, the plaintiff was able to return to work on light duties on graded hours for four hours daily, five days a week.
92 On 17 December 2004, the plaintiff was back to full time light duties. However, he continued to experience right-sided sciatica and right knee pain.
93 Dr Rowais noted diagnostic difficulty in differentiating between sciatica or right knee pain, and an MRI scan of the right knee was carried out on 29 March 2005.
94 Dr Rowais concluded that there had been a complex meniscal tear involving the anterior horn and body of the lateral meniscus, degeneration of the posterior horn of the right middle meniscus and small right knee joint effusion, together with other findings related to the knee which he recommended be reviewed by an orthopaedic surgeon.
95 Dr Rowais reported on 18 June 2005 that the plaintiff became completely immobile and could not attend to his personal care. He was taken off work, commenced on morphine and encouraged to proceed with surgery.
96 Dr Rowais reported, unfortunately, the plaintiff’s WorkCover entitlements were terminated and he became severely depressed and stressed. The plaintiff then developed post-traumatic stress and depression and was commenced on anti-depressant medication and referred to Mr Tsironis, psychologist, for supportive treatment.
97 As a result of the incident, Dr Rowais thought the plaintiff had sustained L3-4 central canal stenosis, impairment of the L-5 nerve root, aggravation of spondylolisthesis, a complex meniscal tear of the anterior horn of the lateral meniscus, degenerative right posterior horn medial meniscus knee strain and Post-Traumatic Stress Disorder.
98 Dr Rowais’ notes contained an entry on 16 December 2004 where mention was made of a problem with the right knee.
99 On 9 October 2005, the plaintiff was assessed by Mr de le Harpe, orthopaedic surgeon, who recommended conservative treatment for his back and surgical treatment for his knee.
100 An opinion was sought from Mr O’Brien, neurosurgeon, who recommended a repeat MRI scan of the back before any surgical decompression of the spine. He also recommended back rehabilitation.
101 Dr Rowais had no doubt the plaintiff had genuine injuries which were all work- related, considering he was well paid and had much to lose from not being able to work. By letter dated 25 September 2008, Dr Rowais advised the plaintiff’s solicitors that the plaintiff required an arthroscopy to his right knee and further evaluation by a neurosurgeon.
102 In October 2009, Dr Rowais reported that over the last four years the plaintiff’s injuries had been deteriorating dramatically. He noted the plaintiff became severely depressed, lost all his enjoyment and became fully dependent on his wife to manage his daily activities and required regular psycho-supportive management by Dr Kochar.
103 Dr Rowais noted that, unfortunately, medico-legal issues had halted any progress in the plaintiff’s condition and also complicated his psycho-emotional reaction.
104 Dr Rowais thought the plaintiff had a very poor prognosis and needed surgical management to his knee and back. He noted it had been more than five years since the injury and the plaintiff had lost a great deal of his leg muscle and had succumbed into chronic pain and disability. He thought the injuries were work-related. He thought the plaintiff was currently unfit for any work and his injuries had totality incapacitated him from work currently and in the future. He thought the plaintiff had serious damage to his back and knees which would prevent him from any future employment.
105 Dr Rowais confirmed this opinion in his most recent report of 3 November 2010.
106 In cross-examination, Dr Rowais confirmed that the first mention of a right knee problem in his notes was on 18 December 2004; however, he explained, because of the sciatica, it was very difficult to differentiate between whether the pain was coming from the knee, shooting to the back, or from the back shooting to the knee.
107 Dr Rowais confirmed he was giving light duties certificates to the plaintiff in the first half of 2005. In February 2005, there was a 5-kilogram lifting limit with no bending and no pushing and a certificate for the following month with a 10- kilogram lifting restriction.
108 Dr Rowais confirmed he certified the plaintiff fit for full time duties on the basis of his presentation at that time. In cross-examination, when it was put to him that at that time the plaintiff was doing the heaviest possible job at Ford and also helping friends out after work with various tasks, Dr Rowais was not prepared to say that that meant the plaintiff had a capacity for employment far greater than he was led to believe.
109 Dr Rowais explained he had known the plaintiff for over twenty years and that he was “a very solid and strong man and would not settle for anything”. Dr Rowais considered the plaintiff was a hard worker and he would not stop for anything. The only time the plaintiff stopped was when he was given morphine in June 2005.
110 When shown the video surveillance taken in February/March 2005, Dr Rowais agreed the plaintiff was moving very freely in the film and he agreed that the film demonstrated the plaintiff had a capacity in fact for full time normal duties as of March 2005.
111 The plaintiff told him that he was doing normal duties but Dr Rowais wanted to protect him with light duties. Dr Rowais agreed, despite his wish to protect the plaintiff, the plaintiff clearly had a capacity to work in full time unrestricted duties and engage in further work after that.
112 Dr Rowais agreed that the plaintiff was moving without restriction, engaging in the full normal range of movement, both in relation to his back and right knee in the film, and he was presenting as a normal person.
113 Dr Rowais confirmed that in June 2005, he started to give the plaintiff total incapacity certificates for the following months, with certification in the first part of the year having been for restricted duties.
114 Dr Rowais was asked about the plaintiff’s attendances at the Hadfield Physiotherapy Clinic on 7 and 14 July 2005. It was put to him that the plaintiff entered the clinic with a very heavy limp, relying heavily upon a walking stick. After a 30-minute attendance, the plaintiff came out of the clinic, again using his walking stick, with a very heavy limp, and then five minutes later he attended at other premises not limping, not using a walking stick. It was suggested to Dr Rowais that this scenario would call into account the plaintiff’s integrity or credibility.
115 Dr Rowais did not agree with that proposition. He said if it was not Merhi, he would agree with that, but no, he knew him very well. Dr Rowais attempted to explain the discrepancy in the plaintiff’s presentation by saying he would have had a couple of Valium tablets, some analgesic like morphine, and he would be feeling better. He explained there could be that change in presentation in that limited period of time. There was a fifty/fifty chance it could happen to somebody because it happened to Dr Rowais himself. He agreed it was unlikely, but it could happen.
116 When asked about a similar discrepancy in the plaintiff’s presentation before and after an examination with Mr Jones earlier this year, Dr Rowais explained that when the plaintiff came to him and accepted morphine and accepted surgery and accepted anything to relieve his pain because of lower intellectual capacity and cultural issues, that the plaintiff has the subconscious feeling that he has to prove to himself that he is disabled and that dictates this attitude and that is very common as well.
117 Dr Rowais agreed that there was some overload or psychosomatic component if the plaintiff had any gain to make from such a presentation but said in this case he has not had a gain, he had lost.
118 Prior to the incident, the plaintiff was making good money and working and he was a happy man and now he is depressed and disabled. Dr Rowais noted there was evidence, also medical and psychological evidence, to testify the plaintiff had some disability, had a serious disability.
119 In all probability, he agreed the plaintiff would be able to be much freer in his movement and would be able to engage in light duties after the knee arthroscopy. He had not thought of putting the plaintiff on the public waiting list because it was a medico-legal issue.
120 Dr Rowais thought the plaintiff would need another opinion about his back but knee surgery should take place first. Dr Rowais thought a surgeon had recommended back surgery but he could not remember whom.
121 Dr Rowais did not think that after knee surgery the plaintiff would be able to do light bench work. He had no idea whether the surgery would be successful, so he could not forecast what would happen to the plaintiff or whether he could work full time or part time. He did not think the plaintiff had any current capacity. He did not think there would be one hundred percent resolution by the knee surgery but agreed there was a high percentage of success. Dr Rowais mentioned that there was also the emotional factor.
122 Dr Rowais thought it was very difficult to say whether the plaintiff could do the lightest job for an hour. He then said he thought anyone in the world could do one hour’s work, but it would depend, of course, on their emotional reaction to the job, their pain stress and the stress of their life, noting the plaintiff was “a very strong man and does not want to stop”.
123 Dr Rowais disagreed with Mr Jones’ views as to the plaintiff’s capacity for employment and disagreed with Mr Jones’ description of the plaintiff having a varying level of pain.
124 When the apparent improvement in symptoms in early 2005 was put to Dr Rowais, he said, backs can fluctuate, with good and bad times. There had not been resolution. It was the symptoms that had improved but not resolution of the damage which had happened. Dr Rowais explained that definitely the symptoms improved but the pathology was still there: “It’s a time bomb waiting to happen.”
125 Dr Rowais thought the probability was that the spondylolisthesis would be caused by heavy manual work over a long time and by the incident. Dr Rowais disagreed with the comments made by Mr Russell in August 2005 that the work aggravation had ceased and he mentioned that the plaintiff had told him that Mr Russell was biased.
126 Dr Rowais confirmed he thought the plaintiff was a very honest and sincere man. He did complain about the defendant because they “misused him and his claim and he should have been working five years ago”. It was now too complicated and too complex for the plaintiff to go back to work after all that time.
127 If he had surgery and rehabilitation and psychologically was dealt with, then it was time to assess if the plaintiff could do something or not. He did not think the plaintiff, without surgery, could do light work with spondylolisthesis. He thought the plaintiff had been destroyed.
128 In re-examination, Dr Rowais confirmed the plaintiff had suffered a disc prolapse in the toilet incident in June 2005. He confirmed the symptoms were alleviated in early 2005 but not the underlying cause. He felt the need to protect the plaintiff with light duties certificates because he was sure the plaintiff would come out one day with a serious disc prolapse or having the need to have surgery in the future, and that had happened.
129 Dr Rowais related the prolapse to the incident, saying it could be the cause, “but it could be anything else, but the probability was it was caused by heavy manual work”. He agreed that the plaintiff was more vulnerable to further injury given the incident injury.
130 Dr Rowais thought the plaintiff’s back was the more significant problem. He thought, as a result of the back injury alone, putting aside emotional matters and the knee injury, the plaintiff would not be capable now or into the foreseeable future of getting into the sort of work that he could do. He did not think that the plaintiff could hold down a job with his back problem because of his education, language and back injury.
131 By email dated 17 June 2005, Dr Hwang advised the defendant that the plaintiff had an acute exacerbation of lower back pain on that date requiring narcotic analgesics, and he was hopeful that this would settle and did not expect this to alter the plaintiff’s general recovery in the long run. He also advised he expected the plaintiff to be off work for one to two weeks following knee surgery.
132 Dr Verrills was asked by Mr O’Brien in April 2009 to undertake medial branch block with a view to radiofrequency. Approval for funding of this procedure was sought by Dr Verrills on 12 May 2009.
133 The plaintiff was referred to Mr Brendan O’Brien by Dr Rowais in January 2006.
134 On clinical examination, the plaintiff walked with a normal gait. He had mildly reduced straight leg raising on the left to 70 degrees and there was no evidence of any wasting or muscle fasciculation.
135 Mr O’Brien advised the plaintiff should continue to be managed along symptomatic lines. He recommended the plaintiff undergo a repeat MRI scan of the lumbar spine to look for any additional changes to this area, after which he wanted to see the plaintiff again.
136 Mr O’Brien thought the plaintiff may benefit from further rehabilitative physiotherapy. He noted, on the other hand, the plaintiff may at some point in time need a lumbar fusion to stabilise this region with decompression of the associated neural structures.
137 In April 2009, the plaintiff complained of ongoing pain across the lower lumbar region. He also described numbness down his left leg to his toes, which was global in nature.
138 Mr O’Brien advised Dr Rowais that the plaintiff would benefit from a medial block to improve facet related pain and that he would like to refer him to Dr Verrills in that regard. Mr O’Brien advised surgical intervention and at that point he would await the plaintiff’s response to regional pain relieving techniques.
139 Mr Lynch first saw the plaintiff on 23 March 2005 on referral from Dr Rowais. The plaintiff’s main problem on presentation to him was lateral sided right knee pain which had been present for around six months. Mr Lynch noted examination of the right knee showed no abnormality.
140 An MRI scan of the right knee was performed on 29 March 2005. Mr Lynch reviewed the plaintiff on 8 April 2005 and recommended right knee arthroscopy in light of the MRI findings.
141 On review on 21 March 2006, the plaintiff had similar problems with his right knee and again approval for funding of arthroscopic surgery was requested.
142 Mr Lynch thought with an arthroscopy the plaintiff’s prognosis was good. Once corrected, he expected the plaintiff to be more comfortable and able to return to his work as an electric welder.
143 Mr de la Harpe, orthopaedic surgeon, examined the plaintiff on referral from Dr Rowais on 6 October 2005.
144 The plaintiff told him that he injured his back and right knee in the incident and had been having back pains and bilateral leg pains and bad right knee pain since.
145 The plaintiff told Mr de la Harpe that five months prior to first seeing him, the company doctor did some form of injection into his back which made his leg tremble. About four months earlier he had an aggravation of all his problems and ceased work altogether and he had been at home.
146 On examination, the plaintiff walked with a marked antalgic gait on the right hand side. He had a good range of movement of his lumbar spine and no neurological abnormality.
147 At that stage, Mr de la Harpe wanted the plaintiff to continue with his physiotherapy for his back. He did not believe major surgery on the plaintiff’s spine was indicated. However, he felt that a simple right knee arthroscopy and meniscal debridement would be of benefit to the plaintiff.
148 Mr de la Harpe believed the plaintiff had suffered two injuries related to the incident; namely, an aggravation of a pre-existing lower back condition where the plaintiff had had an L5-S1 lytic spondylolisthesis giving him increased mechanical back pain, and also a complex tear of the lateral meniscus proven on MRI scan.
149 Mr de la Harpe felt that the plaintiff’s knee injury would require arthroscopic debridement and some rehabilitation in the form of physiotherapy. He felt that the lumbar spine injuries required some ongoing physiotherapy rather than proceeding directly to major fusion surgery.
Medico-Legal Evidence
150 Mr Khan, orthopaedic surgeon, examined the plaintiff in December 2010. The plaintiff told him of the incident in which he advised he had injured his knee and his back.
151 On examination, the plaintiff could flex his lumbar spine to 70 degrees then complained of pain. There was limited extension associated with discomfort.
152 The plaintiff had aches going down the back of both legs intermittently from the buttocks to the calves in the right more than the left.
153 The plaintiff had no external evidence of muscular wasting in the thighs or calves. However, he had ache around his right knee with mild synovial thickening and was not able to squat. He had tenderness around the right knee joint along the lateral side, superolaterally as well as the lateral joint line.
154 Mr Khan noted that the plaintiff had duly reported knee symptoms but he did not specifically point this out to the defendant or treat the right knee initially. However he concomitantly developed the referred pain down his right leg.
155 Mr Khan thought the plaintiff had a pre-existing lumbosacral Grade 1 spondylolisthesis with pre-existing bilateral pars defect which had not caused him a great deal of pain and discomfort previously. He had developed discogenic pain at L3-4, which had been substantial and since then, during the course of his work, deteriorated further, causing some compromise of the associated nerve root but without radiculopathy. The plaintiff also had a small disc bulge at L5-S1 associated with osteophyte formation and aggravation of degenerative changes in that part of his lumbar spine resulting in back pain and referred pain down his leg.
156 In the presence of degeneration with no radiculopathy or neurological complications, Mr Khan thought spinal surgery was not indicated as it was unlikely to completely alleviate the plaintiff’s symptoms.
157 Mr Khan thought the plaintiff had been left with significant residual after effects of the injury to the right knee which had resulted in a flare-up of degenerative changes and secondary changes caused by a longstanding complex tear of the lateral meniscus which had not been adequately addressed.
158 Mr Khan thought, from the physical aspects of the plaintiff’s injury, he had been left with significant residual after effects consistent with his employment and, in particular, the incident.
159 Mr Khan considered the plaintiff totally unfit for heavy duty work requiring excessive bending, twisting and turning of his spine and lifting more than five kilograms. He considered the plaintiff unfit for his pre-injury duties on a permanent basis. He noted the plaintiff had also been left with significant after effects of his injury to his right knee, which Mr Khan considered to be work- related, and that the plaintiff required operative surgery, as suggested by Mr Lynch.
160 In Mr Khan’s view, the long term prognosis was guarded and the plaintiff was eventually likely to require a total knee replacement with the passage of time. He noted the plaintiff also had psychological injuries for which he was seeing a psychiatrist.
161 Mr Khan thought the plaintiff required ongoing treatment and pain management with medication as well as surgical treatment.
162 Dr Blombery, consultant physician, saw the plaintiff on 5 November 2010.
163 The plaintiff told him of the incident and that in 2005, he noted ongoing pain in the back and also pain in the right leg, particularly around the knee, after which he was referred to Mr Lynch.
164 The plaintiff told Dr Blombery his back and neck pain became so severe in mid-2005, he was advised to stop work and was commenced on morphine.
165 The plaintiff advised Dr Blombery that his back pain was most severe and that he had pain in his right leg present all the time, worse on weight bearing.
166 On examination, there was full range of back movement. Reflexes in the lower limbs were intact and symmetrical. Straight leg raising was intact to ninety degrees bilaterally, although somewhat painful. The plaintiff was tender over the lateral border of the right knee and there was no difference in temperature between the legs. There was no quadriceps wasting and there was a full range of movement of the legs.
167 Dr Blombery considered that the incident had resulted in previously asymptomatic degenerative changes in the plaintiff’s back becoming symptomatic and that had been an ongoing problem since that time.
168 Dr Blomberry noted the plaintiff also developed pain in his right knee, although the plaintiff advised it had become more of a problem approximately a year after the injury. However, the plaintiff told Dr Blombery he hurt his right leg in the incident. Dr Blombery noted imaging had shown that the plaintiff had torn the menisci in the knee. He thought it was appropriate that the plaintiff have surgery, but noted for some reason that had not yet occurred.
169 Dr Blombery considered that employment was a significant contributing factor to both the plaintiff’s back injury and the injury to the right knee.
170 Dr Blombery thought the plaintiff’s symptoms were relatively stable and that his prognosis for recovery was relatively poor. He noted the plaintiff had developed significant secondary depression and anxiety which would tend to enhance his experience of pain.
171 Dr Blombery considered that the plaintiff’s physical injury incapacitated him from his pre-injury employment. He thought the plaintiff may be able to do light duties a few hours a week not involving heavy lifting or any significant walking, but this would require retraining. Dr Blombery noted, given the plaintiff’s work experience and lack of English, such retraining would be difficult.
172 In addition to arthroscopy, Dr Blombery thought the plaintiff also required multi-disciplinary therapy for chronic pain.
173 The plaintiff was examined by Dr Sillcock, occupational physician, on behalf of his solicitors on 18 November 2010. The plaintiff told her of the incident and that he hurt his back and right knee.
174 The plaintiff told her he still had trouble with his back, leg and coccyx and he was getting worse. His right knee also played up but his back was the worst.
175 On examination, the plaintiff was tender all down his lumbar spine and over his coccyx. He had almost normal range of movements but complained of pin on extensions. There was tenderness and restriction of movement of the right knee.
176 Dr Sillcock believed the plaintiff had sustained a meniscal tear to his right knee which had not been surgically treated. She thought he also had chronic lower back pain, superimposed on the constitutional spondylolisthesis. She believed he had Chronic Pain Syndrome and clearly had major psychological issues.
177 Dr Sillcock did not think the plaintiff had a capacity for part time suitable employment. She noted that he had always worked as a welder and was unfit to do that type of work. Whilst she noted many of his problems were undoubtedly psychosomatic in origin, she thought the plaintiff was taking large amounts of medication and he had not had his right knee treated appropriately. She noted his fairly low level of education and the fact that he did not speak English very well, and therefore believed the plaintiff did not have any sort of capacity for suitable employment.
178 Mr George Tsironis, psychologist, first saw the plaintiff for counselling on 5 September 2005 on referral from Dr Rowais.
179 Mr Tsironis reported in October 2005 that, in his opinion, the plaintiff had a Chronic Adjustment Disorder with Depression amounting to Major Depressive Disorder and Post-Traumatic Stress Disorder.
180 At that early stage, Mr Tsironis commented that the plaintiff seemed genuinely traumatised by his predicament and he could not see evidence of the plaintiff exaggeration or malingering.
181 He advised, given the severity of the plaintiff’s symptoms, it was unlikely the plaintiff would recover from his experience and he was in need of intense and extensive psychological assistance. At that stage, he thought the plaintiff’s prognosis was guarded, and it was highly unlikely that he could safely return to work.
182 A number of entries from Mr Tsironis’ clinical notes were tendered.
183 A note of 28 November 2005 set out:
“Mr Merhi again appeared very uncomfortable and irritated and remained like that for the remainder of the session, as a result of him not being able to resist the pain. He moved around to ease the pain to no avail. He was very moody as a result of the intermittent and random attacks of pain and his facial response reflected the pain he was experiencing. He also described the pain attack as quick as a lightning strike and stopped equally quickly and the path of destruction it left behind was muscle spasms where pain was widespread and radiated to a host of other parts of his body.”
184 An entry of 24 April 2006 set out that the plaintiff reported experiencing having good and bad days. On a good day, he attempted to do things such as chores and maintenance, and pain progressively increased. On a bad day, he had to push himself very hard if he had to do anything.
185 During the good and bad days, the plaintiff experienced good and bad moments. For example, on a bad day, when he had a good moment, he reported attempting to do chores around the house but quickly regressed with pain and needed to stop and rest. He reported situations like these made him feel depressed and angry and he thought pessimistically about the future.
186 The plaintiff first attended Dr Kochar, psychiatrist, on 11 December 2006. The plaintiff initially presented as a depressed man who spoke bitterly with a high level of frustration and anger and often blamed his employer, insurance company and other doctors for treating him badly.
187 The plaintiff described numerous nervous complaints and problems that he believed had developed since the incident. He described being constantly troubled by back pain, being nervous and easily upset.
188 During subsequent appointments, the plaintiff often presented as disappointed, sad and depressed with a sense of bitterness and frustration, because he felt his life was going downhill with not much hope for him. He described sleeping poorly and feeling flat, tired, lacking in drive and motivation.
189 The plaintiff told Dr Kochar that he had little social or recreational activity. He described receiving very little support and understanding from the defendant or insurer, which had made him feel more anxious, depressed and short tempered.
190 Dr Kochar thought that the plaintiff was suffering from a Chronic Adjustment Disorder with Anxious Depressed Mood, along with behavioural and personality changes, such as irritability, hostility, anger and lack of motivation. Dr Kochar considered most of the plaintiff’s symptoms were of moderate severity.
191 In Dr Kochar’s view, the plaintiff’s condition was unlikely to improve and the chronic nature of his condition and poor response to treatment indicated a guarded prognosis.
192 Dr Kochar considered the psychiatric injuries arose out of or in the course of the plaintiff’s employment.
193 Dr Kochar thought the plaintiff’s psychiatric condition was likely to deteriorate if the compensation issue was not adequately addressed and satisfactorily finalised. Once the case had finished, Dr Kochar hoped to be able to focus on improvement, though he thought the plaintiff’s prognosis was guarded.
194 In Dr Kochar’s view the plaintiff currently had no capacity for pre-injury or other suitable employment, even on a part time basis. The plaintiff’s symptoms had a significant affect on his incapacity to work, because of lack of endurance strength, concentration and motivation. Dr Kochar concluded that once the case was finalised and improvement became the primary goal of psychiatric treatment for several months, he could review and reconsider the plaintiff’s capacity for rehabilitation or training.
195 Dr Kaplan, psychiatrist, examined the plaintiff on 6 December 2010.
196 The plaintiff told him that his life had been transformed by his injury and he felt embarrassed and ashamed that he required financial assistance from his children. He had lost confidence and he felt hurt by the way he had been treated by the defendant after providing loyal service for twenty three years.
197 The plaintiff told Dr Kaplan his social life had been affected and he did not have any friends any more. He stated he was forgetful at times and had difficulty with concentration.
198 On mental state examination, Dr Kaplan noted the plaintiff’s thinking was characterised by a preoccupation with his injuries and their impact on his life. He otherwise displayed no abnormalities of speech, thinking or perception. The plaintiff appeared tense and expressed intense frustration about his injuries and their impact on his life, and he expressed feelings of guilt in relation to his irritability and burdening his family.
199 Dr Kaplan thought the plaintiff was suffering an Adjustment Disorder with Mixed Anxiety and Depressed Mood. He considered that the plaintiff’s condition was directly related to his injury, his chronic pain, the loss of a highly valued job and the physical limitations imposed upon him by his pain. Further, the plaintiff described an appetite disturbance and a significant weight gain. His libido had diminished and he was suffering from an erectile disorder.
200 Dr Kaplan thought the plaintiff was likely to remain prone to anxiety and depression as long as his pain persisted and he remained disabled by his pain. Whilst his psychiatric condition was likely to have an impact upon his capacity for employment, Dr Kaplan thought this capacity would be largely determined by the plaintiff’s physical condition. He considered the plaintiff likely to require a continuation of his current psychiatric treatment as long as he suffered from significant symptoms.
Investigations
201 An x-ray of the plaintiff’s right hip on 29 December 2004 organised by Dr Rowais showed no recent bony or joint lesion or degenerative arthritis. It was noted there was an insignificant one-centimetre bone island at the roof of the acetabulum.
202 An x-ray of the right knee of that date showed no recent bony or joint lesion or degenerative arthritis.
203 A CT scan of the plaintiff’s lumbosacral spine taken on 22 October 2004 at the request of Dr Rowais showed spondylosis at L5 with consequent Grade 1 spondylolisthesis. There was degenerative disc disease at T12-L1 and L3-4.
204 The plaintiff underwent an MRI scan of his lumbar spine on 29 March 2005 organised by Dr Hwang.
205 It was reported there was moderate central canal stenosis at L3-4 level and mild to moderate central canal stenosis noted at T12-L1 level. There was impingement to the existing left L5 nerve root noted secondary to foraminal disc bulge. There was Grade 1 anterior spondylolisthesis at L5-S1 secondary to L5 pars defect.
206 It was reported that an MRI scan of the right knee of the same date showed complex meniscal tear involving the anterior horn and body of the lateral meniscus. There was degeneration of the posterior horn of the right middle meniscus and small right knee joint effusion. There was a small area of bone bruising – “? oedema” of the femoral condyle. There was a sprain of the lateral collateral ligament. In view of the findings, review by an orthopaedic surgeon was recommended.
207 An MRI scan of the lumbar spine was organised by Mr O’Brien on 25 January 2006.
208 There was a Grade 1 anterolisthesis at L-5 on S-1 due to spondylosis. There were mild foraminal stenoses bilaterally at that level. Degenerative disc disease at T12 – L1 and L3-L4 was described without focally compressive discopathy.
209 An MRI scan of the plaintiff’s lumbar spine was organised by Dr Rowais on 21 October 2008. It was reported that there was moderate L3-4 lumbar canal stenosis secondary to a central and right L3-4 disc prolapse with impingement of the right L4 nerve root within the right lateral recess. There was mild T12-L1 canal stenosis secondary to a central T12-L1 disc prolapse with impingement of the thecal sac but no cord or nerve root impingement identified at that level.
210 There was Grade 1 anterior spondylolisthesis of the L5-S1 secondary to bilateral L5 pars defects. There was marked left L4-5 and moderate right L3-4 facet joint osteoarthritis. It was suggested CT scan guided facet joint steroid injections may be of therapeutic benefit.
Claim Documents
211 The initial Claim for Compensation was signed by the plaintiff on 4 March 2004. He set out that he suffered injury to his ribs, back (coccyx) and right wrist on 21 February 2004 when he was thrown to the floor by a swinging staircase.
212 A further Claim Form was signed by the plaintiff on 10 October 2004, setting out he ceased work in October 2004 because of a lower back injury as a result of the February 2004 condition.
213 There was a further Claim for Compensation signed by the plaintiff on 15 June 2005 in which he set out his right knee was sore resulting from an injury in October 2004 when he had been involved in manual handling of skids and had to pull skids along a conveyor system over a long period of time. He reported that condition to Joe Spiteri in October.
Correspondence
214 Ms Danos from the defendant emailed Angelo Tocci on 15 June 2005. She advised that on that day, the WorkCover office received a claim for the plaintiff’s right knee condition. She set out that as per their previous conversation, this injury was secondary to the incident that occurred in October 2004. She advised that the defendant had enough medical and circumstantial information to accept the claim for loss of time and medical and like expenses. She noted this injury was originally reported in 2004.
215 Two letters of instructions to Mr Jones, orthopaedic surgeon, were tendered, the first dated 29 October 2008 and the second dated 7 January 2011.
216 Mr Jones was advised that while under surveillance in late July 2005, the plaintiff was observed walking in a normal and unrestricted manner undertaking work at a building site carrying several bags, bending freely and without restriction, carrying a 20-litre metal container of cooking oil and lifting boxes of groceries.
217 Mr Jones was advised the plaintiff did not return to work with the defendant and submitted Certificates of Incapacity certifying he was unfit for any work and declaring he had not been engaged in any form of paid employment, self- employment or voluntary employment.
218 In that correspondence, in addition to medical reports, were surveillance reports of MPOL Investigations dated 15 February 2005, 9 March 2005, 20 July 2005 and 2 August 2005.
219 In the letter to Mr Jones dated 7 January 2011, there was a description of surveillance carried out on 5 and 6 March 2005 where the plaintiff was shown undertaking drilling duties and carrying out other related work and again the instructions and description of the June and July video was repeated.
220 The same surveillance reports were included in that correspondence.
The Defendant’s Medical Evidence
221 Dr Hwang first saw the plaintiff on 24 February 2004 after he had fallen 1.8 metres onto his right side.
222 On examination, the plaintiff had a full range of back movement. Dr Hwang noted tenderness of the paravertebral muscles on the right side. Pain radiated to the plaintiff’s right buttock but not the right leg. He also had pain to his right side of his hips.
223 Dr Hwang noted the plaintiff was happy to remain at work despite considerable pain.
224 On review on 5 March 2004, the plaintiff’s back had settled down. He next complained to Dr Hwang about his back on 6 October 2004. He stated that over a two-week period he developed back pain on the right side of gradual onset of a nature similar to that following the incident. Until October 2004, the pain had largely settled down except for some aches in the mornings.
225 The plaintiff described that the pain occurred gradually, which he noted during the course of work. He did not recall any specific incident which may have precipitated the episode.
226 On examination 6 October 2004, the plaintiff walked with a limp and appeared to be in pain. There was no neurological deficit. Straight leg was to 80 degrees bilaterally.
227 The plaintiff had very well localised tenderness on the right sacroiliac joint and he had a tender trigger point on his right buttock. Dr Hwang injected near the plaintiff’s right sacroiliac region as well as his right buttock trigger point with anaesthetic.
228 When he saw Dr Hwang casually several days later, the plaintiff reported he had near complete resolution of pain for about a day, followed by a severe return of pain. The plaintiff advised Dr Hwang in those circumstances he had seen his own doctor and was put off work.
229 Dr Hwang phoned Dr Rowais on 5 November 2004 to obtain an update on the plaintiff’s condition. Dr Rowais reported the plaintiff was improving slowly but definitely. Both he and the plaintiff were quite optimistic about the plaintiff returning to work and Dr Rowais anticipated a return to work later that week.
230 On a clinical basis, Dr Hwang thought the plaintiff had a right sacroiliac strain. Dr Hwang thought the reported spondylosis at L-5 and spondylolisthesis would have been present for most of the plaintiff’s life without causing problems. He was not convinced that those conditions contributed to the plaintiff’s pain. He noted the plaintiff’s sacroiliac joint may have been jarred during the incident and continued to give him minor problems since then, but he had a spontaneous aggravation recently. Dr Hwang then believed that the plaintiff’s current symptoms were at least partially related to the incident.
231 Dr Hwang thought the plaintiff was fit for some degree of work not involving heavy manual handling, lifting, bending or awkward posture.
232 Despite the plaintiff being off work for some time, Dr Hwang expected he would recover fairly well. He thought the plaintiff may have further episodes of aggravation in the future.
233 Dr Hwang reviewed the plaintiff in relation to his knee complaint on 21 March 2005 and confirmed an MRI scan was indicated.
234 Dr Hwang advised the defendant by email on 20 April 2005 that further to his previous consultation with the plaintiff regarding his lower back pain, the plaintiff had developed right knee pain. The plaintiff could not recall a specific incident, but he felt the onset of pain at work on the same day he was given an injection, namely, 6 October 2004, but he initially thought it was referred from his back. Examination was clearly indicative of a lateral meniscus tear and Dr Hwang ordered an MRI scan which confirmed that diagnosis.
235 Dr Hwang advised he believed the plaintiff sustained a lateral meniscus tear during the course of normal work on 6 October 2004, the day he gave him a local anaesthetic injection around the right sacroiliac joint. Dr Hwang would be inclined to believe, in all probability, that an obscure twisting action that the plaintiff was unaware of may have caused the injury. It was unrelated to the plaintiff’s original back pain, which the plaintiff advised had settled well, and it should be considered a new injury.
236 Dr Hwang advised that he thought arthroscopy was the definitive treatment for this and should produce an excellent result.
237 Dr Hwang advised that the plaintiff may be off work for five to ten days following knee surgery and following that, he may have some ongoing symptoms gradually resolving over a matter of several months. Dr Hwang advised that he had written to Mr Lynch, orthopaedic surgeon, to let him know that seated duties were available for the plaintiff on return to work.
238 Mr Russell, general surgeon, examined the plaintiff in November 2004. The plaintiff told him of the incident and that he had problems with his tail bone since that time. Also about a month before Mr Russell’s examination, the plaintiff had an exacerbation of his pain at work and saw the work doctor who gave him two injections following which he was sore in his right leg down to his knee.
239 Mr Russell noted the plaintiff planned to return to work on light duties in November 2004.
240 On formal examination, the plaintiff had tenderness in his right lower back and there was some restriction of thoraco lumbo sacral movement.
241 Mr Russell noted that there was evidence of established spondylolisthesis when the plaintiff underwent a CT scan on 22 October 2004.
242 Mr Russell thought that there was no way of knowing exactly when that movement of bone occurred. He considered it could well have occurred, and probably did, in the incident.
243 Mr Russell noted the plaintiff had had a fairly rapid recovery with re- aggravation from a back strain occurring in October. Mr Russell felt that spondylolisthesis was significant in the plaintiff’s back symptoms and was likely to relate to employment.
244 Therefore, unless x-rays from before the incident indicated a pre-existing spondylolisthesis, Mr Russell thought the plaintiff’s condition would be difficult to ignore as being work-related. In his view, the plaintiff had what appeared to be a significant materially work related spondylolisthesis from the incident and had had intermittent back symptoms since.
245 Mr Russell thought the plaintiff’s condition remained related to employment in a significant material way and it appeared to be more than a simple back strain. He noted the plaintiff would tend to have recurrent back pain to some degree. At that stage, Mr Russell thought the plaintiff had quite good back function and was fit to return to appropriate restricted duties. He concluded the plaintiff was suffering from a congenital weakness together with a material work related spondylolisthesis, causing back pain which was now recurrent. He noted the plaintiff’s condition would improve over a time but a permanent weakness was present.
246 Mr Russell re-examined the plaintiff in August 2005, at which time the plaintiff had been off work for two months.
247 Mr Russell noted the plaintiff told him that in 2005 he saw a work doctor who arranged an MRI scan of his right knee and back as he had pain. The plaintiff told Mr Russell that his right knee was not troublesome at first but on the day of the injury in October, when he went to see the work doctor who gave him an injection, his back pain improved but he had pain in the lateral side of his right knee after that.
248 The plaintiff told Mr Russell that two months earlier, whilst at home, he could not stand from the toilet.
249 On examination, the plaintiff walked with a limp favouring his right leg. His lower back showed no deformity. There was a little tenderness in the right sacroiliac joint area with some restriction of movement. Sensation was intact in the lower limbs, as were reflexes. Mr Russell concluded the incident seemed to have allowed a good recovery in clinical terms with minimal treatment being required. The recent exacerbation was not well explained on the basis of any identified injury from employment. He noted the plaintiff showed good function with some inconsistencies on examination.
250 Mr Russell commented that the plaintiff had some old pathology in his knee which could be causing some pain with his meniscal problem, but that was not identified as being related to work in a significant or material way.
251 Mr Russell thought the plaintiff’s back condition seemed to have improved substantially “since his troubles two months ago which had occurred outside employment”. Mr Russell thought the effects from the incident had now ceased.
252 Mr Russell thought the proposed arthroscopic knee surgery would be optional but not unreasonable, and in his view WorkCover was not liable for it.
253 Mr Russell thought the plaintiff was currently fit for full time work with lifting and bending restrictions.
254 Dr Ho examined the plaintiff and conducted a work site assessment on 11 February 2005. The plaintiff told him of the incident in which he injured his right wrist, ribs and tail bone.
255 Further, the plaintiff told him some time in October 2004 while working in the skid area, he felt something crack in his lower back and he could not move.
256 Later, the plaintiff was given two injections which were beneficial but subsequently his right leg, specifically his right knee, was painful laterally and the plaintiff believed that injection had caused the pain.
257 Dr Ho noted the plaintiff stated he was off work initially for about one or two months and returned to work on a gradual basis to full time but on light duties.
258 On examination, the plaintiff indicated pain was in the right sacroiliac area. Thoracolumbar spine movements were measured to full range.
259 According to the history and radiological investigations, Dr Ho thought the plaintiff most likely caused or aggravated an L-5 S-1 spondylolisthesis in his lower back in the incident.
260 Examination of the right knee revealed slight swelling in the lateral joints, both with tenderness on palpation. Dr Ho commented that assessment of the right knee was difficult because of some over reaction.
261 Dr Ho noted currently the plaintiff’s lower back had reportedly been good and his main problem was a persistent pain in his right knee laterally. He thought the plaintiff did not appear to have symptoms of radiculopathy in his right leg. Dr Ho considered the plaintiff’s persisting right knee pain may be referred from his lower back or due to a local lateral meniscal injury, which was obscured by his moderately severe back pain.
262 Regardless, Dr Ho considered the right leg problem to be work-related and he believed the plaintiff required further assessment to ascertain the cause thereof.
263 As at February 2005, Dr Ho noted the plaintiff was currently working full time and the purpose of that examination was to assess his current capability for an upgrade of his duties.
264 Following the work site assessment, Dr Ho recommended the plaintiff avoid heavy lifting in excess of 5 kilograms, climbing up and down stairs or ladders and squatting and kneeling. He suggested the plaintiff be able to work at his own pace and change posture when needed.
265 Dr Ho noted that at that time, the plaintiff was doing light fabrication tasks in the maintenance department, he had been doing welding of some small components on a bench top in the central maintenance department and also welding on larger structures which had been set up by his colleagues. He also used a bench grinder and a cut off saw. These duties were well detailed in a VRS Rehabilitation Plan dated 21 December 2004.
266 Dr Ho re-examined the plaintiff on 6 July 2005.
267 The plaintiff reported to him that on 15 June 2005 while at home, he could not stand from the toilet. The following day he tried to go to work, where he collapsed and had to be taken by ambulance to the medical centre where he was given an injection. The plaintiff stated he saw his local doctor on the Saturday morning and was put off work and had not worked since.
268 On examination, the plaintiff used a walking stick and walked with a normal gait. He moved with exaggerated care. Dr Ho noted there was evidence of exaggeration of the plaintiff’s clinical features.
269 On light palpation, the plaintiff’s right sacroiliac area was tender. He had pain in his lower back with rotation of his knees, while his lower back was held straight. Dr Ho commented that that would indicate exaggeration of the plaintiff’s pain. There was voluntary limitation of thoracolumbar spine movements with reported pain in the lower back in all directions.
270 Assessment of the right leg was difficult due to exaggeration. The plaintiff was sensitive to touch of his right knee and there was limited flexion.
271 Dr Ho noted the recent MRI scan of the plaintiff’s right knee.
272 Dr Ho confirmed his earlier view that the right knee injury was probably sustained in a fall at work and he recommended acceptance of liability for that condition.
273 With appropriate treatment and the avoidance of further aggravation at work, Dr Ho would have expected significant improvement in the plaintiff’s lower back condition.
274 Following re-examination, Dr Ho thought there was evidence of some functional overlay or non-physical factors contributing to the plaintiff’s current condition and total incapacity. He considered the plaintiff had better capability than he claimed.
275 Dr Ho thought the plaintiff may benefit from a referral to a pain management clinic and that he should be encouraged to seek his own recovery program by progressing to a self managed program.
276 Dr Ho provided a supplementary report on 23 November 2005.
277 From the information provided to him, Dr Ho mentioned the plaintiff was noted to be physically active.
278 That information caused Dr Ho to alter his opinion regarding the validity of the plaintiff’s right knee injury and incapacity at the time of examination. As the toilet incident in June 2005 happened at home, Dr Ho did not believe it would be related to the plaintiff’s employment in a significant or material way. Dr Ho thought as of November 2005, the plaintiff had capacity to return to full time work on light duties, given his observed good capability.
279 Dr Ho re-examined the plaintiff on 5 September 2007 to provide information on ongoing medical and like services.
280 Dr Ho noted the plaintiff told him he had not returned to work in any capacity since June 2005. He told him, in the last two years he had not worked anywhere else and had been at home.
281 On examination, the plaintiff was not using a walking stick. He walked with an exaggerated gait with his right foot pointing out and an exaggerated limp.
282 On light palpation of the lumbar spine, there was tenderness in the right sacroiliac area. Waddell’s signs were positive, indicating an exaggeration of back pain.
283 Dr Ho noted active movements in the lower back were to better range than on the last examination.
284 Examination of the right knee was difficult due to exaggeration. The plaintiff was again sensitive to light palpation of his knee. He exaggerated limitation of flexion of his knee. There was no swelling or effusion.
285 Dr Ho advised that as there had been three and a half years since the incident, he would have expected the effects of the temporary aggravation of the pre-existing or underlying condition in the plaintiff’s lower back to settle fully by that stage. Dr Ho confirmed an arthroscopy was indicated, but commented it was unlikely to resolve the plaintiff’s non-organic exaggeration of clinical features in his right knee.
286 After this re-examination, Dr Ho believed the plaintiff again had far better capability, particularly with his lower back as well as his right knee, despite the meniscal tear, than the plaintiff claimed or perceived.
287 At that stage, Dr Ho did not believe the plaintiff required the level of physical treatment for his current condition. Twice weekly physiotherapy was unlikely to resolve the tear.
288 Dr Ho did not believe physical therapy was required for the plaintiff’s lower back and that self-managed regular exercise was more likely to be beneficial than the physiotherapy. In the plaintiff’s best interests, Dr Ho advised he should reduce the amount of analgesics as they were unlikely to resolve the non-organic factor or functional overlay affecting the plaintiff’s condition and capacity.
289 Dr Walton, psychiatrist, examined the plaintiff on 20 October 2005.
374 At 12.54 pm, the plaintiff was shown taking things from his vehicle and moving quite quickly.
375 On 14 July 2005 at 10.12 am, the plaintiff was shown talking to a man on the footpath outside Procus Welding Supplies. The plaintiff stood there for about twenty minutes. The plaintiff explained he was attending the shop to make a payment on his welding machine. He was there so long because he had a lot of friends there to talk to.
376 At 10.39 am, the plaintiff was shown for a few minutes in a queue at Vic Roads. At 10.50 am, he was shown slightly limping and then walking normally to his car at 10.52 am, although he said he was then limping.
377 At 11.16 am, the plaintiff was shown walking across the road getting into his truck, walking normally and getting into it easily. At 11.41 am, he was shown strolling down the street, very briefly then getting into his truck. At 11.45 am, he was shown at a service station where he stood half bent over for about two minutes to put petrol in the fuel tank.
378 The plaintiff drove off at 11.50 am. At 11.54 am, he got out of the truck in a car park, limping heavily, and was shown returning to his truck limping heavily at 12.35 pm, and got into the driver’s side very slowly.
379 At 12.47 pm, the plaintiff was shown talking to another man who put a box in the tray of his truck and at 12.52 pm, the plaintiff got into his truck.
380 Nearly fifteen minutes of film was shown of the plaintiff on 22 July 2005.
381 The plaintiff was shown arriving at a shopping centre at 9.22 am, driving his truck with a front-seat passenger. At 9.37 am, the plaintiff was shown walking for about two minutes with a limp at the front of some shops.
382 At 9.50 am, the plaintiff stopped at a Caltex petrol station and bent low on the driver’s side to fill the truck for about thirty seconds, and then bent again to put the cap on. He walked inside, paid, and then walked out and got into the truck.
383 At 9.57 am, the plaintiff was shown standing on the street smoking, bending into his truck, but not really seen to be doing anything.
384 At 10.47 am, the plaintiff was shown walking down the street with a short man who was using a walking stick. They crossed the road with the plaintiff walking normally. At 10.48 am, they went into a shop. The plaintiff was then shown walking slowly with his friend.
385 At 11.51 am, the plaintiff was shown walking with a bit of a limp, with his friend struggling on a stick. At 11.53 am, the plaintiff was shown carrying a bag in his left hand with his friend walking behind.
386 At 1.00 pm, the plaintiff was shown walking by himself carrying a small bag and then getting into his truck. There were three bags shown on the dashboard. At 1.04 pm, he drove off, and at 1.33 pm he parked his vehicle.
387 The plaintiff was again shown driving at 1.40 pm. At 1.41 pm he stopped outside a house and took out the shopping bags and carried them inside, doing this on two further occasions and at 1.46 pm he carried two boxes from the truck to the house.
388 On 6 August 2008 at 9.52 am, the plaintiff was shown walking briskly albeit with a strange sort of gait along the street for a couple of minutes. He then went into “Savers” where he was shown walking around looking at racks of clothes from 9.56 am for twenty minutes or so. The plaintiff was then shown walking briskly along the street at 10.23 am to his car.
389 There were a couple of seconds of film taken on 8 August 2008.
390 At 9.12 am on 26 August 2008, the plaintiff was shown in his car. A minute later he got out and was shown limping in a car park.
391 At 9.48 am, the plaintiff was shown walking with a bit of a limp along the street, but then he limped a little bit more when crossing the road to his car at 9.49 am.
392 The most recent video surveillance film was of thirty five minutes taken on 8, 9 and 13 January 2011.
393 On 8 January 2011, the plaintiff was shown walking normally down the street at 9.52 am. He said however there was a little limping. He explained that he had medicine and wore patches and agreed his knee was his major problem. He was looking in a shop for about half an hour moving normally and he agreed he had no problems bending. He then went to Brunswick Baths and emerged from the baths walking briskly although he said “a little limping – maybe they don’t see it – I feel it- it’s my pain”.
394 Two days later, on 10 January 2011, the plaintiff was shown at 9.00 am sitting in his car for about fifteen minutes before going in to see Mr Jones. He said he had had his medication and he was wearing a patch.
395 At 9.17 am, the plaintiff limped out of his car carrying the x-rays, walking into the surgery. He agreed he had a very big limp that day – because he had two problems with his back and knee.
396 When it was put to the plaintiff that he was not that bad two days earlier he said it depended on the medication - sometimes he felt good but he was worse in the mornings.
397 When the plaintiff emerged from Mr Jones surgery just after 10.00 am, his limping was even worse as he got into the passenger seat of the car.
398 The plaintiff was shown three days later on 13 January 2011 at 9.20 am. He was walking stiffly, but not with a limp, into a shop. He said he was limping.
399 The plaintiff was then shown from 9.26 am in a shopping centre where he walked around, talked to a friend, rested on a counter and sat down.
400 The plaintiff’s gait during that time at the shopping centre was more like a waddle, but he was not limping. He said he had a little limp and sometimes it would change dramatically during the course of the day, depending on the pain. At 11.40 am, the plaintiff walked back to his car and at 12.10 pm, he filled his car at the petrol station.
Overview
Back Condition
401 The first issue for consideration in this case is whether the plaintiff has suffered a compensable injury on or after 20 October 1999.
402 Section 134AB(1) of the Act permits the bringing of proceedings only in respect of compensable injuries “arising out of or in the course of, or due to the nature of, employment on or after 20 October 1999”.
403 I accept that the plaintiff suffered a compensable injury to his back in the incident.
404 The plaintiff’s claim for weekly payments was initially accepted and he received payments until late 2005, when they were terminated on the grounds that his work activities recorded on film were inconsistent with his claimed level of incapacity and that he had continued to declare in medical certificates relied upon by him that he had not been engaged in any form of paid or voluntary employment.
405 Most of the medical practitioners who have provided a diagnosis of the plaintiff’s back condition considered that he aggravated a pre-existing L5-S1 spondylolisthesis in the incident.
406 However, Mr Russell and Dr Ho, in 2005, and Mr Jones in 2008, thought the work-related effects of that condition had ceased.
407 It was submitted by counsel for the defendant that the plaintiff had recovered from his incident injury by early 2005. Reliance was placed on the film taken in February and March 2005 in which the plaintiff clearly demonstrated a capacity for work moving freely and undertaking a wide range of work tasks. Further, these activities were performed after the plaintiff had worked a full day with the defendant doing the heaviest job at the plant.
408 I accept that the plaintiff had ongoing problems with his back throughout 2004, suffering an exacerbation of this condition on 4 October 2004 whilst working on the skids, which was recorded in the medical record progress card of that date as the plaintiff having a lot of pain in the lower back region dating back to a fall in February 2004. The plaintiff saw the defendant’s medical attendant, Mr Matters, that day and reported to him having aggravated an ongoing back condition following a fall last February.
409 The plaintiff was seen by Dr Henderson the following day when he was certified unfit to work that day and the following day, and to see his own doctor. The plaintiff also received an injection from Dr Hwang on 6 October.
410 After a week off work following this October 2004 aggravation, the plaintiff was able to return to light duties increasing to full time hours by mid December 2004.
411 Clearly, the plaintiff’s condition had significantly improved by early 2005, at which time he was working full time at a heavy job at the plant and able to assist friends with various jobs at their homes.
412 This was the situation until the toilet incident occurred on 16 June 2005 and the plaintiff had problems at work the following day, after which he has not returned to work.
413 I am satisfied that this further aggravation of the plaintiff’s back condition on 16 and 17 June 2005 occurred in circumstances where the plaintiff had a vulnerable back from the incident. In the absence of any other particular aggravating activity or event, I accept that these aggravations related to the plaintiff’s ongoing incident injury.
414 I accept Dr Rowais’ view that whilst the plaintiff’s symptoms had improved over the previous months, the pathology was still there. The plaintiff’s back condition had fluctuated but had not resolved. In Dr Rowais’ words, the toilet incident was an example of the “time bomb waiting to happen”.
415 The plaintiff’s back pain following the toilet incident was so severe that he was given morphine by Dr Rowais. The severity of the plaintiff’s pain at the time of the toilet incident was noted in the defendant’s call out note the following day which also described how that day the plaintiff had to be taken by emergency vehicle to the medical centre.
416 Further, by email dated 17 June 2005, Dr Hwang advised the defendant that the plaintiff had an acute exacerbation of lower back pain at the plant on that day requiring narcotic analgesics.
417 Neither Dr Ho nor Mr Russell, who both simply stated the toilet incident was not related to the plaintiff’s work as it happened at home, gave any further explanation of this view, nor were they fully aware of the severity of the plaintiff’s pain the following day at work.
418 Other medical examiners have not commented specifically on this issue and have accepted the toilet incident and the plaintiff’s problems at work the following day resulted from his incident injury.
419 I am mindful, pursuant to s.134AB(38(h) of the Act, that when considering the seriousness of an impairment or loss of body function, any psychological or psychiatric consequences of the physical injury must be excluded from my considerations.
420 As the Court of Appeal said in Barwon Spinners & Ors v Podolak (supra), at page 664, para 117:
“… the proper identification of pain and suffering attributable to impairment which is physical, or physiological in origin, … requires that any psychological or psychiatric overlay be stripped aside. …”
421 Thus, the onus is on the plaintiff to separate the psychiatric or psychological from the physiological or organic when considering the consequences of such bodily impairment as exists.
422 It was said by Maxwell P in Mutual Cleaning & Maintenance Pty Ltd v Stamboulakis (2007) 15 VR 649, at 652-3, that:
“So far as the evidence allows, the court must identify and exclude from consideration, any pain and suffering consequences which cannot be shown on the balance of probabilities to have an organic or a physical basis…. Where the court is unable to disentangle the pain and suffering consequences in this way, this will ordinarily mean that the application must be refused since the court cannot be satisfied on the balance of probabilities that the organically based pain and suffering consequences satisfy the statutory criterion. …“
423 What may be viewed as a slightly different approach to this issue was taken by Ashley JA in Jayatilake v Toyota Motor Corporation Australia Ltd [2008] VSCA 167, where His Honour said, at p.19:
“A court might well be able to conclude, considering all the evidence, that on the probabilities the plaintiff has suffered a physically-based impairment which satisfies the statutory test even though identification of the precise quantum of a supervening psychological overlay has not been attempted, or is in the real world impossible.”
424 Redlich JA expressed a not dissimilar view to Ashley JA in the case of Zivolic v Hella Australia Pty Ltd [2007] VSCA 142, at paragraphs 19-20. In Redlich JA’s view, where there was evidence –
“… consistent with the plaintiff having suffered both physical and psychiatric or psychological injury, if the nature of the medical evidence permits the conclusion that the physical consequences of the injury constituted a serious injury, then, notwithstanding the requirements of s.134AB(38)(h), no disentangling or stripping away of psychological or psychiatric consequences may be required.”
425 I accept, having considered these authorities, as Judge Morrow said in Gorgiev v Healthscope Ltd (2008) VCC 1443, at paragraph 50:
“…if one can say that the plaintiff has suffered a ‘serious injury’ on evidence other than the psychological and psychiatric consequences of the injury, then that is all that is required. The mere fact that these latter factors intrude does not mean that an otherwise sound organically based case is to be dismissed.”
426 In the present case, it was submitted by counsel for the defendant that the plaintiff could not establish that organically-based pain and suffering consequences are serious.
427 It was submitted that what is affecting the plaintiff is a sense of wrongdoing by the defendant – a strong sense of grievance which is causing the plaintiff’s belief in significant symptoms which are disproved by the medical evidence and the extensive surveillance film.
428 In this regard, reliance was placed on Dr Rowais’ concession that there might be some functional component to the plaintiff’s condition because the plaintiff needed to prove himself – he needed to prove to the world that he was suffering from a significant injury.
429 Further, Dr Ho, in July 2005, thought there was some evidence of functional overlay or non-physical factors and that the plaintiff had capability greater than he claimed. Mr Russell, one month later, found some inconsistencies on examination.
430 In 2007, Dr Sillcock thought the plaintiff had chronic low back pain superimposed on a constitutional spondylolisthesis. She believed the plaintiff had a Chronic Pain Syndrome and clearly had major psychological issues.
431 Mr Jones, having found inconsistencies and marked overreaction on clinical examination, considered the plaintiff’s complaints seemed to be out of all proportion to the underlying nature of his condition which he now considered to be constitutional in nature.
432 Counsel for the plaintiff relied upon Dr Rowais’ views which, save for the comment relied upon by the defendant, unconditionally supported the plaintiff’s claim. Further, neither Mr Khan nor Dr Blomberry found any inconsistencies or non-organic factors on examination, accepting the plaintiff’s condition is organically-based.
433 Applications of this nature are not trial by doctor. All the evidence must be taken into account. Whilst there are clearly differing views as to the extent to which the plaintiff’s present condition is organically-based, on balance, I accept that he continues to suffer from the aggravation of underlying pre- existing previously asymptomatic spondylolisthesis suffered in the incident and subsequent aggravations.
434 The issue for determination is whether any impairment to the plaintiff’s lumbar spine has consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”?
435 The plaintiff’s evidence must be considered in determining this issue.
436 The weight to be attached to the plaintiff’s account of his pain experience will, of course, depend on an assessment of the plaintiff’s credibility – see Maxwell P in Hayden Engineering v McKinnon (2010) VSCA 69.
437 There was a considerable amount of surveillance film taken of the plaintiff from February 2005 until January this year.
438 The film of the plaintiff working in February and March 2005 does not raise major issues as to the plaintiff’s credit, save that he did not tell doctors that he was helping out friends with those tasks after a full, heavy day at work. Instead he told them of leading a quiet life pottering around in the garden and just spending the day watching television.
439 Further, the plaintiff had declared on various medical certificates during that time that he was not engaged in paid or voluntary work.
440 I note, however, that the plaintiff has not been filmed working after the toilet incident.
441 The film of the plaintiff before and after attendances at physiotherapist, Mr Hadfield, in July 2005 and with Mr Jones in January 2011, raises significant credit issues.
442 There was a marked contrast between the plaintiff’s gait just before and after July 2005 attendance using a walking stick and limping heavily and later that day moving much more freely.
443 Again, before entering and upon leaving the examination with Mr Jones on January 2011, the plaintiff limped heavily, whereas two days before the examination the plaintiff was filmed moving and walking with good mobility and squatting freely in a shop, and then three days after the examination he was again shown walking freely and bending.
444 I do not accept these discrepancies can be explained by the plaintiff taking medication/using patches or getting relief from physiotherapy treatment, especially as the plaintiff was using a stick immediately after the physiotherapy visit, although not later that day.
445 I do not accept the plaintiff’s condition is one of a good day bad day scenario as submitted by his counsel relying on the clinical notes of the psychologist, relating to attendances on 28 November 2005 and 24 April 2006.
446 In my view, Dr Rowais was unconvincing as to his explanation of the plaintiff’s varying gait on these occasions, and he became an advocate for the plaintiff in this regard.
447 Further, the plaintiff, at every opportunity in cross-examination, said that he was limping when he was clearly shown to be walking normally on numerous occasions.
448 The film in this case was extensive, as I have described in detail. The surveillance was far more than a snapshot of the plaintiff’s activities but showed his level of movement and activity on numerous occasions over a six- year period.
449 Given the plaintiff’s willingness to overstate his level of disability, the inconsistencies in his presentation on the film and the lack of supporting lay evidence, I have difficulty accepting his evidence as to his level of pain and disability.
450 I do not accept that the plaintiff has constant back pain and that his activities are interfered with to the extent that he claims, nor am I satisfied that any consequences related to the plaintiff’s employment capacity are serious.
451 Accordingly, the plaintiff’s claim pursuant to subsection (a) insofar as it relates to his lumbar spine, is dismissed.
Knee Condition
452 Whilst the defendant disputed that the plaintiff had suffered a compensable injury to his right knee, I accept that this is the case.
453 The plaintiff has given varying accounts of when he hurt his knee at work with the defendant, describing injury in the incident itself, whilst working on the skids in October 2004 (Claim Form regarding right knee injury submitted on 15 June 2005) and suffering increased pain in his knee after having an injection in his back at that time.
454 The first reference specifically to right knee pain was noted in December 2004 by Dr Rowais but he explained there was diagnostic difficulty in differentiating between sciatica or right knee pain.
455 An MRI scan of the right knee was carried out on 29 March 2005.
456 Ms Danos’ email to the defendant on 15 June 2005 noting receipt of the claim of that date set out, as per their previous conversation, that the knee injury was secondary to that which occurred in October 2004, and that the defendant had enough medical and circumstantial information to accept the claim for loss of time and medical expenses. She noted that injury was originally reported in 2004.
457 As Dr Hwang advised the defendant by email on 20 April 2005, he thought the plaintiff sustained a lateral meniscus tear during the course of normal work on 6 October 2004, the day he gave him a local anaesthetic injection around the right sacroiliac joint.
458 Dr Ho, together with all the doctors relied upon by the plaintiff, considered the knee injury to be work-related.
459 Mr Russell and Mr Jones are in the minority in their view that the plaintiff’s knee condition was not work-related.
460 The preponderance of medical opinion is that the plaintiff has suffered a meniscal tear to the right knee, which requires arthroscopic surgery.
461 The issue for determination is whether any impairment to the plaintiff’s knee has consequences in relation to each of pain and suffering and loss of earning capacity which, when judged by comparison with other cases in the range of possible impairments, may be fairly described, at the date of the hearing, as being “at least very considerable” and “more than significant” or “marked”?
462 Whilst I have found there is a compensable injury to the plaintiff’s right knee, and it is acknowledged by all doctors that the plaintiff requires surgery in relation to the meniscal tear, it is the impairment not the injury that is the relevant issue for consideration.
463 Again, the reliability of the plaintiff’s evidence is an important factor and I have noted my concerns in that regard earlier in my judgment. More specifically, in relation to the plaintiff’s knee complaint, I note, albeit on one short piece of film, that the plaintiff was shown freely performing ladder work and then jumping from the ladder and also squatting and bending when working at a friend’s house in March 2005 and jumping from his truck on 7 February 2005.
464 When shown this film, Dr Rowais agreed the plaintiff was presenting as a person of normality in terms of function.
465 Further, there is no evidence of any particular aggravation of the plaintiff’s knee condition since the early 2005 film, unlike the aggravation of his back in the toilet incident and the following day at work. There is also no lay evidence supporting the plaintiff’s claimed level of disability
466 In such circumstances, I do not accept that the plaintiff has knee pain all the time which is getting worse and that his activities are interfered with to the extent that he claims.
467 Further, I am not satisfied that any knee impairment is permanent and I accept the submission of counsel for the defendant to this effect, as simple surgery has been suggested, which the plaintiff had refused to undertake, that would improve the plaintiff’s condition significantly.
468 Reliance was placed on a decision of Judge Cohen in Naumovski v Tur Enterprises Pty Ltd (VCC No. 02974 of 2001, handed down on 3 June 2002), where her Honour found that by reason of the plaintiff’s failure to undergo medical treatment in the form of bilateral carpal tunnel syndrome surgery, the plaintiff had failed to establish, on the balance of probabilities, that the injury to her left hand or arm constituted a serious injury, in the sense of whether the severity of impairment was permanent.
469 In that case, the plaintiff’s refusal to undergo surgery was found to be unreasonable in circumstances where she had undergone surgery on her right wrist, following which she considered that there was some reduction of pain, but said she was scared of surgery.
470 Counsel for the defendant submitted this was a stronger case than Naumovski because the plaintiff did not suggest he was scared of surgery. Whilst he could have placed himself on a waiting list and he also had the means to pay for surgery himself, the plaintiff had refused to do so because he was annoyed and bitter that the defendant would not pay for it.
471 In my view, whilst the plaintiff may have some justification for his attitude, particularly upon reading the defendant’s internal documents accepting liability for this surgery, the plaintiff’s refusal to put himself on a public waiting list or pay for arthroscopic surgery himself is unreasonable, particularly when there is medical evidence to the effect that such a procedure, which is relatively uncomplicated, has a high likelihood of resulting in an improvement in his condition and a capacity for light work.
472 In 2005, Mr Lynch, treating orthopaedic surgeon, thought the prognosis with surgery was good and once corrected he expected the plaintiff to be more comfortable and able to return to his trade.
473 Dr Hwang also advised at that early stage that he thought arthroscopy was the definitive treatment for the plaintiff’s condition and should produce an excellent result. Mr de la Harpe described arthroscopy as a simple procedure which would benefit the plaintiff. Mr Jones thought the proposed arthroscopic surgery was appropriate.
474 In cross-examination, Dr Rowais begrudgingly agreed there was a high percentage of success associated with the proposed knee surgery but he was not prepared to forecast whether successful surgery would result in a capacity for full time or part time.
475 The plaintiff agreed that Dr Rowais had told him that if he had surgery he could return to light duties. If the plaintiff loses this case he will “repair his knee and go to the government to have it done”.
476 Taking into account all the evidence, I am not satisfied that any knee impairment is serious and permanent.
477 Accordingly, the claim pursuant to sub section (a) in relation to the right knee is dismissed.
478 Thirdly, the claim was brought pursuant to sub-s.(c) on the basis that the plaintiff suffered a permanent sever psychiatric impairment.
479 In my view, the plaintiff gave his evidence clearly and understood the questions asked of him. He was not anxious and he did not display any problems with memory and concentration when being cross examined.
480 In terms of treatment, psychologist, Mr Tsirinos’ opinion is outdated, having last reported in 2005.
481 Whilst the plaintiff continues to undergo psychiatric treatment from Dr Kochar, who prescribes anti-depressant medication, in my view, the plaintiff leads a relatively active life and is able to engage freely with friends and members of his local community, as shown on the video.
482 Dr Kochar thought most of the plaintiff’s symptoms relating to his diagnosis of Chronic Adjustment Disorder with Anxious Depressed Mood were of moderate severity.
483 The plaintiff described to Dr Kochar feeling better with ongoing psychiatric treatment that has controlled his nervous symptoms reasonably well.
484 Dr Kochar advised that once the compensation issue was finalised, and improvement became the primary goal of psychiatric treatment for several months, he could review and reconsider the plaintiff’s capacity for rehabilitation or retraining.
485 This view raises issues of the permanency of the plaintiff’s psychiatric condition.
486 Medico-legal opinion is not supportive of a psychiatric condition which could be described as severe.
487 In 2007, whilst Dr Walton thought the plaintiff appeared to be suffering from a Chronic Adjustment Disorder with Anxiety and Depressed Mood, he thought the principal impediment to recovery and return to work was the plaintiff’s grievance that he had not been provided with what he regarded as necessary surgery to combat his pain.
488 Dr Kaplan, who made a similar diagnosis, thought the plaintiff’s capacity for work was largely determined by his physical condition.
489 I am not satisfied, taking into account all the evidence, that any mental impairment is permanent and meets the higher test of “severe” as set out in Mobilio.
490 Accordingly, the plaintiff’s application pursuant to subsection (c) is also dismissed.
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