Micallef v Hazeldene's Chicken Farm Pty Ltd and Victorian WorkCover Authority
[2013] VCC 412
•23 April 2013
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-11-03658
| ALLAN BRYSON MICALLEF | Plaintiff |
| v | |
| HAZELDENE'S CHICKEN FARM PTY LTD | First Defendant |
| and | |
| VICTORIAN WORKCOVER AUTHORITY | Second Defendant |
---
JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 11 and 12 April 2013 | |
DATE OF JUDGMENT: | 23 April 2013 | |
CASE MAY BE CITED AS: | Micallef v Hazeldene's Chicken Farm Pty Ltd & Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 412 | |
REASONS FOR JUDGMENT
---
Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury – physical injury to lower spine – psychiatric injury – whether consequences of physical and psychiatric injury “very considerable” – whether plaintiff suffered 40 per cent loss of earning capacity – credibility of the plaintiff
Legislation Cited: Accident Compensation Act 1985, s134AB
Judgment: Application dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Mighell SC with Mr D Purcell | Arnold Dallas McPherson |
| For the Defendants | Mr A Moulds SC with Mr R Kumar | Hall & Wilcox |
HIS HONOUR:
Preliminary
1 In October 2008, the plaintiff suffered injury to his lower spine in the course of his employment with the first defendant. He returned to work the next day, and after a brief period, left work and has not returned. He has had a range of conservative treatment to the lower back injury. In addition, he has suffered a psychological reaction to the physical injury and, particularly in more recent times, has suffered significant depression and anxiety which has required treatment from a psychologist and a psychiatrist. He claims a range of recreational, social and domestic activities are lost or curtailed.
2 This is an application for leave to bring proceedings pursuant to s134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) for injury suffered in the course of the plaintiff’s employment with the first defendant on 21 October 2008. The body function said to be lost or impaired is the lumbar spine. In addition, the plaintiff claims to have suffered a permanent severe mental disorder.
3 The application is thus brought under ss(a) and (c) of the definition of “serious injury” contained in s134AB(37) of the Act and leave is sought in respect of both pain and suffering and loss of earning capacity.
4 The plaintiff was the only witness called to be cross-examined. In addition, affidavits of the plaintiff, a co-worker, and the plaintiff’s wife, together with medical and radiological reports and vocational assessments were tendered into evidence. I have read all the tendered material. I shall not refer to all of this material, nor all of the medical opinions in the course of this judgment, but rather those reports and opinions, and parts of the evidence which I have relied upon in coming to the conclusions referred to later in this judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature is well known, and it is unnecessary for me to revisit the various relevant sections.
Relevant background
5 The plaintiff is currently fifty years of age. He is married to Mary, and the couple live outside Bendigo. He has three sons from a previous marriage. According to his affidavit,[1] he suffered occasional aches and pains in his neck and back prior to 2008, but nothing of any significance. He completed Year 9 at high school in Queensland and spent much of his early working life on his father’s cane farm there. His father was also a harness-racing trainer and he worked with those horses from an early age. He also worked in various other employment, including as a labourer, and for a period trained harness-racing horses on a full-time basis. He was married twice, each marriage ending in divorce, and met his current wife in 2001. They moved to Bendigo in 2002 and live on a 10-acre property at Neilborough.
[1]Plaintiff’s Court Book (“PCB”) 22
6 He began work as a process worker with the first defendant in June 2003 and was made a sawman in 2007.
7 He was generally active, playing cricket and coaching a rugby team. He maintained his passion for harness horse racing, and on his property established a trotting track. He held a trainer’s licence in Queensland which was transferred to a Victorian trainer’s licence. Prior to his injury, he was used to training two or three harness-racing horses on his property and drove to a range of harness-racing meetings around Victoria, perhaps thirty each year. He would drive the horses at these meetings. His harness-racing interest was more of a hobby and he earned little money from it. He claims to have been active around his property, including establishing a large garden with vegetables and fruit trees, and enjoyed an active social life. He was generally healthy and, in particular, had no lower back problems, aside from some aches and pains to do with his heavy labouring work.
The incident and its consequences
8 On 21 October 2008, the plaintiff was required to lift a tub of chickens weighing approximately 15 kilograms. As he did so, he felt pain in his lower back, with a tingling sensation into his left leg. He was taken to the first defendant’s “sick bay” where icepacks were applied. The pain in his lower spine continued, and although he attended work the next day, he spent most of the time in the sick bay. On the following day, he was taken by ambulance to the Bendigo Emergency Department. The pain in his lower spine had increased, and he was treated with morphine. He described a lower back pain with referred pain into his left leg.[2] He was discharged home later that day.
[2]PCB 44
9 On 29 October 2008, he went to see his general practitioner, Dr Havea Tamanika. She made a provisional diagnosis of an acute disc injury affecting the nerve roots. She arranged a CT scan, which showed a mild disc bulge at L4-5. She prescribed Tramal for pain, and Fenac. She certified him as unfit for work for a week. The plaintiff has remained under the care of Dr Tamanika through to the present time. He still attends for monthly reviews and the prescription of medication. Dr Tamanika noted the plaintiff suffered pain in the lower spine with muscle spasm, and his mobility and sleep were affected.
10 After the incident, Dr Tamanika continued to certify the plaintiff as being unfit for work duties. He attempted to return to work in November 2008, working reduced hours and on lighter duties. He lasted about three hours on the first day, when he said the pain became so severe that he was unable to continue. He has not worked since.
11 In March 2009, Dr Tamanika referred the plaintiff to Mr Travis Perera, orthopaedic surgeon, of Bendigo. Mr Perera noted the plaintiff had been referred for physiotherapy and hydrotherapy. He gave a history of burning discomfort in the back with pain radiating down the back of his left leg and into his feet. He said that the pain in his left leg was 9 on a scale of 10. Mr Perera arranged an MRI scan, which he said demonstrated a very degenerate L2-3 disc, together with a minor disc bulge at L5-S1 without significant central canal stenosis. Initially, Mr Perera considered that the majority of the plaintiff’s back symptoms were related to the degenerate L2-3 disc. He suggested a lumbar discogram be undertaken to identify the precise source of the pain. This was undertaken in April 2009,[3] and according to the report, when the degenerate L2-3 disc was injected, there was only mild pain which was not the plaintiff’s usual pain. After the examination however, the plaintiff said the pain became more severe, and similar to his usual pain. Mr Perera suggested that because it was difficult to be certain as to whether the pain arose from the L2-3 disc, a second opinion be obtained.
[3]PCB 50
12 The plaintiff was seen by Mr Michael Johnson in August 2009.[4] At the time, he was taking Panamax, Fenac, Endep and Valium for pain relief. When Mr Johnson examined the plaintiff, he required the assistance of his wife with dressing and undressing. He complained of a severe pain in the lumbar spine with very restricted movement. Mr Johnson found various inconsistencies upon examination, including in straight leg raising. He was not convinced the anatomical source of the pain was the L2-3 disc, and he was uncertain as to its cause. He suggested conservative treatment.
[4]PCB 72
13 In late 2009, the plaintiff began a pain management program at the John Lindell Rehabilitation Unit at the Bendigo Hospital. This involved physiotherapy, occupational therapy and psychological counselling. It was noted that he was taking a range of analgesic medication and that surgery was not recommended. Amongst the activities the plaintiff described as being able to undertake on his property was whipper snippering, mulching and spray painting fences.[5] The program concluded in March 2010.
[5]PCB 45
14 The pain and restriction in the plaintiff’s lumbar spine continued and in February 2011, Dr Tamanika referred him to Dr David Murphy, rehabilitation physician. Dr Murphy received a history of chronic pain in the lower back with some radiation of pain into the legs. He noted that Dr Sue Inglis at the Bendigo Hospital had trialled various medications, including Gabapentin and Mirtazapine, but he suffered side-effects from each of these drugs. At that time, Dr Murphy noted the plaintiff was anxious and depressed and that he walked in a stiff and laboured manner. Examination of the spine showed generalised tenderness. In attempting a straight leg raising test, he said the plaintiff went into a “degree of voluntary generalised muscle contraction”. He said the plaintiff suffered a chronic non-specific back pain syndrome. There were complaints of other problems, including chest pain and dizziness. He thought that the plaintiff’s situation may improve with psychological treatment. Dr Murphy altered the plaintiff’s drug regime.
15 By 2012, because of concerns about the plaintiff’s psychological state, Dr Murphy referred the plaintiff to Dr Scott Eaton, consultant psychiatrist. He also commenced him on a powerful opioid pain-relieving medication, Jurnista. He said the plaintiff was quite incapacitated, both physically and psychologically, and not able to return to his previous employment with the first defendant. He said it would be extremely difficult for him to return to any form of employment in the future.[6] He further noted that in June 2012, the plaintiff had problems with abdominal pain, and had liver function tests undertaken. It was thought there may be some relationship between the medication he was taking for his back pain, and liver function. At that time, the plaintiff told Dr Murphy that he pottered around in his garden and shed and did a small amount of welding and spray painting. The plaintiff said that he had been aware that he was under surveillance from investigators and that he had been observed whipper snippering and doing some activities in his shed. Dr Murphy examined the plaintiff and noted that he walked with a stiff gait and short steps, holding a walking stick in his left hand. Lumbar spine movements were restricted. Dr Murphy thought the plaintiff’s condition had stabilised and that it was clear he was unable to return to his previous employment with the first defendant, and combining his mental difficulties and physical pain, was not fit for any work.
[6]PCB 113A
16 According to a report of a physiotherapist, Matthew Coad, in January 2011, the plaintiff suffered a number of falls while at home which were sudden in nature, and involved altered vision.[7]
[7]PCB 86
17 The plaintiff commenced to see Dr Scott Eaton in April 2012 for psychiatric treatment. He complained of depression and becoming increasingly frustrated with his lower back injury. Dr Eaton considered that at the time the plaintiff was suffering from an ongoing depressive episode with symptoms, including low mood, diminished drive and limited enjoyment of life. The plaintiff has remained under the care of Dr Eaton to the present time. He was prescribed a range of drugs to assist the plaintiff’s depression. In September 2012, there would appear to have been a worsening of the plaintiff’s condition,[8] although by November 2012, the plaintiff was said to have shown a good response to treatment, had become more motivated and was no longer irritable. In his final report of February 2013,[9] it was noted that the plaintiff’s condition had deteriorated over the last few weeks and it was noted that he was concerned about the ongoing WorkCover process and that he felt under scrutiny. It was noted he was being treated with Escitalopram (lexapro) at a relatively high dose.
[8]PCB 130i
[9]PCB 130Ka
18 In addition, the plaintiff has had treatment from Dr Joan Ledwich, psychologist. She said at the time that the plaintiff was at risk of psychological harm.
19 The plaintiff is currently prescribed Jurnista, Panadol Osteo, Diazepam, Fenac and Diaformin. When his back pain is severe he takes Endone. He has three-monthly reviews with his rehabilitation physician, Dr Murphy. Dr Eaton continues to prescribe anti-depressant medication. He sees his general practitioner, Dr Tamanika, each month or so. He says the medication which he is prescribed has had an effect upon his liver, and has led to dental problems. However, I am not satisfied that there is any clear link on the medical evidence between his medication and these conditions. He continues to suffer constant pain and stiffness in the mid and lower back, which varies in intensity. He never has days without pain. He experiences pins and needles down his left leg, and into two toes of his left foot. There is constant numbness. He finds prolonged periods of sitting and standing difficult. He is only able to drive shorter distances. He says bending, twisting, lifting, pushing and pulling increase his lower back pain. His sleep is interrupted, and he feels tired during the day. He feels he has lost his independence. He says that he does not feel able to return to any form of paid employment.
20 He surrendered his harness-racing trainer’s licence in 2012. He and his wife still have several horses on the property, but none are in work. His involvement with the horses is limited, which he says is a great loss. His intimate relationship with his wife is affected. He does very little around his property, although occasionally does some minor work in his shed. His social life has been affected.
21 He has continued with psychological treatment with a psychologist, Ms Ledwich, although funding was ceased in February of this year. Psychologically, he says at the present time he has no motivation and finds it difficult to concentrate. He has had some suicidal ideation. Over the last two or three months, his psychological condition has been worse.
22 In cross-examination, the plaintiff said that he spent about 85 per cent of his time lying down. He was only able to stand for about an hour, and sit for about half-an-hour. He did very little around his property and was very disabled. He walks with a walking stick, as sometimes he feels dizzy. He does not use a stick all the time. He said that in his shed on the property, he has a range of electrical tools and equipment. He does some minor work, including work at bench height. He makes some equipment for the stables. He does some welding and spray painting. He avoids heavier lifting. He has a utility which he drives. He does some lighter work, feeding the horses. He accepted that he would be capable of doing some light bench work, but would need a bed to lie down from time to time.
Medical opinions
23 I have referred to the opinions of a number of the plaintiff’s treating practitioners.
24 According to the most recent report of Mr Perera of February 2012,[10] the plaintiff said that he spent 85 to 90 per cent of his time lying down. He was noted to use a stick to assist with walking, as he said he had frequent falls. Mr Perera said there was constant sighing and groaning throughout the examination. He thought the plaintiff had no work capacity and was unlikely ever to return to his previous employment. He thought it was unlikely the plaintiff would be capable of being re-trained in any area of employment. He said his prognosis was poor and that he was restricted in general, social, domestic and recreational activities, and that condition was permanent.
[10]PCB 69
25 The plaintiff was examined at the request of his solicitors by Mr John O’Brien, orthopaedic specialist, in September 2011, and July 2012. According to the examination in September 2011, the plaintiff described himself as being in constant pain in his lower back with pain radiating into the buttocks and down the left leg. He told Mr O’Brien that his walking distance was restricted to 80 metres and that he was unable to bend or lift. In all, the physical examination showed the plaintiff as being significantly disabled. Throughout the examination, he used a walking stick with a very stiff left leg gait. There was very little movement of the lumbar spine, with generalised tenderness. Even modest movement of the spine was said to generate severe pain, with pain extending into the left leg. Mr O’Brien found global weakness of the left leg. He concluded the plaintiff presented with evidence of illness behaviour with subjective signs and not diagnostic of any obvious pathology. He said there were non-organic factors complicating the clinical situation and that the plaintiff demonstrated a Chronic Pain Syndrome. He said the prognosis was poor.
26 There was no change in his presentation in the examination in July 2012. He said the physical signs remained subjective and variable. He said the prognosis remained poor, as the plaintiff had a well-established Chronic Pain Syndrome. It is clear from Mr O’Brien’s reports that the Chronic Pain Syndrome to which he refers was of a psychological rather than physical nature.
27 The plaintiff was examined by Mr Michael Shannon, orthopaedic specialist, on behalf of the insurer in January 2009. He thought the plaintiff’s injury was a lumbosacral disc prolapse which he said he believed was present on the MRI scan of January 2009.[11] He said the plaintiff was totally incapacitated for work, and found the plaintiff’s complaints of pain consistent.
[11]PCB 151
28 The plaintiff was examined by Mr Clive Jones, orthopaedic surgeon, in July 2009, again at the request of the insurer. Although he said it was not clear, Mr Jones believed that in addition to the disc lesion at L2-3, there was an unreported protrusion in the lumbosacral disc which had escaped the radiologist’s attention. He noted significant levels of low-back pain and he said that the complaints of left leg pain were consistent with sciatica. He suggested further investigation and a nerve root sheath injection. He thought the plaintiff was not fit for his pre-injury employment and that he might be able to do lighter work with a lifting limit of 5 kilograms.
29 The plaintiff was examined by Mr Michael Polke, orthopaedic surgeon, at the request of the insurer in April 2010. He noted the L2-3 disc desiccation in the CT scan of January 2009 and said further, there was a minor disc bulge at L5‑S1. He said the plaintiff suffered from a degenerate L2-3 disc and some disc bulging at L5-S1 as a result of the work incident. He said surgery was not indicated and that the plaintiff was significantly restricted in his activities of daily living. He said he was unable to return to his pre-injury duties and he would not be able to undertake employment which required heavy lifting, pushing and pulling, prolonged standing or sitting.
30 The plaintiff was examined by Mr Brendan Dooley, orthopaedic surgeon, in August 2010.[12] He noted that the plaintiff’s lumbar spinal movements on examination were restricted, but that he had full straight leg raising in the seated position. He said there was subjective sensory alteration in the left foot. He said the exact diagnosis of the plaintiff’s condition was not clear, but whatever the physical symptoms, the plaintiff had developed anxiety and depression and there was significant functional overlay and abnormal illness behaviour.
[12]Defendant’s Court Book (“DCB”) 41
31 The plaintiff was examined by Dr Gary Davison, occupational physician, in December 2010. Dr Davison said the plaintiff’s mobility was significantly restricted. His wife had to assist him to dress and undress and to get onto the examination couch. He observed pain behaviour with grimacing and clutching the affected areas. He said there was muscle guarding and subjective restriction. While he said the plaintiff’s presentation suggested a disc lesion, there was no radiological evidence to support this. He said the CT and MRI scans suggested disc pathology at L2-3 and L5-S1 but that the results of the discogram were equivocal. He said the plaintiff could be experiencing significant pathology at the intervertebral disc. He said the plaintiff had no current work capacity and there were significant psychosocial factors at play and that the plaintiff had developed a psychological Chronic Pain Syndrome. He thought the plaintiff had no capacity to work in lighter or alternative occupations, and that that incapacity was likely to continue indefinitely.
32 Dr Davison examined the plaintiff again in March 2012. He received a history that the plaintiff’s home activities were very restricted and that he required assistance with dressing and showering. The plaintiff said that apart from some washing of the dishes and laundry, there were no household chores he could do. He said he could whipper snip for five minutes and then have a breather, and that he pottered in the shed. He said he spent 80 per cent of his time lying down. Upon examination, the plaintiff moved slowly with the assistance of a walking stick. He undressed only with assistance from his wife. The range of movement in his lower spine was globally restricted.
33 Dr Davison concluded that all of the radiological investigations had failed to identify any specific source for the plaintiff’s pain. While the radiological findings did not exclude a physical condition, he was reliant on the plaintiff giving a good account of himself. He noted a report from an orthopaedic surgeon in Mackay, Dr Ho of December 1992, which said the plaintiff had complained of three to four years of back pain, with pain radiating into the left foot. He was provided with video-surveillance footage, to which I will shortly refer, and said that the level of activity was quite inconsistent with his findings upon examination. He said that called into question the integrity of the plaintiff as a truthful historian. Considering the lack of objective pathology, in particular the plaintiff being shown to bend and move freely in his backyard without the assistance of a stick, he said that the prognosis for the plaintiff’s back was excellent and there was no need for further treatment. Given what was shown in the surveillance, he said it was unlikely the plaintiff had any physical incapacity for employment.
34 Finally, a report of Dr Ho, the Director of Orthopaedics at the Mackay Base Hospital, was tendered.[13] According to the history obtained in 1992, the plaintiff complained of three to four years of lower back pain after a fall, with radiation of pain into the left foot and pins and needles in that area. Examination of the back showed tenderness and limited movement. Straight leg raising was impaired on both sides and a sciatic stress test was said to be positive. An Xray taken showed no abnormality in the lumbar spine, and there was no evidence as to any other treatment the plaintiff undertook.
[13]DCB 71(i)
35 The plaintiff was examined by a number of consultant psychiatrists.
36 He was exmined by Dr John Gill in October 2011 and December 2012. On the first occasion, Dr Gill obtained a history that the plaintiff spent 80 per cent of his time lying on his bed at his property. He claimed to be able to undertake only short walks, was unable to do gardening and other outdoor activities. The plaintiff said he was unmotivated and had lost interest in his horses. He complained that his condition was one of constant pain with broken sleep, and aggravated by sitting for longer than twenty minutes. He complained of depression, irritability, mood swings and frustration. He said his concentration and energy levels were impaired, and that he had low self-esteem. Dr Gill concluded the plaintiff suffered an Adjustment Disorder with Depressed Mood, which was secondary to the pain suffered as a result of his back injury. He thought the depressive condition was likely to continue, and in combination with his physical impairment, the plaintiff would be precluded from any employment.
37 In the final report, he said that he was not optimistic for any improvement in the plaintiff’s psychiatric condition. He said the condition was not fully stabilised given Dr Eaton was trialling various psychiatric medication. He said the psychiatric prognosis was dependent upon the plaintiff’s physical state. He thought there would be persisting depression with impaired self-esteem, which he said would preclude the plaintiff from coping effectively with any employment. He said the plaintiff’s work incapacity was predominantly due to his physical condition and pain, but that his depression impaired motivation, energy and capacity to tolerate stress.
38 On behalf of the insurer, the plaintiff was examined by Dr Richard Prytula, psychiatrist, in July 2010. The plaintiff complained of impaired memory and concentration and that his sleep was disturbed by pain. He said he had feelings of depression and frustration and was occasionally tearful and with suicidal thoughts. Dr Prytula said the plaintiff presented as stressed and mildly depressed. He diagnosed an Adjustment Disorder with Depressed Mood. He said that the plaintiff had no current work capacity, but I accept that this was related to his physical symptoms, and, in particular, relied upon the opinions of Mr Michael Shannon and Mr Michael Polke.
39 The plaintiff was examined by Dr Michael Duke, psychiatrist, in December 2010. He received a history of significant problems with the plaintiff’s attention to activities of daily living, in that he could not dress himself, could not wash below his knees and required aides. He further complained of mood swings and depression. He said he had loss of memory and constant forgetfulness. In the course of a mental state examination, Dr Duke noted the plaintiff walked with a marked limp and a halting gait. He diagnosed an Adjustment Disorder with Mixed Anxiety and Depression. He said that from a physical perspective, the plaintiff had no work capacity, but that from a psychiatric perspective, he did have a work capacity.
40 Finally, the plaintiff was examined by Associate Professor Peter Doherty psychiatrist. The plaintiff said that his condition was “fair” but that he was in constant pain. He complained that as a result of anti-depressant medication he was receiving, he “ended up nearly having a heart attack, due, he said, to increased levels of serotonin”.[14] The plaintiff said he got only about three or four hours’ sleep a night and that during the day he did very little.
[14]DCB 71(n)
41 The plaintiff was examined and noted to be using a walking stick and had difficulty moving his right leg. He stood throughout the interview. Professor Doherty said the plaintiff had a Chronic Pain Disorder associated with psychological features and a resolved Mild Adjustment Disorder with Depressed Mood. He did not think the plaintiff required treatment by a psychiatrist on a regular basis, but rather at three-monthly intervals. He said the plaintiff did not need to attend a psychologist, which he noted he had been attending for three years. He did not consider the plaintiff had a Major Depressive Disorder. The Chronic Pain Disorder was not of such severity that he was unable to return to his pre-injury duties and hours. He acknowledged that the plaintiff had been required to make adjustments to life events because of his physical pain and that he had a mild adjustment reaction with Depression. He concluded:
“From a solely psychiatric perspective, he can return to work.”[15]
[15]DCB 71(u)
Credibility of the Plaintiff
42 An attack upon the credibility of the plaintiff was based upon three issues:
· The opinion of Dr Ho that the plaintiff had complained of low-back pain for three or four years before 1992 stood in contrast to the plaintiff’s claim in his affidavit that in the early 1990s he suffered occasional aches and pains in his neck and back;
· The activities depicted in video-surveillance of October 2011 stood in stark contrast to the plaintiff’s complaints of pain and restriction, in particular to the practitioners that he saw around that time;
· His explanation that the video-surveillance was interrupted and did not show periods when he was resting or recovering from the effort was not credible.
43 Video-surveillance film of the plaintiff was taken in August, September and October 2011. On the first two occasions, the plaintiff was seen to walk slowly, carrying a stick. On these occasions, there is nothing particularly inconsistent with his evidence nor histories to the doctors. However, on 5 October 2011, he is filmed using a whipper snipper in his garden over a period exceeding an hour. He moved freely without any limp nor any observable restriction. According to his wife, the whipper snipper weighed about 5 kilograms. At one time he kicked aside a tyre using his right leg and shifted a gate using his right arm. At no stage did the plaintiff display any pain nor indicate any difficulty with the activity.
44 While the film is inconsistent with the plaintiff’s complaints generally, the real issue is that it should be put in context of the history provided to doctors the plaintiff saw around the same time:
· When the plaintiff saw Dr Murphy in February 2011, he complained of generalised tenderness throughout the lumbar spine, which he moved in a stiff manner.[16]
[16]PCB 105
· To Mr O’Brien, in September 2011,[17] he used a walking stick in his right hand, demonstrating a very stiff left leg gait. He had restricted movements of his lumbar spine with generalised tenderness over the whole of the lumbosacral area. Movements of the lumbar spine were said to precipitate severe pain.
[17]PCB 116
· To Dr Gill, in October 2011,[18] he said that he spent about 80 per cent of his time lying in bed and able only to undertake short walks. He complained of being in constant pain, that he could not wash himself below the knees. He relied upon his wife to help him with many physical tasks.
[18]PCB 121
· To Mr Jones, in July 2011,[19] he walked slowly, leaning heavily on a walking stick and had to be assisted to dress and undress by his wife. His movements were quite limited.
· To Dr Davison, in December 2010,[20] he said that he could only walk for 60 minutes before he had to stop, lift 2 kilograms in total at the gym or drive 3 to 4 kilometres.
[19]DCB 18
[20]DCB 60
45 In my view, the attack by the defendants upon the plaintiff’s credibility is soundly based. The plaintiff made no disclosure of the pain he reported to Dr Ho. I would expect several years of pain even as far back as 1992 to be part of a history in any inquiring doctor. I do not accept it would be something the plaintiff would forget.
46 The freedom of movement depicted in the video-surveillance film was so different from the picture of almost complete disablement presented to doctors who examined him at the time, that it could not be explained on a “good and bad day” basis. I am left in no doubt that the plaintiff was consciously exaggerating his symptoms to those doctors. The plaintiff compounded his lack of credibility by attempting to assert that there were breaks in the video which would have shown the plaintiff stopping and stretching to relieve discomfort. He quickly disavowed this when pressed.[21] It is clear that there were breaks during the course of the video, but I am not satisfied those breaks were anything other than inadvertent.
[21]T37-38
47 I conclude that I have very significant reservations about the credibility of the plaintiff, and should take care in examining his complaints of pain and restriction.
Conclusions as to physical injury
48 As at the date of the incident, 21 October 2008, I accept the plaintiff had degenerative changes in his lumbar spine, in particular at the L2-3, L4-5 and L5-S1 levels. It was initially considered by the treating orthopaedic surgeon, Mr Perera, that as a result of the incident, there had been an aggravation of the underlying degenerative change, in particular at the L2-3 level.[22] However, that was an initial conclusion, and not supported by the findings when a discogram was conducted. Further, when the plaintiff was referred to Mr Johnson, orthopaedic surgeon, he was not convinced that the symptoms arose from the L2-3 level and was in fact uncertain of the anatomical cause.[23]
[22]PCB 60
[23]PCB 73
49 Both Mr Shannon and Mr Jones, orthopaedic specialists who examined the plaintiff for the insurer, concluded the plaintiff suffered a disc prolapse at the lumbosacral level which had not been described by the radiologist. However, the opinions are now somewhat dated, and a further MRI scan undertaken in December 2012[24] stated there was no abnormality at the L5-S1 level. No other practitioner came to that conclusion.
[24]PCB 154A
50 I prefer the opinions of other practitioners who have concluded that the plaintiff suffered an aggravation of the underlying degenerative change, in particular at the L2-3 and the L4-5 levels, in the workplace incident.
51 From an early time, a number of practitioners have identified that the presentation of the plaintiff upon examination showed signs which were out of proportion to the injuries sustained, and the radiology. Mr Johnson made observations to that effect when he examined the plaintiff in August 2009.[25] Mr Perera made similar observations when he examined the plaintiff in 2012. Dr Murphy, in February 2011, noted generalised tenderness and very restricted movements. He considered the plaintiff had a chronic non-specific back Pain Syndrome. It is not clear from Dr Murphy’s reports whether this is a psychological condition, or anatomical. In his final report of June 2012,[26] he said that due to a combination of the plaintiff’s mental status and physical situation, he was currently not fit for any work. It would appear Dr Murphy’s diagnosis is a combination of both physical and psychological aspects.
[25]PCB 73
[26]PCB 113C
52 I found the reports of Mr O’Brien, an experienced orthopaedic surgeon, of most assistance. He concluded that the plaintiff presented with symptoms of illness behaviour as a result of subjective complaints which did not reflect any particular pathology. He concluded the plaintiff was suffering from a Chronic Pain Syndrome. It is clear from his report that diagnosis was of a non-physical nature. He thought the Chronic Pain Syndrome was well established and with a poor prognosis.
53 I should note that by a brief letter of 28 September 2012, Dr Murphy was provided with surveillance video. He said:
“This does not alter in any way my opinion regarding Mr Micallef as expressed in the reports I have prepared. … .”[27]
[27]PCB 113E
54 While the report is direct, it does not contain any analysis of what Dr Murphy observed, and any comparison to his findings upon physical examination in 2011. In my view, the video-surveillance does undermine the claims by the plaintiff in his affidavit and in the medical examinations of gross restriction.
55 Mr Jones, in his final report, also concluded that the plaintiff complained of much amplified back pain. He was provided with the surveillance video and noted that the plaintiff had complained to him of being completely inactive, which stood in contrast to what was depicted in the video. He concluded that there was no need for any physical treatment and that he had a capacity for some form of employment. He thought the plaintiff had developed a form of Pain Disorder.
56 Dr Davison was also shown the surveillance video.[28] He said the physical activities shown called into question the plaintiff’s integrity as a truthful historian. He said that when one considered the lack of objective pathology and the plaintiff’s physical activity level, he changed his earlier opinion. As a result, he said that it was unlikely the plaintiff had any incapacity for employment and that he had no persisting impairment.
[28]DCB 71f
57 Relying in particular on the opinions of Mr O’Brien, Mr Jones and Dr Davison, while accepting the plaintiff suffered some aggravation of degenerative change in his lumbar spine in the workplace incident, any pain and restriction no longer has a physical basis and the clinical picture has been subsumed by a Pain Disorder.
58 I bear in mind that the plaintiff is, and has over the years, been prescribed with significant quantities of pain-relieving medication. However, the doctors treating him are very much reliant upon the subjective complaints of pain which he makes. In my view, the prescription of medication in that setting does not mitigate strongly in favour of a physical injury. The plaintiff’s claim in relation to physical injury fails.
Conclusions as to psychological injury
59 Most of the consultant practitioners diagnosed the plaintiff as suffering an Adjustment Disorder with Depression and/or Anxiety. This has required treatment by Dr Eaton, psychiatrist, and until recently, a psychologist. In addition, the Chronic Pain Disorder found by the physical practitioners comes to be assessed as a psychological disorder.
60 Dr Gill, who saw the plaintiff on two occasions, said that the plaintiff’s work incapacity was predominantly due to his physical pain, although his secondary depression played a role. In combination with both physical and psychological issues, the plaintiff had no work capacity. However, Dr Gill was not provided with the surveillance video.
61 Dr Eaton has treated the plaintiff now for approximately twelve months. For that reason, his opinion must be respected. He has trialled a range of medication in an attempt to improve the plaintiff’s mood and depression. He does not provide a specific diagnosis, nor make any assessment as to the plaintiff’s work capacity. According to his reports, the plaintiff’s condition has waxed and waned, at times showing a good response to treatment, and at other times a worsening of his condition.
62 Dr Prytula, in 2010, concluded the plaintiff had an Adjustment Disorder with Depressed Mood and with no current work capacity. However, I accept the submission of Mr Moulds that that was based upon the opinion in particular of Mr Shannon that there was a lumbosacral disc prolapse.
63 Dr Duke, in 2010, diagnosed the plaintiff as suffering an Adjustment Disorder with Mixed Anxiety and Depression. He said, from a physical point of view, the plaintiff had no capacity for employment, but from a purely psychiatric perspective, there was no impediment for him working in various occupations.
64 I found the opinion of Professor Doherty of most assistance in determining the nature and extent of the plaintiff’s psychological injury at the present time. He concluded the plaintiff was suffering a Chronic Pain Disorder without Major Depression. He said, from a solely psychiatric perspective, the plaintiff could return to work.
65 The word “severe” used in the definition of ss(c) is a word of stronger force than “serious”. The statutory test in respect of psychological injury is thus set higher than in respect of physical injury. In my view, the word “severe” requires the plaintiff to prove that the psychological injury has had an impact upon the plaintiff’s life which is significantly higher than the “very considerable” test which applies in respect of physical injury. While the plaintiff has received psychiatric treatment over the last year and has been prescribed anti-depressant medication, he has not been admitted to any psychiatric hospital, seriously contemplated suicide, nor complained of symptoms seen in persons with serious psychological conditions.
66 I prefer the opinion of Professor Doherty that the plaintiff’s work capacity is not affected by his psychological condition. I further bear in mind that I am satisfied the plaintiff has significantly exaggerated the extent of his disability. That affects his credibility not only in relation to complaints of physical problems, but psychological symptoms. In my view, the plaintiff is making the most of his psychological symptoms and actively attempting to promote them for the sake of this application. I am not satisfied, the onus being upon the plaintiff the consequences of the psychological condition reaches the severe level. I am not satisfied, in accordance with the opinion of Professor Doherty that the plaintiff has suffered a forty percent loss of earning capacity from psychological injury.
67 In all these circumstances, the plaintiff’s application under ss(c) fails.
68 I shall make consequent orders.
- - -
0
0
0